Ohrnberger v. Colvin
Filing
15
ORDER denying 9 Motion for Judgment on the Pleadings; granting 11 Motion for Judgment on the Pleadings : Plaintiff's motion for judgment on the pleadings is denied, Defendant's cross-motion is granted, and the decision of the Commissioner is affirmed. The Clerk of the Court is directed to enter judgment in favor of defendant and to close this case. See attached Memorandum. Ordered by Judge Denis R. Hurley on 8/19/2016. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
CHARLES R. OHRNBERGER,
Plaintiff,
MEMORANDUM & ORDER
-against15-CV-2714 (DRH)
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
-------------------------------------------------------X
APPEARANCES:
ANTHONY MICHAEL CAMISA, P.C.
323 Willis Avenue
Mineola, New York 11501
By: Anthony Michael Camisa, Esq.
ROBERT L. CAPERS
UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK
Attorney for Defendant
271-A Cadman Plaza East
Brooklyn, New York 11201
By: Rachel Balaban, AUSA
HURLEY, Senior District Judge:
Plaintiff Charles Robert Ohrnberger ("Plaintiff") commenced this action pursuant to 42
U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social
Security (the "Commissioner" or "Defendant") which denied his claim for disability benefits.
Presently before the Court is plaintiff's motion and defendant's cross-motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reason discussed below,
plaintiff's motion is denied and defendant's motion is granted.
BACKGROUND
I.
Procedural Background
Plaintiff filed an application for disability benefits on July 18, 2012, alleging disability
due to bipolar disorder since March 28, 2012. (Tr. 25, 89-90, 110.)1 His application was denied
and he then requested a hearing. (Tr. 56-68.) On October 7, 2013, Plaintiff, who was represented
by counsel, appeared and testified at a hearing before ALJ April M. Wexler. (Tr. 37-52.) By
Notice of Decision-Unfavorable, dated October 24, 2013, ALJ Wexler denied plaintiff's claims
for disability. (Tr. 22-36.) Plaintiff appealed the October 24, 2013 decision and in support of
appeal submitted a letter of argument and additional medical evidence. (Tr. 136-38 & 232-36.)
On March 27, 2015, the Appeals Council denied review. (Tr. 1-6.) The ALJ's decision therefore
became the Commissioner's final decision. This action followed.
II.
Factual Background
A.
Non-Medical Evidence
Plaintiff was fifty-three years old at the time he testified at his administrative hearing. (Tr.
41.) He completed two years of college. (Tr. 42.) For thirty-two years he worked at Verizon as a
central office technician, which he described as "very high pressure." (Tr. 40, 42.) At Verizon,
Plaintiff worked from a desk in a disaster recovery center rerouting traffic, restoring Verizon's
network, and offering support on how to operate certain equipment. (Tr. 42.) He retired after
thirty-two years because the job became "overwhelming." (Tr. 43.) Plaintiff testified that the job
induced panic attacks, making it hard to work. Id. He took a lump sum from Verizon and does
not receive a pension. (Tr. 41). He did not contemplate getting a less stressful job after retirement
1
“Tr.” refers to the administrative record filed in this case.
2
because he was not sure he would be qualified to do much else. (Tr. 43.)
Plaintiff testified he lives with his wife of twenty-seven years and their eldest son. (Tr. 41,
46.) He spends a typical day "[m]aking the bed, doing [his] laundry, watching a lot of television .
. . [r]unning errands, [and] shopping." (Tr. 45.) He cooks, drives daily, and, on special occasions,
socializes with his wife's friends. (Tr. 46, 120.) He does not have friends of his own because his
disorder makes keeping friends difficult. (Tr. 46.) He has attempted suicide twice, once about
1995 and again about 2008. (Tr. 47.) He stated he has been fairly stable for the past five years
(Tr. 48); his condition was “under control with medication” but if he works “the stress aggravates
it” and he becomes depressed or maniac. (Tr. 45.) Plaintiff's attorney pointed out that Plaintiff
was "suspended [from Verizon] on approximately five to six occasions due to side effects . . .
from his disease." (Tr. 40.)
In a prior written statement dated September 24, 2012, Plaintiff complained of trouble
sleeping through the night without medicine and that he sometimes needs to be reminded to
bathe. (Tr. 118-19.) Plaintiff also stated he is easily distracted, but is able to finish what he starts
and follow spoken and written instructions. Additionally, he has no problem getting along with
authority figures, such as bosses, and has never lost a job because of problems getting along with
people. (Tr. 124.)
Robert D'Amillo, a vocational expert, testified at the hearing about a hypothetical
individual with the same age, education, and past work as Plaintiff. (Tr. 49.) The hypothetical
individual was limited to low stress jobs, meaning no work at a fixed production, with work
checked at the end of the workday or workweek, rather than hourly or throughout the day. (Tr.
49-50.) D'Amillo opined that the hypothetical individual could not perform Plaintiff's past work,
3
but could perform other types of jobs in the economy such as working as a microfilm mounter, a
document prep worker, or a bagger. (Tr. 49.) He also testified that, should the hypothetical
worker be off task 15 percent of the workday, he or she could not perform any job in the local or
national economy. (Tr. 50.)
