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Rembert v. Colvin

United States District Court, W.D. New York

March 11, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


HUGH B. SCOTT, Magistrate Judge.


The Hon. Richard J. Arcara referred this case to this Court under 28 U.S.C. ยง 636(b). Pending before the Court are cross-motions for judgment on the pleadings by plaintiff Lyenesha Rembert ("Rembert") (Dkt. No. 16) and the Commissioner of Social Security ("Commissioner") (Dkt. No. 11). Rembert argues that the Commissioner did not explain why an evaluation establishing marked limitations in functioning received little weight while other evaluations received more weight. Rembert argues further that the evaluations that received greater weight did not rest on a fully developed record. Additionally, Rembert argues that the administrative record contains no opinions from treating physicians regarding her mental abilities and limitations. Finally, Rembert asserts that the Commissioner never conducted an assessment of the criteria for intellectual disability and never made a specific credibility finding about the totality of her testimony and allegations. The Commissioner responds that Rembert did not meet her burden of satisfying all of the criteria for the intellectual disability listing; that the record contains numerous contradictions in plaintiff's testimony and assertions so as to undermine her credibility; and that substantial evidence supports the conclusion that Rembert is capable of performing unskilled work that is task-oriented and routine in nature.

The Court has deemed the motion submitted on papers under Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court respectfully recommends granting Rembert's motion in part, vacating the Commissioner's determination, and remanding the case for an assessment of intellectual disability. The Court recommends denying Rembert's motion without prejudice to the extent that it seeks any other relief. The Court further recommends denying the Commissioner's motion.


A. Procedural History

Rembert applied for Supplemental Security Income ("SSI") on September 8, 2010, claiming a disability that began on October 29, 1996. (Certified Administrative Record at 136, hereinafter designated as [136].) Given that Rembert was born in late 1987, her disability would have begun when she was eight years old. Rembert had applied for SSI once before but received a denial on June 26, 2009. [80.] On the second request, Rembert received a denial on December 30, 2010. [84.] Rembert then requested a hearing on January 24, 2011. [88.] The hearing occurred on February 10, 2012 before Administrative Law Judge ("ALJ") Marilyn Zahm. The ALJ subsequently issued a decision on March 6, 2012 denying Rembert's claim. [19.] After seeking an administrative appeal to the Appeals Council, the Appeals Council upheld the denial of benefits on April 25, 2013. [1.] This case followed when Rembert filed a complaint on June 18, 2013. (Dkt. No. 1.)

B. Factual and Medical Background

The administrative record includes behavioral assessments from the Buffalo Public Schools. The assessments occurred after Rembert threatened a teacher. Behaviors targeted for review included insubordination, aggressive verbalization and body language, and disrespect toward school rules and authority figures. [187.] Reviewers noted concern that Rembert would hit and argue with peers and that her behavior would escalate. [191.] The reviews included recommendations to transfer Rembert from a 15:1 to a 6:1:1 classroom setting. [196.] One record described Rembert's "escalating behavior concerns" and "oppositional-defiant" behavior that led to "trouble in the community." [224.] Nonetheless, at least one school psychologist maintained "a high level of confidence in [Rembert's] ability to mature into more appropriate and adaptive behavior. [198.] Also, one record from January 2004 stated that Rembert's mother considered her healthy and was pleased with the educational plan that existed at that time. [233.] A follow-up evaluation from February 2004 contains Stanford-Binet Fourth Edition ("SB:FE") composite scores of 92 from 1995; 77 from 1997; and 79 from 1999. [319.] The evaluation also contains a Wechsler Adult Intelligence Scale, third edition ("WAIS-III") result, an unspecified score of "Borderline."[1] [319.]

Rembert's school records assessed her in other ways as well. According to the records, Rembert was in the very low range of reading, mathematics, and written language skills, but was able to "calculate basic facts" and to solve basic word problems. [202.] Some of Rembert's behavior may have stemmed from "a strong sense of fairness and what is right" that could lead to counterproductive actions and that needed a structured setting. [202.] The records note a history of migraine headaches, an automobile accident from July 2001, and a history of lead poisoning. [203.]

