Michael K. v. Saul

MICHAEL K., Plaintiff, v. ANDREW M. SAUL,¹ Commissioner of Social Security, Defendant.

19-CV-0861F

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 12, 2021

DECISION and ORDER

(consent)

APPEARANCES:

LAW OFFICES OF KENNETH R. HILLER, PLLC

Attorneys for Plaintiff

KENNETH R. HILLER, of Counsel

6000 North Bailey Avenue

Suite 1A

Amherst, New York 14226

JAMES P. KENNEDY, JR.

UNITED STATES ATTORNEY

Attorney for Defendant

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202, and

RICHARD W. PRUETT

Special Assistant United States Attorney

United States Attorney's Office

Special Assistant United States Attorney, of Counsel

Social Security Administration

Office of General Counsel

1961 Stout Street

Denver, Colorado 80294-4003

JURISDICTION

On October 14, 2020, the parties to this action, consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. (Dkt. 15). The matter is presently before the court on motions for judgment on the pleadings filed by Plaintiff on February 14, 2020 (Dkt. 11), and by Defendant on May 14, 2020 (Dkt. 15).

BACKGROUND

Plaintiff Michael K. ("Plaintiff"), brings this action under Title II and XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), seeking judicial review of the Commissioner of Social Security's final decision denying Plaintiff's application filed with the Social Security Administration ("SSA"), on November 25, 2015, for Social Security Disability Insurance benefits under Title II of the Act ("SSDI"), and Social Security Insurance benefits under Title XVI of the Act ("SSI") ("disability benefits"). Plaintiff alleges he became disabled on April 1, 2015, based on depression, chronic foot pain, bipolar disorder, panic attacks, back pain, and attention deficit hyperactivity disorder ("ADHD"). (R. 61). Plaintiff's claim was initially denied on March 7, 2016 (R. 87), and, upon Plaintiff's timely request, Plaintiff, represented by Ms. Zulka, Esq., and vocational expert Carrie Anderson ("VE Anderson" or "the VE"), appeared and testified at an administrative hearing on April 7, 2016, before administrative law judge Paul Georger ("the ALJ" "ALJ Georger"). (R. 32-60). Appearing and testifying at the hearing were Plaintiff, represented by Justine Goldstein, Esq., and vocational expert Dawn Blythe ("the V.E."). AR at 27.

On May 31, 2018, the ALJ issued a decision finding Plaintiff not disabled, which Plaintiff timely appealed to the Appeals Council. (R. 14-27). On May 15, 2019, the Appeals Council issued a decision denying Plaintiff's request for review, rendering the ALJ's decision the Commissioner's final decision. (R. 1-6). On June 27, 2019, Plaintiff commenced the instant action seeking judicial review of the ALJ's decision. (Dkt. 1).

On February 14, 2020, Plaintiff moved for judgment on the pleadings requesting the ALJ's decision be vacated or reversed with the matter remanded for further administrative proceedings (Dkt. 11) ("Plaintiffs' Motion"), attaching the Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings (Dkt. 11-1) ("Plaintiff's Memorandum"). On May 14, 2020, Defendant moved for judgment on the pleadings (Dkt. 13) ("Defendant's Motion"), attaching the Commissioner's Brief in Support of Defendant's Motion for Judgment on the Pleadings and in Response to Plaintiff's Brief Pursuant to Local Rule 5.5 for Social Security Cases (Dkt.14-1) ("Defendant's Memorandum"). Filed on June 4, 2020, was Plaintiff's Response to the Commissioner's Brief in Support and in Further Support for Plaintiff's Motion for Judgment on the Pleadings (Dkt. 16) ("Plaintiff's Reply"). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's Motion is GRANTED; Defendant's Motion is DENIED; the matter is REMANDED for further proceedings.

FACTS²

Plaintiff Michael K. ("Plaintiff"), born October 18, 1974, was 40 years old as of May 15, 2015, his alleged DOD, and 43 years old as of May 31, 2018, the date of the ALJ's decision. (R. 37). Plaintiff has a GED, lives alone, and previously worked as a self-employed delivery driver. (R. 39-40). Plaintiff testified that his chronic foot pain results from sustaining an injury after having a manhole cover dropped on his foot as a child. (R. 40-43).

In connection with his disability benefits application, on May 18, 2015, L.C.S.W. Mary Webb ("L.C.S.W. Webb"), completed an initial mental health assessment on Plaintiff, noted that Plaintiff reported severe depression after losing his medical delivery business because of foot pain, a history of being arrested twice on charges of domestic violence and four-to-five times for petit larceny, and severe difficulties with anger, arguments with girlfriends, difficulty maintaining relationships, retaining jobs, and completing tasks. (R. 246). L.C.S.W. Webb evaluated Plaintiff with a "mildly anxious" mood, fair eye contact, goal-directed speech, normal recent and remote memory, evasive attitude, poor judgment, distracted concentration, poor tolerance for frustration, and noted that Plaintiff appeared pre-occupied with being diagnosed with bipolar disease. (R. 247). After failing to attend his regularly scheduled mental health appointments, Plaintiff was discharged for non-compliance on June 11, 2015 (R. 255), and August 27, 2015 (R. 268).

