JAMES C. FRANCIS, IV, Magistrate Judge.
The plaintiff, Jill Ann Lieber Pasarell, brings this action pursuant to section 405(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of a determination of the Commissioner of the Social Security Administration (the "Commissioner"). That determination affirmed a decision by an Administrative Law Judge ("ALJ") which found that the plaintiff was not disabled as of December 14, 2010, and was not entitled to disability insurance benefits or Supplemental Security Income ("SSI"). Each party has submitted a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Ms. Pasarell seeks disability insurance benefits and SSI on the grounds that she suffers from panic disorder without agoraphobia,
Ms. Pasarell was born on October 4, 1975, and currently holds a bachelor's degree from Kaplan University, an online educational institution. (R. at 31-32, 110). The plaintiff was most recently employed in customer relations at a newspaper for two years. (R. at 31, 138). In this position, she was responsible for managing client accounts over the telephone, ensuring that payments were made, and responding to customer questions. (R. at 27-28). She was terminated on August 4, 2008, for attendance issues that she alleges were the result of panic attacks. (R. at 27). Previously, the plaintiff had worked as a night manager at a warehouse, handling invoices. (R. at 37).
Ms. Pasarell lives alone, supporting herself with temporary government assistance and help from her mother. (R. at 28). She is currently working toward her master's degree (R. at 31-32) and aspires to earn a Ph.D. (R. at 245). She spends her days talking with friends, though in the past few years several friends have ended their friendship because, Ms. Pasarell believes, of her mental impairments. (R. at 33-34). Currently, she is physically able to drive, but her license is suspended due to unpaid tickets. (R. at 33).
Ms. Pasarell suffers from both physical and psychiatric impairments. She has been diagnosed with panic disorder without agoraphobia, bipolar I,
Ms. Pasarell submitted four reports issued by medical providers during the time period for which she is claiming disability insurance and SSI. Additionally, the record contains medical documentation from the four years prior. (R. at 242-43).
On October 19, 2008, Ms. Pasarell visited the Orange County Regional Medical Center Emergency Room complaining of painful urination and back pain. (R. at 201-02). The report from this visit states that she displayed no mental status impairments but did not provide further psychiatric information. (R. at 196). The emergency room provided the plaintiff with pain medication and discharged her. (R. at 198).
On December 8, 2008, Ms. Pasarell returned to refill a prescription. (R. at 217, 224). The report at that time noted that her memory was "intact" and she had an "organized" thought process. (R. at 222). She was diagnosed with anxiety disorder and fibromyalgia.
On January 20, 2009, Ms. Pasarell saw a consulting examiner for the Social Security Administration, Dr. Leslie Helprin, for a psychiatric evaluation. (R. at 245-49). Dr. Helprin diagnosed the plaintiff with panic disorder without agoraphobia, bipolar I disorder, polysubstance abuse in full sustained remission, fibromyalgia, hypoglycemia, asthma, and headaches. (R. at 248-49). This diagnosis did not include a GAF rating. Ms. Pasarell told Dr. Helprin that she performs daily grooming tasks and household chores on her own. (R. at 248). Dr. Helprin opined that the plaintiff could perform simple and complex tasks independently, make appropriate decisions, and deal appropriately with stress. (R. at 248). He recommended that, after completing her online education, if she is found unable to work, she should work with a job support coach to train for a new job. (R. at 249). He recommended that she continue her current psychiatric and psychological treatment plans and have further evaluations to determine if she could return to the workforce. (R. at 249).
On February 5, 2009, Dr. M. Apacible reviewed Dr. Helprin's report for a residual functional capacity evaluation. (R. at 279-81). Dr. Apacible found that, while Ms. Pasarell had bipolar I disorder and panic disorder without agoraphobia, she did not meet the criteria to qualify as disabled under guidelines. (R. at 268, 270). He concluded that her allegations concerning her limitations were credible, but "not to the extent alleged," and he opined that she maintained the ability to perform work activity. (R. at 281). He also found that Ms. Pasarell had suffered from polysubstance abuse, but was in remission. (R. at 273).
After evaluating the psychiatric impairments, Dr. Apacible concluded that Ms. Parasell was "not significantly limited" in her ability to "perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances." (R. at 279). Additionally, he found that she was "not significantly limited" in "[t]he ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." (R. at 280). In his functional capacity assessment Dr. Apacible discussed Dr. Helprin's examination and opined that "[b]ased on the medical evidence in the file, the claimant retains the ability to perform work activity." (R. at 281).
On October 18, 2010, Ms. Pasarell received a psychiatric assessment from the Orange County Department of Social Services. (R. at 415-16). She was diagnosed with depression (NOS), panic disorder without agoraphobia, social anxiety, borderline personality disorder, and back issues. (R. at 415). She was found to have a GAF score of 60.
In addition to the primary medical reports discussed above, the record contains several other reports. Between December 15, 2008, and April 28, 2010, Ms. Pasarell visited Occupations, Inc. eleven times, primarily to refill her prescriptions for Vistaril
This diagnosis was confirmed in subsequent reports. (R. at 329, 334, 339, 344, 349, 354, 359, 364, 374).
