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Bleil v. Colvin

United States District Court, N.D. New York

March 31, 2017

MARGIE BLEIL, Plaintiff,
CAROLYN W. COLVIN, Defendants.




         This case has proceeded in accordance with General Order 18, which sets forth the procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed briefs. Dkt. Nos. 12 (“Plaintiff's Brief”), 15 (“Defendant's Brief”). For the following reasons, the judgment of the Social Security Administration (“SSA”) is vacated and remanded.


         Plaintiff Margie Bleil was born on July 29, 1970. Dkt. No. 9 (“Record”) at 472. Bleil claims that she became disabled on April 1, 2009, as a result of several mental and physical ailments, including borderline intellectual functioning, depression, anxiety, post-traumatic stress disorder (“PTSD”), back pain, knee pain, obesity, diabetes, asthma, and a sleep disorder. Pl.'s Br. at 2, 3, 8-9, 12.

         Bleil lives with her two children, who are seventeen and eight years old. R. at 491. She has been unemployed since her alleged disability onset date in April 2009. Id. Although Bleil worked for three hours a day as a certified nursing assistant from February 2010 through July 2010, that work did not rise to the level of substantial gainful activity. Id. at 461. Bleil reports being able to do some simple chores around the house, but she must take frequent breaks due to back pain. Id. at 498. Additionally, with the help of her children, Bleil cooks, does laundry, and goes grocery shopping. Id. 498-99. Although Bleil is able to drive or take the bus when needed, she says she has difficulty leaving the house alone and does so only once or twice a month. Id. at 499-500. Bleil has worked part time as a housekeeper for a hotel, at a McDonald's, and as a nursing assistant. Id. at 491-94. But Bleil's only full-time work experience is the nine months she spent as a certified nurse's assistant in 2008 and 2009. Id.

         A. Procedural History

         This case began over six years ago, when Bleil applied for disability benefits on September 29, 2010. Id. at 154, 156. Her application was initially denied on December 27, 2010, and Bleil timely requested a hearing to review that determination before an administrative law judge (“ALJ”). Id. at 83, 89. ALJ Marie Greener held a video hearing in which Bleil and her attorney appeared on November 15, 2011, and the ALJ subsequently issued an unfavorable decision. Id. at 8, 32. The ALJ found that Bleil could no longer perform any past relevant work, but that she retained the residual functional capacity (“RFC”) to perform unskilled, sedentary work. Id. at 17, 21. Because the ALJ determined that there were jobs existing in significant numbers in the national economy that Bleil could perform, the ALJ found that Bleil was not disabled from April 1, 2009, to January 20, 2012, the date of the decision. Id. at 22.

         After the Appeals Council denied Bleil's request for review of the ALJ's decision, id. at 559, Bleil timely commenced an action in the Northern District of New York seeking review of the final agency decision, Complaint, Bleil v. Colvin, No. 13-CV-870 (N.D.N.Y. July 23, 2013). On March 14, 2014, the parties entered into a consent order reversing the agency's final decision and remanding the case to the Commissioner for further administrative action. Bleil, No. 13-CV-870 (N.D.N.Y. Mar. 14, 2014). On January 15, 2015, the Appeals Council issued a remand order listing several actions the ALJ should take on remand, including obtaining additional evidence concerning Bleil's physical and mental impairments, giving further consideration to Bleil's treating and nontreating source opinions, and obtaining evidence from a vocational expert (“VE”).

         On July 27, 2015, the ALJ held a hearing at which Bleil and a VE testified. Id. at 487. After the hearing, the ALJ once again issued an unfavorable decision. Id. at 475. The ALJ found that Bleil has the residual functioning to perform unskilled, sedentary work, with some limitations, and that there are significant jobs in the national economy that Bleil can perform. Id. at 457. On December 16, 2015, Bleil brought this action challenging the ALJ's decision. Dkt. No. 1 (“Complaint”).

         B. Medical Records

         Although the ALJ ultimately found that Bleil is not disabled, she found that Bleil has the following severe impairments: obesity, chronic lumbar strain, borderline intellectual functioning, and dysthymic disorder. R. at 451. The ALJ also found a number of nonsevere impairments, including hypertension, high cholesterol, diabetes mellitus, obstructive sleep apnea, respiratory disorders, and digestive disorders. Id.

         1. Intellectual Impairments

         Although Bleil graduated from high school, she did not complete all of the usual course work. Id. at 234, 1154. Instead, she was placed in special education classes for reading and math, and she spent the twelfth grade in an alternative school. Id.[1] Every doctor who has reviewed Bleil's cognitive functioning has found that she is in the low or borderline range. Id. at 329, 341, 548, 1158.

