Sisto v. Astrue
Filing
22
MEMORANDUM & ORDER granting 16 Motion for Judgment on the Pleadings; denying 19 Motion for Judgment on the Pleadings. For the foregoing reasons, Plaintiff's motion is DENIED, the Commissioner's motion is GRANTED, and the decision of the ALJ is hereby AFFIRMED. The Clerk of the Court is directed to amend the docket to reflect that Carolyn W. Colvin is now the Acting Commissioner of Social Security and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/3/2013. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
CHRISTY SISTO,
Plaintiff,
MEMORANDUM & ORDER
12-CV-2258(JS)
-againstCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Phillip Howard Seelig, Esq.
Seelig Law Offices, LLC
299 Broadway, Suite 1600
New York, NY 10007
For Defendant:
Vincent Lipari, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, NY 11722
SEYBERT, District Judge:
Plaintiff Christy Sisto (“Plaintiff”) commenced this
action pursuant to Section 205(g) of the Social Security Act, as
amended,
42
U.S.C.
§
405(g),
challenging
the
Defendant
Commissioner of Social Security’s (the “Commissioner”)1 denial of
her application for disability insurance benefits and Supplemental
Security Income (“SSI”).
Presently pending before the Court are
Plaintiff’s and the Commissioner’s cross-motions for judgment on
The Clerk of the Court is directed to amend the docket to
reflect that Carolyn W. Colvin is now the Acting Commissioner of
Social Security.
1
the pleadings. For the reasons explained below, Plaintiff’s motion
is DENIED, the Commissioner’s motion is GRANTED, and Plaintiff’s
Complaint is DISMISSED.
BACKGROUND
On February 20, 2010, Plaintiff filed for disability
insurance benefits and SSI, asserting that she has been disabled
and, thus, unable to work, since November 30, 2007, due to major
depression, anxiety, and panic disorder.
(R. 133-138, 155.)2
applications were denied on September 1, 2010.
(R. 44-51.)
Her
On or
around September 14, 2010, Plaintiff requested a hearing before an
administrative law judge (“ALJ”) (R. 61-62), which took place
before ALJ Bruce MacDougall on April 29, 2011 (R. 21).
hearing,
the
ALJ
heard
testimony
from
Plaintiff,
At the
who
was
represented by counsel, and from a vocational expert, Mr. Darren
K. Flomberg.
(R. 23-40.)
The ALJ issued his decision on June 16, 2011, finding
that Plaintiff is not disabled.
(R. 10-17.)
Plaintiff sought
review of this decision by the Appeals Council (R. 93-132) and
submitted additional evidence in support of her request (R. 349406).
On March 21, 2012, the Appeals Counsel denied Plaintiff’s
request for review.
(R. 1-3.)
“R.” denotes the administrative record which was filed by the
Commissioner on August 6, 2012. (Docket Entry 11.)
2
2
The Court’s review of the administrative record will
proceed as follows:
First, the Court will summarize the relevant
evidence that was presented to the ALJ; second, the Court will
review the ALJ’s findings and conclusions; third, the Court will
summarize
the
additional
evidence
submitted
to
the
Appeals
Council; and finally, the Court will review the Appeals Council’s
decision.
I.
Evidence Presented to the ALJ
A.
Non-Medical Evidence
Plaintiff was born on March 25, 1971.
completed
school
through
the
eighth
grade,
(R. 179.)
attending
education classes, and obtained her GED in 1995 or 1996.
She
special
(R. 156,
291.)
1.
Employment History
From 1988 to 1991, Plaintiff worked as a customer service
representative for a retail store.
(R. 170.)
Her duties as a
customer service representative included data entry, filing, and
faxing.
(R. 172.)
From 1991 to 2002, Plaintiff worked for two
different employers as an administrative assistant.
(R. 170.)
Her
providing
duties
customer
as
an
service
administrative
over
the
assistant
phone,
included
answering
a
switchboard,
inputting data into a computer, filing, and faxing.
(R. 173-74.)
From 2002 to 2003, Plaintiff worked as a cashier for a check
cashing business,
where her responsibilities included cashing
3
checks, sending money transfers, and selling money orders.
170, 175.)
(R.
From 2003 to 2007, Plaintiff worked as a purchasing
assistant for an eyeglass distributor, where her duties included
preparing
purchase
shipments.
orders,
(R. 170, 176.)
contacting
vendors,
and
tracking
Plaintiff was “let go” from this job
on November 30, 2007, the alleged onset date of her disability,
because she had taken too many sick days.
