Lipsett v. Colvin
Filing
25
ORDER denying 13 Motion to Reverse the Decision of the Commissioner; granting 19 Motion to Affirm the Decision of the Commissioner. See attached memorandum of opinion. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 3/7/16. (Shechter, N.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BRITNEY NICOLE LIPSETT,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant.
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
3:13-CV-01746 (VLB)
March 7, 2016
MEMORANDUM OF DECISION DENYING THE PLAINTIFF'S MOTION TO REMAND
[Dkt. #13] AND GRANTING THE COMMISIONER'S MOTION TO AFFIRM [Dkt. #19]
I.
Introduction
Before the Court is the pPlaintiff, Britney Nicole Lipsett's Motion to Reverse
the Decision of the Commissioner which argues that the Commissioner's findings
are not supported by substantial evidence in the record as a whole and that the
decision was not rendered in accordance with the law. [Dkt. 13]. In response, the
Commissioner has filed a Motion to Affirm the Decision of the Commissioner.
[Dkt. 19]. For the reasons discussed below, Plaintiff's Motion to Reverse the
Decision of the Commissioner is DENIED. The Commissioner's Motion to Affirm
the Decision of the Commissioner is GRANTED.
II.
Factual Background
The following facts are taken from the parties’ Joint Stipulation of Facts
[Dkt. 29] and are undisputed unless otherwise indicated.
1
a. Plaintiff’s Background
Plaintiff was born in January 1992, and has alleged disability beginning on
or about July 1, 2006, when the Plaintiff was fourteen years old. [Id. at 1].
Plaintiff testified that she had completed the tenth grade and had not acquired a
GED. Id. Plaintiff, living at the time in California, had extended contact with the
juvenile justice system in that State. Id. Plaintiff worked part-time for about two
months in 2008 as a cashier and held another similar job at Macy’s for a brief time
in 2010. Id. In early November of 2009 Plaintiff moved to Connecticut from
California along with her boyfriend and their three month old son. Id. Plaintiff
was eighteen years old at the time of her April 5, 2010 application for
Supplemental Security Income (“SSI”). Id. At the time of the July 2012
administrative hearing, plaintiff was living with her one-year-old child and the
child’s father. Id.
b. Plaintiff’s Medical History
Plaintiff’s first medical record is from Dr. S. George Dresnin at Ventura
County Behavioral Health (hereinafter “VCBH”) in California, dated October 2,
2008. [Id. at 2]. The treatment note indicated that Plaintiff reported abuse of
alcohol and marijuana. Id. Plaintiff also reported hearing voices, which the note
describes as possibly “confabulating.” Id. Dr. Dresnin’s diagnoses were “Mood
Disorder not otherwise specified; Parent-Child Relational Problem; Cannabis
Dependence; Possible Borderline Intellectual Functioning; and Possible
Histrionic Personality Disorder.” Id. Medication was prescribed. Id. Dresnin
2
later diagnosed Plaintiff with “Dysthemic Disorder with Anxiety and Anger.” Id.
Plaintiff’s GAF was assessed at 40 upon her initial treatment at VCBH. 1 Id. Upon
her discharge, Plaintiff’s GAF was assessed at 58. 2 [Id. at 4].
Plaintiff was re-referred to VCBH on December 12, 2008 and was said to
manifest a “substance-induced psychotic [illegible], blunt affect, paranoid,
slightly catatonic” with visual hallucinations. [Id. at 4]. But the following day,
Plaintiff denied hearing voices or having visual hallucinations. [Id. at 5]. Lab
tests were positive for opioids and methamphetamine. Id. Dr. Dresnin’s
treatment note stated:
“No gross evidence for hallucinations, was in school, staff reports her
interactive with peers. In class she appeared attentive and quiet, in this
interview she revealed hand tremor. Manipulative? Histrionic? Does not
appear organic.” Id.
On July 27, 2009 Dr. Dresnin again saw the Plaintiff and noted that she had
never followed up with psychiatrist and had stopped taking medication. Id.
Plaintiff reported marijuana, alcohol and methamphetamine usage. [Id. at 6]. Dr.
