ANDREW T. BAXTER, Magistrate Judge.
This matter was referred to me, for all proceedings and entry of a final judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, in accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6).
Plaintiff protectively filed applications for child's insurance benefits and Supplemental Social Security Income ("SSI") benefits on November 13, 2013, alleging disability beginning June 11, 2009. (Administrative Transcript ("T") at 13, 206-22). The applications were denied initially on January 7, 2014. (T. 67-86). Administrative Law Judge ("ALJ") Elizabeth W. Koennecke held a hearing on June 29, 2015, at which plaintiff testified. (T. 28-42). The ALJ held a supplemental hearing on October 28, 2015, at which Vocational Expert ("VE") Robert Baker testified. (T. 43-51). On November 19, 2015, the ALJ found plaintiff was not disabled. (T. 10-27). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on March 18, 2016. (T. 1-4).
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he 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. § 1382c(a)(3)(A). In addition, the plaintiff's
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. Id.
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review "— even more so than the `clearly erroneous standard.'" Brault, 683 F.3d at 448.
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ cannot "`pick and choose' evidence in the record that supports his conclusions." Cruz v. Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
As of the date of the administrative hearing on March 6, 2014, plaintiff was 23 years old. (T. 32). He resided with his father, who took care of all of the cooking, grocery shopping, and other household responsibilities. (Id.). Plaintiff had attended school up to the tenth grade in regular education classes, but had dropped out after being held back due to poor grades. (T. 301, 314, 334). He had enrolled in a general equivalency diploma ("GED") program, but did not complete it. (T. 327). Plaintiff had never held full-time employment. He had worked part-time as a receptionist as part of a training program while being treated at Hutchings Psychiatric Center in 2013, and in a temporary position at the New York State Fair in 2012. (T. 245, 334).
Plaintiff reported that he was unable to work due to physical and mental impairments, including right wrist pain, depression, migraines, anxiety, and frequent panic attacks. (T. 35-40, 244, 313). In October 2014, plaintiff had surgery to address an unstable distal radio-ulna joint ("DRUJ") in his right wrist that was believed to have resulted from a childhood injury. (T. 37, 505). Post-operative treatment notes documented improvement in the wrist's range of motion and stability, but that plaintiff was still lacking in significant supination
The record shows that plaintiff had never been hospitalized for his mental health impairments, but had received regular psychiatric treatment since July 2011.
The ALJ's decision provides a detailed statement of the medical and other evidence of record. (T. 16-20). Rather than reciting this evidence at the outset, the court will discuss the relevant details below, as necessary to address the issues raised by plaintiff.
The ALJ determined that plaintiff had not engaged in substantial gainful activity since May 4, 2011, the day after the denial of a prior application for benefits. (T. 15). The ALJ found that plaintiff had the following severe impairments at step two of the sequential evaluation: residuals of a right wrist repair and a mental impairment (variously characterized). (T. 16). The ALJ noted that the mental health professionals had offered a variety of diagnoses, including bipolar disorder, a learning disorder, depression, an unspecified intellectual disability, and anxiety. (Id.). At the third step, the ALJ determined that plaintiff's impairments did not meet or medically equal the criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P. (T. 16-18).
The ALJ found at step four of the analysis that plaintiff had the RFC to perform less than the full range of light work. (T. 18-20). Taking plaintiff's wrist injury into account, the ALJ found that plaintiff could lift and carry up to twenty pounds occasionally and up to ten pounds frequently, with no other exertional limitations. (T. 18-19). In light of plaintiff's mental limitations, the ALJ found that plaintiff could understand and follow simple instructions and directions; could perform simple tasks independently, could maintain attention and concentration for simple tasks; could regularly attend to a routine and maintain a schedule; and could handle simple, repetitive work-related stress, defined as making occasional decisions directly related to the performance of simple tasks in a position with consistent job duties that did not require plaintiff to supervise or manage the work of others. (Id.). The ALJ also found that plaintiff should avoid work requiring more complex interaction or joint effort to achieve work goals, and should have no contact with the public. (Id.).
In making the RFC determination, the ALJ stated that she considered all of the plaintiff's symptoms, and considered the extent to which those symptoms could "reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R. 404.1529 and 416.929" and Social Security Rulings ("SSRs") 96-4p and 96-7p. (T. 18). Finally, the ALJ stated that she considered opinion evidence pursuant to 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (Id.).
