Romano v. Astrue

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Romano's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 2/6/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DEREK M. ROMANO,
Plaintiff,

1:12-cv-555
(GLS)

v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Drake, Loeb Law Firm
555 Hudson Valley Avenue
Suite 100
New Windsor, NY 12553
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

GARY J. GOGERTY, ESQ.

VERNON NORWOOD
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Derek M. Romano challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (See Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Romano’s arguments, the
court affirms the Commissioner’s decision and dismisses the Complaint.
II. Background
On August 8 and 14, 2008, Romano filed applications for DIB, SSI
and Child’s Insurance Benefits (CIB) under the Social Security Act (“the
Act”), alleging disability since June 14, 2008. (See Tr.1 at 53-55, 128-43.2)
After his applications were denied, Romano requested a hearing before an
Administrative Law Judge (ALJ), which was held on May 21, 2010. (See
id. at 28-52, 56-61, 64-65.) On August 27, 2010, the ALJ issued a decision
1

Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 10.)
2

The ALJ’s decision references CIB, while Romano’s Complaint
refers to DIB and SSI. (See Tr. at 15, 31, 128-34; Compl. ¶ 2.) The
distinction is ultimately immaterial, however, as the standard of review is
the same for all three. See Shaw v. Comm’n of Soc. Sec., No. 7:11-cv1463, 2013 WL 316616, at *1-2 (N.D.N.Y. Jan. 28, 2013).
2

denying the requested benefits, which became the Commissioner’s final
determination upon the Social Security Administration Appeals Council’s
denial of review. (See id. at 1-3, 10-23.)
Romano commenced the present action by filing a Complaint on
March 29, 2012, wherein he sought review of the Commissioner’s
determination. (See Compl. ¶¶ 1-7.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 9, 10.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 12, 14.)
III. Contentions
Romano contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence.3 (See generally
Dkt. No. 12.) Specifically, Romano claims the ALJ: (1) erred in assessing
his credibility; (2) rendered an inaccurate residual functional capacity (RFC)
determination; (3) afforded improper weight to the opinion of his treating

3

“Substantial evidence is defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (internal quotation marks and citations omitted).

3

physician; (4) incorrectly found that he could work without special
circumstances; and (5) failed to consult a vocational expert. (See Dkt. No.
12 at 6-23.) The Commissioner counters that the ALJ’s decision is legally
sound and supported by substantial evidence. (See generally Dkt. No. 14.)
IV. Facts
The evidence in this case is undisputed and the court adopts the
parties’ factual recitations. (See Dkt. No. 12 at 5-6; Dkt. No. 14 at 2-10.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)4 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process used by the
Commissioner in evaluating whether a claimant is disabled under the Act,
the court refers the parties to its previous opinion in Christiana v. Comm’r
of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Credibility Assessment

4

Review under 42 U.S.C. §§ 405(g) and 1383(c)(3) is identical. As
such, parallel citations to the Regulations governing SSI are omitted.
4

Romano first contends that the ALJ’s assessment of his credibility
was legally flawed and is factually unsupported. (See Dkt. No. 12 at 7-9.)
The Commissioner, and the court, disagree. (See Dkt. No. 14 at 19-21.)
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” she “must evaluate the intensity and persistence
of those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the ALJ
“must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 1996 WL 374186,
at *4 (July 2, 1996). Specifically, in addition to the objective medical
evidence, the ALJ must consider the following factors: “1) daily activities; 2)
location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV5

444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R. §§
404.1529(c)(3)(I)-(vi), 416.929(c)(3)(I)-(vi)).
Here, the ALJ found that Romano’s subjective complaints were not
credible to the extent that they were inconsistent with her RFC
determination. (See Tr. at 21.) In finding as much, the ALJ provided a
thorough explanation of the objective medical evidence that belied
Romano’s complaints. (See id. at 17-19, 21-22.) Additionally, the ALJ
noted that Romano is “fully independent in all aspects of his self-care,
including showering, grooming and dressing.” (Id. at 21.) Furthermore, he
is capable of, among other things, driving a car, cooking for himself and
managing his own finances, though he does not always do the latter
perfectly.5 (See id. at 21, 33, 44-45.) Romano is also able to socialize with
friends and family members, go to the movies, play video games and “surf
the web.” (Id. at 21, 43-45.) Collectively, this evidence not only
demonstrates that Romano’s claim that the ALJ “provides no rationale for
her determination” is untrue, (Dkt. No. 12 at 9), but also, more importantly,

5

Though Romano now claims that he cannot manage his money
without assistance as a result of his impairment, (see Dkt. No. 12 at 16),
he testified that in actuality, he only requires assistance because he
“usually spend[s] it on the wrong stuff,” (Tr. at 47).
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that she weighed the appropriate factors in assessing his credibility, see
Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999). As such, the
ALJ’s credibility assessment is conclusive.
B.

