Young v. Berryhill
Filing
23
RULING. For the reasons set forth in the attached Ruling, plaintiff's 14 Motion to Reverse the Decision of the Commissioner is DENIED and defendant's 19 Motion to Affirm the Decision of the Commissioner is GRANTED. It is so ordered. Signed by Judge Sarah A. L. Merriam on 6/12/18. (Tepe, Jonathan)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
DEBRA LYNN YOUNG
:
:
v.
:
:
NANCY A. BERRYHILL,
:
ACTING COMMISSIONER OF
:
SOCIAL SECURITY
:
:
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Civ. No. 3:17CV00970(SALM)
June 12, 2018
RULING ON CROSS MOTIONS
The plaintiff, Debra Lynn Young, brings this appeal
pursuant to §205(g) of the Social Security Act (the “Act”), as
amended, 42 U.S.C. §405(g), seeking review of a final decision
by the Acting Commissioner of the Social Security Administration
(the “Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) and for Supplemental Security Income
(“SSI”). Plaintiff has moved for an order reversing the decision
of the Commissioner, or in the alternative, for remand. [Doc.
#14]. Plaintiff filed a memorandum of law in support of her
motion. [Doc. #15]. Defendant has filed a motion for an order
affirming the decision of the Commissioner. [Doc. #19].1
Defendant filed a memorandum of law in support of its motion.
On December 12, 2017, defendant filed two identical motions
seeking an order affirming the final decision of the
Commissioner. See Doc. #18; #19. On June 12, 2018, the Court
terminated Doc. #18. See Doc. #22.
1
1
[Doc. #20]. Plaintiff declined to file a reply. [Doc. #21]. For
the reasons set forth below, defendant’s Motion for an Order
Affirming the Commissioner’s Decision is GRANTED. [Doc. #19].
Plaintiff’s Motion for Reversal or Remand of Commissioner’s
Decision is DENIED. [Doc. #14].
I.
PROCEDURAL HISTORY2
Plaintiff filed concurrent applications for DIB and SSI,
alleging disability beginning on December 31, 2010. See
Certified Transcript of the Administrative Record, compiled on
March 31, 2016 (hereinafter “Tr.”) 188-203. With respect to
plaintiff’s claim for DIB, plaintiff’s date last insured was
September 30, 2012. See Tr. 16; Doc. #17 at 2. Plaintiff’s
applications were denied initially on January 6, 2014, see Tr.
138-145, and upon reconsideration on June 2, 2014, see Tr. 149155. Plaintiff was self-represented throughout that process.
On May 14, 2015, plaintiff appeared and testified at a
hearing before Administrative Law Judge (“ALJ”) Deirdre R.
Horton. See Tr. 30-85. Plaintiff was not represented by counsel
at the hearing. See Tr. 32. Plaintiff’s sister, Heather Halem,
also appeared and testified at the hearing. See Tr. 31-32, 7586. On December 10, 2015, the ALJ issued a decision finding that
The parties filed a joint Stipulation of Facts on December 6,
2017. See Doc. #17.
2
2
plaintiff “has not been under a disability, as defined in the
Social Security Act, from December 31, 2010, through the date of
this decision[.]” Tr. 25. Attorney Robert S. Reger appeared on
behalf of plaintiff on January 27, 2016. See Tr. 11-12.
Plaintiff, through Attorney Reger, filed a Request for Review of
Hearing Decision/Order, see Tr. 9, and a memorandum in support,
see Tr. 257-260. On April 25, 2017, the Appeals Council denied
plaintiff’s request for review, thereby making the ALJ’s
December 10, 2015, decision the final decision of the
Commissioner. See Tr. 1-6. The case is now ripe for review under
42 U.S.C. §405(g).
Plaintiff, represented by Attorney Reger, filed this timely
action for review and now moves to reverse and/or remand the
Commissioner’s decision. On appeal, plaintiff asserts that the
ALJ made various errors that prevented her from receiving a full
and fair hearing.
II.
STANDARD OF REVIEW
The review of a Social Security disability determination
involves two levels of inquiry. First, the court must decide
whether the Commissioner applied the correct legal principles in
making the determination. See Balsamo v. Chater, 142 F.3d 75, 79
(2d Cir. 1998). Second, the court must decide whether the
determination is supported by substantial evidence. See id.
Substantial evidence is evidence that a reasonable mind would
3
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. See Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have [his] disability determination
made according to the correct legal principles.” Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
4
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984). The ALJ is free to accept or reject the testimony of any
witness, but a “finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to permit
intelligible plenary review of the record.” Williams ex rel.
Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). It is
well established that “an ALJ’s credibility determination is
generally entitled to deference on appeal.” Selian v. Astrue,
708 F.3d 409, 420 (2d Cir. 2013); see also Kessler v. Colvin, 48
F. Supp. 3d 578, 595 (S.D.N.Y. 2014) (“A federal court must
afford great deference to the ALJ’s credibility finding, since
the ALJ had the opportunity to observe the claimant’s demeanor
while the claimant was testifying.” (citation and internal
quotation marks omitted)); Pietrunti v. Dir., Office of Workers’
Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility
findings of an ALJ are entitled to great deference and therefore
can be reversed only if they are patently unreasonable.”
(citation and internal quotation marks omitted)).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “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.
5
2012). “[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, plaintiff must demonstrate that she is
unable to work after a date specified “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). Such impairment or impairments
must be “of such severity that [she] is not only unable to do
[her] 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.”
42 U.S.C. §423(d)(2)(A); see also 20 C.F.R. §§404.1520(c),
416.920(c) (requiring that the impairment “significantly limit[]
6
... physical or mental ability to do basic work activities[]” to
be considered “severe”).3
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §§404.1520, 416.920. In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If
[she] is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits [her] physical or mental ability to do basic work
activities. 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. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
Throughout this decision, and unless otherwise specifically
noted, the Court applies and references the versions of those
Regulations that were in effect at the time of the ALJ’s
decision. See Lowry v. Astrue, 474 F. App’x 801, 805 n.2 (2d
Cir. 2012) (applying and referencing version of regulation in
effect when ALJ adjudicated plaintiff’s claim); see also Alvarez
v. Comm’r of Soc. Sec., No. 14CV3542(MKB), 2015 WL 5657389, at
*11 n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he Court considers the
ALJ’s decision in light of the regulation in effect at the time
of the decision.” (citing Lowry, 474 F. App’x at 805 n.2)).
3
7
severe impairment, [she] has the residual functional
capacity to perform [her] past work. Finally, if the
claimant is unable to perform [her] past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given [her] residual functional capacity.” Gonzalez ex rel.
Guzman v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243
(2d Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003));
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per
curiam)). “Residual functional capacity” (“RFC”) is what a
person is still capable of doing despite limitations resulting
from her physical and mental impairments. See 20 C.F.R.
§§404.1545(a)(1), 416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
8
“[E]ligibility for benefits is to be determined in light of the
fact that the Social Security Act is a remedial statute to be
broadly construed and liberally applied.” Id. (citation and
internal quotation marks omitted).
IV.
THE ALJ’S DECISION
Following the above-described five-step evaluation process,
ALJ Horton concluded that plaintiff was not disabled under the
Act. See Tr. 25. First, the ALJ determined that plaintiff “meets
the insured status requirements of the Social Security Act
through September 30, 2012.” Tr. 18. The ALJ then turned to Step
One of the evaluation process and found that plaintiff had “not
engaged in substantial gainful activity since December 31, 2010,
the alleged onset date[.]” Id.
