GLENN T. SUDDABY, Chief District Judge.
Currently before the Court, in this Social Security action filed by Angela Liberatore ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 13, 14.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is denied and Defendant's motion for judgment on the pleadings is granted.
Plaintiff was born on May 20, 1965. Plaintiff has a high school education and has past work as a medical secretary and personal care assistant. Generally, Plaintiff's alleged disability consists of vestibular neuritis, depression, anxiety, vertigo, migraines, panic attacks, confusion, hearing voices and music, memory loss, and mood swings.
On November 30, 2012, Plaintiff applied for Disability Insurance Benefits. Plaintiff's application was initially denied on March 25, 2013, after which she timely requested a hearing before an Administrative Law Judge ("ALJ"). On April 3, 2014, Plaintiff appeared in a hearing before the ALJ, Jennifer Gale Smith. (Tr. at 33-69.) On July 23, 2014, the ALJ issued a written decision, finding Plaintiff not disabled under the Social Security Act. (Tr. 10-26.) On November 10, 2015, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 2-6.)
Generally, in her decision, the ALJ made the following six findings of fact and conclusions of law. (Tr. 12-26.) First, the ALJ found that Plaintiff meets the insured status requirements through December 31, 2017, and has not engaged in substantial gainful activity since June 30, 2012, the alleged onset date. (Tr. 12.) Second, the ALJ found that Plaintiff's history of vertigo, psychosis, anxiety, and depression constituted severe impairments, but that her thyroid cancer, headaches, and asthma were not severe impairments.
(Tr. 16.)
Because this Decision and Order is intended primarily for the review of the parties, further discussion of the ALJ's decision and the relevant record evidence will be undertaken where necessary to address Plaintiff's arguments.
Generally, in support of her motion for judgment on the pleadings, Plaintiff advances three arguments: (1) the ALJ did not apply appropriate legal standards in evaluating the medical opinion evidence and formulating the RFC because the ALJ (a) failed to afford controlling weight to, and consider pertinent regulatory factors regarding, the opinion of her primary care physician, John Michaels, M.D., and (b) improperly afforded great weight to a non-examining review physician who "did not review 12 [e]xhibits . . . and the bulk of the evidence" (Dkt. No. 13 at 4-7 [Plf.'s Memo. of Law]); (2) the ALJ failed to apply appropriate legal standards in assessing Plaintiff's credibility and failed to afford her substantial credibility in light of her "outstanding work history" (id. at 7-9); and (3) the vocational expert's testimony regarding the existence of other jobs in the national economy that Plaintiff can perform did not constitute substantial evidence of that fact because the hypothetical questions posed to the vocational expert were based upon an inaccurate and incomplete determination of Plaintiff's RFC (id. at 9-10).
Generally, in support of her motion for judgment on the pleadings, Defendant advances two arguments. (Dkt. No. 14 [Def.'s Memo. of Law].) First, argues Defendant, the ALJ's RFC determination is supported by substantial evidence for three reasons: (1) with regard to Plaintiff's first argument, the ALJ properly declined to give controlling weight to Dr. Michaels' opinion that Plaintiff could not perform unskilled sedentary work because (a) it was inconsistent with the evidence of record, including his treatment notes and Plaintiff's statements concerning her abilities and daily activities, (b) it was inconsistent with the assessments of other acceptable medical sources, including state agency medical consultants Janet Forbes, M.D. and James Greco, M.D., and stage agency psychiatric consultant M. Apacible, M.D., (c) it was not supported by the findings of other treatment providers, including her neurologist, physical therapist, and psychiatrist, and (d) Plaintiff's mental health conditions date back to at least 2010 (i.e., while she was working and before her alleged disability onset), and, in any event, records reflect that her mood improved and her hallucinations stopped in 2013 (id. at 6-13); (2) Plaintiff has not identified any record evidence that the state agency physicians did not review and that would have compelled a different conclusion, and she does not allege that her condition worsened after the state agency consultants rendered their opinions (id. at 9); and (3) with regard to Plaintiff's second argument, the ALJ properly assessed Plaintiff's credibility, discussing the objective medical evidence in the record and Plaintiff's daily activities, symptoms, and the conservative nature of her course of treatment (id. at 14-17). Second, argues Defendant, with regard to Plaintiff's third argument, in light of the fact that the ALJ properly determined Plaintiff's RFC, the ALJ properly relied on the vocational expert's testimony in response to hypothetical questions at step five of the sequential analysis (id. at 17-18).
