Aguilar v. Colvin
Filing
17
ORDER denying 15 plaintiff's motion to reverse the decision of the Commissioner; and granting 16 defendant's motion to affirm the decision of the Commissioner. See attached ruling. Signed by Judge Donna F. Martinez on 3/31/17. (Brierley, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DIANA AGUILAR,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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CASE NO.3:15CV643(DFM)
RULING ON PENDING MOTIONS
Plaintiff, Diana Aguilar, seeks judicial review of the
denial of her applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”).1
1Plaintiff
Currently
filed applications for DIB and SSI on June 22,
2012. She alleged a disability onset date of July 30, 2011.
Her applications were denied initially and upon reconsideration.
(R. 17.)
The Administrative Law Judge (“ALJ”) found at step 1 that
plaintiff has not engaged in substantial gainful activity since
her alleged onset date. (R. 20.) At step 2, the ALJ found that
plaintiff has the following severe impairments: affective
disorder/depression and obesity. (R. 20.) She found at step 3
that plaintiff’s conditions did not meet or medically equal a
listed impairment. (R. 20.) She determined that plaintiff
retained the residual functional capacity (“RFC”) to perform a
medium exertional work. The ALJ found that plaintiff is able to
maintain routine work, with few steps and few changes day to
day, in an environment that includes no timed work or strict
quotas. She can perform work that includes no tandem tasks or
interaction with the general public; she is capable of only
brief and superficial contact with others; and she should avoid
concentrated exposure to fumes, odors, dusts, gases, and poorly
ventilated areas. (R. 23.) At step 4, the ALJ determined that
plaintiff is able to perform her past relevant work as a book
packager. (R. 27.) She thus concluded that plaintiff was not
disabled within the meaning of the Social Security Act. (R. 27.)
pending are plaintiff’s motion to reverse the decision of the
Commissioner of Social Security (“Commissioner”) (doc. #15) and
defendant’s motion to affirm the decision of the Commissioner.
(Doc. #16.)
Pursuant to the court’s order, counsel filed a
joint stipulation of facts and medical chronology, which I
incorporate by reference. (Doc. #15-1.)
For the following
reasons, plaintiff’s motion is DENIED and defendant’s motion is
GRANTED.2
I.
Legal Standard
The standards for determining an individual’s entitlement
to DIB and SSI, the Commissioner’s five-step framework for
evaluating claims, and the district court’s review of the final
decision of the Commissioner are well-settled.
I am following
those standards, but do not repeat them here.
II.
Discussion
Plaintiff makes several arguments.
She contends that the
ALJ erred by (a) failing to find that plaintiff has a listed
impairment; (b) committing factual errors in her evaluation of
the evidence; (c) improperly applying the treating physician
rule; (d) failing to properly assess plaintiff’s credibility;
Plaintiff appealed the ALJ’s decision to the Appeals Council,
which denied her request for review on March 27, 2015. (R. 1-3.)
2This is not a recommended ruling.
On November 6, 2015, the
parties consented to the jurisdiction of a magistrate judge.
(Doc. #14.) See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b).
2
and (e) failing to consider plaintiff’s non-severe impairments
in her RFC determination.
I consider each argument in turn.
A. Listed Impairment
Plaintiff first argues that the ALJ erred at step three by
failing to find that her bipolar disorder meets or medically
equals Listing 12.04 (bipolar disorder), 20 C.F.R. Pt. 404,
Subpt. P, App. 1.
Listing 12.04 is met when the requirements in
both paragraphs A and B are satisfied, or when the requirements
of paragraph C are satisfied.3
It is uncontested that
plaintiff’s mental impairments satisfy the paragraph A criteria,
3The
paragraph A criteria for Listing 12.04 require medical
documentation of three or more of the following: pressured
speech; flight of ideas; inflated self-esteem; decreased need
for sleep; distractibility; involvement in activities that have
a high probability of painful consequences that are not
recognized; or increase in goal-directed activity or psychomotor
agitation. 20 C.F.R. Pt. 404, Subpt. P, App. 1.
To meet the paragraph C criteria, plaintiff must have “a
medically documented history of chronic mental disorder of at
least two years’ duration that has caused more than a minimal
limitation of ability to do basic work activities, with symptoms
or signs currently attenuated by medication or psychosocial
support, and one of the following: repeated episodes of
decompensation, each of extended duration; or a residual disease
process that has resulted in such marginal adjustment that even
a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to
decompensate; or current history of one or more years’ inability
to function outside a highly supportive living arrangement, with
an indication of continued need for such an arrangement.” (R.