At Step Two, the ALJ found that the plaintiff had two
severe impairments, “anxiety and a non-specified affective
disorder[.]” Id. The ALJ considered plaintiff’s “history of
poly-substance abuse[,]” “brief and sporadic treatment for
wrist, knee and back pain[,]” and alleged Post-Traumatic Stress
Disorder (“PTSD”), but found they were not severe impairments.
Tr. 18-19.
At Step Three, the ALJ found that plaintiff “does not have
an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1[.]” Tr. 20.
9
Specifically, the ALJ found that plaintiff’s “mental
impairments, considered singly and in combination, do not meet
or medically equal the criteria of listings 12.04 and 12.06.”
Id.
Before proceeding to Step Four, the ALJ determined
plaintiff’s RFC. The ALJ performed an analysis of the record in
accordance with the requirements of 20 C.F.R. §§404.1529,
416.929 and Social Security Rulings (“SSRs”) 96-4p and 96-7p.
See Tr. 20. The ALJ also “considered opinion evidence in
accordance with the requirements of 20 [C.F.R. §§] 404.1527 and
416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.” Id. The ALJ
found that plaintiff had the RFC “to perform a full range of
work at all exertional levels but with the following nonexertional limitations: The claimant is limited to simple,
routine tasks. She cannot work with the general public. She can
relate appropriately with coworkers, but is limited to frequent
direct interaction with her coworkers.” Id.
With these limitations, the ALJ found at Step Four that
plaintiff was “unable to perform any past relevant work[.]” Tr.
24. Proceeding to Step Five, however, the ALJ found that “there
are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform[.]” Tr. 25.
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Therefore, the ALJ found that plaintiff was not disabled
within the meaning of the Act “from October 31, 2010, through
the date of this decision[.]” Id.
V.
DISCUSSION
On appeal, plaintiff asserts that the ALJ erred in five
respects, specifically by:
1. Failing to give proper weight to the opinion of
plaintiff’s treating APRN;
2. Failing to give proper weight to the opinion of the
consultative psychological examiner;
3. Failing to consider whether plaintiff met or equaled
Listing 12.05(C);
4. Failing to obtain the testimony of a vocational
expert; and
5. Failing to give proper consideration to the testimony
of plaintiff’s sister.
The Court will address each of plaintiff’s arguments in
turn.
A.
Material Facts
The Court’s Scheduling Order required the parties to file a
stipulation of facts “at the same time as the Plaintiff’s
motion, on or before October 17, 2017.” Doc. #13 at 2. The
parties failed to file a stipulation of facts by this deadline,
and they did not move for an extension of time. Instead,
11
plaintiff attached a proposed stipulation of facts to the
memorandum in support of plaintiff’s motion. See Doc. #15 at 17.
This proposed stipulation includes only seven facts, and
contains no citations to the record. See id. In a footnote,
plaintiff noted: “These facts have not been stipulated to.
Counsel will make a good faith effort to agree on facts, and
file a supplemental Stipulation of Facts forthwith.” See id. On
December 6, 2017, the parties filed a joint Stipulation of
Facts. See Doc. #17 at 2. This stipulation contains the same
seven facts as plaintiff’s proposed stipulation and an eighth
fact regarding plaintiff’s date last insured. See Doc. #17.
The Scheduling Order further required that if any factual
disputes remained between the parties after filing their joint
stipulation, “plaintiff shall file as an exhibit to her motion a
statement of all material facts the Plaintiff relies upon in
support of her motion, with specific citations to the record
supporting each item. Counsel for the plaintiff must also
provide the Court with an affidavit detailing the efforts made
to reach agreement as to the material facts.” Doc. #13 at 2.
Plaintiff did not file a statement of all material facts or
a corresponding affidavit. Therefore, the only facts identified
by plaintiff as “material” are the eight material facts included
in the parties’ joint Stipulation of Facts.
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B.
Treating Source
Plaintiff argues the ALJ erred by giving “little weigh to
the opinions of plaintiff’s treating source, Laura Griesman,
APRN.”4 Doc. #15 at 11 (sic). Plaintiff contends that APRN
Giesman’s opinion was binding on the ALJ because her treatment
notes and “the evidence of record” support her conclusions. Doc.
#15 at 11-12. In response, defendant argues that “APRN Giesman
is not considered an ‘acceptable medical source’ under the
regulations, and only acceptable medical sources are ‘treating
sources’ whose opinions may be entitled to controlling weight.”
Doc. #20 at 21. Defendant further argues that “the ALJ properly
discounted APRN Giesman’s opinions because they were unsupported
by and inconsistent with the medical evidence, including,
significantly, APRN Giesman’s own treatment notes, containing
mostly normal mental status findings (including good attention
and concentration).” Id. at 22.
APRN Giesman is not considered a treating source whose
opinion is entitled to controlling weight. Only “acceptable
medical sources” can provide medical opinions and are considered
treating sources whose opinions are entitled to controlling
weight. See 20 C.F.R. §§404.1527(a)(2), (c), 416.927(a)(2), (c);
Each party spells APRN Giesman’s name differently. See, e.g.,
Doc. #15 at 11; Doc. #20 at 22. The Court will use “Giesman”
herein, which is the spelling reflected in the treatment notes.
See, e.g., Tr. 577.
4
13
Dudley v. Berryhill, No. 3:16CV00513(SALM), 2018 WL 1255004, at
*9 (D. Conn. Mar. 12, 2018). Acceptable medical sources include,
inter alia, licensed physicians. See 20 C.F.R. §§404.1513(a),
416.913(a). APRNs, social workers, and physician assistants,
amongst others, are not “acceptable medical sources,” but rather
are considered “other sources.” See 20 C.F.R. §§404.1513(d)(1)(4), 416.913(d)(1)-(4); SSR 06-03P, 2006 WL 2329939, at *2
(S.S.A. Aug. 9, 2006).
Opinions from “other sources” are still considered when
making “a determination or decision about whether the individual
is disabled.” SSR 06-03P, 2006 WL 2329939, at *4. “Opinions from
‘other medical sources’ may reflect the source’s judgment about
some of the same issues addressed in medical opinions from
‘acceptable medical sources,’ including symptoms, diagnosis and
prognosis, what the individual can still do despite the
impairment(s), and physical and mental restrictions.” Id. at *5.
When weighing such an opinion, the Regulations require that
the ALJ consider the following factors: length of treatment
relationship; frequency of examination; nature and extent of the
treatment relationship; relevant evidence used to support the
opinion; consistency of the opinion with the entire record; and
the expertise and specialized knowledge of the source. See 20
C.F.R. §§404.1527(c)(2)-(6), 416.927(c)(2)-(6); SSR 96-2P, 1996
14
WL 374188, at *2 (S.S.A. July 2, 1996); SSR 06-03P, 2006 WL
2329939, at *3-4. However,
[n]ot every factor for weighing opinion evidence will
apply in every case. The evaluation of an opinion from
a medical source who is not an ‘acceptable medical
source’ depends on the particular facts in each case.
Each case must be adjudicated on its own merits based on
a consideration of the probative value of the opinions
and a weighing of all the evidence in that particular
case.
Id. at *5.
In a report dated July 9, 2013 (the “July 9, 2013,
Report”), APRN Giesman stated that plaintiff had a history of
“flashbacks[,] nightmares[,] panic attacks[, and] paranoia[.]”