Dresnin continued to see Plaintiff through January 14, 2010, noting ongoing drug
use and failure to consistently take medication. [Id. at 7-8]. On two occasions in
December of 2009 and January of 2010, Plaintiff again denied auditory and visual
1
A Global Assessment of Functioning (GAF) Score of 31-40 indicates “Some
impairment in reality testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) OR major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood.” Jerolmon v. Astrue, 869 F.
Supp. 2d 265, 274 (CSH) (D. Conn. 2012)
2
A GAF of 51 to 60 indicates “Moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning.” Camille v. Colvin, 104 F. Supp. 3d 329, 342
(W.D.N.Y. 2015)
3
hallucinations. [Id. at 8]. Plaintiff’s medications were repeatedly adjusted. [Id. at
6-9]. The last treatment note from VCBH indicates Plaintiff’s diagnoses as
“Schizoaffective Disorder, Depressed Type” and “Polysubstance Dependence.”
[Id. at 8].
By November 9, 2011 the plaintiff, her boyfriend, and their child relocated
to Connecticut and were living with her grandmother in East Lyme. Id. On
November 9, 2011, Anna Terryn, LCSW at Middlesex Hospital diagnosed Plaintiff
with “Bipolar Disorder and Anxiety Disorder Not Otherwise Specified” and GAF
was assessed at 45. 3 [Id. at 9]. Dr. Richard M. Ketai was then seen on November
22, 2011, with diagnoses of “Bipolar I disorder in addition to social anxiety
disorder.” [Id. at 10]. GAF was assessed at 50 and Plaintiff was described as
“quite cooperative” and displayed no evidence of psychotic thinking.” Id.
On a later visit with Dr. Richard M. Ketai on December 21, 2011, Plaintiff
reported that she had stopped taking her medication and had become
“increasingly moody, argumentative and angry and she is quite unhappy with the
way she is feeling at this point.” Id. Plaintiff’s medications were adjusted and
new medications prescribed. Id. On July 2, 2012 medical records indicate that
Plaintiff, her child, and her boyfriend had moved out of her grandmother’s house
and had established Section VIII housing, and Plaintiff’s boyfriend was in school
to become a medical assistant. [Id. at 12]. On Plaintiff’s most recent medical
3
“A GAF of 41–50 indicates: Serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or social functioning (e.g., no friends, unable to keep a job).” Shaw
v. Colvin, No. 12-CV-0822AF, 2015 WL 1646998, at *4 (W.D.N.Y. Apr. 14, 2015).
4
visit, she was diagnosed with “Schizoaffective disorder bipolar subtype, rule out
schizophrenia . . . History of panic with agoraphobia, history of marijuana
dependence sustained full partial remission.” Id. Plaintiff was found to be “calm,
in control of her mood, and exhibiting fair to good insight and judgment.” Id.
c. Expert Examinations and Opinions
On July 28, 2010, Rosa Colonna, Ph.D. performed a psychological
consultative examination at the request of the State Agency. Id. Dr. Colonna
wrote that Plaintiff “put forth little effort towards psychometric testing,” that she
“appears to give up very easily on items even if they are simplistic” and that
“[t]herefore, these scores appear to be an underestimation of her ability.” Id.
Thus, although the test results gave Plaintiff a Full Scale IQ of 67, Dr. Colonna
opined that plaintiff can, “understand, remember, and carry out short and
simplistic instructions without difficulty,” and has “a mild inability to interact
appropriate[ly] with supervisors, coworkers, and peers” due to ‘slight[] social[]
immatur[ity].’” Id.
On May 7, 2011 the plaintiff was further evaluated by Elmo Lee, a “Board
Eligible” MD in the field of psychiatry. [Id. at 13]. Dr. Lee was not provided with
any records for review. Id. Nonetheless, Lee noted that “[t]he claimant is able to
perform her ADLs and her personal hygiene . . . [and] was able to perform simple
addition and multiplication and she was also able to do serial 7s without an error
using her fingers.” Id. Dr. Lee concluded that Plaintiff’s “psychiatric symptoms
are relatively mild even though she is off all of her psychotropic medications, due
5
to pregnancy. The claimant’s problem is treatable and the likelihood of recovery
is fair to good…” Id. Dr. Lee opined that as long as Plaintiff remained sober, she
could perform even “detailed and complex tasks” and that she had no restriction
in interacting with supervisors, coworkers, and the public. Id. Thereafter, the
State Agency document-reviewing psychiatrist, Dr. Gold, opined in June 2011 that
plaintiff is capable of “simple, repetitive work,” that her activities of daily living
are “normal” and that she has “moderate limitation in the domains of social
functioning and concentration, persistence or pace.” Id.
