MICHAEL A. TELESCA, District Judge.
Shannon M. Huff, n/k/a Shannon M. Froehler ("Plaintiff") brings this action pursuant to the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. #9, 15.
Plaintiff filed applications for DIB and SSI on March 8, 2014, alleging disability beginning May 20, 2012. Administrative Transcript ("T.") 183-195. Plaintiff's applications were initially denied on May 6, 2014, and Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). T. 79-98, 107-09.
At Plaintiff's request, a video hearing was conducted on May 13, 2016 by the ALJ in Baltimore, MD and Plaintiff appeared in Rochester, NY. Plaintiff appeals from the May 26, 2016 decision of the ALJ following a video hearing during which Plaintiff testified without counsel
The ALJ applied the five-step sequential evaluation process promulgated by the Commissioner for adjudicating disability claims.
At step one of the evaluation the ALJ found that while the Plaintiff worked after the alleged disability onset date, the Plaintiff only worked part-time, and Plaintiff's earnings did not exceed the amount required to be "substantial" under the regulations as a self-employed manicurist. 20 CFR §§ 404.1575, 416.975.
At step two of the analysis, the ALJ found Plaintiff suffered from the following severe impairments: ulnar neuropathy, degenerative disc disease, sacroiliitis, obesity, personality disorder, bipolar disorder, generalized anxiety disorder, and polysubstance abuse. T. 13;
At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.
Before proceeding to step four, the ALJ found that the Plaintiff retained the residual functional capacity (RFC) to perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b), except the Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk for four out of eight hours; and sit for six out of eight hours. The ALJ found the Plaintiff able to occasionally push and pull with the upper extremities; occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; not climb ladders; frequently handle but only occasionally finger and feel; not have any exposure to hazards; is limited to simple, routine tasks and occasional contact with supervisors, coworkers, and the public; and is capable of low stress work defined as occasional decision-making and occasional changes in work setting. T. 15.
At step four, based on the record and the testimony of the Vocational Expert, the ALJ found that the Plaintiff was unable to perform any past relevant work. T. 20;
At step five, taking into consideration Plaintiff's age, education, work experience, and RFC, the ALJ found that jobs exist in significant numbers in the national economy that the Plaintiff could perform, e.g., packer, sorter, or checker/inspector. T. 21. The ALJ accordingly found that the plaintiff was not disabled as defined in the Act. T. 21;
The Plaintiff argues that 1) the ALJ failed to consider the severity of Plaintiff's urinary frequency, migraine headaches, post-traumatic stress disorder, and other disorders resulting in RFC findings unsupported by substantial evidence, and 2) the ALJ failed to adequately protect the pro se Plaintiff's rights by not developing "evidentiary gaps" in the record. Dkt. #9-1, pp. 14-15, 22.
A federal district court may set aside an ALJ decision to deny disability benefits only where it is based on legal error or is not supported by substantial evidence.
Plaintiff was born on May 4, 1980 and obtained a high school education. T. 20, 56, 58, 81, 183. She received a cosmetologist's license and her past work includes self-employed part-time manicurist and full-time cosmetologist. T. 20, 58, 59-63, 196-207, 233-254. She was single and had one child. T. 56. She resided in an apartment, and at times lived with her family. T. 56. Plaintiff has been incarcerated for robbery (2012) and has received fines and probation for DWI (2001) and menacing (2010) respectively, all emanating, according to Plaintiff, from her drug abuse. T. 58-59, 271. She received Medicaid and food stamps. T. 61;
Plaintiff attempted to cut her wrists on April 12, 2010, following a car accident while under the influence of cocaine. T. 306. Following her suicide attempt, Plaintiff saw, Muhammad Cheema, MD, Tammie Raucci, LMSW, and Rachel Ward, LCSW at Rochester Mental Health Center.
On September 22, 2010 Plaintiff left a voice message for Rochester Mental Health Center indicating she no longer required their services.
On January 10, 2012, Plaintiff was evaluated at the Strong Memorial Hospital Pain Center regarding low back and right hip pain. T. 286; Dkt. #9-1, p.11. Cody Mickelsen, MD, examined Plaintiff and reported her past medical history to include exercise-induced asthma, cervical dysplasia, GERD, obesity, depression with prior suicide attempts, and ulnar nerve compression. T. 288. Dr. Mickelsen noted that Plaintiff saw a Dr. Elfar and was scheduled for an ulnar nerve decompression but declined to proceed due to her pregnancy.
Plaintiff saw Odysseus Adamides, MD, on June 1, 2012, for a psychiatric evaluation at Wayne Behavioral Health because of increased anxiety due to pending criminal charges and cocaine abuse related to depression. T. 329-338. Dr. Adamides reported that Posttraumatic Stress Disorder would explain and amplify some of Plaintiff's symptoms though Plaintiff declined to discuss with him the abuse that he believed gave rise to the PTSD. T. 337. In addition to PTSD, Dr. Adamides found Cocaine Dependence, Cannabis Abuse in remission, Major Depression, Antisocial Personality Disorder, Chronic pain, gallstones, and neuropathy.
