CHRISTIAN F. HUMMEL, Magistrate Judge.
Currently before the Court, in this Social Security action filed by Marc C. ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. § 405(g), are Plaintiff's motion for judgment on the pleadings and Defendant's motion for judgment on the pleadings. (Dkt. Nos. 12 and 13.) 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. The Commissioner's decision denying Plaintiff's disability benefits is affirmed, and Plaintiff's Complaint is dismissed.
Plaintiff was born in 1978, making him 35 years old at his amended alleged onset date and 38 years old at his date last insured. Plaintiff reported completing the twelfth grade. Plaintiff has past work as a package delivery driver (classified as a truck driver by the vocational expert at the administrative hearing). At the initial level, Plaintiff alleged disability due to disc degeneration, Parkinson's disease ("Parkinsonism"), tremors, carpal tunnel syndrome, obstructive sleep apnea, morbid obesity, sleep disorder, and muscle spasms.
Plaintiff applied for a period of disability and disability insurance benefits on May 18, 2015, and initially alleged an onset of disability dated October 6, 2010. Plaintiff subsequently amended his alleged onset date to February 1, 2013. Plaintiff's application was initially denied on July 24, 2015, after which he timely requested a hearing before an Administrative Law Judge ("ALJ"). Plaintiff appeared at a hearing before ALJ Robert Gonzalez on April 6, 2017. (T. 21-53)
Generally, in his decision, the ALJ made the following seven findings of fact and conclusions of law. (T. 12-17.) First, the ALJ found that Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2016. (T. 12.) Second, the ALJ found that Plaintiff did not engage in substantial gainful activity during the period from his alleged onset date of February 1, 2013, through his date last insured of December 31, 2016. (
Plaintiff, appearing
Second, Plaintiff argues that the ALJ did not adequately evaluate Plaintiff's credibility. (Dkt. No. 12 [Pl.'s Mem. of Law] at 1, 3-4.) Specifically, Plaintiff argues that he has multiple medically determinable impairments in the record that can reasonably be expected to cause his alleged symptoms and that there is objective medical evidence supporting his statements concerning the intensity, persistence, and limiting effects his impairments have on his activities of daily living. (
Third, Plaintiff argues that the ALJ did not properly evaluate and consider the type, dosage, and effectiveness of medications concerning both precipitating and aggravating factors regarding Plaintiff's impairments. (Dkt. No. 12 [Pl.'s Mem. of Law] at 2, 4-5.) Specifically, Plaintiff argues that he takes multiple medications to treat his conditions and these medications have many side effects which affect his activities of daily living. (
Fourth, Plaintiff argues that the ALJ erred when assessing an RFC for sedentary work because it does not take into consideration Plaintiff's complaints of pain and limitations, which although subjective, are supported by objective medical evidence. (Dkt. No. 12 [Pl.'s Mem. of Law] at 2, 5.) Specifically, Plaintiff argues that it is not reasonable to conclude he can frequently handle, finger, and reach in all directions bilaterally because the record contains evidence of upper extremity radicular symptoms with increasing hand numbness and reduced grasp strength. (
Plaintiff further argues that a February 2017 MRI of the cervical spine (indicating a disc herniation impinging on the left root sleeve at C2-C3, a disc herniation at C4-05 causing minimal impingement, and a disc herniation at C7-T1 impinging on the left root sleeve) shows evidence of pain and it is reasonable to conclude that he does not have the capability to frequently flex, extend, and rotate the neck as found in the RFC. (Dkt. No. 12 [Pl.'s Mem. of Law] at 5.) Plaintiff also points to a December 2014 MRI to indicate there is objective medical evidence that he is experiencing pain and that this MRI stated Plaintiff has moderately severe left-sided neuroforaminal stenosis. (
Fifth, Plaintiff argues that the ALJ overlooked the evidence of record which Plaintiff asserts clearly shows he meets Listing 1.04A. (Dkt. No. 12 [Pl.'s Mem. of Law] at 2, 6-7.) Specifically, Plaintiff points to the MRIs from December 2014 and February 2017 showing evidence of nerve root compression as well as his history of cervical radiculopathy, a limited range of motion in his neck, a loss of grip strength on the right, and a diminished sensory exam. (
Defendant makes three arguments in support of her motion for judgment on the pleadings. (Dkt. No. 13, at 6-14 [Def.'s Mem. of Law].) First, Defendant argues that the ALJ performed a proper analysis of the Listings of Impairments at Step Three. (
Second, Defendant argues that the record was properly developed. (Dkt. No. 13, at 6-14 [Def.'s Mem. of Law] at 9-10.) Specifically, Defendant argues that Plaintiff was represented by an attorney at the hearing level, the attorney did not indicate that there were any outstanding medical records, and Plaintiff testified that he did not have any other treatment aside from eRiver Neurology. (
Third, Defendant argues that the ALJ properly considered Plaintiff's RFC and credibility. (Dkt. No. 13, at 6-14 [Def.'s Mem. of Law] at 10-14.) Specifically, Defendant argues that the ALJ properly reviewed all of the pertinent medical evidence of record and provided a sound rationale for the RFC finding, which is supported by the medical evidence as a whole. (
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled.
"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."
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, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process.
"Plaintiff has the burden of proof at step three to show that her impairments meet or medically equal a Listing."
Here, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment and noted that Listing 1.02, Listing 1.04, and Listing 11.06 were considered. (T. 12-13.) Plaintiff argues that the ALJ overlooked the evidence of record which Plaintiff asserts clearly shows he meets Listing 1.04A and that his obesity should be considered in meeting the requirements of Listing 1.04. (Dkt. No. 12, at 6-7 [Pl.'s Mem. of Law]; citing T. 221-22, 271-72, 274.) The Court finds these arguments unpersuasive.
First, the ALJ's overall decision indicates he adequately considered the evidence of record, including the evidence cited by Plaintiff in support of his argument that he meets Listing 1.04A. (T. 12-15, 221-22, 271-72, 274.) As indicated by Defendant, the records cited by Plaintiff do indicate a disc herniation impinging on the left root sleeve at C2-C3, but they do not support the existence of sensory or reflex loss as required by Listing 1.04A because there is no evidence in the record of motor loss including atrophy with associated muscle weakness. (Dkt. No. 13, at 7-9 [Def.'s Mem. of Law]; T. 274.)
Second, the ALJ explicitly stated that Plaintiff's disorder of the spine did not meet the severity requirements of Listing 1.04, "including but not limited to evidence of nerve root compression with sensory or reflex loss; spinal arachnoiditis or spinal stenosis resulting in pseudoclaudication." (T. 13.) Further, the ALJ specifically noted Plaintiff's obesity in conjunction with Social Security Rulings ("SSRs") 00-3p and 02-01p and indicated that, even with this consideration, the evidence failed to establish Plaintiff's impairments or combination of impairments met or medically equaled the requirements of any listed impairment. (
For the reasons above, the ALJ's findings regarding Plaintiff's impairments at Step Three are supported by substantial evidence. As such, remand is not required.
RFC is defined as "`what an 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."
When assessing a claimant's RFC, an ALJ is entitled to rely on opinions from both examining and non-examining State agency medical consultants because these consultants are qualified experts in the field of social security disability.
In determining whether a claimant is disabled, the ALJ must also make a determination as to the credibility of the claimant's allegations. "`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."
Although the claimant has the general burden of proving that he or she has a disability within the meaning of the Social Security Act, "`the ALJ generally has an affirmative obligation to develop the administrative record'" due to the non-adversarial nature of a hearing on disability benefits.
"Where there are no obvious gaps in the administrative record, and where the ALJ already possesses a `complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim."
Here, the ALJ found that Plaintiff has the RFC to perform a modified range of sedentary work. (T. 13.) In so doing, the ALJ summarized the medical evidence of record including the consultative physical examination by Dr. Graham as well as Plaintiff's treatment history, subjective complaints, and testimony. (T. 14-15.) The ALJ afforded slight weight to Dr. Graham's opinion (which indicated that Plaintiff had no exertional limitations) because this opinion was not consistent with Plaintiff's treatment history and did not take into account his hand trem ors noted on examination. (T. 15, 250.) The ALJ noted that the record did not contain any opinions from treating or examining physicians indicating Plaintiff was currently disabled. (T. 15.) The ALJ further noted that Plaintiff's work history showed that he worked prior to the onset date and left due to his condition, and that the medical evidence supported that Plaintiff could not engage in his past work, but could engage in less demanding sedentary exertional work. (
On assessing Plaintiff's credibility, the ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence in the record. (T. 14.) The ALJ indicated that Plaintiff had described daily activities which were not limited to the extent one would expect, including telling the consultative examiner that he was able to care for his needs and do some limited cooking and shopping as well as testifying that he did some limited driving. (T. 14-15.) The ALJ noted that Plaintiff's treatment for his allegedly disabling impairments included medication management and an attempt at physical therapy, but that Plaintiff had never been hospitalized for his conditions nor received any emergency room care and he had not undergone any surgery or significant pain management treatment. (T. 15.) The ALJ also noted that treatment notes reflected decreased symptoms of Parkinson's disease with medication management and there was no indication by treatment reports that he suffered from any significant side effects to his medication. (
Plaintiff argues that the ALJ erred when assessing the RFC because the ALJ did not discuss MRIs in his decision, the RFC does not take into consideration Plaintiff's complaints of pain and limitations, and it is not reasonable to conclude that he can frequently handle, finger and reach in all directions bilaterally or frequently flex, extend and rotate the neck. (Dkt. No. 12, at 2, 5-6 [Pl.'s Mem. of Law].) Plaintiff also argues that the ALJ erred in failing to contact Plaintiff's treating sources to establish his RFC or to request additional evidence and/or clarification regarding his impairments/RFC and that the record contains no opinions, notes, or range of motion measurements related to his physical therapy treatment. (
First, the ALJ's overall decision indicates that he appropriately considered the various evidence of record in making his RFC and credibility determinations. (T. 13-15.) The ALJ explicitly stated that he had considered all symptoms and the extent to which these 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 SSR 96-4p. (T. 13.) The ALJ also indicated he had considered the opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (
Regarding the credibility determination, the ALJ further stated that, in evaluating Plaintiff's symptoms, including pain, under factors described in 20 C.F.R. § 404.1529(c)(3) and SSR 16-3p, there were several reasons why Plaintiff's allegations of the nature, intensity, persistence and limiting effects of those symptoms were not consistent with the medical signs, laboratory findings and/or other evidence of record which limited the capacity for work-related activities. (T. 14.) The ALJ went on to list and explain those reasons, which included Plaintiff's description of his daily activities, his treatment history, and inconsistency between Plaintiff's symptoms/related limitations and the evidence of record. (T. 14-15.) The ALJ explicitly addressed the type, dosage, effectiveness, and side effects of any medications Plaintiff was taking or had taken to alleviate pain or other symptoms and concluded that it would not prevent him from engaging in the determined RFC. (T. 15.) Further, the ALJ also noted that the record did not contain any opinions from treating or examining physicians indicating Plaintiff was currently disabled and that Plaintiff's work history showed he worked prior to the onset date and left due to his condition. (
Second, the Court finds that the ALJ properly developed the record and did not fail in his affirmative duty to develop the record. As indicated by Defendant, the Court notes that Plaintiff was represented by attorney Mitchell Spinac at the hearing level. (Dkt. No. 13, at 9-10 [Def.'s Mem. of Law]; T. 10, 21, 23.) Further, the ALJ discussed the evidence with Mr. Spinac at the hearing and confirmed that the record was up to date with all of the medical records. (T. 24-26, 30-31, 52.)
Third, although somewhat brief in his discussion, the ALJ did adequately discuss the evidence of record in making his findings. (T. 14-15.) Further, although Plaintiff argues that the MRIs were not discussed in the decision, the ALJ was not required to discuss "in depth every piece of evidence contained in the record, so long as the evidence of record permits the Court to glean the rationale of an ALJ's decision.'"
For the reasons above, the Court finds that the RFC and credibility determinations are supported by substantial evidence and that the ALJ fulfilled his duty to develop the record. Remand is therefore not required on these bases.
Karen Southwick, Olinsky & Shurtliff, Syracuse, NY, for plaintiff-appellant.
Elizabeth D. Rothstein, Special Assistant U.S. Attorney (Stephen P. Conte, Regional Chief Counsel Region II, Office of the General Counsel, Social Security Administration, New York, NY, of counsel), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for defendantappellee.
PRESENT: JOSEPH M. MCLAUGHLIN, JOSÉ A. CABRANES, SUSAN L. CARNEY, Circuit Judges.
We assume the parties' familiarity with the factual history and proceedings below.
Briefly, A.O. is a male child who was born on December 15, 2001. By his second birthday, A.O. started receiving "early intervention" special education and counseling services to address delayed speech and motor skills, inattentiveness and lack of focus, and aggressive/impulsive behavior. When he reached school age, A.O. was maintained in a special education setting, but was "mainstreamed" into regular classrooms for part of the day.
On January 8, 2007, Frye filed an application for supplemental security income ("SSI") based on A.O.'s social interaction, learning, and behavioral difficulties. This application was denied by the Social Security Administration ("SSA") on May 9, 2007. Frye appealed the denial. On June 30, 2009, a hearing was held before an Administrative Law Judge ("ALJ") of the SSA. Frye and A.O., represented by counsel, testified at the hearing. The ALJ considered the case and, in a September 2, 2009 decision, found that A.O. was not disabled within the meaning of the Social Security Act because his impairments did not meet, "medically equal," or "functionally equal" any impairment listed under 20 C.F.R. Part 404, Subpart P., Appendix 1.
On January 27, 2010, Frye commenced a civil action in the District Court challenging the ALJ's decision. On November 12, 2010, United States Magistrate Judge Andrew T. Baxter issued a Report and Recommendation (the "R & R") finding that substantial evidence supported the Commissioner's decision and recommending that the District Court grant judgment on the pleadings in favor of the Commissioner. See Frye v. Comm'r of Soc. Sec., No. 10-cv-0098, 2010 WL 6426346 (N.D.N.Y. Nov. 12, 2010). Frye filed objections to the R & R on November 26, 2010.
On March 31, 2011, the District Court issued a decision that adopted the Magistrate Judge's R & R in its entirety, affirmed the Commissioner's decision denying disability benefits, and granted defendant's motion for judgment on the pleadings. See Frye v. Astrue, No. 10-cv-0098, 2011 WL 1301538 (N.D.N.Y. Mar. 31, 2011). Judgment was entered that same day. Frye timely filed a Notice of Appeal on April 14, 2011.
On appeal, Frye principally argues that the District Court erred in dismissing her complaint because the ALJ's determination that A.O. did not meet any listing requirement was not supported by substantial evidence.
On appeal, we conduct a plenary review of the record to determine whether there is substantial evidence to support the Commissioner's decision and whether the correct legal standards have been applied. See, e.g., Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996).
The SSI program provides benefits to needy aged, blind, or disabled individuals who meet certain statutory income and resource limitations. 42 U.S.C. § 1381. A.O.'s SSI application was adjudicated under the statutory standard enumerated in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-193, § 211(a), 110 Stat. 2105, 2188-89 (codified at 42 U.S.C. § 1382c(a)(3)(C)) (the "Act"). The definition of disability for children under the Act requires the existence of medically determinable physical or mental impairments "which result[] in marked and severe functional limitations," and which could be expected to result in death or which have lasted or could be expected to last for a
Pursuant to Congressional direction, the SSA published regulations to implement the childhood disability provisions of the Act. The regulations define the statutory standard of "marked and severe functional limitations" in terms of listing-level severity — that is, whether a child's impairments meet, medically equal, or functionally equal the severity of an impairment in the listing. 20 C.F.R. §§ 416.902, 416.906, 416.926a(a). The regulations also establish a sequential evaluation process for determining disability for children, which requires a child to show that: (1) he was not employed; (2) he had a "severe" impairment or combination of impairments; and (3) his impairment or combination of impairments was of listinglevel severity. Id. § 416.924a(b)(1). Functional limitations are to be evaluated in six "domains": (i) acquiring and using information; (ii) attending and completing tasks; (iii) interacting and relating with others; (iv) moving about and manipulating objects; (v) caring for oneself; and (vi) health and physical well-being. Id. § 416.926a(b)(1). A medically determinable impairment or combination of impairments functionally equals a listed impairment if it results in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain. Id. § 416.926a(a).
Following our review of the record, we find that the Commissioner's decision was supported by substantial evidence. Although the ALJ recognized that A.O. experienced significant impairments related to attention deficit hyperactivity disorder, oppositional defiant disorder, parent-child relational problems, learning disabilities, and motor tics, he found that A.O.'s impairments did not meet or "medically equal" a listed impairment contained in 20 C.F.R. Part 404, Subpart P., Appendix 1. The ALJ further concluded that A.O.'s impairments did not "functionally equal" a listed impairment, insofar as A.O. did not have marked limitations in two domains of functioning or extreme limitation in one domain.
In reaching these conclusions, the ALJ relied in part on the report of a State agency psychiatrist which stated that A.O.'s impairments did not meet, medically equal, or functionally equal a listed impairment. 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. See 20 C.F.R. § 416.927(e)(2)(i). It was appropriate for the ALJ to rely on the report, as the State agency psychiatrist was the only expert of record who specifically assessed whether A.O.'s impairments met or equaled a listed impairment.
Other credible evidence in the record provides additional support for the ALJ's determination that A.O.'s impairments did not meet or equal a listed impairment. For example, educational evidence in the
Accordingly, we find no basis for questioning, much less disturbing, the judgment of the District Court dismissing Frye's complaint.
We have considered all of Frye's arguments on appeal and find them to be without merit. For the reasons stated above, the judgment of the District Court is
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the September 30, 2009 judgment of the district court is
AFFIRMED.
Jaya A. Shurtliff, Olinsky & Shurtliff, Syracuse, NY, for Appellant.
Thomas C. Gray, Special Assistant United States Attorney (Stephen P. Conte, Acting Regional Chief Counsel Region II, Social Security Administration, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, New York, NY, for Appellee.
PRESENT: JOSEPH M. McLAUGHLIN, CHESTER J. STRAUB and REENA RAGGI, Circuit Judges.
Carvey contends that the administrative law judge ("ALJ") erred in failing to give controlling weight to the disability opinions of two treating physicians, Drs. Padma Ram and Michael Gabris. A treating physician's opinion is entitled to controlling weight with respect to the nature and severity of a claimed impairment if it 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); see also Halloran
Carvey's disability claim is based on the residual effects of a relatively mild May 2003 stroke, together with poorly controlled Type II diabetes, pulmonary edema, cardiac abnormality, obesity, sleep apnea, disc protrusion, carpal tunnel syndrome, chronic radiculopathy, pericarditis, and anxiety disorder. In March 2004, Dr. Ram opined that Carvey was unable to perform any activity that could raise his heart rate, noting that her opinion was "per Dr. Simmons," i.e., Gerald Simmons, Carvey's treating physician from February through November 2003, and "per . . . cardiologist," presumably Dr. Gabris.
In a letter dated October 14, 2004, Dr. Gabris stated that Carvey could perform sedentary work provided no lifting was involved. In November 2004, Dr. Gabris stated that Carvey could stand or walk for less than two hours in a typical workday and sit for only four hours a day. A review of Carvey's treating physician challenge properly focuses on these noted limitations because, in the Social Security context, a person must be able to lift ten pounds occasionally, sit for a total of six hours, and stand or walk for a total of two hours in an eight-hour workday to be capable of "sedentary work." See Rosa v. Callahan, 168 F.3d 72, 78 n. 3 (2d Cir.1999); 20 C.F.R. § 404.1567(a).
As for limits on Carvey's ability to sit, stand, or walk noted by Dr. Gabris in November 2004, the opinion is at odds with the view expressed in Dr. Gabris's February 2005 office notes that Carvey's "activity [wa]s unlimited with the exception to heavy lifting." It is further contradicted by Dr. Simmons, who, on authorizing Carvey's return to work, noted no sitting, standing, or walking limitations, only a lifting limitation. Indeed, in May 2003,
Further, because the record evidence was adequate to permit the ALJ to make a disability determination, we identify no merit in Carvey's claim that the ALJ was obligated sua sponte to recontact the treating physicians, see Perez v. Chater, 77 F.3d 41, 47-48 (2d Cir.1996); 20 C.F.R. § 404.1512(e), assuming arguendo that such a claim is even preserved for our review, but see Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009) (holding that claimant represented by counsel in district court must present argument in that forum to preserve it for appellate review).
Carvey submits that, in finding his testimony "not entirely credible," the ALJ failed to give proper weight to his strong work history. In reviewing this challenge, we are mindful that it is the function of the Commissioner, not reviewing courts, to appraise witness credibility. See Aponte v. Sec'y Dep't of HHS, 728 F.2d 588, 591 (2d Cir.1984).