Tr. 382. APRN Giesman described plaintiff’s appearance as “wellgroomed, appropriate clothing” and her cognitive status as
“alert [and] oriented, anxious, memory intact, slightly
pressured, coherent, normal thought content, linear, behavior
appropriate[.]” Id. APRN Giesman stated that plaintiff had no
problem “[t]aking care of personal hygiene[,]” “[c]aring for
physical needs[,]” and “[u]sing good judgment regarding safety
and dangerous circumstances[.]” Tr. 383. APRN Giesman indicated
that she could not opine on plaintiff’s ability to use
appropriate coping skills, handle frustration, engage in social
interactions, or perform tasks. See Tr. 383-384. APRN Giesman
noted: “I have only seen Ms. Young 3 times for an intake [and]
medication management[.]” Tr. 383. The ALJ found:
15
While this report is given due consideration, it is not
given significant weight because there are no treatment
notes for the period it covers and the treatment is very
limited. However it is give[n] weight to the extent that
it is consistent with the residual functional capacity
as stated above.
Tr. 23.
In a letter dated April 3, 2014 (the “April 3, 2014,
Letter”), APRN Giesman stated: “Ms. Young’s current GAF is 50.
Because her symptoms wax and wane related to psychosocial
stressors and refractory mood symptoms, she will likely need
intensive medication treatment to function.” Tr. 589. The ALJ
stated that “[t]his letter is given weight to the extent that it
has been considered during the formulation of the residual
capacity as stated above.” Tr. 23.
In a report dated April 18, 2014 (the “April 18, 2014,
Report”), APRN Giesman noted that plaintiff was “well
groomed[,]” but had “difficulty concentrating” and was
“depressed [and] anxious[.]” Tr. 571-572. APRN Giesman noted
that plaintiff had no problem “[t]aking care of personal
hygiene[,]” and “[c]aring for physical needs[.]” Tr. 572.
However, APRN Giesman stated that plaintiff had an obvious
problem “[u]sing good judgment regarding safety and dangerous
circumstances[,]” “[c]arrying out single-step instructions[,]”
“[c]arrying out multi-step instructions[,]” and “[c]hanging from
one simple task to another[.]” Tr. 572-573. APRN Giesman also
16
indicated that plaintiff had a serious problem “using
appropriate coping skills to meet ordinary demands of a work
environment[,]” “[h]andling frustration appropriately[,]” and
“[f]ocusing long enough to finish assigned simple activities or
tasks[.]” Id. APRN Giesman wrote that she could not comment on
plaintiff’s social interactions because plaintiff “has not
worked during the time I’ve known her[.]” Tr. 573. The ALJ did
not give this report “any weight[,]” finding it “clearly
inconsistent with the Ms. Giesman’s own treatment notes and not
supported by the evidence of record.” Tr. 24 (sic). The ALJ
found “that Ms. Giesman completed this form in the manner of a
sympathetic advocate rather than an objective medical source.”
Id.
In a letter dated September 14, 2015, APRN Giesman wrote:
Ms. Debra Young has been under my care for medication
management services since May 2013. She is diagnosed
with generalized anxiety disorder, ADHD, and major
depression. I am unable to assess if she can or cannot
work because I am not a disability provider and I do not
perform examinations to determine if a client is unable
to perform work of any kind.
Tr. 615.
Substantial evidence supports the ALJ’s decision to afford
no significant weight to APRN Giesman’s July 9, 2013, Report.
APRN Giesman indicated that she was unable to answer many of the
questions on the report, and that she had only treated plaintiff
three times over the course of about two months. See Tr. 383.
17
This limited treatment record supports the ALJ’s decision to not
give the report significant weight. See Jones-Reid v. Astrue,
934 F. Supp. 2d 381, 401 (D. Conn. 2012), aff’d, 515 F. App’x 32
(2d Cir. 2013) (finding APRN’s “relatively short treatment
history” with plaintiff supported ALJ’s decision to afford the
APRN’s opinion little weight). The ALJ’s decision is further
supported by the lack of contemporaneous treatment notes for the
period covered by the report. See Pelland v. Comm’r of Soc.
Sec., No. 5:14CV00029, 2014 WL 6814908, at *8 (D. Vt. Dec. 2,
2014) (ALJ’s decision to afford a non-medical source opinion
little weight was supported by the fact that the opinion was
unsupported by any contemporaneous treatment notes.); see also
Consiglio v. Berryhill, No. 3:17CV00346(SALM), 2018 WL 1046315,
at *6 (D. Conn. Feb. 26, 2018) (finding lack of treatment notes
supported ALJ’s decision not to give controlling weight to a
physician’s opinion).
The ALJ gave weight to the April 3, 2014, Letter “to the
extent that it [was] considered during the formulation of the
residual capacity[.]” Tr. 23. Although the ALJ failed to assign
specific weight to the letter, she explicitly stated that she
considered the letter while formulating plaintiff’s RFC. See id.
Moreover, the ALJ’s determination that plaintiff “cannot work
with the general public[]” and “is limited to frequent direct
interaction with her coworkers[,]” Tr. 20, is consistent with
18
APRN Giesman’s opinion that plaintiff’s “symptoms wax and wane
related to psychosocial stressors and refractory mood
symptoms[,]” Tr. 589. Accordingly, the ALJ’s failure to assign
“a specific, quantifiable weight” to the April 3, 2014, Letter
was harmless to the extent it constituted error. Rodriguez v.
Colvin, No. 12CV3931(RJS)(RLE), 2014 WL 5038410, at *6 (S.D.N.Y.
Sept. 29, 2014) (finding ALJ’s failure to assign specific weight
to consulting doctor’s opinion, which the ALJ determined
supported the RFC, did not require remand); see Gonzalez v.
Colvin, No. 15CV5011(KPF), 2016 WL 6780000, at *16 (S.D.N.Y.
Nov. 16, 2016) (ALJ’s failure to assign specific weight to state
medical consultant’s opinion “was at most harmless” where it was
evident the ALJ incorporated the opinion “as a piece of
substantial evidence.”); Brito v. Colvin, No. 13CV6501(MWP),
2015 WL 1470555, at *24 (W.D.N.Y. Mar. 31, 2015) (ALJ discussed
other source’s “findings, which were generally consistent with
the ALJ’s RFC assessment[,]” so “any failure to assign a
specific weight to the opinion was thus harmless and [did] not
require remand.”); cf. Zabala v. Astrue, 595 F.3d 402, 410 (2d
Cir. 2010) (deciding remand was unnecessary where there was “no
reasonable likelihood” that considering an overlooked treating
physician report “would have changed the ALJ’s determination”).
Substantial evidence supports the ALJ’s decision to give no
weight to the April 18, 2014, Report. APRN Giesman’s opinions in
19
this report are not consistent with her treatment notes. The
record contains treatment notes from seven treatment visits with
APRN Giesman. See Tr. 575-576 (treatment notes from October 12,
2013); Tr. 577-578 (treatment notes from October 26, 2013); Tr.
579-580 (treatment notes from December 21, 2013); Tr. 581-582
(treatment notes from January 4, 2014); Tr. 583-584 (treatment
notes from January 18, 2014); Tr. 585-586 (treatment notes from
February 15, 2014); Tr. 587-588 (treatment notes from March 15,
2014). These treatment notes all describe plaintiff as having
normal appearance, appropriate dress, normal motor activity,
good insight, good or fair judgment, appropriate affect, anxious
or euthymic mood, oriented to person, place, and time, intact
memory, good attention and concentration, normal thought
content, normal perception, normal flow of thought, appropriate
interview behavior, and normal speech. See Tr. 575-588.
APRN Giesman stated that plaintiff had good judgment during
six of plaintiff’s visits, see Tr. 575-579, 581-588, and fair
judgment during one visit, see Tr. 579. These observations are
inconsistent with APRN Giesman’s statement in the April 18,
2014, Report that plaintiff had an obvious problem “[u]sing good
judgment regarding safety and dangerous circumstances[.]” Tr.
