VICTOR E. BIANCHINI, Magistrate Judge.
In April of 2006, Plaintiff Catherine L. Kaminski filed an application for supplemental security income ("SSI") benefits under the Social Security Act. Plaintiff alleges that she is unable to work due to physical and mental impairments. The Commissioner of Social Security denied Plaintiff's applications.
Plaintiff, by and through her attorneys, Conboy McKay Bachman & Kendall, LLP, Lawrence D. Hasseler, Esq., of counsel, commenced this action for judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
The Honorable Norman A. Mordue, Chief United States District Judge, referred this case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 19).
The relevant procedural history may be summarized as follows:
Plaintiff applied for SSI benefits on April 17, 2006. (T at 66, 105).
On September 16, 2008, ALJ Koennecke issued a written decision finding that Plaintiff was not disabled and denying her application for benefits. (T at 25-38). The ALJ's decision became the Commissioner's final decision on May 20, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 5-8).
Plaintiff, through counsel, timely commenced this action on June 5, 2009. (Docket No. 1). The Commissioner interposed an Answer on September 21, 2009. (Docket No. 9). Plaintiff filed a supporting Brief on November 3, 2009. (Docket No. 11). The Commissioner filed a Brief in opposition on February 4, 2010. (Docket No. 21).
Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.
For the reasons that follow, it is respectfully recommended that the Commissioner's motion be granted, Plaintiff's motion be denied, and this case be dismissed.
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled.
"Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
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]."
The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act.
While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step.
The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform.
The ALJ found that Plaintiff had not engaged in substantial gainful activity since March 30, 2006, the application date. The ALJ concluded that Plaintiff had the following impairment, which the ALJ considered "severe" under the Act: mild mental retardation. (T at 30). However, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 32).
The ALJ concluded that Plaintiff retained the residual functional capacity to perform a full range of work at all exertional levels, but was limited by her nonexertional impairment to unskilled work. (T at 34).
Applying the Medical-Vocational Guidelines (commonly referred to as the "Grids"), the ALJ concluded that a finding of "not disabled" was required based upon Plaintiff's residual functional capacity. (T at 38). As noted above, the ALJ's decision became the Commissioner's final decision on May 20, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 5-8).
Plaintiff contends that the Commissioner's decision should be reversed. She offers six (6) principal arguments in support of this position. First, Plaintiff asserts that she has an impairment or combination of impairments that meets or equals one of the impairments set forth in the Listings. Second, Plaintiff argues that the ALJ did not properly consider the medical opinion evidence of record. Third, Plaintiff contends that the ALJ erred when assessing her mental disorder. Fourth, Plaintiff alleges that the ALJ did not properly assess her credibility. Fifth, she asserts that the ALJ incorrectly relied upon the Medical-Vocational Rules (the "Grids") and should have consulted a vocational expert. Sixth, Plaintiff argues that the Appeals Council should have considered additional evidence submitted after the ALJ's decision was rendered. This Court will address each argument in turn.
As discussed above, if a claimant suffers from an impairment or combination of impairments that meets or medically equals one of the impairments contained in the Listings, the claimant will be considered disabled.
Impairments listed in Appendix 1 of the Regulations are "acknowledged by the [Commissioner] to be of sufficient severity to preclude" substantial gainful activity. Accordingly, a claimant who meets or equals a Listing is "conclusively presumed to be disabled and entitled to benefits."
The claimant bears the burden of establishing that his or her impairments match a Listing or are equal in severity to a Listing.
To show that an impairment matches a Listing, the claimant must show that his or her impairments meet all of the specified criteria.
In the present case, Plaintiff contends that her mental impairments meet or medically equal the impairment set forth in § 12.05 (c) of the Listings. Listing § 12.05(C) concerns sub-average intellectual functioning caused by mental retardation. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C). An adult will be considered disabled under the Social Security Act due to mental retardation if certain criteria set forth in the Listing are met.
Specifically, to satisfy the requirements of Listing § 12.05(C), the claimant must show: (1) a valid verbal, performance, or full scale IQ of 60 through 70; (2) an onset of the impairment before age 22; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation of function.
In this case, the ALJ concluded that the requirements of § 12.05 (C) were not met because "the claimant does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. (T at 33).
Plaintiff had two IQ tests that yielded scores within the range required to satisfy the first prong of § 12.05. (T at 249, 325).
The Second Circuit "has not yet ruled on what test should be utilized in determining whether a claimant's `physical or other mental impairment,' other than his low IQ imposes a significant work-related limitation."