B.
Medical Evidence - Treating Sources
Dr. Gennaro P. Ingenito, M.D.
On October 28, 2002, Plaintiff began seeing his initial psychiatrist, Dr. Ingenito. (Tr.
141-42.) Plaintiff's chief complaint was that he was suffering from depression for most of his
life. Id. Dr. Ingenito noted Plaintiff had several hospitalizations, one as a result of a suicide
attempt. Id. Dr. Ingenito treated Plaintiff for his psychiatric issues for the next ten years, until Dr.
Ingenito retired. (Tr. 141-170.) However, after the alleged onset date, Dr. Ingenito only had two
contacts with Plaintiff. (Tr. 137, 170.) On April 19, 2012, Plaintiff informed Dr. Ingenito that he
had retired from his job at Verizon and was prescribed Abilify, Wellbutrin, Lamictal, and
Trazodone (Tr. 170.) On August 7, 2012, Plaintiff phoned Dr. Ingenito requesting his medical
records be released for purposes of these proceedings. Id.
Dr. Nancy Tice, D.O.
On January 30, 2013, Plaintiff began seeing Nancy Tice, D.O. (Tr. 196-99.) Dr. Tice
noted Plaintiff's lengthy psychiatric history, beginning on September 7, 1987, when Plaintiff
suffered an aneurysm burst causing a traumatic cerebral hemorrhage (Tr. 196.) Currently,
"[plaintiff] has no cognitive deficits from the injury." Id. Dr. Tice made note of three total suicide
attempts, all which occurred after the aneurysm burst but before the alleged onset date. Id. In the
first attempt, Plaintiff purposely ran his car off the Northern State Parkway into trees. Id. Next,
4
Plaintiff was preparing to jump off the Manhattan Bridge but was talked down by a nurse. Id. In
his third attempt, Plaintiff was hospitalized for attempting to hang himself. Id. At age
thirty-three, about six years after the aneurysm burst, Plaintiff was diagnosed with depression.
(Tr. 197.) Dr. Tice also noted Plaintiff's psychiatric history before the aneurysm burst. Id. As a
teenager, Plaintiff suffered from bulimia disorder. Id. He would vomit daily after eating a large
dinner, but stopped this behavior at age nineteen. Id. He then became very active. Id.
Dr. Tice’s notes state that Plaintiff "has been stable for five years now" and listed the four
medications he was currently prescribed: Abilify, Wellbutrin, Tradazone, and Lamictal. They
also state that although Hurricane Sandy destroyed the first floor of his house, the stress of the
hurricane damage did not cause a setback. Dr. Tice diagnosed Plaintiff with bipolar type 1
disorder, most recent episode mixed, in full remission. On mental status examination, Dr. Tice
stated that Plaintiff presented "as calm, friendly, attentive, casually groomed, overweight, and
relaxed." Plaintiff's mood presented as normal, with his affect appropriate, full range, and
congruent with mood. There were "no apparent signs of hallucinations, delusions, bizarre
behaviors, or other indicators of psychotic process." All associations were intact, thinking was
logical, and thought content was appropriate. Plaintiff did not appear suicidal. His cognitive
functioning was "intact and age appropriate." Plaintiff's short and long term memory were intact,
he was fully oriented, his vocabulary and knowledge were within the normal range, his social
judgment was intact and there were no signs of anxiety, hyperactive difficulties, or attention
difficulties. Overall, Plaintiff "was cooperative and attentive with no gross behavioral
abnormalities." Dr. Tice summed up the visit as, "52 year old man bipolar disorder multiple
hospitalizations now stable on medication seeks treatment because his psychiatrist is retiring."
5
Dr. Tice assessed a Global Assessment of Functioning (GAF) score of 60.2 (Tr. 196-99.)
After missing his second appointment, Plaintiff next saw Dr. Tice on April 3, 2013 after
being reminded of the appointment. He had stopped taking his medication, except for Wellbutrin,
had been overeating and gained weight, had bitten his nails down very short, and was financially
stressed because of house renovations made necessary by Hurricane Sandy. He did take a trip to
Arizona which he enjoyed. Plaintiff denied being inattentive, impulsive, disorganized, or having
any other symptoms of ADHD. He did not describe any symptoms of anxiety, depression, mania,
bulimia or other eating disorders. His mental status examination was unchanged, except that his
mood could not be assessed. Dr. Tice repeated her diagnosis of bipolar I disorder, most recent
episode mixed, in full remission, with a GAF score of 60. Dr. Tice "STRONGLY
ENCOURAGED" Plaintiff to restart Abilify, Lamictal, and Tradazone, but to lower the
Tradazone dose so Plaintiff would no longer feel sedated. (Tr. 200-01.)
On April 12, 2013, Dr. Tice filled out a Mental Residual Functional Capacity
Questionnaire. She wrote that Plaintiff is seen monthly for supportive therapy and medication,
that Plaintiff responds well when he is compliant, and has a history of "severe" bipolar disorder
with multiple hospitalizations and suicide attempts, now mixed compliance with medication.
