DAVID E. PEEBLES, Magistrate Judge.
Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.
After due deliberation, and based upon the court's oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby
ORDERED, as follows:
1) Defendant's motion for judgment on the pleadings is GRANTED.
2) The Commissioner's determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED.
3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff's complaint in its entirety.
THE COURT: All right. Thank you both for excellent presentations.
This matter was commenced by plaintiff under 42, United States Code, Section 405(g) and 1383(c)(3) to challenge a final determination by the Commissioner of Social Security finding that the plaintiff was not disabled at the relevant times and, therefore, ineligible for the benefits sought.
The background is as follows: Plaintiff was born in December of 1983, she is currently 35 years old. She was 25 years of age at the alleged onset of her disability in February of 2009. She stands, depending on where you look in the record, between five foot six inches in height at page 500 and five foot eight inches in height, that's at 44 and 250. She weighs between 239 pounds, that is at page 500, and 250 pounds, as reported at pages 44 and 250 of the administrative transcript.
Plaintiff graduated from high school and attended one year of college, achieving a 3.29 grade point average; that's reported at 311 of the administrative transcript. Plaintiff is right-handed, she drives. She lives with children; at various times, they were 7 and 3 and then later 11 and 7, in August of 2016, and it was noted that at the second hearing, which was conducted on August 3, 2016, plaintiff was pregnant. Plaintiff has a boyfriend.
Plaintiff last worked on January 27, 2009, that's at page 162, although at page 44 in the hearing she testified that she last worked in February of 2009. She worked as a grocery store cashier from 1999 to 2002, a donut shop cashier in 2002 for two months, a rehabilitation center direct care staff member from 2003 to 2007, a department store cashier from 2007 to 2008 and a call center support staff member from July 2008 to February 2009. She left that position when she became pregnant with her son.
Plaintiff suffers from both physical and mental impairments that have been diagnosed. Physically she has lumbar spine issues. She has undergone several magnetic resonance imaging testings over time. The — in January of 2010, that's at page 261, she was — the MRI results showed a small central L5/S1 disc protrusion, a small right central L3/L4 disc protrusion and a midline annular tear at L4-5. On January 7, 2010, at page 260 — I'm sorry, and that was post surgery, at — on March 31, 2010, she had an MRI that revealed bulging discs at L3/L4, L4/L5 and L5/S1. They are moderately stenosing the canal. This is the most likely cause of her pain. That's reported at 334.
On June 15, 2011, MRI results revealed mid-line high signal zones present at L3/L4, L4/L5 and L5/S1 with mild to moderate left foraminal narrowing at L4/L5. On August 28, 2012, findings included loss of disc space height and disc hydrational signal at L3/L4 through L5/S1 inclusive, particularly at L4-5, all status quo. No abnormal signal has developed in the imaged portion of the spinal cord. That's at page 449. The results carried over to 450, and the impression is discogenic changes as described above, and they reveal fairly mild bulges.
There was testing done on November 7, 2014, that's pages 746 and 747, revealing diffuse disc bulges at L3/L4 and L4/L5 with minimal thecal sac compression and diffuse disc bulge at L5/S1 level abutting the thecal sac. The previously noted disc protrusion is not seen. There is no other significant change.
The plaintiff underwent left L4/L5 hemilaminectomy with foraminotomies for nerve root decompression at the L4/L5 level on January 22, 2008. It included the excision of herniated nucleus pulposus by Dr. Ross Moquin. Plaintiff sees Dr. Lawrence Littell for pain management. She did not, however, undergo any physical therapy or injections; that's at 505. And she reported her TENS unit was working well in October 2015.
Mentally, plaintiff suffers from depression, bipolar disorder, anxiety, persecution disorder not otherwise specified. She has been hospitalized, including in June of 2010, following a breakup with a significant other. She was counseling for a period of time at Mercy Behavior & Wellness, more recently at Carthage Behavioral Center with LMHCP Thea Durant every other week. She — at Mercy, it was noted that she had missed four out of five appointments, at 641.
In terms of medications, plaintiff has been prescribed lamictal, Selecta, Soma, Topamax, Celexa, Ativan, hydrocodone and Zanaflex; that's at page 164, 504 and 50.
Plaintiff has a fairly robust list of activities of daily living, including she performs household chores, cooks, does laundry, washes dishes, shops, drives, cares for her children, bathes, dresses, goes to her friends' houses, talks on the telephone, uses a computer, goes to her mother's house. In December of 2010, it was reported that she was engaged in Zumba, and in July of 2013, swimming with her children. It was also reported in some of the treatment notes that she was moving furniture.
Plaintiff smokes one pack of cigarettes per day, or did at least, and that's at page 742.
Procedurally, plaintiff applied for Title II benefits protectively and Title XVI benefits in June of 2011, alleging an onset date of February 1, 2009, and claiming disability based on degenerative disc disease, back problems and depression.
On October 22, 2012, Administrative Law Judge Marie Greener conducted a hearing. She issued a decision on November 13, 2012, following that hearing, concluding that plaintiff was not disabled at the relevant times.
