Jenkins v. Colvin

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Jenkins' complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 2/19/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOHN CURTIS JENKINS,
Plaintiff,

1:13-cv-1035
(GLS/TWD)

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Binder, Binder Law Firm
60 East 42nd Street
Suite 520
New York, NY 10165
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

CHARLES E. BINDER, ESQ.

SANDRA M. GROSSFELD
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 John Curtis Jenkins challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB), seeking judicial
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Jenkins’ arguments, the
court affirms the Commissioner’s decision and dismisses Jenkins’
complaint.
II. Background
On October 19, 2011, Jenkins filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since April 6, 2009. (Tr. 1
at 74, 127-28.) After his application was denied, (id. at 75-80), Jenkins
requested a hearing before an Administrative Law Judge (ALJ), (id. at 8485). A hearing was held on December 4, 2012. (Id. at 47-73.) On January
15, 2013, the ALJ issued a decision denying the requested benefits, ( id. at
25-46), which became the Commissioner’s final determination upon the
Appeals Council’s denial of review, (id. at 1-5).
Jenkins commenced the present action by filing his complaint on

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 6.)

2

August 23, 2013, wherein he sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 5, 6.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 9, 14.)
III. Contentions
Jenkins contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 9 at 12-25.)
Specifically, Jenkins argues that the ALJ erred by failing to follow the
treating physician rule, improperly evaluating his credibility, and relying on
flawed vocational expert (VE) testimony, and that the Appeals Council
failed to consider new and material evidence. (Id.) The Commissioner
counters that the appropriate legal standards were used by the ALJ and his
decision is also supported by substantial evidence. (Dkt. No. 14 at 6-16.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt. No.
9 at 1-12; Dkt. No. 14 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
3

full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision 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.

Treating Physician Rule
With respect to the ALJ’s RFC determination, Jenkins first argues

that it is not supported by substantial evidence because the ALJ improperly
evaluated the opinion evidence. (Dkt. No. 9 at 12-19.) Specifically,
Jenkins contends that the opinions of his treating sources, physician’s
assistant Raju Sadal and Dr. Priyadarshan Bajpayi, should have been
given controlling weight. (Id.) The Commissioner asserts that the ALJ’s
determination is supported by substantial record evidence, and that he
properly weighed the evidence in assessing Jenkins’ RFC. (Dkt. No. 14 at
6-10.) 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,”
4

including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence 2 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).
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 404.1527(c). Controlling
weight will be given to a treating physician’s opinion that is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Id.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Unless controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length and nature of a treatment relationship; the
frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. See 20 C.F.R.

2

“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).

5

§ 404.1527(c). The ALJ must provide “‘good reasons’ for the weight given
to the treating source’s opinion.” Petrie v. Astrue, 412 F. App’x 401, 407
(2d Cir. 2011) (citations omitted). “Nevertheless, where the evidence of
record permits [the court] to glean the rationale of an ALJ’s decision,” it is
not necessary that the ALJ “have mentioned every item of testimony
presented to him or have explained why he considered particular evidence
unpersuasive or insufficient to lead him to a conclusion of disability.” Id.
(internal quotation marks and citation omitted).
Here, the ALJ gave “little probative weight to the opinions expressed
by Dr. Bajpayi3 and Mr. Sadal,” because their assessment of Jenkins’
limitations in his ability to understand simple instructions, maintain
concentration and attention, appropriately interact with others, and respond
to changes in the workplace were inconsistent with other medical records. 4

3

Although Jenkins contends that the report from Sadal and Dr. Bajpayi should be given
controlling weight as a treating source opinion, as the ALJ notes, the relevant treatment
records do not indicate that Dr. Bajpayi ever treated or examined Jenkins. (Tr. at 39-40.)
Further, Sadal, as a physician’s assistant, is not an “acceptable medical source” that would be
entitled to controlling weight, and thus his opinion is weighed along with the other sources of
record according to the applicable factors. See 20 C.F.R. §§ 404.1513, 404.1527.
4

The ALJ also gave “no weight” to Dr. Bajpayi’s opinion that Jenkins “remains
disabled,” (Tr. at 503), because there is no indication that Dr. Bajpayi himself ever treated or
examined Jenkins, and the determination of whether a claimant is disabled is an issue
reserved for the Commissioner, and thus such opinions are not entitled to controlling
weight. (Id. at 39-40); see 20 CFR § 404.1527(e)(1); SSR 96-5p, 1996 WL 374183, at *2 (July
2, 1996).

