Serrano v. Social Security Admin

Filing 17

RULING denying 12 Motion to Reverse the Decision of the Commissioner; granting 13 Motion to Affirm the Decision of the Commissioner. Signed by Judge Janet C. Hall on 4/12/2011. (Simpson, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
IRIS SERRANO,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant.

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CIVIL ACTION NO.
3:10-CV-468 (JCH)

APRIL 12, 2011

RULING ON MOTIONS (Doc. Nos. 12 and 13)
This action, filed under section 205(g) of the Social Security Act, 42 U.S.C. §§
405(g) and 1383(c)(3), as amended, seeks review of a final decision by the
Commissioner the Social Security Administration denying plaintiff Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits. Plaintiff has filed a
Motion for Order Reversing the Decision of the Commissioner (Doc. No. 12). In
response, Defendant filed a Motion to Affirm the Decision of the Commissioner (Doc.
No. 13). For the following reasons, Plaintiff’s Motion for Order Reversing the Decision
of the Commissioner (Doc. No. 12) is denied, and Defendant’s Motion to Affirm the
Decision of the Commissioner (Doc. No. 13) is granted.
I.

ADMINISTRATIVE PROCEEDINGS
On August 20, 2007, plaintiff Iris Serrano filed an application for DIB and SSI

alleging an inability to perform any substantial gainful activity since July 5, 2007 due to
depression, anxiety, and a heart murmur. R. at 156, 162, 181. On August 24, 2007,
plaintiff amended her application to reflect a disability onset date of June 5, 2007. Id. at
167-70. The Social Security Administration (“SSA”) denied plaintiff’s claim both initially

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and upon reconsideration. Id. at 67. On August 18, 2008, plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”) and on November 5, 2009, a hearing was
held before ALJ James Thomas during which plaintiff and Vocational Expert Ronald
Freedman testified. Id. at 25-26. On November 27, 2009, ALJ Thomas issued a
decision denying plaintiff’s claim. Id. at 11-20. Plaintiff’s claim was selected for review
by the Decision Review Board, but the Decision Review Board did not complete its
review during the time allowed. Therefore, ALJ Thomas’ decision became the final
decision of the Commissioner. Id. at 1.
II.

FACTUAL BACKGROUND
A.

Summary of Facts

Plaintiff Iris Serrano was born in 1962 and was forty-seven years old when the
ALJ issued the decision in this case. R. at 20, 28. She has a sixth or seventh grade
education from Puerto Rico and lacks fluency in the English language. Id. at 31, 186.
Plaintiff last worked as a machine operator. Id. 32, 182. She alleges disability due to
degenerative disk disease and chronic pain, fibromyalgia, hypertension with a syncope
incident, diabetes, depression, and anxiety. See Pl.’s Mem. at 3.
B.

