EARL S. HINES, Magistrate Judge.
Kristine Miley ("Miley") seeks review of an adverse decision on her application for disability-based supplemental security income benefits under the Social Security Act.
A reviewing court's limited role under 42 U.S.C. 405(g) is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 42 U.S.C. 405(g). Courts cannot retry factual issues de novo or substitute their interpretations of administrative records for that of the Commissioner when substantial evidence supports the decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). Neither can they overturn administrative rulings because they would have reached a different conclusion had the matter come before them in the first instance. See Campbell v. Astrue, 465 Fed. App'x 4, 5 (2d Cir. 2012) (summary order).
Miley, born in 1981 and morbidly obese (5'2" and 330 lbs. in 2012), has a tragic personal history.
ALJ Ramos denied Miley's application in a written decision dated October 23, 2012. (T. 15-24). Miley requested Appeals Council review. After considering Miley's objections and additional evidence (consisting of treatment notes of Scott Rosman, CNP, dated September 14, 2012), the Appeals Council denied Miley's request to review. (T. 6-9). Miley then instituted this proceeding.
Utilizing a five-step sequential evaluation procedure prescribed by regulation and approved by courts as a fair and just way to determine disability applications in conformity with the Social Security Act,
Miley has no past relevant work. Thus, ALJ Ramos consulted the Medical-Vocational Guidelines, commonly referred to as "the grids," to determine if there is any available work that a person with Miley's residual functional capacity can perform. (T. 23-24). He concluded that a finding of "not disabled" was appropriate under the framework of Rule 201.24 and SSR 85-15.
Miley's brief presents four points of error, as follows:
(Dkt. No. 19, p. 2).
In response, the Commissioner argues that ALJ Ramos employed correct legal principles and his factual findings are supported by substantial evidence. (Dkt. No. 15, pp. 5-23).
While ALJ Ramos agreed that Miley has severe impairments (listed above), he declined to find her body odor, leg pain, back pain, stomach pain, headaches, nausea, numbness, and dizziness as severe impairments.
Existence and severity of impairments are determined at Step 2 of the sequential evaluation process (described earlier in note 5). "Impairments" are "anatomical, physiological, or psychological abnormalities . . . demonstrable by medically acceptable clinical and laboratory techniques."
In this Circuit, a Step 2 severity inquiry serves only to "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). Consequently, "[a] finding of `not severe' should be made if the medical evidence establishes only a `slight abnormality' . . . [with] . . .`no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)).
Miley's assertions that her strong body odor has "cost her jobs" and "diminishes her ability to work with others," may be accurate. Such repulsive condition, however, does not constitute a severe impairment unless it is an impairment within the specialized meaning of the Social Security Act. Miley has not been diagnosed by a physician as having an anatomical, physiological or psychological abnormality that produces body odor. Only one progress note from a physician's assistant, Joseph Brunt, P.A. ("PA Brunt"), even records a strong body odor. (T. 216-17). PA Brunt, however, did not diagnose a medical condition related to Miley's odor; rather, he observed and noted that Miley appeared disheveled, suggestive of inadequate personal grooming, not an impairment demonstrable by diagnostic techniques. (T. 216). PA Brunt did not mention any effect on Miley's ability to work attributable to odor (e.g., a limitation in working around others). In all other medical visits with medical sources, Miley's body odor went unnoticed and unrecorded.
"[T]he test for disability is not whether an individual can actually get hired for a job, but whether he or she has the physical and mental capacity to adequately perform one." Glassman v. Sullivan, 901 F.2d 1472, 1474 (8th Cir. 1990). Instead of being a "physical impairment," body odor is a "condition that impairs . . . ability to get a job, not one that impairs . . . ability to perform one." (Id.) (body odor not a disability within the meaning of the Act) (emphasis added). Because Miley's body odor problem does not impair her ability to perform work, it cannot contribute to disability in the social security context. ALJ Ramos, therefore, did not err in failing to find Miley's body odor to be a severe impairment.
Undoubtedly, headaches can be symptomatic of abnormalities demonstrable by medically acceptable clinical and laboratory techniques.
Dr. Minhas prescribed Miley medication to address Miley's headaches, and planned to increase the dosage gradually. (T. 226). Miley, however, stopped taking the medication, and she never followed up with Dr. Minhas. (T. 308-09). The fact that Miley did not avail herself of all opportunities to mitigate the alleged severity of her headaches undermines her allegations that she suffers from a bothersome level of headaches.