22.) The ALJ determined that plaintiff does not satisfy the
paragraph C criteria. (R. 22.) Plaintiff does not challenge
this finding.
3
and she contends she also meets the paragraph B criteria.
To
satisfy paragraph B of § 12.04, the claimant’s mental impairment
must result in at least two of the following: 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, each of
extended duration. A marked limitation means more than
moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three
episodes within 1 year, or an average of once every 4
months, each lasting for at least 2 weeks.
(R. 21.)
Plaintiff argues that she satisfies the paragraph B
criteria because she is markedly impaired in activities of daily
living; social functioning; and concentration, persistence, and
pace.
Plaintiff directs the court to a medical source statement
completed by Dr. Raj Bansal and co-signed by licensed clinical
social worker Nellie Rivera.
(R. 517-20.)
Although these
clinicians assessed that plaintiff has obvious problems using
good judgment regarding safety and dangerous circumstances and
handling frustration appropriately, they did not indicate any
serious problems with activities of daily living.
Similarly,
the clinicians assessed only a slight problem getting along with
others without distracting them or exhibiting behavioral
extremes, but no problem in any other area of social
interaction.
(R. 519.)
With regard to task performance, the
clinicians assessed only one serious problem--performing work
4
activity on a sustained basis.
(R. 519.)
They noted that
plaintiff has obvious problems carrying out multi-step
instructions; focusing long enough to finish assigned simple
activities or tasks; and changing from one simple task to
another.
(R. 519.)
She has no problem carrying out single-step
instructions and only a slight problem performing basic work
activities at a reasonable pace/finishing on time.
(R. 519.)
The ALJ correctly determined that plaintiff’s bipolar
disorder does not satisfy the paragraph B criteria because she
does not have any marked limitations, nor has she experienced
any episodes of decompensation for an extended period of time.
(R. 22.)
The ALJ explained that the record, including
plaintiff’s own statements,4 supports a finding of only moderate
difficulties in concentration, persistence, or pace, and mild
limitations in activities of daily living and social
functioning.
(R. 21-22.)
The ALJ’s determination that
plaintiff has not satisfied the paragraph B criteria of Listing
12.04 is supported by substantial evidence.
4Plaintiff
completed a statement of daily activities in
which she reported being able to independently care for herself
and her children, drive, leave the house daily, bring her
children to activities and sports practices, grocery shop,
prepare meals, perform household chores, and manage the
household bills using a computer. (R. 246-53.)
5
B. Alleged Factual Errors
Plaintiff next contends that the ALJ misconstrued the
evidence and made several erroneous factual findings, namely:
(1) that plaintiff independently cares for her two children; (2)
that plaintiff stated she can perform her past work; and (3)
that plaintiff has “continued to gain weight without any
attempts to try to lose weight, such as diet restrictions and
exercise.”
(R. 24.)
Plaintiff argues that these errors led the
ALJ to conclude that plaintiff is able to function at a higher
level than she actually can.
Plaintiff maintains that her children spend a significant
amount of time with their grandmother and that “they are
involved with the Department of Children and Families.”
Br., Doc. #15-1, p. 9.)
(Pl.
To the contrary, the record reflects
that plaintiff’s children live with her and that she cares for
them on a daily basis by getting them ready for school,
preparing food for them, and taking them to their sports
practices.
(R. 246-52.)
The children temporarily lived with
their grandmother when plaintiff was working at night.
408.)
(R.
The Department of Children and Families was called on one
occasion in 2011 because her autistic son reportedly had
bruises.
(R. 542.)
There is no implication in the record that
plaintiff is incapable of caring for her children, and plaintiff
6
testified that no one ever has complained about the way she
takes care of her children. (R. 77.)
Plaintiff next criticizes the ALJ’s characterization of her
testimony about her ability to work.
Plaintiff maintains that
she testified she could not work because of her “mental
statuses.”
(R. 65.)
A review of the transcript, however,
reveals that plaintiff testified that she could perform her past
relevant work, subject to her temporary lifting restriction
following bariatric surgery.
(R. 27, 46-48.)
Lastly, when the ALJ’s discussion of plaintiff’s weight
gain is read in context, it is clear that she did not ignore
plaintiff’s efforts to lose weight:
The medical evidence of record reveals that the
claimant’s obesity also contributes to her depression.
She sought treatment for obesity in order to lose weight.
In November 2012, the claimant reported gaining weight;
however, she admitted to not being active or exercising
. . . . In early 2013, the claimant continued to seek
treatment for her obesity so that she could undergo
bariatric surgery.