On July 18, 2012, Dr. Steven Wyatt completed a Mental Residual Functional
Capacity (“RFC”) Statement. Id. Although the parties describe Dr. Wyatt as
Plaintiff’s treating physician, Dr. Wyatt had not previously treated the Plaintiff for
her psychiatric disorders or any other condition and there is no evidence to
indicate that he treated her subsequent to the July 18, 2012 examination. Id.
Rather, Dr. Wyatt based his conclusions on a single 80 minute evaluation and a
review of the Plaintiff’s medical file. Id. Dr. Wyatt concluded that the plaintiff
would be “off task” for 20% or more of a work day, that she would be absent from
work “five days or more per month” as a result of her impairments and/or the
need for treatment of them, and that she would be unable to complete a full work
day “five or more days per month” for the same reasons. [Id. at 14]. Further, Dr.
Wyatt concluded that Plaintiff could be expected to work at 60% of the capacity of
an unimpaired worker and that she was, in his opinion, incapable of obtaining
and retaining employment. Id.
d. The ALJ’s Decision
6
On July 16, 2012, Plaintiff appeared for a hearing before ALJ James E.
Thomas. [ALJ Hrg. Decision (“Tr.”) at 12]. Plaintiff was represented by counsel.
Id. Plaintiff testified that she stayed home most of the day because of her
depression and could not work with people because of anxiety, mood swings and
problems handling anger and frustration. [Id. at 14-15]. Plaintiff testified that she
could not go to the grocery store, because she had difficulty in situations where
she was around large numbers of people. [Id. at 15-16]. Plaintiff testified that she
heard voices. [Id. at 16]. Plaintiff also testified that she had been sober since
about the age of 16, “way before” she became pregnant. [Id. at 15].
On September 21, 2012, the ALJ issued a decision adverse to plaintiff. [Tr.
at 12]. ALJ Thomas concluded that Plaintiff was not disabled under the Act on
the date of the ALJ's decision or at the time of her Application. ALJ Thomas
found that the plaintiff “has the following severe impairments: bipolar disorder;
anxiety disorder; and polysubstance dependence (in remission).” [Id. at 13]. ALJ
Thomas found the plaintiff capable of performing “a full range of work at all
exertional levels, but with the following non-exertional limitations: The claimant is
limited to performing simple, routine, repetitive work with one or two step
instructions. The claimant can tolerate occasional interaction with the public, coworkers and supervisors.” [Id. at 15].
The SSA Appeals Council denied plaintiff’s request for review, a
conclusion which became the final decision of the Commissioner. Id. Plaintiff
then commenced the instant action in this District on November 21, 2013 and the
7
case was assigned to Magistrate Judge Martinez. [Dkt. No. 1]. The case was
transferred to this Court on July 30, 2015. [Dkt. No. 21].
III.
Legal Standard
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA's conclusions were supported by substantial
evidence in the record and were based on a correct legal standard.” Talavera v.
Astrue, 697 F.3d 145, 151 (2d Cir.2012) (internal quotation marks omitted); see
also 42 U.S.C. § 405(g). “[S]ubstantial evidence” is “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, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971) (internal quotation marks omitted). In determining whether the
agency's findings were supported by substantial evidence, “the reviewing court
is required to examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.” Mongeur v. Heckler,
722 F.2d 1033, 1038 (2d Cir.1983) (per curiam). If there is substantial evidence to
support the determination, it must be upheld. Id.; see also 42 U.S.C. § 405(g).
The commissioner’s determination must be afforded considerable deference. The
district Court 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).
8
IV.
Discussion
To be “disabled” under the Social Security Act, a claimant must
demonstrate an “inability 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).
In order to evaluate disability claims, the Social Security Administration
(“SSA”) has promulgated the following five-step procedure:
1.
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity (“Step One”).
2.
If she is not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits her physical or
mental ability to do basic work activities (“Step Two”).
3.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations (“Step Three”).
4.
If the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant's severe impairment, she has the Residual
Functional Capacity (“RFC”) to perform her past work (“Step Four”).