(R. 27.)
She testified
that, due to her anxiety, she “would get out of bed, and go into
the shower, and [she] would feel like [she] had to faint.
[She]’d
feel very light-headed [and] start getting anxious, thinking about
being around the people and the daily activities, and [she]
couldn’t handle it.”
2.
(R. 28.)
Daily Activities
When Plaintiff submitted her applications in 2010, she
stated that she lived with her mother and that she was no longer
capable of taking care of her son, who then lived with her aunt
and uncle.
(R. 162-63.)
She spent most of her time watching
television, sleeping, preparing easy meals for herself (such as
cereal,
microwave
meals,
and
sandwiches),
and
she
went
food
shopping only once a month (which would take her all day).
(R.
163-64, 166.) She also had difficulty with basic personal hygiene:
she did not shower or brush her teeth daily, she would occasionally
“pee [her]self,” and she sometimes smelled.
4
(R. 164.)
Subsequently, at the ALJ hearing on April 29, 2011,
Plaintiff testified that she lives with a friend, that her friend
does the household shopping and cleaning, and that she still spends
most of her time in bed watching television.
(R. 29.)
She has no
hobbies, does not own a computer, and, although she has a driver’s
license, she has not driven since 2007.
(R. 30.)
Plaintiff
testified that although she supports herself with the help of
friends and family, she does not leave the house to visit them and
only speaks to them on the phone.
receiving welfare assistance.
B.
(R. 29-30.)
She is also
(R. 30.)
Medical Evidence
Plaintiff began psychiatric treatment with Dr. Shang Liu
on June 11, 2008 and has been attending monthly therapy sessions
with him since that date.
(R. 30-31, 160.)
The record does not
contain Dr. Liu’s treatment notes but, instead, is limited to forms
and reports that Dr. Liu completed for the purposes of Plaintiff’s
Social Security Administration (“SSA”) and welfare applications.
The first of such records is a “Psychiatric Assessment
for
Determination
of
Employability”
for
Suffolk
County’s
Department of Social Services, completed by Dr. Liu on October 22,
2009. (R. 293-94.) In the Assessment, Dr. Liu diagnosed Plaintiff
with Major Depressive Disorder and Panic Disorder and stated that
he
had
prescribed
conditions.
Wellbutrin
(R. 293.)
and
Alprazolam
to
treat
these
He also noted that Plaintiff’s Global
5
Access Functioning (“GAF”) was a 56-60.3
(R. 293.)
The Assessment
indicated that, although Plaintiff has never been hospitalized,
attempted suicide, passed out, blacked out, or had episodes of
decompensation as a result of her mental condition, Dr. Liu
believed that Plaintiff’s conditions occasionally interfered with
“activities of daily living.”
boxes
indicating
that
(R. 294.)
Plaintiff
was
Further, Dr. Liu checked
moderately
limited
in:
understanding and remembering complex instructions, maintaining
attention
and
concentration,
interacting
appropriately
with
others, maintaining socially appropriate behavior, maintaining
basic standards of personal hygiene and grooming, using public
transportation, and performing simple, low stress tasks.4
294.)
(R.
There was no evidence, however, that Plaintiff was limited
in understanding and remembering simple instructions.
(R. 294.)
Dr. Liu concluded that Plaintiff was not capable “of participating
in activities such as employment, education, training or work
“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)
(alteration in original) (quoting AM. PSYCHIATRIC ASS’N, DIAGNOSTIC &
STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 2000)). “A GAF
between 51 and 60 indicates ‘[m]oderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational or school
functioning (e.g., few friends, conflicts with peers or coworkers).’” Id. (quoting AM. PSYCHIATRIC ASS’N at 32).
3
The choices on the evaluation form were “no evidence of
limitation,” “moderately limited” or “very limited.” (R. 294.)
4
6
experience” for at least one year, when a reevaluation would be
necessary.
(R. 294.)
Thereafter, Dr. Liu completed two forms for SSA on March
15, 2010:
a “Psychiatric Evaluation” (R. 301-304) and a “Medical
Assessment of Ability to Do Work-Related Activities (Mental)” (R.
305-08).
On the Psychiatric Evaluation,
following
diagnoses:
generalized
Dr. Liu
anxiety
depressive disorder, and a GAF of 51-60.
listed the
disorder,
(R. 301.)
major
He also noted
that Plaintiff continued to take Wellbutrin and Alprazolam for
these conditions.
that
Plaintiff
transportation,
participating
direction,
(R. 301.)
had
marked
planning
in
Dr. Liu checked boxes indicating
difficulty
daily
activities
in
activities,
independent
of
using
public
initiating
supervision
responding without fear to strangers,
and
or
establishing
interpersonal relationships, holding a job, and interacting and
actively participating in group activities.
