Marzullo v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ANNETTE M., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-1805-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM

§ DECISION AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Annette M. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

“Act”), seeking review of the final decision of the Commissioner of Social Security (the

“Commissioner”), that denied her application for Disability Insurance Benefits (“DIB”) under

Title II of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§

405(g), 1383(c), and the parties consented to proceed before the undersigned in accordance with a

standing order (see ECF No. xx).

Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). See ECF Nos. 12, 13. No further briefing was filed. For the reasons set forth

below, the Commissioner’s motion for judgment on the pleadings (ECF No. 13) is DENIED, and

Plaintiff’s motion for judgment on the pleadings (ECF No. 12) is GRANTED, and this matter is

REMANDED to the Commissioner for further administrative proceedings as set forth below.

BACKGROUND

Plaintiff protectively filed a Title II application for a period of disability and DIB on July

28, 2017, alleging disability beginning July 31, 2013 (the disability onset date), due to:

“(1) depression, anxiety, difficulty concentrating; (2) arthritis in both knees (chondromalacia of

patella); (3) obesity (BMI=47.43 ki!/m2) 5'5" 285lbs: (4) sleep apnea—C-PAP nightly;

(5) hypertension; (6) diabetic; (7) high cholesterol; (8) pre-cancerous cells in right breast (annual

checkups); and (9) OCD.” Transcript (“Tr.”) 148-49, 173. Plaintiff’s claim was denied initially on

January 4, 2018, after which she requested an administrative hearing. Tr. 15. On October 17, 2019,

Administrative Law Judge Rosanne Dummer (the “ALJ”) conducted a video hearing from Falls

Church, Virginia. Tr. 15. Plaintiff appeared and testified in Buffalo, New York, and was

represented by Sarah A. Frederick, an attorney. Id. Sara Statz, an impartial vocational expert

(“VE”), also appeared and testified at the hearing. Id.

The ALJ issued an unfavorable decision on October 28, 2019, finding that Plaintiff was

not disabled. Tr. 15-31. On October 9, 2020, the Appeals Council denied Plaintiff’s request for

further review. Tr. 1-6. The ALJ’s October 28, 2019, 2019 decision thus became the “final

decision” of the Commissioner subject to judicial review under 42 U.S.C. § 405(g).

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the SSA, this Court is limited to determining whether the

SSA’s conclusions were supported by substantial evidence in the record and were based on a

correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing 42 U.S.C. §

405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is “conclusive”

if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more

than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citations

omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”

Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).

II. The Sequential Evaluation Process

An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71

(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ

proceeds to step two and determines whether the claimant has an impairment, or combination of

impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the

claimant does not have a severe impairment or combination of impairments meeting the durational

requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, the

ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or medically

equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the

“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing

and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ

determines the claimant’s residual functional capacity, which is the ability to perform physical or

mental work activities on a sustained basis notwithstanding limitations for the collective

impairments. See id. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s RFC permits

him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).

If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she

cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the

Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the

Commissioner must present evidence to demonstrate that the claimant “retains a residual

functional capacity to perform alternative substantial gainful work which exists in the national

economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168

F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

ADMINISTRATIVE LAW JUDGE’S FINDINGS

The ALJ analyzed Plaintiff’s claim for benefits under the process described above and

made the following findings in her October 28, 2019, 2019 decision:

1. The claimant last met the insured status requirements of the Social Security Act on

December 31, 2018.

2. The claimant did not engage in substantial gainful activity during the period from her

alleged onset date of July 31, 2013 through her date last insured of December 31, 2018 (20

CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following severe impairments: diabetes

mellitus, hypertension, obesity, obstructive sleep apnea, bilateral knee osteoarthritis, and

left knee degenerative joint disease with loose body (20 CFR 404.1520(c)).

4. Through the date last insured, the claimant did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the listed impairments in

20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. Through the date last insured, the claimant had the residual functional capacity to perform

sedentary work as defined in 20 CFR 404.1567(a).1 The claimant could lift/carry ten

pounds occasionally and less than ten pounds frequently, sit six of eight hours, and

stand/walk two of eight hours. The claimant should not climb ladders or scaffolds; she

could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. The

claimant should avoid work hazards (i.e., no dangerous moving machinery and no

unprotected heights). She should avoid work on wet, slippery, or uneven surfaces (i.e., Ex.

