Case 5:19-cv-01264-TWD Document 18 Filed 10/19/20 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`___________________________________________
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`VIRGINIA R.,
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`Plaintiff,
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`v.
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`ANDREW SAUL, Commissioner of the
`Social Security Administration,
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`5:19-CV-01264
`(TWD)
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`Defendant.
`____________________________________
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`OF COUNSEL:
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`GREGORY T. PHILLIPS, ESQ.
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`LISA SMOLLER, ESQ.
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`APPEARANCES:
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`SEGAR & SCIORTINO, PLLC
` Counsel for Plaintiff
`400 Meridian Centre
`Suite 320
`Rochester, New York 14618
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`U.S. SOCIAL SECURITY ADMIN.
` Counsel for Defendant
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`Social Security Administration
`J.F.K. Federal Building, Room 625
`15 New Sudbury Street
`Boston, Massachusetts 02203
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`THÉRÈSE WILEY DANCKS, United States Magistrate Judge
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`DECISION AND ORDER
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`Currently before the Court, in this Social Security action filed by Virginia R. (“Plaintiff”)
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`against the Commissioner of Social Security (“Defendant” or the “Commissioner”) pursuant to
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`42 U.S.C. § 405(g), are Plaintiff’s motion for judgment on the pleadings and Defendant’s motion
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`for judgment on the pleadings. (Dkt. Nos. 14, 17.) For the reasons set forth below, Plaintiff’s
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`motion for judgment on the pleadings is granted and Defendant’s motion for judgment on the
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`Case 5:19-cv-01264-TWD Document 18 Filed 10/19/20 Page 2 of 11
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`pleadings is denied. The Commissioner’s decision denying Plaintiff’s disability benefits is
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`vacated and this matter is remanded for further proceedings consistent with this opinion.
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`I.
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`BACKGROUND
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`On June 9, 2016, Plaintiff protectively filed a Title II application for a period of disability
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`and disability insurance benefits, alleging disability beginning January 1, 2015. (Administrative
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`Transcript1 at 4.) Plaintiff’s claim was denied initially on August 19, 2016. Id. Plaintiff timely
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`requested a hearing before an Administrative Law Judge (“ALJ”). Id. She subsequently
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`appeared at an administrative hearing before ALJ Robyn L. Hoffman on June 20, 2018. Id.
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`On August 22, 2018, the ALJ issued a written decision finding Plaintiff not disabled. T.
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`4-17. The ALJ’s decision followed the Social Security Administration’s (“SSA”) five-step
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`sequential evaluation process for determining whether an adult is disabled. See 20 C.F.R.
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`§ 416.920(a). At step two, the ALJ found Plaintiff suffered from the following severe
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`impairments: “rheumatoid arthritis, fibromyalgia, chronic obstructive pulmonary disease
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`(COPD), asthma, migraines, and a cervical spine herniated disc.” T. 6. The ALJ found, based
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`on the above-stated impairments, Plaintiff had the residual functional capacity (“RFC”) to:
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`“occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, sit up to six hours in
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`an eight-hour day, and stand or walk approximately six hours in an eight-hour day with normal
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`breaks. She should avoid exposure to excessive amounts of respiratory irritants such as dust,
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`odors, fumes, and gases, and extreme hot and cold temperatures.” T. 9-10. Given Plaintiff’s
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`RFC, the ALJ concluded she was not disabled because there were significant numbers of jobs in
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`the national economy she could perform. T. 12.
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`1 The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative
`Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
`will be used rather than the page numbers the Court’s CM/ECF electronic filing system assigns.
`2
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`Case 5:19-cv-01264-TWD Document 18 Filed 10/19/20 Page 3 of 11
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`Plaintiff sought review of the ALJ’s decision to the Appeals Council. On August 9,
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`2019, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the
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`final decision of the Commissioner. T. 18-22. Thereafter, Plaintiff filed a complaint in this
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`Court seeking judicial review of the Commissioner’s final decision on October 7, 2019. (Dkt.
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`No. 1.) Pursuant to General Order 18, each party submitted supporting briefs that this Court
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`treats as competing motions for judgment on the pleadings. (Dkt. Nos. 14, 17.)