(R. 303.)
Moreover,
Dr. Liu indicated that Plaintiff had deficiencies in the following
areas which have resulted or would result in impaired functioning
at work: independent functioning, concentration, persistence in
tasks, ability to complete tasks in a timely manner, pace, and
ability
to
assume
competitive work.
increased
(R. 303.)
mental
demands
associated
with
He further noted that, in work or
work-like settings, Plaintiff, either continuously or in stressful
circumstances, could not appropriately accept supervision; she
7
would withdraw from situations, exacerbate the signs or symptoms
of her illness, miss work days, and make poor decisions; and her
level of functioning would deteriorate.
Dr.
Liu
concluded
that
Plaintiff’s
(R. 304.)
disorder
Ultimately,
resulted
in
her
“complete inability to function independently outside of [her]
home,” and that this impairment could be expected to last for more
than one year.
(R. 304 (emphasis in original).)
In the Medical Assessment completed on the same day, Dr.
Liu checked boxes indicating that Plaintiff had a “good”5 ability
to follow work rules, relate to co-workers, and interact with
supervisors;
judgment,
a
“fair”
deal
ability
with
attention/concentration;
independently.
(R. 306.)
to
work
and
deal
with
a
stresses,
“poor”
the
public,
and
ability
use
maintain
to
function
Dr. Liu reported that Plaintiff had
“poor” or no ability to understand, remember, and carry out complex
job instructions; a “fair” ability to understand, remember, and
carry out detailed, but not complex, job instructions; and a “good”
ability
to
understand,
instructions.
(R. 307.)
remember,
and
carry
out
simple
job
Dr. Liu also noted that Plaintiff had
“poor” or no ability to demonstrate reliability but was fairly
able to maintain her personal appearance, behave in an emotionally
The choices on the evaluation form were “Unlimited/Very Good,”
“Good,” “Fair,” and “Poor.” (R. 306.)
5
8
stable manner, and relate predictably in social situations.
(R.
307.)
On July 27, 2010, Dr. Liu submitted a report to the New
York State Office of Temporary and Disability Assistance.
312-18.)
(R.
He indicated that Plaintiff had a GAF of 55-60 and that
she was being treated for depression and general anxiety disorders
which
caused
insomnia,
symptoms
decreased
such
as
hopelessness,
interests
in
worthlessness,
pleasure,
trembling,
palpitations, shortness of breath, and chest discomfort.
314.)
(R. 312,
At this time, Plaintiff was still taking Alprazolam and
Wellbutrin, and she reported no side effects.
noted that,
while under his care,
(R. 313.)
Dr. Liu
Plaintiff had always been
compliant with monthly appointments and medications.
(R. 314.)
He observed that she appeared well-groomed (R. 315, 316), and,
although she seemed depressed and anxious, her speech was normal,
her thoughts were goal directed, and her memory was intact (R.
315). Dr. Liu also noted, however, that Plaintiff “had poor memory
due to distractibility caused by anxiety.” (R. 317.) He concluded
that she was unable to return to work for at least another year.
(R. 316.)6
After the hearing before the ALJ, but before the issuance of
his decision, Dr. Liu resubmitted his July 27, 2010 report (R.
341-47) noting that all of his findings regarding Plaintiff’s
condition remained the same (R. 347).
6
9
In addition to Dr. Liu’s reports, the ALJ had before it
a “Psychiatric Review Technique” form and a “Mental Residual
Functional Capacity Assessment” completed by psychologist Dr. Y.
Burnstein on August 31, 2010 at the request of the SSA.7
319-36.)
(R.
In the Psychiatric Review Technique form, Dr. Burnstein
concluded that Plaintiff had mild limitations with activities of
daily
living
and
maintaining
social
functioning;
moderate
difficulty in maintaining concentration, persistence or pace; and
one or two episodes of deterioration of an extended duration.
(R.
329.)
In the Functional Capacity Assessment, Dr. Burnstein
stated that Dr. Liu’s opinions “[do] not reflect marked limitations
from
a
psychological
tasks.”
(R. 335.)
perspective
that
would
preclude
simple
He further noted that, although the evidence
was “partially consistent” with Plaintiff’s alleged depressive
symptoms, he did not believe that those symptoms were significantly
limiting.
capable
of
(R. 335.)
