HENRY PITMAN, Magistrate Judge.
Plaintiff Sean A. Kuchenmeister brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for supplemental secure income ("SSI").
On September 18, 2013, plaintiff filed an application for SSI and DIB, alleging a disability onset date of January 1, 2005 (Tr. 161-71). In plaintiff's "Disability Report," dated September 18, 2013 and filed in connection with plaintiff's application for SSI and DIB, he alleged that he was disabled due to, agoraphobia,
On November 18, 2013, the SSA denied plaintiff's applications, finding that he was not disabled (Tr. 96-99). Plaintiff timely requested and, on January 30, 2014, was granted a hearing before an Administrative Law Judge ("ALJ") (Tr. 100-01). ALJ Dennis Katz conducted a hearing on January 13, 2015, at which plaintiff, represented by counsel, testified on his own behalf (Tr. 51-77). Plaintiff withdrew his application for DIB prior to the hearing, making the SSA's November 18, 2013 decision the final decision of the Commissioner with respect to plaintiff's entitlement to DIB (Tr. 1, 53-54). ALJ Katz reviewed plaintiff's claim for SSI
Plaintiff was born on August 18, 1984 and was 29 years old at the time he filed his application for SSI (Tr. 181). Plaintiff was born in Pleasant Valley, New York, but spent his childhood and teenage years in Miami, Florida, where he lived with his mother, father and step-brother in what he described as a "rough" area (Tr. 263). Plaintiff began abusing prescription painkillers at the age of 13 and marijuana at 14 (Tr. 266). When he was 18 years old, plaintiff started using heroin (Tr. 266). Plaintiff sought inpatient treatment for his substance abuse twice in 2008 and once in 2012 (Tr. 262).
At the time plaintiff filed his application for SSI, he lived with his father in Dutchess County, New York (Tr. 55). Between 2001 and 2005, plaintiff was a yard worker for a lumber company; in that job, he lifted and carried sheet rock, cement and lumber, and used machines tools and equipment (Tr. 187). He stopped working at the lumber yard in 2005 for reasons that are not entirely clear from the record (Tr. 322). Plaintiff obtained his GED in 2009 and was unemployed between 2005 and 2013 (Tr. 322). Plaintiff made several attempts to secure employment in 2013, including brief stints as a landscaper, a construction worker and a mover (Tr. 55-56). However, he could not maintain any of these jobs for more than a few days due to his allegedly disabling impairments (Tr. 55, 63-64).
Plaintiff has a daughter who was about five years old at the time he applied for SSI, and who lived with her mother and, later, her mother's boyfriend (Tr. 256, 317). Plaintiff was permitted to visit his daughter whenever he wished, but had difficulty coordinating such visits with her mother throughout 2013 (Tr. 256, 317). Plaintiff reported having a "strong" support system, consisting of his father, mother, uncle and a few close friends with whom he regularly spoke by telephone (Tr. 199, 263). However, plaintiff did not like being around others or leaving his house (Tr. 57, 61, 66-69, 197). He spent the majority of his time at home and seldom went out in public due to his anxiety and agoraphobia and his feeling that others were watching and judging him (Tr. 61, 197). For example, plaintiff rarely went grocery shopping due to his aversion to being around others (Tr. 61, 97). When he did leave his home, plaintiff relied on others to get him from place to place because he did not have a driver's license (Tr. 57).
In plaintiff's "Function Report," dated October 13, 2013, submitted in connection with his application for SSI and DIB, he stated that he had no problem taking care of most of his personal needs, including dressing, bathing and shaving, and was able to perform household chores, including cleaning, laundry and repairs (Tr. 194-96). He also cooked for himself daily, although he mostly made simple dishes (Tr. 196).
Plaintiff attended the Hudson Valley Mental Health ("HVMH") clinic in Millbrook, New York, where he received therapy and medication to treat his anxiety, agoraphobia, depression and panic attacks (Tr. 314). Plaintiff's initial assessment with Social Worker ("SW") Lauren Scelia was held on November 13, 2012, during which he complained of, among other things, panic attacks with agoraphobia (Tr. 314). Plaintiff denied suicidal or homicidal ideation (Tr. 314). He also told SW Scelia that he had recently used marijuana and that he had a history of substance abuse that included abusing prescription painkillers (Tr. 314).
On November 27, 2012, SW Scelia noted that plaintiff appeared more nervous and agitated and was less talkative than he had been at his prior appointment (Tr. 314). SW Scelia also observed that plaintiff had difficulty maintaining normal eye contact (Tr. 314). Although plaintiff complained of social anxiety that prevented him from continuing his education and maintaining employment, he also reported having "strong" support from his family (Tr. 314). Plaintiff reported the continued use of marijuana, but stated that he was open to addressing his substance abuse and anxiety through therapy (Tr. 314).
HVMH generated a "Mental Health Treatment Plan,"
Plaintiff cancelled or failed to attend individual therapy sessions with SW Scelia on December 10, 2012, January 3, January 28 and February 11, 2013 (Tr. 314). On February 11, 2013, HVMH terminated plaintiff as a client pursuant to clinic policy (Tr. 314).
Plaintiff reestablished treatment with HVMH on June 25, 2013 (Tr. 315). Plaintiff reported to SW Scelia that he still suffered from mild depression and anxiety, including the same symptoms that he had detailed during his November 13, 2012 initial assessment (Tr. 315). He again denied suicidal or homicidal ideation, but also expressed little desire to continue living (Tr. 262, 315). SW Scelia performed a "psychosocial" assessment of plaintiff, during which plaintiff told her that he had difficulty socializing with others due to anxiety and that he felt suspicious and paranoid of others (Tr. 262-74). Plaintiff reported that an unidentified primary care physician had prescribed medication for him for several years, and that he had seen a private counselor, who he had last visited approximately one year prior to that date (Tr. 262). He had also seen a therapist and a psychiatrist at Spectrum Behavioral Health ("SBH") as recently as February 2013, but stopped that treatment because he could not pay his medical bills (Tr. 262). Plaintiff reported using marijuana daily and that he had a history of using heroin and abusing prescription painkillers (Tr. 266). Plaintiff explained that his agoraphobia had led him to self-medicate with illicit substances, but reported that he had not used intravenous heroin in over two years (Tr. 267).