Treatment notes from March 2013
reveal that the claimant continued to gain weight
without any attempts to try to lose weight, such as diet
restrictions and exercise . . . . She also attempted
several diet programs, but was unsuccessful in losing
weight.
The claimant underwent bariatric surgery in
September 2013 and the surgery went well with no
complications. She continues to monitor her obesity .
. . .
(R. 24-25.)
Upon review of the record, it is clear that the ALJ did not
mischaracterize the evidence.
7
C. Treating Physician Rule
Plaintiff next argues that the ALJ did not properly
evaluate the medical opinion evidence, specifically, the
opinions of psychiatrist Dr. Bansal and licensed clinical social
worker Rivera.
She contends that the ALJ violated the treating
physician rule by not giving these opinions controlling weight
and by failing to articulate the precise amount of weight she
assigned.
Under the treating physician rule, a treating physician’s
opinion is accorded controlling weight when that opinion is
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.”
20 C.F.R. §
404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 31–32 (2d
Cir. 2004).
The ALJ must “give good reasons” for the weight
accorded to the treating physician’s opinion.
See Halloran, 362
F.3d at 32; see also 20 C.F.R. § 404.1527(c)(2) (“We will always
give good reasons in our notice of determination or decision for
the weight we give your treating source’s opinion.”).
It is
well settled that “a social worker is not an ‘acceptable medical
source’ for purposes of the treating physician rule.”
Van Allen
v. Colvin, No. 3:15CV174 (DJS), 2016 WL 5660377, at *9 (D. Conn.
8
Sept. 29, 2016) (citing Monette v. Colvin, 654 Fed. App’x 516,
519 (2d Cir. July 7, 2016)).5
Here, contrary to plaintiff’s contention, the ALJ
explicitly stated that she assigned Dr. Bansal and social worker
5In
this and other cases in this district, counsel for the
plaintiff has pressed the argument that DeLeon v. Sec’y of
Health and Human Svcs., 734 F.2d 930 (2d Cir. 1984) stands for
the proposition that the treating physician rule applies to the
opinions of mental health professionals such as licensed
clinical social workers and licensed marriage and family
therapists. The argument is wrong. See Kelsey v. Colvin, No.
3:14CV867(MPS)(DFM) (July 7, 2015) (explaining that DeLeon does
not hold that licensed marriage and family therapists are mental
health professionals whose opinion are subject to treating
physician rule) (report & recommendation adopted Sept. 29,
2015); see also Davis v. Astrue, No. 3:13CV170(RNC) (DFM) (Sept.
9, 2016) (“The plaintiff argues that the ALJ erred because ‘the
findings and conclusions of a mental health provider . . . are
entitled to weight usually given to a Treating Physician under
the Treating Physician Rule’ and cites in support DeLeon . . . .
The plaintiff’s argument is simply wrong.”) (report &
recommendation adopted Mar. 31, 2017); Nieves v. Colvin, No.
3:14CV1736 (VLB)(SALM) (Feb. 10, 2016) (“The applicable
regulation lists those treating providers who are considered
‘acceptable medical sources.’ Licensed Clinical Social Workers
are not included in that list. There is no need for further
discussion. The insistence of plaintiff’s counsel in pursuing
this argument has needlessly wasted the time of the Court.”)
(emphasis in original) (report & recommendation adopted Mar. 20,
2017. Indeed, on February 10, 2016--just two months after
plaintiff’s counsel filed the instant memorandum of law-Magistrate Judge Merriam instructed plaintiff’s counsel that “if
she is now, or in the future becomes, involved in a case in
which she argues that the treating physician rule should be
applied to a professional such as a LCSW, a therapist, or any
other professional not listed in 20 C.F.R. §404.1513, she must
bring both this decision and the Kelsey decision to the
attention of the presiding Court.” See Nieves, No. 3:14CV1736
(VLB)(SALM) (Feb. 10, 2016) (citing Connecticut Rules of
Professional Conduct 3.3(a)(1); 3.3(a)(2)). Inexplicably,
plaintiff’s counsel failed to.
9
Rivera’s assessment “little weight.”
(R. 26.)
She articulated
the reason for this assignment of weight as follows:
The claimant sought treatment [with Dr. Bansal and
social worker Rivera] from October 2009 to November
2012.
They indicated the claimant experienced slight
improvement in her mood swings and depression.
They
noted that the claimant has been compliant with
medications and she has been stable.
They noted she
continually presented with normal hygiene.
They
remarked that the claimant has some problems with
activities of daily living, slight problems with social
interaction, and obvious problems with task performance.