Dr. Burnstein concluded that Plaintiff “is
understanding
and
following
simple
directions
and
sustaining concentration for simple tasks . . . [and] is able to
Dr. Y. Burnstein did not physically examine Plaintiff; his
reports were based on his review of medical evidence made
available to him.
7
10
adapt to changes as well as relate adequately to others.”
(R.
335.)8
C.
Vocational Expert Testimony
Mr.
Flomberg,
a
vocational
expert,
testified
at
Plaintiff’s ALJ hearing regarding whether she could perform any of
her past work or any other jobs.
an
individual
of
Plaintiff’s
(R. 33-39.)
age,
education,
He concluded that
and
prior
work
experience, with a residual functional capacity to perform light
work of a simple, unskilled nature, could not perform Plaintiff’s
prior work as a check cashier or assistant buyer.
(R. 33-34.)
Mr. Flomburg further noted that if an individual with these
characteristics was also limited to only occasional contact with
He also checked off boxes indicating the following: (1) that
Plaintiff was “moderately limited” in her ability to understand,
remember, and carry out detailed instructions; maintain
attention and concentration for extended periods; maintain a
regular schedule, regular attendance, and be punctual; sustain
an ordinary routine without special supervision; complete a
normal workday or workweek without interruptions from
psychologically based symptoms; interact appropriately with the
general public; appropriately accept instructions and criticism
from supervisors; respond appropriately to changes in the work
setting; and set realistic goals and make independent plans and
(2) that she was “not significantly limited” in her ability to
remember locations and work-like procedures; understand and
carry out very short and simple instructions; work in
coordination with or proximity to others without being
distracted by them; make simple work-related decisions; ask
simple questions or request assistance; get along with coworkers
without distracting them or exhibiting behavioral extremes;
maintain socially appropriate behavior and adhere to basic
standards of cleanliness; be aware of and take appropriate
precautions regarding normal hazards; and travel in unfamiliar
places or use public transportation. (R. 333-34.)
8
11
the general public, such person would be able to perform the
following jobs: vine pruner (1,052 jobs in the tri-state area);
mail clerk (6,228 jobs in the tri-state area); and table worker
(113 jobs in the region).
(R. 35-36.)
In response to questions asked by Plaintiff’s attorney,
Mr. Flomberg testified that Plaintiff would not be able to perform
these jobs if she had frequent anxiety attacks that incapacitated
her for a day at a time; had difficulty maintaining attention and
concentration fifty percent of the time; was unable to handle low
stress or simple tasks for fifty percent of the time; or if she
had trouble maintaining a regular schedule.
(R. 37-38.)
When
asked whether Plaintiff could work these jobs if she had any
difficulty interacting with people or supervisors at all, Mr.
Flomberg responded that vine pruners generally work alone and have
minimal contact with other people, while mail clerks and table
workers have occasional interaction with people.
II.
(R. 38.)
Decision of the ALJ
After reviewing all of the above evidence, the ALJ issued
his decision on June 16, 2011, finding that Plaintiff is not
disabled. (R. 10-17.) The ALJ concluded that while her “medically
determinable impairments could reasonably be expected to cause the
alleged symptoms[,] . . . [Plaintiff]’s statements concerning the
intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with [the ALJ’s]
12
functional capacity assessment.”
(R. 14.)
The ALJ also accorded
“extra weight” to “each and every opinion” provided by Dr. Liu
“given his expertise, treating relationship with the claimant and
familiarity with the claimant,” but accorded the most weight to
his
October
limited”
in
2009
assessment
performing
that
complex
Plaintiff
tasks,
was
maintaining
“moderately
attention,
sustaining an ordinary routine without supervision, interacting
with
the
public,
accepting
instruction
from
supervisors,
and
responding appropriately to changes in the work setting, finding
that this opinion “was most consistent with the entire medical
record.”
(R. 15.)
The ALJ gave less weight to Dr. Liu’s later
reports (which indicated that Plaintiff had poor or no ability to
function in some of these areas) because there was no explanation
by Dr. Liu for the change--her GAF remained constant and “he did
not report any deterioration in the claimant’s signs and symptoms.”
(R. 15.)
The ALJ found that, although Plaintiff was unable to
perform her past work as a cashier and purchasing agent because
these jobs required her to be in contact with others, her symptoms
did not prevent her from performing other unskilled, light exertion
work, such as employment as a vine pruner, a mail clerk, or a table
worker.
(R. 16.)