572.
APRN Giesman’s observations that plaintiff had good
attention and concentration, normal thought content, normal
20
perception, and normal flow of thought, see Tr. 575-588, are
inconsistent with APRN Giesman’s assertion in the April 18,
2014, Report that plaintiff had an obvious problem “[c]arrying
out single-step instructions[,]” “[c]arrying out multi-step
instructions[,]” and “[c]hanging from one simple task to
another[,]” and a serious problem “[f]ocusing long enough to
finish assigned simple activities or tasks[.]” Tr. 572-573.
These inconsistencies support the ALJ’s decision to give no
weight to the April 18, 2014, Report. See Luciano-Norman v.
Comm’r of Soc. Sec., No. 5:16CV1455(GTS)(WBC), 2017 WL 4861491,
at *6 (N.D.N.Y. Sept. 11, 2017), report and recommendation
adopted, 2017 WL 4857580 (N.D.N.Y. Oct. 25, 2017) (“Here, the
ALJ provided good reasons for affording ‘little weight’ to [the
doctor’s] opinion. Namely, [the doctor’s] exertional limitations
were inconsistent with other medical evidence in the record and
inconsistent with his treatment notations.”); Dieguez v.
Berryhill, No. 15CV2282(ER)(PED), 2017 WL 3493255, at *5
(S.D.N.Y. Aug. 15, 2017) (“Accordingly, the Court finds that the
ALJ’s determination that [the doctor’s] opinions were
inconsistent with her contemporaneous treatment notes was based
on substantial evidence, and affirms the ALJ’s decision to give
‘little weight’ to [the doctor’s] opinions.”); Velez Santiago v.
Colvin, No. 3:16CV338(JCH), 2017 WL 618442, at *9 (D. Conn. Feb.
15, 2017) (“Because [the doctor’s] treatment notes constitute
21
substantial evidence in the case Record, an inconsistency
between [the doctor’s] opinion and his treatment notes would be
a legally valid reason for the ALJ not to give [the doctor’s]
opinion controlling weight[.]” (quotation marks and citations
omitted)); Lamorey v. Barnhart, 158 F. App’x 361, 363 (2d Cir.
2006) (finding physician’s opinion was not entitled to
controlling weight because it was “belied by his treatment
notes[]”).
The April 18, 2014, Report is also inconsistent with the
evidence in the record as a whole. Dr. Jay Graves treated
plaintiff for knee, wrist, and back pain. See, e.g., Tr. 309311. In his treatment notes, Dr. Graves consistently described
plaintiff as being alert. See Tr. 305, 308, 312, 339, 348, 350352, 354, 359-360, 361-363, 365-366, 509; 513; 515, 521-524. Dr.
Graves referred plaintiff to Dr. David L. Tinklepaugh to examine
plaintiff’s wrist. See Tr. 328. During his examination of
plaintiff on June 28, 2011, Dr. Tinklepaugh observed that
plaintiff’s judgment and insight were intact, attention and mood
were normal, and that plaintiff was oriented to person, place,
and time. See Tr. 326, 377, 538. The APT Foundation treated
plaintiff for opioid dependence, anxiety, and depression with
medication management and supportive counseling. See Tr. 392393. APT Foundation treatment notes consistently describe
plaintiff as being alert, oriented, engaged, and focused. See
22
Tr. 395-396, 421, 425, 427, 436, 438, 439, 441-442, 445-446,
448, 453, 457, 462, 470, 473, 478, 480, 484, 487, 488, 494, 553,
561-565, 568-569, 590, 594-595, 597, 601, 603, 605-606, 608. The
inconsistencies between APRN Giesman’s April 18, 2014, Report
and these treatment notes further support the ALJ’s decision to
afford the report no weight. See Belton v. Berryhill, No.
3:15CV1616(DJS), 2017 WL 930820, at *8 (D. Conn. Mar. 9, 2017)
(“The ALJ’s finding that the opinion ... was inconsistent with
the treatment notes generated during the pertinent time period
is clearly supported by substantial evidence, including ...
those of the other treating physicians identified by the ALJ in
her decision.”).
Two State consultative professionals also reviewed
plaintiff’s file, and opined that plaintiff’s limitations were
less severe than those indicated in APRN Giesman’s April 18,
2014, Report. Janine Swanson, Psy.D., determined that plaintiff
is not significantly limited in her ability “to carry out short
and simple instructions[,]” “perform activities within a
schedule, maintain regular attendance, be punctual within
customary tolerances[,]” “sustain an ordinary routine without
special supervision[,]” “work in coordination with or in
proximity to others without being distracted by them[,]” or
“make simple work-related decisions.” Tr. 93. Dr. Swanson found
that plaintiff is moderately limited in her ability to “carry
23
out detailed instructions[,]” “maintain attention and
concentration for extended periods[,]” and to “complete a normal
workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods[.]” Id. Dr.
Swanson also stated that plaintiff does not have understanding
and memory limitations, social interaction limitations, or
adaptive limitations, and that plaintiff “is able to attend to
simple tasks for at least two hours at a time[.]” Tr. 93-94.
Lindsay Harvey, Ph.D., found that plaintiff is not
significantly limited in her ability to “carry out short and
simple instructions[,]” “perform activities within a
schedule[,]” “maintain regular attendance, be punctual within
customary tolerances[,]” sustain an ordinary routine without
special supervision[,]” “work in coordination with or in
proximity to others without being distracted by them[,]” “make
simple work-related decisions[,]” “ask simple questions or
request assistance[,]” “accept instructions and respond
appropriately to criticism from supervisors[,]” and to “maintain
socially appropriate behavior and to adhere to basic standards
of neatness and cleanliness.” Tr. 117-118. Dr. Harvey determined
that plaintiff is moderately limited in her ability to “carry
out detailed instructions[,]” “maintain attention and
concentration for extended periods[,]” “complete a normal
24
workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods[,]” “interact
appropriately with the general public[,]” and to “get along with
coworkers without exhibiting behavioral extremes[.]” See id. Dr.
Harvey also stated that plaintiff does not have understanding
and memory limitations, and that plaintiff “is able to attend to
simple tasks for at least two hours at a time[.]” Tr. 117.
The inconsistencies between the opinions of Dr. Swanson and
Dr. Harvey and APRN Giesman’s April 18, 2014, Report supports
the ALJ’s decision to accord that report no weight. See Benjamin
v. Colvin, No. 3:15CV1772(MPS), 2016 WL 6683538, at *5 (D. Conn.
Nov. 14, 2016) (concluding that the ALJ’s decision not to give
controlling weight to a treating physician’s opinion was
supported by the inconsistency between the treating physician’s
opinion and that of the agency physician); Doner v. Comm’r of
Soc. Sec., No. 7:13CV720(TJM)(TWD), 2014 WL 4794408, at *4
(N.D.N.Y. Sept. 24, 2014) (“[T]he ALJ discounted [the nurse
practitioner’s] opinion for its inconsistency with other medical
evidence, has properly given good reason for the weight assigned
to the opinion, and gave it proper consideration before doing
so.”); Schraut v. Comm’r of Soc. Sec., No. 2:13CV27, 2013 WL
5883840, at *6 (D. Vt. Nov. 1, 2013) (“[T]he regulations clearly
permit the opinions of non-examining agency consultants to
25
override those of examining sources, when the former are more
consistent with the record evidence than the latter.”);
Schlichting v. Astrue, 11 F. Supp. 3d 190, 204 (N.D.N.Y. 2012)
(“It is well settled that an ALJ is entitled to rely upon the
opinions of both examining and non-examining State agency
medical consultants, since such consultants are deemed to be
qualified experts in the field of social security disability.”).