6

(Tr. at 40.) Further, the opinions were inconsistent with Jenkins’ reported
daily activities. (Id.) Specifically, while a psychiatric/psychological
impairment questionnaire completed by Sadal, and cosigned by Dr.
Bajpayi, indicated that Jenkins had marked limitations in his ability to
accept instructions, maintain socially appropriate behavior and basic
standards of cleanliness, and respond appropriately to changes in the
workplace, (id. at 461-71), these opinions are contradicted by other
substantial evidence in the record.
For example, other records and progress notes from Vitality
Physicians Group, including those from Sadal, showed that Jenkins was
calm and cooperative, with normal affect and levels of attention,
concentration, and judgment, and that Jenkins’ grooming and hygiene were
normal. (Id. at 474, 479, 481, 482, 488-89, 492.) Jenkins reported that his
medication controlled his anxiety, depression, and mania. (Id. at 474.) A
consultative examiner reported that Jenkins’ manner of relating was
adequate, his attention and concentration were intact, and he was able to
follow and understand simple instructions and perform simple tasks
independently. (Id. at 305-06.) In addition, Jenkins’ description of his daily
activities reflects his abilities to sustain attention and concentration while
7

watching television, driving, and doing chores, and appropriately interact
with others during medical appointments and vacations. (Id. at 37-38, 5760.)
Thus, the opinions provided by Dr. Bajpayi and Sadal are
inconsistent with other substantial evidence of record, and the ALJ did not
err in giving them less than controlling weight regarding Jenkins’ RFC and
his ability to work. 20 C.F.R. § 404.1527(c)(2); see Halloran, 362 F.3d at
32. In sum, the weight afforded to the various opinions by the ALJ, for
reasons which are fully articulated in his written decision, is supported by
substantial evidence. (Tr. at 34-40.) The ALJ also undertook a thorough
discussion of the medical and testimonial evidence of record, which
supports his determination that Jenkins was capable of unskilled work with
only occasional decision making, changes in work setting, or interaction
with others. (Id.) As such, the court affirms the ALJ’s RFC determination.
B.

Credibility
Similarly, Jenkins next argues that “[t]he ALJ’s findings were

insufficient to find [him] not credible.” (Dkt. No. 9 at 19-22.) In response,
the Commissioner asserts that the ALJ’s credibility determination is
supported by substantial evidence. (Dkt. No. 14 at 10-12.) The court again
8

agrees with the Commissioner.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” he “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, 61 Fed. Reg.
34,483, 34,485 (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-CV-444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20
C.F.R. § 404.1529(c)(3)(i)-(vi)).
9

Here, the ALJ determined that Jenkins’ impairments “could
reasonably be expected to cause the alleged symptoms,” but found that
Jenkins’ “statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible.” (Tr. at 37.) As cited
by the ALJ, the record contains “little evidence” substantiating Jenkins’
claimed disabilities. (Id. at 38.) Although Jenkins claimed that he was
experiencing symptoms of mania at or around his alleged onset date of
April 6, 2009, (id. at 64-65), contemporaneous treatment notes do not
indicate any complaints of symptoms of mania; his first mention of a manic
episode was not until over two years later. (Id. at 241, 363.) After a mental
status evaluation shortly after Jenkins’ alleged onset date, he was found to
be “well groomed and appropriate,” and fully oriented to person, place, and
time. (Id. at 272.) He was instructed by his treating practitioner to return if
his alleged symptoms persisted or changed, and he did not return for
several months. (Id. at 271-72.) When using his medications, Jenkins’
mood was stabilized, and he denied anxiety and panic attacks. (Id. at 48889, 492.)
In addition, the ALJ found that Jenkins’ failure to comply with medical
advice to quit smoking and reduce his caffeine consumption detracted from
10

his overall credibility. 5 (Id. at 39.) The ALJ properly considered the fact
that Jenkins declined recommended treatment as evidence that his
symptoms are not as severe as alleged. See SSR 96-7p, 61 Fed. Reg. at
34,487 (explaining that an “individual’s statements may be less credible if
the level or frequency of treatment is inconsistent with the level of
complaints”). Moreover, Jenkins was not entirely forthcoming regarding his
substance abuse problems. At his hearing, when asked to explain his
treating sources’ references to substance abuse, Jenkins indicated only
that he took more than the recommended dose of Ativan. (Tr. at 61.)
However, the record indicates that Jenkins also had used opiates and
overused other prescribed medications, and that he had a history of alcohol
and illegal substance abuse, which he did not disclose at his hearing. ( Id.
at 396, 473.) Thus, after expressly laying out the applicable regulations
and the relevant factors, the ALJ made a credibility determination which is
supported by substantial evidence in the record. (Id. at 36-39.)
C.

Vocational Expert Testimony

5

Jenkins makes an inapposite argument that the ALJ made insufficient findings to deny
benefits on the basis of Jenkins’ non-compliance with treatment recommendations. (Dkt. No. 9
at 21-22.) As the Commissioner points out, it is not the case that the ALJ determined Jenkins
to be not disabled as a result of his non-compliance with treatment, but only that Jenkins’
failure to abide by prescribed treatment “detracts from [his] credibility.” (Tr. at 39.)

