Opinion
1:20-CV-00793 EAW
2021-06-01
KASEY G., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
John Zonitch, Stephen Edward Brooks, Neighborhood Legal Services, Inc., Batavia, NY, for Plaintiff. Sixtina Fernandez, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
John Zonitch, Stephen Edward Brooks, Neighborhood Legal Services, Inc., Batavia, NY, for Plaintiff.
Sixtina Fernandez, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Casey G. ("Plaintiff") brings this action pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her application for supplemental security income ("SSI"). (Dkt. 1; Dkt. 3). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 13; Dkt. 14), and Plaintiff's reply (Dkt. 18). For the reasons discussed below, Plaintiff's motion is granted in part (Dkt. 13), the Commissioner's motion is denied (Dkt. 14), and the case is remanded for further administrative proceedings.
BACKGROUND
Plaintiff protectively filed her application for SSI on November 28, 2016. (Dkt. 11 at 24, 86). In her application, Plaintiff alleged disability beginning December 19, 2013, due to a developmental delay and a thyroid problem. (Id. at 11, 75-76). Plaintiff's application was initially denied on March 24, 2017. (Id. at 11, 87-92). A video hearing was held before administrative law judge ("ALJ") Gregory Moldafsky on November 30, 2018. (Id. at 11, 40-74). Plaintiff appeared in West Seneca, New York and the ALJ presided over the hearing from Alexandria, Virginia. (Id. ). On April 3, 2019, the ALJ issued an unfavorable decision. (Id. at 24-35). Plaintiff requested Appeals Council review; her request was denied on May 15, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 4-7). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("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) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner 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) (quotation 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. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 416.920(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, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, 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. § 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. 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. § 416.920(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 the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since November 28, 2016, the application date. (Dkt. 11 at 26).
At step two, the ALJ found that Plaintiff suffered from the severe impairment of developmental delay with mild intellectual disability. (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of hypothyroidism with multi nodular goiter, hyperlipidemia, diabetes mellitus, kidney stones, and obesity were non-severe. (Id. ).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 27). The ALJ particularly considered the criteria of Listings 12.05 and 12.11 in reaching his conclusion. (Id. at 27-29).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at all exertional levels, but with the following non-exertional limitations:
simple (as defined in the D.O.T. with SVP ratings of 1 and 2), routine, repetitive tasks, in a work environment that is not fast paced or has strict production quotas (e.g., work that is goal based or measured by end result). Additionally, she is limited to no more than occasional interaction with the general public, co-workers and supervisors. Further, she is limited to jobs where changes in work setting or processes are few, if any, and any changes are explained in advance.
(Id. at 29). At step four, the ALJ determined that Plaintiff had no past relevant work. (Id. at 33).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of industrial sweeper/cleaner, dishwasher, and laundry worker. (Id. at 34). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 34-35).
II. Remand of This Matter for Further Proceedings is Necessary
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ erred when he found that Plaintiff did not meet the requirements of Listing 12.05 for intellectual disorders, and (2) the ALJ erred in determining that Plaintiff can perform unskilled work, including because the ALJ failed to assess her ability to work outside of a highly-structured environment, and the ALJ failed to weigh the opinion of Denise O'Connor, Plaintiff's school psychologist. (Dkt. 13-1 at 21-30).
A. Failure to Consider Opinion Evidence
Plaintiff contends that the ALJ failed to address the opinion of Denise O'Connor, Plaintiff's school psychologist. (Dkt. 13-1 at 28). The Commissioner concedes that the ALJ failed to address this evidence, but argues that it is not an "opinion" because the evaluation mentions only Plaintiff's IQ score and her need to continue with special education classes during her last year of high school and that Plaintiff received onsite job experience and training with BOCES. The Commissioner also contends that the ALJ acknowledged Plaintiff's school records in his decision. (See Dkt. 14-1 at 14 n.5).
The psychological evaluation at issue is a five-page "Confidential Psychological Report," from the Frontier Central School District, dated September 12, 2013, and from when Plaintiff was a senior in high school. (Dkt. 11 at 666). The report is prepared by Denise O'Connor, M.A., C.A.S., a Certified School Psychologist. (Id. at 670). The report includes background information relating to Plaintiff's intellectual functioning, a summary of previous assessments she received, and an assessment of her intellectual capabilities using the Wechsler Adult Intelligence Scale—Fourth Edition (WAIS-IV), including determining her Full Scale IQ as 61, which described her intellectual capabilities as "deficient." (Id. at 666-68).
The Court disagrees with the Commissioner's characterization of this report. Contrary to the Commissioner's contention, the report does include an evaluation of Plaintiff's intellectual functioning, including her ability to comprehend information and communicate with others. (See, e.g., id. at 668 (noting delayed ability to understand and express verbal information, below-average skills in vocabulary and ability to recall factual information from long-term memory, and concluding that "[o]verall, [Plaintiff]’s scores suggest that comprehending lectures, following oral directions, expressing her knowledge verbally and reading for understanding will be difficult tasks for her."); id. ("Processing speed skills will affect [Plaintiff]’s ability to catch careless errors, work quickly and accurately under time constraints and notice important details."); id. (noting working memory deficits, and concluding that "[b]ased on [Plaintiff]’s performance, she will struggle to take accurate notes from lectures, follow multiple step oral directions and attend to oral information.")). The report also includes a discussion of a test completed by Plaintiff's mother, which Ms. O'Connor explained revealed "significant delays for [Plaintiff] in adaptive skills," including below-average communication skills and deficits in socialization. (Id. at 669-70). Ms. O'Connor’s evaluation of Plaintiff's intellectual functioning, including Plaintiff's ability to comprehend and communicate information, follow directions, and interact with others, are relevant to Plaintiff's ability to perform work-related functions.