The testimony of plaintiff and plaintiff’s sister, Heather
Halem, further supports the ALJ’s decision. Plaintiff testified
that she lives with her daughter. See Tr. 51. Plaintiff
testified that although she receives help from her sister, she
“can take [care] of [her] own daughter[.]” Tr. 66. Plaintiff’s
sister testified that plaintiff is “capable of taking care of
her [daughter].” Tr. 78. This testimony is inconsistent with
APRN Giesman’s assertion in the April 18, 2014, Report that
plaintiff has a serious problem focusing long enough to finish
assigned simple activities or tasks. See Jimenez v. Colvin, No.
12CV6001(PGG)(FM), 2016 WL 5660322, at *12 (S.D.N.Y. Sept. 30,
2016) (“The ALJ’s findings that the claimant is independent in
her activities of daily living, including taking care of three
children ... support the ALJ’s conclusion that Plaintiff can
engage in simple, routine, low stress tasks[.]” (quotation marks
and citations omitted)). This testimony therefore supports the
ALJ’s decision to afford APRN Giesman’s April 18, 2014, Report
26
no weight. See Glena v. Colvin, No. 1:15CV00510(MAT), 2018 WL
739096, at *3 (W.D.N.Y. Feb. 6, 2018) (ALJ’s assignment of
little weight to family practitioner’s opinions proper “because
he found them to be inconsistent with Plaintiff’s own testimony
and statements[]”); Moore v. Comm’r of Soc. Sec., No.
1:16CV270(DJS), 2017 WL 1323460, at *9 (N.D.N.Y. Apr. 10, 2017)
(finding the “ALJ properly discounted [the nurse practitioner’s]
assessment of greater limitations for overhead reaching,
stooping, and kneeling as inconsistent with ... Plaintiff’s
testimony of his daily activities[]”).
Accordingly, substantial evidence supports the weight given
by the ALJ to each of APRN Giesman’s opinions.
C.
Consultative Psychological Examiner
The Connecticut Disability Determination Service referred
plaintiff to Anthony F. Campagna, Ph.D. for a psychological
evaluation “to evaluate vocational disability.” Tr. 545. Before
beginning his evaluation of plaintiff, Dr. Campagna “reviewed a
copy of an Adult Disability Report provided by the Disability
Determination Service.” Id. This appears to be the only record
he reviewed. His report does not indicate that he reviewed
plaintiff’s medical records. On December 10, 2013, Dr. Campagna
administered the following tests during his evaluation of
plaintiff: “Clinical interview, Cognistat, Wechsler Adult
27
Intelligence Scale - Form IV, and Millon Clinical Multiaxial
Inventory - Form III.” Id.
Plaintiff contends that the ALJ erred by giving “no weight
to Dr. Campagna’s opinion because she considered it inconsistent
from the entire record.” Doc. #15 at 13. Plaintiff argues that
the record supports Dr. Campagna’s opinion and that the ALJ
erroneously substituted her own judgment for Dr. Campagna’s
medical opinion. See id. at 13. Defendant argues that
substantial evidence supports the ALJ’s determination, and that
“the ALJ need not afford deference to an opinion that she
reasonably finds unsupported or inconsistent with other
substantial evidence.” Doc. #20 at 25. Defendant further argues
that the ALJ did not substitute her own judgment for a medical
opinion, as “Dr. Campagna’s opinion directly contrasts the DDS
consultant psychologists[.]” Doc. #20 at 26.
“[T]he opinions of consulting sources, unlike those of
treating sources, are entitled to no special deference.” Lamorey
v. Barnhart, 158 F. App’x 361, 363 (2d Cir. 2006). “[A]
consulting physician’s opinions or report should be given
limited weight ... because consultative exams are often brief,
are generally performed without benefit or review of claimant’s
medical history and, at best, only give a glimpse of the
claimant on a single day.” Cruz v. Sullivan, 912 F.2d 8, 13 (2d
Cir. 1990) (quotation marks and citations omitted).
28
Dr. Campagna observed that “[t]hroughout the session,
[plaintiff] appeared extremely uncomfortable[]” and that “[s]he
avoided eye contact and turned her body away from the examiner.”
Tr. 547. Dr. Campagna stated that plaintiff “understood the
instructions, but her responses were haphazard and poorly
organized; often she appeared disrupted by distracting thoughts
about the tasks.” Id. Dr. Campagna further wrote that plaintiff
“answered questions in very rapid, low pitched, poorly
articulated speech; consequently approximately one-third of her
remarks were incomprehensible.” Id. In regard to the personality
evaluation, Dr. Campagna found: “Validity scale items indicated
that the claimant’s protocol was invalid due to random
responding. This result is consistent with indications of
significant distractibility during the individually administered
test and during her clinical interview.” Tr. 548.
Dr. Campagna found that plaintiff’s “behavioral and
anxiety-related difficulties are expected to markedly reduce her
ability to independently accomplish the full range of activities
required for autonomous daily living and markedly reduce her
ability to engage in all age appropriate interpersonal
relationships.” Tr. 548. He further opined that “[t]hese
difficulties are expected to significantly reduce the
concentration and persistence with which she performs even
simple and repetitive tasks.” Id. Finally, Dr. Campagna stated
29
that plaintiff may “have difficulty retaining instructions
unless they are very familiar and highly over-learned[]” and
that she “may be expected to have great difficulty responding
appropriately to supervisors, coworkers, and the public and
significant difficulty managing workplace pressures and adapting
to workplace change.” Id.
The ALJ gave Dr. Campagna’s opinion “almost no weight as
the claimant’s presentation was so completely different from
that which is described throughout the record.” Tr. 22. The ALJ
found that plaintiff’s “presentation at ... Dr. Campagna’s
examination is so significantly different from her regular
presentations at APT so as to make Dr. Campagna’s report and
opinion practically worthless.” Id. The ALJ stated: “The
treatment records, discussed in detail elsewhere in this
decision, indicate that the claimant is almost invariably
described by her treating practitioners as alert, oriented,
engaged and focused. There is simply no support for Dr.
Campagna’s opinion contained in the record.” Tr. 22-23.
Substantial evidence supports the ALJ’s finding that
plaintiff’s presentation during Dr. Campagna’s examination is in
contrast to that reflected in the other treatment notes in the
record. Dr. Tinklepaugh described plaintiff as having “normal
fluency, no evidence of aphasia[,]” and normal attention. Tr.
326, 377, 538. APRN Giesman’s treatment notes consistently
30
describe plaintiff has having good attention and concentration,
appropriate interview behavior, and normal speech, thought
content, perception, and flow of thought. See Tr. 575, 577, 579,
581, 583, 585, 587. Treatment notes from the APT Foundation
consistently describe plaintiff as being alert, oriented,
engaged, and focused. See Tr. 395-396, 421, 425, 427, 436, 438,
439, 441-442, 445-446, 448, 453, 457, 462, 470, 473, 478, 480,
484, 487, 488, 494, 553, 561-565, 568-569, 590, 594-595, 597,
601, 603, 605-606, 608. The APT Foundation treatment notes also
describe plaintiff as being “engaged in discussion” and as
giving “supportive feedback” to other group members. Tr. 395,
445; see also Tr. 480 (Plaintiff “was engaged in group
discussion and gave peer support.”).