13
III. Additional Evidence Submitted to the Appeals Council
Subsequent to the June 16, 2011 ALJ decision, Plaintiff
submitted
additional
reports
by
Dr.
Liu
as
well
as
two
Biopsychosocial Summaries (“BPS”) prepared by Arborwecare in 2010.
A.
Dr. Liu’s Reports
On July 12, 2011, Dr. Liu completed another “Medical
Assessment of Ability to do Work Related Activities (Mental).”
(R. 349-52.)
could
not
In this Assessment, Dr. Liu concluded that Plaintiff
satisfactorily
perform
the
following
activities
independently, appropriately, and effectively on a sustained basis
in a regular work setting:
relate to co-workers, deal with the
public, deal with work stresses, function independently, maintain
attention and concentration, follow detailed job instructions,
behave in an emotionally stable manner, relate predictably in
social situations, and demonstrate reliability.
also
concluded
that
she
had
a
(R. 349-51.)
limited--i.e.,
less
satisfactory--ability to perform the following activities:
He
than
follow
work rules, use judgment, interact with supervisors, follow simple
job instructions, and maintain her personal appearance.
(R. 349-
51.)
Plaintiff also submitted to the Appeals Council three
additional reports prepared by Dr. Liu, dated February 22, 2011
(R. 383), February 24, 2011 (R. 377-78), and May 17, 2011 (R. 37576).
These reports were consistent with Dr. Liu’s prior findings
14
and indicated that Plaintiff was unable to return to work for at
least one year.
B.
(R. 376, 378.)
Arborwecare’s BPS Reports
The first BPS Report, completed on December 3, 2010,
included general intake information, which largely conforms to
Plaintiff’s testimony at the hearing.
the inconsistencies.
The Court will only note
Plaintiff reported that she had a mental
breakdown in 2007 after she lost her job and her husband left her,
and she was hospitalized for five days as a result.
(R. 367.)9
She further stated that she had no travel limitations (R. 358),
was laid off from her last job due to company downsizing (R. 361,
364), and was able to vacuum, make beds, groom and use the toilet
(R. 364).
Plaintiff stated that she was unable to wash dishes or
clothes, sweep/mop or shop for groceries.
(R. 364.)
Plaintiff was also examined by a physician, Dr. Dominick
Piacente, on this date.
Dr. Piacente diagnosed Plaintiff with
recurrent severe major depression without psychotic features and
deemed her “temporarily unemployable” with “significant impairment
of her vocational function.”
(R. 373.)
He determined that, with
proper treatment, her condition could potentially stabilize within
six months.
(R. 373.)
She also indicated that she was hospitalized for psychiatric
treatment again in 2009 and spent four days at Flushing
Hospital. (R. 367.)
9
15
A BPS Phase II Report was completed by Dr. Michael Gordon
after examining Plaintiff on December 9, 2010.
(R. 398-402.)
Dr.
Gordon observed that Plaintiff appeared neat and clean, her mood
was depressed, her affect was normal, she was cooperative, and her
thoughts were logical and of normal content.
including
poor
forgetfulness,
noted.
concentration,
irritability,
(R. 398-99.)
insomnia,
(R. 399.)
Symptoms
anxiety/fearfulness,
claustrophobia,
and
fatigue
were
According to Dr. Gordon’s assessment,
Plaintiff had mild difficulty following work rules and accepting
supervision and had moderate difficulty dealing with the public,
maintaining attention, relating to co-workers, adapting to change,
and adapting to stressful situations. (R. 400.) The report states
that Plaintiff’s “[d]epression and anxiety impairs concentration,
memory, persistence, motivation and frustration tolerance.”
400.)
(R.
However, Plaintiff was oriented to person and place and
remembered three objects after five minutes.
(R. 399-400.)
Dr.
Gordon’s diagnosis was also Major Depressive Disorder without
psychotic
features,
her
GAF
was
50,
and
his
treatment
recommendation was outpatient psychotherapy and antidepressant
medication.
(R. 400-01.)
In Dr. Gordon’s opinion, Plaintiff was
temporarily disabled from work but, with treatment, she would
likely be able to return to full time work in three months.
401.)
16
(R.
IV.
Decision of the Appeals Council
The Appeals Council denied Plaintiff’s appeal of the
ALJ’s determination, stating that they “found no reason under [the]
rules to review the Administrative Law Judge’s decision.”
(R. 1.)
Thus, the ALJ’s decision is considered the final decision of the
Commissioner.
(R. 1.)
DISCUSSION
Plaintiff commenced this action on May 8, 2012.