To be sure, "a good work history may be deemed probative of credibility." Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir.1998); see also Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.1983) (noting that "[a] claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability"). Work history, however, is "just one of many factors" appropriately considered in assessing credibility. Schaal v. Apfel, 134 F.3d at 502.
In rejecting Carvey's testimony as to the severity of his impairment, the ALJ reasonably relied on contrary record evidence, including extensive objective medical test results, the aforementioned medical opinions, and Carvey's own account of his participation in a range of activities such as shopping, cooking, childcare, and operating a riding lawnmower, as well as attending school functions, cookouts, and auto races. See 20 C.F.R. § 404.1529(c)(3)(i). Further, the ALJ did not ignore Carvey's work history. Rather, he reasonably viewed Carvey's ability to engage in "heavy work activity" notwithstanding
On this record, we identify no error in the ALJ's credibility assessment.
Finally, Carvey contends that the ALJ erred in relying on the testimony of a vocational expert because the expert's opinion was based on a flawed assessment of Carvey's residual functional capacity. Because we have already concluded that substantial record evidence supports that assessment, we necessarily reject Carvey's vocational expert challenge. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004) (noting that Commissioner may rely on testimony of vocational expert); Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir.1983) (holding that vocational expert's testimony satisfied Commissioner's evidentiary burden where based on substantial record evidence).
LAWRENCE E. KAHN, District Judge.
Plaintiff filed an application for Supplementary Security Income ("SSI") and disability insurance benefits ("DIB") on June 25, 2007, alleging disability beginning on April 28, 2007. Dkt. No. 9 ("Transcript") at 106-13, 136. After his initial application was denied, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 76. A video hearing was held on September 10, 2009, before ALJ John S. Pope. Id. at 19-28. Plaintiff appeared at the hearing with her attorney and testified. Id. at 19, 29, 31.
On November 4, 2009, the ALJ issued a written decision finding that Plaintiff was not disabled and therefore not entitled to benefits. Id. at 19-28. The ALJ's decision became the Commissioner's final decision on June 28, 2011, when the Appeals Council denied Plaintiff's request for review. Id. at 3-5. Plaintiff, through counsel, timely filed his appeal and commenced this action on August 4, 2011. Dkt. No. 1 ("Complaint"). Defendant filed an Answer on January 13, 2012. Dkt. No. 8.
Plaintiff filed his supporting Brief on April 11, 2012. Dkt. No. 12 ("Plaintiff's Brief"). On May 29, 2012, Defendant filed a Brief in opposition. Dkt. No. 14 ("Defendant's Brief").
In his Report-Recommendation, Judge Hines recommended that the Commissioner's decision be reversed and the case be remanded. Report-Rec. For the following reasons, the Court adopts the Report-Recommendation in its entirety and remands this matter to the ALJ.
The Court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error." Farid v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y.2008) (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007)) (citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
The substantial evidence standard requires evidence amounting 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). If the evidence is deemed susceptible to more than one rational interpretation, then the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982). 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). That is, a 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) (citing Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978)).
The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act.
Specifically, Judge Hines concludes that at Step Four, the ALJ neglected to perform the detailed assessment necessary to determine Plaintiffs RFC and instead broadly stated that Plaintiff was capable of performing unskilled work without addressing medical findings that might challenge such a conclusion. Id. at 15-18. In recommending that the Court remand on this issue, Judge Hines points both to case law holding that "an administrative judge may not avoid conducting such a detailed assessment by merely indicating that the claimant can perform simple, unskilled work"
Because of the error in reaching an RFC determination, Judge Hines also recommends that the Court find that the ALJ erred in performing his Step Five analysis. Id. at 18-20. "Specifically, ALJ Pope's hypothetical question to the vocational expert did not include limitations related to Hendrickson's stress or three of the five other moderate impairments listed earlier." Id. at 18-19.
In his Objections, Defendant argues that the Report-Recommendation should not be adopted because: "(1) it was based on a misreading of the evidence in the record; and (2) it improperly characterized the resulting evidentiary disagreement with the ALJ's factual analysis and findings as a legal error." Obj. at 1. As laid out in the Objections, these two arguments overlap substantially, as both concern Judge Hines's conclusion that the ALJ erred in his analysis at Step Four by failing to address certain findings made by consultative physicians. Essentially, the two arguments combine to state that the RFC determination (and the resultant Step Five determination) was supported by substantial evidence and that the ALJ's determination was not legally erroneous.
Defendant contends that the opinions of a state agency psychiatric consultative examiner, Kristen Barry, Ph.D ("Dr.Barry"), and a state agency psychology medical consultant, E. Kamin, Ph.D. ("Dr.Kamin"), support the ALJ's RFC assessment. Obj. at 1-3. Defendant asserts that a "plain reading of the record shows that Dr. Kamin considered Dr. Barry's report in reaching his opinion . . . and that the ALJ essentially adopted Dr. Kamin's opinion in determining Plaintiffs [RFC]." Id. at 2. In support of this claim, Defendant emphasizes Dr. Kamin's conclusion that Plaintiff "is found capable of work that does not involve working with others"
Upon a thorough review of the record, the Court concludes that the ALJ's RFC determination was deficient. Defendant is certainly correct that the ALJ clearly reviewed Dr. Kamin's report and adopted Dr. Kamin's conclusion regarding Plaintiffs ability to work with others. However, that conclusion was not the sole finding in Dr. Kamin's report; the report also mentions Plaintiffs inability to handle stress and make decisions. Tr. at 391. A discussion of these other limitations is nowhere to be found. Instead, the ALJ simply states that Plaintiff is capable of performing unskilled work. Tr. at 23.
Absent any discussion of Plaintiffs other limitations identified by the consultative physicians, the ALJ's determination that Plaintiff possesses an RFC to perform unskilled work is neither supported by substantial evidence nor consistent with Social Security Rulings or case law. In SSR 85-15, the Commisioner clearly "emphasize[d] the importance of thoroughness in evaluation on an individualized basis" in cases involving the RFC of claimants suffering from stress-related disorders and mental illness. SSR 85-15, 1985 WL 56857, at *5 (Jan. 1, 1985). Further, "[b]ecause response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job." Id. at *6. Therefore, "[a]ny impairment-related limitations created by an individual's response to demands of work . . . must be reflected in the RFC assessment." Id. "[W]hen making findings about a claimant's RFC, an ALJ may not avoid conducting such a detailed assessment by merely indicating that the claimant can perform simple, unskilled work." Thompson, 2012 WL 2175781, at *13 (citing Hudson v. Comm'r. of Soc. Sec., No. 5:10-CV-300, 2011 WL 5983342 at *9-10 (D.Vt. Nov. 2, 2011); see also Sweat, 2011 WL 2532932, at *6 ("[P]laintiff argues that the ALJ did not adequately account for her difficulties dealing with stress. This argument is meritorious and a remand should be ordered on this basis.").
In this case, the ALJ made no such findings as to the relationship between Plaintiffs other limitations and his ability to perform "unskilled work." Further, the cases that Defendant cites in support of his contention that the ALJ did not err are inapplicable to the present case. See Obj. at 7. Unlike the instant matter, the cited cases involved situations where the ALJ's determination was heavily supported such that the Second Circuit could clearly discern the ALJ's rationale and any failure to address some items was deemed harmless. Id. (citing Lazore v. Astrue, 443 F. App'x 650, 653 (2d Cir.2011); Petrie v. Astrue, 412 F. App'x 401, 406-07 (2d Cir.2011); Zabala v. Astrue, 595 F.3d 402, 407 (2d Cir.2010)). Here, the ALJ has provided no discussion of Plaintiff's ability to cope with stress or of the reason why unskilled work might be appropriate given Plaintiff's unmentioned limitations.
Therefore, the Court approves and adopts Judge Hines's recommendation that this matter be remanded so that the ALJ may reassess Plaintiffs RFC and Step Five determinations consistent with this Decision and Order.
U.S. SOCIAL SECURITY ADMIN., OFFICE OF REG'L GEN. COUNSEL — REGION II, 26 Federal Plaza, Room 3904, OF COUNSEL: TOMASINA DIGRIGOLI, ESQ., New York, NY 10278, Counsel for Defendant.
GLENN T. SUDDABY, Chief United States District Judge
A district court reviewing a magistrate judge's Report and Recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (C). Parties may raise objections to the magistrate judge's Report and Recommendation, but they must be "specific written objections," and must be submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); accord, 28 U.S.C. § 636(b)(1)(C). When no objection is made to a report and recommendation, the Court subjects that report and recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) ("I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.") (internal quotation marks and citations omitted).
After carefully reviewing the relevant papers herein, including Magistrate Judge Carter's thorough Report and Recommendation, the Court can find no clear error in the Report and Recommendation. Magistrate Judge Carter employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 14.)
LACHMAN & GORTON, 1500 East Main St., P.O. Box 89, OF COUNSEL: PETER A. GORTON, ESQ., Endicott, NY 13761-0089, Counsel for Plaintiff.
U.S. SOCIAL SECURITY ADMIN., OFFICE OF REG'L GEN. COUNSEL-REGION II, 26 Federal Plaza-Room 3904, OF COUNSEL: TOMASINA DIGRIGOLI, ESQ., New York, NY 10278, Counsel for Defendant.
William B. Mitchell, Carter U.S. Magistrate Judge.
Currently before the Court, in this Social Security action filed by Jamal Warren ("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. 10, 11.) For the reasons set forth below, it is recommended that Plaintiff's motion be denied and Defendant's motion be granted.
Plaintiff was born on August 26, 1993. (T. 207.) He completed high school with an individual education program ("IEP") diploma. (T. 324.) Generally, Plaintiff's alleged disability consists of mental illness, learning disability, right leg injury, poor vision, and speech impairment. (T. 233.) His alleged disability onset date is November 20, 2003. (T. 92.) He has no past relevant work.
On January 7, 2013, Plaintiff applied for child's insurance benefits under Title II, and Supplemental Security Income ("SSI") under Title XVI, of the Social Security Act. (T. 92, 200.) Plaintiff's applications were initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On October 23, 2014, Plaintiff appeared before the ALJ, John P. Ramos. (T. 32-61.) On December 12, 2014, ALJ Ramos issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 8-31.) On September 14, 2015, the Appeals Council ("AC") denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this Court.
Generally, in his decision, the ALJ made the following five findings of fact and conclusions of law. (T. 13-26.) First, the ALJ found that Plaintiff had not yet attained age 22 as of April 1, 2012 and Plaintiff had not engaged in substantial gainful activity since April 1, 2012. (T. 13.) Second, the ALJ found that Plaintiff had the severe impairments of intellectual disability and Blount's disease status pose bilateral osteotomy. (T. 14.) Third, the ALJ found that Plaintiff did not have an impairment that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 15-18.) Fourth, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform less than a full range of sedentary work. (T. 18.)
In response, Defendant makes three arguments. First, Defendant argues that the ALJ properly considered and assessed Plaintiff's cognitive limitations. (Dkt. No. 11 at 6-10 [Def.'s Mem. of Law].) Second, Defendant argues that the ALJ properly found that Plaintiff's mental impairments did not meet section 12.05C of the Listings. (Id. at 11-12.) Third, and lastly, Defendant argues that the ALJ properly found that Plaintiff was not disabled as step five of the sequential evaluation process. (Id. at 13-15.)
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it 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."); 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, 91 S.Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See 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. See 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). The five-step process is as follows:
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
For ease of analysis, Plaintiff's arguments will be addressed out of order and in a consolidated manner.
If an ALJ determines that a plaintiff has a severe mental or physical impairment at step two of the disability evaluation procedure, the ALJ must then determine whether the impairment meets the criteria of any impairment listed in Appendix 1. 20 C.F.R. §§ 404.1520(a) (4)(iii)(d), 416.920(a)(4)(iii)(d). The impairments listed in Appendix 1 are considered severe enough to prevent a plaintiff from doing any gainful activity. Id. at §§ 404.1525(a), 416.925(a). If a plaintiff's impairment, or combination of impairments, matches one listed in Appendix 1, and satisfies the duration requirement in 20 C.F.R. §§ 404.1509, 416.909, then the ALJ should generally find the plaintiff disabled without considering the plaintiff's age, education, and work experience. Id. at §§ 404.1520(d), 416.920(d).
To match an impairment listed in Appendix 1, a plaintiff's impairment "must meet all of the specified medical criteria" of a listing. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (citing 20 C.F.R. § 404 Subpt. P, App. 1). "An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. An impairment may also be "medically equivalent" to a listed impairment if it is "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 404.1526(a). Although an ALJ may award benefits at step three, a plaintiff who fails to prove her impairment matches or equals one listed in Appendix 1 is not denied benefits, but rather, the ALJ must proceed to step four. See id. at §§ 404.1520(e), 416920(e).
At step three the ALJ determined that Plaintiff did not have an impairment, or combination of impairments, that met or medically equaled the severity of a Listing. (T. 15.) The ALJ determined that Plaintiff's mental impairment did not meet the criteria of Listing 12.05C. (Id.) The ALJ also reviewed the criteria of Listing 12.05D. (T. 16-17.) Listing 12.05 addresses intellectual disability; and claimants are per se disabled if the requirements of paragraphs A, B, C, or D are met. see 20 C.F.R. §§ 404.1525(a), 416.925(a).
Listing 12.05 requires, "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. § 404, Subpart P, Appendix 1, Listing 12.05. The requirements of paragraph C are met if the plaintiff has "[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." Id. Ultimately, the ALJ determined that Plaintiff did not meet Listing 12.05C because he did not have significant deficits in adaptive functioning. (T. 16.)
The record contained numerous intellectual testing, including IQ testing. In 1999, Plaintiff completed the Slossom Full Range IQ test, the Kaufman Brief Intelligence test, and the Stanford Binet Intelligence Scale Fourth Edition ("SB-IV"). (T. 337.) The Slossom test indicated a verbal score of 82 (low average), an abstract score of 70 (borderline), a quantitative score of 90 (average), a memory score of 76 (borderline), a performance score of 74 (borderline), and a full range score of 77 (borderline). (T. 337.) The Kaufman test indicated a vocabulary score of 82 (low average), a matrices score of 94 (average) and a composite score of 87 (low average). (Id.) The Stanford test indicated a verbal reasoning score of 80 (low average), abstract/ visual reasoning score of 68 (extremely low), a quantitative reasoning score of 72 (borderline), a short term memory score of 84 (low average), and a partial test composite of 71 (borderline). (Id.)
In 2002, Plaintiff again completed intelligence testing. He completed the Wechsler Intelligence Scale for Children — Third Edition (WISC-III) and received a performance IQ score of 62 (extremely low). (T. 337) He completed a Wechsler Individual Achievement Test — Second Edition (WIAT-II). (T. 338.) The WIAT-II indicated a word reading score of 66 (extremely low), a pseudo word decoding score of 66 (extremely low), a reading comprehension score of 62 (extremely low), a numerical operations score of 81 (low average), a math reasoning score of 62 (extremely low), a spelling score of 79 (borderline), and a written expression score of 72 (borderline). (Id.)
In 2005, Plaintiff completed more intelligence testing. He completed the Wechsler Abbreviated Scale of Intelligence (WASI), which indicated a full IQ of 58 (extremely low). (T. 338.) He completed the Kaufman Test of Educational Achievement—Brief (KTEA) and received a score of 63 (extremely low) in reading, a score of 49 (extremely low) in math, and a score of 63 (extremely low) in spelling. (Id.) Plaintiff was given the Adaptive Behavior Assessment System — Second Education (ABAS-II). Results of the ASAB-II, indicated a conceptual composite score of 96 (average), practical composite score of 105 (average), social composite score of 119 (high average), and a global adaptive composite score of 105 (average). (Id.)
In April of 2011, at age 17 years and 9 months, Plaintiff was administered the Wechsler Adult Intelligence Scale—Fourth Edition (WAIS-IV). (T. 336, 339.) The WAIS-IV results indicated a verbal comprehension score of 68 (extremely low), perceptual reasoning score of 58 (extremely low), a working memory score of 74 (borderline), a processing speed score of 79 (borderline), and a full scale IQ score of 63 (extremely low). (T. 339.) Notations indicated that Plaintiff was functioning at a similar cognitive level "as before." (T. 340.) Notations also indicated that Plaintiff's WAIS-IV scores signified that he had "great difficulty in reasoning using verbal information . . . and in doing more visual-spatial, hand-on tasks." (Id.) Plaintiff was also administered the Woodcock Johnson Tests of Achievement—Third Edition and scored "extremely low" in all areas indicating "significant weakness in all of the academic areas." (T. 341.) Plaintiff scored "extremely low" in all areas of the Adaptive Behavior Assessment System—Second Edition (ABAS-II). (T. 342.)
In making his determination, the ALJ relied on the Diagnostic and Statistical Manual of Mental Disorders, 5
Plaintiff specifically argues that the ALJ erred in his conclusion that Plaintiff has a high school education, because Plaintiff did not receive a regular education diploma, but instead an IEP diploma. (Dkt. No. 10 at 13-14 [Pl.'s Mem. of Law].) The ALJ noted at step five, not step three, that Plaintiff's education level was "at least high school." (T. 24); see 20 C.F.R. §§ 404.1564, 416.964. The ALJ did not discuss Plaintiff's type or level of education, outside of testing, at step three of his determination. (T. 15-18.) Elsewhere in his determination the ALJ noted that although Plaintiff was eligible for special education and classified as a child with an intellectual disability that did not necessarily mean that he was disabled under the adult rules of disability. (T. 21.)
To be sure, attendance in special education classes, and an education pursuant to an IEP, have been construed as factors indicative of deficits in adaptive functioning. Lyons v. Colvin, No. 7:13-CV-00614, 2014 WL 4826789, at *9 (N.D.N.Y. Sept. 29, 2014). Here, although Plaintiff received an IEP diploma, the ALJ relied on other significant evidence in the record in making his determination that Plaintiff did not have deficits in adaptive functioning. As noted by the ALJ, Plaintiff was able to do simple problem solving involving money, he was social, he was able to perform activities of daily living independently, and he was able to drive. (T. 16.)
Indeed, in his Function Report, Plaintiff indicated that he was able to shop for food, pay bills, count change, and play games. (T. 243.) Plaintiff informed the consultative examiner that he cooks, cleans, does laundry, shops once a month, showers and dresses himself daily, and listens to the radio and plays sports. (T. 365.)
Plaintiff cites to evidence in the record which he maintains provides substantial evidence to support a finding of deficits in adaptive functioning. (Dkt. No. 10 at 15-16 [Pl.'s Mem. of Law].) However under the substantial evidence standard of review, it is not enough for Plaintiff to merely disagree with the ALJ's weighing of the evidence or to argue that the evidence in the record could support her position. Plaintiff must show that no reasonable factfinder could have reached the ALJ's conclusions based on the evidence in record. See Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); see also Wojciechowski v. Colvin, 967 F.Supp.2d 602, 605 (N.D.N.Y. 2013) (Commissioner's findings must be sustained if supported by substantial evidence even if substantial evidence supported the plaintiff's position); see also Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (reviewing courts must afford the Commissioner's determination considerable deference and cannot substitute own judgment even if it might justifiably have reached a different result upon a de novo review).
Therefore, substantial evidence supported the ALJ's step three determination that Plaintiff did not meet Listing 12.05C because he did not have the requisite deficits in adaptive functioning and it is recommended that the ALJ's step three determination be upheld.
Plaintiff's RFC is the most he can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In assessing Plaintiff's RFC, the ALJ must consider "all of the relevant medical and other evidence." Id. at §§ 404.1545(a)(3)-(4), 416.945(a)(3)-(4). An RFC determination must account for limitations imposed by both severe and non-severe impairments. See Id. at §§ 404.1545(a)(2), 416.945(a)(2). An ALJ's RFC determination must be supported by substantial evidence in the record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Plaintiff argues that in formulating his RFC determination the ALJ erred because he failed to account for specific limitation imposed by consultative examiner, Sara Long, Ph.D. and the ALJ improperly assessed Plaintiff's cognitive functioning. (Dkt No. 10 at 6-12 [Pl.'s Mem. of Law].) Plaintiff does not argue that the ALJ erred in his physical RFC assessment.