SW Scelia observed that plaintiff's appearance was clean, his attitude was cooperative, open and pleasant, his attire was appropriate, his eye contact was good and his mood was anxious, depressed and dysphoric (Tr. 271). Although plaintiff's affect was stable and appropriate to content and situation, it was flat and constricted (Tr. 272). Plaintiff's speech was clear and spontaneous, but also slow and monotonous (Tr. 272). Plaintiff had normal cognition with full orientation and good concentration and attention (Tr. 272). His insight and judgment were fair and his intellectual functioning was average (Tr. 273-74). SW Scelia found that plaintiff's long term memory was poor, but that his immediate and recent memory were good (Tr. 273). Plaintiff's thought processes were goal directed, but his thought content was depressive, fearful and problem focused (Tr. 273). He reported prior suicidal ideation, but stated that the thought of never seeing his daughter again drove him away from contemplating taking his own life (Tr. 273).
SW Scelia opined that plaintiff had some difficulty "establishing and maintaining a support system" due to his poor social skills and social isolation or withdrawal (Tr. 263). However, SW Scelia also noted that plaintiff had an adequate social support network consisting of his father, mother, other family members and a few close friends (Tr. 263). Furthermore, she concluded that plaintiff did not have difficulty relating to others (Tr. 263). SW Scelia also opined that plaintiff did not have any limitation that affected, or that he required any assistance with, his functioning (Tr. 264). SW Scelia diagnosed plaintiff with (1) a panic disorder with agoraphobia and (2) a depressive disorder, NOS (Tr. 275). She recommended continued individual therapy sessions and medication to control and treat his symptoms, to increase "positive coping skills" and to identify the adverse impacts of marijuana on his symptoms (Tr. 268).
After failing to show up for a July 11, 2013 appointment, plaintiff returned to HVMH on July 16, 2013 concerned that his primary care physician could no longer prescribe him his medication (Tr. 316). SW Scelia encouraged him to go to the Emergency Room if he ran out of medication prior to his appointments with his psychiatrists (Tr. 316). Plaintiff also reported that he had been using marijuana to treat his anxiety, but that he would like to stop once his medications were adjusted (Tr. 316). He denied using other illicit substances (Tr. 316). Plaintiff complained of continued anxiety, depression and difficulty upon leaving his home, and became tearful when discussing his daughter, whom he was unable to see as frequently as he wished due to his inability to commute on his own and his fear of leaving his home (Tr. 316). SW Scelia encouraged plaintiff to utilize both the time that he spent with his daughter, and other positive coping skills, to decrease his anxiety (Tr. 316).
Plaintiff saw Dr. Aurora Carino, a psychiatrist at HVMH, on July 26, 2013; during the visit, she renewed plaintiff's prescriptions for Klonapin and Clonidine, which his primary care physician had previously prescribed (Tr. 317).
Plaintiff cancelled an appointment with SW Scelia on August 1, 2013 (Tr. 317). On August 20, 2013, plaintiff saw Dr. Alan Nussbaum, a psychiatrist at HVMH, for a medication management session (Tr. 257). Among other things, plaintiff reported that he avoided others, spent most of his time at home and had relapsed on prescription painkillers in January or February 2013 (Tr. 257). Dr. Nussbaum found that plaintiff's mood was depressed, his affect was constricted, his insight and judgment were limited and his intelligence was below average (Tr. 258). However, he also found that plaintiff's long and short term memory were intact (Tr. 258). Although plaintiff told Dr. Nussbaum that he suffered from confusion and that his thought processes were disorganized "at least 50% of the time," Dr. Nussbaum observed that plaintiff's thought processes were organized during the examination (Tr. 258). However, Dr. Nussbaum also concluded that plaintiff had paranoid delusions that "people want[ed] to hurt him" (Tr. 258). Dr. Nussbaum renewed plaintiff's prescription of Klonapin and Clonidine, and also prescribed Paxil for plaintiff's depression, anxiety and agoraphobia, and Zyprexa for his paranoid delusions and disorganized thoughts (Tr. 258). Dr. Nussbaum recommended that plaintiff continue to see a therapist and that he join a support group for his substance abuse (Tr. 258). Dr. Nussbaum diagnosed plaintiff with: (1) schizoaffective disorder, bipolar type; (2) panic disorder with agoraphobia; (3) generalized anxiety disorder and (4) polysubstance dependence, in remission, and polysubstance abuse (Tr. 258). Dr. Nussbaum also assigned plaintiff a GAF of 45 (Tr. 260).
On August 26, 2013, plaintiff reported that he continued to suffer from anxiety and paranoia (Tr. 317). SW Scelia noted that plaintiff was calm and pleasant during the session, and that he denied suicidal or homicidal ideation (Tr. 317). He also told SW Scelia that he had been spending time with his daughter and that he continued to have the support of his family (Tr. 317).
Plaintiff saw SW Scelia again on September 13, 2013 with complaints that his medications were ineffective and that he continued to feel overwhelmed in public, experience disorganized thoughts and had difficulty leaving his home (Tr. 318). He reported utilizing anxiety coping strategies, such as listening to music and breathing techniques (Tr. 318). SW Scelia noted that plaintiff appeared calm and pleasant during the therapy session, but observed that he was tearful and sad at times (Tr. 318).
Dr. Nussbaum met with plaintiff on September 17, 2013, and decreased plaintiff's dose of Zyprexa from 20 mg to 10 mg, noting that it had been effective in lessening his paranoia (Tr. 318). However, because plaintiff had developed a tolerance to Klonapin, Dr. Nussbaum replaced his prescription with Xanax to treat his anxiety (Tr. 318).