5.
Finally, if the claimant is unable to perform her past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform (“Step Five”).
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), citing 20 C.F.R. § 404.1520. In
this case, the parties do not contest the ALJ’s Step One finding that Plaintiff was
not engaged in substantial gainful activity or the ALJ’s Step Two finding that the
Plaintiff had severe impairments in the form of: (1) bipolar disorder, (2) anxiety
disorder, and (3) polysubstance dependence. [Tr. at 14].
9
However, Plaintiff argues: (i) that the ALJ’s finding at Step Three that
Plaintiff did not have a listed impairment is not supported by substantial
evidence, (ii) that the ALJ’s RFC assessment at Step Four was flawed because
the ALJ did not observe the “treating physician rule,” (iv) that the ALJ’s Step
Four determination did not properly credit her own testimony, and (v) that the
ALJ’s Step Five determination was erroneous because the ALJ did not elicit the
testimony of a vocational expert. The Court considers each argument in turn.
a. The ALJ’s Determination That Plaintiff’s Impairments Did Not Meet A
Listing Is Supported By Substantial Evidence
Plaintiff first argues that the ALJ substantial evidence did not support the
ALJ’s conclusion that she did not have a listed impairment. “For a claimant to
show that his impairment matches a listing, it must meet all of the specified
medical criteria. An impairment that manifests only some of those criteria, no
matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990). The plaintiff bears the burden of showing that an impairment meets the
specified criteria. Id.
Specifically, Plaintiff argues that the ALJ’s analysis was deficient as to the
“Part B” criteria of Listings 12.04 (“Affective Disorders”) and 12.06 (“Anxiety
Disorders), which may only be satisfied if the claimant can demonstrate at least
two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
10
20 C.F.R. Part 404, Subpt. P, App. 1 §§ 12.04(B)(4); 12.06(B). A “marked
difficulty” is more than a “moderate” difficulty, but less than one that is
“extreme.” 20 C.F.R. § 404.1520a (setting forth a “five-point scale: None, mild,
moderate, marked, and extreme”). Plaintiff argues that the ALJ’s analysis of the
Part B criteria was “deficient” as to each of the four factors. The Court considers
each in turn.
“Activities of daily living include adaptive activities such as cleaning,
shopping, cooking, taking public transportation, paying bills, maintaining a
residence, caring appropriately for your grooming and hygiene, using telephones
and directories, and using a post office.” 20 C.F.R Part 404, Subpt. P, App. 1 §
12.00(C)(1). In this category, the ALJ found only a “mild restriction,” noting that
Plaintiff is able to live independently with her boyfriend, care for an infant, and
has no difficulty attending to personal needs. [Tr. at 16]. The ALJ noted that
Plaintiff had moved with her baby and boyfriend from California to Connecticut
during the alleged disability period. [Tr. at 20]. The ALJ also noted that Plaintiff,
while living with her grandmother, was able to walk places, take taxis, and
mentioned disliking living in East Lyme because it was “in the middle of
nowhere.” Id.
Plaintiff argues that the ALJ’s reference to her ability to care for her infant
was “particularly pernicious,” citing to, and including large block quotes from,
two opinions written by Judge Posner of the Seventh Circuit rejecting a “casual
equating of household work to work in the labor market.” [Pl.’s Mem. at 24, citing
Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005)]. Judge Posner’s analysis,
11
however, was directed to an ALJ’s Residual Functional Capacity (“RFC”)
assessment at Step Four and the Step Five determination of whether jobs exist in
the national economy that the claimant can perform. Plaintiff’s authority is
plainly inapplicable to her challenge of the ALJ’s Step Three determination that
she did not have a listed impairment. On the contrary, the plain text of the
regulations require the ALJ to consider “grooming and hygiene” as well as
“maintaining a residence.” The ALJ’s analysis of Plaintiff’s daily activities is
supported by substantial evidence.
Social functioning refers to the claimant’s “capacity to interact
independently, appropriately, effectively, and on a sustained basis with other
individuals,” and includes “the ability to get along with others, such as family
members, friends, neighbors, grocery clerks, landlords, or bus drivers.” 20 C.F.R
Part 404, Subpt. P, App. 1 § 12.00(C)(2). A claimant may “demonstrate impaired
social functioning by, for example, a history of altercations, evictions, firings, fear
of strangers, avoidance of interpersonal relationships, or social isolation.” Id.
