15-819

Ornelas-Sanchez v. Colvin

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 1st 4 day of February, two thousand sixteen.

5

6 PRESENT: DENNIS JACOBS,

7 RICHARD C. WESLEY,

8 DEBRA ANN LIVINGSTON,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 BONNIE ORNELAS-SANCHEZ, 

13 Plaintiff-Appellant,

14

15 -v.- 15-819

16

17 CAROLYN W. COLVIN, Acting Commissioner

18 of Social Security, 

19 Defendant-Appellee.

20 - - - - - - - - - - - - - - - - - - - -X

21

22 FOR APPELLANT: TIMOTHY E. HILLER, LAW OFFICES

23 OF KENNETH HILLER PLLC, Amherst,

24 New York.

25

26 FOR APPELLEE: REBECCA H. ESTELLE (with Stephen

27 P. Conte on the brief) for

28 William J. Hochul, Jr., United

1
1 States Attorney, Western

2 District of New York, Buffalo,

3 New York.

4

5 Appeal from a judgment of the United States District

6 Court for the Western District of New York (Telesca, J.).

7

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9 AND DECREED that the judgment of the district court be

10 VACATED and REMANDED. 

11

12 Bonnie Ornelas-Sanchez appeals from the October 21,

13 2014 order of the United States District Court for the

14 Western District of New York (Telesca, J.), affirming the

15 July 13, 2011 final administrative decision denying her

16 application for disability benefits. We assume the parties’

17 familiarity with the underlying facts, the procedural

18 history, and the issues presented for review. 

19

20 “We undertake a plenary review of the administrative

21 record, and our focus is on the administrative ruling more

22 than on the district court’s decision.” Lamay v. Comm’r of

23 Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009). Our review is

24 limited to determining “if there is substantial evidence,

25 considering the record as a whole, to support the

26 Commissioner’s decision and if the correct legal standards

27 have been applied.” Shaw v. Chater, 221 F.3d 126, 131 (2d

28 Cir. 2000). “‘Substantial evidence’ is evidence that

29 amounts to ‘more than a mere scintilla,’ and has been

30 defined as ‘such relevant evidence as a reasonable mind

31 might accept as adequate to support a conclusion.’” McIntyre

32 v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (quoting

33 Richardson v. Perales, 402 U.S. 389, 401 (1971)). 

34

35 “The Social Security Administration regulations outline

36 the five-step, sequential evaluation process used to

37 determine whether a claimant is disabled: (1) whether the

38 claimant is currently engaged in substantial gainful

39 activity; (2) whether the claimant has a severe impairment

40 or combination of impairments; (3) whether the impairment

41 meets or equals the severity of the specified impairments in

42 the Listing of Impairments; (4) based on a ‘residual

43 functional capacity’ assessment, whether the claimant can

44 perform any of his or her past relevant work despite the

45 impairment; and (5) whether there are significant numbers of

46 jobs in the national economy that the claimant can perform

47 given the claimant’s residual functional capacity, age,

2
1 education, and work experience.” McIntyre, 758 F.3d at 150. 

2 We conclude that remand is necessary because the

3 Administrative Law Judge (“ALJ”) made inadequate findings at

4 the second step of this framework.

5

6 The regulations “require application of a ‘special

7 technique’ at the second and third steps of the five-step

8 framework” when evaluating the severity of mental

9 impairments. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.

10 2008) (quoting Schmidt v. Astrue, 496 F.3d 833, 844 (7th

11 Cir. 2007)). This technique requires “the reviewing

12 authority to determine first whether the claimant has a

13 ‘medically determinable mental impairment.’ If the claimant

14 is found to have such an impairment, the reviewing authority

15 must ‘rate the degree of functional limitation resulting

16 from the impairment(s) in accordance with paragraph (c),’

17 which specifies four broad functional areas: (1) activities

18 of daily living; (2) social functioning; (3) concentration,

19 persistence, or pace; and (4) episodes of decompensation.” 

20 Id. at 266 (citations omitted) (quoting 20 C.F.R. §

21 404.1520a). It is mandatory that the ALJ’s written decision

22 “reflect application of the technique”; “the decision ‘must

23 include a specific finding as to the degree of limitation in

24 each of the functional areas described in paragraph (c) of

25 this section.’” Id. at 266 (quoting 20 C.F.R. §

26 404.1520a(e)(4)).