2
GAF was a score that indicates a clinician's overall assessment of an individual's
psychological, social, and occupational functioning at the time of the evaluation. Petrie v. Astrue,
412 Fed. App'x 401, 406 n.2 (2d Cir. 2011) (summary order) (citing American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 376-77 (4th ed.,
text revision, 2000)). A GAF score of 51-60 was used to indicate moderate symptoms or
moderate difficulty in social, occupational, or school functioning. DSM-IV at 34. A GAF score
of 61-70 was used to indicate some mild symptoms or some difficulty in social, occupational, or
school functioning, but generally functioning. In 2013, the American Psychiatric Acssociation
dropped the use of the FAG scale noting its ‘conceptual lack of clarity” and “questionable
psychometrics in routine practice.” American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (DSM V) (5th ed. 2013).
6
Plaintiff's prognosis was "guarded." Dr. Tice identified Plaintiff's symptoms to include appetite
disturbance with weight change, impairment in impulse control, mood disturbance, difficulty
thinking or concentrating, persistent disturbances of mood or affect, psychological or behavioral
abnormalities associated with a dysfunction of the brain with a specific organic factor judged to
be etiologically related to the abnormal mental state and loss of previously acquired functional
abilities, and bipolar disorder with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes. As to the mental capability to
perform work-related activities on a day-to-day basis in a regular work setting, Dr. Tice opined
that Plaintiff was seriously limited3 in remembering work-like procedures, understanding and
remembering very short and simple instructions, asking simple questions or requesting
assistance, and being aware of normal hazards and taking appropriate procedures. She further
opined that Plaintiff was unable to meet competitive standards4 in the following areas: carrying
out very short and simple instructions, performing at a consistent pace without an unreasonable
number and length of rest periods, accepting instructions and responding appropriately to
criticism from supervisors, getting along with co-workers or peers without unduly distracting
them or exhibiting behavioral extremes, responding appropriately to changes in a routine work
setting, understanding and remember detailed instructions, carrying out detailed instructions,
setting realistic goals or making plans independently of others, maintaining socially appropriate
behavior, adhering to basic standards of neatness and cleanliness, and traveling in unfamiliar
3
“Seriously limited” means the ability to function in a particular area is seriously limited
and less than satisfactory, but not precluded in all circumstances. Tr. 205.
4
“Unable to meet competitive standards” refers to not able to perform an activity
appropriately, effectively, and on a sustained basis in a regular work setting. Tr. 205.
7
places. Lastly, Dr. Tice opined that Plaintiff has no useful ability to function in the following
areas: maintaining attention for two hour segment, maintaining regular attendance and being
punctual with customary work expectations, sustaining an ordinary routine without special
supervision, working in coordination with or proximity to others without being unduly distracted,
making simple work-related decisions, completing a normal workday and workweek without
interruptions from psychologically based symptoms, dealing with normal work stress, dealing
with stress of semiskilled and skilled work, and using public transportation. Dr. Tice handwrote
that Plaintiff's "physical and psychological illness makes being able to do any kind of work
impossible," and "[t]he stress of the work and rules and standards will likely put [Plaintiff] back
in the hospital." (Tr. 204-07.)
Plaintiff next saw Dr. Tice on July 18, 2013. The appointment focused on Plaintiff's
frustration with problems relating to the renovation of his home and the pressure he was feeling
from his family. Plaintiff expressed feelings of sadness as he was not able to go out and enjoy his
birthday or the Fourth of July, and had spent a couple of days spontaneously crying. Dr. Tice's
mental status examination findings were largely the same as prior examinations. Her diagnosis
and assessment were unchanged. She noted that Plaintiff never started Lamictal and was not
taking the Trazadone, but was stable on Wellbutrin and Abilify. (Tr. 212-14.)
By letter dated October 8, 2013, Dr. Tice clarified her use of the word "remission" in her
January 30, 2013 evaluation of Plaintiff. At the time of her January 30 appointment with
Plaintiff, Plaintiff was neither actively manic or depressive, but, over the course of their time
together, Plaintiff had periods of "exacerbation." Dr. Tice stated "[t]he only reason [Plaintiff[ is
able to function as well as he does is because his daily life is free from avoidable stress such as
8
the pressure of a job," and "[h]is working in any capacity will put his health in jeopardy." Tr.
215.
Subsequent to the ALJ’s decision, plaintiff submitted additional progress notes from Dr.
Tice dated October 30, 2013, November 27, 2013, December 23, 2013, February 12, 2014,
February 26, 2014, March 26, 2014 and April 4, 2014, as well as another Mental Residual
Functional Capacity Questionnaire (Tr. 232-36). The February 12, 2014 notes indicate that
plaintiff has signs of mild depression (Tr. 223) and the March 26, 2014 and April 4, 2016 notes
indicated he had signs of moderate depression (Tr. 227, 229.). In the remaining notes, Dr. Tice
observed that plaintiff was doing well with no signs of depression or manic process. (Tr. 216,
218, 220, 225.)
C.
Consultative Medical Evidence
Dr. Paul Herman, Ph.D.