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`Plaintiff’s main contention is the ALJ failed to appropriately consider medical evidence
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`related to her mental impairments. (Dkt. No. 14.) Specifically, Plaintiff contends the ALJ’s
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`step-two determination was erroneous given Plaintiff’s long history of treatment for mental
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`impairments—including her ten-year history treating with Dr. James Donovan. Id. According to
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`Plaintiff, had the ALJ considered Dr. Donovan’s letter opinion and treatment history she would
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`have concluded Plaintiff suffered from severe mental impairments at step-two. Id. Defendant,
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`on the other hand, asserts the ALJ properly evaluated the evidence concerning Plaintiff’s mental
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`conditions and reasonably determined that her depression, anxiety, and post-traumatic stress
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`disorder were not severe impairments. (Dkt. No. 17.)
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`II.
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`DISCUSSION
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`A.
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`Scope of Review
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`In reviewing a final decision of the Commissioner, a court must determine whether the
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`correct legal standards were applied and whether substantial evidence supports the decision.
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`Featherly v. Astrue, 793 F. Supp. 2d. 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v.
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`Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985
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`(2d. Cir. 1987)). A reviewing court may not affirm the ALJ’s decision if it reasonably doubts
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`Case 5:19-cv-01264-TWD Document 18 Filed 10/19/20 Page 4 of 11
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`whether the proper legal standards were applied, even if the decision appears to be supported by
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`substantial evidence. Johnson, 817 F.2d at 986.
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`A court’s factual review of the Commissioner’s final decision is limited to the
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`determination of whether there is substantial evidence in the record to support the decision. 42
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`U.S.C. § 405(g) (2015); Rivera v. Sullivan, 923 F.2d 964, 967 (2d. Cir. 1991). To facilitate the
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`Court’s review, an ALJ must set forth the crucial factors justifying her findings with sufficient
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`specificity to allow a court to determine whether substantial evidence supports the decision.
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`Roat v. Barnhart, 717 F. Supp. 2d. 241, 248 (N.D.N.Y. 2010); Ferraris v. Heckler, 728 F.2d 582,
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`587 (2d. Cir. 1984). “Substantial evidence has been defined as ‘such relevant evidence as a
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`reasonable mind might accept as adequate to support a conclusion.’” Williams ex rel. Williams v.
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`Bowen, 859 F.2d 255, 258 (2d. Cir. 1988) (citations omitted). It must be “more than a mere
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`scintilla” of evidence scattered throughout the administrative record. Featherly, 793 F. Supp. 2d.
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`at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
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`305 U.S. 197, 229 (1938)).
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`“To determine on appeal whether an ALJ’s findings are supported by substantial
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`evidence, a reviewing court considers the whole record, examining the evidence from both sides,
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`because an analysis of the substantiality of the evidence must also include that which detracts
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`from its weight.” Williams, 859 F.2d at 258 (citations omitted). Where substantial evidence
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`supports the ALJ’s findings they must be sustained “even where substantial evidence may
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`support the plaintiff’s positions and despite that the court’s independent analysis of the evidence
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`may differ from the [ALJ’s].” Rosado, 805 F. Supp. at 153. In other words, a reviewing court
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`cannot substitute its interpretation of the administrative record for that of the Commissioner if
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`Case 5:19-cv-01264-TWD Document 18 Filed 10/19/20 Page 5 of 11
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`the record contains substantial support for the ALJ’s decision. Rutherford v. Schweiker, 685
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`F.2d. 60, 62 (2d. Cir. 1982).
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`B.
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`Standard for Benefits2
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`To be considered disabled, a plaintiff-claimant seeking benefits must establish that he or
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`she is “unable to engage in any substantial gainful activity by reason of any medically
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`determinable physical or mental impairment which can be expected to result in death or which
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`has lasted or can be expected to last for a continuous period of not less than twelve months.” 42
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`U.S.C. § 1382c(a)(3)(A) (2015). In addition, the plaintiff-claimant’s
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`physical or mental impairment or impairments [must be] of such
`severity that he is not only unable to do his previous work but
`cannot, considering his age, education, and work experience,
`engage in any other kind of substantial gainful work which exists
`in the national economy, regardless of whether such work exists in
`the immediate area in which he lives, or whether a specific job
`vacancy exists for him, or whether he would be hired if he applied
`for work.
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`Id. § 1382c(a)(3)(B).