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if the correct legal standards were not applied, or the determination was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
"Substantial evidence" is evidence that amounts to "more than a mere scintilla," and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks omitted). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. § 404.1520. The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process is as follows:
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord, McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). "If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further." Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
After carefully considering the matter, the Court answers this question in the negative for the reasons set forth in Defendant's memorandum of law. (Dkt. No. 14 at 6-14 [Def.'s Memo. of Law].) To those reasons, the Court adds the following analysis.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999); 20 C.F.R. § 404.1545(a). "In assessing a claimant's RFC, the ALJ must consider all of the relevant medical and other evidence in the case record to assess the claimant's ability to meet the physical, mental, sensory and other requirements of work." Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at *8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider medical opinions and facts, physical and mental abilities, non-severe impairments, and the plaintiff's subjective evidence of symptoms. 20 C.F.R. § 404.1545(b)-(e). The ALJ must also consider RFC assessments made by acceptable medical sources and may consider opinions from other sources to show how a claimant's impairments may affect his or her ability to work. 20 C.F.R. § 404.1513(c), (d). Finally, an ALJ's RFC determination "must be set forth with sufficient specificity to enable [the Court] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
The opinion of a treating source will be given controlling weight 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. § 416.927(c)(2); Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
When controlling weight is not afforded to the opinion of a treating physician, the ALJ should consider the following factors to determine the proper weight to afford the opinion: "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 [2d Cir. 1998]). "Although the ALJ is required to explicitly consider all of the factors, the ALJ is not required to explicitly `address or recite' each factor in his decision." Reyes v. Colvin, 13-CV-4683, 2015 WL 337483, at *16 (S.D.N.Y. Jan. 26, 2015); see also Marquez v. Colvin, 12-CV-6819, 2013 WL 5568718, at *12 (S.D.N.Y. Oct. 9, 2013) ("Although the ALJ did not explicitly recite the factors, his decision nonetheless adequately considered each factor[.]"). "If it is unclear whether the ALJ explicitly considered all of the factors, the court may search the record to assure that the treating physician rule has not been traversed, but only when the ALJ gives good enough reasons to allow the court to engage in such an inquiry." Reyes, 2015 WL 337483, at *16 (citing Halloran v. Barnhart, 362 F.3d 28, 32 [2d Cir. 2004]). Finally, the ALJ is also required to set forth his or her reasons for the weight that he or she assigns to the treating physician's opinion. Id.; see also SSR 96-2p, 1996 WL 374188 (July 2, 1996); Shaw, 221 F.3d at 134. "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Reyes, 2015 WL 337483, at *14.
In this case, on July 19, 2013, Dr. Michaels opined, among other things, that "Plaintiff cannot tolerate any work," can sit for zero minutes at a time and stand for zero minutes at a time, walk zero city blocks without rest or severe pain, needs to change positions at will, and can never carry any weight.