The ALJ found that Plaintiff had “moderate difficulties” due to her “anti-social
behavioral patterns” as evidenced by her “extensive legal history and history of
altercations with others.” [Tr. at 16]. However, the ALJ found that Plaintiff was
“able to respond appropriately, carry on a conversation, and does not
demonstrate any disruptive behavior.” It is clear in this case that Plaintiff has
significant difficulties interacting with others. At the same time, Plaintiff has
maintained a long-term intimate relationship with a boyfriend and has lived
without reported incident with her grandmother. It cannot be said that she
12
completely avoids interpersonal relationships. Plaintiff’s distress at her remote
location in East Lyme also indicates that she does not desire complete social
isolation. Social functioning is the area in which Plaintiff’s impairments present
the most serious symptoms, but there is evidence to support the ALJ’s
conclusion, and even if Plaintiff met the criteria for “marked” limitations in social
functioning, the Court finds below that she has not presented evidence of marked
difficulties in any other category.
“Concentration, persistence, or pace refers to the ability to sustain focused
attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings.” 20 C.F.R Part 404, Subpt.
P, App. 1 § 12.00(C)(3). The ALJ found that Plaintiff had only “moderate
limitation” in the category of “concentration, persistence or pace.” Plaintiff
argues that the ALJ performed “no analysis here.” [Pl.’s Mem. at 26]. The Court
disagrees. The ALJ considered and gave weight to the findings of the consulting
examiners that Plaintiff’s memory and attention span were only moderately
diminished. [Tr. at 16]. Those examiners noted that Plaintiff was able to perform
“serial sevens” a test specifically recommended by the regulations, 4 that Plaintiff
could remember and follow simple instructions, and that Plaintiff put forth little
effort in her intellectual testing. The ALJ’s determination of moderate impairment
was supported by substantial evidence.
4
The Listings provide that “concentration is assessed by tasks such as having
you subtract serial sevens or serial threes from 100.” 20 C.F.R Part 404, Subpt. P,
App. 1 § 12.00(C)(3).
13
“Episodes of decompensation are exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning.” 20 C.F.R
Part 404, Subpt. P, App. 1 § 12.00(C)(4). Such episodes “may be inferred from
medical records showing significant alteration in medication; or 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).” Id. The ALJ found that Plaintiff had experienced no
episodes of decompensation. Plaintiff argues, without citation to authority, that
“the period from the alleged onset date to the present . . . has been one extended
period of decompensation.” [Pl’s Mem. at 28]. While creative, this argument has
no basis in fact. Plaintiff was hospitalized for a period in 2008. Since then,
Plaintiff has been treated on numerous occasions and has on some occasions
exhibited more troubling signs than others – particularly with regard to drug use.
There is also evidence of numerous adjustments to Plaintiff’s medications,
indicating an ebb and flow of severe symptoms. However, Plaintiff has lived
independently, has completed a cross-country move and established a family,
and has been off her medications for extended periods of time without incident or
hospitalization or requiring any “structured” psychological treatment or
residence care. The ALJ’s determination as to decompensation is supported by
substantial evidence.
The court concludes that the ALJ’s determination that Plaintiff failed to
meet her burden of showing that her impairments met the listed criteria is
14
supported by substantial evidence. Therefore, the Motion to Reverse on this
ground is DENIED.
b. The ALJ’s Decision Not To Apply Treating Physician Rule In
Determining Plaintiff’s Residual Functional Capacity Is Supported By
Substantial Evidence
Residual functional capacity (“RFC”) is “what an individual can still do
despite his or her limitations.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
“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.” Id.
RFC is “an assessment based upon all of the relevant evidence . . . [which
evaluates a claimant’s] ability to meet certain demands of jobs, such as physical
demands, mental demands, sensory requirements, and other functions.” 20
C.F.R. § 220.120(a).
Plaintiff argues that the ALJ’s Step Four determination that she “has the
residual functional capacity to perform a full range of work at all exertional levels
but. . . limited to performing simple, routine, repetitious work with one or two step
instructions” failed to properly consider her treating physician’s conclusions.
