NORMAN A. MORDUE, Senior District Judge.
In June 2008, plaintiff filed applications for disability insurance benefits and supplemental security income ("SSI"), claiming disability beginning January 16, 2008. Plaintiff claimed that she suffered from post traumatic stress syndrome and acute depression. The applications were initially denied on September 9, 2008. Thereafter, plaintiff filed a written request for a hearing, and a hearing was held on December 22, 2009 before Administrative Law Judge ("ALJ") Michelle Marcus. On January 29, 2010, the ALJ issued a decision denying plaintiff's claim for benefits. (Tr. 10-21). The Appeals Council denied plaintiff's request for review. Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, asking the court to reverse the Commissioner's decision to deny her application for disability benefits. Presently before the court are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 12, 13). For the reasons set forth below, the court concludes that the Commissioner's decision should be affirmed and plaintiff's complaint dismissed.
The Social Security Act authorizes payment of disability insurance benefits or SSI benefits to individuals with "disabilities." To be considered disabled, a plaintiff must establish that he or she 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 twelve months. . . ." 42 U.S.C. § 1832c(a)(3)(A). The Commissioner uses a five-step process to evaluate disability insurance and SSI disability claims:
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000).
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
The ALJ found that plaintiff has not engaged in substantial gainful activity since the application date. (Tr. 15). The ALJ further found that plaintiff's major depression, personality disorder, post traumatic stress disorder, and anxiety with panic attacks were severe impairments. (Tr. 15-16). The ALJ then considered whether plaintiff's impairments met the severity of the listed impairments. (Tr. 16-17). Explicitly considering listing 12.04, the ALJ concluded that plaintiff's impairments did not meet the requirements of the listing. (Tr. 16-17).
The ALJ next found that plaintiff had the residual functional capacity to perform a full range of work at all exertional levels but with non-exertional limitations. (Tr. 17). More specifically, the ALJ found that "due to moderate concentration and social limitations resulting from depressive and anxiety symptoms, the claimant may have difficulty with detailed or complex tasks and frequent or constant contact with others. . . ." (Id.). The ALJ further concluded that "the evidence supports that she can perform unskilled work that does not require more than occasional interaction with the public and co-workers." (Id.).
The ALJ discussed plaintiff's therapy treatment records
The ALJ also observed that plaintiff cares for her son, at the time almost two years old, who was diagnosed with hyperinsulinism and required a blood test every four hours. Additionally, she previously worked as a cashier,
Next the ALJ found that plaintiff lacked past relevant work experience as her earnings were less than the substantial gainful activity level, but that she retained the RFC for work at all exertional levels with additional non-exertional limitations. The ALJ then used the Medical Vocational Guidelines to determine, based on plaintiff's age and education that she was not disabled.
Plaintiff argues that the ALJ's residual functional capacity ("RFC") determination is not supported by substantial evidence. (Dkt. No. 12 at 1). This is the only issue presented by the plaintiff for the Court to consider.
A plaintiff's RFC is the most he can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. "A regular and continuing basis means eight hours a day, for five days a week, or an equivalent work schedule." Pardee v. Astrue, 631 F.Supp.2d 200, 210 (N.D.N.Y. 2009) (citation omitted). In determining RFC, the ALJ can consider a variety of factors, including a treating physician's or examining physician's observations of limitations, the claimant's subjective allegations of pain, physical and mental abilities, as well as the limiting effects of all impairments. 20 C.F.R. § 404.1545(a).
It is plaintiff's contention that the ALJ erred by not finding that plaintiff was unable to work due to the findings in the Medical Source Statement completed by Ms. Graham and Dr. Wasfi on March 24, 2009. (Tr. 231-33). In this assessment, plaintiff was found to have moderate limitations with respect to simple instructions, and moderate-marked limitations with respect to complex instructions and decisions. (Tr. 231). Plaintiff was further found to have marked limitations with respect to interacting appropriately with the public, with supervisors, and with co-workers. (Tr. 232). This form defines moderate restrictions as "more than a slight limitation in this area, but the individual can generally function well;" marked restrictions as "a serious limitation in this area[; t]here is a substantial loss in the ability to effectively function;" and extreme limitations as "a major limitation in this area[; t]here is no useful ability to function in this area." In essence, plaintiff argues that she should have been found disabled because Dr. Wasfi and Ms. Graham's assessment was arguably more restrictive than the ALJ's RFC determination which found moderate social limitations as opposed to the marked limitations identified in the medical source statement.
The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. Social Security Ruling 85-15. The ALJ clearly considered the assessment of Dr. Wasfi and Ms. Graham, and the other evidence in the record relating to plaintiff's frustration when interacting with others when she concluded that plaintiff could perform unskilled work with additional exertional limitations.