Plaintiff sought treatment at Spectrum Behavioral Health ("SBH") in Poughkeepsie, New York on January 31, 2013 (Tr. 254-56).
On February 14, 2013, plaintiff saw SW Fran Berman with complaints of depression, anxiety and agoraphobia (Tr. 246). Plaintiff also reported that he had difficulty concentrating and suffered from frequent panic attacks (Tr. 249). SW Berman noted that plaintiff had an irritable, depressed and angry mood, a flat affect and poor insight (Tr. 251). In addition, she found that the results of plaintiff's reality testing
SW Scelia held a therapy session with plaintiff on October 15, 2013, during which plaintiff reported increased anxiety and isolation (Tr. 319). SW Scelia noted that plaintiff had made attempts to confront his anxiety as he had been instructed; he had gone grocery shopping, but reported that he had shopped at a quick pace and wound up forgetting items due to his anxiety (Tr. 319).
On October 23, 2013, HVMH generated another Mental Health Treatment Plan, which noted that plaintiff had attended three out of four scheduled individual therapy sessions and one out of two medication management sessions (Tr. 280). Plaintiff's diagnoses remained the same as those made by Dr. Nussbaum on August 20, 2013 (Tr. 285;
Plaintiff attended a medication management session with Dr. Nussbaum on November 12, 2013, during which Dr. Nussbaum concluded that Xanax and Zyprexa had been effective in decreasing plaintiff's paranoia and anxiety, respectively (Tr. 320). Plaintiff failed to attend an individual therapy session scheduled for later that same day with SW Scelia (Tr. 321).
The medical record indicates that plaintiff did not visit HVMH again for nearly nine months, until July 7, 2014 when he saw Mental Health Counselor Carol Phillhower, who found that plaintiff's mental health status was unchanged (Tr. 352-56). Plaintiff reported taking his medication as prescribed by Dr. Nussbaum, but also admitted to using marijuana and drinking coffee (Tr. 352). MHC Phillhower explained that plaintiff's use of marijuana and caffeine amplified his symptoms and lessened the effectiveness of medications (Tr. 352-56). She advised him to stop using both (Tr. 352-56).
On September 30, 2014, HVMH created a Mental Health Treatment Plan, which noted that plaintiff had complained of worsening anxiety and agoraphobia and that he was very fearful of leaving his home (Tr. 370). Plaintiff had attended four out of his six scheduled individual therapy sessions and all three of his scheduled medication management sessions (Tr. 370). The report noted that both plaintiff and an unidentified physician had questioned plaintiff's medication regimen at his last appointment because the unidentified physician felt that Xanax was not controlling his anxiety (Tr. 370). In addition, plaintiff's Paxil dose was increased to 40 mg in the morning and 20 mg at night (Tr. 370). Although plaintiff was assigned a GAF of 45, his prognosis was found to be fair to good, so long as he followed his medication regimen and his therapists' recommendations (Tr. 376). The report indicates that plaintiff continued to use marijuana occasionally, but that he was attending group support meetings once per week (Tr. 371).
Another Mental Health Treatment Plan was prepared on December 23, 2014; it showed that plaintiff had attended only two of his six scheduled individual therapy sessions, but had attended all four of his scheduled medication management sessions (Tr. 361). The report also states that plaintiff's lack of progress was due to his inability to attend individual therapy sessions and his noncompliance with his therapists' recommendations (Tr. 361). Although plaintiff had generally been compliant with his medication regimen, plaintiff had misplaced his Xanax and, thus, had missed several doses and was feeling more anxious (Tr. 361). However, plaintiff did not present with overt elation or psychosis, nor did he have any suicidal or homicidal ideations (Tr. 361). Plaintiff reported that he continued to use marijuana and was considering attending an outpatient substance abuse program (Tr. 362). Plaintiff was diagnosed with: (1) schizoaffective disorder; (2) panic disorder with agoraphobia; (3) generalized anxiety disorder and (4) polysubstance dependence abuse and dependence in remission (Tr. 366). He was also assigned a GAF of 45 (Tr. 366).
Dr. Taina Ortiz, a psychologist with Industrial Medicine Associates in Poughkeepsie, New York, performed a psychiatric evaluation of plaintiff on November 4, 2013, in connection with his application for SSI (Tr. 322-26). Plaintiff told Dr. Ortiz that he suffered from depression, anxiety, paranoid ideations and daily panic attacks that included symptoms of palpitations, sweating, overheating and stomach problems (Tr. 323). He told Dr. Ortiz that he took Xanax, Zyprexa and Paxil to treat these conditions (Tr. 322). Dr. Ortiz concluded that plaintiff did not suffer from any manic or cognitive symptoms (Tr. 323).
Plaintiff reported that he was able to dress, bathe and groom himself, and that he prepared his own meals, performed household chores and did his own laundry, but was unable to shop for himself due to his anxiety and panic attacks (Tr. 324). Plaintiff also reported that he spent the majority of his time at home (Tr. 325). Although plaintiff did not have a driver's license, he told Dr. Ortiz that he was able to take public transportation (Tr. 324). Furthermore, plaintiff stated that, despite his anxiety, which prevented him from socializing with others, he had a good relationship with his family (Tr. 325). Plaintiff also reported having a history of marijuana and opiate abuse (Tr. 323). Dr. Ortiz noted that plaintiff indicated that he discontinued his drug use around August 2013 and that he denied symptoms of dependence or withdrawal (Tr. 323).
Dr. Ortiz observed that plaintiff appeared to be his stated age, was dressed and groomed appropriately and had appropriate posture and eye contact (Tr. 323). She further found that plaintiff's speech was normal, his thought processes were coherent and goal directed and that he did not present with hallucinations, delusions or paranoia in the evaluation setting (Tr. 324). In addition, his mood was neutral, he was oriented to time, person and place, his intellectual functioning was average, his judgment and insight were fair and his memory was fully intact (Tr. 324).