The ALJ also found that plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms, but that plaintiff's statements regarding the intensity, persistence, and limiting effects of those symptoms were not entirely credible in light of the record evidence. (T. 19-20). The ALJ next determined that plaintiff had no past relevant work. (T. 20). Relying on the VE testimony, the ALJ found that there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (T. 21-22). Accordingly, the ALJ determined that plaintiff was not disabled from the onset date through the date of the decision, and denied plaintiff's application for child's insurance benefits
Plaintiff raises the following arguments:
Defendant argues that the Commissioner's determination was supported by substantial evidence and should be affirmed. (Def.'s Br. at 7-12) (Dkt. No. 10). For the following reasons, this court agrees with defendant and will dismiss the complaint.
RFC is "what [the] individual can still do despite his or her limitations. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis . . . ." A "regular and continuing basis" means eight hours a day, for five days a week, or an equivalent work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2)).
In rendering an RFC determination, the ALJ must consider objective medical facts, diagnoses and medical opinions based on such facts, as well as a plaintiff's subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R §§ 404.1545, 416.945. See Martone v. Apfel, 70 F.Supp.2d 145, 150 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F.Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must specify the functions plaintiff is capable of performing, and may not simply make conclusory statements regarding a plaintiff's capacities. Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F.Supp. 456, 460 (W.D.N.Y. 1987)). The RFC assessment must also include a narrative discussion, describing how the evidence supports the ALJ's conclusions, citing specific medical facts, and non-medical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL 3825629 at *6 (N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *7).
Plaintiff does not challenge the ALJ's assessment of his physical limitations. However, plaintiff argues that the ALJ did not properly weigh the medical evidence regarding plaintiff's mental impairments, particularly the evidence regarding plaintiff's social functioning, ability to handle stress, and ability to make appropriate decisions. (Pl.'s Br. at 12-13). This court disagrees, and concludes that the ALJ's assessment of plaintiff's mental impairments was supported by substantial evidence.
As noted above, the ALJ limited plaintiff to simple, routine, and repetitive tasks. (T. 18-20). In reaching the mental RFC determination, the ALJ gave "considerable weight" to the opinion of Dr. S. Shapiro, the state agency psychological consultant, who concluded that plaintiff could perform simple work so long as it required only limited contact with the general public.
Plaintiff contends that the ALJ erred in assigning the state consultant's opinion considerable weight, because the opinion came from a non-examining source. (Pl.'s Br. at 12). However, a non-examining state agency consultant's opinion may be relied upon where it is supported by other record evidence. See 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."); Swan v. Astrue, No. 09-CV-486-S, 2010 WL 3211049, at *5 (W.D.N.Y. August 11, 2010) ("State agency medical consultants are qualified experts in the evaluation of disability claims and as such, their opinions may constitute substantial evidence if they are consistent with the record as a whole.").
Plaintiff also argues that the state consultant's January 2, 2014 opinion should have been discounted because it necessarily omits plaintiff's psychiatric treatment record between January 2014 and May 2015.
The ALJ also gave "some weight" to the December 23, 2013 opinion of Dr. Jeanne Shapiro, who performed plaintiff's consultative psychiatric examination. (T. 20). Plaintiff argues that Dr. Jeanne Shapiro provided the only psychiatric opinion from an examining source, and therefore the ALJ should have assigned her report greater weight. (Pl.'s Br. at 13-14). Dr. Jeanne Shapiro opined that plaintiff appeared to have mild limitations in understanding and following simple instructions and directions; mild to moderate limitations performing simple tasks; moderate to marked limitations performing complex tasks; mild limitations maintaining attention and concentration; moderate limitations regarding his ability to attend to a routine and maintain a schedule; and mild to moderate limitations regarding his ability to learn new tasks. (T. 337). Dr. Jeanne Shapiro further opined that plaintiff had moderate to marked limitations in his ability to make appropriate decisions and to deal with stress, and had marked limitations in his ability to relate to and interact well with others. (Id.).
The ALJ provided several reasons for assigning less weight to the consultative examiner's opinion. First, she discounted the consultative examiner's reliance on plaintiff's own description of his symptoms, due to questions about plaintiff's credibility. (T. 20). For example, the ALJ noted that plaintiff reported that he had been depressed most of his life, but had only sought mental health treatment after a prior application for benefits was denied. (T. 19). In addition, plaintiff had been largely noncompliant with recommended treatment, and had missed numerous counseling appointments. (Id.). The ALJ also referenced treatment notes that described plaintiff as questioning whether he had to stay for the entire session to "get credit" under a state Jobs Plus program, and requesting that a counselor sign a form that overstated plaintiff's attendance at weekly counseling sessions. (T. 19, 443, 452).