On October 06, 2010, and several other occasions Ms. Pasarell visited Walden Medical for, among other things, a sore throat and back pain.
Ms. Pasarell also visited St. Luke's Cornwall Hospital on three occasions. (R. at 289-322). During the first visit, on January 11, 2008, Ms. Pasarell requested a refill of Vistaril and Celexa and stated she had bronchitis. (R. at 291-92). On April 16, 2008, she again asked for a refill of Vistaril and Celexa. (R. at 298-99). On February 7, 2009, she went to the hospital complaining of chest pains. (R. at 310). After a radiographic examination, Dr. John Markitsz found no evidence of pulmonary infiltrations, and Ms. Pasarell was discharged the next day. (R. at 317-18).
Ms. Pasarell provided medical records from visits to the Riverdale Mental Health Association in 2004. (R. at 241). There, she was diagnosed with a GAF score of 55, and the records noted that she stopped attending treatment. (R. at 243).
The final record provided is an admission form from the Sullivan County Jail dated January 22, 2004. (R. at 252). These records noted that Ms. Pasarell had a history of panic attacks, depression, occasional back pain, and headaches. (R. at 253-54). Additionally, the record indicated that she took Celexa and Neurontin.
On November 24, 2008, Ms. Pasarell filed an application for disability insurance benefits and SSI benefits, alleging that she had been disabled since August 4, 2008. (R. at 110). The application was denied on February 6, 2009 (R. at 50), and on March 26, 2009 (R. at 66), the plaintiff requested a hearing before an ALJ. The hearing was held before the Honorable Dennis G. Katz on November 3, 2010. (R. at 22). On December 14, 2010, the ALJ issued a decision finding that Ms. Pasarell was not disabled and was able to return to her previous work in customer relations. (R. at 21). That decision became the final determination of the Commissioner when the Appeals Council denied Ms. Pasarell's request for review on July 9, 2012. (R. at 1). This action followed.
A federal court reviewing the Commissioner's decision "may set aside a decision of the Commissioner if it is based on legal error or if it is not supported by substantial evidence."
Substantial evidence in this context is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Even if the record, as it stands, contains substantial evidence of disability, the Commissioner's decision may not withstand a challenge if the ALJ committed legal error.
In addition, the ALJ must adequately explain his analysis and reasoning in making the findings on which his ultimate decision rests, and must address all pertinent evidence.
A claimant is disabled under the Act and therefore entitled to disability benefits if he can demonstrate that he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A);
To determine whether a claimant is entitled to disability benefits, the Commissioner employs a five-step sequential analysis. 20 C.F.R. § 404.1520. First, the claimant must demonstrate that he is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i), (b). Next, the claimant must prove that he has a severe impairment that "significantly limits [his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c);
Finally, if the claimant satisfies his burden of proof on the first four steps, the burden shifts to the Commissioner to demonstrate that there is alternative substantial gainful employment in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(a)(4)(v), (g);
The ALJ's determination of Ms. Pasarell's disability claim followed the five-step analysis. At step one, he found that Ms. Pasarell had not engaged in substantial, gainful employment since August 4, 2008. (R. at 17). At step two, he concluded that Ms. Pasarell had severe impairments consisting of panic disorder, depression, and personality disorder and was also obese and had a back impairment. (R. at 17). At step three, the ALJ found that she did not have a disability that would automatically qualify her for SSI and disability insurance. 20 C.F.R. § 404, Subpt. P., App. 1; (R. at 17-18). The parties do not dispute the ALJ's findings at these first three steps.
In the step four anaylsis, the ALJ found Ms. Pasarell had a residual functional capacity to perform "a full range of work at the medium exertion levels," limited to tasks "which are not overly complex and . . . with which [Ms. Pasarell] is familiar." (R. at 18). In light of these findings, the ALJ concluded that she could perform her relevant past work. (R. at 21). Because of this, the ALJ did not go on to consider step five.
Ms. Pasarell challenges the ALJ's decision the grounds that (1) the ALJ did not accord sufficient weight to the evidence provided by Ms. Pasarell's treating physician, (2) his determination of her residual functional capacity was not supported by sufficient evidence, (3) he erred in his assessment of her credibility, and (4) there was not sufficient evidence to support his decision that she could return to her previous work.
A treating physician's evaluation is to be given more weight than other medical reports and will be controlling if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If the ALJ determines that a treating physician's opinion is not controlling, he is nevertheless required to consider other factors in determining the weight to be given to that opinion. 20 C.F.R. § 404.1527(c)(2). Specifically, the ALJ must consider (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the relationship; (3) the evidence provided to support the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) other factors brought to the Commissioner's attention that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6);
Determination of dispositive issues, such as whether a 1claimant "meet[s] the statutory definition of disability" and cannot work, are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1);
Ms. Pasarell takes issue with the greater weight given to the reports of Dr. Helprin and Dr. Apacible compared to what the ALJ accorded to the report of the Orange County Department of Social Services. (Plaintiff's Memorandum of Law in Support of a Motion for Judgment on the Administrative Record and the Pleadings Pursuant to Rule 12(c) F.R.C.P. ("Pl. Memo.") at 18). Considering that Ms. Pasarell was treated at the Orange County Department of Social Services only once, the ALJ did not need to give controlling weight to this report. 20 C.F.R. § 404.1527(c)(2). Furthermore, it was within the ALJ's discretion to accord only slight weight to the report because it consisted of a check-off form without explanations for its diagnoses or conclusions.