On April 2, 2013, Dr. Long performed a psychiatric evaluation. (T. 380-383.) During her examination she observed that Plaintiff was cooperative with good social skills. (T. 381.) Dr. Long noted that Plaintiff was neat and well-groomed with appropriate eye contact. (Id.) On examination, Plaintiff occasionally stuttered and had to repeat himself; otherwise, his speech was clear with adequate expressive and receptive language. (T. 381.) Dr. Long observed that Plaintiff's thought processes were coherent, goal directed, with no indication of sensory or thought disorder. (Id.) During examination, Plaintiff displayed a full range of appropriate affect in speech and thought content. (Id.) Dr. Long noted that Plaintiff could not subtract three from 20, but could subtract three from 10. (Id.) Dr. Long noted that Plaintiff repeated three objects immediately and after five minutes; he repeated digits forward to four digits and backward to two. (Id.)
Regarding Plaintiff's cognitive functioning, Dr. Long stated that Plaintiff appeared to be functioning on a borderline to extremely low intellectual level (T. 382); however, his cognitive factors were not fully evaluated and prognosis might be re-evaluated after vocational counseling (T. 383).
In a medical source statement Dr. Long opined that Plaintiff was able to "follow and understand simple directions and instructions and to perform simple tasks independently." (T. 382.) She further opined that Plaintiff could maintain attention and concentration and was able to maintain a regular schedule. (Id.) Dr. Long stated that Plaintiff was able to relate adequately with others and was capable of adequate stress management. (Id.) She opined that Plaintiff appeared to have moderate to marked limitations in his ability to learn new tasks, perform complex tasks, and make appropriate decisions. (Id.)
Plaintiff argues that the ALJ erred in formulating his RFC determination because he afforded "great weight" to Dr. Long's opinion; however, he omitted her opinion that Plaintiff had moderate to marked limitations in his ability to learn new tasks and make appropriate decisions, which would preclude all work. (Dkt. No. 10 at 6-7 [Pl.'s Mem. of Law].) Here, the ALJ's mental RFC determination was supported by substantial evidence in the record.
In formulating his RFC, the ALJ afforded Dr. Long's opinion "great weight." (T. 23.) Plaintiff maintains that the ALJ erred in failing to not only account for all of Dr. Long's opinion, but also for failing to explain how his RFC was consistent with Dr. Long's opinion. (Dkt. No. 10 at 6-7 [Pl.'s Mem. of Law].) First, An ALJ does not have to strictly adhere to the entirety of one medical source's opinion. See Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013) ("Although the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole."), see also Zongos v. Colvin, No. 12-CV-1007, 2014 WL 788791, at *9 (N.D.N.Y. Feb. 25, 2014) (finding that it was within the ALJ's discretion to afford weight to a portion of a treating physician's opinion but not to another portion). Second, it is "not require[d] that ALJ have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability." Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); see also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (rejecting the proposition that the hearing officer must explicitly reconcile "every shred" of conflicting testimony). "In our review, we defer to the Commissioner's resolution of conflicting evidence." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
Despite her opinion that Plaintiff had moderate to marked limitations in his ability to learn new tasks and make work-related decisions, Dr. Long opined Plaintiff retained the ability to understand and follow simple directions and instructions, perform simple tasks independently, maintain attention and concentration, and maintain a regular schedule. (T. 382.) See Kifayeh v. Colvin, 99 F.Supp.3d 369, 378 (E.D.N.Y. 2015) (although consultative examiner opined that plaintiff could not learn new tasks, the doctor ultimately opined that plaintiff could perform simple tasks and make appropriate decisions and plaintiff reported he was able to self-groom and go to mosque which supported ALJ's mental RFC determination that plaintiff could perform simple, routine work); see Patterson v. Colvin, No. 14-C V-6224, 2015 WL 5036934, at *11 (W.D.N.Y. Aug. 26, 2015) ("Similarly, although [consultative examiner] stated that [Plaintiff's] ability to learn new tasks may be negatively affected by her reading difficulties, [the consultative examiner] also determined that, despite those limitations, [Plaintiff] retained the ability to understand and follow simple directions, perform simple tasks, maintain attention and concentration, maintain a schedule, make appropriate decisions, relate adequately with others, and adequately deal with stress."). Therefore, Dr. Long ultimately opined that Plaintiff could perform simple routine work despite his limitations. In addition, other medical evidence and testimony in the record supported the ALJ's mental RFC determination.
Dr. Kamin reviewed Plaintiff's record, including Dr. Long's examination. (T. 62-91.) Dr. Kamin opined that Plaintiff was not significantly limited in his ability to: carry out very short and simple instructions; preform activities within a schedule; maintain regular attendance and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distracted by them; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. (T. 67-69.) Dr. Kamin's opinion supported the ALJ's determination that Plaintiff could perform the basic mental demands of unskilled work.
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. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(e), 416.912(b)(6), 416.913(c), 416.927(e); Baszto v. Astrue, 700 F.Supp.2d 242, 249 (N.D.N.Y. 2010) ("[A]n 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.").
The ALJ's mental RFC determination was further supported by school records and Plaintiff's testimony. The ALJ noted that statements from Plaintiff's teachers suggested that Plaintiff was able to work in some capacity, but may lack motivation. (T. 21.) Plaintiff's teacher reported that he was not always eager to do work, but he was cooperative and would do what he knew was expected of him. (T. 345.) His teacher stated that in the "right setting" Plaintiff could be successful. (Id.) The ALJ also noted that Plaintiff was able to obtain a taxi license, do simple math involving money, prepare food, shop in stores, pay bills, count change, and drive. (T. 21.) Therefore, evidence provided by Plaintiff's teachers and Plaintiff's own testimony of his activities support the ALJ's mental RFC determination and further indicate that Plaintiff was capable of learning new tasks.
Plaintiff then contends that Dr. Long's conclusion, that Plaintiff had moderate to marked limitations, was too vague to support an RFC determination. (Dkt. No. 10 at 8 [Pl.'s Mem. of Law].) Plaintiff first admonishes the ALJ for failure to include specific limitations and then argues those limitations would not constitute substantial evidence even if the ALJ had included them. For the reasons discussed herein, the ALJ's mental RFC was supported by substantial evidence, namely, the medical opinions of Drs. Long and Kamin, statements by Plaintiff's teachers, and Plaintiff's own testimony.
Plaintiff next argues that the ALJ failed to properly account for Plaintiff's cognitive limitations in his RFC determination. (Dkt. No. 10 at 9-12 [Pl.'s Mem. of Law].) In support of his argument, Plaintiff specifically argues the ALJ improperly substituted his judgment for medical opinion by calling into question the veracity of Plaintiff's testing results and the ALJ failed to include testing limitations in his RFC determination. (Id. at 11-12.)
It is well within an ALJ's discretion to weigh the validity of multiple testing results. Here, the ALJ concluded that although Plaintiff has an intellectual disability, "his performance on standardized tests have varied significantly, calling into question the veracity of these test results." (T. 20.) An ALJ may reject an IQ score as invalid when it is inconsistent with the record. See Burnette v. Colvin, 564 Fed.Appx. 605, 608 (2d Cir. 2014) (ALJ properly exercised his discretion in affording little weight to an IQ score which was inconsistent with the record); see Baszto v. Atrue, 700 F.Supp.2d 242, 248 (N.D.N.Y. 2010) (collecting cases). The ALJ took into consideration Plaintiff's tests scores at steps three and four of his determination. In formulating his RFC, the ALJ determined that based on the record as a whole, including Plaintiff's test scores, medical evidence, and testimony, that Plaintiff retained the mental RFC to perform unskilled work. (T. 20-21, 23-24.)
Second, Plaintiff essentially asks the Court to reweigh the evidence before the ALJ. Plaintiff provided a summary of various test results which he contends the ALJ failed to properly take into account. (Dkt. No. 10 at 11-12 [Pl.'s Mem. of Law].) When applying the substantial evidence test to a finding that a plaintiff was not disabled, the Court "will not reweigh the evidence presented at the administrative hearing, . . . nor will it determine whether [the applicant] actually was disabled. [Rather,] [a]bsent an error of law by the Secretary, [a] court must affirm her decision if there is substantial evidence [in the record] to support it." Lefford v. McCall, 916 F.Supp. 150, 155 (N.D.N.Y. 1996) (citing White v. Shalala, 823 F.Supp. 521, 623 (N.D. Ind. 1993)). Because substantial evidence supported the ALJ's mental RFC determination, for the reasons stated herein, it is recommended that the RFC determination be upheld.
Plaintiff argues that the ALJ erred in his step five determination because he failed to call on the services of a VE. (Dkt. No. 10 at 16-18 [Pl.'s Mem. of Law].)
At step five in the sequential evaluation, the ALJ was required to perform a two part process to first assess Plaintiff's job qualifications by considering his physical ability, age, education, and work experience, and then determine whether jobs exist in the national economy that Plaintiff could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520(f), 416.920(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983). The second part of this process is generally satisfied by referring to the applicable rule of the Medical-Vocational Guidelines set forth at 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly called "the Grids" or the "Grid"). See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).
The Second Circuit has explained that the ALJ may not solely rely on the Grids if a non-exertional limitation "has any more than a `negligible' impact on a claimant's ability to perform the full range of work." Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (quoting Zahala v. Astrue, 595 F.3d 402, 411 (2d Cir. 2010)). A non-exertional impairment is non-negligible "when it . . . so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity." Zahala, 595 F.3d at 411. Whether VE testimony is required must be determined on a "case-by-case basis." Bapp 802 F.2d at 605-606. Further, "the mere existence of a non-exertional impairment does not automatically require the production of a vocational expert nor preclude reliance on the [Grids]." Id. at 603.
Pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1(c), the parties have
Lawrence D. Hasseler, Conboy, McKay Law Firm, Carthage, NY, for Plaintiff.
Andreea L. Lechleitner, Social Security Administration Office of Regional General Counsel, New York, NY, for Defendant.
VICTOR E. BIANCHINI, United States Magistrate Judge.
Plaintiff, through her attorney, Mr. Lawrence D. Hassleler, commenced this action on August 24, 2010, by filing a Complaint in the United States District Court for the Northern District of New York. (Docket No. 1). Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3). On February 18, 2011, 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. 16).
The relevant procedural history may be summarized as follows: Plaintiff, on behalf of her minor child, MK, initially applied for SSI on December 14, 2006, alleging disability beginning on May 1, 1997 (R. at 33).
Plaintiff, through counsel, timely commenced this action cm August 24, 2010. (Docket No. 1). The Commissioner interposed an Answer on October 6, 2010. (Docket No. 8). Plaintiff filed a supporting Brief on November 22, 2010. (Docket No. 12). The Commissioner filed a Brief in opposition on November 30, 2010. (Docket No. 14).
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 that the Commissioner's decision denying disability benefits be affirmed.
"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 ex rel. 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).
A child is deemed disabled under the Act if he has "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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 12 months." 42 U.S.C. § 1382c(a) (3)(C)(i). The Commissioner has established the following three-step sequential evaluation to determine whether a child is disabled: first, the ALJ must determine whether the child has engaged in "substantial gainful activity." 20 C.F.R. § 416.924(a), (b). If the child has engaged in substantial gainful activity he will be found not disabled. Id. If not, the analysis will continue. At step two, the ALJ must determine whether the child "ha[s] a medically determinable impairment(s) that is severe." § 416.924(c). "If you do not have a medically determinable impairment, or your impairment(s) is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, [the ALJ] will find that you do not have a severe impairment(s) and are, therefore, not disabled." Id. Finally, at step three, the ALJ must determine whether the child "meet[s], medically equal[s], or functionally equal[s] the listings." § 416.924(d). To functionally equal the Listings, the ALJ must evaluate six domains: "[a]cquiring and using information; [a]ttending and completing tasks; [i]nteracting and relating with others; [m]oving about and manipulating objections; [c]aring for yourself; and, [h]ealth and physical well-being." § 416.926a(b)(1)(i)-(vi). A child's "impairment(s) is of listing-level severity if [he or she has] `marked' limitations in two of the domains . . ., or an `extreme' limitation in one domain." § 416.92a(d).
The ALJ made the following findings with regard to factual information as well as the three-step process set forth above: the ALJ first noted that MK was born on March 8, 1995, and was therefore a school age child at the time the application was filed, and an adolescent at the time of her decision (R. at 40). The ALJ then found that MK had not engaged in substantial gainful activity as of her application date, December 14, 2006. Id. MK's ADHD, depressive disorder, and learning disorder, were found to be severe impairments. Id. At step three, the ALJ found that MK's impairments did not meet or medically equal a Listed impairment. Id. The ALJ afforded the statements from MK's mother "little weight" (R. at 43). The ALJ then found that none of MK's impairments functionally equaled the Listings (R. at 41). Specifically, the ALJ found that MK had no limitations in the moving about and manipulating objects domain (R. at 47-48). The ALJ also found that MK had less than marked limitations in the five remaining functional domains (R. at 44-50). Ultimately, the ALJ found that MK was not under a disability at any time from December 14, 2006, the application date, through the date of her decision (R. at 50).
Plaintiff argues that the ALJ's decision is neither supported by substantial evidence nor made in accordance with the applicable legal standards. Specifically, Plaintiff argues that a) the ALJ erred in failing to find MK met Listing 112.05D; b) the ALJ failed to consider specific portions of the record; and c) MK's impairments functionally equaled the Listings. The Court will discuss each argument in turn.
Plaintiff argues that the ALJ erred in failing to find that MK met Listing 112.05D, for mental retardation. plaintiff's Brief, pp. 13-14.
Listing 112.05, for mental retardation, is "[c]haracterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning." 20 C.F.R. Pt. 404, Subpt. P, App. 1. In order to meet part D of Listing 112.05, a claimant must also establish "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant limitation of function." Id.
The ALJ specifically rejected "any of the mental impairments found in section 112.00 of the listings" based on the opinions from psychiatrist Dr. A. Hameed (R. at 41). Dr. Hameed reviewed the record and found that while MK's impairments were severe, they did not meet or medically equal a Listed impairment (R. at 260-65). The Court finds that the ALJ's decision is supported by substantial evidence, despite new evidence submitted directly to the Appeals Council.
In support of her argument, Plaintiff cites to a psychoeducational evaluation completed in November 2008 by Ms. Karen Geer, a school psychologist (R. at 207-11). Plaintiff contends that an IQ test, completed by Ms. Geer meets the Listing 112.05D IQ criterion. plaintiff's Brief, pp. 13-14. However, contrary to plaintiff's argument, the relevant IQ test was not completed in November 2008. Instead, the IQ test to which Plaintiff refers was completed in May 2001.
In the November 2008 psychoeducational report, Ms. Geer noted the results of several prior cognitive and educational achievement examinations (R. at 207-09). Included in those results was the May 2001 intellectual examination (R. at 208-09). At the May 2001 IQ examination, MK received a verbal IQ score of 71, a performance IQ score of 73, and a full scale IQ score of 70. Id. The Court agrees that MK's full scale IQ score of 70 does appear to satisfy the 112.05D IQ requirement. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.00(D)(9) ("In cases where more than one IQ is customarily derived from the test administered, e.g., where verbal, performance, and full scale IQs are provided in the Wechsler series, the lowest of these is used in conjunction with listing 112.05."). However, this full scale IQ score of 70 constitutes the only evidence of record that MK had the required IQ to meet Listing 112.05D and was completed at a time when MK was only 6 years old as discussed further below.
Plaintiff argues that, based on this full scale IQ score of 70, the ALJ erred in failing to find that she met Listing 112.05D. However, the record indicates that the psychoeducational report containing this IQ score was submitted directly to the Appeals Council; as a consequence, the ALJ was unable to review this evidence and consider it as a part of his decision. See (R. at 4) (the Appeals Council stated that Exhibit B18E containing "[e]ducation records from the Ogdensburg City School District," was additional evidence it had considered in denying review); (R. at 206-11) (exhibit B18E, records from Ogdensburg City School District, containing the psychoeducational evaluation and the May 2001 IQ test results); (R. at 18) (at the hearing, the ALJ stated she had received `E' exhibits numbered 1 to 16). Thus, clearly, the ALJ did not err in failing to find Plaintiff met that Listing given these circumstances.
Nevertheless, the Court must review the record in its entirety to determine whether the ALJ's decision remains supported by substantial evidence, despite his inability to consider the psychoeducational report containing the May 2001 IQ test results. See Perez v. Chater, 77 F.3d 41, 45 (2d Cir.1996) ("[H]old [ing] that the new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision."). For the following reasons, the Court finds that remand is not warranted.
Importantly, MK's full scale IQ score of 70 was current only through May 2002. At the time MK took the May 2001 IQ test, she was six years old.
Based on the foregoing, the Court finds that the record as a whole supports the conclusion that MK's intellectual functioning was in the low average range. Thus, the ALJ's decision remains supported by substantial evidence despite the new evidence submitted directly to the Appeals Council.
Plaintiff argues that the ALJ erred in failing to consider various pieces of medical evidence throughout the record. plaintiff's Brief, pp. 11-12. Specifically, Plaintiff refers to the following: i) five emergency room visits; ii) the psychoeducational evaluation completed by Ms. Geer; iii) the diagnosis of MK with a separation anxiety disorder; iv) MK's difficulties interacting with others including Dr. Hameed's finding of "marked" limitations in that functional domain; and v) the opinion from MK's therapist, Ms. Robin Einbinder, that MK's behavioral problems were "chronic and severe." Id.
Plaintiff first argues that the ALJ ignored MK's various trips to the emergency room between April 2006 and January 2009 (R. at 217, 283-313). plaintiff's Brief, p. 11. Plaintiff contends that MK's five visits to the emergency room "for mental health related problems . . . contradict[ed] [the ALJ's] characterization of [MK] as a child who is doing fine and happy overall." plaintiff's Brief, p. 11. The Court acknowledges that the ALJ did not specifically refer to these emergency room visits in her decision. However, contrary to plaintiff's argument, at no point did the ALJ characterize MK as "fine and happy overall." Id. Instead, the ALJ noted that MK "ha[d] a long history of disturbed sleep and symptoms of depression and possible bipolar disease" (R. at 42). Furthermore, it is not clear that ALJ MK's various trips to the emergency room were "for mental health related problems," as argued by Plaintiff. plaintiff's Brief, p. 11. For example, in April 2006, MK went to the emergency room after being "assaulted by a neighbor" and "diagnosed with a small laceration inside of her mouth as well as bruising to her face and back" (R. at 217). In February 2007, MK was "brought to [the] ER with [complaints] of not sleeping" (R. at 284). Finally, MK's mental health related emergency room visits also appear to be non-severe in nature. For example, MK visited the emergency room in November 2006 (R. at 285-88). The examiner noted complaints of agitation and frustration, however they were found to be only of a mild severity (R. at 287). MK again visited the emergency room in January 2009, this time for depression (R. at 304-06). The examiner found MK's appearance, speech, thought content, and judgment/insight ALJ to be normal (R. at 305). Thus, the Court finds no reason to remand based on the ALJ's failure to specifically mention MK's various trips to the emergency room.
plaintiff's third argument is that the ALJ failed to note MK's diagnosis of a separation anxiety disorder plaintiff's Brief, p. 12. This is not accurate. Although the ALJ only cursorily discussed MK's separation anxiety disorder in her discussion of MK's medical history, an ALJ is not required to discuss in depth every piece of evidence contained in the record, so long "the evidence of record permits [the Court] to glean the rationale of an ALJ's decision." Mongeur, 722 F.2d at 1040 (citations removed). Here, the ALJ stated that MK's "difficulty separating from her mother was an issue of concern in the [November 2006 psychiatric] evaluation" (R. at 42). The ALJ also discussed a July 2009 letter written by MK's therapist, Ms. Einbinder R. at 43). In that letter, Ms. Einbinder stated that MK's diagnoses included a separation anxiety disorder (R. at 331, 43). Thus, although the ALJ did not specifically spell out that MK had been diagnosed with a separation anxiety disorder, it is clear to the Court that she considered MK's difficulties separating from her mother in the decision. The Court therefore declines to recommend remand on this basis.
Plaintiff next contends that the ALJ failed to consider MK's difficulties dealing with others, including Dr. Hameed's opinion that MK had marked limitations in this functional domain. plaintiff's Brief, p. 12. plaintiff's argument is meritless. The ALJ specifically noted that Dr. Hameed "concluded, after reviewing the . . . evidence, that the claimant had only one marked functional limitation, in interacting and relating with others" (R. at 42). The ALJ also considered that MK had "thrown a fellow student against a locker." Id. Ultimately, the ALJ found that "[a]lthough the claimant ha[d] a history of difficulties with other youngsters, the record show[ed] that she ha[d] friends and apparently ha[d] no difficulty dealing with others in small groups" (R. at 47); see (R. at 135) (MK's school noted in May 2007 that she "[wa]s a cooperative student. She [wa]s able to work well in pairs or small groups"). Thus, the ALJ acknowledged that MK had some difficulties dealing with others, but was not markedly limited in that functional domain.