Moreover, the assessment completed by Dr. Wasfi and Ms. Graham did not find extreme limitations in any category which would have meant that they believed plaintiff had "no useful ability to function in this area." Instead, the assessment found that plaintiff had a marked limitation with respect to interacting with others-that she had a "substantial loss in the ability to effectively function." Significantly, the ALJ did not find that plaintiff would be able to return to work in a position like a cashier, instead identifying non-exertional limitations, finding that she can perform unskilled work "that does not require more than occasional interaction with the public and co-workers."
The remaining evidence in the record also supports the ALJ's determination that plaintiff can occasionally interact with others. Although alleging an onset date of January 16, 2008, plaintiff's impairments date back years,
After learning that she was pregnant, plaintiff stopped medications in July 2007. During this time, and May 2008 (four months after her alleged onset date) there is a gap in mental health treatment records. In May 2008, the treatment notes of her therapist note that she is unemployed so that she can take care of her son, and refers her to Ms. Graham for medication management. (Tr. 238). During these visits in 2008 and 2009, as with those in 2007, plaintiff generally made little eye contact, but was alert and oriented, cognition was intact, and thoughts were logical, organized, reality based, and insight was fair. (See, e.g., Tr. 297-98, 244-45, 243, 203). In August and September 2008, the treatment records state that plaintiff has decreased tearful episodes and that her mood appears to have improved since beginning Zoloft on July 31st. (Tr. 243, 237, 246). In June 2009, the notes reflect that her depression is lifting. (Tr. 255). By October 2009, her anxiety had decreased to 5 and her depression to 4-5 on a 10 point scale. (Tr. 290).
Despite her depression and anxiety, and her need to check her baby's blood sugar every four hours, plaintiff began a part-time schedule of courses at Columbia Community College in the spring of 2009. She continued in the summer of 2009, and in the fall of 2009. The treatment records during her first semester note plaintiff's concern about looking stupid if she is called on in class, and that she experiences "tremendous performance anxiety when she has to present in front of class," but was doing well grade-wise. (Tr. 242, 240-41). However, later in the semester, plaintiff told Ms. Graham that she had an oral presentation in front of the class and was not "so concerned as she might have been in the past." (Tr. 258). Although plaintiff reported increased anxiety in her school environment, she was able to talk herself out of having panic attacks. (Tr. 290). Plaintiff maintained an above-average GPA; at the end of these three semesters, her cumulative GPA was 3.22. These activities that plaintiff successfully completed are beyond the expectations of an unskilled job with only occasional interaction with others.
Plaintiff's own testimony and activities demonstrate that her limitations in interacting with others and with complex tasks-whether marked or moderate-would not prevent her from any type of work. To the extent the ALJ's RFC finding is less restrictive than Dr. Wasfi's opinion, the ALJ's determination is supported by substantial evidence. The RFC determination is supported by and generally consistent with the assessment of Dr. Wasfi and Ms. Graham, and the other evidence of record. This is sufficient to sustain the ALJ's determination under the deferential standard of review.
For these reasons, it is therefore
ORDERED that the Commissioner's motion for judgment on the pleadings (Dkt. No. 13) is GRANTED; and it is further
ORDERED that plaintiff's motion for judgment on the pleadings (Dkt. No. 12) is DENIED; and it is further
ORDERED that the Clerk of Court is directed to enter judgment for the Commissioner.
IT IS SO ORDERED.
Under the Regulations, a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa, 168 F.3d at 78-79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). An ALJ may refuse to consider the treating physician's opinion controlling only if he is able to set forth good reason for doing so. Barnett v. Apfel, 13 F.Supp.2d 312, 316 (N.D.N.Y. 1998). "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is ground for remand." Peralta v. Barnhart, 2005 WL 1527669, at *10 (E.D.N.Y. 2005) (remanding where the ALJ failed to explain the weight, if any, assigned to the treating physician's opinions). The regulations provide a number of factors for the ALJ to consider. 20 C.F.R. § 404.1527(d)(2).
As an initial matter, the assessment was signed by both Dr. Wasfi and plaintiff's treating nurse practitioner, Maggie Graham. Ms. Graham provided medication management for plaintiff, and appears to have treated her once or twice per month during the relevant period. During this time, plaintiff was also treated by a therapist, Sarah Delavan. The treatment records from Sarah Delavan contain Dr. Wasfi's signature. When asked who treats her for mental health, plaintiff stated only Sarah Delavan and Maggie Graham. (Tr. 46). It is unclear whether, under these circumstances, Dr. Wasfi would even be considered a treating physician under the regulations. Similarly, although Ms. Graham is clearly a treating source, as a nurse practitioner, she is not an "acceptable medical source" under the regulations and her opinion would not be entitled to controlling weight. See Social Security Ruling 06-3p. However, even assuming that this assessment was completed by a treating physician, the court finds that the ALJ appropriately considered the opinion in accordance with the factors in 20 C.F.R. § 404.1527(d)(2) and did not err in giving the opinion great weight instead of "controlling weight." The ALJ did not explicitly mention each of these factors, but she did cite to 20 C.F.R. § 404.1527(d)(2) when discussing the weight assigned to the various opinions.