Dr. Ortiz provided a "medical source statement," in which she opined that she had found no evidence of any limitation in plaintiff's ability to "follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule[] and learn new tasks" (Tr. 325). Dr. Ortiz also found that, due to his anxiety and substance abuse issues, plaintiff had "mild limitations in his ability to perform complex tasks with others, make appropriate decisions, relate adequately with others and appropriately deal with stress." (Tr. 325). She further noted that plaintiff's limitations were not significant enough to interfere with his ability to function on a daily basis (Tr. 325). She diagnosed plaintiff with: (1) panic disorder with agoraphobia and (2) opiate dependence and abuse (Tr. 325). She concluded his prognosis was fair, and recommended that he continue psychiatric and psychological treatment (Tr. 325). Dr. Ortiz also recommended that plaintiff receive assistance in managing any benefits that he might be awarded, due to his history of substance abuse (Tr. 325).
On November 15, 2013, Dr. Hillary Tzetzo, a consultative psychiatrist who examined and assessed plaintiff in connection with his application for SSI, rendered her findings and opinions regarding his medically determinable impairments and residual functional capacity ("RFC") (Tr. 83-87). Dr. Tzetzo found that plaintiff had two medically determinable impairments — an anxiety disorder and a substance addiction disorder — but that plaintiff's conditions did not meet or equal the requirements of a listing impairment (Tr. 83-84). In particular, Dr. Tzetzo considered the requirements of listing 12.06 (anxiety and obsessive-compulsive disorders) and 12.09 (substance abuse disorder) (Tr. 83-84).
Dr. Tzetzo opined that despite the limitations on plaintiff's ability to interact and relate with co-workers and the public, he could adequately sustain "brief and superficial" contact with others and adapt to normal supervision in the customary work setting (Tr. 84).
Dr. Tzetzo then assessed plaintiff's RFC (Tr. 85-87). She found that plaintiff was not significantly limited in his ability to: (1) recall locations and work-like procedures; (2) understand, remember and carry out very short and simple instructions; (3) make work-related decisions that did not require judgment; (4) ask simple questions or seek help; (5) get along with co-workers or peers and (6) be aware of normal work place hazards and take appropriate precautions (Tr. 85-86). Dr. Tzetzo identified moderate limitations on plaintiff's ability to: (1) understand, remember and carry out detailed instructions; (2) maintain attention and concentrate for extended periods; (3) perform activities within a schedule, maintain regular attendance and be punctual; (4) sustain an ordinary routine with special supervision; (5) work in coordination with or in proximity to others; (6) complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; (7) interact appropriately with the public; (8) accept instructions and respond appropriately to criticism from supervisors; (9) maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; (10) respond to changes in the workplace; (11) travel in unfamiliar places or use public transportation and (12) set realistic goals or make plans independently of others (Tr. 85-86).
An attorney represented plaintiff at the January 13, 2015 hearing before ALJ Katz, at which plaintiff testified (Tr. 53-77). Plaintiff testified that he suffered from, among other things, agoraphobia, panic attacks, paranoia and disorganized thoughts (Tr. 55-65). Plaintiff testified that he spent the majority of his time at home with his father due to anxiety, panic attacks and his fear of being in public (Tr. 55-57). Although he testified that on certain days he could leave the house and go grocery shopping, he stated that he rarely did so due to his strong aversion to being around others (Tr. 58).
Plaintiff testified that, at that time, he was seeing a "counselor" and a therapist to manage his mental health issues (Tr. 60). Furthermore, plaintiff saw a case manager ("CM"), Anthony Anderson, through an organization called Mental Health for America ("MHA") of Dutchess County (Tr. 60, 62). CM Anderson, who plaintiff testified he had been seeing for a "couple of years," visited plaintiff at his home twice a month (Tr. 62). Plaintiff testified that he had previously abused prescription opiates and marijuana, and that CM Anderson was also his substance abuse counselor (Tr. 68). He testified that he had not used any illicit substances for more than one year (Tr. 60, 64). Plaintiff also testified that he took medication to treat his anxiety and agoraphobia, but did not list any by name (Tr. 63).
Plaintiff testified that he worked in a lumber yard between 2001 and 2005, but that after leaving that job for unspecified reasons he had not been employed until September 2013 (Tr. 55-56). Since September 2013, plaintiff had made at least three attempts to rejoin the workforce, but had been unable to maintain any job for more than "a week or two" (Tr. 55). Specifically, plaintiff testified that he had worked for a landscaping company mowing lawns, but could not continue because he felt as though people watched him from their windows while he was working (Tr. 56, 64). Plaintiff left work early on his third day of employment due to a panic attack, and was fired following his fourth day after suffering from another panic attack and again leaving work early (Tr. 64). Plaintiff also worked for his uncle's construction company, but did not testify how long he held that job, what position he held or why he could not continue (Tr. 56). Plaintiff testified that most recently he had worked for a moving company, but was let go after one week (Tr. 64). He testified that he had missed at least two days of work due to panic attacks (Tr. 56). Plaintiff stated that he believed he would be unable to maintain employment because his panic attacks would result in excessive and unacceptable absences (Tr. 59).
CM Anderson also testified at the hearing (Tr. 66-73). He explained that his organization helped plaintiff "function in the community" by assisting him secure employment, obtain medical treatment and therapy and become more social (Tr. 66). CM Anderson had been plaintiff's CM and substance abuse counselor for more than two years (Tr. 66). CM Anderson testified that, although plaintiff had visited his office once or twice, he typically visited to plaintiff at home for counseling sessions because plaintiff did not like leaving his house (Tr. 70). CM Anderson twice stated that he did not know whether plaintiff had difficulty interacting with others, as he had never observed plaintiff interact with anyone besides his father and uncle and that plaintiff seemed comfortable with both (Tr. 68). However, CM Anderson also testified that plaintiff spent much of his time at home and did not like going outside (Tr. 68). Specifically, plaintiff had rebuffed all of CM Anderson's efforts to engage him in social events organized by MHA (Tr. 68-69).