In addition, the ALJ found that Dr. Jeanne Shapiro's findings did not reflect the improvement in plaintiff's anger management described in treatment notes, and that her most restrictive findings were not supported by "consistent" treating source evidence. (T. 20). The ALJ also described Dr. Jeanne Shapiro's examination notes, which were inconsistent with her findings of extreme limitations. (T. 19). For example, plaintiff was cooperative during the consultative examination, and displayed an adequate manner of relating, social skills, and overall presentation. (T. 336). His attention and concentration was intact, and he did not demonstrate any recent or remote memory deficits. (Id.). Because the ALJ provided record support for her determination, this court concludes that her decision to assign less weight to Dr. Jeanne Shapiro's opinion was supported by substantial evidence.
It is well-settled that, because a hearing on disability benefits is a nonadversarial proceeding, the ALJ has an affirmative duty to develop the record, whether or not a plaintiff is represented. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). Prior to March of 2012, the regulations provided that when the treating physician's report contained "a conflict or ambiguity" that must be resolved, the ALJ was required to "seek additional evidence or clarification" from that source in order to fill in any clear gaps before rejecting the doctor's opinion. Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 504-505 (S.D.N.Y. 2014) (citing, inter alia, Correale Englehart v. Astrue, 687 F.Supp.2d 396, 428 (S.D.N.Y. 2010); 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) (2010)). This duty arose if the physician's report was "insufficiently explained, lacking in support, or inconsistent with the physician's other reports." Id.
Effective March 26, 2012, the Commissioner amended 20 C.F.R. §§ 404.1512 (e)(1) and 416.912(e)(1) to remove former paragraph (e), together with the duty that it imposed on the ALJ to re-contact the treating physician under certain circumstances. Lowry v. Astrue, 474 F. App'x 801, 805 n.2 (2d Cir. 2012) (citing
The new section allows the ALJ to choose the appropriate method for resolving insufficiencies or inconsistencies, which is designed to afford adjudicators "more flexibility." Perrin v. Astrue, No. 11-CV-5110, 2012 WL 4793543, at *3 n.3 (E.D.N.Y. Oct. 9, 2012) (citing
Id. (citing 20 C.F.R. §§ 404.1520b(c)(1)-(4), 416.920b(c)(1)-(4)). Despite the duty to develop the record, remand is not required where the record contains sufficient evidence from which the ALJ can assess the plaintiff's RFC. Covey v. Colvin, No. 13-CV-6602, 2015 WL 1541864, at *13 (W.D.N.Y. Apr. 6, 2015) (quoting Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 33 (2d Cir. 2013)).
After the consultative examination, Dr. Jeanne Shapiro found that plaintiff's intellectual functioning was in the deficient range, possibly indicating a mild intellectual disability. (T.337). Plaintiff argues that the ALJ should have further developed the administrative record by ordering a consultative examination to assess plaintiff's intellectual functioning, and to rule out an intellectual disability. (Pl.'s Br. at 11-12).
An ALJ is not required to order a consultative examination if the facts do not warrant or suggest the need for it. Lefever v. Astrue, No. 5:07-CV-622 (NAM/DEP), 2010 WL 3909487, at *7 (N.D.N.Y. Sept. 30, 2010), aff'd 443 F. App'x 608 (2d Cir. 2011); see also Yancey v. Apfel, 145 F.3d 106, 114 (2d Cir.1998). In this case, plaintiff attended regular education classes throughout school. (T. 334). Although plaintiff had poor grades and was held back a year, he reported that he had actually quit school due to being bullied by classmates and mistreated by staff. (T. 301, 327, 348). Plaintiff had failed to complete a GED course, but attributed this to financial difficulties rather than intellectual struggles. (T. 327). Plaintiff's counselors also regularly encouraged him to consider returning to a GED program, and did not express any concerns about his intellectual ability to complete the necessary coursework. (T. 430, 444, 446). While plaintiff testified that he had difficulty with math and English at school, he has not identified any work-related functional limitations resulting from these academic difficulties. Therefore, this court cannot conclude that the ALJ was obligated to send plaintiff for an additional consultative examination, or to take any other measures to further assess his intellectual functioning. See Gorman v. Colvin, No. 14-CV-103, 2015 WL 1383823, at *4 (N.D.N.Y. Mar. 25, 2015) ("Plaintiff fails to point to evidence during the relevant period showing that her intellectual capacity precluded her from engaging in simple, routine, and repetitive unskilled work activities, and therefore the ALJ had no duty to order a consultive intellectual evaluation.").