1A).

6. Through the date last insured, the claimant was capable of performing past relevant work

as a claims adjudicator. This work did not require the performance of work-related

activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565).

7. The claimant was not under a disability, as defined in the Social Security Act, at any time

from July 31, 2013, the alleged onset date, through December 31, 2018, the date last insured

(20 CFR 404.1520(f)).

1 “Sedentary” work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met.

Tr. 15-30.

Accordingly, the ALJ determined that for a period of disability and disability insurance

benefits protectively filed on July 28, 2017, Plaintiff is not disabled under sections 216(i) and

223(d) of the Act. Tr. 31.

ANALYSIS

Plaintiff asserts four points of error. First, Plaintiff argues that the ALJ erred when she

failed to assess the impact stress had on Plaintiff’s ability to perform her past relevant work, or to

work in a position in which she would have to regularly interact with coworkers and the public.

See ECF No. 12-1 at 19-21. Next, Plaintiff argues that the ALJ failed to assess the mental demands

of her past relevant work, including work stressors, which undermined the ALJ’s determination at

step four that Plaintiff was capable of performing her past relevant work. See id. at 21-24. Plaintiff

next argues that the ALJ failed to consider the cumulative impact of Plaintiff’s limitations from

her severe and non-severe impairments in formulating her RFC. See id. at 24-27. Finally, Plaintiff

argues that ALJ erred in her determination that Plaintiff could perform other jobs in the national

economy. See id. at 27-29.

The Commissioner argues in response that substantial evidence of record demonstrated

both that Plaintiff retained the RFC to perform her past relevant work, as well as the RFC to

perform other work that exists in significant numbers in the national economy and, therefore, she

was not disabled. See ECF No. 13-1 at 10-18. The Commissioner further argues that the ALJ

properly determined at step two of the sequential evaluation that Plaintiff’s mental impairment was

non-severe, and her obstructive sleep apnea was one of a combination of ailments that comprised

her severe impairment. See id. at 10-14. As such, argues the Commissioner, there was nothing

inconsistent in the ALJ’s finding that Plaintiff retained the RFC to perform sedentary work with

environmental and postural limitations despite her combination of severe and non-severe

limitations, and the ALJ correctly applied the regulations in finding that Plaintiff’s individual

impairments when considered together constituted a severe impairment and, therefore, was not

required to also consider whether these impairments individually would qualify as a severe

impairment.. See id. Finally, the Commissioner argues that the ALJ properly relied on the VE’s

opinion that Plaintiff could perform her past relevant work as a claims adjudicator, and even

assuming arguendo that Plaintiff could not perform her past relevant work, the ALJ properly

determined that Plaintiff retained the RFC to perform other work that exists in significant numbers

in the national economy. See id. at 14-18.

A Commissioner’s determination that a claimant is not disabled will be set aside when the

factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The

Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168

F.3d at 77.

Upon review of the entire record, the Court finds that Plaintiff’s arguments have some

merit in light of the evidence showing Plaintiff’s problems appropriately dealing with the public

and coworkers in the work setting. In this instance, the ALJ failed to make a thorough evaluation

of Plaintiff’s individualized reaction to stress as the regulations require. See Social Security Ruling

(“SSR”) 85-15. As such, the Court finds that the ALJ’s finding that Plaintiff retained the ability to

perform the mental demands of her past relevant work during the alleged period of disability, or

that Plaintiff could perform other jobs in the national economy (Tr. 19) was not supported by

substantial evidence.

The record reflects that Plaintiff stopped working due to an inability to deal with the stress

of her job at the Social Security Administration. Tr. 71, 75. The record evidence supports

Plaintiff’s testimony that she was directed to seek psychological treatment due to her disruptive

reactions to work stress, which included inappropriately interacting with coworkers and the public.