The Court therefore finds no reason to remand based on this claim.
plaintiff's final argument is that the ALJ erred in failing to find that MK functionally equaled the Listings. plaintiff's Brief, pp. 14-23. Specifically, Plaintiff contends that the ALJ erred in failing to find MK afflicted with at least a marked limitation in five of the six functional domains: acquiring and using information; attending and completing tasks; interacting and relating with others; caring for oneself; and health and physical wellbeing. Id.
A finding of a "marked" limitation is appropriate when a child's
20 C.F.R. § 416.926a(e)(2)(i). The ALJ found that MK had no limitations in the moving about and manipulating objects domain (R. at 47-48). The ALJ found that MK had less than marked limitations in the five remaining functional domains (R. at 44-50). For the following reasons, the ALJ's findings are supported by substantial evidence.
In August 2007, Ms. Matthews completed a teacher questionnaire and rated MK's functioning in each of the six domains (R. at 146-152). The questionnaire asked Ms. Matthews to rate MK's functioning on the following scale: no problem; a slight problem; an obvious problem; a serious problem; and a very serious problem. Id. In the acquiring and using information domain, Ms. Matthews stated that MK's functioning ranged from no problem to an obvious problem (R. at 147). Ms. Matthews again found MK's functioning ranged from no problem to an obvious problem in the attending and completing tasks domain (R. at 148). Ms. Matthews found that MK had generally no problem in the interacting and relating with others category (R. at 149). She found no problem in the moving about and manipulating objects domain (R. at 150). Ms. Matthews found that MK's functioning in the caring for herself domain ranged from no problem to an obvious problem (R. at 151). Ms. Matthews did not identify any medical conditions that impacted MK's health and physical well-being (R. at 152). Thus, at no point did Ms. Matthews opine that MK's functioning rose to a serious problem in any of the functional domains. Her opinions therefore support the ALJ's finding of less than marked limitations in each of the functional domains. See 20 C.F.R. § 416.926a(e)(2)(i) (the ALJ "will find that [the child] ha[s] a `marked' limitation in a domain when [the child's] impairment(s) interferes seriously with [her] ability to independently initiate, sustain, or complete activities").
Dr. Hameed, the SSA consultative psychiatrist, reviewed the record in September 2007 (R. at 260-65). Dr. Hameed found that MK had no limitation in the moving about and manipulating objects domain (R. at 263). Dr. Hameed also found less than marked limitations in the following domains: acquiring and using information; attending and completing tasks; and caring for oneself (R. at 262). The interacting and relating with others domain was the sole area in which Dr. Hameed found that MK was afflicted with marked limitations (R. at 262). Dr. Hameed failed to make a finding in the health and physical well-being domain (R. at 263). Thus, with the exception of the interacting and relating with others domain, Dr. Hameed's opinions support the ALJ's findings.
The Court acknowledges that the ALJ failed to offer a specific explanation as to why Dr. Hameed's opinion of a marked limitation in the interacting and relating with others domain was rejected. However, the ALJ's ultimate finding of less than a marked limitation in that domain is supported by substantial evidence.
The record also contains further evidence that MK was not markedly limited in at least two functional domains. For example, psychiatrist, Dr. Visula, noted in June 2007 that MK's school reports "[we]re significant for good academic performance and adequate behavior" (R. at 274). Dr. Visula also noted that MK's "teachers endorsed `phenomenal progress during this school year.'" Id. MK also underwent a psychiatric evaluation in March 2009 (R. at 325-28). The examiner noted that there were "no problems in school" and that "[c]urrently, [MK][wa]s on the honor roll" in her special education classes (R. at 325). The examiner also noted that "[a]s for [MK's] ADHD, at this time there [we]re no functional impairments and [MK] w[ould] not receive any treatment for that" (R. at 328).
For the foregoing reasons, the Court finds that the Commissioner's decision is supported by substantial evidence and free of legal error. Accordingly, it is respectfully recommended that the Commissioner's decision denying disability benefits be AFFIRMED pursuant to sentence four of 42 U.S.C. Section 405(g).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
Let the Clerk send a copy of this Report and recommendation to the attorneys for the Plaintiff and the Defendants.
Olinsky Law Group, 300 S. State St., Ste. 420, Howard D. Olinsky, Esq., of Counsel, Syracuse, NY 13202, for Plaintiff.
U.S. Social Security Admin., Office of Reg'l Gen. Counsel — Region II, 26 Federal Plaza — Room 3904, Joshua L. Kershner, Esq., of Counsel, New York, NY 10278, for Defendant.
Currently before the Court, in this Social Security action filed by Billy Joe Coleman ("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.14, 22.) For the reasons set forth below, it is recommended that plaintiff's motion seeking remand be granted and Defendant's motion be denied.
Plaintiff was born on May 8, 1962. (T. 151.) He completed the seventh grade. (T. 178.) Generally, Plaintiff's alleged disability consists of diabetes, arthritis, high blood pressure, depression, and low back pain. (T. 177.) His alleged disability onset date is September 18, 2009. (T. 151.) His date last insured is March 31, 2015. (T. 173.) He previously worked in maintenance and as a laborer. (T. 178.)
On December 8, 2011, Plaintiff applied for a period of Disability Insurance Benefits ("SSD") under Title II, and Supplemental Security Income ("SSI") under Title XVI, of the Social Security Act. (T. 63.) plaintiff's application was initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On December 16, 2013, Plaintiff appeared before the ALJ, Hortensia Haaversen. (T. 29-56.) On January 31, 2014, ALJ Haaversen issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 8-28.) On July 22, 2014, the Appeals Council ("AC") denied plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this Court.
Generally, in her decision, the ALJ made the following five findings of fact and conclusions of law. (T. 13-23.) First, the ALJ found that Plaintiff met the insured status requirements through March 31, 2015 and Plaintiff had not engaged in substantial gainful activity since September 18, 2009. (T. 13.) Second, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease, hypertension, diabetes mellitus, and affective disorder. (Id.) Third, the ALJ found that Plaintiff did not have an impairment that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 14-17.) Fourth, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform: medium work; however, Plaintiff could occasionally bend, and occasionally climb ladders, ropes, and scaffolds. (T. 17.)
In response, Defendant makes three arguments. First, Defendant argues the ALJl properly assigned weight to the opinions in the record. (Dkt. No. 22 at 6-14 [Def.'s Mem. of Law].) Second, Defendant argues the ALJ's credibility analysis was supported by substantial evidence. (Id. at 15-17.) Third, and lastly, Defendant argues the ALJ's step five determination was supported by substantial evidence. (Id. at 17-18.)
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it 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."); 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, 91 S.Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See 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. See 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). The five-step process is as follows:
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982).
Plaintiff argues the ALJ's RFC determination was not supported by substantial evidence. (Dkt. No. 14 at 9 [Pl.'s Mem. of Law].) Specifically, Plaintiff argues the ALJ erred in the weight afforded to plaintiff's treating physician, Dr. Triana; and the ALJ engaged in "impermissible picking and choosing of portions" of the consultative examiner's opinion. (Id. at 9-17.) Defendant argues that the ALJ properly assigned weight to the opinions in the record. (Dkt. No. 22 at 6 [Def.'s Mem. of Law].)
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. §§ 404.1527(c)(2), 416.927(c)(2).
The following factors must be considered by the ALJ when deciding how much weight the opinion should receive, even if the treating source is not given controlling weight: "(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." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c) (2). The ALJ is required to set forth his reasons for the weight he assigns to the treating physician's opinion. Id., see also SSR 96-2p, 1996 WL 374188 (July 2, 1996); 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)).
Plaintiff established care with Dr. Triana on March 2, 2010. (T. 338.) At that time Plaintiff presented with hypertension ("HTN"), diabetes mellitus ("DM"), and low back pain. (Id.) Dr. Triana treated Plaintiff on a regular and consistent basis, treatment notes in the record span March 2010 to December 2013. (T. 338, 428.) Dr. Triana completed two medical source statements dated April 23, 2012 (revised) and October 30, 2013. (T. 375-378, 392-395.) The limitations imposed in the two statements vary only slightly.
In April 2012, Dr. Triana opined Plaintiff could lift and carry less than ten pounds frequently and less than ten pounds occasionally. (T.375.) Dr. Triana opined Plaintiff could stand and/or walk a total of less than two hours in an eight hour workday. (Id.) Dr. Triana opined Plaintiff could sit for less than six hours in an eight hour workday. (T. 376.) Dr. Triana opined Plaintiff was limited in his ability to push and/or pull with his lower extremities. (Id.) Dr. Triana opined Plaintiff could frequently climb, balance, crouch, and crawl. (Id.) Dr. Triana opined Plaintiff could occasionally kneel and stoop. (Id.) Dr. Triana opined Plaintiff had no manipulative, visual, or communicative limitations. (T. 377.) Dr. Triana stated his conclusions were supported by positive radiological tests. (T. 376.)
As for objective medical imagining, on March 31, 2011, Plaintiff had an MRI conducted of his lumbar spine. (T. 222.) Results indicated degenerative disc disease with annular bulging of the L2-3 and L5-S1 intervertebral discs without neural encroachment or impingement. (Id.) The MRI results indicated bulging disc at L3-4 which abutted the left L4 nerve root, but without obvious displacement and further clinical correlation for radiculopathy was recommended. (Id.) The MRI results also indicated mild central canal stenosis at L4-5 without impingement, and significant degenerative change of the lower lumbar fact joints. (Id.) Dr. Triana reviewed the MRI results on April 12, 2011. (T. 305.) In 2009 medical imaging showed Plaintiff had "mild degenerative changes" in his lumbar spine, but no fracture or subluxation. (T. 220.) The record does not contain any additional objective medical imaging of Plaintiff's spine.
The ALJ afforded Dr. Triana's medical opinions "little weight." (T. 21.) The ALJ reasoned Dr. Triana's opinions were "not supported by the majority of the objective medical evidence" and further, "[t]here was no objective medical evidence in the file around the time [his] opinion was given." (Id.)
First, as Plaintiff asserts, there is no requirement that a treating physician's opinion be supported by contemporaneous objective medical evidence. The Regulations state that a treating physician's opinion deserves controlling weight if the opinion "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. §§ 404.1527(c)(2), 416.927(c)(2). Dr. Triana indicated he based his medical opinion, in part, on positive radiological tests. (T. 393.) Dr. Triana's notations do not indicate that further testing was ordered, or required, for Plaintiff's care. Further, the ALJ refers to the "majority of the objective medical evidence;" however, it is unclear from the ALJ's lack of analysis, what medical evidence she relied on.
In her decision, the ALJ discussed medical imaging in the record; however, the ALJ failed to provide a complete and accurate overview of the evidence. In her discussion of the March 2011 MRI results, the ALJ correctly stated the MRI demonstrated degenerative disc disease with annular bulging at L2-3 and L5-S1 without neural encroachment or impingement. (T. 19.) The ALJ also stated the MRI demonstrated mild central canal stenosis at L4-5 and degenerative changes of the lower lumber facet joints. (Id.) However, the ALJ failed to include the MRI findings that demonstrated bulging disc at L3-4 which abutted the left L4 nerve root, but without obvious displacement. (T. 222.) Even if the ALJ provided a full description of the MRI results and even if the ALJ indicated it was these results she relied on, she still commited legal error because she failed to provide any analysis indicating how this medical imaging was inconsistent with Dr. Triana's opinion.
The ALJ faults Dr. Triana's opinion because there was "no objective medical evidence in the file around the time [his] opinion was given;" however, Dr. Triana supplied treatment notes from March 2010 through December 2013. (T. 276-340, 401-435.) Around the time of Dr. Triana's October 2013 medical source statement, Plaintiff sought treatment from Dr. Triana twice in July of 2013, once in September of 2013, and once in October 2013. (T. 416, 419, 422, 425.) Therefore, there were objective medical observations in the record at the time Dr. Triana provided his opinion.
Defendant argues the ALJ properly weighed Dr. Triana's opinion because it was internally inconsistent and not supported by his own treatment notes. (Dkt. No. 22 at 13 [Def.'s Mem. of Law].) However, the ALJ did not discuss Dr. Triana's opinion beyond the objective medical evidence and this Court may not "create post-hoc rationalizations to explain the Commissioner's treatment of evidence when that treatment is not apparent from the [ALJ's] decision itself." Martinbeault v. Astrue, 2009 WL 5030789, *5 (N.D.N.Y. Dec. 14, 2009) (citing Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir.2005)); see also Snell, 177 F.3d 134 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)); see also Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999).
To be sure, the Defendant is correct in her assertion that Dr. Triana's medical opinion appears to be inconsistent on its face. (Dkt. No. 22 at 13 [Def.'s Mem. of Law].) Dr. Triana opined Plaintiff could frequently lift and/or carry twenty pounds; however, Plaintiff could only occasionally lift and/or carry less than ten pounds. (T. 392.) This is precisely the type of inconsistency which the ALJ should address on remand, and further, the ALJ should recontact Dr. Triana and request that he clarify his medical source statement. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996).
Defendant also argues the ALJ's overall physical RFC was supported by substantial evidence, namely the opinions of consultative examiner Richard Weiskopf, M.D. (Dkt. No. 22 at 10-12 [Def.'s Mem. of Law].) This Court cannot determine whether substantial evidence supported the ALJ's RFC determination, because there is a "reasonable basis for doubt" as to whether correct legal principles were applied; therefore, the substantial evidence standard may not be used to uphold the ALJ's decision. Rockwood, 614 F.Supp.2d at 280. Further, the ALJ reasoned Dr. Weiskopf based his opinion on his examination and "objective tests." (T. 20.) Dr. Weiskopf did examine Plaintiff on one occasion; however, Dr. Weiskopf did not review Plaintiff's medical imaging nor did he request imaging. (T. 352.) Dr. Weiskopf stated that Plaintiff indicated his MRI showed degenerative disk disease, not that he reviewed the MRI himself. (T. 349.) Defendant's claim that Plaintiff's legal argument was made in an attempt to couch a substantial evidence argument is without merit. (Dkt. No. 22 at 14 [Def.'s Mem. of Law].) For the reasons stated herein, Plaintiff correctly asserted that the ALJ failed to apply the proper legal standards in evaluating Dr. Triana's opinion.
ii.) Consultative Examiner, Christina Caldwell, Psy.D. Dr. Caldwell examined Plaintiff on February 17, 2012 for a psychiatric evaluation. (T. 344-348.) Dr. Caldwell observed that Plaintiff was cooperative, well groomed, and made appropriate eye contact. (T. 345.) Dr. Caldwell observed Plaintiff's thought process was coherent and goal directed, with no evidence of hallucinations, delusions, or paranoia. (Id.) She noted his affect was depressed. (Id.) Dr. Caldwell observed Plaintiff's attention and concentration was mildly impaired due to intellectual functioning; his recent and remote memory skills were mildly impaired due to intellectual functioning; his intellectual functioning was average to below average; his general fund of knowledge was "somewhat limited;" and his insight was "fair to poor" and his judgment was fair. (T. 346.)
In a medical source statement Dr. Caldwell opined that Plaintiff could follow and understand simple directions and instructions. (T. 346.) She further opined Plaintiff was limited in his ability to perform simple tasks independently; maintain attention and concentration; maintain a regular schedule; learn new tasks; perform complex tasks independently; make appropriate decisions; relate adequately with others; and appropriately deal with stress. (T. 346-347.)
The ALJ afforded "significant weight" to Dr. Cadwell's medical opinion that Plaintiff could follow and understand simple directions and instructions. (T. 20.) The ALJ afforded "little weight" to the remaining medical opinion, reasoning it was based on subjective complaints and the opinion was "vague." (Id.)
Plaintiff argues the ALJ erred in her evaluation of Dr. Caldwell's opinion because the ALJ selectively picked and chose only parts of the medical opinion. (Dkt. No. 14 at 15-17 [Pl.'s Mem. of Law].) Specifically, Plaintiff argues the ALJ substituted his own judgement for that of Dr. Caldwell and the ALJ had a duty to re-contact Dr. Caldwell for clarification. (Id. at 16.) Defendant counters that the ALJ properly assessed the opinion of Dr. Caldwell, because an ALJ may reject portions of a medical opinion which are not supported by the record. (Dkt. No. 22 at 10 [Def.'s Mem. of Law].) To be sure, an ALJ does not have to strictly adhere to the entirety of one medical source's opinion. See Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir.2013) ("Although the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole."), see also Zongos v. Colvin, No. 12-CV-1007, 2014 WL 788791, at *9 (N.D.N.Y. Feb. 25, 2014) (finding that it was within the ALJ's discretion to afford weight to a portion of a treating physician's opinion but not to another portion). However, the ALJ's reasoning for affording Dr. Caldwell's opinion weight fails because the ALJ's analysis is flawed.
A plaintiffs allegations of pain and functional limitations are "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) (quoting Simmons v. U. 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." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010) (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979)). "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.
"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 271.
Id., see 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3) (i)-(vii). Further, "[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 v. Astrue, 534 F. App'x 71, 75 (2d Cir.2013) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.1983)).
Plaintiff argues the ALJ erred in her evaluation of Plaintiff's daily activities in her credibility analysis; and further, the ALJ erred in her determination that objective findings failed to support Plaintiff's allegations. (Dkt. No. 14 at 17-19 [Pl.'s Mem. of Law].) Defendant argues the ALJ's credibility analysis was supported by substantial evidence. (Dkt. No. 22 at 15-17 [Def.'s Mem. of Law].)
Remand is recommended for a proper evaluation of the medical opinion evidence in the record. Therefore, remand is also recommended for a new credibility analysis based on a proper evaluation of the medical opinion evidence in the record.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
Olinsky & Shurtliff, Jaya Shurtliff, Esq., of Counsel, Syracuse, NY, for Plaintiff.
Office of Regional General Counsel, Social Security Administration Region II, Jennifer S. McMahon, Esq., of Counsel, New York, NY, for Defendant.
DAVIS N. HURD, District Judge.
Plaintiff Mark Hart ("plaintiff" or "Hart") protectively filed an application for Social Security Disability Insurance Benefits and Supplemental Security Income on June 15, 2004, claiming a period of disability beginning on June 18, 2004. His claims were initially denied. He filed a request for a hearing, which was held before an Administrative Law Judge ("ALJ") on May 3, 2005. The ALJ rendered a decision on November 3, 2005, denying plaintiffs claims. On October 13, 2007, the Appeals Council declined further review of the ALJ's decision. Thus, the ALJ's decision became the final decision of the Commissioner.
The scope of a court's review of the Commissioner's final decision is limited to determinating whether the decision is supported by substantial evidence and the correct legal standards were applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir.2009) (per curiam) (citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002); Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y.1999) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987)). "Substantial evidence means `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566 F.3d at 305 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 S.Ct. 126 (1938)). "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 v. Bowen, 859 F.2d 255, 258 (2d Cir.1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 S.Ct. 456 (1951)). If the Commissioner's disability determination is supported by substantial evidence, that determination is conclusive. Id.
However, "where there is a reasonable basis for doubting whether the Commissioner applied the appropriate legal standards," the decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Martone, 70 F.Supp.2d at 148 (citing Johnson, 817 F.2d at 986).
A reviewing court may enter "a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g); see Martone, 70 F.Supp.2d at 148. "Remand is appropriate where there are gaps in the record or further development of the evidence is needed," such as where new, material evidence has become available. 42 U.S.C. § 405(g); Martone, 70 F.Supp.2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980)). A remand for rehearing directing the taking of additional evidence is warranted only if it is shown that there is new, material evidence "`and that there is good cause for the failure to incorporate such evidence into the record' at the administrative hearing. Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 643-44 (2d Cir.1983) (quoting 42 U.S.C. § 405(g), as amended in 1980)). Remand may also be appropriate if the Commissioner "misapplies the law or failed to provide a fair hearing." Id. at 644. However, where the underlying administrative decision is not supported by substantial evidence, reversal is appropriate because there would be no useful purpose in remanding the matter for further proceedings. Id. (reversing and remanding solely for calculation of benefits, subject to determination by the district court of any motion by the agency to remand to consider new evidence); Parker, 626 F.2d at 235 (reversing and remanding solely for calculation and payment of benefits); Simmons v. United States R. R. Ret. Bd., 982 F.2d 49, 57 (2d Cir.1992) (same); Williams, 859 F.2d at 261 (same).
Id. § 423(d)(2)(A).
The Administrative Law Judge ("ALJ") must follow a five step evaluative process in determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. In the first step the ALJ must determine whether the claimant is engaging in substantial gainful activity. If the claimant is engaging in substantial gainful activity he is not disabled and he is not entitled to benefits. Id. §§ 404.1520(b), 416.920(b).