On June 5, 2015, Ronald J. Clarke, D.O. ("Dr. Clarke"), completed a physical examination on Plaintiff who reported left foot pain. (R. 303).

On August 26, 2015, Plaintiff presented to the emergency room at Niagara Falls Memorial Medical Center, with reports of depression and anxiety, where Psychiatrist Viktor Yatsynovich, M.D. ("Dr. Yatsynovich"), noted that Plaintiff exhibited drug seeking behavior, a good appetite, tested positive for cocaine, and diagnosed Plaintiff with a substance use disorder, rule-out³ substance-induced anxiety disorder, and rule-out depressive disorder not otherwise specified ("NOS")⁴. (R. 300).

On September 11, 2015, Dr. Yatsynovich completed a Medical Examination for Employability Assessment, Disability Screening, and Alcoholism/Drug Addiction Determination form and evaluated Plaintiff with very limited ability to walking, standing, sitting, lifting, carrying, pushing, bending, pulling, climbing stairs, and functioning in a work setting at a consistent pace. (R. 374).

On September 16, 2015, Dr. Clarke completed a follow-up examination on Plaintiff, diagnosed Plaintiff with foot pain and episodic cocaine abuse. (R. 357).

On September 23, 2015, Plaintiff underwent substance abuse screening at Horizons Health Services, ("Horizons"), failed to attend a counseling session on September 24, 2015, and was screened out of further treatment. (R. 335).

On January 26, 2016, Dr. Yatsynovich noted Plaintiff's recent incarceration on domestic violence charges, completed a Medical examination for Employability Assessment, Disability Screening, and Alcohol Addiction Determination form, evaluated Plaintiff with moderate limitations to understanding, carrying out and remembering instructions, maintaining attention and concentration, maintaining socially appropriate behavior without exhibiting behavioral extremes, very limited ability to function in a work setting at a consistent pace, and noted that Plaintiff was unable to work. (R. 372).

On February 3, 2016, Susan Santarpia, Ph.D., ("Dr. Santarpia"), completed a consultative psychiatric evaluation on Plaintiff, noted that Plaintiff reported hearing voices since being a child, evaluated Plaintiff with the ability to follow and understand simple directions and instructions, perform simple tasks independently, maintain attention, concentration and a regular schedule, learn new tasks, relate adequately with others, appropriately deal with stress within normal limits, and noted that Plaintiff had a mild limitation to performing complex tasks independently and making appropriate decisions. (R. 347). That same day, Hongbiao Liu, M.D. ("Dr. Liu"), completed an internal medical examination on Plaintiff with normal results. (R. 350-52).

On February 25, 2016, Dr. Yatsynovich completed an outpatient evaluation on Plaintiff, noted that Plaintiff reported feeling anxious all of the time, hearing voices, and debilitating panic attacks on a daily basis with chest tightening and balance issues, diagnosed Plaintiff with polysubstance dependence, psychosis NOS, rule out schizoaffective disorder, rule out substance-induced psychotic disorder, depressive disorder NOS, and panic disorder with agoraphobia (fear and avoidance of open spaces). (R. 398).

During a medication management examination on May 26, 2016, Psychiatrist Won Hoon Park, M.D. ("Dr. Park"), noted that Plaintiff requested an increase in his Klonopin (anxiety) medication, reported continued auditory hallucinations, and denied any significant mood or psychotic symptoms. (R. 392). On August 17, 2016, Dr. Park completed a medication management examination and progress note on Plaintiff, noted that Plaintiff appeared in reasonable control, reported frequent mild-to-moderate panic attacks that affected his ability to think and function, diagnosed Plaintiff with significant affective instability with anxiety symptoms and increased Plaintiff's Klonopin medication. (R. 388).

On January 17, 2018, LCSW Barbara Hall-Griesmann ("L.C.S.W. Hall-Griesmann"), completed a psychiatric functional assessment co-signed by Dr. Park, noted that Plaintiff's anxiety and auditory hallucinations resulted in marked or serious limitations to Plaintiff's ability to understanding and learning terms, instructions and procedures, describing work activity to others, asking simple questions or requesting assistance, and questions and providing explanations, recognizing and correcting mistakes, identifying and solving problems, using reasonable judgment and making work-related decisions, remembering locations and work-like procedures, understanding and remembering short and simple instructions, carrying out very short and simple oral instructions, sequencing multi-step...