Mainella v. Commissioner of Social Security

Filing 24

ORDER granting 15 Motion for Judgment on the Pleadings. For the reasons given in the attached order, the Commissioner's motion for judgment on the pleadings is granted, and Mainella's motion 19 is denied. Ordered by Judge John Gleeson on 1/14/2014. (Aronoff, Peter)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

ONLINE PUBLICATION ONLY

LAURIE MAINELLA,
Plaintiff,
- versus -

MEMORANDUM
AND ORDER
13-CV-2453

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

A P P E A R A N C E S:
CHRISTOPHER J. BOWES
54 Cobblestone Drive
Shoreham, NY 11786
Attorney for Plaintiff
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Arthur Swerdloff, Assistant U.S. Attorney
Attorney for Defendant
JOHN GLEESON, United States District Judge:
Laurie Mainella seeks review of the Social Security Administration’s decision
denying her disability benefits. Mainella contends that she is fully disabled due to various
psychiatric conditions, but the Social Security administrative law judge (“ALJ”), and ultimately
the Acting Commissioner of Social Security, determined that Mainella would be able to do some
work. In this action, Mainella argues primarily that the ALJ failed to identify an opinion as that
of her treating psychiatrist and therefore failed to give that opinion the proper weight under law.
She also argues that the agency improperly relied on GAF scores, a recently deprecated

psychological metric. For the reasons given below, the Commissioner’s motion for judgment on
the pleadings is granted, and Mainella’s is denied.
BACKGROUND
Mainella seeks Social Security disability benefits beginning on January 19, 2012,
the date she most recently sought treatment for bipolar disorder.
At the time of her hearing before the ALJ, Mainella was 38 years old and lived
with her teenaged daughter. R. 35-36. She completed tenth grade and did not have a GED. She
was last employed in January of 2012, when she quit a part-time job at a bagel shop. R. 36.
Before that, she had worked as a waitress and as a cashier at a pharmacy; she was fired from both
jobs. R. 37. Mainella does not drive; she uses public transportation. Mainella cooks and cleans
for herself and her daughter. R. 42-43. She shops for groceries about twice a month. She has
had an on-and-off relationship with her boyfriend for about ten years. R. 44.
Mainella has received mental health treatment since childhood. In 1997, she was
in an abusive relationship and saw a therapist for a few weeks. She saw a therapist again in
2003. Mainella was evaluated by Arbor WeCare in 2006 in connection with receipt of public
benefits, and she reported assorted symptoms, including difficulty concentrating and
remembering, depression, lack of interest in leaving her house or seeing other people. Mainella
has a history of substance abuse problems, for which she has sought inpatient treatment. R. 40.
However, because she seeks benefits only from January of 2012, her symptoms from that time
are most relevant here.
Since January of 2012, when she applied for the disability insurance at issue in
this case, Mainella has had a series of treatments and diagnoses from mental health professionals.
In February of 2012, Mainella received an initial psychiatric evaluation from a nurse practitioner,

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Nancy Carr, at Staten Island University Hospital. R. 453-57. Though she was then on
medication, Mainella reported that she was easily depressed and had trouble concentrating; she
also reported mood swings, irritability, and sleep problems. Mainella continued seeing Carr
through at least December 2012; Carr periodically adjusted Mainella’s medication regimen.
On March 2, 2012, Mainella was evaluated by a doctor, Hun Han. R. 357-79. On
March 5, another doctor, Robert London, also evaluated Mainella. Han and London agreed that
Mainella’s mental condition would prevent her from working for at least twelve months.
In late April 2012, a Disability Determination Services psychologist, Richard
Altmansberger, evaluated the paper record produced by Drs. Han and London. R. 58-62.
Almansberger diagnosed polysubstance abuse, anxiety disorder, bipolar disorder, and personality
disorder; he believed Mainella retained sufficient residual functional capacity to work.
After her application for benefits was initially denied at the administrative level,
Mainella requested a hearing and appeared before ALJ Patrick Kilgannon on December 5, 2012.
ALJ Kilgannon issued his decision denying benefits on December 28, 2012. The Appeals
Council denied review on March 12, 2013, and Mainella brought this action.
DISCUSSION
A.

The Legal Standards
A claimant seeking disability insurance benefits must establish that, “by reason of

any medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for continuous period of not less than twelve months,” 42 U.S.C.
§ 1382c(a)(3)(A), 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,” id. § 1382c(a)(3)(B).