The Social Security Administration Appeals Council denied plaintiff's request for review of that decision on January 30th, if I read my notes correctly, 2014.
An appeal was brought to this court, resulting in a remand of the matter on April 16, 2015, by District Judge Mae A. D'Agostino, that's reported at 541 to 549, specifically the agency was required to review plaintiff's physical limitations and it was stated that the ALJ should have re-contacted Dr. Littell. The ALJ substituted her opinion for competent medical evidence, and also there should have been clarification of Dr. Sirotenko's opinion.
On August 5, 2013, the Social Security Administration Appeals Council remanded the matter pursuant to the directive of the District Court and vacated the earlier decision. A hearing was conducted again on August 3, 2016, by Administrative Law Judge Greener. She subsequently issued a decision on September 6, 2016, again finding the plaintiff was not disabled at the relevant times. That became the final determination of the Agency on August 31, 2018, when the Social Security Administration Appeals Council denied plaintiff's request for review.
In her second decision, ALJ Greener applied the familiar five step sequential test for determining disability. She concluded, first, that plaintiff had not engaged in substantial gainful activities since her reported onset date of February 1, 2009, although noting that she did engage in some work activity in 2010.
At step two, ALJ Greener concluded that plaintiff does suffer from severe impairments that provide more than minimal limitation on her ability to perform basic work functions, including lumbar spine herniated nucleus pulposus and degenerative disc disease, affective disorder, parenthesis, depression/bipolar disorder, closed paren, and an anxiety disorder. She concluded, however, that none of those impairments met or medically equaled any of the listed presumptively disabling criteria set forth in the Commissioner's regulations and the listings, specifically considering listings 1.04 and 12.04 and 12.06.
After surveying the evidence, Administrative Law Judge Greener concluded that the plaintiff retained the residual functional capacity to perform unskilled work at a somewhat less than full range of light work, and specifically ALJ Greener found that plaintiff can lift up to 20 pounds occasionally and 10 pounds frequently, sit six hours in an eight-hour day and stand or walk a total of six hours in an eight-hour workday, except she needs to alternate sitting and standing at one-hour intervals with five minutes in the alternate position, paren, a total of six such periods per workday, closed paren, but does not have to leave the work area or be off task during the change of position. She further found that plaintiff can occasionally push, pull and bend and needs to work independently and not in conjunction with others and, additionally, requires routine tasks which do not significantly change in pace or location on a daily basis.
Proceeding to step four, ALJ Greener concluded that the plaintiff is unable to perform her past relevant work since all of those positions involve semi-skilled work.
At step five, the Administrative Law Judge noted, first, that if plaintiff were able to perform a full range of light work, the medical vocational guidelines on the grids would direct a finding of no disability, specifically citing Rule 202.21. Because there was erosion of the job base on which the grids are located — are based, the Administrative Law Judge elicited the testimony of a vocational expert and based on that testimony and a hypothetical exam that mirrored the RFC finding, she concluded that plaintiff could perform as a cafeteria attendant, a cleaner/housekeeper, an electric cleaner and that there was sufficient numbers in the national economy in those positions and, therefore, concluded that plaintiff was not disabled at the relevant times.
As you know, my task is limited and the standard that I apply is extremely deferential. I must determine whether correct legal principles were applied and substantial evidence supports the determination reached. "Substantial evidence" being defined as such evidence as a reasonable fact finder would find sufficient to support the conclusion. As the Second Circuit noted in Brault, 683 Fed 3d 443, the Court can reject fact findings of an Administrative Law Judge only if a reasonable fact finder would have to conclude other than the Administrative Law Judge.
The plaintiff has raised five issues that, to some degree, overlap. The first has to do with plaintiff's treatment — the ALJ's treatment of the plaintiff's GAF or Global Assessment of Functioning scores; the second concerns the treatment of the opinions of Dr. Littell as a treating source; the third has to to with the analysis of plaintiff's subjective complaints; the fourth, whether the RFC finding was supported by substantial evidence; and the fifth, whether the plaintiff — I'm sorry, the ALJ substituted her lay opinion for competent medical opinion evidence.
Looking at the GAFs, I note that the GAF is a snapshot, it's a subjective analysis, addressing only one point in time. It is a fairly somewhat controversial bench mark and, in fact, the DSM-V removes the GAF from consideration. Undeniably, the cases support and it is logical to conclude that GAF scores by treatment providers, in particular, can be factors that should be considered, and they were in this case, but they're not necessarily predictors of outcomes in the future. Trombley versus Colvin indicates that — and I will get you a citation for that; it is 2016 Westlaw 5394723 from the Northern District of New York, 2016. I note that plaintiff's GAF scores had varied widely. I know that it was reported that there were some GAF scores in the 55 range and there were some in other ranges. A GAF score of 55, according to the DSM-IV, represents moderate symptoms or moderate difficulty in social, occupational or school functioning. The plaintiff in this case had GAF scores of 55 on November 3, 2010, that's at 250; January 19, 2011, that's at 252; April 11, 2011, that's at 254; but also had GAF scores on June 10, 2009, of 60, that's at 305; 60 on November 16, 2009, that's at page 341; 60 on April 18, 2013, that's at page 739; 61 on May 18, 2009, that's at 300; and 65 on May 15, 2014, 768. The GAF scores in the 60s reveal only some mild symptoms, but generally functioning pretty well according to the DSM-IV. So, I don't believe that the GAF scores in this case undermine the RFC, and as the Commissioner pointed out, it's not necessary that the Administrative Law Judge cite every piece of evidence and discuss or discount it specifically, so I don't find that that provides a basis to set aside the determination.