The undersigned has considered their opinions that the
claimant has some problems, but not to the extent that
she is disabled. They only provided an opinion up to
November 2012, despite the claimant alleging ongoing
mental health problems at the hearing. Adding further
contrast to this was the claimant’s own acknowledgement
that she could perform her prior work, but for temporary
lifting limitations status post her September 2013
surgery. For these reasons, their assessments have been
given little weight.
(R. 26.)
The ALJ also assigned little weight to an updated statement
by social worker Rivera from August 2013.
The ALJ explained:
Nellie Rivera provided an updated statement in August
2013, stating that the claimant continues to seek
treatment for mental health problems. She remarked that
the claimant experiences mood swings and suicidal
ideation,
flashbacks,
difficulties
sleeping,
and
difficulties controlling her emotions/moods. Ms. Rivera
also stated that the claimant has a tendency to become
severely depressed, where she cries throughout the day
unable to control her emotions.
Due to her mental
illness, Ms. Rivera stated that the claimant is not able
to function on a daily basis as needed in a work
environment. The undersigned gives her opinion little
weight because she is not considered an acceptable
medical source.
Moreover, although she stated the
claimant is not able to function on a daily basis as
needed in a work environment, she has not provided
10
treatment notes to support her opinion.
lacks support from objective findings.
This assessment
(R. 27.)
It is clear from the ALJ’s decision that she not only
stated with specificity the weight given to these assessments,
but also considered the supportability of the assessments
against the record as a whole and provided “good reasons” for
her assignment of little weight.
The ALJ also correctly noted
that because social worker Rivera is not an “acceptable medical
source,” her opinion is not entitled to controlling weight.
See
Conlin ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 386
(W.D.N.Y. 2015) (“Licensed clinical social workers are not
considered acceptable medical sources in 20 C.F.R. § 416.913(a),
and their opinions are therefore not entitled to controlling
weight.”).
There is no error.
D. Credibility Assessment
Plaintiff next argues that the ALJ failed to support her
credibility assessment with substantial evidence.
Plaintiff first takes issue with the ALJ’s boilerplate
credibility determination: “After careful consideration of the
evidence, the undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected to cause
the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of
11
these symptoms are not credible for the reasons explained in
this decision.”
(R. 25.)
Plaintiff argues that while “[t]he
ALJ is not required to discuss all of the evidence,” she “must
explain why [she] rejects significant probative evidence.”
Br., Doc. #15-2, p. 13.)
(Pl.
Here, the ALJ’s boilerplate language
does not stand alone--it is paired with a detailed explanation
of the evidence the ALJ considered when making her credibility
determination.
See Lumpkin v. Colvin, No. 12-cv-1817(DJS), 2014
WL 4065651, at *10 (D. Conn. Aug. 13, 2014) (notwithstanding use
of boilerplate language, ALJ satisfied standard for assessing
credibility where he also discussed plaintiff’s activities and
inconsistent statements).
The ALJ compared plaintiff’s statements about her symptoms
to the medical evidence and found that although the record
supports plaintiff’s allegations of depression and obesity, it
does not support the “elevated level of severity alleged.”
25.)
(R.
The ALJ explained that
[t]he limited treatment record reflects that the
claimant’s mental health symptoms and obesity are
largely stable when she is compliant with her medication
and treatment regimen. The claimant has not required
inpatient treatment for her conditions and there is no
evidence that she is unable to function independently.
She has not required Emergency Department presentations
due to mental health problems. These other factors and
the lack of objective medical evidence concerning the
claimant’s impairments do not support her allegation of
disability.
(R. 25.)
12
The ALJ also discussed the inconsistencies between
plaintiff’s reported daily activities and her allegations of
disabling depression.
The ALJ noted that plaintiff is able to
live and function independently, while caring for her two
children, one of whom has autism.
Plaintiff performs household
chores, cooks, cleans, does laundry, manages the household
finances, drives, grocery shops, visits with her mother daily,
and brings her children to their sports practices.
(R. 25.)
Plaintiff also is compliant with her diet and exercise regime
and walks about four miles a day.
(R. 26.)
The ALJ concluded
that plaintiff’s “ability to perform these daily activities is
contrary to the allegation of total disability.”
(R. 26.)
The
ALJ remarked that this finding is supported by plaintiff’s
testimony that she would be able to perform her past relevant
work as a laundry attendant, subject to a temporary lifting
restrictions following bariatric surgery.
(R. 26, 46-49.)
“Credibility findings of an ALJ are entitled to great
deference and therefore can be reversed only if they are
‘patently unreasonable.’”
Pietrunti v. Dir., Office of Workers’
Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997).
Here, the
ALJ’s credibility assessment is not patently unreasonable.