If the claimant is not engaged is substantial gainful employment, then step two requires the ALJ to determine whether the claimant has a severe impairment or combination of impairments which significantly restricts his or her physical or mental ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from a severe impairment, then step three requires that the ALJ determine whether the impairment meets or equals an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d), 416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant is "presumptively disabled." Martone, 70 F.Supp.2d at 149 (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir.1984)); 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not presumptively disabled, step four requires the ALJ to assess whether the claimant's residual functional capacity ("RFC") precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
If the opinion of a treating physician is "`well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record' it is given significant weight. Poupore, 566 F.3d at 307 (quoting 20 C.F.R. § 404.1527(d)(2)). However, where the treating physician's opinion is not supported by medical evidence, it is not entitled to significant weight. Id.
The burden of proof with regard to the first four steps is on the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996); Ferraris, 728 F.2d at 584.
A claimant may seek review of an adverse decision by the ALJ from the Appeals Council. Perez, 77 F.3d at 44. If review is granted, the decision of the Appeals Council is the final decision of the Commissioner. Id. If review is denied, then the final decision is that of the ALJ. Id. The final decision is judicially reviewable pursuant to 42 U.S.C. § 405(g).
Hart first contends that because he received inadequate notice of his right to representation, he did not knowingly and voluntarily waive that right. According to plaintiff, he suffered prejudice as a result.
There is no constitutional right to representation at a hearing to determine eligibility for social security benefits. Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 506 (2d Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1503, 176 L.Ed.2d 152 (2010). There is a right to representation set forth in the statute and regulations. Id. (citing 42 U.S.C. § 406; 20 C.F.R. § 404.1705). If a person claiming benefits is properly informed of the right to representation, it may be waived. Id. The statutory and regulatory scheme requires that the Commissioner of Social Security "`notify [the] claimant in writing' of (1) her `options for obtaining [an] attorney to represent [her]' at her hearing, and (2) `the availability . . . of . . . organizations which provide legal services free of charge' to `qualifying claimants.'" Id. (quoting 42 U.S.C. § 406(c); 1382(d)(2)(D); citing 20 C.F .R. § 404.1706). Additionally, "at the hearing itself, `the ALJ must ensure that the claimant is aware of [her] right [to counsel]'. Id. (quoting Robinson v. Sec'y of Health & Human Servs., 733 F.2d 255, 257 (2d Cir.1984)). If these statutory requirements for are met, notification is adequate. Id. at 508-09.
The Notice of Disapproved Claim sent to plaintiff on August 13, 2004, set forth the procedure for his right to request a hearing and to obtain representation for the hearing. R. at 22-28. Under the heading "If You Want Help With Your Appeal" the notice states the following:
Id. at 26. Hart's Request for Hearing by Administrative Law Judge signed by him on September 17, 2004, stated "I understand I have a right to be represented at the hearing" just above the signature line. Id. at 29. A letter dated October 28, 2004, to Hart confirming receipt of his request for a hearing states:
Id. at 31. On March 22, 2005, Hart was notified of the time and place set for his hearing. Id. at 41-46. This notice again informed plaintiff of his right to representation, under the bold heading "You May Choose to Have a Person Represent You." Id. at 43.
The ALJ held Hart's hearing by video conference on May 3, 2005. At the hearing, the following exchange took place between plaintiff and the ALJ:
Id. at 134-35.
Hart was informed of his right to representation in writing on four occasions: August 13, 2004; September 17, 2004; October 28, 2004; and March 22, 2005. Additionally, the ALJ notified him of his right to representation at the hearing itself on May 3, 2005. These notifications meet the statutory and regulatory requirements for notification. Therefore, Hart's waiver of representation was knowing and voluntary. Because the waiver was effective, it is unnecessary to evaluate any alleged prejudice.
Hart next argues that there were significant gaps in the medical treatment records because there was no development of the record post June 22, 2004, and no function-by-function medical source statement from a treating source, nor any indication that one was requested.
According to plaintiff his only treatment was at the Veterans Administration
In addition, the administrative record was supplemented with documents that were a part of Hart's official claim file but were not previously included in the record. See Herbst Aff. Doc. No. 13-1. Included is a Disability Worksheet setting forth the requests for records made in an effort to develop the record, indicating that the Veterans Administration report had been received and placed in the file. Id. It also includes a copy of a letter dated May 24, 2005, requesting all medical records to the present date, that was sent to the Veterans Administration Hospital in Syracuse, New York. Id.
The foregoing demonstrates that every reasonable effort was made to supplement the record. Moreover, in making his decision on November 3, 2005, the ALJ noted that he had made every reasonable effort to develop the record pursuant to 20 C.F.R. §§ 404.1512, 416.912, indicating that he recognized and complied with this obligation. The ALJ also stated that sufficient evidence existed to make a determination as to Hart's disability and that no further evidence was necessary. Thus, because the evidence was adequate to make a determination, the ALJ was not required to again contact plaintiffs treating or other medical sources. See 20 C.F.R. § 404-1512(e). The ALJ's attempts to supplement the record comported with the requirements of the regulations.
Hart also argues that the ALJ's finding that he could not perform his past relevant work of housekeeper was internally inconsistent with the finding that he could perform as a janitor. According to plaintiffs testimony, his past work as a housekeeper did not involve simple tasks. Id. at 153. The ALJ noted that it was possible that Hart could return to the unskilled jobs of housekeeper or stocker, but in an effort to give him the benefit of the doubt, the ALJ would proceed to step five. Id. at 21. The ALJ determined that plaintiff probably could return to his past unskilled relevant work (a finding that is supported by substantial evidence). However, in an effort to provide plaintiff with the best possible opportunity, rather than making a finding that plaintiff was not disabled because he could perform past relevant work, the ALJ proceeded to step five. Hart's reliance upon an inconsistency with progressing to step five of the evaluative process in these circumstances is misplaced and provides no grounds for remand.
In sum, the ALJ's determination that plaintiff could not do past relevant work was supported by substantial evidence. Substantial evidence also supported the ALJ's determination that plaintiff could perform unskilled work in an environment free of distractions, and away from hazardous machinery or heights.
Finally, plaintiff contends that the ALJ's conclusion that a finding of not disabled was appropriate under SSR 85-15 was application of an inappropriate legal standard. According to plaintiff, at step five the rulings do not direct a finding; rather, that step is left to credible vocational resources and/or the Medical Vocational Rules.
Where the claimant's limitations are nonexertional, SSR 85-15 sets forth a framework for evaluating disability.
SSR 85-15, 1985 WL 56857, at *3 (1985). The ALJ recited the appropriate standard, that in the case of solely nonexertional limitations, a determination must be made following the principles in the regulations, guided by the situations described in SSR 85-15. R. at 22. The ALJ consulted a vocational expert to determine the impact of Hart's nonexertional limitations on his occupational base of unskilled work at all exertional levels. Id. at 21-22. Given the restrictions that plaintiff has, the vocational expert opined that he could perform the positions at the light exertional level of food preparation worker with 5,000 jobs in New York and 89,000 jobs nationally; janitor/cleaner with 17,000 jobs in New York and 174,000 nationally; and parking log attendant with 4,000 jobs in New York and 33,000 nationally. Id. at 159. Based upon the opinion of the vocational expert, as well as the age, education, work experience, and RFC of plaintiff, the ALJ determined that under SSR 85-15 Hart would be capable of making a successful adjustment to other work that exists in significant numbers in the national economy, making a finding of not disabled appropriate. Id. at 22. Contrary to plaintiff's assertion, the ALJ never stated, nor does his decision indicate, that SSR 85-15 directed a certain outcome. The ALJ followed the appropriate legal standard.
The four notices to plaintiff in writing of his right to representation and the oral notification by the ALJ at the hearing sufficed to meet the statutory and regulatory requirements. Plaintiff's waiver of the right to representation was knowing and voluntary.
The ALJ met his obligation to make reasonable efforts to develop the record. Plaintiff is not entitled to remand on this ground.
The ALJ's determinations that Hart could not perform past relevant work but that he could perform unskilled work in a setting free from distractions and hazardous machinery or heights is supported by substantial evidence.
Finally, the ALJ followed the appropriate legal standard at step five in determining that work existed in significant numbers in the national economy that plaintiff could perform.
ORDERED that defendant's motion for judgment on the pleadings is GRANTED and the complaint is DISMISSED.
IT IS SO ORDERED.
1. Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.
2. The RFC assessment considers only functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments, including the impact of any related symptoms. Age and body habitus are not factors in assessing RFC. It is incorrect to find that an individual has limitations beyond those caused by his or her medically determinable impairment(s) and any related symptoms, due to such factors as age and natural body build, and the activities the individual was accustomed to doing in his or her previous work.
3. When there is no allegation of a physical or mental limitation or restriction of a specific functional capacity, and no information in the case record that there is such a limitation or restriction, the adjudicator must consider the individual to have no limitation or restriction with respect to that functional capacity.
4. The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.
5. RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.
6. Medical impairments and symptoms, including pain, are not intrinsically exertional or nonexertional. It is the functional limitations or restrictions caused by medical impairments and their related symptoms that are categorized as exertional or nonexertional.
When an individual is not engaging in substantial gainful activity and a determination or decision cannot be made on the basis of medical factors alone (i.e., when the impairment is severe because it has more than a minimal effect on the ability to do basic work activities yet does not meet or equal in severity the requirements of any impairment in the Listing of Impairments), the sequential evaluation process generally must continue with an identification of the individual's functional limitations and restrictions and an assessment of his or her remaining capacities for work-related activities.
Definition of RFC. RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do workrelated physical and mental activities. (See
The RFC Assessment Must be Based Solely on the Individual's Impairment(s). The Act requires that an individual's inability to work must result from the individual's physical or mental impairment(s). Therefore, in assessing RFC, the adjudicator must consider only limitations and restrictions attributable to medically determinable impairments.
RFC and exertional levels of work. The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities. At step 4 of the sequential evaluation process, the RFC must not be expressed initially in terms of the exertional categories of "sedentary," "light," "medium," "heavy," and "very heavy" work because the first consideration at this step is whether the individual can do past relevant work as he or she actually performed it.
RFC may be expressed in terms of an exertional category, such as light, if it becomes necessary to assess whether an individual is able to do his or her past relevant work as it is generally performed in the national economy. However, without the initial function-by-function assessment of the individual's physical and mental capacities, it may not be possible to determine whether the individual is able to do past relevant work as it is generally performed in the national economy because particular occupations may not require all of the exertional and nonexertional demands necessary to do the full range of work at a given exertional level.
At step 5 of the sequential evaluation process, RFC must be expressed in terms of, or related to, the exertional categories when the adjudicator determines whether there is other work the individual can do. However, in order for an individual to do a full range of work at a given exertional level, such as sedentary, the individual must be able to perform substantially all of the exertional and nonexertional functions required in work at that level. Therefore, it is necessary to assess the individuals capacity to perform each of these functions in order to decide which exertional level is appropriate and whether the individual is capable of doing the full range of work contemplated by the exertional level.
Initial failure to consider an individual's ability to perform the specific work-related functions could be critical to the outcome of a case. For example:
1. At step 4 of the sequential evaluation process, it is especially important to determine whether an individual who is at least "closely approaching advanced age" is able to do past relevant work because failure to address this issue at step 4 can result in an erroneous finding that the individual is disabled at step 5. It is very important to consider first whether the individual can still do past relevant work as he or she actually performed it because individual jobs within an occupational category as performed for particular employers may not entail all of the requirements of the exertional level indicated for that category in the Dictionary of Occupational Titles and its related volumes.
3. At step 5 of the sequential evaluation process, the same failures could result in an improper application of the rules in appendix 2 to subpart P of the Regulations No. 4 (the "Medical-Vocational Guidelines) and could make the difference between a finding of "disabled" and "not disabled." Without a careful consideration of an individual's functional capacities to support an RFC assessment based on an exertional category, the adjudicator may either overlook limitations or restrictions that would narrow the ranges and types of work an individual may be able to do, or find that the individual has limitations or restrictions that he or she does not actually have.
RFC represents the most that an individual can do despite his or her limitations or restrictions. At step 5 of the sequential evaluation process, RFC must not be expressed in terms of the lowest exertional level (e.g., "sedentary" or "light" when the individual can perform "medium" work) at which the medical-vocational rules would still direct a finding of "not disabled." This would concede lesser functional abilities than the individual actually possesses and would not reflect the most he or she can do based on the evidence in the case record, as directed by the regulations.
The psychiatric review technique. The psychiatric review technique described in 20 CFR 404.1520a and 416.920a and summarized on the Psychiatric Review Technique Form (PRTF) requires adjudicators to assess an individual's limitations and restrictions from a mental impairment(s) in categories identified in the "paragraph B" and "paragraph C" criteria of the adult mental disorders listings. The adjudicator must remember that the limitations identified in the "paragraph B" and "paragraph C" criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF.
*Medical history,
*Medical signs and laboratory findings,
*The effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication),
*Reports of daily activities,
*Lay evidence,
*Recorded observations,
*Medical source statements,
*Effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment,
*Evidence from attempts to work,
*Need for a structured living environment, and
*Work evaluations, if available.
The adjudicator must consider all allegations of physical and mental limitations or restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to assess RFC. Careful consideration must be given to any available information about symptoms because subjective descriptions may indicate more severe limitations or restrictions than can be shown by objective medical evidence alone.
In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not "severe." While a "not severe" impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may—when considered with limitations or restrictions due to other impairments—be critical to the outcome of a claim. For example, in combination with limitations imposed by an individual's other impairments, the limitations due to such a "not severe" impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do.
The RFC assessment must address both the remaining exertional and nonexertional capacities of the individual.
Exertional capacity addresses an individual's limitations and restrictions of physical strength and defines the individual's remaining abilities to perform each of seven strength demands: Sitting, standing, walking, lifting, carrying, pushing, and pulling. Each function must be considered separately (e.g., "the individual can walk for 5 out of 8 hours and stand for 6 out of 8 hours"), even if the final RFC assessment will combine activities (e.g., "walk/stand, lift/carry, push/pull"). Although the regulations describing the exertional levels of work and theDictionary of Occupational Titles and its related volumes pair some functions, it is not invariably the case that treating the activities together will result in the same decisional outcome as treating them separately.
It is especially important that adjudicators consider the capacities separately when deciding whether an individual can do past relevant work. However, separate consideration may also influence decisionmaking at step 5 of the sequential evaluation process, for reasons already given in the section on "RFC and Sequential Evaluation."
As with exertional capacity, nonexertional capacity must be expressed in terms of work-related functions. For example, in assessing RFC for an individual with a visual impairment, the adjudicator must consider the individual's residual capacity to perform such work-related functions as working with large or small objects, following instructions, or avoiding ordinary hazards in the workplace. In assessing RFC with impairments affecting hearing or speech, the adjudicator must explain how the individual's limitations would affect his or her ability to communicate in the workplace. Work-related mental activities generally required by competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting.
It is the nature of an individual's limitations or restrictions that determines whether the individual will have only exertional limitations or restrictions, only nonexertional limitations or restrictions, or a combination of exertional and nonexertional limitations or restrictions. For example, symptoms, including pain, are not intrinsically exertional or nonexertional. Symptoms often affect the capacity to perform one of the seven strength demands and may or may not have effects on the demands of occupations other than the strength demands. If the only limitations or restrictions caused by symptoms, such as pain, are in one or more of the seven strength demands (e.g., lifting) the limitations or restrictions will be exertional. On the other hand, if an individual's symptoms cause a limitation or restriction that affects the individual's ability to meet the demands of occupations other than their strength demands (e.g., manipulation or concentration), the limitation or restriction will be classified as nonexertional. Symptoms may also cause both exertional and nonexertional limitations.
Likewise, even though mental impairments usually affect nonexertional functions, they may also limit exertional capacity by affecting one or more of the seven strength demands. For example, a mental impairment may cause fatigue or hysterical paralysis.
Symptoms. In all cases in which symptoms, such as pain, are alleged, the RFC assessment must:
*Contain a thorough discussion and analysis of the objective medical and other evidence, including the individual's complaints of pain and other symptoms and the adjudicator's personal observations, if appropriate;
*Include a resolution of any inconsistencies in the evidence as a whole; and
*Set forth a logical explanation of the effects of the symptoms, including pain, on the individual's ability to work.
The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence. In instances in which the adjudicator has observed the individual, he or she is not free to accept or reject that individual's complaints solely on the basis of such personal observations. (For further information about RFC assessment and the evaluation of symptoms, see
Medical opinions. The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.
Medical opinions from treating sources about the nature and severity of an individual's impairment(s) are entitled to special significance and may be entitled to controlling weight. If a treating source's medical opinion on an issue of the nature and severity of an individual's impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record, the adjudicator must give it controlling weight. (See
Timothy Hiller, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Sergei Aden, Social Security Administration, New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 11, 12). For the reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim for further administrative proceedings consistent with this decision.
Reider filed for SSI/DIB on October 25, 2013, alleging disability beginning on May 3, 2013, due to a right knee injury, depression, anxiety, chest pain, and trouble sleeping. (Tr. 200, 204).
On January 27, 2015, the Appeals Council denied Reider's request for review of the ALJ's decision. (Tr. 1-4). Reider commenced this action on March 19, 2015 seeking review of the Commissioner's decision. (Docket # 1).
Treatment notes indicate that Reider began receiving primary care treatment at Lyons Health Center on May 4, 2010, and that she continued to receive care at that location at the time of her administrative hearing. (Tr. 306-07, 532). The treatment notes suggest that Reider suffered from depression and anxiety, for which she was prescribed various medications and was referred to psychiatric care. (Tr. 287, 293, 302-03, 304, 306-07, 325-26, 327-29, 330, 333-35, 336-38, 339, 505). The medications appeared initially to improve Reider's symptoms, but did not completely alleviate them. (Id.). At times, Reider demonstrated inconsistent use of prescribed medications, due to her inability to afford them or because they caused side effects. (Tr. 293, 333, 505). She also declined psychiatric treatment because she could not afford it. (Tr. 505, 514). On August 16, 2013, John Wehrle ("Wehrle"), MD, prescribed Celexa to address her depression and hydroxyzine to address her insomnia and severe anxiety. (Tr. 514). On September 4, 2013, Reider reported that her mood had improved, she was sleeping better, and she had not experienced any side effects. (Id.). Wehrle assessed that her depression and anxiety had improved. (Tr. 516).
According to Reider, she had never been hospitalized or received psychiatric mental health treatment, although she had received mental health treatment from her primary care physician "off and on" during the previous ten years. (Id.). She was currently on medication for her mental health symptoms. (Id.).
Reider reported that her depression and anxiety had returned due to current stressors that included unemployment, pain, and financial stress. (Id.). She reported difficulty sleeping and waking frequently. (Id.). She also reported an increased appetite and that she had gained approximately fifty pounds during the previous six months. (Id.). She experienced crying spells, frequent irritability, low energy, preoccupation with problems, difficulty concentrating, and lack of interest in being around people other than her family. (Id.). She also reported panic attacks characterized by palpitations, sweating, breathing difficulty, trembling, and fear. (Id.). She reportedly had suffered from panic attacks for the previous fifteen years, which had recently increased in frequency to twice a week. (Id.).
Reider reported that she was able to care for her personal hygiene, but had difficulty completing household chores, including cooking, laundry, and shopping, due to knee and joint pain. (Id.). She reported that she was able to manage money, but had difficulty driving due to her tendency to become easily frustrated and angry at other drivers. (Id.). She participated in limited socializing and spent the majority of her day watching television. (Id.).
Upon examination, Ransom noted that Reider appeared casually dressed and well-groomed. (Id.). Ransom opined that Reider had fluent and intelligible speech with a moderately dysphoric and tense voice, adequate language, coherent and goal-direct thought processes, moderately dysphoric and tense mood and affect, clear sensorium, full orientation, good insight and judgment, and average intellectual functioning. (Id.). Ransom noted that Reider's attention and concentration appeared to be mildly impaired by mood disturbance and anxiety. (Id.). According to Ransom, Reider was able to count backwards from ten and could perform two out of three simple calculations, but was unable to complete serial threes. (Id.). Reider's recent and remote memory skills appeared impaired due to mood disturbance and anxiety. (Id.). According to Ransom, Reider could recall one out of three objects immediately, one out of three objects after delay, and could complete three digits forward and two digits backward. (Id.). Reider had difficulty remembering information about her own past personal history. (Id.).