Specifically, Plaintiff argues that the ALJ erred in affording only “little weight” to
Dr. Wyatt’s opinion that Plaintiff was “incapable of obtaining and retaining
employment.” [Pl.’s Mem. at 18-22].
The Commissioner responds by noting the ALJ’s concerns with the fact
that Dr. Wyatt only examined Plaintiff on one occasion, with at least one of Dr.
Wyatt’s diagnoses being inconsistent with the medical record and with his
15
conclusion about Plaintiff’s behavioral problems lacking support from the
treatment notes of prior treating physicians.
“[T]he opinion of a claimant’s treating physician as to the nature and
severity of the impairment is given ‘controlling weight’ so long as it ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record.’”
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. §
404.1527(d)(2)); see also Mariani v. Colvin, 567 F. App’x 8, 10 (2d Cir. 2014)
(holding that “[a] treating physician’s opinion need not be given controlling
weight where it is not well-supported or is not consistent with the opinions of
other medical experts” where those other opinions amount to “substantial
evidence to undermine the opinion of the treating physician”).
“The regulations further provide that even if controlling weight is not given
to the opinions of the treating physician, the ALJ may still assign some weight to
those views, and must specifically explain the weight that is actually given to the
opinion.” Schrack v. Astrue, 608 F. Supp. 2d 297, 301 (D. Conn. 2009) (citing
Schupp v. Barnhart, No. Civ. 3:02CV103(WWE), 2004 WL 1660579, at *9 (D. Conn.
Mar. 12, 2004)). It is “within the province of the ALJ to credit portions of a
treating physician’s report while declining to accept other portions of the same
report, where the record contained conflicting opinions on the same medical
condition.” Pavia v. Colvin, No. 6:14-cv-06379 (MAT), 2015 WL 4644537, at 4
(W.D.N.Y. Aug. 4, 2015) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)).
In determining the amount of weight to give to a medical opinion, the ALJ
16
considers the examining relationship, the treatment relationship, the length of
treatment, the nature and extent of treatment, evidence in support of the medical
opinion, consistency with the record, specialty in the medical field, and any other
relevant factors. 20 C.F.R. § 404.1527.
In this case, the ALJ provided three reasons for discounting Dr. Wyatt’s
opinion. First, the ALJ recognized that Dr. Wyatt only examined plaintiff on one
occasion, and found that because of this single examination, “the rational[e] for
according controlling weight is not present.” [Tr. at 20]. The importance of this
point cannot be overstated. In Black & Decker Disability Plan v. Nord, 538 U.S.
822, the Supreme Court considered whether the “treating physician rule” should
be applied in ERISA cases. Debunking “the assumption that the opinions of a
treating physician warrant greater credit than the opinions of plan consultants,”
Justice Ginsburg noted that the rationale supporting such an assumption would
“make scant sense when, for example, the relationship between the claimant and
the treating physician has been of short duration.” Id. at 832 (2003); see also
Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (holding that “ALJs should not
rely heavily on the findings of consultative physicians after a single
examination”). There can be no shorter duration of treatment than a single
examination. In effect, the treating physician simply becomes the Plaintiff’s – or
the Plaintiff’s attorney’s – preferred litigation consultant or trial expert, and there
is no logic behind affording one such consultant greater weight than another
purely on the basis of which party has solicited the consultant’s services.
17
But the ALJ was also not required to give equal weight to the opinions of
the three consultant examiners in this case. “State agency medical and
psychological consultants ... are highly qualified physicians and psychologists
who are also experts in Social Security disability evaluation.” Tyson v. Astrue,
2010 WL 4365577, at *10 (D. Conn. June 15, 2010), report and recommendation
adopted, 2010 WL 4340672 (D. Conn. Oct. 22, 2010)(citing 20 C.F.R. §
404.1527(f)(2)(I)). “As the Second Circuit has held, the opinions of non-examining
sources can override the treating sources' opinions provided they are supported
by evidence in the record.” Id. (citing Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.
1993)).