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`Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the SSA
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`promulgated regulations establishing a five-step sequential evaluation process to determine
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`disability. 20 C.F.R. § 416.920(a)(4) (2015). Under that five-step sequential evaluation process,
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`the decision-maker determines:
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`(1) whether the claimant is currently engaged in substantial gainful
`activity; (2) whether the claimant has a severe impairment or
`combination of impairments; (3) whether the impairment meets or
`equals the severity of the specified impairments in the Listing of
`Impairments; (4) based on a “residual functional capacity”
`assessment, whether the claimant can perform any of his or her
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`2 The requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3) and Title
`II, 42 U.S.C. § 423(d), are identical, so that “decisions under these sections are cited
`interchangeably.” Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir.
`1983) (citation omitted).
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`past relevant work despite the impairment; and (5) whether there
`are significant numbers of jobs in the national economy that the
`claimant can perform given the claimant’s residual functional
`capacity, age, education, and work experience.
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`McIntyre v. Colvin, 758 F.3d 146, 150 (2d. Cir. 2014). “If at any step a finding of disability or
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`non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,
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`540 U.S. 20, 24 (2003).
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`C.
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`Failure to Consider Medical Evidence
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`“An ALJ should consider ‘all medical opinions received regarding the claimant.’” Reider
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`v. Colvin, No. 15-CV-6517, 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016) (quoting
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`Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005)); see also SSR 96-8p (SSA),
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`1996 WL 374184, at *7 (July 2, 1996). This Court has ordered remand in cases where the ALJ
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`failed to appropriately explain the weight afforded to opinion and medical evidence. See Jordan
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`v. Comm’r of Soc. Sec., No. 8:15-CV-0436, 2016 WL 3661429, at *5 (N.D.N.Y. July 5, 2016)
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`(finding remand necessary where the ALJ failed to weigh the opinions from two treating
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`physicians); Campbell v. Astrue, 713 F. Supp. 2d 129, 140 (N.D.N.Y. 2010) (remanding where
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`the ALJ “did not explain why his findings were contrary, discuss [the State Agency physician’s]
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`opinions, or give weight to her opinions”); Duell v. Astrue, No. 8:08-CV-0969, 2010 WL 87298,
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`at *5 (N.D.N.Y. Jan. 5, 2010) (remanding in part due to the ALJ’s failure to explain the weight
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`he afforded to the opinions of various consultative physicians and psychologists). However,
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`failure to consider or weigh an opinion may be harmless error where consideration of that
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`opinion would not have changed the outcome. See Cottrell v. Colvin, 206 F. Supp. 3d 804, 810
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`(W.D.N.Y. 2016) (noting that an error is considered harmless where proper consideration of the
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`physician’s opinion would not change the outcome of the claim) (citing Zabala v. Astrue, 595
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`F.3d 402, 409 (2d Cir. 2010)); Camarata v. Colvin, No. 6:14-CV-0578, 2015 WL 4598811, at
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`*16 (N.D.N.Y. July 29, 2015) (denying a request for remand because application of the correct
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`legal standard would not have changed the outcome).
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`As noted above, Plaintiff asserts the Commissioner erroneously found her mental
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`impairments as “non-severe,” and indicative of “only a slight abnormality or a combination of
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`slight abnormalities that would have no more than a minimal effect on [Plaintiff’s] ability to
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`work.” T. 5, 7-9. To that end, Plaintiff argues the ALJ erred in ignoring medical evidence from
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`Dr. James Donovan. Dr. Donovan was Plaintiff’s psychiatrist between 2006 and 2016. T. 563.
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`In response to a letter from her attorney, Dr. Donovan provided a letter regarding his treatment of
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`Plaintiff. T. 684. The letter indicates Plaintiff was last seen on October 6, 2016, and that she
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`was a patient for ten years. Id. According to Dr. Donovan, Plaintiff’s diagnosis was “Major
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`Depressive Disorder, Recurrent, Moderate,” and she “had a downward course.” Id. Dr.
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`Donovan noted he “saw [Plaintiff] as compromised, and prognosis was guarded.” Id.
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`Accompanying the letter was a printout noting the dates Plaintiff treated with Dr. Donovan. In
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`total, Plaintiff saw Dr. Donovan (or another provider at his service) 44 times between June 26,
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`2006, and October 6, 2016. T. 685. Though the majority of these appointments occurred before
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`the date Plaintiff is claiming as the onset of her disability, five of those appointments took place
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`during the relevant timeframe. Id.