On October 3, 2012, Plaintiff underwent an Administration-requested psychiatric
evaluation conducted by Dr. Paul Herman, Ph.D. (Tr. 171-74.) Dr. Herman initially noted that
Plaintiff is a 52-year old married male who lives with his spouse and three children. He has two
years of college, and worked for thirty-two years as a central office technician retiring primarily
due to medical issues. Dr. Herman further noted that Plaintiff reported being hospitalized for
psychiatric reasons on three occasions from 1995-2008, that he had been in intermittent
outpatient treatment since 1995, and is currently seeing a psychiatrist and prescribed Abilify,
Wellbutrin, Lamictal, and Trazodone. Plaintiff reported that currently he has difficulty falling
asleep, and wakes up several times throughout the night. He had increased appetite, which is
usually an indication that he is starting to get depressed. Plaintiff's last significant depressive
9
episode was in 2008, and his last manic episode was about eight years ago. Plaintiff's manic
episodes include decreased sleep, erratic behavior, disorganized poor judgment, risky sexual
encounters, piercings, and spending a lot of money. Plaintiff's depressive episodes include erratic
sleep pattern, low mood, and decreased functional activity. The medication Plaintiff was
prescribed is somewhat helpful in these areas. Plaintiff has a family history of mental illness and
substance abuse. (Tr. 171-72.)
On mental status examination, Plaintiff was found to be cooperative with adequate social
skills. He was adequately groomed and his posture, behavior, and eye contact were all within
normal limits. His speech and language were also within normal limits. Thought processes were
coherent and goal directed with no evidence of hallucinations, delusions, or paranoia. His mood
was neutral and his affect was appropriate; he was oriented and his attention and concentration
were intact. Plaintiff's recent memory skills were mixed, but his remote memory skills were
intact. His cognitive functioning was appropriate. Dr. Herman rated Plaintiff's insight and
judgment as fair, with the possibility of ranging to poor. Tr. 172-73.
Dr. Herman stated that Plaintiff reported no significant difficulties with activities of daily
living related to psychological or psychiatric issues, but medical issues could interfere in this
area. Dr. Herman also noted that Plaintiff does not have friends, but has good family
relationships. Plaintiff regularly watches television, spends time with his family, and helps out
around the house when his medical issues so permitted him. Tr. 173.
Dr. Herman opined that Plaintiff appeared capable of the following vocational functions:
following and understanding simple directions and instructions, performing simple tasks,
maintaining attention and concentration, maintain a regular schedule, learning new tasks,
10
performing complex tasks with which he is familiar, making appropriate decisions, relating
adequately with others, and appropriately dealing with others and with stress. Dr. Herman stated
that "the results of the examination appear to be consistent with psychiatric problems, but in and
of themselves, they do not appear to be significant enough to interfere with the claimant's ability
to function on a daily basis." Dr. Herman diagnosed Plaintiff with bipolar I disorder in remission
with medication. He recommended that Plaintiff continue with psychiatric treatment and stated
that Plaintiff might benefit from medical follow-up and vocational training and needs assistance
to manage funds when manic symptoms are present. Tr. 173-74.
R. Mcclintock, Psychiatry5
On October 17, 2012, a Psychiatric Review Technique was completed by medical
consultant R. Mcclintock, Psychiatry. After reviewing Plaintiff's records, Mcclintock stated that
Plaintiff has bipolar I disorder in sustained remission, and that the impairment was not severe.
Mcclintock opined that Plaintiff has no restriction of activities of daily living, no difficulties in
maintaining social functioning, concentration, persistence, or pace, and no repeated episodes of
extended deterioration. Mcclintock stated that Plaintiff's retirement from Verizon was in no way
related to his bipolar disorder. He concluded that there was no evidence of any psych-related
functional limitations in Plaintiff's records. (Tr. 175-90.)
DISCUSSION
I.
Standard of Review
A.
Review of the ALJ's Decision
In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and
5
While the nature of Mcclintock’s qualifications are not further described in the record,
neither party has questioned them.
11
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing." 42
U.S.C. § 405(g). The Court may set aside a determination of the ALJ only if it is "based upon
legal error or is not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999) (internal quotation marks and citation omitted). "Substantial evidence is ‘more than a
mere scintilla,' and is ‘such relevant evidence as [a] reasonable mind might accept as adequate to
support a conclusion.'" Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Furthermore, the findings of the
Commissioner as to any fact, if supported by substantial evidence, are conclusive, 42 U.S.C. §
405(g), and thus, the reviewing court does not decide the case de novo. Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004) (internal quotation marks and citation omitted). Thus the only
issue before the Court is whether the ALJ's finding that Plaintiff was not eligible for disability
benefits was "based on legal error or is not supported by substantial evidence." Rosa, 168 F.3d at
77.
B.
Eligibility for Disability Benefits
1.
The Five-Step Analysis of Disability Claims
To be eligible for disability benefits under the Social Security Act (the "SSA"), a claimant
must establish that he is unable "to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). The SSA further states that this impairment must be "of
such severity that [the claimant] is not only unable to do his previous work but cannot,
12
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).