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The Social Security regulations direct a five-step analysis for the Commissioner
to evaluate disability claims:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his 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 [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a claimant
who is afflicted with a “listed” impairment is unable to perform
substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, he has the residual functional
capacity to perform past work. Finally, if the claimant is unable to
perform his past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (internal quotation marks
omitted) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)); see also 20 C.F.R.
§ 404.1520(a)(4)(i)-(v) (setting forth this process). The claimant bears the burden of proof in the
first four steps, the Commissioner in the last (but only to show that jobs exist in the national or
local economies that the claimant can perform given her RFC and vocational factors). GreenYounger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 68 Fed. Reg. 51153, 51155 (Aug. 26,
2003).
The Commissioner decides whether the claimant is disabled within the meaning
of the Act. 20 C.F.R. § 404.1527(e)(1). Under 42 U.S.C. § 405(g), I review the Commissioner’s
decision to determine whether the correct legal standards were applied, and whether the decision
is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). If
the record contains evidence which “a reasonable mind might accept as adequate to support [the
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Commissioner’s] conclusion,” this Court may not “substitute its own judgment for that of the
[Commissioner] even if it might justifiably have reached a different result upon a de novo
review.” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quotation marks omitted).
B.

Application
1. Five-Step Analysis and Standard of Review
The parties agree that Mainella satisfied the first several steps for being

adjudicated disabled. First, at the time she applied for benefits, she was employed only trivially,
and has not worked since. Second, the ALJ agreed that Mainella’s diagnosed conditions are
“severe” within the meaning of the Social Security Act. See 20 §§ C.F.R. 404.1520(c) &
416.920(c). The key point of contention is whether Mainella’s conditions leave her with enough
residual functional capacity to work, either in one of her previous jobs or in a different job. The
ALJ held that Mainella’s conditions were not so disabling as to prevent her from performing a
low-stress job without interaction with the public. R. 14-15. Specifically, the ALJ found that
Mainella should be able to perform work as a document preparer (a position she previously
held), or other jobs such as a kitchen helper or mail clerk. R. 19-20. In reaching this conclusion,
the ALJ essentially rejected the conclusions reached in the medical report (“Medical Source
Statement”) prepared at SIUH.
Mainella’s primary argument before me is that the ALJ improperly discounted the
opinions set forth in the Medical Source Statement. Mainella alleges that report was prepared in
part by Mainella’s treating physician, Dr. Swarnamba Mani. Mainella argues that because the
ALJ did not notice Dr. Mani’s signature on the report, the ALJ did not realize that the report was
prepared by her treating physician. Therefore, Mainella argues, the ALJ did not accord the
Medical Source Statement the weight it is due under the treating physician rule.

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Under 20 C.F.R. §§ 404.1527(c) and 416.927(c), the opinion of a treating
physician is entitled to “controlling” weight unless it conflicts with other substantial evidence in
the record. E.g. Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004); Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002) (treating physician’s opinion not controlling when contradicted “by
other substantial evidence in the record”); 20 C.F.R. § 404.1527(c)(2).
It is true that the ALJ did not specifically mention Dr. Mani or otherwise engage
with the question of whether the report was prepared by Mainella’s treating physician. However,
the record leaves a number of questions about Dr. Mani and the Medical Source Statement.
First, the relevant page of the administrative record does show a signature that
could be Dr. Mani’s, but it is difficult to read, and no printed name appears next to the signature
(as is the case for the other two signatories). See R. 425. Thus, it is not totally clear that Dr.
Mani signed the report Mainella cites.
Second, even assuming that Dr. Mani signed the report, the record does not show
what role Dr. Mani played in Mainella’s care or evaluation. Dr. Mani’s name does appear at
other places in the record – for example, in the header of pages R. 439-64 – but there, too, the
documents submitted offer no explanation of the role that Dr. Mani played in Mainella’s care.
Without any indication that Dr. Mani actually supervised Mainella’s care, the Medical Source
Statement represents the opinion of a nurse practitioner, not a doctor.1 In analogous
circumstances, courts have given weight to statements of non-physicians in accordance with how
closely the evaluator worked under the supervision of a physician. See, e.g., Godin v. Astrue,

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The reason for deference to the treating physician is a combination of the physician’s expertise
and presumptive familiarity with the applicant’s case. See 20 C.F.R. § 404.1527(c)(2) (“Generally, we give more
weight to opinions from your treating sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.”).