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`Plaintiff also testified at her hearing that she had to stop seeing Dr. Donovan because she
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`could no longer afford to pay for the appointments out of pocket. T. 51. Plaintiff, however,
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`noted Dr. Donovan helped her with her anxiety but that her depression had worsened recently.
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`T. 52.
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`In her decision, the ALJ did not mention or consider Plaintiff’s long history of treatment
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`with Dr. Donovan or his letter. T. 7-9. Rather, in evaluating Plaintiff’s mental conditions, the
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`ALJ gave “great weight” to consultative examiner Dr. Shapiro’s medical opinion and some
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`weight to a state reviewing psychologist. T. 7. The ALJ noted Dr. Shapiro opined Plaintiff “had
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`mild or no limitation in almost every area assessed,” and the state reviewing psychologist
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`concluded Plaintiff had no severe mental impairment. Id.
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`As noted above, it is axiomatic that an ALJ must consider all relevant medical evidence
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`when analyzing a claim of disability. See 20 C.F.R. § 416.927(c) (stating an ALJ “will evaluate
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`every medical opinion we receive.”). From a practical sense, that means the ALJ must not only
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`“adequately explain [her] reasoning in making the findings on which [her] ultimate decision
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`rests,” but also must “address all pertinent evidence.” Calzada v. Asture, 753 F. Supp. 2d 250,
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`269 (S.D.N.Y. 2010). “[A]n ALJ’s failure to acknowledge relevant evidence or to explain its
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`implicit rejection is plain error.” Id. (internal quotation marks omitted); Rodriguez v. Astrue, No.
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`11 CIV. 7720, 2012 WL 4477244, at *30 (S.D.N.Y. Sept. 28, 2012). Here, the ALJ failed to
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`consider or discuss Dr. Donovan’s letter and report documenting a long history of treatment for
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`mental impairments. This is legal error.3 Furthermore, the Court finds this error is harmful
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`because there is at least a reasonable likelihood that a different result could be reached if the ALJ
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`properly considered and weighed Dr. Donovan’s letter and Plaintiff’s treatment history. See
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`Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (noting remand is unnecessary “[w]here
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`application of the correct legal standard could lead to only one conclusion” (emphasis added));
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`3 The ALJ’s reliance on Dr. Shapiro’s opinion only exacerbates the error and demonstrates that
`the ALJ should have developed the record further. Notably, Dr. Shapiro specifically mentioned
`Dr. Donovan’s treatment (T. 560) and suggested she continue with treatment as currently
`provided. T. 564. Considering the ALJ relied heavily on Dr. Shapiro’s opinion, it was erroneous
`for her not to consider or discuss the evidence cited within that opinion—specifically Dr.
`Donovan’s letter.
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`Johnson, 817 F.2d at 986 (“[W]here application of the correct legal principles to the record could
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`lead [only to the same] conclusion, there is no need to require agency reconsideration.”).
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`Defendant attempts to side-step the ALJ’s legal error and instead contends Plaintiff did
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`not raise any issue with the ALJ’s failure to consider or even mention Dr. Donovan’s letter and
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`treatment history. (Dkt. No. 17 at 7 n.3.) However, the Court finds Plaintiff did not waive this
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`argument and appropriately raised it when she discussed that the ALJ ignored favorable
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`evidence. (Dkt. No. 14-1 at 8-9.) Plaintiff’s brief successfully preserves her argument that the
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`ALJ erred in failing to consider the opinion of Dr. Donovan, a treating physician.