CM Anderson stated that he had tried to help plaintiff secure employment, but plaintiff would cancel job interviews or skip work due to his panic attacks (Tr. 66-67). CM Anderson testified that plaintiff wanted to work, but just "couldn't do it" (Tr. 67).
CM Anderson also monitored plaintiff's sobriety during their sessions (Tr. 71). CM Anderson was aware of plaintiff's previous use of marijuana and opioids; in particular, CM Anderson testified that plaintiff had previously self-medicated to treat his panic attacks when he had run out of psychotropic medication (Tr. 68, 71-72). CM Anderson did not believe plaintiff's marijuana usage caused his difficulties functioning and socializing, nor did he believe that plaintiff used marijuana to socialize with others (Tr. 72). CM Anderson testified that plaintiff had not used marijuana in more than a year (Tr. 73).
Vocational expert David Vanderhoot (the "VE") also testified at the hearing (Tr. 60-73). The ALJ asked the VE to consider whether an individual with plaintiff's vocational profile, who could perform work at all exertional levels, but only at unskilled jobs that are simple and routine, do not require significant judgment and require only occasional interaction with the public or co-workers, could perform any occupations in the regional or national economy (Tr. 73-76). The VE testified that such an individual could perform work as defined in the U.S. Department of Labor's Dictionary of Occupational Titles ("DOT") as a routing clerk, DOT Code Number 222.687-022, of which there are 69,000 positions nationally, photo copy machine operator, DOT Code No. 207.685-014, of which there are 23,000 positions nationally, and a store's laborer, DOT Code No. 922.687-058, of which there are 129,000 positions nationally (Tr. 74). The VE also testified that a person who could attend a work site one day each week due to agoraphobia and anxiety would not be able to sustain employment (Tr. 75).
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based on an erroneous legal standard. 42 U.S.C. § 405(g);
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.
"`Substantial evidence' is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
A claimant is entitled to SSI if he can establish an "inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A);
The impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D), and it must be "of such severity" that the claimant cannot perform his previous work and "cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), § 1382c(a)(3)(B). Whether such work is actually available in the area in which the claimant resides is immaterial 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background age and work experience."
In determining whether an individual is disabled, the Commissioner must follow the five-step process required by the regulations. 20 C.F.R. § 416.920(a)(4)(i)-(v);
If the claimant does not meet any of the listings in Appendix 1, step four requires an assessment of the claimant's RFC and whether the claimant can still perform his past relevant work given his RFC. 20 C.F.R. § 416.920(a)(4)(iv);
RFC is defined in the applicable regulations as "the most [the claimant] can still do despite his limitations." 20 C.F.R. § 416.945(a)(1). To determine RFC, the ALJ "identif[ies] the individual's functional limitations or restrictions and assess[es] his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c) and (d) of 20 [C.F.R. §] 416.945."
The claimant bears the initial burden of proving disability with respect to the first four steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step — that the claimant's RFC allows the claimant to perform some work other than his past work.
In some cases, the Commissioner can rely exclusively on the medical-vocational guidelines (the "Grids") contained in C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
Exclusive reliance on the Grids is not appropriate where nonexertional limitations "significantly diminish [a claimant's] ability to work."
In determining a claimant's RFC, the ALJ is required to consider the claimant's reports of pain and other limitations, 20 C.F.R. § 416.929, but is not required to accept the claimant's subjective complaints without question.
The regulations provide a two-step process for evaluating a claimant's subjective complaints.
ALJ Katz applied the five-step analysis described above and determined that plaintiff was not disabled (Tr. 21-37).
At step one of the sequential analysis, ALJ Katz determined that plaintiff had not engaged in any substantial gainful activity since September 18, 2013, the date on which he filed his application for SSI (Tr. 26).
At step two, ALJ Katz found that plaintiff had the following severe medically determinable impairments: panic disorder with agoraphobia and substance abuse disorder in partial remission (Tr. 26,
At step three, ALJ Katz found that plaintiff's impairments did not meet or equal the criteria of the listed impairments and that plaintiff was not, therefore, entitled to a presumption of disability (Tr. 26-28). Specifically, ALJ Katz analyzed whether plaintiff's mental impairments met listings 12.06 (anxiety and obsessive-compulsive disorders) and 12.09 (substance abuse disorder) (Tr. 26-28). ALJ Katz acknowledged that plaintiff had moderate difficulties with concentration, persistence or pace and concluded that plaintiff had mild restrictions in his ability to perform activities of daily living and in social functioning (Tr. 27). ALJ Katz also found that plaintiff had never experienced an episode of decompensation for an extended duration (Tr. 27). ALJ Katz concluded that, in the absence of marked limitations or episodes of decompensation of an extended duration, paragraph B criteria of listings 12.06 and 12.09 did not apply, meaning that plaintiff could only meet the requirements of those listings if paragraph C criteria were satisfied (Tr. 27). Accordingly, ALJ Katz also considered whether paragraph C criteria were satisfied and found that the evidence failed to establish that plaintiff met these criteria because, despite plaintiff's reported history of social anxiety, he did not require any supportive living arrangement and he was able to interact with others and perform normal activities of daily living when motivated (Tr. 27-28).
ALJ Katz then determined that plaintiff had the RFC to perform a full range of work at all exertional levels, except that he is limited to the nonexertional limitations of "performing unskilled work which is simple, routine and repetitive; does not require significant judgment calls to be made[] and requires only occasional contact with the public" (Tr. 28).
As part of his analysis of the severity of plaintiff's conditions and in order to reach the RFC determination, ALJ Katz examined the opinions of the treating and consultative sources and assessed the weight to be given to each opinion based on the objective medical record (Tr. 31-32).