In this case, the ALJ found a single severe impairment at step two of the sequential analysis—mild mental retardation. (T at 30). The ALJ did not find any severe physical or impairments or other severe mental impairments. Plaintiff points to the following impairments, which she contends are "severe" as defined at step two and which therefore should have satisfied the final prong of the § 12.05 (C) test: diabetes, vision problems, obesity, and back/hip pain. This Court finds Plaintiff's argument unavailing for the following reasons.
The claimant bears the burden of presenting evidence establishing severity.
In the instant case, Plaintiff has been diagnosed with diabetes, but the record indicates that it is well-controlled with medication, and there is no evidence that diabetes would materially impact Plaintiff's ability to work. (T at 241, 408). Likewise, Plaintiff's medical record documents visions problems related to glaucoma and cataracts. (T at 200, 236). However, Plaintiff's vision impairment was generally found to be mild or moderate, she wore glasses only for reading, and there is no indication that her vision would have more than a minimal effect on her ability to work. (T at 238, 239, 316, 361, 367, 371, 400).
For the foregoing reasons, this Court finds that the ALJ's conclusion that Plaintiff's impairments did not meet or medically equal § 12.05 (C) of the Listings is supported by substantial evidence.
Plaintiff contends that the ALJ did not properly assess the medical opinion evidence of record. In support of this argument, Plaintiff points to a May 2005 assessment by treating physician Dr. Frank Harvey, who opined that Plaintiff was moderately limited with regard to seeing/hearing/speaking; understanding and remembering instructions; carrying out instructions; maintaining attention and concentration; and maintaining basic standards of personal hygiene and grooming. (T at 245). Dr. Harvey also indicated that Plaintiff was very limited in terms of functioning in a work setting at a consistent pace. (T at 245). His overall assessment was that Plaintiff was not suited for work "due to limitations in speech and response times." (T at 246).
Plaintiff also cites a mental residual functional capacity assessment prepared by Carol Hill, who is identified as a registered nurse and reviewing social worker. Ms. Hill indicated that Plaintiff had moderate limitations with regard to many aspects of understanding and memory and a marked limitation with respect to understanding and remembering detailed instructions. (T at 259). Ms. Hill opined that Plaintiff was markedly limited as to carrying out detailed instructions; maintaining attention and concentration for extended periods; and performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances. (T at 259). Ms. Hill found marked limitations with respect to completing a normal workday and workweek without interruptions from psychologically-based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods. (T at 260).
Plaintiff also notes that Dr. Stephen Fitzgerald, PhD. opined in September of 2005 that Plaintiff "should be considered for sheltered or supported employment." (T at 250). Plaintiff contends that this finding suggests an inability to perform competitive, remunerative work on a sustained basis.
The ALJ concluded that Plaintiff retained the residual functional capacity to perform the basic mental demands of competitive, remunerative, unskilled work; including the ability to understand, carry out, and remember simple instructions; respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. (T at 34). This Court finds the ALJ's determination supported by substantial evidence.
Under the "treating physician's rule," the ALJ must give controlling weight to the treating physician's opinion when the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2);
Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. C.F.R. § 404.1527(d)(1)-(6);
The ALJ properly discounted Dr. Harvey's opinion, which predated Plaintiff's application for benefits by nearly a year and which was unsupported by any accompanying data (e.g. treatment notes, clinical examinations). Moreover, Dr. Harvey's assessment was contrary to the weight of the evidence, as outlined below.
Although Dr. Fitzgerald did suggest sheltered or supported employment, he assigned a Global Assessment Functioning ("GAF") score of 75 to Plaintiff, which "equates to symptoms that are transient and expected reactions to pyschosocial stresses and no more than a slight impairment in social, occupational or school functioning."
Concerning Nurse Hill's report, it does not appear that Ms. Hill was either a treating source or an acceptable medical source as defined under the Regulations. In any event, her assessment is contradicted by substantial evidence of record. Dr. Jeanne Shapiro, a consultative examiner, opined that Plaintiff appeared to be capable of understanding and following simple directions and performing simple tasks with supervision and independently. (T at 322). Dr. Shapiro indicated that Plaintiff could work "in an appropriate setting in a position for which she has been adequately trained." (T at 322).
Additional support for the ALJ's assessment is found in the report of Dr. Kamin, a non-examining state agency review psychologist. Dr. Kamin opined that Plaintiff had mild restrictions with regard to activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in terms of maintaining concentration, persistence, or pace. (T at 344).
It is well settled that an ALJ is entitled to rely upon the opinions of both examining and non-examining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of social security disability.