RFC Determination
Next, Romano avers that the ALJ’s RFC assessment is flawed and

unsupported by substantial evidence. (See Dkt. No. 12 at 9-13.) The
Commissioner counters that the RFC assessment is correct in all respects.
(See Dkt. No. 14 at 13-19.) The court agrees with the Commissioner.
A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ found that Romano could “perform a full range of work
at all exertional levels but with the following nonexertional limitations: a
limitation to work that is comprised of simple, rote tasks; as would generally
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be associated with unskilled jobs.” (Tr. at 20.) First, the court discerns no
material challenge to the physical RFC determination. (See Dkt. No. 12 at
9-13.) Notwithstanding Romano’s assertion that the ALJ improperly relied
on the state agency disability analyst’s opinion, (see id. at 12), the ALJ’s
opinion makes no mention of it whatsoever, (see Tr. at 15-23). Moreover,
none of the opinions of record place any restrictions on Romano’s physical
abilities. (See, e.g., id. at 15-23, 312-15; Dkt. No. 12 at 11); see also
Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (“The Secretary
is entitled to rely not only on what the record says, but also on what it does
not say.”). Thus, the ALJ’s physical RFC is affirmed.
With respect to Romano’s mental RFC, the ALJ relied on the opinions
of Drs. Brett T. Hartman, Alex Gindes and W. Skranovski. (See Tr. at 20;
Dkt. No. 14 at 15-17.) For example, Dr. Gindes opined that although
Romano had “cognitive problems,” they were not “significant enough to
interfere with [his] ability to function on a daily basis.” (Tr. at 316-19.)
Similarly, Dr. Skranovski found that Romano “is able to memorize and carry
out simple tasks, interact socially in a work setting and adapt to changes.”
(Id. at 344.) More specifically, he concluded that Romano had at most
moderate limitations in a few areas, but, by and large, showed no
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significant limitations or no evidence of a limitation in the majority of the
areas on the mental RFC assessment. (See id. at 342-44.) Finally, Dr.
Hartman concluded that Romano could “follow and understand simple
directions and instructions[;] . . . perform a variety of simple and rote
tasks[;] . . . has mild attention and concentration problems[; and] . . . has a
fair ability to maintain a regular schedule, . . . learn new tasks, and . . .
perform complex tasks independently.” (Id. at 302-06.) As all of these
opinions are at least consistent, if not less restrictive, then the ALJ’s RFC
determination, (compare Tr. at 20, with Tr. at 302-06, 316-19, 342-44), the
court rejects Romano’s argument that the mental RFC is unsupported by
substantial evidence.
C.

Treating Physician Rule
Romano’s contention that the ALJ gave improper weight to the

opinion of his treating physician, Dr. Francis Mayle III, is meritless. (See
Dkt. No. 12 at 13-16.) A treating physician’s opinion is entitled to
controlling weight if it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques,” and consistent “with the other
substantial evidence.” 20 C.F.R. § 404.1527(c)(2); see Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Here, Dr. Mayle’s April 2010
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assessment—the principal evidence Romano relies on in support of his
disability argument, (see Dkt. No. 12 at 10-11, 13-16, 21)—is not only
inconsistent with the opinions discussed above, which were rendered by
specialists,6 but is also irreconcilable with his earlier opinion of Romano’s
limitations, (compare Tr. at 274-76, with Tr. at 474-75). See 20 C.F.R. §
404.1527(c)(5) (stating that generally more weight is given “to the opinion
of a specialist about medical issues related to his or her area of specialty
than to the opinion of a source who is not a specialist”). Indeed, when
asked to clarify his 2010 opinion, Dr. Mayle did not reply. (See Tr. at 22,
198.) As such, the court discerns no error in the weight afforded to Dr.
Mayle’s opinion.
D.

Ability to Work
Romano’s fourth argument is essentially that he cannot work. (See

Dkt. No. 12 at 16-18.) However, the evidence discussed above belies this
argument. In addition, Romano admits that he has successfully maintained
employment with and without the assistance of a job coach, (see Tr. at 3440, 41-43), which is corroborated by the records from the Office of

6

Romano states that he has treated with Dr. Mayle since birth “for
all intents and purposes.” (Dkt. No. 12 at 15.)
10

Vocational and Educational Services for Individuals with Disabilities, (see
id. at 364-469). Although Romano attributes his difficulties maintaining
employment to his inability to concentrate, the record illustrates that his
troubles actually stem from “a disregard for working.” (Id. at 21.) As the
ALJ noted, Romano has been disciplined for: collecting his paycheck and
then calling out of work an hour later; punching in and immediately taking a
lunch break; and insubordination. (See id. at 21, 470-73.) Thus, Romano’s
argument that he is unable to work is, simply put, unpersuasive.
E.

Step Five Determination
Finally, Romano argues that the ALJ’s flawed RFC and credibility

findings factually undermine her step five determination, and that, as a
result, she erred by relying solely on the Medical-Vocational Guidelines and
failing to consult a vocational expert. (See Dkt. No. 12 at 18-23.) As
discussed above, however, the ALJ’s determinations in each of these
disputed areas is sound and supported by substantial evidence. Thus, it
was unnecessary to consult a vocational expert because the ALJ found
that Romano’s nonexertional limitations “ha[d] little or no effect on the

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occupational base of unskilled work.”7 (Tr. at 22-23.)
F.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Romano’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
February 6, 2013
Albany, New York

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Reliance on the Medical-Vocation Guidelines is improper “when a
claimant’s nonexertional impairments significantly diminish his ability to
work—over and above any incapacity caused solely from exertional
limitations—so that he is unable to perform the full range of employment
indicated by the” guidelines. Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir.
1986). Instead, where nonexertional impairments significantly diminish a
claimant’s ability to work, “the Secretary must introduce the testimony of a
vocational expert (or other similar evidence) that jobs exist in the economy
which claimant can obtain and perform.” Id.
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