The SSA has promulgated regulations prescribing a five-step analysis for evaluating
disability claims. See 20 C.F.R. § 404.1520. This Circuit has described the procedure as
follows:
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 . . . . 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 his 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.
Rosa, 168 F.3d at 77 (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam)). The claimant bears the burden of proof at steps one through four, while the burden
shifts to the Commissioner at step five to show that the claimant is capable of working.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
2.
The “Special Technique” for Evaluation of Mental Impairments
The SSA “has promulgated additional regulations governing the evaluation . . . of the
severity of mental impairments,” that should be applied “at the second and third steps of the fivestep framework . . . .” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008). This “special
technique” requires “the reviewing authority to determine first whether the claimant has a
13
medically determinable mental impairment, [and if] there is such impairment, the reviewing
authority must rate the degree of functional limitation resulting from the impairment(s) in
accordance with paragraph C of the regulations, which specifies four broad functional areas: (1)
activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4)
episodes of decompensation.” Id. (internal citations omitted); see also 20 C.F.R. § 404.1520a(b),
(c). “[I]f the degree of limitation in each of the first three areas is rated ‘mild or better, and no
episodes of decompensation are identified . . . the reviewing authority . . . will conclude that the
claimant's mental impairment is not severe’ and will deny benefits.” Kohler, 546 F.3d at 266
(citing 20 C.F.R. § 404.1520a(d)(1)). However, if claimant's mental impairment or combination
of impairments is severe, “in order to determine whether the impairment meets or is equivalent in
severity to any listed mental disorder,” the reviewing authority must “first compare the relevant
medical findings [along with] the functional limitation rating to the criteria of listed mental
disorders.” Id. (citing § 404.1520a(d)(2)). If the mental impairment is equally severe to a listed
mental disorder, the “claimant will be found to be disabled.” Id. “If not, the reviewing authority
[must then] assess” plaintiff's RFC. Id. (citing 20 C.F.R. § 404.1520a(d)(3)).
C.
The Treating Physician Rule
Social Security regulations require that an ALJ give "controlling weight" to the medical
opinion of an applicant's treating physician so long as that opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa,
168 F.3d at 78-79. The "treating physician rule" does not apply, however, when the treating
physician's opinion is inconsistent with the other substantial evidence in the record, "such as the
14
opinions of other medical experts." Halloran, 362 F.3d at 32; see also Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002). When the treating physician's opinion is not given controlling
weight, the ALJ "must consider various ‘factors' to determine how much weight to give to the
opinion." Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)). These factors include:
(1) the length, nature and extent of the treatment relationship; (2) the evidence in support of the
treating physician's opinion; (3) consistency of the opinion with the entirety of the record; (4)
whether the treating physician is a specialist; and (5) other factors that are brought to the
attention of the Social Security Administration that tend to support or contradict the opinion. Id.
§ 404.1527(d)(2)(I-ii) & (d)(3-6); see also Halloran, 362 F.3d at 32. Furthermore, when giving
the treating physician's opinion less than controlling weight, the ALJ must provide the claimant
with good reasons for doing so. 20 C.F.R. § 404.1527(d)(2).
In addition, it is clearly stated law in the Second Circuit that "while a treating physician's
retrospective diagnosis is not conclusive, it is entitled to controlling weight unless it is
contradicted by other medical evidence or ‘overwhelmingly compelling' non-medical evidence."
Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003) (emphasis added); see also Rivera v.
Sullivan, 923 F.2d 964 (2d Cir. 1991) (reviewing Second Circuit law on retrospective diagnosis
and reversing denial of benefits where retrospective diagnosis of treating physician not given
sufficient weight with regard to degenerative condition).
Finally, the ALJ may not reject the treating physician's conclusions based solely on
inconsistency or lack of clear findings without first attempting to fill the gaps in the
administrative record. Rosa, 168 F.3d at 79. "It is the rule in our circuit that ‘the ALJ, unlike a
judge in a trial, must . . . affirmatively develop the record' in light of ‘the essentially
15
non-adversarial nature of a benefits proceeding,'" even if the claimant is represented by counsel.
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria v. Secretary of HHS, 685
F.2d 751, 755 (2d Cir. 1982)); see also Butts v. Barhart, 388 F.3d 377, 386 (2d Cir. 2004) ("‘It is
the ALJ's duty to investigate and develop the facts and develop the arguments both for and
against the granting of benefits.'") (quoting Seavey v. Barnhart, 276 F.3d 1, 8 (1st Cir. 2001)),
amended on other grounds on rehearing, 416 F.3d 101 (2d Cir. 2005). Specifically, this duty
requires the Commissioner to "seek additional evidence or clarification" from the claimant's
treating sources when their reports "contain[ ] a conflict or ambiguity that must be resolved" or
their reports are "inadequate for [the Commissioner] to determine whether [claimant] is
disabled." 20 C.F.R. §§ 404.1512(e), (e)(1). The Commissioner "may do this by requesting
copies of [the claimant's] medical source's records, a new report, or a more detailed report from
[the claimant's] medical source." Id. § 404.1512(e)(1). The only exception to this requirement is
where the Commissioner "know[s] from past experience that the source either cannot or will not
provide the necessary findings." Id. § 404.1512(e)(2). If the information obtained from the
claimant's medical sources is not sufficient to make a disability determination, or the
Commissioner is unable to seek clarification from treating sources, the Commissioner will ask
the claimant to attend one or more consultative evaluations. Id. § 404.1512(f).