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`Seemingly acknowledging the ALJ’s error, Defendant argues Dr. Donovan’s letter was
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`too vague and did not include any functional limitations and, thus, not mentioning the letter was
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`harmless. (Dkt. No. 17). However, even if the letter is vague, the ALJ still erred in failing to re-
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`contact Dr. Donovan for clarification. See Selian v. Astrue, 708 F.3d 409, 421 (2d. Cir. 2013)
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`(noting that, in a case where the treating physician’s opinion was “remarkably vague,” that “[a]t
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`a minimum, the ALJ likely should have contacted [the treating physician] and sought
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`clarification of his report,” citing these regulations); Ashley v. Comm’r of Soc. Sec., No. 14-CV-
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`40, 2014 WL 7409594, at *4 (N.D.N.Y. Dec. 30, 2014) (concluding that in the circumstances of
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`the case, under these regulations, “[t]he ALJ ought to have contacted the doctor for clarification
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`on his conclusion”). The Second Circuit has long recognized that a “Social Security ALJ, unlike
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`a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of
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`the essentially non-adversarial nature of a benefits proceeding.” Moran v. Astrue, 569 F.3d 108,
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`112 (2d. Cir. 2009); accord Pratts v. Chater, 94 F.3d 34, 37 (2d. Cir.1996). This duty to develop
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`the record has its roots in the Commissioner’s regulatory obligation to ascertain a claimant’s
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`complete medical history before making a disability determination. Pratts, 94 F.3d at 37 (citing
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`Case 5:19-cv-01264-TWD Document 18 Filed 10/19/20 Page 10 of 11
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`20 C.F.R. § 404.1512(d)-(f) (2014)). Indeed, there is a heightened duty to develop the record
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`when a mental impairment is involved. See, e.g., Corporan v. Comm’r of Soc. Sec., No. 12-CV-
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`6704, 2015 WL 321832, at *22 (S.D.N.Y. Jan. 23, 2015) (“The ALJ’s duty to develop the record
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`is enhanced when the disability in question is a psychiatric impairment.”); Bushansky v. Comm’r
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`of Soc. Sec., No. 13-CV-2574, 2014 WL 4746092, at *5 (S.D.N.Y. Sept. 24, 2014) (“When a
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`disability claim is based on a psychiatric illness[,] the ALJ’s duty to develop the record is
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`enhanced.” (internal quotation marks omitted)); Hidalgo v. Colvin, No. 12-CV-9009, 2014 WL
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`2884018, at *4 (S.D.N.Y. June 25, 2014) (noting that the ALJ’s duty to develop the record is
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`“particularly important where an applicant alleges he is suffering from a mental illness”). Here,
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`even if the Court were to conclude Dr. Donovan’s letter was too vague, it would have to find the
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`ALJ’s failure to develop the record and recontact Dr. Donovan is an independent basis to order
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`remand.
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`Plaintiff has also argued more generally that the totality of the medical evidence in the
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`record establishes that she suffered from depression and anxiety that should have been
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`considered severe impairments at step-two of the sequential evaluation process. (Dkt. No. 14-1
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`at 13-14.) The Court notes the record does include several instances where Plaintiff was treated
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`for her mental impairments beyond Dr. Donovan. For example, on January 12, 2015, she
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`presented to Marcellus Family Medicine, PLLC and reported experiencing “anxiety, depression,
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`mood changes, racing thoughts, sadness and stress.” T. 462; (see also Dkt. No. 14-1 at 9-13
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`(Plaintiff’s brief describing her mental treatment).) Nevertheless, the Court is not prepared to
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`state unequivocally that the ALJ must find Plaintiff’s mental impairments are severe on this
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`record. Rather, it is the ALJ’s duty to weigh the evidence and consider its implications. Here,
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`the Court’s holding is limited to the ALJ’s failure to appropriately consider all the relevant
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`evidence and develop a full record as to Plaintiff’s mental impairments. The Court expresses no
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`opinion as to the conclusion the ALJ may reach when she reevaluates the evidence.
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`In short, the Court finds remand is appropriate because the ALJ failed to address Dr.
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`Donovan’s opinion in determining the severity of Plaintiff’s mental impairments. On remand,
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`the ALJ should seek further records from Dr. Donovan and a medical source statement detailing
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`his opinion as to Plaintiff’s mental impairments.
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`III. CONCLUSION
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`In light of the foregoing, the Court finds substantial evidence does not support the ALJ’s
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`decision.
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`ACCORDINGLY, it is
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`ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14) is
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`GRANTED; and it is further
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`ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
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`DENIED; and it is further
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`ORDERED that Defendant’s decision denying Plaintiff disability benefits is
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`VACATED, and this case is REMANDED, pursuant to Sentence Four of 42 § U.S.C. 405(g) for
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`proceedings consistent with this Decision and Order.
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`Dated: October 19, 2020
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`Syracuse, New York
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