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3:11-CV-881 SRU, 2013 WL 1246791, at *3 n.2 (D. Conn. Mar. 27, 2013) (holding that “despite
undisputed evidence” that a nurse practitioner had treated the plaintiff “regularly over a period of
several years,” the ALJ “correctly determined that, because there was no evidence to suggest that
[the nurse practitioner] worked under the supervision of and in close consultation with [the
treating physician], [the nurse practitioner’s] opinions, standing on their own, could not be
considered those of a treating physician,” and citing Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.
1996)).
But even if it were clear that the opinions in the Medical Source Statement were
in fact Dr. Mani’s, and thus that the treating physician rule applied to the Medical Source
Statement, remand would still be unwarranted. That is because the ALJ rejected the report not
because it came from a non-physician source, but because the ALJ found it inconsistent with
other record evidence. Thus, the ALJ’s reasoning applies equally well to reject the Medical
Source Statement even if it represents the opinion of a treating physician. See Veino, 312 F.3d at
588 (treating physician’s opinion not controlling when contradicted “by other substantial
evidence in the record”).
Specifically, the ALJ gave “little to no weight” to the Medical Source Statement
for three reasons. First, he found the Medical Source Statement internally inconsistent, since it
stated that Mainella had marked limitations in her abilities to understand and remember short
simple instructions, carry out short simple instructions, and carry out detailed instructions, but
also that she would have only moderate restrictions in her ability to understand and remember
detailed instructions. R. 18. Second, the ALJ found that the Statement’s conclusion that
Mainella could not at all function independently outside the home was contradicted by the fact
that Mainella used public transportation to reach her appointments. R. 18. Third, the ALJ found

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the Statement’s conclusions of incapacitation inconsistent with Mainella’s daily activities,
“which include taking care of her daughter, attending to her personal care needs, performing
household chores such as cooking and cleaning, walking, going shopping, managing her own
finances, and going outside alone.” R. 18.
Without the benefit of live testimony, I am not well situated to reevaluate such
factors as witness credibility and demeanor. That is part of why my review is only for
substantial evidence. Especially with that limitation, I cannot say that the ALJ’s reasons for
discounting the Medical Source Statement were unsupported. For example, the internal
inconsistency in the report constitutes a reasonable basis to believe that it was not prepared with
the type of attention to detail indicating reliability. See, e.g., Michels v. Astrue, 297 F. App’x 74,
76 (2d Cir. 2008) (noting that consistency “is a factor in deciding the weight accorded to any
medical opinion” under 20 C.F.R. § 404.1527(d)(4)). And the record as a whole does not
compel a view of the facts contrary to the agency’s.
2. GAF Scores
Mainella also argues that the case should be remanded because of the use of GAF

scores in the evaluation. The GAF score, for “global assessment of functioning,” is a numeric
scale ranging from 0 (lowest functioning) through 100 (highest functioning). “The GAF is a
scale promulgated by the American Psychiatric Association to assist ‘in tracking the clinical
progress of individuals [with psychological problems] in global terms.’” Kohler v. Astrue, 546
F.3d 260, 262 n.1 (2d Cir. 2008) (quoting Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders, at 32 (4th ed. 2000)). However, the most recent edition of the
Diagnostic and Statistical Manual of Mental Disorders, the professional standard handbook for
mental health diagnosis, has dropped the use of the scale. The Social Security Administration

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issued a bulletin dated July 31, 2013, limiting use of GAF scores. At a basic level, the
Administration noted that “[t]he problem with using the GAF to evaluate disability is that there
is no way to standardize measurement and evaluation.” See Pet.’s Mem, Ex. B, at 2. There are
other problems: the GAF score is not designed to predict outcomes, and the scores are so general
that they are not useful without additional supporting description and detail. Id. at 2-3. The new
guidance offers a number of suggestions for using GAF evidence. Generally, the guidance
instructs ALJs to treat GAF scores as opinion evidence; the details of the clinician’s description,
rather than a numerical range, should be used. Id. at 3-4.
Here, the agency did not give the GAF scores undue or mechanical weight, even
in light of the new guidance. Rather, they were treated as opinion evidence. For example, the
ALJ noted that the GAF scores of 65-70 were consistent with both medical opinion and
Mainella’s self-reported activities, such as the ability to care for herself, go shopping, and use
public transportation. R. 17. The ALJ did not simply accord the numbers weight; he looked to
the underlying bases for those numbers and analyzed them in the context of the evidence as a
whole.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings is granted, and Rodriguez’s cross-motion is denied.

So ordered.

John Gleeson, U.S.D.J.
Dated: January 14, 2014
Brooklyn, New York
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