Only in her evaluation by Dr. Campagna did plaintiff
present as so impaired. This inconsistency in plaintiff’s
presentation supports the ALJ’s decision to afford Dr.
Campagna’s opinion almost no weight. See Boland v. Comm’r of
Soc. Sec., No. 1:15CV1391(GTS), 2017 WL 1532584, at *5 (N.D.N.Y.
Apr. 27, 2017) (finding substantial evidence supported affording
little weight to consultative examiner’s opinion because
“Plaintiff’s presentation at the consultative examination” was
“in stark contrast with his presentation at typical examinations
for treatment”); McQuade v. Colvin, No. 3:14CV1044(GTS), 2015 WL
7283185, at *6 (N.D.N.Y. Nov. 16, 2015) (finding substantial
31
evidence supported assigning limited weight to consultative
examiner’s opinion where “Plaintiff’s presentation at the
consultative examination was inconsistent with her typical
presentation at treating medical provider office visits”).
Substantial evidence also supports the ALJ’s determination
that Dr. Campagna’s opinion is not supported by the record. Dr.
Campagna opined that plaintiff’s “behavioral and anxiety-related
difficulties are expected to markedly reduce her ability to
independently accomplish the full range of activities required
for autonomous daily living and markedly reduce her ability to
engage in all age appropriate interpersonal relationships.” Tr.
548. However, the record reflects that plaintiff lives on her
own and is the primary caretaker of her daughter. See Tr. 66,
78. Dr. Campagna found that plaintiff may “have difficulty
retaining instructions unless they are very familiar and highly
over-learned[,]” but both State consultative professionals
determined that plaintiff is not significantly limited in her
ability to carry out short and simple instructions. See Tr. 93,
117. Moreover, the APT Foundation treatment notes indicate that
plaintiff was engaged and responding properly in discussions,
see Tr. 395, 445, 480, which contradicts Dr. Campagna’s
conclusion that plaintiff “may be expected to have great
difficulty responding appropriately to supervisors, coworkers,
and the public and significant difficulty managing workplace
32
pressures and adapting to workplace change.” Tr. 548. These
contradictions in the record support the ALJ’s decision to
afford Dr. Campagna’s opinion little weight. See Poupore v.
Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (substantial evidence
supported ALJ’s finding that treating physician’s testimony was
not entitled to significant weight because it was not supported
by other evidence in the record).
Dr. Campagna examined plaintiff only one time. See Tr. 545.
The Second Circuit has “cautioned that ALJs should not rely
heavily on the findings of consultative physicians after a
single examination.” Selian v. Astrue, 708 F.3d 409, 419 (2d
Cir. 2013). This limited treatment relationship supports the
ALJ’s decision. See Duran v. Colvin, No. 14CV8677(HBP), 2016 WL
5369481, at *18 (S.D.N.Y. Sept. 26, 2016) (collecting cases);
Robles v. Colvin, No. 3:14CV1250(DNH), 2016 WL 814926, at *4
(N.D.N.Y. Feb. 29, 2016) (finding that “the length, nature,
frequency, and extent of a claimant’s treatment relationship to
the medical source in question[]” were all “clearly permissible
reasons to discount a medical opinion”).
The ALJ’s assignment of almost no weight is further
supported by the fact that Dr. Campagna did not review
plaintiff’s medical record. See Tr. 545; Maldonado v. Colvin, No.
15CV4016(HBP), 2017 WL 775829, at *18 (S.D.N.Y. Feb. 28, 2017)
(“Opinions from a onetime consultative physician are not
33
ordinarily entitled to significant weight, in particular where
that physician does not have the benefit of the complete medical
record.” (quotation marks and citations omitted)); Kitt v.
Comm’r of Soc. Sec., No. 14CV5632(JG), 2015 WL 4199281, at *10
(E.D.N.Y. July 13, 2015) (determining consulting physician’s
opinion “deserved limited weight because consultative exams are
often brief, are generally performed without reviewing the
claimant’s medical history, and offer only a glimpse of the
claimant on a single day”). The Report indicates that Dr.
Campagna reviewed only “a copy of an Adult Disability Report
provided by the Disability Determination Service.” Tr. 545.
Accordingly, substantial evidence supports the ALJ’s
decision to accord Dr. Campagna’s opinion “almost no weight.”
Tr. 22.
D.
Listing 12.05(C)
Plaintiff argues that the ALJ erred by failing to consider
whether “plaintiff’s Full Scale IQ score of 70 may meet or equal
Listing 12.05C[.]” Doc. #15 at 14. Plaintiff’s argument consists
of only two sentences and includes no citations to the record or
to relevant case law. See id. Dr. Campagna’s intellectual
evaluation of plaintiff appears to be the only evidence of
plaintiff’s IQ in the record. Defendant contends that the ALJ
did not err because she “gave little weight to Dr. Campagna’s
opinion[,]” and because “the ALJ’s decision fully reflects why
34
the medical evidence of record fails to demonstrate deficits in
adaptive functioning[,]” as required to meet Listing 12.05(C).
Doc. #20 at 27-29.
Listing 12.05(C) states:
Intellectual
disability
refers
to
significantly
subaverage
general
intellectual
functioning
with
deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function[.]
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.05(C). “For a
claimant to show that [her] 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).
“While a qualifying IQ score may be prima facie evidence
that an applicant suffers from significantly subaverage general
intellectual functioning, §12.05, there is no necessary
connection between an applicant’s IQ scores and her relative
adaptive functioning.” Talavera v. Astrue, 697 F.3d 145, 153 (2d
35
Cir. 2012). “Instead, the regulations recognize that persons
with an IQ in the 60s (or even lower) may still be able to hold
a full-time job, and are therefore not disabled, if their
adaptive functioning is sufficiently intact.” Id. (quotation
marks and citations omitted). “Adaptive functioning refers to an
individual’s ability to cope with the challenges of ordinary
everyday life.” Id. (quotation marks and citations omitted).
“[C]ourts have held that if one is able to satisfactorily
navigate activities such as living on one’s own, taking care of
children without help sufficiently well that they have not been
adjudged neglected, paying bills, and avoiding eviction, one
does not suffer from deficits in adaptive functioning.” Id.
(quotation marks and citations omitted).
Dr. Campagna performed an intellectual evaluation of
plaintiff during his examination. See Tr. 547. He summarized
plaintiff’s results:
Measures of verbal, visual, and motor functioning tend
to cluster in the dull to normal range of accomplishment.
She
demonstrated
comparatively
strong
nonverbal
reasoning and relatively more difficulty retaining
random digits when she was asked to reverse them. This
deficit suggests a specific weakness in intermediate
memory. The disparity between the claimant’s verbal
comprehension score of 72 and her perceptual reasoning
result of 100 is consistent with her history of
absenteeism and subaverage academic preparation. It also
suggests that the Verbal Comprehension Index, Working
Memory Score of 71, and Processing Speed score of 76 as
well as the Full Scale IQ of 70 mildly underestimate her
optimal level of functioning.
36
Tr. 547-548.
The ALJ found that plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1[.]” Tr. 19. Although the ALJ did not
specifically discuss Listing 12.05(C), she discussed plaintiff’s
intelligence evaluation and explained why she accorded Dr.
Campagna’s opinion “almost no weight.” Tr. 22-23. The ALJ also
indicated that she did not find that plaintiff suffered from
deficits in adaptive functioning. She wrote: “In activities of
daily living, the claimant has mild restriction. There claimant
is frequently described as well-groomed and there is no evidence
that she cannot take care of her activities of daily living.”
Tr. 19.