On February 25, 2009, psychologist Dr. Renee Baskin ("Baskin") evaluated Rembert. Baskin noted that Rembert reported never being employed, having no history of hospitalization for medical reasons, and having no current medications. 240. Rembert reported symptoms of depression including thoughts of death or suicide but without any current plan or intent. [240.] Rembert reported no drug and alcohol history. Baskin found Rembert minimally responsive to questions along with restricted affect. [241.] Baskin found that Rembert's attention, concentration, and memory were "mildly impaired due to some discomfort, anxiety and nervousness in the evaluation as well as a lack of effort." [242.] Baskin estimated Rembert's intellectual functioning to be deficient. [242.] Regarding vocational functional capacities, Baskin concluded that Rembert "would have minimal to no limitations being able to follow and understand simple directions and instructions, perform simple tasks independently; moderate limitations being able to maintain attention and concentration, learn new tasks, perform complex tasks, make appropriate decisions, relate adequately with others and appropriately deal with stress." [242.] Administration of the WISC-III test yielded a verbal scale IQ of 66, a performance scale IQ of 57, and a full scale IQ of 59. According to Baskin, "All scaled scores cluster in the deficient range suggesting difficulties with both verbal and nonverbal problem solving skills. While it appears the claimant does have some cognitive limitations, her true cognitive abilities are probably better represented by her verbal scale IQ which still is in the deficient range." [246.] Baskin ultimately diagnosed major depressive disorder on Axis I and mild mental retardation on Axis II. [243.] Baskin further concluded that Rembert could not manage her own funds due to her cognitive limitations but that she could consider vocational training if she stabilized and engaged in therapy. [243, 246.]

Physician Nikita Dave, M.D. examined Rembert on March 2, 2009. Among other findings, Rembert reported no alcohol or drug use. [249.] Dr. Dave ultimately diagnosed auditory hallucinations, emotional disturbances, and a learning disability, all of which could use further testing and workup. [251.] Subject to further assessment of learning disabilities, Dr. Dave concluded that Rembert had no medical limitations. [251.]

Psychiatrist Hillary Tzetzo, M.D. ("Tzetzo") examined Rembert on June 25, 2009. In summary, Dr. Tzetzo decided that Rembert needed an assessment of residual functional capacity ("RFC"). [252.] Tzetzo based her disposition on an assessment of Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), and 12.09 (Substance Addiction Disorders). [252.] The psychiatric review did not cover Listing 12.05 (Mental Retardation), [2] among other categories. For the categories evaluated, Tzetzo found mild restriction in activities of daily living; and moderate limitations in social functioning and maintaining concentration. [262.] In her notes, Tzetzo noted the SB:FE composite IQ scores of 92 in 1997 and 79 in 1999. [264.] Tzetzo reviewed several prior examinations from 2008 and 2009, including a July 28, 2008 emergency room visit following an overdose; among other findings, Tzetzo noted that Rembert gave different information at different times about her daily marijuana use and that her "overall credibility seems suspect, in my opinion, now." [264.] Tzetzo also questioned whether Rembert and her mother overexaggerated Rembert's limitations and prior examinations, given "all other available medical evidence" and a lack of verification of childhood lead poisoning. [264.] Tzetzo concluded that Rembert "should be able to understand and follow work directions in a work setting (with low public contact), maintain attention for such work tasks, relate adequately to a work supervisor for such work tasks, and use judgment to make work-related decisions in a work setting (with low public contact) now, in my opinion." [264.]

Rembert experienced a hospitalization when she entered Buffalo General Hospital on September 27, 2009. Rembert presented with a complaint about her mood and its fluctuations, including angry attacks on others. [298.] Rembert also reported suicidal thoughts but without any plan or lethality. [300.] Rembert reported a history of marijuana use with a last use of one year earlier. [303.] Doctors found no physical ailments but diagnosed depression not otherwise specified; ...

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