According to Ransom, Reider would have mild to moderate difficulty following and understanding simple directions and instructions, performing simple tasks independently, maintaining attention and concentration for simple tasks, maintaining a simple regular schedule, and learning simple new tasks. (Id.). She would have moderate difficulty performing complex tasks, relating adequately with others, and appropriately dealing with stress due to major depressive disorder, currently moderate, panic disorder without agoraphobia, currently moderate. (Id.). Ransom opined that the evaluation was consistent with Reider's alleged psychiatric symptoms and suggested that Reider suffered from significant psychiatric problems that would moderately interfere with her ability to function on a daily basis. (Id.). Ransom recommended that Reider seek more intensive psychiatric treatment and assessed her prognosis to be "improved with more intensive treatment." (Id.).
This Court's scope of review is limited to whether the Commissioner's determination is supported by substantial evidence in the record and whether the Commissioner applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) ("[i]n reviewing a final decision of the Commissioner, a district court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision"), reh'g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) ("it is not our function to determine de novo whether plaintiff is disabled [;] . . . [r]ather, we must determine whether the Commissioner's conclusions are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard") (internal citation and quotation omitted). Pursuant to 42 U.S.C. § 405(g), a district court reviewing the Commissioner's determination to deny disability benefits is directed to accept the Commissioner's findings of fact unless they are not supported by "substantial evidence." See 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive"). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must consider the record as a whole, examining the evidence submitted by both sides, "because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent they are supported by substantial evidence, the Commissioner's findings of fact must be sustained "even where substantial evidence may support the claimant's position and despite the fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise." Matejka v. Barnhart, 386 F.Supp.2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if 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 12 months." 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A). In assessing whether a claimant is disabled, the ALJ must employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The five steps are:
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467. "The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t step five the burden shifts to the Commissioner to `show there is other gainful work in the national economy [which] the claimant could perform.'" Butts v. Barnhart, 388 F.3d at 383 (quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
In his decision, the ALJ followed the required fivestep analysis for evaluating disability claims. (Tr. 17-27). Under step one of the process, the ALJ found that Reider has not engaged in substantial gainful activity since May 3, 2013, the alleged onset date. (Tr. 19). At step two, the ALJ concluded that Reider has the severe impairments of right knee arthritis status post arthroscopic surgeries, depression, and anxiety. (Id.). At step three, the ALJ determined that Reider does not have an impairment (or combination of impairments) that meets or medically equals one of the listed impairments. (Tr. 19-21). With respect to Reider's mental impairments, the ALJ found that Reider suffers from mild restrictions in activities of daily living and social functioning and moderate difficulties in maintaining concentration, persistence and pace, and social functioning. (Id.). The ALJ concluded that Reider has the RFC to perform simple tasks at less than the full range of sedentary work, including sitting for up to six hours in an eight-hour workday, standing or walking up to two hours in an eight-hour workday, and lifting and carrying up to ten pounds, but must be permitted to change positions after every thirty minutes of standing or walking and cannot kneel, crouch, or climb ladders or scaffolds. (Tr. 21-26). At steps four and five, the ALJ determined that Reider was unable to perform her prior work, but that other jobs existed in the national and regional economy that she could perform, including the positions of ticket taker and taper. (Tr. 26-27). Accordingly, the ALJ found that Reider is not disabled. (Id.).
Reider contends that the ALJ's determination that she is not disabled is not supported by substantial evidence and is the product of legal error. (Docket # 11-1). First, she challenges the ALJ's RFC assessment on the grounds that the ALJ failed to give appropriate weight to the opinion of her treating orthopedist, Bruce P. Klein ("Klein"), MD, that Reider could work only four hours a day. (Docket ## 11-1 at 23-28; 13 at 1-6). Next, Reider maintains that the ALJ's RFC assessment is flawed because he failed to consider or weigh Ransom's opinion. (Docket ## 11-1 at 29-31; 13 at 6).
Reider argues that the ALJ improperly failed to consider Ransom's opinion and thus failed to weigh it or to explain the basis for rejecting the limitations that she assessed. (Docket ## 11-1 at 29-31; 13 at 6). According to Reider, an ALJ is required to consider all medical opinions of record, including opinions authored by consulting physicians. (Id.). Reider maintains that the ALJ's failure to consider Ransom's opinion was an error requiring remand. (Id.). I agree.
An ALJ should consider "all medical opinions received regarding the claimant." See Spielberg v. Barnhart, 367 F.Supp.2d 276, 281 (E.D.N.Y. 2005) (citing 20 C.F.R. § 404.1527(d)). In evaluating medical opinions, regardless of their source, the ALJ should consider the following factors:
In his decision, the ALJ reviewed Reider's medical records, her testimony, and Blackwell's medical assessment, which he accorded "some weight." (Tr. 24-25). Based upon this evidence, the ALJ concluded that Reider had the mental capacity to perform simple tasks without any additional limitations. (Tr. 21, 25). In reaching this conclusion, the ALJ did not discuss or mention Ransom's opinion. Thus, the decision does not reflect whether he considered and rejected Ransom's opinion and, if so, the basis for any such rejection, or whether he overlooked Ransom's opinion entirely.
The government urges the Court to infer that the ALJ considered and properly rejected the limitations assessed by Ransom because those limitations were not supported (and indeed contradicted) by other evidence in the record. (Docket # 12-1 at 26-27). I disagree that the ALJ's decision permits such an inference. Rather, the decision is entirely silent on Ransom's opinion, and I am unable to determine whether the ALJ considered it or overlooked it altogether. Hall v. Colvin, 37 F. Supp. 3d at 627 (rejecting government's post hoc argument that the consulting opinion was incorporated into the ALJ's RFC limitation; "a reviewer of the ALJ's decision cannot determine what, if any, weight was assigned to . . . [consulting physician's] opinion"); Allen v. Comm'r of Soc. Sec., 2012 WL 4033711, *9 (N.D.N.Y. 2012) ("[b]ecause the ALJ failed to explain why portions of [the nurse practitioner's and doctor's] medical source statements were not adopted, the [c]ourt finds that the ALJ did not apply the correct legal standard in determining [p]laintiff's RFC assessment"); Overbaugh v. Astrue, 2010 WL 1171203, *9 (N.D.N.Y. 2010) ("[b]ecause the ALJ offered no explanation for failing to include the limitations into plaintiff's RFC, the [c]ourt is unable to determine how the ALJ arrived at plaintiff's RFC [;] [t]he ALJ's failure to explain why he disregarded portions of [the doctor's] assessment, while simultaneously assigning it controlling weight, constitutes legal error"); May v. Barnhart, 2007 WL 203986, *5 (D.N.H. 2007) ("[i]n light of the ALJ's failure to address the opinion of [mental health counselor and doctor] that claimant's impairments will cause her to be absent from work more than three days each month, the most prudent course is to remand this matter for further proceedings"); Dioguardi v. Comm'r of Soc. Sec., 445 F.Supp.2d 288, 298 (W.D.N.Y. 2006) ("[w]ith no explanation provided, it is not possible for the [c]ourt to know why . . . the ALJ chose to disregard the evidence that was more favorable to plaintiff's claim[;] [b]er failure to reconcile the RFC assessment with medical source statements was error, and based upon the testimony given by the vocational expert, the failure was not harmless").
Although the failure to explicitly assign weight to an opinion may be harmless in certain situations, such as where the ALJ's decision reflects that the opinion was considered or where the limitations assessed in the opinion are ultimately accounted for in the RFC, see Hamilton v. Astrue, 2013 WL 5474210, *16 (W.D.N.Y. 2013) ("[a]lthough the ALJ did not explicitly assign a weight to [medical opinion], the ALJ provided a summary of [the opinion] . . . in his decision[;] [i]n any event, the [opinion] is consistent with . . . and supports [the ALJ's] RFC determination; any error is thus harmless"), those circumstances are not present here because the ALJ's opinion does not even mention Ransom's opinion.
Moreover, the limitations Ransom assessed in her opinion are not accounted for in the ALJ's RFC. The only work-related mental limitation incorporated into the ALJ's RFC is a limitation to simple work. A simple work limitation does not, in the absence of further explanation, appear to account for many of the limitations identified by Ransom, including assessed difficulties with attention and concentration, scheduling, learning, dealing with stress, and interacting with others. (Tr. 465). Indeed, Ransom's opinion that Reider suffered from mild to moderate difficulties understanding simple directions and instructions and performing simple tasks independently seems at odds with the ALJ's conclusion that Reider could perform simple work. On this record, the ALJ should have explained why these limitations were not incorporated into his RFC. See Stytzer v. Astrue, 2010 WL 3907771 at *8 ("[t]he RFC determination is less limiting than [the consulting physician's] opinion, thus the ALJ was compelled to explain why he rejected [the opinion]").
Reider also contends that the ALJ's RFC assessment was flawed because he improperly rejected the four-hour limitation assessed by Klein. (Docket ## 11-1 at 23-28; 13 at 1-6). In light of my determination that the ALJ erred in failing to evaluate Ransom's opinion, I decline to reach Reider's remaining contentions. See Johnson v. Colvin, 2016 WL 3922025, *5 (W.D.N.Y. 2016) ("[b]ecause reevaluation of the weight to be assigned to [the physician's] opinion could affect the ALJ's RFC assessment and the rest of the sequential evaluation process, I do not reach [plaintiff's] remaining contentions"). Although I do not reach the issue, I note that a longitudinal review of Klein's treatment notes suggests that the ALJ correctly characterized Klein's treatment note restricting Reider to a four-hour workday as temporary in nature. (Tr. 524). Reider's treatment history demonstrates Klein performed three separate arthroscopic surgeries on Reider and that each time he temporarily excused her from work while he assessed her recovery. (Tr. 384-462). He typically permitted her to return to work, with temporary restrictions that he later removed based upon her improvement. (Tr. 424, 431, 434-35, 439-42, 443, 444-45, 462, 484-85, 486-87, 488). Also, in a treatment note that post-dated the treatment note in which Klein assessed the four-hour limitation, Klein stated that "current restrictions remain with no prolonged stairs, no squatting, kneeling or deep knee bends"; he did not articulate an hours restriction. (Tr. 488). Indeed, as recognized by the ALJ, Klein endorsed Reider's goal of obtaining employment that did not require kneeling, squatting, deep knee bends, ladders, stairs, prolonged standing or walking, and he believed that she would be best suited to a "sit-down job." (Tr. 459-60, 484-85). Placed in this context, it is reasonable to interpret his assessment that Reider could return to work for four-hour shifts as a temporary limitation to be reevaluated as Reider's healing progressed. (Tr. 488, 524). In any event, on remand the ALJ may consider whether to recontact Klein to clarify whether his four-hour restriction was temporary in nature.
For the reasons stated above, the Commissioner's motion for judgment on the pleadings
Olinsky Law Group, Howard D. Olinsky, Esq., of Counsel, Syracuse, NY, for Plaintiff.
Social Security Administration, Office of Regional General Counsel, Lauren E. Myers, Esq., of Counsel, New York, NY, for Defendant.
MAE A. D'AGOSTINO, District Judge.
On November 30, 2010, Plaintiff filed an application for SSD and SSI, alleging a disability onset date of August 12, 2008. See Dkt. No. 9, Administrative Record ("T."); see also Dkt. No. 1 at 1. The application was denied on July 5, 2011. T. at 15. Plaintiff then requested a hearing and appeared with her counsel before Administrative Law Judge ("ALJ) John P. Ramos on September 13, 2012. See id. at 34-68. On October 30, 2012, ALJ Ramos issued a decision denying Plaintiff's application. See id. at 18-26. Plaintiff subsequently requested review by the Appeals Council and was denied such review on December 24, 2013, making the ALJ's decision the final decision of the Commissioner of Social Security. See id. at 1-7.
Presently before the Court are Plaintiff's motion to remand for further administrative proceedings, and Defendant's motion for judgment on the pleadings. See Dkt. Nos. 11, 12.
Plaintiff was born on December 1, 1957, and was fifty four years old at the time of the hearings, held on September 13, 2012. T. at 35, 38. Before August 12, 2008, Plaintiff reported work as a head cook. Id. at 39. Plaintiff testified that her job as a cook required her to lift between twenty-to-fifty pounds, and to prepare for the job she received a year of special training. Id. at 42. She further testified that she has "suffered from neck [and shoulder] problems since 2008." Id.
Plaintiff was admitted to the hospital on October 29, 2009, where she presented to the emergency room with "flu-like symptoms. She had a three-day history of fevers, body aches, and prodrome consistent with influenza. She was admitted and started on antibiotics for pneumonia." Id. at 298. After Plaintiff experienced respiratory failure, she "remained in the intensive care unit for over one month." Id. at 312. Upon her recovery, Plaintiff was discharged on December 3, 2009. Id. at 312.
On February 19, 2010, Plaintiff presented to Dennis Noia, P.h.D. ("Dr.Noia") for a consultative psychiatric examination. Id. at 359-62. According to the medical source statement, Plaintiff was "capable of understanding and following simple instructions and directions. She appears to be capable of performing simple and some complex tasks with supervision and independently." Id. at 360-61. The statement also notes that Plaintiff can manage a routine and maintain a schedule, learn new tasks, make appropriate decisions, and "appears to be able to relate to and interact moderately well with others." Id. at 362. However, "[s]he appears to be having some difficulty dealing with stress." Id. Finally, Dr. Noia noted that his examination is consistent with Plaintiff's allegations. Id.
After relocating from Syracuse to Tennessee, Plaintiff reported numbness, tingling, and stabbing pain in her shoulders on August 24, 2010. Id. at 414. On September 29, 2010, Plaintiff was diagnosed with cervical radiculopathy and referred to a pain clinic. Id. at 397. On October 8, 2010, Plaintiff underwent an MRI, which showed that she had "[d]egenerative changes most significantly affecting the C5-C6 level." Id. at 391.
On December 3, 2010, Plaintiff was diagnosed with "[m]ajor depressive disorder, recurrent, severe with psychotic features" by Laura Mathews ("Mathews"), a Licensed Clinical Social Worker ("LCSW"). Id. at 422. Another LCSW, Jamie Green ("Green"), also worked with Plaintiff on at least two occasions. Id. at 424-25. A functional capacity assessment completed on December 14, 2010 found moderate limitations on Plaintiff's activities of daily living, interpersonal functioning, concentration, task performance and pace, and ability to adapt to change. Id. at 426-28. The assessment also determined that Plaintiff has a severe and persistent mental illness, and has a Global Assessment Function score of 50.
On February 19, 2011, Plaintiff presented to Theodore Schuman, M.D. ("Dr.Schuman") for "an all systems evaluation of allegations of rheumatoid arthritis, diabetes mellitus, hepatitis B, depression, [and] hepatitis C." Id. at 455; see also id. at 455-62. In his medical assessment, Dr. Schuman opined that Plaintiff could occasionally "lift and/or carry (including upward pulling) for up to 1/3 of an 8-hour workday a maximum of 10 pounds," and she could frequently "lift and/or carry from 1/3rd to 2/3rds of an 8-hour workday a maximum of less than 10 pounds." Id. at 461. Dr. Schuman further opined that Plaintiff could "stand and/or walk (with normal breaks) for a total of about 6-hours in an 8-hour workday," and could sit with no restrictions. Id. at 462.
On March 10, 2011, Frank Kupstas, P.h.D ("Dr.Kupstas") completed a psychiatric review of Plaintiff. See id. at 467-81. Dr. Kupstas found that Plaintiff had mild difficulty in maintaining social functioning, and moderate difficulty in maintaining concentration, persistence, or pace. Id. at 477. He gave great weight to the psychological evaluation performed by Dr. Noia, and did not give any weight to the diagnoses performed by Mathews on December 3, 2010, because a LCSW is a "non-acceptable source." Id. at 479.
On June 29, 2011, Saul Juliao, M.D. ("Dr.Juliao") completed a second RFC assessment. See id. at 509-17. Similar to Dr. Cohn, Dr. Julian found that Plaintiff could occasionally lift or carry twenty pounds, could frequently lift or carry ten pounds, could stand or walk with normal breaks for about six hours in an eight-hour workday, and could sit with normal breaks for about six hours in an eight-hour workday. Id. at 510. Dr. Juliao, like Dr. Cohn, opined that Plaintiff's "statements about her symptoms and functional limitations are partially credible [because] the severity alleged [is] not completely consistent with the objective findings from the evidence in file." Id. at 514. Finally, Dr. Julian commented on Dr. Schuman's examination, stating that Dr. Schuman's "restrictions are not consistent with his own findings. [Plaintiff] has a history of arthritic pain, but [Plaintiff] has [f]ull [range of motion] in all major weight bearing joints." Id. at 515.
On March 21, 2012, Plaintiff presented for intake at Syracuse Community Health Center. See id. at 554-55. She was diagnosed with Anxiety and Depressive disorders, and Nicole DeFurio ("DeFurio"), a LCSW, stated that Plaintiff had a flat mood, was despondent, and had a tearful affect. Id. at 555. However, DeFurio also found that Plaintiff's "[e]ye contact and physical appearance were good. Plaintiff's insight and judgment were appropriate." Id.
For purposes of SSI, a person is disabled when 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 12 months." 42 U.S.C. § 1382(c)(3) (A). There is a five-step analysis for evaluating disability claims:
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (citations omitted). The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step. Id.
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.1990). Rather, the Court must examine the Administrative Record to ascertain whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir.1998). "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." Richardson v. Perales, 402 U.S. 389, 401 (1971).
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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).
At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. . . . If the claimant does suffer from such an impairment, at the second step, the ALJ must consider "the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" of record. . . . The ALJ must consider "[s]tatements [the claimant] or others make about [his] impairment(s), [his] restrictions, [his] daily activities, [his] efforts to work, or any other relevant statements [he] makes to medical sources during the course of examination or treatment, or to [the agency] during interviews, on applications, in letters, and in testimony in [its] administrative proceedings."
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010) (quotations and citations omitted).
If a plaintiff's testimony concerning the intensity, persistence or functional limitations associated with his impairments is not fully supported by clinical evidence, the ALJ must consider additional factors in order to assess that testimony, including the following: (1) daily activities; (2) location, duration, frequency, and intensity of any symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness and side effects of any medications taken; (5) other treatment received; and (6) other measures taken to relieve symptoms. 20 C.F.R. § 416.929(c)(3) (i)-(vi). The issue is not whether the clinical and objective findings are consistent with an inability to perform all substantial activity, but whether the plaintiff's statements about the intensity, persistence, or functionally limiting effects of his symptoms are consistent with the objective medical and other evidence. See SSR 96-7p, Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 1996 WL 374186, *2 (Soc. Sec. Admin. July 2, 1996). One strong indication of credibility of an individual's statements is their consistency, both internally and with other information in the record. Id. at *5.
"After considering plaintiff's subjective testimony, the objective medical evidence, and any other factors deemed relevant, the ALJ may accept or reject claimant's subjective testimony." Saxon v. Astrue, 781 F.Supp.2d 92, 105 (N.D.N.Y.2011) (citing, inter alia, 20 C.F.R. §§ 404.1529(c)(4), 416.929(c) (4)). An ALJ rejecting subjective testimony "`must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his decision is supported by substantial evidence." Melchior v. Apfel, 15 F.Supp.2d 215, 219 (N.D.N.Y.1998) (quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y.1987)). The Commissioner may discount a plaintiff's testimony to the extent that it is inconsistent with medical evidence, the lack of medical treatment, and her own activities during the relevant period. See Howe-Andrews v. Astrue, No. CV-05-4539, 2007 WL 1839891, *10 (E.D.N.Y. June 27, 2007). With regard to the sufficiency of credibility determinations, the Commissioner has stated that
SSR 96-7p, 1996 WL 374186, at *2.
At the first step of the sequential analysis, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 12, 2008, Plaintiff's alleged onset date. T. at 20. At step two, the ALJ concluded that Plaintiff had the following severe impairments: rheumatoid arthritis, depression, and chronic obstructive pulmonary disease ("COPD"). Id. At the third step of the analysis, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. Then the ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § § 404.1567(b) and 416.967(b) with the following limitations:
Id. at 21-22. At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. Id. at 26. At the fifth and final step of the analysis, relying on the Medical-Vocational Guidelines set forth in 20 C.F.R. Part 404, Subpart P, Appendix 2, the ALJ concluded that jobs existed in significant numbers in the national economy that Plaintiff could perform. Id. Therefore, the ALJ made a determination that Plaintiff was not disabled, as defined by the Social Security Act. Id. at 27.
When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including: (i) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion. See 20 C.F.R. § 404.1527(c).