(Docket
Entry 1.) The Commissioner filed her Answer and the administrative
record on August 6, 2012.
(Docket Entries 10, 11.)
On December
7, 2012, the Commissioner moved for judgment on the pleadings
(Docket Entry 16), and on January 17, 2013, Plaintiff cross-moved
for judgment on the pleadings.
These motions are presently before
the Court.
I.
Standard of Review
In reviewing the ruling of the ALJ, this Court will not
determine
de
novo
disability benefits.
whether
Plaintiff
is
entitled
to
SSI
or
Thus, even if the Court may have reached a
different decision, it must not substitute its own judgment for
that of the ALJ.
1991).
See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.
Instead, this Court must determine whether the ALJ’s
findings are supported by “substantial evidence in the record as
a whole or are based on an erroneous legal standard.”
Curry v.
Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (internal quotations marks
17
and citation omitted), superseded by statute on other grounds, 20
C.F.R. § 404.1560(c)(2).
evidence
exists
to
If the Court finds that substantial
support
the
Commissioner’s
decision,
the
decision will be upheld, even if evidence to the contrary exists.
See Johnson v. Barnhart, 269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).
“Substantial evidence is such evidence that a reasonable mind might
accept
as
adequate
to
support
a
conclusion.”
Id.
(citing
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L.
Ed. 2d 842 (1971)).
The substantial evidence test applies not
only to the ALJ’s findings of fact, but also to any inferences and
conclusions of law drawn from such facts.
See id.
To determine if substantial evidence exists to support
the ALJ’s findings, this Court must “examine the entire record,
including
contradictory
evidence
and
conflicting inferences may be drawn.”
evidence
from
which
See Brown v. Apfel, 174
F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation
omitted).
“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be
conclusive . . . .”
II.
42 U.S.C. § 405(g).
Eligibility for Benefits
A claimant must be disabled within the meaning of the
Social Security Act (the “Act”) to receive SSI or disability
benefits.
See Byam v. Barnhart, 336 F.3d 172, 175 (2d Cir. 2003);
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); 42 U.S.C.
18
§§ 423(a)(1)(A), 1381a.
A claimant is disabled under the Act when
he can show an inability “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for
a continuous period of not less than 12 months.”
§§ 423(d)(1)(A),
1382c(a)(3)(A).
42 U.S.C.
The claimant’s impairment must
be of “such severity that he is not only unable to do his previous
work
but
cannot,
considering
his
age,
education,
and
work
experience, engage in any other kind of substantial gainful work
which
exists
in
the
national
economy
.
.
.
.”
Id.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Petrie
v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011).
First, the
claimant must not be engaged in “substantial gainful activity.”
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, the
claimant must prove that she suffers from a severe impairment that
significantly limits her mental or physical ability to do basic
work activities.
Id. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii).
Third, the claimant must show that her impairment is equivalent to
one of the impairments listed in Appendix 1 of the Regulations.
Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
Fourth, if her
impairment or its equivalent is not listed in the Appendix, the
19
claimant must show that she does not have the residual functional
capacity to perform tasks required in his previous employment.
Id.
§§
404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth,
if
the
claimant successfully makes these showings, the Commissioner must
determine if there is any other work within the national economy
that the claimant is able to perform.
Id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). The claimant has the burden of proving the first
four steps of the analysis, while the Commissioner carries the
burden of proof for the last step.
See Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999); Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir.
2009).
“In
making
the
required
determinations,
the
Commissioner must consider: (1) the objective medical facts; (2)
the medical opinions of the examining or treating physicians; (3)
the subjective evidence of the claimant’s symptoms submitted by
the claimant, his family, and others; and (4) the claimant’s
educational background, age, and work experience.”
Boryk
v.
Barnhart,
No.
02–CV–2465,
2003
WL
Boryk ex rel.
22170596,
at
*8
(E.D.N.Y. Sept. 17, 2003) (citing Carroll v. Sec’y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
In
the
present
case,
the
ALJ
performed
the
above
analysis, and his conclusions as to the first three steps do not
appear to be in dispute.
He found that Plaintiff had not been
engaged in substantial gainful activity since November 30, 2007
and that her condition constituted a severe impairment that limited
20
her capacity to work.
(R. 12.)
The ALJ next determined that
neither Plaintiff’s impairments nor a medical equivalent was among
those enumerated in Appendix 1 and then proceeded to determine
whether Plaintiff retained the residual functional capacity to
perform her past work.
(R. 13-15.)