Ms. Pasarell also argues that the ALJ failed to give weight to the additional medical reports. (Pl. Memo at 20). However, the ALF explicitly discussed four of those reports. (R. at 19). He observed that the October 19, 2008, report found that Ms. Pasarell had no mental impairments. (R. at 19). The ALJ also referenced December 8, 2008 report, which referred the plaintiff for further treatment at Occupations, Inc. (R. at 19). Although the ALJ mentioned the report from Riverdale Mental Health Association discussing treatment of Ms. Pasarell during 2004 (R. at 19), he need not have given it significant weight since the plaintiff was substantially gainfully employed after her treatment at Riverdale. Finally, the ALJ considered the December 19, 2008, psycho-social assessment from Occupations, Inc. (R. at 19) that diagnosed Ms. Pasarell with panic disorder without agoraphobia and borderline personality disorder. (R. at 323). This was the most comprehensive report from that agency.
The ALJ, then, properly weighed the various medical reports in light of such factors as the duration of the physician-patient relationship and the depth of analysis provided. (R. at 19-20).
At the fourth step of the disability determination, the ALJ established the plaintiff's residual functional capacity. After determining that the plaintiff had a medically cognizable impairment, he evaluated the plaintiff's capacity to work in light of her impairments by considering the medical reports and her testimony. (R. at 19-21);
In assessing Ms. Pasarell's credibility, the ALJ examined Ms. Pasarell's testimony and compared it to the medical reports regarding her functional limits. (R. at 19-21). Both Dr. Helprin and Dr. Apacible found no limitation in her daily living. (R. at 20). Orange County Department of Social Services noted moderate limitations with concentration, the use of public transportation, and interactions with others, but no limitations for socially appropriate behavior, low stress tasks, or understanding complex instructions. (R. at 416). The ALJ pointed to Ms. Pasarell's admission to Dr. Helprin about her ability to perform daily tasks like shopping, using public transportation, and socializing with friends as contradictory to her testimony that she rarely leaves the house. (R. at 19-20).
Comparing Ms. Pasarell's claims about her inability to work because of stress with the fact that she was working towards academic degrees while unemployed, the ALJ found her capable of concentrating and handling stress. (R. at 19-20).
Additionally, the ALJ compared Ms. Pasarell's statement that she lost friends with her statement that she kept herself occupied while unemployed by socializing with. (R. at 19-20).
The plaintiff relies on
The ALJ properly relied upon the information from the medical reports describing Ms. Pasarell's limitations, her academic pursuits, and her social habits to determine that her claims of being unable to work were not credible. (R. at 20).
Ms. Pasarell argues that, in determining her functional restrictions, the ALJ did not provide sufficient evidentiary support. (Pl. Memo. at 11). She contends that he failed to relate his statements regarding her functional capacity to her symptoms.
In coming to his conclusion, the ALJ provided a function-byfunction assessment of Ms. Pasarell's abilities that aligned with the requirements of her previous position: sitting, standing, walking, and lifting. (R. at 21). The ALJ was not required to discuss every physical function that may have shed light on the plaintiff's abilities and limitations.
At step four, The ALJ determined that Ms. Pasarell could perform relevant past work. (R. at 21). The plaintiff argues the ALJ did not develop the record regarding her previous job as a customer relations employee. (Pl. Memo. at 14). Additionally, she contends that the ALJ should have elicited a testimony from a vocational expert to determine if she could perform any substantial gainful. (Pl. Memo. at 15-16).
To determine whether Ms. Pasarell could perform her past work, the ALJ inquired during the hearing into Ms. Pasarell's previous work in customer relations. (R. at 27-28). She explained that her job entailed "mak[ing] sure that [customers'] payments were done, [she] called them if there were any problems . . . . They called [her] if there were any problems." (R. at 27). She stated that she worked in an office with other employees. (R. at 28). On her Disability Report, Ms. Pasarell wrote that this position involved "answer[ing] phones, clerical duties, [and] data entry." (R. at 138). Additionally, it required sitting, writing, and grasping large objects for seven and one-half hours with no time allocated to the other tasks such as walking, sitting, carrying, stooping, climbing, kneeling, crouching, crawling, reaching, or lifting. (R. at 138-39).
The information that Ms. Pasarell provided creates a record sufficient for the ALJ to make his determination without calling a vocational expert. "`[A] vocational expert is not required where . . . the ALJ has already gathered "substantial evidence" to support his determination of the claimant's residual functional capacity.'"
For the foregoing reasons, I recommend that the Commissioner's decision be upheld, the plaintiff's motion (Docket no. 9) be denied, and the government's motion (Docket no. 16) be granted. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable J. Paul Oetken, 40 Foley Square, Room