Such reliance is particularly appropriate where, as here, the opinions of these examining and non-examining State agency medical consultants are supported by the weight of the evidence.
When evaluating the severity of mental impairments, the regulations require the ALJ to apply a "special technique" at the second and third steps of the review, in addition to the customary sequential analysis.
The technique first requires a determination of whether the Plaintiff has a medically determinable mental impairment. 20 C.F.R. § 404.1520a(b)(1). Then, the ALJ must rate the degree of Plaintiff's functional limitation resulting from the impairment in four areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. See 20 C.F.R. § 404.1520a(c)(3).
These areas are rated on a scale of "none, mild, moderate, marked, and extreme." 20 C.F.R. §§ 404.1520a(c)(4); 416 .920a(c)(4). A mental impairment is generally found not severe if the degree of limitation in the first three areas is mild or better and there are no episodes of decompensation. § 404.1520a(d)(1). The ALJ must document "a specific finding as to the degree of limitation in each of the functional areas." 20 C.F.R. § 404.1520a(e)(2). If the mental impairment is found to be severe, at the third step of the review, the ALJ must consider whether the claimant's mental impairments meet or medically equal of the listed impairments. If the impairments do meet or medically equal one of the impairments set forth in the Listings, the claimant will be found to be disabled. If not, the ALJ is then required to assess the claimant's residual mental functional capacity. § 404.1520a(d)(3).
In this case, the ALJ found that Plaintiff did have a severe mental impairment — mild mental retardation. (T at 30). As discussed above, the ALJ concluded that Plaintiff's impairment did not meet or medically equal one of the impairments set forth in the Listings. (T at 32). The ALJ concluded that Plaintiff had a mild restriction with respect to her ability to engage in activities of daily living, mild limitation in terms of social functioning, and moderate difficulties with regard to maintaining concentration, persistence, or pace. (T at 33).
Plaintiff challenges these findings by noting, for example, that Plaintiff (a 46-year old woman) could only maintain activities of daily living by residing with her parents and receiving significant support from them. (T at 408-13). In addition, Plaintiff notes that she has difficulties establishing friendships and her attempt to maintain employment as a babysitter was terminated because she was suspected of spanking a child. (T at 122, 402). A June 2002 consultative assessment from Dr. Carol Joriman indicated that Plaintiff "may have some difficulty functioning on her own or living independently." (T at 201). As discussed above, Dr. Harvey indicated moderate limitations with regard to maintaining basic standards of personal hygiene and grooming and significant limitations in terms of functioning in a work setting at a consistent pace. (T at 245). Dr. Fitzgerald's adaptative functioning assessment indicated extremely low social skills. (T at 249).
This Court finds Plaintiff's arguments unavailing. It is well-settled that "[c]onflicts in evidence . . . are for the Commissioner to resolve.
The ALJ's assessment of the limiting effects of Plaintiff's mental impairment was adequately supported by evidence having rational probative force. Plaintiff did, in fact, maintain full-time employing providing full-time care for three young children for several years. (T at 80). She volunteered at the "Fireman's Auxiliary," managed her own medication, performed basic household chores, and successfully completed a course in food preparation. (T at 200, 249, 321, 398, 405, 415). Dr. Joriman's assessment pre-dated the application for benefits by several years, was equivocal in its findings, and was based only upon a 20-minute examination. (T at 201). Dr. Fitzgerald's adaptative functioning scores were based solely upon reports from Plaintiff's mother. (T at 249). His overall assessment (as reflected in the GAF scores he assigned) was that Plaintiff exhibited no more than a slight impairment in social, occupational or school functioning. (T at 250). Dr. Shapiro, the consultative examiner, opined that Plaintiff could maintain attention and concentration to tasks, relate to and interact with others, attend to a routine, and maintain a schedule. (T at 322). In light of this evidence, this Court finds no reversible error with regard to this aspect of the ALJ's decision.
Courts in the Second Circuit have determined pain is an important element in disability claims, and pain evidence must be thoroughly considered.
However, subjective symptomatology by itself cannot be the basis for a finding of disability. A claimant must present medical evidence or findings that the existence of an underlying condition could reasonably be expected to produce the symptomatology alleged. See 42 U.S.C. §§ 423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. §§ 404.1529(b), 416.929; SSR 96-7p;
"An administrative law judge may properly reject claims of severe, disabling pain after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence."
To this end, the ALJ must follow a two-step process to evaluate the plaintiff's contention of pain, set forth in SSR 96-7p:
According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if the plaintiff's contentions are not supported by objective medical evidence, the ALJ must consider the following factors in order to make a determination regarding the plaintiff's credibility:
If the ALJ finds that the plaintiff's contentions are not credible, the ALJ must state his reasons "explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief."