On October 1, 2013, while an inmate at Albion Correctional Facility, Plaintiff was seen by Amy MacDonald, MD, a gynecologist resident from Strong Memorial Hospital. T. 290. Plaintiff complained of chronic pelvic pain, stress urinary incontinence, and urinary frequency.
On February 20, 2014, Plaintiff saw Charlene Reeves, LMHC, for a preadmission screening at Genesee Mental Health Center. T. 265-67. Plaintiff was scheduled to return on March 13, 2014, but the record does not show a summary of this appointment or future appointments at this facility. T. 266. Plaintiff filed her applications for DIB and SSI on March 8, 2014. T. 183-195.
On April 9, 2014 consultative examiner Kristina Luna, Psy.D. conducted a mental exam of Plaintiff on behalf of the state. T. 270-74;
On April 9, 2014, Plaintiff was examined by Aharon Wolf, MD, a consultative medical examiner for the state. T. 275-80. Dr. Wolf diagnosed back pain and ulnar nerve entrapment and found Plaintiff had "moderate limitation for repetitive use of bilateral hands when gripping." T. 279.
On May 6, 2014, T. Harding, PhD, state assigned review psychologist, found her psychiatric impairment was non-severe. Dkt. 9-1, p. 5;
On January 21, 2015, Harbinder Toor, MD completed a Monroe County Department of Social Services physical assessment for determination of employability. T. 345-49, 357-62. Dr. Toor found Plaintiff to be Very Limited (one to two-hour limit) in walking, standing, pushing, pulling, bending, using hands, and stairs or other climbing, with lifting permissible of 10 lb. occasionally. T. 360. Dr. Toor indicated that Plaintiff was unable to participate in any activities except treatment or rehabilitation for a period of three to six months. T. 361.
On February 20, 2016, Laurence E. Torpey, MD, completed a residual functional capacity physical form for Plaintiff. T. 363-70. Dr. Torpey also completed a mental RFC assessment for Plaintiff. T. 371-74. Dr. Torpey had seen Plaintiff previously for new patient intake on November 2, 2015 and for a "GYN Visit" on January 4, 2016. T. 364. Dr. Torpey reported that he would expect Plaintiff's impairment to last one year or more, and that her impairment would prevent Plaintiff from standing for six to eight hours. T. 365. Dr. Torpey found Plaintiff could not stand for longer than 10 minutes before having to sit.
Due to back pain, Dr. Torpey found Plaintiff could rarely reach toward the floor, and due to neuropathy of fingers, rarely carefully handle objects. T. 366. Dr. Torpey suggested Plaintiff could work part-time until she had an ulnar release. T. 369. Dr. Torpey opined that the Plaintiff's disability was not likely to change "unless intervention."
On his mental RFC assessment, Dr. Torpey indicated marked limitations in ability to remember locations and work-like procedures, noting "bad at directions;" marked limitation in ability to understand and remember short instructions, noting "telephone numbers." T. 372. Dr. Torpey also noted marked limitations in ability to understand and remember detailed instructions, ability to maintain attention, ability to work in coordination with others, ability to make simple work-related decisions, ability to complete a normal workday, ability to interact with the general public, ability to maintain socially appropriate behavior, ability to be aware of normal hazards, and ability to set realistic goals. T. 373. When asked to record any elaboration or explanation for his summary conclusions, Dr. Torpey left the area blank. T. 374.
"Substantial evidence `means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Plaintiff first argues that Plaintiff's urinary frequency, migraines, post-traumatic disorder, asthma, chronic pain, and combined effects were not properly addressed by the ALJ in making her RFC findings. However, Plaintiff fails to show how any of these disorders or effects would have necessitated an RFC finding different from that made by the ALJ.
Regarding urinary frequency, the recommendation of Dr. MacDonald, the gynecologist who treated the Plaintiff at Albion Correctional Facility, was to avoid alcohol and caffeine, void every two hours during the daytime, normalize fluid intake to 50 ounces per day on average, and use pelvic floor muscle contractions to suppress urinary urgency. T. 294. None of these would interfere with Plaintiff's ability to perform basic work activities, as required for a finding of a severe impairment. 20 CFR §§ 404.1522, 416.922. In particular, breaks every two hours are considered normal in the workplace and would not have required a more limited finding of available jobs by the Vocational Expert.
The ALJ considered Plaintiff's testimony regarding migraines several times a week and her statements to Dr. Toor that she had migraines up to three times a week and lasting for days at a time. T. 358. However, Plaintiff did not describe at any time associated symptoms such as photophobia, nausea, dizziness, or vomiting, that may have led to a finding of severe impairment. Therefore, while the ALJ did not consider Plaintiff's migraines severe under the regulations, the ALJ considered the migraines in determining the Plaintiff's RFC. Headaches without severe symptoms for which the Plaintiff takes no medication are not severe under the regulations.