The ALJ's reasoning in her decision, taken in the context of the facts in the record, demonstrates that she properly applied the treating physician rule in evaluating, and affording little weight to, Dr. Michaels' opinions. (Tr. 21-22.) The ALJ both expressly recited the regulatory factors and, as is evident from her detailed discussion of the other evidence in the record inconsistent with Dr. Michaels' highly "restrictive" opinions of Plaintiff's capabilities, applied those factors in her analysis. (Tr. 21-24.) As the ALJ noted (and as set forth in Defendant's memorandum of law), the degree of restrictiveness of Dr. Michaels' assessments was inconsistent with Plaintiff's function report
As noted above, Plaintiff argues that the ALJ improperly afforded great weight to "a nonexamining review physician" because the physician "did not review 12 [e]xhibits . . . and the bulk of the evidence." (Dkt. No. 13 at 7 [Plf.'s Memo. of Law].) As an initial matter, Plaintiff does not identify the "non-examining review physician" who purportedly did not review record exhibits in forming his or her opinion. (Dkt. No. 13 at 7.) Moreover, Plaintiff's argument that the unspecified physician "did not review 12 [e]xhibits (Exhs. 9F-20F . . .)" is entirely conclusory, and does not identify any particular record that the unspecified physician failed to review in forming his or her opinion, or any basis for concluding that such a failure to review undermines the ALJ's reliance upon this opinion. The conclusory and nonspecific nature of Plaintiff's (counseled) arguments alone warrants their rejection.
In any event, it appears that Plaintiff is referring to the opinion of state agency psychiatric reviewer M. Apacible, M.D., which was the only opinion to which the ALJ afforded great weight and the only opinion of Plaintiff's mental work-related abilities and limitations in the record. (Tr. 22-23.) Furthermore, it appears that Plaintiff intends to argue that Dr. Apacible did not review (and could not have reviewed) any medical records or other record evidence that arose or were generated after the date of Dr. Apacible's mental RFC assessment, March 21, 2013.
Granting Plaintiff's undeveloped argument the liberal construction outlined above, the Court concludes that the ALJ did not err in affording great weight to Dr. Apacible's opinion for the reasons set forth in Defendant's memorandum of law. (Dkt. No. 14 at 10-14 [Def.'s Memo. of Law].) To those reasons, the Court adds the following two points.
First, an ALJ is entitled to rely on the opinions of both examining and non-examining State agency medical consultants, because those consultants are deemed to be qualified experts in the field of Social Security disability benefits. 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(e), 416.912(b)(6), 416.913(c), 416.927(e); see also Frey ex rel. A.O. v. Astrue, 485 F. App'x 484, 487 (2d Cir. 2012) (summary order) ("The report of a State agency medical consultant constitutes expert opinion evidence which can be given weight if supported by medical evidence in the record."); Little v. Colvin, 14-CV-0063, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (D'Agostino, J.) ("State agency physicians are qualified as experts in the evaluation of medical issues in disability claims. As such, their opinions may constitute substantial evidence if they are consistent with the record as a whole.") (internal quotation marks omitted).
Second, the timeliness of evidence is merely "a factor that courts have cited in finding a lack of substantial evidence in the record," and does not necessarily compel rejection of a particular piece of evidence or the ALJ's finding relying thereon. Abar v. Colvin, 15-CV-0095, 2016 WL 1298135, at *6 (N.D.N.Y. Mar. 31, 2016) (Suddaby, C.J.) (citing Jones v. Colvin, 14-CV-6313, 2015 WL 4628972, at *3-5 [W.D.N.Y. Aug. 3, 2015] and Acevedo v. Astrue, 11-CV-8853, 2012 WL 4377323, at *16 [S.D.N.Y. Sept. 4, 2012] ["The timeliness of evidence is also a factor that courts have cited in finding a lack of substantial evidence in the record to affirm a decision on benefits by the Commissioner."]); see, e.g., Camille v. Colvin, 104 F.Supp.3d 329, 343-44 (W.D.N.Y. 2015) (rejecting plaintiff's argument that the mental RFC was unsupported because the ALJ improperly gave great weight to the allegedly "stale" opinion of a nonexamining and non-treating state agency medical consultant; concluding that the ALJ did not err because, "although [the consultant's] opinion was based on only part of the overall administrative record, the treatment notes and opinions in the record before and after [the consultant's] opinion demonstrate substantially similar limitations and findings"); cf. Suarez v. Comm'r of Soc. Sec., 09-CV-0338, 2010 WL 3322536, at *8 (E.D.N.Y. Aug. 20, 2010) ("[B]ecause Dr. Weiss's opinion is both outdated and inconsistent with Dr. Misra's more recent findings, the propositions which the ALJ relied on Dr. Weiss's opinion for when determining Plaintiff's RFC should not have been afforded substantial weight without further explanation."); Pierce v. Astrue, 09-CV-0813, 2010 WL 6184871, at *9 (N.D.N.Y. July 26, 2010) (Bianchini, M.J.), adopted, 2011 WL 940342, at *1 (Mar. 16, 2011) (Suddaby, J.) ("Because the ALJ's RFC determination was so heavily based upon Dr. Scerpella's August 2005 assessment, it is flawed [in that] the record contains sufficient evidence to question whether that assessment was rendered stale by subsequent events.").