ALJ Katz gave some weight to the clinical examinations of plaintiff's treating sources at HVMH and SBH (Tr. 32). Specifically, ALJ Katz found that SW Scelia and MHC Phillhower's treatment notes "contain[ed] few clinical findings and denote mostly subjective reports from [plaintiff]" of allegedly disabling anxiety, panic attacks and agoraphobia (Tr. 30). However, ALJ Katz acknowledged that the notes also contained some clinical findings; for example, in July 2013, SW Scelia noted that plaintiff appeared calm and did not present with evidence of psychosis at his therapy session (Tr. 29). ALJ Katz also found that HVMH's Mental Health Treatment Plans "d[id] not contain psychiatric assessments but contain[ed] a number of `updates' comprised of self reports of continued anxiety and isolative behavior" (Tr. 30). However, ALJ Katz acknowledged that, like the treatment notes in the record, the reports reflected plaintiff's inability to keep appointments and his noncompliance with his treatment recommendations (Tr. 30).
ALJ Katz gave "some weight" to Dr. Tzetzo's opinion that plaintiff had (1) a mild restriction in activities of daily living; (2) a moderate restriction in maintaining concentration, persistence and pace; (3) a moderate restriction in social functioning and (4) no episodes of decompensation of extended duration (Tr. 32). ALJ Katz noted that Dr. Tetzo's findings were consistent with the treatment notes, which also identified plaintiff's difficulties in concentration and social interaction, but found that much of his functioning in these areas remained normal (Tr. 32). Furthermore, ALJ Katz noted that Dr. Tzetzo's familiarity with the Commissioner's regulations also afforded her opinions some credibility (Tr. 32).
ALJ Katz also accorded "great weight" to consultative psychologist Dr. Ortiz's opinion that plaintiff's mild difficulties in appropriately dealing with stress and his history of substance abuse were not sufficiently significant to interfere with plaintiff's ability to function on a daily basis (Tr. 30-31). Specifically, ALJ Katz found that Dr. Ortiz's assessments provided substantial evidence that plaintiff could engage in basic, unskilled work-related activities that were not too complex (Tr. 30). ALJ Katz also found it significant that Dr. Ortiz's detailed opinions were consistent with the objective medical record, including HVMH and SBH's treatment notes and clinical findings (Tr. 30). In addition, ALJ Katz noted that Dr. Ortiz was an expert in the field of psychology, and had actually examined plaintiff (Tr. 31).
Finally, ALJ Katz concluded that Mr. Anderson's testimony had to be viewed as somewhat biased because he was plaintiff's case manager who had known plaintiff for more than two years and helped plaintiff attempt to secure employment (Tr. 32). ALJ Katz noted that Mr. Anderson is not a medical source and, thus, while his testimony was useful in assessing the nature and severity of plaintiff's impairments, it could not be used to determine plaintiff's RFC (Tr. 32).
ALJ Katz also considered plaintiff's testimony and found that while plaintiff's medically determinable impairments could have caused his alleged symptoms, a review of the entire case record showed that plaintiff's statements regarding their intensity, persistence and limiting effects were not entirely credible (Tr. 31). ALJ Katz found it significant the objective medical record reflected that plaintiff's symptoms appeared to be controlled with counseling and medication, but that plaintiff did not to adhere to his medication regimen and routinely missed counseling (Tr. 30-31). ALJ Katz also noted that the objective record, including assessments, reports and treatment notes from plaintiff's treating and consultative sources, indicated that plaintiff was capable of performing substantially all unskilled jobs in the national economy, because his ability to understand instructions, respond to supervision and deal with routine changes in the work setting remained intact (Tr. 31,
At step four, ALJ Katz found that plaintiff was able to perform his past relevant work as a "store laborer", which was an unskilled position that required medium-level work (Tr. 32,
ALJ Katz noted that plaintiff was between 18 and 49 years of age and, thus, was a "younger individual" with a GED and an ability to communicate in English (Tr. 33,
At step five, ALJ Katz found that, based on the Grids and the VE's testimony, jobs existed in significant numbers in the national economy that plaintiff could perform, given his age, education, work experience and RFC (Tr. 33,
Plaintiff argues that ALJ Katz committed legal error and that his decision was not supported by substantial evidence (Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated July 12, 2017 (D.I. 18) ("Pl. Mem.") at 6). Specifically, plaintiff appears to argue that ALJ Katz committed legal error by improperly evaluating plaintiff and CM Anderson's credibility and failing to consider whether there was good cause for plaintiff's noncompliance with his treatment program (Pl. Mem at 6-14, 16-19). Plaintiff also contends that ALJ Katz selectively relied on evidence chosen from the medical record in making his RFC determination (Pl. Mem. at 14-16). The Commissioner contends that the ALJ's decision was supported by substantial evidence and should be affirmed (Memorandum of Law in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings, dated Sep. 15, 2017 (D.I. 20) ("Def. Mem."))
It is "within the discretion of the Commissioner to evaluate the credibility of plaintiff's complaints and render an independent judgment in light of the medical findings and other evidence regarding the true extent of such symptomatology."
As explained above, the regulations provide a two step framework which the Commissioner must use to assess the credibility of a claimant's allegations of disabling pain or other limitations.
"Objective medical evidence" is defined by the regulations to mean "medical signs and laboratory findings." 20 C.F.R. § 416.929(a). However, the ALJ must also consider "other evidence," including statements and reports by the claimant showing how [his] impairment(s) and any related symptoms affect [his] ability to work." 20 C.F.R. § 416.929(a). The ALJ must specifically consider particular factors, including: (1) plaintiff's "daily activities," (2) "location, duration, frequency and intensity" of plaintiff's symptoms, (3) "[f]actors that precipitate and aggravate" plaintiff's symptoms, (4) "type, dosage, effectiveness and side effects of any medication" plaintiff takes for his symptoms, (5) other treatment plaintiff receives for relief from his symptoms, (6) "[a]ny measures other than treatment" plaintiff uses for relief from his symptoms and (7) "[a]ny other factors" regarding plaintiff's limitations resulting from his symptoms. 20 C.F.R. §§ 416.929(c)(3)(i)-(vii); SSR 96-7p,
ALJ Katz accurately described plaintiff's testimony concerning his symptoms, including the fact that plaintiff suffered from anxiety, multiple daily panic attacks and agoraphobia that precluded him from holding a job for more than a few days (Tr. 28-32). However, the ALJ did not entirely credit this testimony, finding that "the medical evidence d[id] not corroborate these assertions" (Tr. 29).