The Plaintiff also alleges that the ALJ failed to properly consider evidence of post-traumatic stress disorder. While Plaintiff acknowledges that "there is no medical opinion related to limitations from PTSD" in the record, Plaintiff argues that some limitation is suggested by the opinion of Dr. Adamides, who evaluated Plaintiff on June 1, 2012 at Wayne Behavioral Health, that Plaintiff "suppressed PTSD through substance abuse, antisocial conduct, and self-destructive behavior; and it amplified her depression." Dkt. #9-1, p. 18. Even if Dr. Adamides's opinion had been given significant weight, the alleged limitations from PTSD: substance abuse, antisocial conduct, self-destructive behavior, and depression, are covered adequately by the ALJ's findings regarding severe impairments and considered by the ALJ in making her RFC determination. Polysubstance abuse, personality disorder, bipolar disorder, and generalized anxiety disorder were all found to be severe by the ALJ. In the ALJ's RFC determination, the ALJ found that, while the Plaintiff "at times showed symptoms including a depressed or irregular mood, she also had a euthymic mood in May 2012 and generally intact memory, good concentration, and fair to good insight and judgment in February 2014." Dkt #15-1, p.10 (citing T. 17-18, 266, 272-73, 334, 337).
Similar to the ALJ's treatment of Plaintiff's migraine headaches, the ALJ fully considered Plaintiff's asthma symptoms at step two and in determining the RFC. Plaintiff fails to show how her asthma should have changed the RFC determination. Plaintiff's asthma has never been severe enough to require emergency treatment according to Dr. Toor, and Dr. Wolf noted that the claimant had clear lungs and normal movement of the diaphragm. T. 278, 358. Therefore, the ALJ's findings regarding lack of severity of asthma are supported by substantial evidence in the record.
This Court also finds that Plaintiff's chronic pain was considered by the ALJ at step two and during the RFC findings at step four. The ALJ considered and found severe impairments due to ulnar neuropathy, degenerative disc disease, and sacroiliitis, which according to the record, were the causes of Plaintiff's chronic pain. T. 13. Additionally, Plaintiff's pain was discussed in detail throughout the ALJ's determination of her RFC findings. T. 15-20.
The ALJ considered all symptoms and the extent to which those symptoms, along with other evidence in determining her RFC, were based on the requirements of 20 CFR §§ 404.1529 and 416.929 and SSR 96-4P. T. 15. As the Commissioner points out, the ALJ "need not discuss every possible factor." Dkt. #15-1, p.11 (citing
Plaintiff also argues that the ALJ erred by failing to fulfill her regulatory duty to develop the record by not recontacting the sources of opinions to which she gave lesser weight in her analysis due to their lack of supporting observations. Plaintiff argues that this duty is of heightened importance to this case because Plaintiff appeared pro se at her hearing. In particular, Plaintiff cites
However, the actions of the ALJ in
In the present case, the ALJ carefully discussed the benefit of representation with the Plaintiff and gave her an almost three-month postponement of her case to obtain counsel:
T. 45. The ALJ carefully explained to the Plaintiff the lack of evidence in the file, guided her on how to obtain and present the evidence, and made photocopies of additional evidence the Plaintiff brought with her. Her case was postponed until May 13, 2016. T. 46, 47.
The burden of establishing disability through evidence falls on the Plaintiff. 20 CFR §§ 404.1512, 416.912. This burden includes an ongoing duty to inform the agency about or submit all evidence that relates to whether or not the Plaintiff is disabled.
Regarding any duty of the ALJ to extract more detailed analysis specifically from Dr. Torpey, the Plaintiff points to
While the Second Circuit has been clear that it is necessary to direct a pro se Plaintiff to recontact a treating physician whose findings are discounted due to their conclusory nature, it is less clear that Dr. Torpey, a non-treating physician, needed to be recontacted. Notably, Dr. Torpey had sufficient opportunity to elaborate on his summary conclusions and declined to do so. T. 374. Because Dr. Torpey's opinion was not that of a treating physician "the relevant inquiry is whether the record was sufficient to support the ALJ's RFC assessment."
The ALJ's conclusions as to the Plaintiff's disability and the RFC finding are all supported by the complete medical record and Plaintiff's testimony given at her hearing. Although Plaintiff's attorney was not present at the adjourned hearing or the hearing on May 13, 2016, Plaintiff's position was carefully and thoroughly presented in her attorney's brief dated July 11, 2018.
For the foregoing reasons, this Court finds that the Commissioner's decision is free of legal error and is supported by substantial evidence and it is therefore affirmed. Plaintiff's motion for judgment on the pleadings is denied and the Commissioner's motion for judgment on the pleadings is granted. The Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