II.
The ALJ's Decision
Applying the five-step analysis enumerated in 20 C.F.R. § 404.1520, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since his alleged onset date of March, 28,
2012. (Tr. 27.) Proceeding to step two, the ALJ determined that Plaintiff has the following severe
impairment: bipolar disorder. Id. At step three, the ALJ concluded that Plaintiff did not have an
16
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. 28.) The ALJ determined
that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at
all exertional levels, with the following non-exertional limitations: Plaintiff is limited to low
stress jobs, which means no work at fixed production rate pace, with work that is checked at the
end of the workday or workweek rather than hourly or throughout the day. (Tr. 28.) In reaching
this conclusion, the ALJ gave "no weight" to Dr. Tice's opinions because of "the remarkable lack
of support in treatment records (and, in fact, an exceptional degree of contradiction by [Dr.
Tice's] records.)" (Tr. 28.) The ALJ gave "considerable weight" to Dr. Herman's, opinion because
Dr. Herman's assessment was "well-supported by clinical findings including the claimant's
admission that his psychological problems do not impact his activities of daily living and that it
has been many years since a depressive episode and even longer since a manic episode." (Tr. 32.)
Although Plaintiff's medically determinable impairment could reasonably be expected to cause
the alleged symptoms, the ALJ found Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of these symptoms were “not entirely credible.” (Tr. 32.) The ALJ
determined that Plaintiff’s testimony and prior statements about his daily living and mental
capacities were “diametrically opposed to his assertion of mental incapacity that renders him
unable to function in a work setting.” (Tr. 30.) The ALJ thoroughly reviewed Plaintiff’s medical
records with Dr. Tice, Dr. Herman, and even Dr. Ingenito. (Tr. 30-2.) At step four, the ALJ
accepted Plaintiff’s testimony that his past job was too stressful for him and accordingly found
that Plaintiff was unable to perform any past relevant work. (Tr. 33.) At step five the ALJ
determined that considering Plaintiff’s age, education, work experience, and residual functional
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capacity, jobs exist in the national economy that Plaintiff can perform and thus found that
Plaintiff was not disabled. (Tr. 33.)
III.
Summary of Arguments
Plaintiff contends that the Commissioner's decision should be vacated because the ALJ
failed to follow the Treating Physician Rule, and because there is no substantial evidence
supporting the ALJ's RFC finding. (Pl. Mem. in Supp. at 1; 17.) Plaintiff claims that the ALJ
"made no attempt to assess the requisite factors [outlined in 20 C.F.R. § 404.1527(c)] to
determine how much weight to give Dr. Tice's opinion." (Pl. Mem. in Supp. at 14.) Plaintiff also
points out the ALJ's failure to mention Dr. Tice's October 8, 2013 letter and to discuss the weight
afforded to Dr. Ignenito’s opinion in her decision. (Pl. Mem. in Supp. at 15-16.) Next, Plaintiff
argues that the ALJ failed to cite any evidence of record for her finding that Plaintiff's statements
concerning his symptoms are not entirely credible, and thus the ALJ's credibility determination
should be reversed. (Pl. Mem. in Supp. at 17.) Lastly, Plaintiff contends that the ALJ incorrectly
included the vocational expert's response to an underinclusive hypothetical question as
substantial evidence.
Defendant argues that the ALJ correctly weighed the treating physician opinion, pointing
to several sentences in the decision that discuss the 20 C.F.R. § 404.1527(c) factors. (Def. Mem.
in Opp. at 14-15.) Defendant asserts that, despite Plaintiff's implication that no mention was
made of the weight afforded to Dr. Ingenito's opinion, the ALJ did in fact consider and discuss
this. (Def. Mem. in Opp. at 16.) Defendant also argues that the ALJ's credibility analysis of
Plaintiff was not flawed because the ALJ considered several of the factors stated in 20 C.F.R. §
404.1529(c) and identified specific record-based reasons for her decision. (Def. Mem. in Opp. at
18
18.) Lastly, Defendant argues that, because the ALJ's hypothetical question matched her RFC
finding, the vocational expert's response was substantial evidence. (Def. Mem. in Opp. at 19.)
IV.
Application of Governing Law to the Present Facts
Although the treating physician rule generally requires that the treating physician's
opinion be accorded controlling weight, this does not apply when, as here, the treating physician
has issued opinions inconsistent with other substantial evidence in the record. Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Despite Plaintiff's belief otherwise, the record supports
the ALJ’s conclusions that Dr. Tice's opinion lacks support in the record. The ALJ carefully
considered the treating physician rule and the requisite factors, and gave record-based reasoning
for her conclusion. First, she explained the inconsistency of Dr. Tice's opinion "with the record as
a whole." Halloran, 462 F.3d at 32 (quoting 20 C.F.R. §404.1427(c)(4)). She also discussed the
relevant factors to determine what weight to give it, see 20 C.F.R. § 404.1527(c), and gave "good
reasons" for the weight given to the treating physician's opinion, see Kennedy v. Astrue, 343 F.