Although the Commissioner has primacy in weighing the evidence, the ALJ is required to follow the Social Security regulations in doing so. "In assessing a disability claim, an ALJ must consider and weigh the various medical opinions of record." Shillenn v. Comm'r of Soc. Sec. , No. 1:17-CV-01225-MAT, 2019 WL 5586982, at *3 (W.D.N.Y. Oct. 30, 2019) ; see also Wider v. Colvin , 245 F. Supp. 3d 381, 388 (E.D.N.Y. 2017). ("Under 20 C.F.R. § 416.927 ALJs are required to weigh and evaluate ‘every medical opinion.’ "). School psychologists are acceptable medical sources. See Porter v. Colvin , No. 14-CV-547S, 2016 WL 1084162, at *5 n.3 (W.D.N.Y. Mar. 21, 2016) (noting that school psychologist Reginald J. Roberts was an acceptable medical source). Their opinion is particularly useful when assessing intellectual disabilities. Baldwin v. Astrue , No. 07 Civ. 6958(RJH)(MHD), 2009 WL 4931363, at *26 (S.D.N.Y. Dec. 21, 2009) ("Under SSA regulations, licensed or certified psychologists constitute acceptable medical sources to determine whether a claimant has a medically determinable impairment. This includes school psychologists for purposes of determining, inter alia, learning disabilities and borderline intellectual functioning. The ALJ is obligated to address medical opinions and relevant evidence, such as the psychologists’ views about the impact and severity of [the plaintiff's] non-exertional limitations." (internal citations omitted)); see also Gonzalez v. Colvin , No. 15-CV-6216, 2016 WL 5793425, at *7 (W.D.N.Y. Sept. 30, 2016) (discussing regulation establishing that, for purposes of establishing intellectual disability, school psychologists are "acceptable medical sources," and rejecting the Commissioner's argument that school psychologists cannot offer an opinion relating to a claimant's functional limitations).
Other than one citation to the evaluation by its exhibit number 1F (see Dkt. 11 at 31 (referencing plaintiff's testing in September 2013)), the written determination does not discuss Ms. O'Connor’s psychological evaluation. Accordingly, it is not clear to the Court whether the ALJ considered it. While Ms. O'Connor’s psychological evaluation may not be entitled to controlling weight, as would the opinion of a treating physician, the ALJ is required to consider this evidence in assessing the RFC, including by explaining his reasons for either adopting or rejecting Ms. O'Connor’s evaluation of Plaintiff's intellectual functioning.
The Court has also considered whether the ALJ's failure to address Ms. O'Connor’s opinion was harmless. See, e.g., Dayle B. v. Saul , No. 3:20-cv-00359 (TOF), 2021 WL 1660702, at *10 (D. Conn. Apr. 28, 2021) ("An ALJ's failure to explicitly discuss an opinion from a treating provider may be considered harmless when the contents of the report would not have changed the outcome of the decision."). However, the ALJ's failure to consider Ms. O'Connor’s opinion is problematic in this instance, as her evaluation of Plaintiff's mental functioning is more restrictive than the opinion offered by Dr. Ippolito, whose opinion the ALJ gave "great weight." (Dkt. 11 at 32). For example, while Dr. Ippolito opined that Plaintiff had no limitations for understanding, remembering, and applying simple directions and instructions, interacting adequately with others, controlling her behavior, and taking appropriate precautions, and only "mild" limitations in using reason and judgment to make decisions (see id. at 710-14), Ms. O'Connor opined that Plaintiff would have difficulty with comprehension, following oral directions, expressing her knowledge verbally, catching careless errors and noticing important details, and following oral directions and information. See Gonzalez , 2016 WL 5793425, at *8 (remanding case for ALJ's failure to explain the weight afforded to opinion offered by school psychologist where the opinion was more restrictive than other medical evidence in the record, and explaining that "[w]hile [i]t may well be that the ALJ here had good reasons to give less weight to [the school psychologist's] opinion, it is not the role of a reviewing court to speculate what those reasons might be or to conjure up supporting explanations on its own accord" (internal quotations and citation omitted)).
Finally, the Court notes that Ms. O'Connor’s opinion that Plaintiff would have difficulty comprehending information, following directions, and expressing her knowledge verbally is consistent with other evidence in the record, including Plaintiff's testimony at the administrative hearing, where she testified that she did not know the highest grade level she completed in school, and that in her job as a dietary aid, her job coach had to instruct her how to put jelly on bread. (Dkt. 11 at 47, 49). It is also consistent with her mother's testimony, which revealed that her mother kept track of her schedule (id. at 55), that Plaintiff received "special compensation because she had had a[ ] [bathroom] accident at work one day," and could not be alone and needed constant supervision to complete simple tasks (id. at 56, 59-63). Accordingly, remand is required so that the ALJ may consider the opinion offered by Ms. O'Connor, as well as its impact on the disability determination.
B. Plaintiff's Remaining Arguments
As set forth above, Plaintiff has identified additional reasons why she contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reason previously discussed, that remand of this matter for further administrative proceedings is necessary, the Court declines to reach these issues. 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 13774790, at *23 (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 , 2015 WL 2137776 (S.D.N.Y. May 4, 2015).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 13) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 14) is denied.
SO ORDERED.