In considering plaintiff's daily activities, ALJ Katz referenced Dr. Ortiz's November 4, 2013 clinical assessment notes, which indicate that plaintiff reported he could dress, bathe, and groom himself, cook, wash laundry, clean, take public transportation and manage money, but relied on his father to do his shopping (Tr. 30).
ALJ Katz also considered the frequency and intensity of plaintiff's symptoms (Tr. 28-32).
Plaintiff contends that ALJ Katz erred by essentially requiring "objective medical evidence" to credit plaintiff's testimony, and ignoring plaintiff's subjective reports to his physicians concerning the severity of his symptoms (Pl. Mem. at 10). Plaintiff argues that ALJ Katz should have found plaintiff credible based upon his subjective statements about the disabling nature of his symptoms, which were recorded and accepted by his treating and consultative sources, citing
As an initial matter, plaintiff's argument mischaracterizes ALJ Katz's evaluation of the record. As explained above, ALJ Katz considered not only the objective observations of plaintiff's treating and consultative sources, but also plaintiff's statements to his therapists and psychiatrists at HVMH and SBH concerning the severity and persistence of his anxiety, panic attacks and agoraphobia (Tr. 28-32). For example, ALJ Katz acknowledged that plaintiff reported to Dr. Ortiz on November 4, 2013, that he suffered from multiple daily panic attacks, had difficulty concentrating and that he suffered from paranoid delusions (Tr. 30). However, ALJ Katz found it significant that these reports conflicted with Dr. Ortiz's clinical observations that plaintiff's "psychiatric problems and substance abuse issues . . . were not significant enough to interfere with his ability to function on a daily basis" (Tr. 30).
Moreover, plaintiff's reliance on
ALJ Katz also considered plaintiff's medication; he noted that plaintiff's psychological impairments were "apparently controllable" with medication (Tr. 30).
ALJ Katz also considered plaintiff's compliance with his treatment program (Tr. 28-32). In particular, ALJ Katz referenced HVMH's Mental Health Plan, generated on December 23, 2014, which stated that plaintiff's lack of progress in treating his mental impairments was due to his failure to attend individual therapy sessions and his noncompliance with his therapists' recommendations (Tr. 30, 361). A claimant's adherence to treatment once it is prescribed is a pertinent factor in evaluating the credibility of claimant's statements concerning the intensity, persistence and limiting effects of his pain or other symptoms.
The Commissioner lists six examples upon which a claimant may rely in asserting that his noncompliance was justified: (1) claimant's religion forbids prescribed treatment; (2) a medical source advised claimant that the prescribed treatment is futile; (3) the side effects of medication are intolerable; (4) claimant is unable to afford treatment and has no access to affordable medical services; (5) claimant's symptoms are not so severe that they require treatment and (6) claimant structures his daily activities so as to minimize or eliminate symptoms by avoiding any stressors that exacerbate those symptoms. SSR 96-7p,
Considering all of the evidence, ALJ Katz concluded that the objective evidence showed that plaintiff: (1) failed "to make progress due to his non-compliance with his treatment recommendations" and (2) did not regularly attend scheduled therapy sessions (Tr. 30). With respect to his finding that plaintiff failed to comply with his treating sources' recommendations, ALJ Katz cited plaintiff's continued use of marijuana, despite his therapists' warnings that it interfered with his medication and amplified his symptoms of anxiety, agoraphobia and panic attacks (Tr. 32). Specifically, ALJ Katz referenced a November 2012 therapy session with SW Scelia, during which plaintiff admitted to using marijuana on a daily basis and SW Scelia explained that the drug could have a negative impact on his symptoms (Tr. 268). Evidence in the medical record not referenced in ALJ Katz's decision also supports his finding that plaintiff continued to use marijuana despite his therapists' recommendations to the contrary. For example, on July 7, 2014, plaintiff told MHC Phillhower that he had been using marijuana and drinking coffee (Tr. 352). MHC Phillhower explained that both substances could adversely impact his symptoms and diminish the effectiveness of his medications (Tr. 352). She encouraged him to stop using both (Tr. 352).
Plaintiff does not argue that his use of marijuana to self-medicate is a "good reason" for his failure to follow his prescribed treatment under SSR 96-7p; he does not even address his marijuana use and its interference with his treatment program. "To be sure, faulting a plaintiff with a diagnosed mental illness for failing to pursue mental health treatment is a `questionable practice.'"
ALJ Katz also considered plaintiff's excessive and unexcused absences from therapy sessions in evaluating his credibility. Four times throughout his analysis ALJ Katz referenced HMVH treatment notes indicating plaintiff regularly failed to attend or cancelled therapy sessions as a basis for finding plaintiff not entirely credible (Tr. 29-30, 32). Plaintiff contends that ALJ Katz committed error by failing to consider that plaintiff's conditions of agoraphobia and panic attacks interfered with his treatment program, which included leaving his home to attend therapy sessions (Pl. Mem. at 19). Indeed, ALJ Katz's decision does not indicate that he considered any explanation plaintiff might have offered for failing to attend approximately 14 therapy appointments between January 2012 and December 2014, nor does the objective record shed light upon the reasons for plaintiff's inconsistent attendance at sessions.
Nevertheless, ALJ Katz's error was harmless. ALJ Katz's overall determination to discount plaintiff's subjective complaints is supported by substantial evidence, even if plaintiff's inconsistent attendance at therapy sessions is ignored.