Medical History

On May 21, 2007, plaintiff reported to the emergency room of Bristol Hospital
complaining of pain in her right hip and chronic back pain. R. at 369-71. X-rays taken
on the same day showed narrowing at the L5-S1 disk space. Id. at 222. On June 1,
2007, plaintiff reported to Dr. Arturo Baltazar that she was unable to work eight hours a
day. Id. at 593. On June 6, 2007, after plaintiff complained of lower back pain, Dr.
Baltazar wrote a note stating that plaintiff would be able to return to work on June 11,
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2007, for five hours a day. Id. at 591. Later that month, plaintiff had an MRI that
showed moderate to advanced intervertebral disk degeneration at L5-S1. Id. at 386.
On August 5, 2007, plaintiff fainted and reported to the Bristol Hospital
emergency room. Id. at 287-300. At the hospital, plaintiff received a cranial CT scan,
which was negative. Id. at 300. As follow-up care for her fainting spell, she received an
echocardiograph, a carotid ultrasound, and an EEG on August 16, 2007. Id. at 353-55,
380-82. All three tests had normal results.
Immediately after her fainting spell, plaintiff began seeing Dr. Karen Guadagnini
for her primary care. Id. at 304-07. During the fall and winter of 2007, Dr. Guadagnini
treated plaintiff for depression, high blood pressure, anemia, and back and arm pain.
Id. at 577-80. On September 27, 2007, Dr. Guadagnini completed an impairment
questionnaire from the disability determination service (“DDS”) regarding plaintiff. Id. at
302-07. Dr. Guadagnini reported that plaintiff was diagnosed with depression, which
she had had since age twenty, and had a suicide attempt two decades previously. Id.
at 304. Dr. Guadagnini indicated that plaintiff’s orientation, memory, attention, and
concentration were intact, that her speech had a normal rate and flow, and that her
mood and affect were euthymic and appropriate. Id. at 305. Dr. Guadagnini also
reported that plaintiff’s judgment and insight appeared to be fair and that she had no
problems in activities of daily living, in social interaction, in carrying out instructions, or
in focusing long enough to finish assigned simple tasks. Id. at 305-06. In her office
notes from the same day she completed the questionnaire, Dr. Guadagnini wrote that
she did not think plaintiff was disabled and that working might help her to feel better
emotionally. Id. at 577. Similarly, on December 19, 2007, Dr. Guadagnini’s notes
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indicate that she refused to sign a form for plaintiff to stay out of work for an additional
six months. Id. at 579.
In October 2007, two reviewing doctors completed reports on plaintiff for DDS.
Id. at 320-42. Plaintiff refused to attend appointments with the doctors because she
“[did] not want to see a doctor that does not know her;” therefore, the doctors
completed the reports by reviewing plaintiff’s medical records. Id. at 320, 333. The first
report was completed by Dr. Anita Bennett, who reviewed plaintiff’s physical
impairments and reported that there was no medical evidence to support plaintiff’s
claimed limitations. Id. at 320. The second report, by Gregory Hanson, Ph.D. on
October 10, 2007, analyzed plaintiff’s mental impairments. Id. at 321. Dr. Hanson
evaluated plaintiff’s affective disorder and anxiety-related disorder and concluded that
they were not severe. Id. He reported that plaintiff’s depressive syndrome was
characterized by sleep disturbance, decreased energy, difficulty concentrating or
thinking, and thoughts of suicide, id. at 324, and that her anxiety was accompanied by
apprehensive expectation, id. at 326, but that these symptoms caused only mild
restriction in activities of daily living and mild difficulties in maintaining social functioning
and in maintaining concentration, persistence and pace, id. at 331.
Also in October 2007, plaintiff was seen at the Bristol Hospital Counseling Center
for complaints of anxiety and depression. Id. at 399-403. At her initial appointment,
plaintiff reported weight loss and difficulty sleeping and admitted to having auditory
hallucinations. She denied suicidal ideation and said that, although she had been on
Prozac for many years to treat her depression, she was non-compliant with her
medication. Id. at 400, 402. Plaintiff was diagnosed with Major Depressive Disorder,
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and Personality Disorder (NOS) and given a Global Assessment Functioning (“GAF”)
rating of forty-five. Id. at 403. Outpatient group therapy was recommended. Id.
Plaintiff attended one group session on November 14, 2007, where it was reported that
she was calm and compliant with treatment, but plaintiff failed to show up for any further
counseling sessions. Id. at 405-07.
On May 1, 2008, plaintiff went to Bristol Hospital after a dentist appointment. Id.
at 506. She asked to make a complaint with the police because she was concerned
that she had been sexually assaulted while under the influence of laughing gas
administered by the dentist. Id. at 506-09. The police were called to interview plaintiff.