In the instant case, the ALJ afforded greater weight to one of the two State
Agency consultants, Dr. Colonna, 5 after finding that her opinion was “consistent
with the evidence as a whole, including . . . the findings in the treatment records
that the claimant is depressed but generally stable.” [Tr. at 20]. By contrast, the
ALJ found that Dr. Wyatt’s opinion that Plaintiff was incapable of obtaining or
retaining work was inconsistent with the evidence presented. Id. In particular,
the ALJ noted that “psychological treatment notes frequently indicate mild
symptoms” and that this was the case “even when [Plainitff] had to be off her
psychotropic medications for nine months while pregnant.” Id. The fact that
Plaintiff was entirely stable while off her medication for a lengthy time period is a
significant indicator of the severity of her impairments. The Court finds that the
5
The Court notes that the ALJ also discounted the opinion of the State Agency
psychiatric consultant Dr. Lee, after noting that Dr. Lee’s finding that Plaintiff
could perform “detailed and complex” tasks was inconsistent with the treatment
notes as well as with Dr. Colonna’s testing. [Tr. at 20].
18
ALJ properly considered this fact as undermining Dr. Wyatt’s conclusions.
In addition, the ALJ noted that Dr. Wyatt accepted plaintiff’s self-report of
persistent derogatory auditory hallucinations, but that the presence of such
hallucinations had been repeatedly denied by Plaintiff throughout the treatment
notes. 6 Again, the ALJ properly considered this to be a significant inconsistency
in Dr. Wyatt’s assessment.
The court concludes that the ALJ’s decision to not give Dr. Wyatt’s report
and conclusions controlling weight is supported by both substantial evidence
and the rationale behind the “treating physician rule.” The court also concludes
that substantial evidence supports the ALJ’s reliance on the opinions of state
agency consultants in reaching his ultimate Step Four determination. Therefore,
Plaintiff’s Motion to Reverse on this ground is DENIED.
c. The ALJ’s Determination as to Plaintiff’s Credibility Is Not “Patently
Unreasonable”
Plaintiff also argues that the ALJ’s decision regarding her RFC at Step Four
failed to properly credit her own testimony that she is “unable to work in any
capacity due to her bipolar disorder . . . which causes her difficulty in being
6
Plaintiff argues that a claimant’s “subjective” report of pain “may serve as the
basis for establishing disability, even if such pain is unaccompanied by positive
clinical findings or other 'objective' medical evidence." Marcus v. Califano, 615
F.2d 23, 27 (2d Cir.1979). However, the ALJ did not discount Dr. Wyatt’s opinion
simply because he relied on a subjective report of hallucinations. Rather, the ALJ
discounted Dr. Wyatt’s opinion because Plaintiff’s report of hallucinations during
his single examination was inconsistent with numerous prior treatment notes in
which she had denied such hallucinations. The ALJ determined that Dr. Wyatt’s
reliance on a self-report that was directly contravened by prior treatment notes
undermined the credibility of his opinion.
19
around people due to panic attacks and mood swings” and is not supported by
substantial evidence.
The ALJ “is not required to accept the claimant’s subjective complaints
without question; he may exercise discretion in weighing the credibility of the
claimant’s testimony in light of the other evidence of record.” Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The ALJ’s “finding that the witness is not credible
must . . . be set forth with sufficient specificity to permit intelligible plenary review
of the record.” Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d
Cir. 1988). The “ALJ’s credibility determination is generally entitled to deference
on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013).
In this case, the ALJ noted that Plaintiff testified that she had been fired
from her job as a cashier at Macy’s, but that Plaintiff had earlier reported to a
treatment provider that her job had been seasonal and that she had quit on her
own. [Tr. at 18]. The ALJ noted Plaintiff’s poor effort during psychological
testing as a factor not enhancing her credibility. Id. The ALJ noted that Plaintiff’s
psychiatric symptoms after her move to Connecticut had been reported as
relatively mild, even when Plaintiff discontinued medication for extended periods
of time. [Id. at 19]. The ALJ also noted that Plaintiff testified to experiencing
auditory hallucinations despite repeatedly denying such hallucinations in the
past and treatment notes indicating a lack of psychotic thinking or behavior. Id.