It
contains specific reasons for her credibility finding and is
supported by substantial evidence.
See Social Security Ruling
96-7P, 1996 WL 374186, at *2 (July 2, 1996) (ALJ’s “decision
13
must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.”).
The
court will not “second-guess the credibility finding . . . where
the ALJ identified specific record-based reasons for [her]
ruling.”
2010).
Stanton v. Astrue, 370 F. App’x 231, 234 (2d Cir.
There is no error.
E. RFC Determination
Plaintiff lastly argues that the ALJ erred by not taking
into consideration all of her medically determinable
impairments--whether severe or not--when making her RFC
determination.6
See SSR 96-8P, 1996 WL 374184, at *5 (July 2,
1996) (“In assessing RFC, the adjudicator must consider
limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’”).
Specifically,
plaintiff contends that the ALJ failed to consider the
6The
ALJ found that plaintiff has the RFC to perform a
medium exertional work. She assessed that plaintiff is able to
maintain routine work, with few steps and few changes day to
day, in an environment that includes no timed work or strict
quotas. She can perform work that includes no tandem tasks or
interaction with the general public; she is capable of only
brief and superficial contact with others; and she should avoid
concentrated exposure to fumes, odors, dusts, gases, and poorly
ventilated areas. (R. 23.)
14
limitations caused by plaintiff’s urinary stress incontinence;
gastroesophogeal reflux disease and hiatial hernia; and hip,
knee, and joint pain.
Plaintiff argues that had the ALJ taken
these limitations into consideration, she would have found that
plaintiff does not have the RFC to perform medium work.
The ALJ noted that when plaintiff originally applied for
disability benefits, and again at the hearing, she stated that
her ability to work was limited only by her mental impairments
and obesity.
(R. 23, 65, 220.)
At the time of the hearing, the
only physical conditions for which plaintiff was being treated
were obesity, asthma, and a thyroid condition.
(R. 52.)
She
testified that her asthma and thyroid problem were well
controlled with medication and that her primary care physician
had not placed her under any restrictions due to these
conditions. (R. 52-53.)
Plaintiff bears the burden of establishing her RFC.
C.F.R. § 404.1512(c).
20
“Step Four findings need only afford[ ]
an adequate basis for meaningful judicial review, appl[y] the
proper legal standards, and [be] supported by substantial
evidence such that additional analysis would be unnecessary or
superfluous . . . .
There is no requirement that the ALJ
explicitly mention every one of the claimant’s limitations.”
Connole v. Astrue, No. 3:10-CV-01382 (JAM), 2016 WL 1626816, at
*5 (D. Conn. Apr. 25, 2016) (citation and internal quotation
15
marks omitted); see, e.g., McIntyre v. Colvin, 758 F.3d 146, 150
(2d Cir. 2014) (affirming ALJ’s findings at step four that “did
not explicitly include [plaintiff’s] non-exertional functional
limitations.”).
In support of her contention that the ALJ ignored several
of her conditions, plaintiff cites only to the diagnoses of
these conditions.
Durgan v. Astrue, No. 12-CV-279 (DNH/CFH),
2013 WL 1122568, at *3 (N.D.N.Y. Feb. 19, 2013) (“[A] diagnosis
alone is insufficient to establish a severe impairment as
instead, the plaintiff must show that the medically determinable
impairments significantly limit the ability to engage in basic
work activities.”).
With regard to urinary stress incontinence,
the record shows that plaintiff underwent a medical procedure on
August 10, 2011.
(R. 417-18.)
There are no other complaints in
the record related to this condition.
As to her
gastroesophogeal reflux disease and hiatial hernia, plaintiff
refers the court to record citations documenting the diagnoses
of these conditions (R. 624, 644), but fails to demonstrate that
either of these conditions limit her ability to perform basic
work-related activities.
Lastly, plaintiff makes only
generalized references to her hip, knee, and joint pain.
305, 452, 458, 485.)
(R.
She does not point to any evidence that
her joint pain causes functional limitations.
16
The ALJ’s RFC determination is supported by substantial
evidence.
Plaintiff has failed to meet her burden of showing
that the alleged limitations caused by these conditions result
in an inability to perform work-related activities.
III. Conclusion
For these reasons, plaintiff’s motion to reverse the
decision of the Commissioner (doc. #15) is DENIED and
defendant’s motion to affirm the decision of the Commissioner
(doc. #16) is GRANTED.
This is not a recommended ruling.
The consent of the
parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.
Appeals can be made directly to the
appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).
SO ORDERED at Hartford, Connecticut this 31st day of March,
2017.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge
17
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