The record does not support a conclusion that plaintiff has
an “IQ of 60 through 70[.]” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
Listing 12.05(C). Dr. Campagna’s intellectual evaluation is the
only evidence of plaintiff’s IQ in the record. His intellectual
evaluation tentatively indicated that plaintiff has an IQ of 70,
which is the outer limit of Listing 12.05(C). See Tr. 548.
However, Dr. Campagna suggested that plaintiff’s IQ is actually
higher. Tr. 548. He explained that the “disparity between the
claimant’s verbal comprehension score of 72 and her perceptual
reasoning result of 100” suggests that “the Full Scale IQ of 70
37
mildly underestimate[s] her optimal level of functioning.” Id.
Moreover, as discussed above, the ALJ appropriately afforded Dr.
Campagna’s opinion almost no weight.
Even if the record established that plaintiff has an IQ
between 60 and 70, substantial evidence indicates that plaintiff
does not have “significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifesting in the developmental period[.]” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Listing 12.05. Plaintiff and her sister both
testified that plaintiff lives alone and cares for her daughter.
See Tr. 66, 78. Plaintiff also testified that she is capable of
going shopping on her own, as long as she takes her medication.
See Tr. 71. APRN Giesman found that plaintiff has no problem
“[t]aking care of personal hygiene” or “[c]aring for physical
needs[.]” Tr. 383, 572. Dr. Harvey and Dr. Swanson each
determined that plaintiff has only a mild restriction of
activities of daily living. See Tr. 92, 115. Therefore, the
ALJ’s implicit finding that plaintiff was not intellectually
disabled, as defined by Listing 12.05(C), was supported by
substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 469
(2d Cir. 1982) (“[T]he ALJ’s implicit finding that appellant is
not mentally retarded, as defined by s 12.05, is supported by
substantial evidence.”).
38
Accordingly, the ALJ did not err by failing to explicitly
discuss Listing 12.05(C) because “portions of the ALJ’s decision
and the evidence before [her] indicate that [her] conclusion was
supported by substantial evidence.” Berry v. Schweiker, 675 F.2d
464, 468 (2d Cir. 1982); see also Spaich v. Berryhill, No.
1:15CV00274(MAT), 2017 WL 6014451, at *4 (W.D.N.Y. Dec. 5, 2017)
(“[T]he ALJ did not err in failing to specifically discuss
Listing 12.05(C), because the evidence does not indicate that
plaintiff qualified under that listing.”); Salmini v. Comm’r of
Soc. Sec., 371 F. App’x 109, 112–13 (2d Cir. 2010) (“[A]lthough
the ALJ might have been more specific in detailing the reasons
for concluding that plaintiff’s condition did not satisfy a
listed impairment, other portions of the ALJ’s detailed
decision, along with plaintiff’s own testimony, demonstrate that
substantial evidence supports this part of the ALJ’s
determination.”).
E.
Vocational Expert
Plaintiff argues the “ALJ erred in not having a vocational
expert available to testify[.]” Doc. #15 at 14. Plaintiff states
that “where non-exertional impairments exist, the Grids are
deemed not sufficient, and the Administration must introduce the
testimony of a vocational expert.” Doc. #15 at 15. Defendant
argues that “the ALJ properly found that although the
Plaintiff’s RFC for a full range of work at all exertional
39
levels had been somewhat impeded by non-exertional limitation,
such limitation had little to no effect on Plaintiff’s overall
ability to perform the basic demands of competitive,
remunerative, unskilled work[.]” Doc. #20 at 30. Defendant
contends that, therefore, “the ALJ properly relied on Rule
204.00 of the Medical-Vocational Guidelines as a framework in
finding Plaintiff not disabled.” Doc. #20 at 31.
“In some cases, the Commissioner can rely exclusively on
the medical-vocational guidelines (the “Grids”) contained in
C.F.R. Part 404, Subpart P, Appendix 2 when making the
determination at the fifth step.” Rousey v. Comm’r of Soc. Sec.,
285 F. Supp. 3d 723, 734 (S.D.N.Y. 2018). “The Grids take into
account the claimant’s RFC in conjunction with the claimant’s
age, education and work experience. Based on these factors, the
Grids indicate whether the claimant can engage in any other
substantial gainful work which exists in the national economy.”
Id. (quotation marks and citations omitted).
Plaintiff contends that the ALJ must introduce testimony
from a vocational expert “where non-exertional impairments
exist[,]” Doc. #15 at 5, but the cases cited by plaintiff do not
support her argument. In Bapp v. Bowen, 802 F.2d 601 (2d Cir.
1986), the Court held that the application of the Grids is
inappropriate where plaintiff has a non-exertional impairment
that “so narrows [her] possible range of work as to deprive
40
[her] of a meaningful employment opportunity.” Bapp, 802 F.2d at
601. In Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999),5 the Court
determined that “sole reliance on the grids may be precluded
where the claimant’s exertional impairments are compounded by
significant nonexertional impairments that limit the range of
sedentary work that the claimant can perform.” Rosa, 168 F.3d at
72 (quotation marks and citations omitted). Therefore,
vocational testimony is only necessary where the plaintiff “has
nonexertional limitations that significantly limit the range of
work permitted by [her] exertional limitations[.]” Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (emphasis added;
quotation marks and citation omitted).
Here, the ALJ determined that plaintiff does not have such
significant nonexertional limitations. The ALJ found that
plaintiff could “perform a full range of work at all exertional
levels[,]” but with the following non-exertional limitations:
“The [plaintiff] is limited to simple, routine tasks. She cannot
work with the general public. She can relate appropriately with
coworkers, but is limited to frequent direct interaction with
This case is also inapposite, as plaintiff was limited to
sedentary work and had significant nonexertional impairments
that “raise[d] significant doubts as to [plaintiff’s] capacity
to perform [sedentary employment].” Rosa, 168 F.3d at 82. Here,
plaintiff has no exertional limitations and her nonexertional
impairments are not significant.
5
41
her coworkers.” Tr. 20. The ALJ determined that “these
limitations have little or no effect on the occupational base of
unskilled work at all exertional levels.” Tr. 25. The ALJ found
that “[a] finding of ‘not disabled’ is therefore appropriate
under the framework of section 204.00 in the Medical-Vocational
Guidelines.” Id. Accordingly, the ALJ concluded that “there are
jobs that exist in significant numbers in the national economy
that the claimant can perform[.]” Id.
The capacity to perform work at all exertional levels
includes heavy work.
Individuals who retain the functional capacity to
perform heavy work (or very heavy work) ordinarily will
not have a severe impairment or will be able to do their
past work — either of which would have already provided
a basis for a decision of “not disabled”. Environmental
restrictions ordinarily would not significantly affect
the range of work existing in the national economy for
individuals with the physical capability for heavy work
(or very heavy work). Thus an impairment which does not
preclude heavy work (or very heavy work) would not
ordinarily be the primary reason for unemployment, and
generally is sufficient for a finding of not disabled,
even though age, education, and skill level of prior
work experience may be considered adverse.
20 C.F.R. Pt. 404, Subpt. P, App. 2.
“The basic mental demands of competitive, remunerative,
unskilled work include the abilities (on a sustained basis) to
understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.”
42
SSR 85-15, 1985 WL 56857 at *4 (S.S.A. Jan. 1, 1985). Unskilled
jobs “ordinarily involve dealing primarily with objects, rather
than with data or people, and they generally provide substantial
vocational opportunity for persons with solely mental
impairments who retain the capacity to meet the intellectual and
emotional demands of such jobs on a sustained basis.” Id.