Id. at 509. She was ultimately discharged upon determination that the medication she
received at the dentist had caused her to be confused. Id. at 509-11.
During the spring of 2008, Dr. Guadagnini reported that plaintiff was not taking
the medication prescribed for her depression. Id. at 582. Because plaintiff continued to
experience pain in her shoulder, thigh, knee, and lower back, Dr. Guadagnini
prescribed plaintiff Celebrex, a nonsteroidal anti-inflammatory, and referred plaintiff to a
rheumatologist. Id. at 581. Dr. Guadagnini also referred plaintiff to the Bristol Hospital
Center for Diabetes on June 27, 2008, for medical nutrition therapy and health
education related to her diagnosis of type 2 diabetes. Id. at 441-62.
Rheumatologist Dr. Micha Abeles examined plaintiff on July 16, 2008. Id. at
545-47. Dr. Abeles reported that plaintiff had tender points in her shoulders, upper
back, upper extremities, and her forearm and that she had “pain to palpitation in the
lateral aspect of her thighs bilaterally more significant on the right than on the left as
well as tender spots in her knees and anterior tibial regions.” Id. at 546. He also
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reported that her range of motion was normal for her upper and lower extremity joints,
that her hands revealed no evidence of chronic arthritis or synovitis, that her neurologic
exam was intact, and that she had 5/5 strength in all extremities. Id. Dr. Abeles
concluded that plaintiff’s symptoms were consistent with fibromyalgia but did not
recommend any further treatment except for a continuation of fluoxetine. Id.
On August 28, 2008, plaintiff received an MRI of her lumbar spine. Id. at 539.
The MRI revealed degenerative disk disease “with bulge annuli and marginal spurring at
L5-S1 and L3-4.” Id. However, it showed no focal discrete disk herniations and no
evidence of spinal stenosis. Id. On April 20, 2009, plaintiff received an MRI of her right
shoulder. Id. at 551. The MRI revealed superficial tendonitis, but no rotator cuff tear.
Id.
Dr. Hilary Onyiuke of UConn Medical Group Neurosurgery Associates examined
plaintiff on July 10, 2009. Id. at 558-59. Plaintiff complained of a one-year history of
low back pain with radiation down the right leg but not the left. Id. at 558. After an
examination, Dr. Onyiuke noted that she had no focal motor deficiencies. Id. He
reviewed the MRI of plaintiff’s lumbar spine and concluded that plaintiff has lumbar
degenerative disk disease with disk collapse L5-S1 with lateral recess stenosis on the
right side. Id. Dr. Onyiuke opined that plaintiff would eventually require operative
intervention, but that she would currently benefit from conservative treatment, including
physical and aquatic therapy and lumbar epidural steroid injection. Id.
Upon the request of plaintiff in July 2009, id. at 553, Dr. Guadagnini wrote a
letter in which she reported that plaintiff suffers from multiple herniated disks in her
lower spine, degenerative disk disease, and chronic pain. Id. at 556. She opined that
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plaintiff “is unable to work at this time,” and reported that plaintiff “will be under going
surgical procedures in a few months which will further prolong her inability to work.” Id.
During the spring and summer of 2009, plaintiff was also receiving psychiatric
care. On March 9, 2009, plaintiff returned to Bristol Hospital Counseling Center. Id. at
422-27. At her initial assessment, it was noted that plaintiff had an appropriate affect,
intact memory, and fluid speech, but that her mood was depressed and she had
hallucinations. Id. at 425. She was diagnosed with Panic Disorder with Agoraphobia
and Depressive Disorder (NOS) and was given a GAF rating of forty. Id. at 427. It was
recommended that plaintiff receive short-term individual therapy. Id. at 426.
Plaintiff attended therapy from March 18 through July 23, 2009 with Dr. Diedre
Reynolds. Id. at 415-21. At her first visit, Dr. Reynolds increased plaintiff’s prescription
for Prozac and started her on a trial dosage of Seroquel. Id. at 413. At her next visit on
April 2, 2009, plaintiff reported that she felt better and was sleeping eight hours a night.
Id. at 418. In May, she had no complaints and reported that her energy was up and her
mood was good. Id. On June 24, plaintiff reported that she was having sleep problems
related to pain in her shoulders and neck, and that her depression had increased. Id. at
417. In response to plaintiff’s complaints, Dr. Reynolds increased the dosage on
plaintiff’s prescription for Seroquel. Id. at 413, 417. At her next appointment on July
23, 2009, plaintiff reported that she no longer felt depressed and that her pain had
decreased. Id. at 417. On September 17, 2009, plaintiff left without seeing Dr.
Reynolds, and on September 23, she was late and was not seen. Id. at 413, 416. On
September 30, Dr. Reynolds noted that plaintiff had been absent from therapy and that
the case may be closed. Id. at 415.
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On September 11, 2009, plaintiff got a cane. Id. at 408. The need for the cane
was not specified in the record.
C.