During a separate consultative examination, Miley did not mention headaches as an impairment. Rather, she stated that she was "in very good health" except for transient gastrointestinal issues. (T. 172). No medical source opined that Miley's headaches affect her ability to work.
ALJ Ramos's Step 2 assessment that Miley's headaches do not rise to the level of a severe impairment is consistent with both the medical evidence and Miley's own testimony. Accordingly, ALJ Ramos's exclusion of headaches from the list of severe impairments at Step 2 was not error.
Miley's second and third points of error both challenge ALJ Ramos's crucial finding of "residual functional capacity." This administrative term refers to what persons can still do in work settings despite physical and/or mental limitations caused by their impairments and related symptoms, such as pain.
Miley does not quarrel with ALJ Ramos's assessment that she can perform work activities at the sedentary exertional level. (Dkt. No. 19, p. 3). Rather, her second point argues that ALJ Ramos's assessment is flawed because it does not account for her "episodic inability to work." (Dkt. No. 19, pp. 8-11). Miley asserts that medical evidence establishes that her headaches and other mental limitations preclude her from working even at the sedentary level on a regular and continuing basis, and that ALJ Ramos's residual functional capacity assessment erroneously does not account for this limitation. (Id.).
Administrative law judges must consider all impairments and their resulting limitations when assessing residual functional capacity.
Medical evidence concerning Miley's mental capacity came from four primary sources whose names, roles and opinions are listed and summarized in the note below.
Consultative examiner, Dr. Gendron, after noting that Miley engaged in both disruptive behavior in the waiting room before her appointment and highly volatile and labile expressions during examination, concluded that Miley has more limiting restrictions. (T. 168, 171). She opined that Miley exhibited erratic thought contact, and has marked limitations in her ability to make judgments on simple work-related decisions, respond to work pressures in a usual work setting, and respond appropriately to changes in a routine work setting. (T. 174).
ALJ Ramos afforded Dr. Gendron's opinion very little weight, noting that it was "quite inconsistent" with all of the other evidence in the record, and that Miley had never been psychiatrically hospitalized.
Given (a) Dr. Lattimore's observation that Miley became stressed in September and December, 2010, due to legal problems, (b) Dr. Gendron's experience with Miley's disruptive conduct and other abnormal behavior in December, 2010, and (c) Dr. Taren's and Dr. Moore's concurrences that Miley's mental state generates workplace limitations, ALJ Ramos might reasonably have concluded — as Miley now advocates — that she experiences episodic inability to work. The question for a reviewing court, however, is not whether there was evidence supporting Miley's view. Rather, the question is whether substantial evidence supports ALJ Ramos's finding of residual functional capacity.
Both Dr. Taren and Dr. Moore opined that Miley can function in simple, unskilled, low-stress jobs on a regular and continuing basis, i.e., a normal 40 hour work week. Both are credible medical sources on whose opinions ALJ Ramos reasonably could rely. ALJ Ramos also reasonably could reject Dr. Gendron's opinion of marked mental limitations in a work setting for the reasons he stated, and also because Miley never exhibited episodic mental dysfunction during examination and treatment by other medical sources or during her three appearances before ALJ Ramos. Although Miley can point to other evidence in the record that may support a contrary finding, it does not negate substantial evidence supporting ALJ Ramos's residual functional capacity assessment.
Here, the evidentiary record may support more than one position. In such cases, the Commissioner's determination controls. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."). There is no reversible error, therefore, in ALJ Ramos's omission of an episodic-inability-to-work-limitation into his residual functional capacity assessment.
Miley alleged inability to work due to back pain that radiates to her right leg, weakness, passing out, obesity, body odor, stomach pain, depression, PTSD, and anxiety. (T. 100, 107-114, 121-27, 244). She provided self-evaluations of the intensity, persistence and limiting effects of these alleged impairments and associated symptoms in an initial "Function Report" completed on October 19, 2010,
In conjunction with a lengthy discussion of the evidence of record, ALJ Ramos made the following credibility determination:
(T. 20-21, 23) (exhibit citations omitted).
In her third point of error, Miley claims that ALJ Ramos improperly discounted her subjective credibility by picking and choosing only evidence consistent with his finding. (Dkt. No. 19, pp. 11-13). Miley relies on several Second Circuit and within-circuit district court cases invalidating subjective credibility determinations based on distorted or misread evidence in order to make a claimant appear to lack credibility.