App'x 719, 722 (2d Cir. 2009); see also Halloran, 362 F.3d at 32-3.
The ALJ noted Plaintiff’s September 24, 2012 written statement in which he stated,
among other things, that he provides emotional support for his wife and three sons, prepares
meals on a regular basis, helps with all household chores, goes out all the time, has no difficulties
managing his finances, is able to finish what he starts can follow instructions and has no
problems with authority figures. (Tr. 29)
With respect to the undated note containing Dr. Tice’s opinion that “psychiatrically”
Plaintiff was “very impaired”, the ALJ noted the shortness of the relationship between Dr. Tice
and Plaintiff (viz. three visits) and the lack of support in the submited progress notes. Next, the
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ALJ next discussed three progress notes of Dr. Tice’s that had been submitted to her. Those notes
described Plaintiff as calm, friendly, attentive, fully orientated, and with no signs of either
depression or mood elevation. Dr. Tice’s opined that Plaintiff had normal insight into problems,
intact social judgment and cognitive functioning, and that his memory and ability to perform both
arithmetic and abstract calculations were intact. (Tr. 30-31.) Additionally, Dr. Tice gave Plaintiff
a GAF score of 60, indicative of only mild symptoms and or moderate difficulty in functioning.
(Tr. 31.) The considerations discussed by ALJ Wexler derive from the 20 C.F.R. § 404.1527(c)
factors and support her conclusion to give no weight to Dr. Tice's opinion. The law requires "no
such slavish recitation of each and every factor where the ALJ's reasoning and adherence to the
regulation are clear." Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (summary order); see
Brault, 683 F.3d 443, 448 (2d Cir. 2012) ("[a]n ALJ does not have to state on the record every
reason justifying a decision."). Here, it is clear that the ALJ adequately considered several of the
20 C.F.R. § 404.1527(c) factors, and did not "traverse[]" the substance of the treating physician
rule. Halloran, 362 F.3d at 32-33, see Rosier v. Colvin, 586 Fed. Appx. at 758 (ALJ properly
rejected treating physician's opinion where other substantial evidence in the record was
inconsistent with treating physician's opinion)
Moreover, Dr. Herman’s opinion provides substantial evidence for the ALJ’s decision.
The ALJ discussed Dr. Herman’s finding that Plaintiff was capable of following and
understanding simple directions and instructions, performing simple tasks, maintaining attention
and concentrating, and maintaining a regular schedule. (Tr. 32.) The ALJ directly quoted Dr.
Herman's conclusion that "the results of the examination . . . do not appear to be significant
enough to interfere with the claimant's ability to function on a daily basis." (Tr. 32.) In crediting
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Dr. Herman's opinion, the ALJ noted that his assessment was “well-supported” by “Plaintiff’s
admission that his psychological problems do not impact his activities of daily living and that it
has been many years since a depressive episode and even longer since a manic episode.” Tr. 32.
See Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993) (noting that the regulations “permit the
opinions of nonexamining sources to override treating sources' opinions, provided they are
supported by evidence in the record”); Punch v. Barnhart, 2002 WL 1033543, at *11–13
(S.D.N.Y. May 21, 2002) (where ALJ credited the opinion of a non-treating medical expert over
that of a treating physician for the stated reasons that the treating physician's opinion was “not
well supported by medically acceptable clinical and laboratory diagnostic techniques” and was
“inconsistent with the other substantial evidence” in the record, the ALJ was “following the
treating physician regulation rather than ignoring it,” as the plaintiff claimed).
Neither ALJ Wexler nor the Appeals Council erred by not referencing Dr. Tice's October
10, 2013 letter. Although this letter was written and received prior to the issuance of her decision
and she did not directly mention the letter in her decision, the letter does not afford a basis for
rejecting the ALJ's conclusion regarding the weight afforded to Dr. Tice's opinion. This is
especially true given the following except from the ALJ’s decision discussing correspondence
from Dr. Tice:
Dr. Nancy Tice, D.O. the aformentioned recent treating
psychiatrist, asserted in an undated note addressed “to whom it
may concern” that “psychiatrically Mr. Ohrnberger is very
impaired.” Dr. Tice declared that the claimant is “unable to work
responsibly or attend any kind of work related activity at this time”
because he lacks impulse control, is unable to “focus to deal with
the work environment: and “has difficulty with his activities of
daily living and would be unable to function in any employment
capacity.” . . . Similarly Dr. Tice indicated very severe limitations
of functional abilities in a questionnaire . . . including mood
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disturbance, difficulty thinking or concentrating, behavioral
abnormalities and severe limitations in virtually all vocationalrelated mental abilities. . . . However, progress notes show that Dr.