ALJ’s Disability Determination

The Social Security Act provides that every individual who suffers from a
disability is entitled to disability insurance benefits. See 42 U.S.C. § 423(a)(1). A
disability is defined as, “an inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment . . . which has
lasted or can be expected to last for a continuous period of not less than 12 months.”
Id. § 423(d)(1)(A). The impairment or impairments must be of such severity that the
claimant:
is not only unable to do his previous work but cannot, considering [her] age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which [she] lives, or whether a
specific job vacancy exists for [her], or whether [she] would be hired if [she]
applied for work.
Id. § 423(d)(2)(A).
Under the Act, the Social Security Administration (“SSA”) has established a
five-step, sequential evaluation process for determining whether an individual is
disabled. See 20 C.F.R. § 416.920(a). The steps are followed in order. If at any step it
can be determined that the claimant is or is not disabled, that determination is made
and the evaluation ends without proceeding to the next step.
At step one, the Commissioner must determine whether the claimant is engaged
in substantial gainful activity. See id. § 416.920(b). Generally, if an individual has
earnings from employment or self-employment above a level set out in the regulations,
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it is presumed that that individual has demonstrated the ability to engage in substantial
gainful activity. See id. §§ 416.974-.975. If the claimant is not engaged in substantial
gainful activity, the evaluation proceeds to step two.
At step two, the Commissioner must determine whether the claimant has a
medically determinable impairment that is “severe” or a combination of impairments that
is “severe.” See id. § 416.920(c). An impairment or combination of impairments is
“severe” within the meaning of the regulations if it significantly limits an individual's
ability to perform basic work activities. If the claimant has an impairment or combination
of impairments that is “severe,” the evaluation proceeds to step three.
At step three, the Commissioner must determine whether the claimant's
impairment or combination of impairments meets or medically equals the criteria of an
impairment listed in the appendix to the regulations. See id. §§ 416.920(d), .925-.926.
If the claimant's impairment or combination of impairments meets or medically equals
the criteria of a listing, and meets a duration requirement, the claimant is disabled. If
not, the evaluation proceeds to step four.
At step four, the Commissioner must determine the claimant's residual
functioning capacity (“RFC”) and then determine whether the claimant has the RFC to
perform the requirements of the claimant's past relevant work. See id. § 416.920(e)-(f).
If the claimant has the RFC to perform past relevant work, the claimant is not disabled.
If the claimant is unable to perform any past relevant work, the evaluation proceeds to
the fifth and last step.
At step five, the Commissioner must determine whether the claimant is able to
perform any other work, taking into consideration the claimant's RFC, age, education,
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and work experience. See id. § 416.920(g). If the claimant is not able to perform other
work and meets the duration requirement, the claimant is disabled.
The burden of establishing a disability is on the claimant. Once the claimant
meets the burden for the first four steps of the disability evaluation, however, the
burden then shifts to the Commissioner for the fifth step. See Balsamo v. Chater, 142
F.3d 75, 80 (2d Cir. 1998).
In the present case, the ALJ found that plaintiff satisfied the first step of the
disability determination because she had not engaged in substantial gainful activity
since June 5, 2007, the alleged onset date. R. at 14. The ALJ also found that Plaintiff
satisfied the second step because her degenerative disk disease and fibromyalgia are
severe impairments. Id.
At the third step, the ALJ then found that plaintiff’s impairments do not meet or
medically equal one of the listed impairments in the appendix to the regulations. Id.
First, he found that plaintiff’s degenerative disk disease do not “meet[], or medically
equal[], the requirements of any section of the Musculoskeletal System listed in
Appendix 1, Subpart P, Regulation No. 4, e.g., section 1.04.” Id. Next, he found that
plaintiff’s mental impairments do not meet or medically equal the criteria of Listings
12.04 and 12.06. Id. To make that determination, the ALJ considered the “paragraph
B” criteria of the two listings—marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation—and
found that plaintiff did not meet them. Id. at 14-15. In support of the finding that
plaintiff’s impairments were mild, the ALJ noted plaintiff’s daily activities, Dr.
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Guadagnini’s opinion regarding plaintiff’s functional abilities, and the lack of evidence
suggestive of periods of decompensation. Id. at 15.
At step four, the ALJ made a finding on plaintiff’s RFC and determined that
plaintiff was able to perform her past relevant work as a machine operator. Id. at 15-19.
The ALJ found that plaintiff “has the residual functional capacity to perform light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b), except that she could only
occasionally climb ramps and stairs, and is precluded from climbing ropes, ladders and
scaffolds. Additionally, she could only occasionally balance, stoop, kneel, crouch or
crawl.” Id. at 15.
To determine plaintiff’s RFC, the ALJ conducted a review of her testimony, the
medical record, and the testimony of the vocational expert. First, he noted plaintiff’s
education and work history and summarized plaintiff’s complaints regarding her
symptoms and impairments. From plaintiff’s testimony, the ALJ highlighted plaintiff’s
statements that she could lift and carry a gallon of milk, walk for half a mile without pain,
and that she has pain with sitting for prolonged periods. Id. at 16-17. After reviewing
her testimony, the ALJ found plaintiff’s complaints of back pain and right leg pain
partially credible in light of her degenerative disk disease and history of low back pain.
Id. at 17.
The ALJ then reviewed plaintiff’s medical record. He summarized the reports
from Drs. Abeles and Onyiuke and noted that he gave Dr. Onyiuke’s opinion significant
weight. Id. The ALJ considered the report from Dr. Baltazar, but gave it little weight
because the work restrictions from Dr. Baltazar were not permanent, no medical
reasons were given for the restricted work schedule, and the restrictions were not
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supported by the overall evidence on record. Id. Next, the ALJ found that there was no
evidence that plaintiff’s diabetes and hypertension caused her any more than minimal
work-related limitations. Id. at 17-18.
The ALJ also considered the medical record and plaintiff’s testimony regarding
her mental impairments. He gave a detailed summary of Dr. Reynold’s notes regarding
plaintiff’s improvement in mood throughout the course of her treatment, but gave little
weight to the global assessment of functioning score Dr. Reynold’s assigned to plaintiff
because it was “not supported by the overall evidence of record.” Id. at 18. The ALJ
did give significant weight to Dr. Guadagnini’s opinion that, “while the claimant was
diagnosed with depression, she had experienced a slight improvement with treatment,
and her cognitive status was intact” and that the claimant has “no problems in terms of
activities of daily living, social functioning and task performance.” Id.
After determining plaintiff’s RFC, the ALJ found that she was able to perform her
past relevant work as a machine operator as the job was actually performed and as it is
generally performed in the national economy. Id. at 19. To make that determination,
the ALJ credited the opinion of the vocational expert who testified that a hypothetical
individual with plaintiff’s RFC could perform plaintiff’s past relevant work as a machine
operator. Id.
Because he found that plaintiff could perform her past relevant work, the ALJ
determined that plaintiff was not disabled. Id.
III.