The ALJ found that although
Plaintiff was not capable of performing her past work, she had the
residual functional capacity to perform simple, unskilled work
with limited contact with others.
(R. 14, 16.)
The Court must determine whether this final decision is
supported by substantial evidence.
With respect to the
new
evidence submitted to the Appeals Council, it is deemed part of
the record and will be considered by the Court when determining if
there is substantial evidence to support the Commissioner’s final
decision.
See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)
(“When the Appeals Council denies review after considering new
evidence, we simply review the entire administrative record, which
includes the new evidence, and determine, as in every case, whether
there is substantial evidence to support the decision of the
Secretary.”).
Here, Plaintiff argues that the ALJ erred in finding
that Plaintiff could perform substantial gainful activity because
he: (1) gave more weight to Dr. Liu’s October 2009 opinion than
his
later
subjective
opinions
and
complaints
(2)
improperly
regarding
21
the
discounted
limiting
Plaintiff’s
effects
of
her
medical
condition.
The
Court
will
address
these
arguments
separately.
A.
Treating Physician Rule
Plaintiff argues that the ALJ improperly weighed the
evidence when he gave less weight to Dr. Liu’s later opinions.
The Court disagrees.
According to the “treating physician rule,” the medical
opinions and reports of a claimant’s treating physicians are to be
given “special evidentiary weight.”
Clark v. Comm’r of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998).
Specifically, the regulations
state:
Generally, we give more weight to opinions
from your treating sources . . . . If we find
that a treating source’s opinion on the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the
other substantial evidence in your case
record, we will give it controlling weight.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
When an ALJ does not
accord controlling weight to the medical opinion of a treating
physician, the ALJ “must consider various ‘factors’ to determine
how much weight to give to the opinion.”
Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004) (citation omitted); see also
Schnetzler v. Astrue, 533 F. Supp. 2d 272, 286 (E.D.N.Y. 2008).
Such factors include:
22
(1) the length of the treatment relationship
and frequency of the examination; (2) the
nature
and
extent
of
the
treatment
relationship; (3) the extent to which the
opinion is supported by medical and laboratory
findings; (4) the physician's consistency with
the record as a whole; and (5) whether the
physician is a specialist.
Schnetzler,
533
F.
Supp.
2d
at
286
(citing
20
C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2); Halloran, 362 F.3d at 32).
The
Court finds that the ALJ’s opinion is in accord with the treating
physician rule.
First, the “ultimate finding of whether a claimant is
disabled and cannot work” is reserved for the Commissioner.
Snell
v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“[T]he Social Security
Administration considers the data that physicians provide but
draws its own conclusions as to whether those data indicate
disability.”).
Plaintiff
was
Thus,
unable
that
to
Dr.
work
Liu
is
consistently
not
opined
determinative
and
that
was
appropriately given little weight by the ALJ.
Second, the ALJ clearly gave special evidentiary weight
to Dr. Liu’s assessments.
He specifically noted that he was
according “extra weight” to “each and every opinion provided by
[Dr. Liu] given his expertise, treating relationship with the
claimant and familiarity with the claimant” (R. 15), and such
reliance on Dr. Liu’s assessments is reflected in his opinion that
Plaintiff is limited to performing “simple, unskilled work with
23
limited contact with others” (R. 14).
Dr. Liu stated in both the
October 2009 “Psychiatric Assessment” and the March 2010 “Medical
Assessment” that Plaintiff had a “good”--i.e., satisfactory (see
R. 305)--ability to perform simple tasks (R. 307) and a “fair”-i.e., “seriously limited but not precluded” (see R. 305)--ability
to perform “detailed, but not complex” tasks (R. 307).
He also
noted repeatedly that Plaintiff had some difficulty relating to
others and maintaining socially appropriate behavior while at work
(R. 294, 303, 306) and that Plaintiff was incapable of working
independently and without supervision (R. 303, 306).
Third, and finally, contrary to Plaintiff’s assertion,
the ALJ did not “pick and choose from a medical opinion, using
only those parts that are favorable to a finding of nondisability”
(Pl. Mot. 14 (internal quotation marks and citation omitted)), but
rather appropriately discounted aspects of some of Dr. Liu’s later
assessments. An ALJ need not give deference to a treating source’s
opinion that is inconsistent with other substantial evidence.
Halloran, 362 F.3d at 32.
Here, the Court finds that the ALJ’s
decision to give less weight to Dr. Liu’s later, more restrictive
assessments of Plaintiff is supported by substantial evidence.
Specifically,
the
ALJ
noted
that,
although
Dr.