The ALJ determined that plaintiff is limited to simple
routine tasks, which is consistent with the demands of unskilled
work. See SSR 85-15, 1985 WL 56857 at *4 (Unskilled work
requires “the abilities ... to understand, carry out, and
remember simple instructions[.]”). Therefore, this limitation
does not substantially reduce plaintiff’s ability to perform
unskilled work. See Medley v. Colvin, No. 14CV350(WMS), 2015 WL
4112477, at *2, *5 (W.D.N.Y. July 8, 2015) (finding the ALJ
properly determined that being limited to performing simple
repetitive tasks, with transient and superficial contact with
coworkers, the public, and supervisors did not limit plaintiff’s
ability to perform unskilled work).
Plaintiff’s inability to work with the general public also
does not significantly diminish the base of unskilled jobs. See
Brown v. Colvin, No. 3:14CV1784(WIG), 2016 WL 2944151, at *5 (D.
Conn. May 20, 2016) (“A limitation to occasional interaction
with others does not significantly limit the range of unskilled
work, and reliance on the Grids in such an instance is
43
appropriate.”); Verret v. Colvin, No. 3:14CV234(SRU), 2016 WL
1182980, at *2 (D. Conn. Mar. 28, 2016) (ALJ did not err by
relying on the Grids because the “ALJ’s description of
[plaintiff’s] RFC allowing ‘simple’ work with ‘one or two-step’
instructions and ‘only occasional interaction’ with others is in
accord with the description of unskilled work that requires
following simple instructions — especially in light of the fact
that such jobs ordinarily involve dealing primarily with
objects, rather than with data or people.” (quotation marks and
citation omitted)); Degraw v. Colvin, No. 3:13CV782(GLS), 2014
WL 3038279, at *6 (N.D.N.Y. July 3, 2014) (finding “the use of a
VE was unnecessary[]” because plaintiff “was limited to simple
tasks and only occasional contact with the general public, and
unskilled work primarily involves objects, not data or
people[]”); Jones v. Colvin, No. 11CV445(MAT), 2014 WL 1976921,
at *12 (W.D.N.Y. May 15, 2014) (finding the ALJ properly relied
on the Grids where the ALJ determined plaintiff’s RFC “allowed
for unskilled work at all exertional levels with little to no
interaction with the public”); Stoddard v. Astrue, No.
3:05CV362(NPM), 2009 WL 3644212, at *6 (N.D.N.Y. Oct. 27, 2009)
(concurring with the ALJ’s determination that “plaintiff’s
ability to perform work at all exertional levels was not
significantly compromised by” being limited to “no more than
limited public contact with others[]”).
44
Plaintiff does not argue that she has impairments that
significantly limit her ability to perform unskilled work, nor
does she cite to any portion of the record suggesting such a
limitation. See Doc. #15 at 14-15. Therefore, the ALJ did not
err by determining that plaintiff’s nonexertional limitations
have “little or no effect on the occupational base of unskilled
work at all exertional levels.” Tr. 25; see Pritchard v. Colvin,
No. 1:13CV945(DNH)(CFH), 2014 WL 3534987, at *10 (N.D.N.Y. July
17, 2014) (finding “the ALJ was permitted to rely on the Grids”
where plaintiff failed to “cite to any portion of the record or
any treatment note that indicates that plaintiff’s nonexertional impairments significantly impact[] her ability to
perform work-related functions[]”).
Accordingly, the ALJ appropriately relied on the Grids to
determine that plaintiff can perform a significant number of
jobs in the national economy. See Crothers v. Colvin, No.
13CV4060(VEC)(KNF), 2015 WL 437403, at *10 (S.D.N.Y. Feb. 3,
2015), report and recommendation adopted, No.
13CV4060(VEC)(KNF), 2015 WL 1190167 (S.D.N.Y. Mar. 16, 2015)
(finding the ALJ did not commit legal error by failing to use a
vocational expert because “he determined that [plaintiff’s] nonexertional impairments do not significantly diminish
[plaintiff’s] ability to work”); Zabala, 595 F.3d at 411 (“The
ALJ found that Petitioner’s mental condition did not limit her
45
ability to perform unskilled work, including carrying out simple
instructions, dealing with work changes, and responding to
supervision. Thus, her nonexertional limitations did not result
in an additional loss of work capacity, and the ALJ’s use of the
Medical–Vocational Guidelines was permissible.”).
F.
Plaintiff’s Sister’s Testimony
Plaintiff argues that the ALJ erred by failing to give
proper consideration to the testimony of plaintiff’s sister,
Heather Halem. See Doc. #15 at 15. Plaintiff states that the ALJ
“devote[d] two sentences to summarize the testimony of
plaintiff’s sister[,]” and that the ALJ “otherwise gave no
consideration, or weight to it.” Doc. #15 at 15. Defendant
argues that “any alleged error in the ALJ not providing a more
detailed discussion of Plaintiff’s sister’s testimony was
harmless, given that there was no reasonable likelihood that her
testimony, which was substantially similar to Plaintiff’s, would
have changed the ALJ’s decision.” Doc. #20 at 31.
The Regulations direct ALJs to consider “observations by
... other persons[]” when evaluating the intensity and
persistence of plaintiff’s symptoms. 20 C.F.R. §§404.1529(c)(3),
416.929(c)(3). Plaintiff states that “[l]ay evidence as to one’s
ability to function is ‘valuable in assessing the credibility of
the [claimant’s] testimony.’” Doc. #15 at 15 (quoting Lopez v
Secretary of HHS, 728 F.2d. 148, 150 (2d Cir. 1984) (ordering
46
remand because the ALJ refused to allow a lay witness to testify
at the hearing)).
The ALJ allowed Ms. Halem to testify and asked her
questions during the hearing regarding her observations. See Tr.
75-84. The ALJ also discussed Ms. Halem’s testimony in her
decision: “The claimant’s sister testified on the claimant’s
behalf to her inability to focus and stay on task for the
simplest things, including just making dinner.” Tr. 24.
“[A]n ALJ must make a credibility finding of lay witness
testimony only when that testimony is critical to the
adjudication of an application. Testimony is critical to the
adjudication of an application when the failure to address such
testimony undermines the ALJ’s decision, e.g., when the
testimony ignored is that of the claimant herself.” Burden v.
Astrue, 588 F. Supp. 2d 269, 278 (D. Conn. 2008).
Here, the ALJ’s failure to make a credibility finding
regarding Ms. Halem’s testimony does not undermine her
determination that plaintiff is not disabled. Plaintiff
correctly observes that lay witness testimony is valuable in
assessing the credibility of a plaintiff’s testimony, but
plaintiff does not argue that the ALJ improperly assessed
plaintiff’s credibility. See Doc. #15 at 15. Moreover, plaintiff
does not cite to the record or offer any arguments regarding the
possible relevance of Ms. Halem’s testimony. See id. As
47
discussed throughout this Ruling, the ALJ’s decision was based
primarily on the treatment notes in the record and the opinions
of the State consultative professionals that reviewed
plaintiff’s file. As a result, the ALJ’s failure to assign
specific weight to Ms. Halem’s testimony was not legal error.
VI.
CONCLUSION
For the reasons set forth herein, the Court finds that the
decision of the ALJ is supported by substantial evidence in the
record and no legal error was committed. Therefore, defendant’s
Motion for an Order Affirming the Commissioner’s Decision [Doc.
#19] is GRANTED. Plaintiff’s Motion for Reversal or Remand of
Commissioner’s Decision [Doc. #14] is DENIED.
SO ORDERED at New Haven, Connecticut, this 12th day of
June, 2018.
____/s/______
________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
48
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