United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, U.S. DISTRICT JUDGE
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.
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.
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.
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.
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
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”).
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
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. 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.
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.
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.
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.
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.
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.
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.
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 ...