In conclusion, ALJ Katz adhered to the proper legal framework and exercised appropriate discretion in evaluating plaintiff's testimony. ALJ Katz rendered an independent judgment regarding the extent of plaintiff's subjective complaints based on the objective medical evidence and other evidence.
Plaintiff contends that ALJ Katz's characterization of CM Anderson as "sympathetic to the plaintiff" clearly demonstrates that ALJ Katz committed legal error by failing to properly consider opinion evidence from CM Anderson (Pl. Mem. at 12,
In considering opinions from "other sources," the Commissioner instructs that "it would be appropriate" for the ALJ to consider: (1) the "nature and extent" of the relationship between the claimant and the source; (2) the source's qualifications and expertise; (3) the evidentiary support in the record, or lack thereof, corroborating the source's opinion and (4) "any other factors that tend to support or refute the opinion." SSR 06-03p,
CM Anderson, plaintiff's case manager and substance abuse counselor, testified that plaintiff was "afraid to go outside," was unable to partake in social activities organized by MHA, could not maintain a job for more than two or three days because of his overwhelming anxiety and panic attacks (Tr. 66-72). ALJ Katz accurately classified CM Anderson's testimony as opinion evidence from a non-medical source and determined that CM Anderson's testimony was "valuable in assessing the nature and severity of [plaintiff's] impairments" but offered "little probative value in determining plaintiff's RFC." ALJ Katz expressly considered the nature and extent of CM Anderson's relationship with plaintiff, and concluded that, because the two had known each other for more than two years and their relationship was ongoing, CM Anderson must be viewed as a "party sympathetic to [plaintiff]" (Tr. 32).
Furthermore, CM Anderson's testimony significantly overlapped with plaintiff's subjective complaints. Specifically, CM Anderson and plaintiff both testified that plaintiff could not maintain a job and disliked leaving his home or being around others (Tr. 55-69). ALJ Katz's decision provided specific reasons supported by substantial evidence for discrediting plaintiff's testimony regarding the severity of his symptoms and, thereby also discredited CM Anderson's consistent testimony, providing germane reasons for finding CM Anderson not entirely credible. Accordingly, ALJ Katz reached his credibility determination using the correct legal standards consistent with the regulations and case law in this district.
Relying on 20 C.F.R. § 416.930, plaintiff argues that ALJ Katz failed to consider whether plaintiff had "good cause to miss appointments [and not comply with treatment recommendations] due to the nature of his psychiatric impairment" (Pl. Mem. at 17).
"The regulations require an ALJ to deny benefits to any claimant who does not follow prescribed treatment that can restore his or her ability to work, and who does not have an acceptable reason for refusal."
SSR 82-59, 1982 WL 31384 at *1 (Jan. 1, 1982);
ALJ Katz did not rule that plaintiff was not entitled to benefits because he failed to follow a treatment program that would restore his ability to work and, thus, plaintiff's reliance on 20 C.F.R. § 416.930 is misplaced. Rather, he evaluated plaintiff's claim pursuant to the five-step sequential evaluation set forth by a separate, independent regulation, and determined that plaintiff's impairments were not so severe that he could not perform his past relevant work (Tr. 28-32). 20 C.F.R. § 416.920. Thus, ALJ Katz never made the finding that plaintiff attacks in this argument.
An ALJ may not "pick and choose evidence which favors a finding that a claimant is not disabled."
First, the ALJ's description of Dr. Nussbaum's treatment notes with respect to the effectiveness of plaintiff's medications is accurate. On September 17, 2013, Dr. Nussbaum increased plaintiff's Zyprexa from 10 mg to 20 mg, noting that it was effective in treating plaintiff's paranoid delusions (Tr. 318). On November 12, 2013, Dr. Nussbaum noted that plaintiff was "doing well" on Xanax and Zyprexa, and that both his paranoia and anxiety had decreased (Tr. 320). Plaintiff did not report any side effects from his psychotropic medication at either appointment. (Tr. 318, 320). In his decision, the ALJ stated that "Dr. Nussbaum . . . prescribed medication, which progress notes show a resulting decrease in the claimant's symptoms of paranoia and anxiety with no side effects." Accordingly, plaintiff's assertion that ALJ Katz misrepresented Dr. Nussbaum's treatment notes from November 12, 2013 are rejected.
Second, although ALJ Katz did not include in his decision every detail of plaintiff's report to Dr. Nussbaum on August 20, 2013, he captured the essential nature of plaintiff's complaint (Tr. 29). On August 20, 2013, plaintiff told Dr. Nussbaum he suffered from "disorganized thinking at least 50% of the time" (Tr. 258). Dr. Nussbaum also noted, however, that plaintiff's thought processes were normal during the examination (Tr. 258). ALJ Katz accurately described the record in his decision, stating that on August 20, 2013, plaintiff had "reported feelings of confusion and paranoid delusions," but that Dr. Nussbaum found no evidence of disorganized thought processes during his clinical observation (Tr. 29).
Third, although plaintiff had reported to SW Scelia on July 16, 2013 that he was concerned about running out of medication and had told Dr. Nussbaum on July 25, 2013 that he had a low supply of medication and was rationing it by taking lower than prescribed doses, the ALJ misconstrued the treatment notes and found as follows:
(Tr. 29). ALJ Katz erred in finding that plaintiff had entirely stopped taking his medication in July 2013, without any evidence in the record supporting such a conclusion. However, the ALJ's inaccurate description of this issue is harmless.
Thus, ALJ Katz did not selectively rely on evidence and followed the standards set forth by the Commissioner's regulations.
Accordingly, for all the foregoing reasons, the Commissioner's motion for judgment on the pleadings (D.I. 19) is granted and plaintiff's motion (D.I. 17) is denied. The Clerk is respectfully requested to enter judgment in favor of the Commissioner and to mark Docket Items 17 and 19 closed.
SO ORDERED.