Tice only saw claimant on three occasions. She indicates that this
is evidence of severe mental capacity. She claims that the claimant
would have sought her out more often if he was mentally
competent. However, she is simply speculating and had no basis
for this assertion. The equally plausible explanation could be that
the claimant was true-to-his-word when he stated that he only
wished to begin a patient-doctor relationship to maintain his
prescriptions. (See Exhibit 6F, page 2). Moreover, the progress
notes are diametrically opposed to Dr. Tice’s assertion of near total
mental incapacity.
Tr. 30. The ALJ then went to thoroughly discuss the treatment notes of the three referenced
visits. With respect to the Appeals Council, it will consider new and material evidence that
relates to the period on or before the date of the ALJ's decision hearing, 20 C.F.R. § 404.970(b),
and it will only review the case if it subsequently finds that the ALJ's action, findings, or
conclusions are contrary to the weight of the evidence currently in the record, including the new
evidence. Id. Here, even with the October 10 letter in the record, the ALJ's action, findings, and
conclusions are not contrary to the weight of the record.
Additionally, despite Plaintiff's indication that the ALJ did not discuss the weight given to
Dr. Ingenito's opinion, ALJ Welxer stated, after analyzing Dr. Ingenitos's treatment records, that
there was "no documentation of symptoms or limitation by [Dr. Ingenito] since prior to the
alleged disability onset date." (Tr. 30.) Because Dr. Ingenito retired before Plaintiff's alleged
onset date, there was no relevant medical opinion by Dr. Ingenito for the ALJ to weigh.
Plaintiff's argument that the ALJ's RFC finding is not supported by substantial evidence is
equally unpersuasive. The ALJ found "that the claimant's medically determinable impairment
could reasonably be expected to cause the alleged symptoms; however, the claimant's statements
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concerning the intensity, persistence, and limiting effects of these symptoms are not entirely
credible." (Tr. 32.) Plaintiff argues that the ALJ did not consider the requisite factors, discussed
in Meadors v. Astrue, 370 F. App'x 179, 184 n.1 (2d Cir. 2010), when she made this decision. "It
is the role of the Commissioner, not the reviewing court, 'to resolve evidentiary conflicts and to
appraise the credibility of witnesses.'" Cichoki v. Astrue, 534 F. App'x 71, 75 (2d Cir. 2013)
(summary order) (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1983). "Accordingly, where the ALJ's decision to discredit a claimant's subjective complaints is
supported by substantial evidence, [the Court] must defer to [her] findings." Id. Here, the ALJ
properly identified specific record-based reasons for her credibility findings and discussed the 20
C.F.R. § 404.1529(c)(3) factors when doing so.
First, the ALJ discussed Plaintiff's specific daily activities. (Tr. 29.); see 20 C.F.R. §
404.1529(c)(3)(i). The ALJ noted that Plaintiff "spends his days making the bed, doing laundry,
watching television, cooking, and running errands," "reading, watching TV and movies, [and]
caring for the family dog." (Tr. 29.) Next, the ALJ discussed the precipitating and aggravating
factors of Plaintiff's disorder, noting that the stress of work caused the Plaintiff to experience
panic attacks. (Tr. 29); 20 C.F.R. § 404.1429(c)(3)(iii). As such, the ALJ limited Plaintiff to low
stress work in her RFC finding. (Tr. 32-33.) The ALJ next noted past medication Plaintiff had
been prescribed, such as Xanax, and the medication Plaintiff was currently taking, Wellbutrin
and Abilify. (Tr. 29.) The ALJ noted that Plaintiff "testified [Wellbutrin and Abilify] are working
well." (Tr. 29); 20 C.F.R. § 404.1429(c)(3)(iv). The ALJ additionally noted Plaintiff's past
treatment, other than medication, that he received from Dr. Ingenito and Dr. Tice. (Tr. 30-32); 20
C.F.R. § 404.1429(c)(3)(v). Thus, the ALJ considered several 20 C.F.R. § 404.1529(c) factors in
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making her credibility finding.
Plaintiff also claims that the ALJ misstated the credibility analysis as requiring a
claimant's assertions about his symptoms to be corroborated by objective evidence. (Pl. Mem. in
Supp. 17.) In fact, the ALJ correctly stated the credibility analysis at the outset of her RFC
determination. (Tr. 29.) There is no reason to believe that the ALJ did not follow her correctly
stated standard when making her credibility determination.
Lastly, Plaintiff argues that the vocational expert's testimony cannot construe substantial
evidence in support of the ALJ's decision because the ALJ's hypothetical question did not include
all of Plaintiff's impairments. (Pl. Mem. in Supp. at 18) However, because the ALJ's RFC finding
is supported by substantial evidence, and her hypothetical question precisely matched the RFC
finding, the ALJ did not err by considering the vocation expert's response substantial evidence.
(Tr. 49-50.)
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings is denied,
Defendant's cross-motion is granted, and the decision of the Commissioner is affirmed. The
Clerk of the Court is directed to enter judgment in favor of defendant and to close this case.
Dated: Central Islip, New York
August 19, 2016
/s/ Denis R. Hurley
Denis R. Hurley
United States District Judge
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