Plaintiff argues that these observations are, variously, “irrelevant,” or “a
virtual non-sequitur” or “hardly a shock.” Plaintiff’s arguments, however, go to
the weight of the evidence, a function within the discretion of the ALJ. The court
20
concludes that the ALJ “weigh[ed] the credibility of the claimant’s testimony in
light of the other evidence of record,” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010), and determined that her testimony was not fully credible – a determination
supported by substantial evidence. Therefore, Plaintiff’s motion to reverse on this
ground is DENIED.
d. The ALJ’s Residual Functional Capacity Evaluation Is Supported By
Substantial Evidence
“At Step Five [of the evaluation process], the Commissioner must
determine that significant numbers of jobs exist in the national economy that the
claimant can perform. An ALJ may make this determination either by applying
the Medical Vocational Guidelines (referred to by social security specialists as
the “Grids” or “Grid”) or by adducing testimony of a vocational expert.” McIntyre
v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing 20 C.F.R. § 404.1520(a)(4)(v)).
Plaintiff argues that the ALJ improperly relied upon the Medical-Vocational
Guidelines to find that jobs existed in the national economy in significant
numbers that Plaintiff could perform. Plaintiff argues that because the Grids “do
not take into account non-exertional impairments, the Commissioner cannot use
them to find non-disability when depression, mood disorder, anxiety and
schizoaffective disorder reduce the ability to perform jobs of which the plaintiff
may be otherwise exertionally capable.” [Pl.’s Mem. at 32]. Plaintiff further
argues that “the ALJ’s failure to call upon the vocational witness for testimony
was error.” Id.
21
To the contrary, “the mere existence of a nonexertional impairment does
not automatically . . . preclude reliance on the [Medical-Vocational G]uidelines.”
Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986). Id. ALJs must apply the Grids
on a case-by-case basis, and if the Grids accurately reflect a claimant’s
limitations, then an ALJ may solely use them in assessing the availability of jobs
that the claimant can perform. Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986).
“Vocational expert testimony is required only if a claimant’s nonexertional
limitations . . . significantly limit the range of work permitted by his exertional
limitations.” Lewis v. Colvin, 548 F. App’x 675, 678 (2d Cir. 2013) (internal
quotations omitted). A significantly limiting nonexertional impairment must “so
narrow a claimant’s possible range of work as to deprive him of a meaningful
employment opportunity.” Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir. 2010)
Plaintiff cites no authority or support in the Record for the proposition that
Plaintiff’s bipolar disorder so narrowed the range of her possible work as to
deprive her of a meaningful employment opportunity. Plaintiff argues that the
RFC limitation of “simple routine, repetitious work with one or two step
instructions” limits her to jobs that have a reasoning level of “one” in the
Dictionary of Occupational Titles (“DOT”). [Pl’s Mem. at 31-32]. The
Commissioner counters that “an RFC limitation to “short, simple instructions” is
not inconsistent with jobs that have a reasoning level either of two or three.”
[Def.’s Mem. at 25, citing Jones-Reid v. Astrue, 934 F. Supp. 2d 381, 408-09 (D.
Conn. 2012) (collecting cases), aff’d, 515 F. App’x 32 (2d Cir. 2013)]. The dispute
is simply not dispositive, however, as the Commissioner points out that “the DOT
22
identifies 819 distinct occupations that are classified at the reasoning level of
one.” [Def.’s Mem. at 25, n. 15]. Plaintiff’s argument that a level one
classification “substantially reduces the already constricted occupational base of
unskilled work” misses the mark. Any claimant with serious nonexertional
limitations is going to have a “substantially . . . constricted” occupational base –
the question is whether the claimant has such a narrow available range as to be
deprived of a meaningful employment opportunity. Plaintiff has submitted no
evidence that she is within so narrow a range. Courts in this Circuit have noted
that claimants with moderate limitations to social functioning can still access and
maintain a range of unskilled employment. See, e.g., Calabrese v. Astrue, 358 F.
App’x 274, 276-77 (2d Cir. 2009); Rivera v. Colvin, No. 3:13-cv-709-JGM, slip op. at
22-23 (D. Conn. Apr. 22, 2014)
The court is satisfied that the ALJ’s conclusion that Plaintiff can perform
unskilled work at all exertional levels is supported by substantial evidence.
Therefore, Plaintiff’s Motion to Reverse on the ground that the ALJ’s Step Five
determination is flawed is DENIED.
V.
Conclusion
For the foregoing reasons, Plaintiff's Motion to Reverse the Decision of the
Commissioner is DENIED. The Commissioner's Motion to Affirm the Decision of
the Commissioner is GRANTED. The Clerk is directed to CLOSE this case.
IT IS SO ORDERED.
23
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 7, 2016
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?