STANDARD OF REVIEW
The scope of review of a social security disability determination involves two

levels of inquiry. The court must first decide whether the Commissioner applied the
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correct legal principles in making the determination. Then, the court must decide
whether the determination is supported by substantial evidence. Balsamo,142 F.3d at
79. Substantial evidence is evidence that a reasonable mind would accept as adequate
to support a conclusion; it is more than a “mere scintilla.” Richardson v. Perales, 402
U.S. 389, 401 (1971); Yancey v. Apfel, 145 F.3d 106, 110 (2d Cir. 1998). The
substantial evidence rule also applies to inferences and conclusions that are drawn
from findings of fact. Gonzales v. Apfel, 23 F. Supp. 2d 179, 189 (D. Conn. 1998);
Rodrigues v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977). The court may not
decide facts, reweigh evidence, or substitute its judgment for that of the Commissioner.
Dotson v. Shalala, 1 F.3d 571, 577 (7th Cir. 1993). Instead, the court must scrutinize
the entire record to determine the reasonableness of the ALJ’s factual findings. See id.
Furthermore, the Commissioner’s findings are conclusive if supported by substantial
evidence and should be upheld even in those cases where the reviewing court might
have found otherwise. See 42 U.S.C. § 405(g); see also Beauvoir v. Charter, 104 F.3d
1432, 1433 (2d Cir. 1997) (citation omitted).
IV.

ANALYSIS
Plaintiff argues that the ALJ made the following errors: (1) the ALJ applied the

wrong legal standard at step three of the disability determination analysis; (2) the ALJ’s
decision is not supported by the record; (3) the ALJ violated the treating physician rule;
and (4) the ALJ failed to reconcile inconsistencies between the Dictionary of Vocational
Titles and the vocational expert’s testimony.
A.