27

28 The ALJ did not properly follow this technique when

29 considering whether Ornelas-Sanchez had a severe impairment

30 or combination of impairments at step two of the evaluation

31 process. The ALJ concluded that Ornelas-Sanchez suffered

32 from mental health problems, including anxiety and

33 depression, and a history of substance and alcohol abuse in

34 alleged remission. No findings were elucidated to support

35 these conclusions, and there were no findings as to whether

36 Ornelas-Sanchez’s alleged intellectual disability

37 constitutes a severe impairment. The ALJ simply

38 conclusorily noted that the record showed that Ornelas39 Sanchez’s impairments caused more than minimal functional

40 limitations and interfered with her ability to perform some

41 basic work-related activities. Without more, we conclude

42 that “[e]ffective review by this Court is frustrated by the

43 decision’s failure to adhere to the regulations.” Kohler,

44 546 F.3d at 267. Granted, the ALJ did go on to engage with

45 the relevant evidence in its consideration of Ornelas46 Sanchez’s residual functional capacity to perform work. But

47 evaluating that evidence at step four, and not earlier,

3
1 means “it is not clear whether the ALJ adequately considered

2 the entire record when determining the severity of [the]

3 impairment.” Id. at 268. The failure to make findings on

4 this point is significant because the result of at least one

5 IQ test in the record meets the intellectual disability

6 requirements in the Listing of Impairments; so if this

7 finding was credited, Ornelas-Sanchez would be disabled

8 without proceeding to steps four and five. See id. at 266

9 (“If the claimant’s medical impairment is severe, the

10 reviewing authority will first compare the relevant medical

11 findings and the functional limitation ratings to the

12 criteria of listed mental disorders in order to determine

13 whether the impairment meets or is equivalent in severity to

14 any listed mental disorder. If so, the claimant will be

found to be disabled.” (citations omitted)).1 15 Even at step

16 four, it is not clear why the ALJ gave great weight to the

17 opinion of the state agency review physician. Ultimately,

18 the ALJ’s analysis did not suffice and misapplied pertinent

19 legal standards. See id. at 265 (“Failure to apply the

20 correct legal standard constitutes reversible error,

21 including, in certain circumstances, failure to adhere to

22 the applicable regulations.”) (citations omitted).

23

24 This case is remanded so that the ALJ can make specific

25 findings as to whether Ornelas-Sanchez made a sufficient

26 showing that she suffered from an intellectual disability as

27 a severe impairment, using the mandated special technique. 

1 Step three of the analysis appears to follow the

special technique, but the passage simply determined whether

the impairments the ALJ deemed severe were catalogued in the

Listing of Impairments. But because no findings were made

regarding whether Ornelas-Sanchez’s proffered intellectual

disability qualified as a severe impairment, we do not know

whether the ALJ considered this a severe impairment and

included this in its step three analysis. Moreover, when

the ALJ evaluated the list of impairments in 20 C.F.R. § 404

Subpart P., App. 1, Pt. A, it considered only ¶¶ 12.02,

12.04, and 12.09. There is no evaluation of OrnelasSanchez’s eligibility under ¶ 12.05 (“Intellectual

Disability”), which has a structure “different from that of

the other mental disorder listings.” 20 C.F.R. § 404

Subpart P., App. 1, Pt. A ¶ 12.00. In sum, the ALJ’s

failure to adequately consider whether Ornelas-Sanchez

suffered from an intellectual disability at step two of the

analysis impaired the application of the framework.

4
1 In so doing, we note that “[w]hen there is medical evidence

2 of an applicant’s drug or alcohol abuse, the ‘disability’

3 inquiry does not end with the five-step analysis.” Cage v.

4 Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012). 

5 Rather, the ALJ remains free to find that “in the absence of

6 . . . drug and alcohol abuse” Ornelas-Sanchez “would not

7 meet the requirements for those disorders.” Id. at 121. But

8 such findings are not present on this record.

9

10 Accordingly, we VACATE the judgment of the district

11 court and REMAND with instructions for the district court to

12 remand to the Commissioner to specifically consider whether

13 Ornelas-Sanchez, at step two of the framework, has shown

14 that she suffers from a severe impairment in the form of an

15 intellectual disability. 

16

17 FOR THE COURT:

18 CATHERINE O’HAGAN WOLFE, CLERK

19

5