Although the ALJ need not explicitly consider each of the factors listed in 20 C.F.R. § 404.1527(c), it must be clear from the ALJ's decision that a proper analysis was undertaken. See Petrie v. Astrue, 412 Fed. Appx. 401, 406 (2d Cir.2011) ("[W]here `the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability'") (quotation omitted); Hudson v. Colvin, No. 5:12-CV-0044, 2013 WL 1500199, *10 n.25 (N.D.N.Y. Mar. 21, 2013) ("While [the ALJ] could have discussed the factors listed in the regulations in more detail, this does not amount to reversible error because the rationale for his decision is clear and his ultimate determination is supported by substantial evidence"), report and recommendation adopted, 2013 WL 1499956 (N.D.N.Y. Apr. 10, 2013). Failure "to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Sanders v. Comm'r of Soc. Sec., 506 Fed. Appx. 74, 77 (2d Cir.2012) (citations omitted).
Plaintiff argues that the ALJ erred by failing to request a treating source statement. Dkt. No. 11 at 14. First, he cites a Northern District case for the proposition that the treating physician rule requires that an ALJ develop the record by "obtaining information from a claimant's treating physician." Id. at 15; Boswell v. Astrue, No. 09-CV-0533, 2010 WL 3825622, *4 (N.D.N.Y. Sept. 7, 2010). Plaintiff then cites a second Northern District case that puts "an affirmative obligation [on the ALJ] to make reasonable efforts to obtain from a claimant's treating physicians any necessary reports, including an assessment of his or her RFC." Dkt. No. 11 at 15; Lawton v. Astrue, No. 1:08-CV-0137, 2009 WL 2867905, *16 (N.D.N.Y. Sept. 2, 2009). The Court finds that neither of these cases are sufficiently similar to the current case to support Plaintiff's proposition.
In Lawton, the administrative record before the ALJ "contain[ed] neither a physical RFC assessment nor a medical source statement pertaining to plaintiff's physical capabilities, let alone one from a treating source." Lawton, 2009 WL 2867905 at *16. Based on this "critical void[,]" the ALJ was required "to take measures to complete the record and fill the perceived gaps." Id. (citation omitted). As pointed out by Defendant, "the [current] record before the ALJ contained 19 medical exhibits and included Plaintiff's treatment notes through August 2012, only about one month before the hearing." Dkt. No. 12 at 9; see also T. at 525-57. Therefore, unlike in Lawton, there was no gap in the record before the ALJ that required him to take further action, especially considering that he had already contacted Syracuse Community Health Center and requested Plaintiff's records. T. at 558.
Defendant argues that the ALJ developed the record appropriately, and that he did not err by not requesting a treating source statement. Dkt. No. 12 at 8. Defendant cites Pellam v. Astrue, arguing that "where [a] consultative examiner's opinion largely supported ALJ's RFC assessment, and the record contained all treatment notes, [the] ALJ had no further obligation to supplement the record by acquiring a medical source statement from one of the treating physicians." Id. (citing Pellam v. Astrue, 508 Fed. Appx. 87, 89-90 (2d Cir.2013)). In Pellam, the ALJ "had all of the treatment notes from Pellam's treating physicians." Pellam, 508 Fed. Appx. at 18. In the current case, it is not clear whether the ALJ considered treatment notes from Syracuse Community Health Center, because the ALJ does not reference these treatment notes in his decision. However, a review of the record reveals that the only person who diagnosed Plaintiff at Syracuse Community Health Center was Nicole DeFurio on March 31, 2012. T. at 596-97. This diagnosis only covered Plaintiff's mental state. Id.
Defendant also references Tankisi v. Commissioner of Social Security. Dkt. No. 12 at 8. According to Tankisi, a record is not incomplete due to the lack of a treating medical source statement. Tankisi v. Comm'r of Soc. Sec., 521 Fed. Appx. 29, 33-34 (2d Cir.2013). Further, remand is not required "when an ALJ fails in his duty to request opinions, particularly where, as here, the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity." Id.
Based on the foregoing, the Court finds that the record contained sufficient evidence for the ALJ to assess Plaintiff's RFC.
Plaintiff contends that the ALJ did not evaluate the medical opinion evidence based on "factors such as the examining relationship, whether the opinion comes from a specialist, whether the opinion is supported by medical signs and laboratory findings, and whether the opinion is consistent with the record as a whole." Dkt. No. 11 at 18. Specifically, Plaintiff points to Dr. Schuman's ten pound lifting restriction, and argues that Dr. Schuman's examining relationship with Plaintiff meant that more weight should have been given to the ten pound restriction. Id. Plaintiff also argues that as Dr. Ganesh's opinion contained no reference to a limitation on lifting. Id. at 19.
Defendant argues that, as "the ALJ noted, [Dr. Ganesh's] opinion is consistent with a light range of work[,]" and therefore, "it is [] clear that the ALJ gave weight to Dr. Ganesh's opinion." Dkt. No. 12 at 10-11. Defendant also asserts that "Dr. Schuman's opinion was generally consistent with [the ALJ's] RFC" and "the ALJ noted a 20 pound lifting restriction is more consistent with the other evidence." Id. at 11-12. Finally, Defendant claims that the ALJ was justified "in not accepting Dr. Schuman's assessment that Plaintiff could lift only 10 pounds because the regulations allow the ALJ to give a medical opinion less weight where the opinion is not consistent with other evidence in the record." Id. at 12-13.
"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." Cobh v. Comm'r of Soc. Sec., No. 5:13-cv-591, 2014 WL 4437566, *6 (N.D.N.Y. Sept. 9, 2014) (quoting Leach ex. Rel. Murray v. Barnhart, No. 02 Civ. 3561, 2004 WL 99935, *9 (S.D.N.Y. Jan. 22, 2004)). As Dr. Cohn's and Dr. Juliao's opinions "may constitute substantial evidence[,]" the ALJ may validly rely on them as long as their opinions are "consistent with the record as a whole." Id. According to the ALJ, "only Dr. Schuman limit[ed] the claimant to less than 20 pounds." T. at 24. Therefore, the ALJ validly relied on evidence consistent with the record when he decided to give little weight to Dr. Schuman's ten pound lifting restriction. See 20 C.F.R. § 404.1527(c)(4); see also 20 C.F.R. § 416.927(c)(4).
Finally, the Court finds that the ALJ followed the appropriate regulatory factors when affording weight to the medical source statements. As Defendant correctly contends, the Court requires "no such slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear." Dkt. No. 12 at 13 (quoting Atwater v. Astrue, 512 Fed. Appx. 67, 70 (2d Cir.2013)). The ALJ's decision indicates that the various medical opinions are indicative of a light work RFC, and he properly explained his decision to afford less weight to those statements that dictated a lower RFC. T. at 24.
In support of her argument for remand, Plaintiff cites Dutcher v. Comm'r of Soc. Sec., where the court found that the ALJ erred in stating "that she cannot accord the opinion of [two LCSW's] controlling weight because they are not acceptable medical sources, but she failed to properly explain the weight she did assign." Dutcher v. Comm'r of Soc. Sec., No. 3:13-CV-611, 2014 WL 2510557, *6 (N.D.N.Y. June 4, 2014). The court in Dutcher ordered remand "so that the ALJ may render a decision regarding Plaintiff's RFC after properly evaluating all of the medical opinion evidence." Id.
Defendant argues that the RFC determination is supported by substantial evidence, asserting that "the ALJ's decision is sufficiently specific to make clear to subsequent reviewers the weight given to the opinions and the reason for that weight." Dkt. No. 12 at 9. Defendant further argues that the Second Circuit has not required that all evidence be mentioned in detail, as long as "the evidence of record permits us to glean the rationale of an ALJ's decision." Id at 9-10 (citing Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir.2013)).
On December 14, 2010, LCSWs Green and Mathews, after having met with Plaintiff, indicated that Plaintiff had a current GAF of 50.
Moreover, in Dutcher, the court found that remand was warranted for several reasons. First, the court noted that the ALJ incorrectly accorded "little weight" to the plaintiffs treating physician, having based this determination on a misapplication of the record. See Dutcher, 2014 WL 2510557, at *4. The court found that the determination as to the treating physician alone warranted remand. See id. Further, the court found that this error was compounded by the fact that the ALJ gave great weight to the opinion of a consulting physician, who treated the plaintiff only once, and was not a specialist in the relevant field, unlike the plaintiffs treating physician. See id. at *5. Unlike Dutcher, the ALJ's decision in the present matter does not include such compound errors that would warrant remand.
Accordingly, the Court agrees with Defendant that "where, as here, the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he mention every piece of evidence in detail." Dkt. No. 12 at 10 (citing Cichoki v. Astrue, 729 F.3d 172, 178 (2d Cir.2013)). Based on the foregoing, the Court denies Plaintiffs motion for remand on this ground.
Plaintiff correctly sets out that when the ALJ finds that a claimant's allegations concerning the intensity and persistence of symptoms are not credible, he must consider the factors enumerated in 20 C.F.R. § 416.929(c)(1)-(3). Dkt. No. 11 at 19. Plaintiff also asserts that "the ALJ's brief summarization of a few select findings, combined with a vague conclusory rejection of Plaintiff's assertions does not provide adequate explanation for his credibility finding." Id. at 20.
While the ALJ did not consider all of the factors in a single paragraph, the decision shows that he evaluated all of the relevant characteristics under 20 C.F.R. § 416.929. The ALJ stated that Plaintiff has no restriction on her activities of daily living, noting that during the week she cooks, cleans, showers twice, dresses twice, and every month she does laundry. T. at 21. He also noted that Plaintiff "took a bus to the [February 2010] examination." Id. at 22. The ALJ then chronicled Plaintiff's subjective symptoms starting at her alleged onset of disability date. Id. at 22-25. The ALJ "acknowledge[d] that the claimant has been diagnosed with depression, and in the most recent treatment notes indicate[s] she has been prescribed Celexa." Id. at 24. Further, the ALJ noted that "the claimant received a steroid injection in November 2010 . . . [and] had tried multiple medications for pain and reported that none had helped." Id. at 23. Based on these factors and the objective medical evidence, the ALJ found that "while the claimant has impairments that are reasonably expected to produce the type of pain or discomfort she alleges, her complaints suggest a greater severity of symptoms than can be shown by the objective medical evidence alone." Id. at 24-25.
Contrary to Plaintiffs assertion, the ALJ's decision makes clear that he considered the relevant factors under 20 C.F.R. § 416.929 when making his determination. His credibility determination was based on "the treatment records, the consultative examiner's evaluation, and the opinion of the state agency reviewer," and the ALJ found that these sources were "consistent with all credible record evidence." Id. at 26. Then, the ALJ determined that Plaintiffs "specific allegations are not credible when compared with the record." Id.
Based on the foregoing, the Court finds that the ALJ properly evaluated Plaintiffs credibility and followed the two-step process mandated by 20 C.F.R. § 416.929.
An ALJ may determine whether a plaintiffs mental impairments "significantly diminish" his or her work capacity by determining whether the plaintiff can meet the basic mental demands of competitive, remunerative, and unskilled work as stated in SSR 85-15. The ruling states that these basic demands include the ability, 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." Id. A substantial loss of the ability to meet any of these demands would severely limit the potential occupational base at any exertional level and would, thus, "significantly diminish" the plaintiffs work capacity. See Sipe v. Astrue, No. 5:09-cv-1353, 2012 WL 2571268, *8 (N.D.N.Y. July 3, 2012). Such a substantial loss would prohibit the use of the Grids and necessitate the use of a vocational expert to determine whether there would be any jobs left in the national economy that the plaintiff could perform. See id.
On the other hand, Defendant contends that, because "[t]he ALJ found that the additional limitations did not significantly erode the occupational base[ ] of unskilled sedentary work[,]" Plaintiffs non-exertional limitations do not preclude application of the Medical-Vocational Guidelines, specifically Medical-Vocational Rule 202.14. Dkt. No. 12 at 15-16. Further Defendant asserts that Plaintiff did not object to the remainder of the ALJ's non-exertional findings, and these findings alone are consistent with unskilled work. Id. at 16. Therefore, Defendant argues that usage of the Medical-Vocational Guidelines was appropriate. Id. at 16.
Dr. Kupstas' report indicates that Plaintiff "is able to perform [activities of daily living] independently" and that her symptoms "due to a mental impairment are credible and [her] limitations [are] no more than moderate in [concentration, persistence, or pace.]" T. at 479. Plaintiff's restrictions, according to the ALJ, are consistent with this report. See id. at 21-22. Further, ALJ Ramos' reference to "simple tasks in a position with consistent job duties that [do] not require the claimant to supervise or manage the work of others" has been upheld by the Northern District on two earlier occasions because "[t]hese findings mirror the Ruling's parameters of mental capacity for unskilled sedentary work." Id. at 21-22; see Miley v. Colvin, No. 3:13-cv-566, 2014 WL 4966144, *11 (N.D.N.Y. Sept. 30, 2014); see also Bliss v. Colvin, No. 3:13-cv-1086, 2015 WL 457643, *4 (N.D.N.Y. Feb. 3, 2015). While the ALJ approved Plaintiff for light work in the current case, non-exertional limitations are relevant to the skill level required, not exertional requirements. SSR 85-15 at 4. Therefore, although the ALJ limited Plaintiff to "unskilled light work[,]" the difference between sedentary jobs in Miley and Colvin and light jobs in the current case is not material to the Court's decision. T. at 26.
Based on the foregoing, the Court affirms the ALJ's decision to rely on the Medical-Vocational Guidelines to determine whether Plaintiff was disabled as defined by the Social Security Act.
After carefully reviewing the entire record in this matter, the parties' submissions and the applicable law, and for the above-stated reasons, the Court hereby
The Medical-Vocational Guidelines (Regulations No. 4, Subpart P, Appendix 2) discuss the relative adjudicative weights which are assigned to a person's age, education, and work experience. Three tables in Appendix 2 illustrate the interaction of these vocational factors with his or her RFC. RFC is expressed in terms of sedentary, light, and medium work exertion. The table rules reflect the potential occupational base of unskilled jobs for individuals who have severe impairments which limit their exertional capacities: approximately 2,500 medium, light, and sedentary occupations; 1,600 light and sedentary occupations; and 200 sedentary occupations—each occupation representing numerous jobs in the national economy. (See the text and glossary in SSR 83-10, PPS-101, Determining Capability to Do Other Work—the Medical-Vocational Rules of Appendix 2.) Where individuals also have nonexertional limitations of function or environmental restrictions, the table rules provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs within these exertional ranges that would be contraindicated by the additional limitations or restrictions. However, where a person has solely a nonexertional impairment(s), the table rules do not direct conclusions of disabled or not disabled. Conclusions must, instead, be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in Appendix 2.
Nonexertional Impairments Contrasted With Exertional Impairments
The term "exertional" has the same meaning in the regulations as it has in the U.S. Department of Labor's classifications of occupations by strength levels. (See SSR 83-10, PPS-101, Determining Capability to Do Other Work—The Medical-Vocational Rules of Appendix 2.) Any job requirement which is not exertional is considered to be nonexertional. A nonexertional impairment is one which is medically determinable and causes a nonexertional limitation of function or an environmental restriction. Nonexertional impairments may or may not affect a person's capacity to carry out the primary strength requirements of jobs, and they may or may not significantly narrow the range of work a person can do.
Nonexertional limitations can affect the abilities to reach; to seize, hold, grasp, or turn an object (handle); to bend the legs alone (kneel); to bend the spine alone (stoop) or bend both the spine and legs (crouch). Fine movements of small objects, such as done in much sedentary work and in certain types of more demanding work (e.g., surgery), require use of the fingers to pick, pinch, etc. Impairments of vision, speech, and hearing are nonexertional. Mental impairments are generally considered to be nonexertional, but depressions and conversion disorders may limit exertion. Although some impairments may cause both exertional limitations and environmental restrictions (e.g., a respiratory impairment may limit a person to light work exertion as well as contraindicate exposure to excessive dust or fumes), other impairments may result in only environmental restrictions (e.g., skin allergies may only contraindicate contact with certain liquids). What is a nonexertional and extremely rare factor in one range of work (e.g., crawling in sedentary work) may become an important element in arduous work like coal mining.
Jobs which can possibly be performed by persons with solely nonexertional impairments are not limited to the approximately 2,500 unskilled sedentary, light and medium occupations which pertain to the table rules in Appendix 2. The occupational base cuts across exertional categories through heavy (and very heavy) work and will include occupations above the unskilled level if a person has skills transferable to skilled or semiskilled occupations within his or her RFC. (Note the examples in item 4.b of SSR 82-41, PPS-67, Work Skills and Their Transferability as Intended by the Expanded Vocational Factors Regulations effective February 26, 1979, where medical factors prevent not only the performance of past work but also the transferability of skills.)
Given no medically determinable impairment which limits exertion, the first issue is how much the person's occupational base—the entire exertional span from sedentary work through heavy (or very heavy) work—is reduced by the effects of the nonexertional impairment(s). This may range from very little to very much, depending on the nature and extent of the impairment(s). In many cases, a decisionmaker will need to consult a vocational resource.
The publications listed in sections 404.1566 and 416.966 of the regulations will be sufficient vocational resources for relatively simple issues. In more complex cases, a person or persons with specialized knowledge would be helpful. State agencies may use personnel termed vocational consultants or specialists, or they may purchase the services of vocational evaluation workshops. Vocational experts may testify for this purpose at the hearing and appeals levels. In this PPS, the term vocational specialist (VS) describes all vocational resource personnel.
The second issue is whether the person can be expected to make a vocational adjustment considering the interaction of his or her remaining occupational base with his or her age, education, and work experience. A decisionmaker must consider sections 404.1562-404.1568 and 416.962-416.968 of the regulations, section 204.00 of Appendix 2, and the table rules for specific case situations in Appendix 2. If, despite the nonexertional impairment(s), an individual has a large potential occupational base, he or she would ordinarily not be found disabled in the absence of extreme adversities in age, education, and work experience. (This principle is illustrated in rules 203.01, 203.02, and 203.10 and is set out in SSR 82-63, PPS-79, Medical-Vocational Profiles Showing an Inability to Make an Adjustment to Other Work.) The assistance of a vocational resource may be helpful. Whenever vocational resources are used and the decision is adverse to the claimant, the determination or decision will include: (1) citations of examples of occupations/jobs the person can do functionally and vocationally, and (2) a statement of the incidence of such work in the region in which the individual resides or in several regions of the country.
There has been some misunderstanding in the evaluation of mental impairments. Unless the claimant or beneficiary is a widow, widower, surviving divorced spouse or a disabled child under the Supplemental Security Income program, the sequential evaluation process mandated by the regulations does not end with the finding that the impairment, though severe, does not meet or equal an impairment listed in Appendix 1 of the regulations. The process must go on to consider whether the individual can meet the mental demands of past relevant work in spite of the limiting effects of his or her impairment and, if not, whether the person can do other work, considering his or her remaining mental capacities reflected in terms of the occupational base, age, education, and work experience. The decisionmaker must not assume that failure to meet or equal a listed mental impairment equates with capacity to do at least unskilled work. This decision requires careful consideration of the assessment of RFC.
In the world of work, losses of intellectual and emotional capacities are generally more serious when the job is complex. Mental impairments may or may not prevent the performance of a person's past jobs. They may or may not prevent an individual from transferring work skills. (See SSR 82-41, PPS-67, Work Skills and Their Transferability as Intended by the Expanded Vocational Factors Regulations effective February 26, 1979.)
Where a person's only impairment is mental, is not of listing severity, but does prevent the person from meeting the mental demands of past relevant work and prevents the transferability of acquired work skills, the final consideration is whether the person can be expected to perform unskilled work. 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. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base. This, in turn, would justify a finding of disability because even favorable age, education, or work experience will not offset such a severely limited occupational base.
Example 1: A person whose vocational factors of age, education, and work experience would ordinarily be considered favorable (i.e., very young age, university education, and highly skilled work experience) would have a severely limited occupational base if he or she has a mental impairment which causes a substantial loss of ability to respond appropriately to supervision, coworkers, and usual work situations. A finding of disability would be appropriate.
Where there is no exertional impairment, unskilled jobs at all levels of exertion constitute the potential occupational base for persons who can meet the mental demands of unskilled work. These jobs ordinarily involve dealing primarily with objects, rather than with data or people, and they generally provide substantial vocational opportunity for persons with solely mental impairments who retain the capacity to meet the intellectual and emotional demands of such jobs on a sustained basis. However, persons with this large job base may be found disabled because of adversities in age, education, and work experience. (This is illustrated in examples 2 and 3 immediately following.)
Example 3: Someone who is closely approaching retirement age, has a limited education or less, worked for 30 years in a cafeteria doing an unskilled job as a "server," almost constantly dealing with the public, and now cannot, because of a severe mental impairment, frequently deal with the public. In light of the narrowed vocational opportunity in conjunction with the person's age, education, lack of skills, and long commitment to the particular type of work, a finding of disabled would be appropriate; but the decision would not necessarily be the same for a younger, better-educated, or skilled person. (Compare sections 404.1562 and 416.962 of the regulations and rule 203.01 of Appendix 2.)