Disability Listings

Review of this case begins at the third step of the sequential evaluation process.
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Plaintiff argues that the ALJ erred in finding that she did not meet or equal Listing 1.04C
in Appendix 1 of Subpart P of Part 404, 20 C.F.R., based on her diagnoses of
degenerative disk disease and fibromyalgia. ALJ Thomas rejected this contention,
stating: “I considered whether the claimant’s degenerative disk disease meets, or
medically equals, the requirements of any section of the Musculoskeletal System listed
in Appendix 1, Subpart P, of Regulation No. 4, e.g., section 1.04. I ultimately decided
that the requirements of section 1.04, or any other section, are not met or medically
equaled.” R. at 14. Unfortunately, the ALJ failed to set forth a specific rationale in
support of the foregoing conclusion. Nonetheless, the absence of an express rationale
does not prevent the court from upholding the ALJ’s determination regarding plaintiff’s
claimed listed impairment if his conclusion was supported by substantial evidence. See
Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982).
To meet listing 1.04C, a claimant must have “lumbar spinal stenosis resulting in
pseudoclaudication . . . and resulting in an inability to ambulate effectively.” 20 C.F.R.
Part 404, Subpart P, Appendix 1, Part A, § 1.04(C). Ineffective ambulation is defined
as “having insufficient lower extremity functioning to permit independent ambulation
without the use of a hand-held assistive device(s) that limits the functioning of both
upper extremities.” Id. at 1.00(B)(2)(b) (emphasis added). The use of a cane does not
meet the regulation’s definition of an inability to ambulate ineffectively because the use
of a cane impacts the functioning of one hand/arm only. As plaintiff claims to need only
a cane to ambulate effectively, the ALJ’s determination that the plaintiff does not meet
the requirements of listing 1.04C is supported by substantial evidence.
Plaintiff also claims that the ALJ erred in his conclusion that she does not meet
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the listings for 12.04, Affective Disorders, and 12.06, Anxiety-Related Disorders.
Plaintiff argues that ALJ Thomas’ finding that her mental impairments are not severe is
not supported by substantial evidence and that the record supports a finding of
disability based on her mental impairments.
Under the Social Security Administration's regulations, in order to make a
determination about a claimant’s mental impairment, an ALJ must rate the claimant’s
degree of functional limitation in the following categories: 1) activities of daily living; 2)
social functioning; 3) concentration, persistence, or pace; and 4) episodes of
decompensation. 20 C.F.R. §§ 404.1520a(c)(3), (e)(2). ALJs are to rate those
functions as one of the following degrees: none, mild, moderate, marked, and extreme
(for activities of daily living; social functioning; and concentration, persistence, or pace)
and none, one or two, three, four, or more (for episodes of decompensation). Id. §
404.1520a(c)(4). “According to the regulations, if the degree of limitation in each of the
first three areas is rated ‘mild’ or better, and no episodes of decompensation are
identified, then the reviewing authority generally will conclude that the claimant's mental
impairment is not ‘severe’ and will deny benefits.” Kohler v. Astrue, 546 F.3d 260, 266
(2d Cir. 2008) (citing 20 C.F.R. § 404.1520a(d)(1)).
Even if a claimant’s functional limitations rise above mild in a particular category,
the claimant will not necessarily meet the requirements of a mental disorder disability
listing. To meet or medically equal the “paragraph B” criteria for listings 12.04 and
12.06 requires at least two of the following: a marked restriction of activities of daily
living; marked difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of
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decompensation, each of extended duration. See 20 C.F.R. Subpart P, Appendix 1,
Part A, §§ 12.04(B), 12.06(B). The regulations defined “marked” to mean more than
moderate but less than extreme. See id. § 12.00(C). Episodes of decompensation are
defined as “exacerbations or temporary increases in symptoms or signs accompanied
by a loss of adaptive functioning . . . [and] may be inferred from medical records
showing significant alteration in medications; documentation of the need for a more
structured psychological support system (e.g., hospitalizations, placement in a halfway
house, or a highly structured and directing household); or other relevant information in
the record about the existence, severity, and duration of the episode.” Id. §
12.00(C)(4).
Here, ALJ Thomas rated plaintiff’s functioning in each of the four categories. He
found that she had mild impairments in performing activities of daily living, in social
functioning, and with concentration, persistence and pace. He also found that she had
not experienced any episodes of decompensation during the relevant time period.
Because he found that plaintiff’s impairments in these categories were mild and that
she had experienced no episodes of decompensation, ALJ Thomas concluded that
plaintiff’s mental impairments were not severe and she did not meet or medically equal
the listed impairments in 20 CFR Part 404, Subpart P, of Appendix 1.
The ALJ’s conclusion that plaintiff’s mental impairments produced only mild
functional limitations is supported by substantial evidence, which he highlighted in his
opinion. First, ALJ Thomas noted plaintiff’s daily activities, such as caring for her dog,
visiting with friends, and doing things around the house. R. at 15 . Next, ALJ Thomas
discussed the opinion of plaintiff’s treating physician, Dr. Guadagnini. Id. at 15. In a
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September 27, 2007 disability report, Dr. Guadagnini noted that while plaintiff was
depressed, it did not affect her general appearance, her cognitive status was intact, her
thought contact was normal, her mood was appropriate, and her judgment and insight
appeared to be fair. Id. at 304-05. Dr. Guadagnini reported that plaintiff had no
problem with activities of daily living, social interactions, or task performance. Id. at
305-06.
Plaintiff argues that this report should be given little weight because Dr.
Guadagnini completed the report when plaintiff had only been her patient for a month
and that Dr. Guadagnini’s opinion changed over the course of development of the
doctor-patient relationship. Plaintiff’s argument, however, is not supported by the
record. Plaintiff’s medical records indicate that on December 19, 2007, Dr. Guadagnini
declined to sign a form for plaintiff to remain out of work for an additional six months, id.
at 579, and in a July 31, 2009 letter, which listed the medical conditions that impaired
Plaintiff’s ability to work, Dr. Guadagnini did not mention plaintiff’s mental condition as
an impairment, id. at 556.
Finally, ALJ Thomas found that plaintiff has not experienced any episodes of
decompensation. Id. at 15. This conclusion is supported by the medical records from
Dr. Reynolds, which show that plaintiff’s medication regimen to treat her depression and
anxiety remained relatively stable throughout the course of her treatment and note that,
overall, plaintiff seemed to respond well to her treatment. Id. at 413-21. At all but one
of her appointments after beginning treatment with Dr. Reynolds, plaintiff indicated that
she “feels better” and was “no longer depressed.” Id. at 417-18.
The court, therefore, concludes that the ALJ applied the correct legal standard to
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step three of the disability determination analysis and that his finding that plaintiff’s
impairments do not meet Listings 1.04, 12.04, and 12.06, is supported by substantial
evidence.
B.