Tr. 41-42, 45, 47, 48, 174, 236, 347, 362, 365, 393. Despite the evidence documenting Plaintiff’s

inability to deal with the stress of her past work, the ALJ did not address the impact of Plaintiff’s

limitations from stress in the decision.

On March 8, 2013, Plaintiff began seeing psychologist Daniel Anger, Ph.D., BCD2 (“Dr.

Anger”). Tr. 361-62/ She was referred by her office manager and/or EAP consultant after receiving

several reprimands at work, the next step of which could result in suspension. Tr. 361. She stated

she needed “help with stress” and was also deciding whether or not to take early retirement due to

stress. Tr. 362. After treating Plaintiff for six sessions, Dr. Anger opined that Plaintiff’s problem

dealing with stress had moderately impacted her job performance. Tr. 365.

On April 2, 2013, Plaintiff saw physician assistant Andrea Laudisio-Pinger, RPA-C (“Ms.

Laudisio”), for a three-month follow-up appointment for obstructive sleep apnea with residual

hypersomnia. Tr. 235-36. Plaintiff reported full compliance with CPAP therapy. She had started

Provigil on her last visit and taken the medication for a month without any noticeable difference

in her hypersomnia. Tr. 235. Plaintiff indicated she was very stressed at work. Tr. 236. Plaintiff

had been seeing a counselor due to “anger episodes” at work and questioned whether depression

contributed to her symptoms. Id. She was tearful when she discussed her depression and the impact

it had on her life. Plaintiff reported that she had been taking Cymbalta for quite some time, but she

felt the medication was no longer helpful. Id. Ms. Laudisio suggested increasing Plaintiff’s dosage

of Provigil but ultimately agreed with Plaintiff’s request to postpone trying a higher dosage until

2 According to the American Board of Clinical Social Work (“ABCSW”), BCD is a Board Certified Diplomate in

Clinical Social Work, a credential issued by ABCSW for advanced clinical generalists, clinical supervisors,

children/families practitioners and psychoanalysts. American Board of Clinical Social Work website,

https://www.abcsw.org

her depression was better controlled. Id. Ms. Laudisio opined that depression could be playing a

role in Plaintiff’s “continued energy issues” and encouraged her to pursue psychiatric treatment.

Id.

On April 12, 2013, Plaintiff saw Polina Purizhansky, M.D. (“Dr. Purizhansky”), for a

recheck of knee pain. Tr. 239. She complained of pain and swelling in both knees, and leg cramps.

Id. Plaintiff reported that she continued to have trouble staying awake during the day despite

“adequately treated” obstructive sleep apnea, and she continued to be depressed. Tr. 240. On

review of symptoms, Dr. Purizhansky noted positive for pain in both knees, malaise, fatigue, and

depression. Id. Among other things, Plaintiff was noted to be morbidly obese, insulin resistant, and

pre-diabetic. Id. Her dosage of Cymbalta was increased from 30 mg to 60 mg. Tr. 241.

Plaintiff had a follow-up visit with Dr. Purizhansky on October 11, 2013. Tr. 244. Plaintiff

reported she was “feeling much better” since her retirement two months before. Id. Dr.

Purizhansky noted that Plaintiff had lost 20 pounds. However, she remained morbidly obese at 265

pounds. and continued to have some malaise and fatigue as well as knee pain. Id.

Consultative psychologist Susan Santarpia Ph.D. (“Dr. Santarpia”), evaluated Plaintiff on

November 30, 2017. Tr. 582-86. Dr. Santarpia noted that Plaintiff was not currently employed and

left her last job as a claims representative for Social Security in July 2013 after 22 years “due to

stress related to the work environment.” Tr. 582. Plaintiff endorsed waking 1-2 times nightly,

increased appetite, crying spells, loss of usual interest, diminished sense of pleasure, and social

withdrawal. Tr. 582-83. She attained some relief with Abilify and had been better able to sleep

with the medication. Tr. 583. Plaintiff reported her anxiety symptoms including excessive

apprehension and worry, restlessness, and trouble concentrating. Plaintiff’s affect was dysphoric

and her mood, dysthymic, and her insight and judgment were assessed as fair. Tr. 583-84.