Liu’s
later
assessments generally reflected that Plaintiff’s mental condition
was more limiting than his earlier assessments, there was nothing
in
Dr.
Liu’s
reports
to
account
24
for
Plaintiff’s
allegedly
deteriorating
condition--i.e.,
Dr.
Liu
Plaintiff’s condition was worsening.
did
not
indicate
that
The ALJ’s observation is
supported by Plaintiff’s relatively constant GAF score (see R.
293, 301, 314 (reflecting a GAF range from approximately 51-60),
which itself reflects only a moderate limitation on Plaintiff’s
ability to work, see supra note 3.
Further, as noted by the ALJ,
some of Dr. Liu’s later assessments contain blatant contradictions
(compare R. 297 (March 2010 “Psychiatric Evaluation” indicating
that Plaintiff had no difficulty in cooperating with co-workers,
responding to supervisors, and responding to those in authority),
with R. 298 (same form indicating that Plaintiff is unable to
appropriately accept supervision); compare R. 315 (July 2010 form
indicating that Plaintiff’s memory was “intact”), with R. 317 (same
form indicating that Plaintiff’s memory was “poor”), and the Second
Circuit has stated that it is entirely appropriate to give a
treating physician’s opinion less weight when it is internally
inconsistent, see, e.g., Micheli v. Astrue, 501 F. App’x 26, 28
(2d Cir. 2012).
Accordingly,
the
Court
finds
that
the
ALJ
properly
applied the treating physician rule and that his decision to give
more weight to Dr. Liu’s October 2009 assessment was supported by
substantial evidence.10
Because the Court finds that the ALJ’s decision in this regard
is supported by substantial evidence, it rejects Plaintiff’s
10
25
B.
Plaintiff’s Credibility
Plaintiff also argues that the ALJ erred in finding that
Plaintiff was not credible.
The Court disagrees.
“It is the
function of the [Commissioner], not [the reviewing courts], to
resolve evidentiary conflicts and to appraise the credibility of
witnesses, including the claimant,” and the Court will uphold the
ALJ’s decision to discredit a claimant’s testimony so long as the
decision is supported by substantial evidence.
Aponte v. Sec’y,
Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)
(second alteration in original) (internal quotation marks and
citation omitted).
Here, Plaintiff’s testimony regarding the
limited effects of her condition was contradicted by other evidence
in the record (compare
R. 32 (Plaintiff testifying that the
prescribed medications made her “a little sleepy”), with R. 293,
313 (Dr. Liu indicating that Plaintiff had reported no side effects
of
the
prescribed
medications);
compare
R.
163-64
(Plaintiff
stating that she sometimes urinated on herself, did not always
shower or brush her teeth, and sometimes smelled), with R. 297,
315 (Dr. Liu indicating that Plaintiff did not have difficulty
with grooming and other personal hygiene)).
Such contradictions
constitute substantial evidence supporting the ALJ’s decision to
discount her testimony.
See, e.g., Vargas v. Astrue, No. 10-CV-
argument that the ALJ was required to further develop the
record.
26
6306, 2011 WL 2946371, at *15 (S.D.N.Y. July 20, 2011); Shriver v.
Astrue, No. 07-CV-2767, 2008 WL 4453420, at *2 (E.D.N.Y. Sept. 30,
2008).
C.
Consideration of Additional Evidence Submitted to the
Appeals Council
The Court has also reviewed the new evidence submitted
to the Appeals Council and finds that it is wholly consistent with
the record before the ALJ.
In fact, the new evidence reveals
additional inconsistencies in Plaintiff’s testimony.
For example,
Plaintiff testified that she was “let go” from her most recent job
because she had taken too much time off for medical reasons (R.
27); however, she informed Arborwecare that she had been laid off
due to company downsizing (R. 361, 364).
Further, Plaintiff
testified that she had never been hospitalized for psychiatric
treatment
(R.
Assessment,
31;
see
which
also
indicates
R.
294
that
(Dr.
Liu’s
Plaintiff
October
2009
never
been
had
hospitalized for psychiatric reasons)), whereas she reported to
Arborwecare
that
she
was
hospitalized
twice
for
psychiatric
treatment due to a mental breakdown in 2007 (R. 367).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion is DENIED,
the Commissioner’s motion is GRANTED, and the decision of the ALJ
is hereby AFFIRMED.
27
The Clerk of the Court is directed to amend the docket
to reflect that Carolyn W. Colvin is now the Acting Commissioner
of Social Security and to mark this matter CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
September 3, 2013
Central Islip, NY
28
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