At step five of the disability analysis, the burden shifts to the ALJ to demonstrate that there is other work in the national economy that plaintiff can perform. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). "Work which exists in the national economy" means work existing in significant numbers "either in the region where the individuals live or in several regions of the country." McCusker v. Comm'r of Soc. Sec., No. 1:13-CV-1074, 2014 WL 6610025, at *3 (N.D.N.Y. Nov. 20, 2014) (quoting SSR 82-53, 1982 WL 3134, at *3 (1982) (internal quotation marks removed). This definition emphasizes "that . . . a type[] of job which exists only in very limited numbers or in relatively few geographic locations may not be said to `exist in the national economy.'" Id. However, what constitutes a "significant" number is "fairly minimal." Id. (quoting Fox v. Comm'r of Soc. Sec., No. 6:02-CV-1160, 2009 WL 367628, at *20 (N.D.N.Y. Feb. 13, 2009)).
In the ordinary case, the ALJ carries out this fifth step of the sequential disability analysis by applying the applicable Medical-Vocational Guidelines ("the Grids"). Id. The Grids divide work into sedentary, light, medium, heavy, and very heavy categories, based on the extent of a claimant's ability to sit, stand, walk, lift, carry, push, and pull. 20 C.F.R. Pt. 404, Subpt. P, App. 2; Zorilla v. Chater, 915 F.Supp. 662, 667 n.2 (S.D.N.Y. 1996). See also 20 C.F.R. §§ 404.1567 & 416.967. Each exertional category of work has its own Grid, which then takes into account the plaintiff's age, education, and previous work experience. Id. Based on these factors, the Grids help the ALJ determine whether plaintiff can engage in any other substantial work that exists in the national economy. Id.
"Although the grids are `generally dispositive, exclusive reliance on [them] is inappropriate' when they do not fully account for the claimant's limitations." Martin v. Astrue, 337 F. App'x 87, 90 (2d Cir. 2009) (citation omitted). When significant nonexertional impairments
If the ALJ utilizes a VE at the hearing, the VE is generally asked a hypothetical question that incorporates plaintiff's limitations. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981). Although the ALJ is initially responsible for determining the claimant's capabilities based on all the evidence, see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983), a hypothetical question that does not present the full extent of a claimant's impairments cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec'y of Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F.Supp. 497, 503-04 (S.D.N.Y. 1996). Conversely, the ALJ may rely on a VE's testimony regarding the availability of work as long as the hypothetical facts the expert is asked to consider are based on substantial evidence and accurately reflect the plaintiff's limitations. Calabrese v. Astrue, 358 F. App'x 274, 276 (2d Cir. 2009). Where the hypothetical is based on an ALJ's RFC analysis, which is supported by substantial facts, the hypothetical is proper. Id. at 276-277.
Because the ALJ found that plaintiff's nonexertional limitations would narrow the range of work that plaintiff could perform, the ALJ utilized the services of a VE. (T. 46-50). The ALJ asked the VE to assume an individual of plaintiff's age, education, and work experience who: could lift and carry twenty pounds occasionally and ten pounds frequently; retained the ability to understand and follow simple instructions and directions and to perform simple tasks independently; could maintain attention and concentration for simple tasks; could regularly attend to a routine and maintain a schedule; could maintain attention and concentration for simple tasks; could handle simple, repetitive, work-related stress and could make occasional decisions directly related to the performance of simple tasks in a position that did not require supervision or management of others. (T. 46). The individual should avoid work that required more complex interaction or joint effort to achieve work goals, and could have no contact with the public. (Id.). The VE testified that there were several representative occupations in the national economy that such an individual could perform. (T. 47).
Plaintiff argues that because the ALJ erred with respect to her RFC analysis, the hypothetical question did not take all of plaintiff's physical and mental limitations into account. (Pl.'s Br. at 15). However, because this court has found that the ALJ's findings regarding plaintiff's RFC were supported by substantial evidence, her hypothetical question that mirrored the RFC and the resulting reliance upon the VE testimony were similarly supported by substantial evidence.