Dr. Santarpia opined Plaintiff had a mild impairment regulating emotion, controlling

behavior, and maintaining wellbeing. Dr. Santarpia assessed that Plaintiff could understand,

remember, and apply complex directions and instructions; make work-related decisions; interact

adequately with supervisors, co-workers, and the public; sustain concentration and perform a task

at a consistent pace; and sustain an ordinary routine and regular attendance at work. Tr. 584. Dr.

Santarpia recommended counseling to assist with coping skills and opined that Plaintiff’s

psychiatric problems did not significantly interfere with her daily functioning. Tr. 585.

State agency psychological consultant Dr. T. Bruni reviewed the evidence of record on

December 22, 2017. Tr. 70-72. Dr. Bruni assessed that Plaintiff had no limitations in

understanding, remembering, and applying information; mild limitations in interacting with others;

mild limitations in concentrating, persisting, or maintaining pace; and mild limitations in adapting

or managing oneself. Tr. 71. By way of additional explanation for his findings, Dr. Bruni noted

that Plaintiff reported getting distracted easily and problems with her last two bosses due to added

pressures of completing more in a timely manner. Tr. 71. Dr.Bruni further noted that Plaintiff “took

early out” due to her problems with bosses and co-workers and the “intense demands” of her job.

Id. Dr. Bruni concluded that Plaintiff’s psychiatric impairment was not severe. Tr. 72.

On September 5, 2019, licensed mental health counselor Michelle Marabella, LMHC (“Ms.

Marabella”), submitted a statement and treatment summary. Tr. 686. She had been treating

Plaintiff for weight loss and general anxiety since January of 2019. Id. Plaintiff’s symptoms

included rumination, excessive worry, procrastination, low motivation, fatigue, and limited

energy, and her treatment goals included increasing her activity level, improving her health, losing

weight, and stabilizing her mood. Id. Ms. Marabella opined that, until Plaintiff was able to manage

and sustain her goals, she was limited in her ability to focus, concentrate, and effectively meet

work expectations. Id. Although Plaintiff continued to attend psychotherapy sessions, she had yet

to solidify an effective treatment plan. Id.

In considering Plaintiff’s mental functioning in the area of interacting with others, the ALJ

noted that Plaintiff alleged she had difficulty getting along with others, including her family, and

dealing appropriately with authority. Tr. 18. The ALJ also noted Plaintiff’s testimony that she left

her job in 2013 due to difficulty getting along with coworkers, supervisors, and the public. Tr. 18,

2, 45-46. However, the ALJ also noted that Plaintiff was able to get along with her friends, shop,

and spend time with friends; met with friends for lunches or dinners; and traveled regularly and

she went to the senior center regularly. Tr. 18, 190, 347, 350, 353, 583, 662. Based on these

findings, the ALJ determined that Plaintiff had only a mild limitation in interacting with others.

Tr. 18.

However, the ALJ failed to make a thorough evaluation of Plaintiff’s individualized

reaction to stress in the workplace. See SSR 85-15. SSR 85-15 states: “it is not unusual that the

mentally impaired have difficulty accommodating to the demands of work and work-like settings,”

and “[t]he reaction to the demands of work (stress) is highly individualized, and mental illness is

characterized by adverse responses to seemingly trivial circumstances.” SSR 85-15. As a result,

SSR 85-15 recognizes that “[d]etermining whether these [mentally impaired] individuals will be

able to adapt to the demands or ‘stress’ of the workplace is often extremely difficult,” and “requires

careful consideration of the assessment of RFC,” including whether the individual retains the

ability “to understand, carry out, and remember simple instructions; to respond appropriately to

supervision, coworkers, and usual work situations; and to deal with changes in a routine work

setting.” Id.