In this case, the Court cannot conclude that any record evidence postdating Dr. Apacible's mental RFC assessment rendered the RFC assessment stale; and, for this reason, the Court cannot conclude that the ALJ erred in relying upon the RFC assessment. Much of the record evidence at issue bore no relation to her mental functioning, and, as noted above, Plaintiff's psychiatric history predated her alleged onset date for purposes of her disability application.
For each of these reasons, we as well as the reasons set forth in Defendant's memorandum of law, the Court concludes that the ALJ did not err in affording great weight to Dr. Apacible's mental RFC assessment, that the mental RFC assessment was not inconsistent with the record evidence, and that the ALJ's RFC determination was supported by substantial evidence.
After carefully considering the matter, the Court answers this question in the negative for the reasons set forth in Defendant's memorandum of law. (Dkt. No. 14 at 14-17 [Def.'s Memo. of Law].) To those reasons, the Court adds the following analysis.
A plaintiff's allegation of pain is "entitled to great weight where . . . it is supported by objective medical evidence." Rockwood v. Astrue, 614 F.Supp.2d 252, 270 (N.D.N.Y. 2009) (Mordue, C.J., adopting Report-Recommendation of Bianchini, M.J.) (quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ "is not required to accept [a plaintiff's] subjective complaints without question; he may exercise discretion in weighing the credibility of the [plaintiff's] testimony in light of the other evidence in the record." Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15 2012). "When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief." Rockwood, 614 F. Supp. 2d at 270 (internal quotation marks omitted).
"The ALJ's credibility assessment must be based on a two step analysis of pertinent evidence in the record. First, the ALJ must determine whether the claimant has medically determinable impairments, which could reasonably be expected to produce the pain or other symptoms alleged." Id. at 270-71 (internal quotation marks omitted).
Id. at 271 (citing §§ 404.429[c][3][i]-[vii]) (internal citations and quotation marks omitted). Moreover, "[i]t is the role of the Commissioner, not the reviewing court, `to resolve evidentiary conflicts and to appraise the credibility of witnesses,' including with respect to the severity of a claimant's symptoms." Cichocki, 534 F. App'x at 75 (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 [2d Cir. 1983]).
In this case, Plaintiff argues that the ALJ (1) "applied none of th[e] factors" set forth in 20 C.F.R. § 404.1529 in weighing her credibility, but rather "merely used boilerplate language," and (2) erred in failing to afford Plaintiff substantial credibility in light of her "outstanding work history." (Dkt. No. 13 at 9.) Neither of Plaintiff's arguments compels remand.