In this case, Plaintiff contends that the ALJ improperly discounted her testimony concerning her physical pain and mental limitations. Plaintiff testified that she experiences fatigue and dizziness as a result of her diabetes. (T at 398). She stated that she has occasional blurred vision, along with soreness and aches in her back and left hip. (T at 399-400). Plaintiff testified that she is afraid to drive a motor vehicle and has difficulty with disorder. (T at 403-04).
This Court finds Plaintiff's argument to be without merit. As outlined above, the ALJ's conclusion that Plaintiff's physical limitations were non-severe was supported by substantial evidence. Indeed, Plaintiff's own testimony tended to minimize the severity and frequency of her symptoms (e.g. describing the pain as "soreness" and "aches" and indicating that the blurred vision was relatively sporadic and brief). Likewise, as discussed above, the ALJ's assessment of Plaintiff's mental limitations was generally supported by the findings of Dr. Fitzgerald, Dr. Shapiro, and Dr. Kamin, as well as the evidence concerning Plaintiff's activities of daily living.
"It is the function of the [Commissioner], not [reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant."
The Court finds that the ALJ properly exercised her discretion to evaluate the credibility of Plaintiff's testimony and rendered an independent judgment regarding the extent of Plaintiff's subjective complaints based on the objective medical and other evidence.
At step 5 in the sequential evaluation, the ALJ was required to perform a two part process to (1) assess Plaintiff's job qualifications by considering her physical ability, age, education, and work experience, and then (2) determine whether jobs exist in the national economy that Plaintiff could perform.
The function of the Grids was succinctly summarized by the court in
"The Grid classifies work into five categories based on the exertional requirements of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling."
If a claimant's work capacity is significantly diminished by non-exertional impairments beyond that caused by his or her exertional impairment(s), then the use of the Grids may be an inappropriate method of determining a claimant's residual functional capacity and the ALJ may be required to consult a vocational expert.
As the Second Circuit explained in
"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." SSR 85-15. "A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base."
In this case, the ALJ found that Plaintiff had no significant limitations with regard to the performance of the basic mental demands of unskilled work. As such, she concluded that a finding of "not disabled" was directed by Section 204.00 of the Grids. (T at 38). Plaintiff challenges this finding, arguing that the testimony of a vocational expert was required because her nonexertional impairments significantly diminish her work capacity.
For the reasons outlined above, this Court finds that the ALJ's assessment of Plaintiff's mental impairments was supported by substantial evidence. As such, this Court finds no error with regard to the ALJ's use of the Grids. In other words, substantial evidence supported the ALJ's determination that Plaintiff's mental impairment did not significantly diminish her work capacity and, accordingly, the ALJ's reliance on the Grids was proper.
The Appeals Council shall consider "new and material" evidence if it "relates to the period on or before the date of the [ALJ's] hearing decision." 20 C.F.R. § 404.970(b);
To obtain a review of the additional evidence, the claimant must establish that "the proffered evidence is (1) new and not merely cumulative of what is already in the record, and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative."
Evidence is "material" if there is "a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently."
In this case, Plaintiff submitted a March 2006 determination from the Lewis County Department of Social Services, finding that Plaintiff was disabled and eligible for Medicaid benefits. (T at 423). The Appeals Council considered this determination, which was referenced in a letter submitted by Plaintiff's counsel, dated October 27, 2008, but concluded that it did not provide a basis for changing the ALJ's decision. (T at 6-8).
While the Appeals Council was obliged to consider the Medicaid determination (and it appears to have done so), the Medicaid determination was not binding upon the Commissioner. As such, this Court finds no error with regard to this aspect of the Commissioner's decision.
After carefully reviewing the administrative record, this Court finds substantial evidence supports the Commissioner's decision, including the objective medical evidence and supported medical opinions. It is clear that the ALJ thoroughly examined the record, afforded appropriate weight to the medical evidence, including the assessments of Plaintiff's treating providers, the consultative examiners, and the non-examining consultant, and afforded the subjective claims of symptoms and limitations an appropriate weight when rendering her decision that Plaintiff is not disabled. This Court finds no reversible error and because substantial evidence supports the Commissioner's decision, this Court recommends that the Commissioner be GRANTED judgment on the pleadings and that Plaintiff's motion for judgment on the pleadings be DENIED.
Pursuant to 28 USC § 636(b)(1), it is hereby ordered that this Report & Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties.
Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance.
SO ORDERED.