In considering whether an individual is capable of working despite any difficulties

attributable to his or her mental impairments, SSR 85-15 thus “emphasizes the importance of

thoroughness in evaluation on an individualized basis,” and explains that “[a]ny impairment-

related limitations created by an individual’s response to demands of work . . . must be reflected

in the RFC assessment.” Id. “Because response to the demands of work is highly individualized,

the skill level of a position is not necessarily related to the difficulty an individual will have in

meeting the demands of the job.” Id. “Any impairment-related limitations created by an

individual's response to demands of work, however, must be reflected in the RFC assessment.” Id.

This was not done in this case.

It was also error for the ALJ to overlook Dr. Anger’s opinion that dealing with stress

impacted Plaintiff’s job performance to a moderate degree. Tr. 365. See Taylor v. Comm’r of Soc.

Sec., No. 08-CV-0846 VEB, 2011 WL 940319, at *4 (N.D.N.Y. Mar. 16, 2011), (faulting the ALJ

for failing to make any meaningful inquiry into the level of stress associated with the plaintiff’s

past relevant work before determining she could still perform her past work). “Error involving

failure to consider relevant evidence “ordinarily requires remand to the ALJ for consideration of

the improperly excluded evidence, at least where the unconsidered evidence is significantly more

favorable to the Plaintiff than the evidence considered.” Simpson v. Astrue, No. 11-CV-6500JWF,

2013 WL 4495090, at *12 (W.D.N.Y. Aug. 19, 2013) (quoting Zabala v. Astrue, 595 F.3d 402,

409 (2d Cir.2010)).

Based on the foregoing, the Court finds that the ALJ's finding that Plaintiff retained the

ability to perform the mental demands of her past relevant work was not supported by substantial

evidence. While the claimant bears the burden of proving an inability to perform past relevant

work, "the Commissioner has the duty to adequately inquire into the demands of [claimant's] past

relevant work so that a correct decision can be reached as to [claimant's] ability or inability to

perform it." Taylor, 2011 WL 940319, at *4 (quoting Wood–Monroe v. Astrue, No. 05–CV–1570,

2008 WL 4283412, at *6 (N.D.N.Y. Sep't 16, 2008)). For similar reasons, the ALJ’s finding that

Plaintiff could perform other jobs in the national economy is likewise unsupported.

Because the ALJ failed to conduct a thorough evaluation in accordance with SSR 85-15’s

guiding principles emphasizing the individualized nature of the inquiry, the Court finds that

remand is warranted for proper evaluation of Plaintiff’s mental RFC. See Kuhaneck v. Comm’r of

Soc. Sec., 357 F.Supp.3d 241, 248 (W.D.N.Y. 2019) (“The ALJ's failure to explain her assessment

of portions of [the] medical opinion prevents the Court from meaningfully reviewing [her]

decision, and warrants remand.”) (internal citations and quotation marks omitted); see also Devine

v. Saul, 2020 WL 1649819, at *7 (W.D.N.Y. Apr. 3, 2020) (finding the ALJ by failing to discuss

the examiner’s opinion that the plaintiff had moderate limitation in dealing with stress, failing to

provide an analysis of the stress limitation, and failing to explain where he rejected it or intended

to address the limitation in the RFC determination).

Because the Court has already determined, for the reasons discussed above, that remand of

this matter for further administrative proceedings is necessary, the Court declines to address

Plaintiff’s additional arguments. See, e.g., Bell v. Colvin, No. 5:15-CV-01160 (LEK), 2016 WL

7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments “devoted to the question

whether substantial evidence supports various determinations made by [the] ALJ” where the court

had already determined remand was warranted); Morales v. Colvin, No. 13cv06844 (LGS) (DF),

2015 WL 2137776, at *28 (S.D.N.Y. Feb. 10, 2015) (the court need not reach additional arguments

regarding the ALJ's factual determinations “given that the ALJ's analysis may change on these

points upon remand”), adopted, *261 2015 WL 2137776 (S.D.N.Y. May 4, 2015).

CONCLUSION

Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 12) is GRANTED, the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 13) is DENIED, and this matter

is REMANDED to the Commissioner for further administrative proceedings consistent with this

opinion pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d 117, 124

(2d Cir. 2000). The Clerk of Court is directed to enter judgment and close this case.

IT IS SO ORDERED.

k { YL J (Duvvrt-

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

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