Contrary to Plaintiff's first argument, the ALJ manifestly considered the applicable regulatory factors in evaluating Plaintiff's credibility. In her decision, the ALJ concluded that Plaintiff suffered from medically determinable impairments (Tr. 17), but that, pursuant to "the factors described in 20 [C.F.R. §] 404.1529(c)(3), 416.929(c)(3) and Social Security Ruling 96-7p, there are several reasons why [Plaintiff's] allegations of debilitating symptoms should be deemed to be not wholly credible." (Tr. 23.) Among those reasons, the ALJ noted that (1) Plaintiff's hearing testimony and function report reflected that she engaged in daily activities-including washing and dressing herself and numerous chores-that were not consistent with her expressed disabling symptoms and limitations, (2) her medical treatment "has been essentially routine and/or conservative in nature, including medications and physical therapy," and (3) her most-recent medical records indicated that, upon examination, she was not in any apparent distress and had an appropriate affect and demeanor. (Tr. 23-24.) The ALJ concluded that the "overall record does not support the severity of" the symptoms alleged by Plaintiff, but rather "point[ed] to a remaining degree of functioning" sufficient to perform sedentary work with certain limiting exceptions, as set forth in the RFC. (Tr. 24.) Although that portion of the ALJ's decision expressly focusing on Plaintiff's credibility was somewhat brief, the ALJ thoroughly reviewed Plaintiff's medical records and testimony, and referenced Plaintiff's symptoms and treatment, throughout the decision. (Tr. 13-21.) Rather than repeat that discussion at length in the context of evaluating Plaintiff's credibility, the ALJ identified those portions of the record that were inconsistent with Plaintiff's subjective allegations, specifically, her hearing testimony, function report, the nature of her treatment history, and her more-recent medical records. (Tr. 23-24.) It is well established that "[a]n ALJ does not have to state on the record every reason justifying a decision[, and a]n ALJ's failure to cite specific evidence does not indicate that such evidence was not considered." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks omitted). For these reasons, as well as those set forth in Defendant's memorandum of law, the ALJ's decision, taken as a whole, amply supports the conclusion that the ALJ considered the relevant factors in determining Plaintiff's credibility.
With respect to Plaintiff's second argument, the ALJ's decision reflects that the ALJ was aware of, and considered, Plaintiff's work history. (Tr. 17 [noting that, according to medical records, Plaintiff attempted to return to work in August 2012 but "gave up her job" a short time later due to headaches and dizziness], 24 [discussing Plaintiff's work history and concluding that Plaintiff is unable to perform past relevant work].) "Although it is true that `a good work history may be deemed probative of credibility,' it remains `just one of many factors' appropriately considered in assessing credibility." Campbell v. Astrue, 465 F. App'x 4, 7 (2d Cir. 2012) (summary order) (quoting Schaal v. Apfel, 134 F.3d 496, 502 [2d Cir. 1998]). As outlined above, the ALJ reasonably relied on other record evidence in assessing Plaintiff's credibility, and, in light of that evidence, the ALJ's determination that Plaintiff's allegations were not wholly credible is supported by substantial evidence. See Wavercak v. Astrue, 420 F. App'x 91, 94 (2d Cir. 2011) (summary order) ("[T]he ALJ was well-aware of Wavercak's 17-year employment as a warehouse worker for a food distributing company, and considered this in the disability analysis when he concluded that Wavercak's RFC for light work prevented him from performing the medium demands of his past warehouse work. That Wavercak's good work history was not specifically referenced in the ALJ's decision does not undermine the credibility assessment, given the substantial evidence supporting the ALJ's determination.").
"It is the function of the [Commissioner], not the reviewing courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Aponte v. Sec'y of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quoting Carroll, 705 F.2d at 642) (internal quotation marks and alteration omitted). Accordingly, the Court must uphold an ALJ's credibility determination where, as here, it is supported by substantial evidence. Aponte, 728 F.2d at 591.
After carefully considering the matter, the Court answers this question in the negative for the reasons set forth in Defendant's memorandum of law. (Dkt. No. 14 at 17-18 [Def.'s Memo. of Law].) Plaintiff's only argument with respect to the ALJ's step five-determination is that the hypothetical questions posed to the vocational expert were based upon an erroneous RFC determination. (Dkt. No. 13 at 10 [Plf.'s Memo. of Law].) However, for the reasons discussed above in Parts III.A. and III.B. of this Decision and Order, the Court concludes that Plaintiff's arguments with respect to the ALJ's RFC determination lack merit. Plaintiff has therefore identified no basis upon which to conclude that the hypothetical questions posed to the vocational expert were improper or that the ALJ's step five determination was erroneous.