Where a person has only a mental impairment but does not have extreme adversities in age, education, and work experience, and does not lack the capacity to do basic work-related activities, the potential occupational base would be reduced by his or her inability to perform certain complexities or particular kinds of work. These limitations would affect the occupational base in various ways.
Example 4: Someone who is of advanced age, has a high school education, and did skilled work as manager of a housing project can no longer, because of a severe mental impairment, develop and implement plans and procedures, prepare budget requests, schedule repairs or otherwise deal with complexities of this level and nature. Assuming that, in this case, all types of related skilled jobs are precluded but the individual can do work which is not detailed and does not require lengthy planning, the remaining related semiskilled jobs to which skills can be transferred and varied unskilled jobs, at all levels of exertion, constitute a significant vocational opportunity. A conclusion of "not disabled" would be appropriate. (Compare rules 201.07, 202.07, and 203.13 of Appendix 2.)
Example 5: Someone who is of advanced age, has a limited education, and did semiskilled work as a first-aid attendant no longer has the mental capacity to work with people who are in emergency situations and require immediate attention to cuts, burns, suffocation, etc. Although there may be very few related semiskilled occupations to which this person could transfer work skills, the large occupational base of unskilled work at all levels of exertion generally would justify a finding of not under a disability. (This is consistent with rules 203.11-203.17 of Appendix 2.)
The reaction to the demands of work (stress) is highly individualized, and mental illness is characterized by adverse responses to seemingly trivial circumstances. The mentally impaired may cease to function effectively when facing such demands as getting to work regularly, having their performance supervised, and remaining in the workplace for a full day. A person may become panicked and develop palpitations, shortness of breath, or feel faint while riding in an elevator; another may experience terror and begin to hallucinate when approached by a stranger asking a question. Thus, the mentally impaired may have difficulty meeting the requirements of even so-called "low-stress" jobs.
Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant's condition may make performance of an unskilled job as difficult as an objectively more demanding job. for example, a busboy need only clear dishes from tables. But an individual with a severe mental disorder may find unmanageable the demands of making sure that he removes all the dishes, does not drop them, and gets the table cleared promptly for the waiter or waitress. Similarly, an individual who cannot tolerate being supervised may not be able to work even in the absence of close supervision; the knowledge that one's work is being judged and evaluated, even when the supervision is remote or indirect, can be intolerable for some mentally impaired persons. Any impairment-related limitations created by an individual's response to demands of work, however, must be reflected in the RFC assessment.
a. Limitations in climbing and balancing can have varying effects on the occupational base, depending on the degree of limitation and the type of job. Usual everyday activities, both at home and at work, include ascending or descending ramps or a few stairs and maintaining body equilibrium while doing so. These activities are required more in some jobs than in others, and they may be critical in some occupations. Where a person has some limitation in climbing and balancing and it is the only limitation, it would not ordinarily have a significant impact on the broad world of work. Certain occupations, however, may be ruled out; e.g., the light occupation of construction painter, which requires climbing ladders and scaffolding, and the very heavy occupation of fire-fighter, which sometimes requires the individual to climb poles and ropes. Where the effects of a person's actual limitations of climbing and balancing on the occupational base are difficult to determine, the services of a VS may be necessary.
c. Reaching, handling, fingering, and feeling require progressively finer usage of the upper extremities to perform workrelated activities. Reaching (extending the hands and arms in any direction) and handling (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands) are activities required in almost all jobs. Significant limitations of reaching or handling, therefore, may eliminate a large number of occupations a person could otherwise do. Varying degrees of limitations would have different effects, and the assistance of a VS may be needed to determine the effects of the limitations. "Fingering" involves picking, pinching, or otherwise working primarily with the fingers. It is needed to perform most unskilled sedentary jobs and to perform certain skilled and semiskilled jobs at all levels of exertion. As a general rule, limitations of fine manual dexterity have greater adjudicative significance—in terms of relative numbers of jobs in which the function is required—as the person's exertional RFC decreases. Thus, loss of fine manual dexterity narrows the sedentary and light ranges of work much more than it does the medium, heavy, and very heavy ranges of work. The varying degrees of loss which can occur may require a decision-maker to have the assistance of a VS. However, a VS would not ordinarily be required where a person has a loss of ability to feel the size, shape, temperature, or texture of an object by the finger-tips, since this is a function required in very few jobs.
3.
Communication is an important factor in work. The inability to hear, because it vitally affects communication, is thus of great importance. However, hearing impairments do not necessarily prevent communication, and differences in types of work may be compatible with various degrees of hearing loss. Occupations involving loud noise, such as in printing, have traditionally attracted persons with hearing impairments, whereas individuals with normal hearing have to wear ear protectors to be able to tolerate the working conditions. On the other hand, occupations such as bus driver require good hearing. There are so many possible medical variables of hearing loss that consultation of vocational reference materials or the assistance of a VS is often necessary to decide the effect on the broad world of work.
As a general rule, even if a person's visual impairment(s) were to eliminate all jobs that involve very good vision (such as working with small objects or reading small print), as long as he or she retains sufficient visual acuity to be able to handle and work with rather large objects (and has the visual fields to avoid ordinary hazards in a workplace), there would be a substantial number of jobs remaining across all exertional levels. However, a finding of disability could be appropriate in the relatively few instances in which the claimant's vocational profile is extremely adverse, e.g., closely approaching retirement age, limited education or less, unskilled or no transferable skills, and essentially a lifetime commitment to a field of work in which good vision is essential.
5.
A person may have the physical and mental capacity to perform certain functions in certain places, but to do so may aggravate his or her impairment(s) or subject the individual or others to the risk of bodily injury. Surroundings which an individual may need to avoid because of impairment include those involving extremes of temperature, noise, and vibration; recognized hazards such as unprotected elevations and dangerous moving machinery; and fumes, dust, and poor ventilation. A person with a seizure disorder who is restricted only from being on unprotected elevations and near dangerous moving machinery is an example of someone whose environmental restriction does not have a significant effect on work that exists at all exertional levels.
Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.
Where an individual can tolerate very little noise, dust, etc., the impact on the ability to work would be considerable because very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions.
Where the environmental restriction falls between very little and excessive, resolution of the issue will generally require consultation of occupational reference materials or the services of a VS.
EARL S. HINES, United States Magistrate Judge.
Hendrickson applied for disability insurance ("DIB") and supplemental security income ("SSI") benefits claiming disability due to depression and anxiety. (T. 106-13, 136).
ALJ Thomas John S. Pope ("ALJ Pope") conducted a video evidentiary hearing on September 10, 2009. (T. 19, 29-65). Hendrickson was represented by counsel, Jason Mintz, Esq., at the hearing. (T. 19, 29, 31). Hendrickson and an impartial vocational expert gave testimony.
When ALJ Pope denied Hendrickson's applications (T. 19-28), Hendrickson appealed to the Appeals Council of the Social Security Administration's Office of Hearings and Appeals. (T. 13-14). On June 28, 2011, the Appeals Council denied Hendrickson's request to review. (T. 3-5). This rendered ALJ Pope's opinion the final decision. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Represented by new counsel, Howard D. Olinsky, Esq., Hendrickson timely instituted this case on August 4, 2011. (Dkt. No. 1).
An initial discussion of the Social Security benefit programs at issue and the administrative decision-making process (including certain terms of art) will aid comprehension of Hendrickson's underlying claim, ALJ Pope's decision and Hendrickson's challenges thereto.
Disability Insurance benefits, authorized by Title II of the Social Security Act and funded by social security taxes, provide income to insured individuals forced into involuntary, premature retirement by reason of disability. Supplemental Security Income benefits, authorized by Title XVI of the Social Security Act and funded by general tax revenues, provide an additional resource to assure that disabled individuals' income does not fall below the poverty line.
Maximum benefits available under SSI are considerably less than under DIB. Here, ALJ Pope found that Hendrickson meets the insurance requirements of the DIB program. The practical effect of that finding makes Hendrickson's SSI application superfluous since Hendrickson, if found to be disabled, obviously would elect the higher benefit available under DIB.
The law requires individualized determinations. See Heckler v. Campbell, 461 U.S. 458, 467 (1983). Hence, Commissioner Astrue generally must make both medical and vocational assessments in every case. To satisfy this requirement, the Commissioner utilizes a five-step, sequential evaluation procedure for adjudicating disability-based claims. See 20 C.F.R. §§ 404.1520(a), 416.920.
Claimants bear the burden to prove their disability under the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998). When they do, a prima facie case of disability has been proven. See Minims v. Heckler, 750 F.2d 180, 185 (2d Cir.1984). The burden then shifts to the Commissioner in Step 5 to show "that 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, 134 F.3d at 1180; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); 20 C.F.R. § 416.966.
Specialized rules—some imposed externally by courts— govern the Commissioner's applications of these five steps. Those particularly pertinent to Hendrickson's case are described in the remainder of this section:
In the Commissioner's view, "[a] `severe' impairment is one that significantly limits an individual's physical or mental ability to do `basic work activities.'" Meadors v. Astrue, 370 Fed. App'x 179, 182 (2d Cir.2010) (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003); see also 20 C.F.R. § 416.921(b) ("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities"). The phrase "significantly limits," however, is not tantamount to an ultimate determination of disability. 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, 482 U.S. at 154 n. 12).
When making a Step 4 finding (as to whether a severely impaired claimant can perform past relevant work), an ALJ must first assess and articulate that claimant's "residual functional capacity" ("RFC"), i.e., what that claimant can still do in a work setting (8 hours a day, 5 days a week, or equivalent scheduled) despite physical and/or mental limitations caused by impairments and any related symptoms, such as pain. See 20 C.F.R. § 404.1545, 416.945(a); see also Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999) (defining RFC). Administrative law judges thus decide whether applicants, notwithstanding their impairments, have physical and mental abilities to perform activities generally required by competitive, remunerative work on a regular and continuing basis. See SSR 96-p, TITLE II AND XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, 61 Fed.Reg. 34474, 1996 WL 374184, at *4 (SSA July 2, 1996).
When physical impairments are at issue, the Commissioner's regulation and an internal policy ruling (a) identify various ordinary physical functions to be considered in context of an ordinary work schedule, (b) require function-byfunction assessments of those activities, and (c) dictate that the ultimate RFC determination account for limitations imposed by both severe and non-severe impairments. See 20 C.F.R. §§ 404.1545(a)(2), 404.1545(b), 416.945(a)(2), 416.945(b); SSR 96-8p, 1996 WL 374184, at * *5, 7.
When mental impairments are in the picture, the RFC assessment ("mental RFC") involves an even more detailed analyses of claimants' functional limitations than were undertaken at Step 2. Mental RFC consists of four broad categories (i.e., understanding and memory; sustained concentration and persistence; social interaction; and adaptation) with a total of twenty subparts that are each reviewed and rated (i.e., "not significantly limited"; "moderately limited"; "markedly limited"; "no evidence of limitation in this category"; and "not ratable on available evidence"). (T. 389-391). Ultimately, "[a]ny impairment-related limitations created by an individual's response to demands of work . . . must be reflected in the RFC assessment." SSR 85-15, THE MEDICAL—VOCATIONAL RULES AS A FRAMEWORK FOR EVALUATING SOLELY NONEXERTIONAL IMPAIRMENTS, 1985 WL 56857, at *5-6 (SSA 1985).
But, when claimants also suffer from nonexertional impairments,
The net effect is that when both exertional and nonexertional impairments are present, an administrative law judge theoretically can find a claimant disabled when the grids direct such a finding solely on the basis of severity of exertional impairments. But, when exertional impairments alone generate a grids finding of not disabled, an administrative judge then must determine (usually from other evidence) how much nonexertional impairments further diminish that claimant's occupational base. Only when a meaningful occupational base remains can an administrative judge then deny a claim using the grids as a framework. See Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996) (a claimant's work capacity is "significantly diminished" if there is an additional loss of work capacity that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity).
ALJ Pope's complete findings and conclusions appear on pages 21-27 of the administrative transcript contained in the record before the court. (Dkt. No. 9). For present purposes, however, it is necessary to identify and then amplify certain findings at sequential Steps 2, 4 and 5:
Step 5 (a) The grids (Medical-Vocational Rule 204.00) indicate "not disabled" with reference to Hendrickson's exertional impairments (none); (b) Hendrickson's nonexertional limitations, however, erode the occupational base of unskilled work at all exertional levels by 70%; but (c) many remaining jobs exist in the national economy for individuals with Hendrickson's residual functional capacity. (T. 27).
When making his Step 4 findings summarized above, ALJ Pope gave "great weight" to the opinions and analyses of the two state agency experts identified earlier. Dr. Barry examined Hendrickson. Dr. Kamin conducted an "extensive review of [Hendrickson's] medical records and objective tests from all the claimant's treatment providers." (T. 27). Their respective evaluations relating to concentration, persistence and pace chronicled that Hendrickson:
In ALJ Pope's view, this information indicates that Hendrickson's capacity for work-related activity is limited to performing unskilled work and only when not required to work closely with others. ALJ Pope explained:
(T. 25) (emphasis added).
Hendrickson cannot perform his past relevant work under the RFC rating ascribed to him above. Consequently, the sequential analysis proceeded to Step 5 where the burden rests with the Commissioner to show that Hendrickson can still perform alternative, available work. There, ALJ Pope could not apply the grids (Medical-Vocational Guidelines) directly because Hendrickson has nonexertional impairments. Consequently, ALJ Pope properly elicited extrinsic evidence from an impartial vocational expert, Edward Pagella, CRC, LCPC ("VE Pagella"). (T. 58-64, 101).
As is customary in these type proceedings, VE Pagella provided expert opinions in response to hypothetical questions. (T. 58-64). ALJ Pope asked VE Pagella to assume that a person of Hendrickson's age, education and experience has limitations requiring that he engage only in unskilled work that does not require working closely with others. (T. 59-60). Based on those assumptions, VE Pagella opined that such a person's occupational base will be reduced by 70%. (T. 60-61). VE Pagella also opined that thousands of jobs in the light and sedentary categories exist in the remaining 30% of the occupational base. Id. He identified several representative occupations within this remaining occupational base. Id.
In sum, VE Pagella provided testimony concerning (a) extent of erosion of Hendrickson's occupational base caused by limitations posed in the hypothetical question posed and (b) availability of a meaningful remaining occupational base for a person with such limitations. Given this evidence, ALJ Pope concluded that Hendrickson is not disabled because there are jobs that he can perform despite his limitations. (T. 27).
Hendrickson claims that ALJ Pope committed multiple errors in his application of sequential Steps 4 and 5. Specifically, Hendrickson contends:
(Dkt. No. 12, pp. 1, 8-24).
In response, the Commissioner maintains that ALJ Pope properly evaluated his RFC assessment with substantial evidence at Step 4, sufficiently developed the record of Hendrickson's impairments, and correctly found that Hendrickson could perform other work existing in significant numbers in the national economy at Step 5. (Dkt. No. 14, pp. 15-25).
The court's limited role 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, ___ U.S. ___, 130 S.Ct. 1503 (2010); Berry, 675 F.2d at 467; see also 42 U. S.C. § 405(g). When proper principles of law were applied, and when the Commissioner's decision is supported by substantial evidence,
Hendrickson's proffered errors regarding inadequate development of the record and a flawed credibility determination need not be addressed on their merits because a necessary and proper disposition reveals itself by focusing initially on points arguing that (a) correct principles of law were not applied to the Step 4 RFC finding and (b) substantial evidence does not support the Step 5 finding that Hendrickson can still perform alternative, available work. These two points, while analytically distinct, are closely entwined.
A legally-correct RFC determination must account for all of a claimant's limitations imposed by both severe and non-severe impairments. See discussion in Section II.B.2, supra. ALJ Pope, giving great weight to the state agency experts' findings and opinions, found Hendrickson's capacity to perform a full range of work at all exertional levels to be limited only to the extent that such work must be (a) unskilled and (b) not involve working closely with others. (T. 23, 26). This RFC assessment clearly accounts for the state agency experts' determinations that Hendrickson has moderate limitations in working in coordination with or proximity to others, and getting along with coworkers or peers without distracting them or exhibiting behavioral extremes. (T. 25-26). It does not, however, reckon the remaining limitations found by Dr. Barry and Dr. Kamin unless those limitations are subsumed in a generic, catch-all limitation for "unskilled work."
First, it is not self-evident that a person with limited ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances will function more acceptably when assigned only unskilled tasks. Second, the Commissioner's official definition of unskilled work does not support such premise, nor does it indicate that unskilled work ameliorates stress, or better enables a worker to complete a normal workday and workweek without interruptions from psychologically-based symptoms, or to work at a consistent pace, or to respond appropriately to changes in the work setting.
Intuitively, one might suppose that unskilled work probably involves less stress. In an interpretive Ruling, however, the Commissioner cautions against making such broad assumptions. In SSR 85-15, the Commissioner states unequivocally that "[a] claimant's condition [du to stress and mental illness] may make performance of an unskilled job as difficult as an objectively more demanding job." The Ruling elucidates that mentally impaired individuals' reactions to demands of work stress are highly individualized, and that in some cases, they have difficulty meeting requirements of even low stress jobs. And, of special relevance here, the Ruling emphasizes that "the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job." Id. Accordingly the Ruling directs that (a) ALJs make particularized findings about the nature of a claimant's stress, the circumstances that trigger it, and how those factors affect his ability to work, and (b) every impairment-related limitation created by an individual's response to demands of work be reflected in the RFC assessment. Id.
Finally, interpretive jurisprudence generally rejects the idea that a broad limitation of "unskilled work" suffices as a detailed assessment of the type required by
Given a legally-flawed RFC finding, a Step 5 error was sure to follow. ALJ Pope used his RFC as the basis for his hypothetical question to the vocational expert. Thus, his hypothetical question failed to include all of Hendrickson's nonexertional limitations. (T. 58-64). Specifically, ALJ Pope's hypothetical question to the vocational expert did not include limitations related to Hendrickson's stress or three of the five other moderate impairments listed earlier. (T. 58-64, 373, 389-91).
For expert vocational opinion to constitute substantial evidence, the hypothetical question posed to the vocational expert must include all limitations supported by medical evidence in the record. See Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir.1983) (The Commissioner may rely on a vocational expert's testimony concerning the availability of jobs suited to a hypothetical person's capabilities so long as the hypothetical is based on substantial evidence.); see also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir.2002) ("A hypothetical question posed to a vocational expert must reflect all of a claimant's impairments. . . . Where there exists in the record medically undisputed evidence of specific impairments not included in a hypothetical question . . ., the expert's response is not considered substantial evidence." (internal citations and quotation marks omitted)). The reason for this requirement is that it is important for the vocational expert to understand the full extent of the applicant's disability so that the expert does not declare an applicant capable of undertaking work in the national or local economy that the applicant cannot truly perform.
VE Pagella expressed opinions concerning the extent to which Hendrickson's job base is eroded by nonexertional limitations and also the existence and extent of jobs within the remaining occupational basis that Hendrickson can perform. Because the hypothetical question on which VE Pagella based these opinions failed to account for additional specific impairments that are medically undisputed, his testimony does not constitute substantial evidence.
1. The Commissioner's decision should be
Thomas v. Arn, 474 U.S. 140, 155 (1985); Graham v. City of New York, 443 Fed. App'x 657, 658 (2d Cir.2011); 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).
Signed on the 10 ay of December 2012.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520.
Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000) (citing DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998) (citing 20 C.F.R. §§ 404. 1520, 416.920)).
Hendrickson has been diagnosed with several GAF ratings, ranging in June 2007 from 20 (GAF score 11-20 indicates an individual is in "[s]ome danger of hurting self or others . . . or occasionally fails to maintain minimal personal hygeine . . . or gross impairment in communication") (T. 251-52) to a GAF of 35 (GAF score 31-40 indicates an individual has "[s]ome impairment in reality testing or communication . . . or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood") (T. 233). See Diagnostic and Statistical Manual of Mental Disorders ("DSM-ITR") 34 (4th ed.2000). In July 2007, he was diagnosed with a GAF of 30 (T. 278, 299, 300). See id. In January 2008, his GAF was rated at 37 (T. 397) and, later, at 42 (GAF score 41-50 indicates an individual has "[s]erious symptoms . . . or any serious impairment in social, occupational, or school functioning") (T. 402). See id. In August 2009, Hendrickson's GAF was scored at 50. See id.
Treatment notes also reflect that Hendrickson's episodes are triggered by major stresses. (T. 427).