         On February 23, 2011, Bleil underwent intelligence testing and a psychological evaluation from consultative examiner Dr. Robert Russell. Id. at 336-42. Dr. Russell found that Bleil's full-scale IQ was a 75, and that she was in the low or borderline range of intellectual functioning. Id. at 341. Her achievement testing was in the low to low average range, with reading skills at a ninth grade level and math skills at a fourth grade level. Id. Dr. Russell opined that Bleil “may find job tasks to be too complicated or difficult to perform consistently, ” that her pace and accuracy would be poor, and that she would have difficulty exercising good judgment. Id. at 342. Although Dr. Russell declined to make determine whether Bleil would be able to work, he noted that “her low or ‘borderline' intellectual function . . . will definitely impede her chances at sustained employment.” Id. at 342.

         Bleil saw Mary Ann Moore, Psy.D., three times between 2010 and 2015 for consultative evaluations. On December 8, 2010, Bleil saw Dr. Moore for a psychiatric evaluation, and Dr. Moore found that Bleil's intellectual functioning was in the below average range. Id. at 309. Dr. Moore noted that Bleil was capable of counting and simple calculations, and that she had the cognitive abilities to manage her own funds. Id. at 309, 311. But Dr. Moore also recorded that Bleil made errors on serial 3s, and that her attention and concentration were mildly impaired. Id. At another psychiatric evaluation on September 16, 2013, Dr. Moore once again found that Bleil appeared to be in the borderline range for intellectual functioning, and Bleil made errors on serial 3s. Id. at 921.

         On March 12, 2015, Dr. Moore conducted an intelligence evaluation that was generally consistent with the results of Dr. Russell's intelligence testing. Id. at 1154. Bleil received a processing speed index IQ score of 68 and a full-scale IQ score of 71, she exhibited borderline skills in numerical computation ability, and she was found to read at an eighth grade level. Id. at 1156. Dr. Moore noted that Bleil's reading ability was consistent with her overall level of intellectual functioning and was not indicative of a reading disorder. Id. at 1157. Dr. Moore found no limitation in Bleil's ability to follow and understand simple directions, to perform simple tasks independently, or to maintain attention and concentration. Id. But Dr. Moore noted marked limitations in Bleil's ability to learn new tasks and deal with stress, and moderate to marked limitations in her ability to make appropriate work decisions and maintain a regular work schedule. Id. Overall, Dr. Moore opined that Bleil's psychiatric and cognitive issues “may significantly interfere with [her] ability to function on a daily basis.” Id. at 1158.

         2. Psychiatric Impairments

         In June 2009, Bleil complained to her primary care physician, Dr. Maria Galu, of anxiety and depression. Id. at 265. Dr. Galu prescribed an antidepressant, which, according to Bleil, was helpful. Id. at 263, 257. After briefly going off her antidepressant medication, she resumed taking it and seems to have been on it ever since. Id. at 337, 1155. At a December 2010 sleep consultation with Dr. Michael R. Slattery, Bleil was assessed a Beck Depression score of twenty-two, indicating moderate depression. Id. at 347.[2]

         In addition to depression, Bleil was diagnosed by multiple doctors and other sources with PTSD stemming from a long history of sexual abuse by her father. In her February 2011 psychological evaluation with Dr. Russell, Bleil reported thinking about her abuse “all day every day, ” but she denied having nightmares of past abuse. Id. at 337. Dr. Russell found that Bleil “appear[ed] to meet the criteria for posttraumatic stress disorder.” Id. at 340. Similarly, during Dr. Moore's March 2015 intelligence evaluation, she diagnosed Bleil with PTSD, and Dr. Moore also diagnosed panic disorder with agoraphobia. Id. at 1158. As a result, Dr. Moore opined that those disorders-in combination with Bleil's borderline intellectual functioning-would interfere with her ability to function on a daily basis. Id.

         In addition to meeting with Drs. Moore and Russell, Bleil's records were reviewed by two different state agency medical consultants. First, on December 22, 2010, Dr. R. Nobel conducted a mental RFC assessment and found that Bleil's cognitive ability was below average, which mildly impaired her attention and concentration. Id. at 329. In his summary conclusions, Dr. Nobel also found moderate limitations in Bleil's ability to carry out detailed instructions and to accept criticism from supervisors. Id. at 327-28. In all other categories, however, he determined that Bleil was not significantly limited. Id. Despite Bleil's reports of depression and excessive worry, Dr. Nobel found that her affect was appropriate, her mood was euthymic, and her insight and judgment were fair to good. Id. at 329. Nonetheless, Dr. Nobel diagnosed Bleil with adjustment disorder. Id. at 327.

         Second, on September 23, 2013, Dr. T. Harding conducted a mental RFC assessment and found some limitations as a result of Bleil's intellectual functioning deficits and her anxiety-related symptoms. Id. at 540. In particular, Dr. Harding found moderate limitations in Bleil's ability to understand and carry out detailed instructions, to maintain attention and concentration, to interact appropriately with the general public, and to respond appropriately to changes in the work setting, as well as other interaction and adaptation limitations. Id. at 540-41. Dr. Harding indicated that a ...

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