The best-informed (sometimes only) source of information regarding intensity, persistence and limiting effects of pain and other potentially disabling symptoms is the person who suffers therefrom. Testimony from claimants, therefore, is not only relevant, but desirable. On the other hand, such testimony is subjective and may be colored by interest in obtaining a favorable outcome. Hence, subjective symptomatology by itself cannot be the basis for a finding of disability. A claimant must, in addition, present medical evidence or findings that the existence of an underlying condition could reasonably be expected to produce the symptoms alleged.
Miley's argument that ALJ Ramos improperly discredited her subjective evidence has initial appeal. First, ALJ Ramos used tired and essentially meaningless boilerplate to articulate his credibility choice ("claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the objective evidence of record"). Second, using Miley's lack of prior employment earnings as evidence of malingering is, at best, thin.
The Commissioner's brief, on the other hand, recites obvious and good reasons for rejecting Miley's subjective testimony. (Dkt. No. 15, pp. 18-20). Miley's self-evaluation of disabling effects of her symptoms was inconsistent with objective medical evidence in some important respects. As ALJ Ramos noted, Miley has full range of motion of her arms, shoulders, elbow, wrists, hand, neck, hips, and knees; she uses no assistive device and has received minimal treatment. (T. 21, 228). Additionally, treatment notes describe her as bright with intact attention, concentration, and memory; she has never had any hospitalizations. (T. 21, 158-62, 212-13). And, as ALJ Ramos correctly noted, Dr. Moore and Dr. Taren indicated she was capable of working with certain accommodations.
Miley's subjective evidence was self-contradictory in some respects. While her initial Functional Report indicated that she needed her husband's assistance for many activities, her subsequent Disability Report stated she was able to do most things, albeit with pain.
Nothing in social security jurisprudence is more firmly established than that it is the prerogative of the Commissioner, not reviewing courts, to resolve evidentiary conflicts and to appraise credibility of witnesses, including the claimant. Aponte v. Secretary, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
Under unique circumstances of this case, moreover, declaring error would be of academic interest only. Since Miley concedes that she retains physical residual capacity for work activities at the sedentary exertional level, ALJ Ramos's supposed error in rejecting Miley's subjective testimony concerning her physical infirmities did not prejudice her. This narrows the inquiry to whether ALJ Ramos's credibility determination disadvantaged Miley with respect to the mental residual functional capacity determination.
Miley's sole complaint in this respect relates to ALJ Ramos's omission of an episodic-inability-to-work-limitation into his residual functional capacity assessment. Miley's subjective evidence is not directly relevant to that proffered limitation. And, as determined in Section VI.A.3, supra, substantial medical-source evidence supports ALJ Ramos's finding that Miley can perform a limited range of sedentary work on a regular and continuing basis. Thus, absent the supposed error in assessing subjective credibility, the result would not change.
In this circumstance, careful judicial review discloses no reversible error.
At Step 5 of sequential evaluation, the Commissioner determines whether "there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); see also DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998); Berry, 675 F.2d at 467; 20 C.F.R. 416.966. Generally, administrative law judges elicit or consult expert vocational testimony or officially-published data to determine when a claimant's residual work skills can be used in other work and specific occupations in which they can be used.
In some circumstances, however, adjudicators may take administrative notice of disability vel non by adopting and applying findings published in the "Medical-Vocational Guidelines" commonly called "the grids." See Roma v. Astrue, 468 Fed. App'x 16, 20-21 (2d Cir. 2012) (summary order); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); see also 20 C.F.R. Pt. 404, Subpt. P, App. 2.
Miley argues that ALJ Ramos erred in relying on the grids because her "episodic inability to work requires production of a vocational expert to determine the erosion of the job base." (Dkt. No. 19, pp. 13-15). Miley claims that ALJ Ramos failed to properly assess the episodic limitations on inability to work when headaches strike; has not properly assessed the limited job base due to inability to work with others due to her body odor; or the limitations on her inability to complete a work day and work pace. (Id., p. 14)
By definition, mental impairments are nonexertional. ALJ Ramos understood that the grids did not apply directly to determine whether alternative work exists that Miley can perform. Rather, in Miley's case, the grids could only serve as "a framework for decisionmaking." (T. 23-24). ALJ Ramos did not, however, elicit testimony of either a vocational expert or other similar evidence regarding the existence of jobs in the national economy for individuals with Miley's mental impairments.
With respect to mental impairments, SSR 85-15 states in part:
SSR 85-15, 1985 WL 56857, at *4. Importantly, this Ruling further states that the occupational base for such work is severely eroded only when a claimant has a substantial loss of ability to meet any of these basic demands. Id. (emphasis added).