The ALJ’s Evaluation of the Medical Opinions

The treating physician rule is well established in the Second Circuit. “SSA
regulations advise claimants that, ‘a treating source's opinion on the issue(s) of the
nature and severity of your impairment(s)’ will be given ‘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 your case record.’”
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting 20 C.F.R. §
404.1527(d)(2)). The rationale underlying the treating physician rule is that more weight
should be given to opinions from treating sources because those sources are more
likely to have detailed knowledge and understanding of the claimant's medical
impairment. Arnone v. Bowen, 882 F.2d 34, 41 (2d Cir. 1989). If the treating
physician’s opinion is not given controlling weight, the Second Circuit has set forth
several factors to determine what weight it should be given, including (1) the frequency
of examination and the length, nature and extent of the treatment relationship; (2) the
evidence in support of the opinion; (3) the opinion's consistency with the record as a
whole; and (4) whether the opinion is from a specialist. Clark v. Comm’r of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998).
Plaintiff alleges the ALJ violated the treating physician rule by “splic[ing] portions
of the records of Drs. Guadagnini, Abeles and Reynolds, rejecting those portions that
would have supported a favorable decision or at a minimum required a more in depth
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discussion” and by failing to conduct the analysis required to refute the treating source
presumption. See Pl.’s Mem. at 22. A review of ALJ Thomas’ opinion, however,
demonstrates that he gave significant weight to the opinions of plaintiff’s treating
physicians. The only opinions to which ALJ Thomas did not fully defer were those of
Drs. Baltazar, Reynolds, and Guadgnini.
As to Drs. Guadagnini and Baltazar, the court finds that the ALJ did not err in
failing to afford controlling weight to Dr. Guadagnini’s opinion that plaintiff is unable to
work “at this time” and to Dr. Baltazar’s opinion that plaintiff should only work five hours
per day because neither doctor provided a functional basis for his/her opinion nor
stated whether he/she thought plaintiff’s ability to work was permanently or merely
temporarily impaired. R. at 556, 591. Moreover, despite the great weight given to the
opinion of a treating physician, a statement by a treating physician that a claimant is
“disabled” or “unable to work” does not mean that the Commissioner must determine
that the claimant is disabled. 20 C.F.R. § 404.1527(e); see Shaw v. Chater, 221 F.3d
126, 134 (2d Cir. 2000). The Regulations specifically provide that the determination of
whether a claimant is disabled is a determination to be made by the Commissioner. 20
C.F.R. § 404.1527(e); see Jordan v. Barnhart, 29 F. App’x 790, 793-94 (2d Cir. 2002);
Bond v. Soc. Sec. Admin., 20 F. App’x 20, 21 (2d Cir. 2001); Parker v. Callahan, 31 F.
Supp. 2d 74, 77 (D. Conn. 1998). No deference is owed to a physician’s statement that
a claimant is “disabled,” because that determination is a legal conclusion, not a medical
determination, reserved for the ALJ, the Commissioner, and the courts. See Michels v.
Astrue, 297 Fed. App’x 74, 75 (2d Cir. 2008); Green-Younger, 335 F.3d at 106.
With regard to Dr. Reynolds, the ALJ frequently referred to her reports from
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plaintiff’s office visits but gave little weight to the global assessment of functioning
(GAF) score that Dr. Reynolds assigned to plaintiff during her initial consultation on
March 9, 2009. ALJ Thomas stated, “[w]hile the claimant was assigned a global
assessment of functioning (GAF) score of 45, I find that this poor level of functioning is
not supported by the overall evidence of record, and the opinion, in that regard, is given
little weight.” R. at 18. This court concludes that, because the GAF score assigned by
Dr. Reynolds is inconsistent with Dr. Guadagnini’s opinion, id. at 18, and did not reflect
the improvement in plaintiff’s mood that Dr. Reynolds observed over the course of
treating the plaintiff, id. at 417-19, ALJ Thomas did not err in giving little weight to the
GAF score.
C.

Determination of Residual Functional Capacity

Plaintiff’s next assignment of error is that the ALJ did not properly determine her
residual functional capacity (“RFC”). She claims that the ALJ did not address her
mental limitations and that he made no allowance for her diabetes, hypertension, or the
effects of her chronic pain.
Social Security Ruling 96-8p provides that the RFC assessment must include a
discussion of the individual's maximum, remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis and must be based on all
relevant evidence in the record. 1996 WL 374184, at *2 (S.S.A. July 2, 1996). In
assessing an individual's exertional capacity, the Ruling states that each function—
sitting, standing, walking, lifting, carrying, pushing and pulling—must be considered
separately. Id. The RFC assessment “must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts (e.g.,
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laboratory findings) and nonmedical evidence (e.g., daily activities, observations) . . .
and must describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record.” Id.
Here, the ALJ determined that plaintiff could perform light work, as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b), except that she could only occasionally climb
ramps and stairs, is precluded from climbing ropes, ladders, and scaffold, and can only
occasionally balance, stoop, kneel, crouch, or crawl. R. at 15. Although plaintiff claims
that the ALJ failed to give allowances for the effects of chronic pain in establishing her
RFC, ALJ Thomas’ analysis at step four of the disability determination analysis shows
that he did consider plaintiff’s pain in determining her RFC. ALJ Thomas accepted Dr.
Abeles’ opinion that plaintiff had fibromyalgia and that this condition caused her pain.
Id. at 17. He also gave significant weight to Dr. Onyiuke’s report addressing plaintiff’s
back pain. Id. While ALJ Thomas did not find plaintiff’s statements regarding the
intensity, persistence and limiting effects of her symptoms to be wholly credible based
on her daily activities and medical record, id. at 18, he did find her complaints of back
pain and right leg pain partially credible in light of her degenerative disc disease and
adjusted her RFC accordingly, id. at 17.
Contrary to plaintiff’s allegation, ALJ Thomas also addressed plaintiff’s mental
health diagnosis, diabetes, and hypertension in his assessment of her RFC. ALJ
Thomas acknowledged that plaintiff testified to having dizzy spells and had a history of
syncope, but he found that the episodes were infrequent and caused plaintiff no more
than minimal work-related limitations. Id. at 18. ALJ Thomas also discussed plaintiff’s
depression and anxiety. As discussed previously, ALJ Thomas found plaintiff’s mental
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impairments to be non-severe, and he relied on Dr. Guadagnini’s opinion regarding
plaintiff’s functional abilities and plaintiff’s self-reported daily activities to find that her
mental impairments did not result in significant limitations. Id.
D.