In terms of treating source, undeniably, the opinion of the treating source regarding the nature and severity of an impairment — if that is an acceptable medical source, that is — is entitled to considerable deference if it is supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence. And undeniably, as plaintiff's counsel has noted, if the ALJ does not give controlling weight to a treating source's opinion, he must apply — he or she — several factors that are spelled out in 20 CFR Section 404.1527 and 20 CFR 416.927. The Second Circuit has said, however, that the Administrative Law Judge need not slavishly recite each of the factors, and if the analysis was sufficient to allow for meaningful judicial review, that is sufficient.
In this case, there's no question, and plaintiff doesn't argue otherwise, that the District Courts and the Appeals Council's directives were followed. Dr. Littell was re-contacted. Tellingly, as plaintiff's counsel — defendant's counsel points out, Dr. Littell has said essentially that it might be better to get — to have plaintiff undergo a functional exam in order to provide meaningful opinions concerning her limitations, her physical limitations.
The opinions of Dr. Littell are contrary to the opinions of Dr. Lorensen. The weight accorded to Dr. Littell is explained by the Administrative Jaw Judge in, frankly, more detail than I've seen in some ALJs' decisions, at 476 and 477. I believe it supports meaningful judicial review particularly when taken as a whole. And I note that although it is true that an Administrative Law Judge can't substitute her opinion for a doctor's opinions, it is permissible to consider clinical findings and treatment notes, particularly when weighing contrary opinions. And after all, it is the Administrative Law Judge's prerogative to weigh conflicting evidence, as there was in this case.
In this case, Dr. Lorensen's opinion — I'm turning to the RFC now — supports the physical aspects of the residual functional capacity in this case. Although I'm not wild about the form that was used, and I, frankly, haven't seen it before, it is adequate, it is somewhat more than a check-the-box form; it is somewhat vague, but I believe supports the Administrative Law Judge's decision. Walking, standing and sitting, there are only three categories that could have been checked, and the ones that were checked were "more than four hours," and I think it's appropriate, particularly given the other evidence in the case, for the RFC finding to include the ability to sit six hours in an eight-hour day and walk or stand a total of six hours in an eight-hour workday.
The RFC, the physical aspects, are also supported by consideration of the activities of daily living. Plaintiff's ability to do daily chores, to swim with her children, care for her three children, move furniture — that's at 846 — her conservative treatment and her declination to undergo physical therapy and injections, her statements that the TENS unit has helped her and medication has helped her, consideration of the possibility of exaggerated symptoms. If you look at page 343 versus 346, of the administrative transcript, it appears that plaintiff may have overstated her gait issues when she underwent a physical exam. And again, Dr. Lorensen's opinions, as a consultative exam, is well accepted, can provide substantial evidence.
In terms of the mental aspects, once again, plaintiff's activities of daily living, her ability to attend college and achieve a 3.29 grade point average, the fact that she drives, cares for her children, she has relatively modest mental status exams according to treatment notes. Her treatment history includes a reference to medication controlling her symptoms, some noncompliance — indeed, four out of five missed appointments in November 2009 at Mercy — and the opinions of Dr. Harding, although he's not an examining physician, his opinions, having reviewed plaintiff's medical evidence, can provide substantial evidence.
In terms of credibility, or what we used to call credibility is now subjective — the analysis of subjective symptoms, that is governed by SSR 16-3p, plaintiff's — the ALJ's analysis of plaintiff's subjective complaints, particularly if the opinion is taken as a whole, is fairly extensive, from 474 to 481 is a good analysis of why the plaintiff's subjective complaints were not found to be fully credible, due to not being sufficient to provide for — permit for meaningful review.
In this case, I don't believe the ALJ substituted improperly her opinions for lay opinions. She based her opinions on Dr. Harding and Dr. Lorensen, as well as the other relevant factors which we've discussed.
The bottom line is there were conflicting opinions in this case, and provided that she met the requirements of the regulations, it was for the ALJ to evaluate those conflicting opinions. The SSAC dictates in this case were followed; it's a different case from case number one.
I find the RFC determination is supported. The hypothetical to the vocational expert at step five approximated the residual functioning capacity findings and, therefore, the vocational expert's testimony satisfied the Commissioner's burden of proof at step five. I am unable to say that no reasonable fact finder could reach the result reached by the Administrative Law Judge under Brault. Therefore, I find substantial evidence supports the determination. I will award judgment on the pleadings to the defendant.
Again, thank you both for excellent presentations, I hope you have a good day.
I, THERESA J. CASAL, RPR, CRR, CSR, Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
Dated this 30th day of October, 2019.