ALJ Ramos found that Miley is able to follow simple instructions and directions; perform simple tasks with both supervision and independently; maintain attention and/or concentration for simple tasks; regularly attend to a routine; maintain a schedule; relate and interact appropriately with others to the extent necessary to carry out simple tasks; and handle reasonable levels of simple, repetitive work-related stress (i.e., make decisions directly related to the performance of simple tasks with consistent job duties that do no require the claimant to supervise or manage the work of others). (T. 19-20). These findings mirror the Ruling's parameters of mental capacity for unskilled sedentary work. ALJ Ramos was entitled to rely on the Ruling's administratively-noticed fact that the occupational base is not severely eroded for a person with such mental capacities.
Therefore, substantial evidence supports ALJ Ramos's finding that Miley's nonexertional mental impairments do not significantly reduce her occupational base, and the grids provided a framework for deciding that Miley's mental impairments are not disabling.
Miley's request to remand this action should be DENIED. The Commissioner's decision should be AFFIRMED.
Parties have fourteen (14) days to file specific, written objections to the Report and Recommendation. Such objections shall be filed with the Clerk of the Court.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Graham v. City of New York, 443 Fed. App'x 657, 658 (2d Cir. 2011) (summary order); FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995); see also 28 U.S.C. 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c).
(T. 19-20).
(T. 18) (exhibit references omitted).
Dr. Lattimore never assessed that Miley had any work-related limitations.
Dr. Gendron performed a mental status examination in December 2010. (T. 168-73). On this particular day, Miley was described as a "garrulous, extremely loud individual," who was unable to compose herself and engaged in disruptive behavior in the waiting room before the appointment. (T. 168). Dr. Gendron's notes describe Miley as depressed and hypomanic. (T. 170). She noted Miley's speech flow was highly pressured and she went from laughter to tears throughout the interview. (Id.). Miley's thought contact was noted as erratic. Dr. Gendron diagnosed Miley with mild to moderate depressive disorder and personality disorder, NOS, with aspects of borderline and dependent personality disorders. (T. 172). Dr. Gendron opined that Miley has marked limitations in her ability to make judgments on simple work-related decisions, respond to work pressures in a usual work setting, and respond appropriately to changes in a routine work setting. (T. 174).
After reviewing Miley's longitudinal medical record, Dr. Taren opined in a January 2011 Psychiatric Review Technique form that Miley had mild functional limitations in activities of daily living; mild functional limitations in maintaining social functioning; moderate functional limitations in maintaining concentration, persistence, or pace; and no repeated episodes of decompensation, each of extended duration. (T. 186). Dr. Taren further found in a Mental Residual Functional Capacity Assessment that Miley was moderately limited in her ability to carry out detailed instructions; her ability to maintain attention and concentration for extended periods; and her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number of rest periods. (T. 190-91).
Dr. Taren opined that Miley is able to maintain regular attendance and be punctual; does not require special supervision in order to sustain a work routine; and "is able to carry out simple, routine tasks despite the limitations resulting from her impairments." (T. 192).
Dr. Moore examined Miley in April 2012, for the county Department of Social Services. She completed a Psychological and Intellectual Assessment for Determination of Employability. (T. 237-43). At the time of her examination, Miley was not taking Zoloft or any other psychotropic medication. (T. 245). Dr. Moore noted Miley's appearance as somewhat unkempt; her speech was pressured; her thought process was normal; her mood was dysthymic; her affect was anxious and depressed; her orientation was normal; her attention and concentration were normal; her recent and remote memory skills were impaired; her cognitive functioning was low average to borderline range; her insight was fair; and her judgment appeared fair. (T. 239). Testing of Miley's intelligence revealed low average intelligence but no learning disabilities. (T. 246-47). Dr. Moore assessed Miley with a Global Assessment of Functioning rating of 57. (T. 248). She opined that Miley had "normal functioning" in the areas of following, understanding and remembering simple instructions and directions; using public transportation; and handling low stress and simple tasks. (Id.). She found Miley had "moderately limited" functioning in the areas of performing complex tasks independently; maintaining attention and concentration for rote tasks; regularly attending to a routine and maintaining a schedule; maintaining basic standards of hygiene and grooming. (Id.).
Dr. Moore opined that Miley could work up to 40 hours a week with the following accommodations: "low stress work activities which are slow paced and repetitive in nature. No multi-tasking is recommended." (T. 248-49).
Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998).
Id.