Plaintiff’s Ability to Perform Past Relevant Work

At step four of the disability determination analysis, the ALJ must determine
whether the claimant has the RFC to perform the requirements of the claimant's past
relevant work. See 20 C.F.R. § 416.920(e)-(f). To support a finding of disability, the
claimant must have a medically determinable physical or mental impairment of such
severity that she is unable to do her previous work. “A claimant will be found to be “not
disabled” when it is determined that he or she retains the RFC to perform: (1) the actual
functional demands and job duties of a particular past relevant job; or (2) the functional
demands and job duties of the occupation as generally required by employers
throughout the national economy.” SSR 82-61 (citing 20 C.F.R. §§ 404.1520(e),
416.920(e)).
Here, ALJ Thomas found that plaintiff was capable of performing her past
relevant work as a machine operator, as the job was actually performed and as it is
generally performed in the national economy. R. at 19. To reach this finding, ALJ
Thomas relied on Vocational Expert Ronald Freedman’s testimony that plaintiff’s past
relevant work was unskilled and only required light exertional capabilities, and
Freedman’s opinion that a person with plaintiff’s RFC could perform plaintiff’s past
relevant work as a machine operator. Id. at 55-57.
Plaintiff claims that ALJ Thomas reached this finding in error. She argues that
ALJ Thomas is expressly precluded from relying on Freedman’s testimony because it
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deviates from the exertional levels outlined in the “Dictionary of Occupational Titles”
(“DOT”), which classifies a machine operator as medium level work as it is performed in
the national economy. Pl.’s Mem. at 15. Plaintiff also argues that ALJ Thomas
misrepresented Freedman’s testimony in his decision when he stated that “the
vocational expert’s testimony is consistent with the information in the Dictionary of
Occupational Titles.” R. at 19.
Plaintiff is correct that ALJ Thomas failed to acknowledge the conflict between
the testimony of the vocational expert and the DOT, but he did not err in his reliance on
the vocational expert’s testimony over the DOT. As discussed previously, the claimant
has the burden to show an inability to return to her previous specific job and an inability
to perform her past relevant work generally. See SSR 82-62. This inquiry requires
separate evaluations of a previous specific job and the job as it is generally performed.
Whereas the [DOT] describes jobs as they are generally performed, an
expert is often called upon to explain the requirements of particular jobs, and
as such, his deviations from the [DOT] in such testimony do not actually
‘conflict’ with the [DOT]. Many specific jobs differ from those jobs as they are
generally performed, and the expert may identify those unique aspects
without contradicting the DOT.
Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003).
At the hearing, Vocational Expert Freedman testified that, although a machine operator
would normally be at the medium exertional level, as the plaintiff performed the job it
was better classified as sedentary. R. at 55. Because Freedman distinguished
between the requirements of the job as it is generally performed and the requirements
as it was actually performed by plaintiff, his deviation from the DOT did not conflict with
the DOT.
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There is substantial evidence to support the ALJ’s finding that plaintiff’s work as
a machine operator as she performed it did not require the performance of tasks that
exceeded her RFC. Along with Vocational Expert Freedman’s testimony, plaintiff
admits in her Memorandum of Law that the job of machine operator as she performed it
was at a sedentary exertional level. Pl.’s Mem. at 20. Since plaintiff has the RFC to
perform her past work as a machine operator as she actually performed it, ALJ Thomas
correctly found that she is not disabled under the regulations.

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V.

CONCLUSION
After examining the administrative record, the court concludes that substantial

evidence supports the ALJ’s decision, including the objective medical evidence and
medical opinions. The ALJ thoroughly examined the record and afforded appropriate
weight to the medical evidence when rendering his decision that plaintiff is not disabled.
Because the court finds that substantial evidence supports the ALJ’s decision, Plaintiff's
Motion for an Order Reversing the Decision of the Commissioner (Doc. No. 12) is
denied, and Defendant’s Motion to Affirm the Decision of the Commissioner is (Doc.
No. 13) is granted.
SO ORDERED.
Dated at Bridgeport, Connecticut this 12th day of April, 2011.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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