11

Next, Jenkins asserts that the ALJ’s step five determination is
unsupported by substantial evidence because the VE’s opinion, which the
ALJ relied on, was based on a hypothetical that failed to account for all of
Jenkins’ functional limitations. (Dkt. No. 9 at 22-24.) Specifically, he
alleges that the ALJ’s errors in assessing his RFC and credibility, along
with a failure to explicitly include in the hypothetical question the moderate
limitations articulated by the ALJ in the context of the step three listing
inquiry, fatally undermine the step five determination. (Id.) As discussed
above, however, the ALJ’s RFC and credibility findings were legally sound
and are supported by substantial evidence. As such, the ALJ’s reliance on
the VE’s testimony was appropriate, as the hypothetical posed was
supported by the record. (Tr. at 34-40, 41-42, 70); see Salmini v. Comm’r
of Soc. Sec., 371 F. App’x 109, 114 (2d Cir. 2010) (“Because we find no
error in the ALJ’s RFC assessment, we likewise conclude that the ALJ did
not err in posing a hypothetical question to the [VE] that was based on that
assessment.”).
Although the hypothetical question did not include a recitation of the
limitations mentioned by the ALJ in his step three determination that
Jenkins’ impairments did not meet one of the listed impairments, (Tr. at 3212

34), it appropriately encompassed the restrictions contained in the ALJ’s
RFC analysis, in that the ALJ asked the VE if there were any occupations
that a claimant with “the same age, education, and work experience as
[Jenkins],” with an RFC “[l]imited to unskilled work, with only occasional
decision making, or changes in work setting, or interaction with others,”
could perform. (Compare Tr. at 34, with id. at 70.) As such, the ALJ’s step
five determination was free of legal error and is supported by substantial
evidence. See Mancuso v. Astrue, 361 F. App’x 176, 179 (2d Cir. 2010)
(explaining that, if the ALJ’s RFC assessment is supported by substantial
evidence, it is appropriate for him to rely on that RFC assessment in
questioning the VE).
D.

Consideration of New and Material Evidence
Finally, Jenkins claims that the Appeals Council’s failure to consider

new and material evidence that he submitted following the ALJ’s decision
requires remand. (Dkt. No. 9 at 24-25.) The court disagrees.
The Appeals Council shall consider “new and material” evidence if it
“relates to the period on or before the date of the [ALJ] hearing decision.”
20 C.F.R. § 404.976(b)(1); see Perez, 77 F.3d at 45. The Appeals Council
“will then review the case if it finds that the [ALJ]’s action, findings, or
13

conclusion is contrary to the weight of the evidence currently of record.” 20
C.F.R. § 404.970(b). However, even if “the Appeals Council denies review
after considering new evidence, the [Commissioner]’s final decision
necessarily includes the Appeals Council’s conclusion that the ALJ’s
findings remained correct despite the new evidence.” Perez, 77 F.3d at 45
(internal quotation marks and citation omitted). Accordingly, the additional
evidence becomes part of the administrative record reviewed by the district
court. Id. at 45-46.
Here, following issuance of the ALJ’s decision, but prior to a
determination by the Appeals Council, Jenkins submitted additional records
from Dr. Ronald Sherman, dated April 26, 2013, indicating numerous
symptoms including mood disturbance, manic syndrome, recurrent panic
attacks, and generalized anxiety. (Tr. at 6-18.) The Appeals Council
reviewed Dr. Sherman’s examination report and concluded that it “is about
a later time” than the period relevant to the ALJ’s determination, and that it
“does not affect the decision about whether [Jenkins was] disabled” during
the relevant time period. (Id. at 2.)
The Appeals Council did not err in refusing to remand the case to the
ALJ based on this new evidence provided by Jenkins. Dr. Sherman’s
14

report was not submitted with any additional treatment notes, and in fact
indicates that the date of his first treatment of Jenkins was April 26, 2013,
the same date of the report itself. (Id. at 6.) Further, although Dr. Sherman
identifies several symptoms and clinical findings with respect to Jenkins’
mental health, and concludes that he is “incapable of even ‘low [work]
stress,’” (id. at 12), as further discussed above, contemporaneous
treatment notes regarding Jenkins’ condition, and the extent of Jenkins’
daily activities, refute such conclusions. In sum, Dr. Sherman’s opinion
was not deserving of controlling weight because it was contradicted by
substantial evidence of record and unsupported by relevant medical signs
and findings. See 20 C.F.R. § 404.1527(c)(3), (4). Although Jenkins
argues that Dr. Sherman’s report “creates a reasonable probability of
changing the ALJ’s decision,” (Dkt. No. 9 at 25), “whether there is
substantial evidence supporting the appellant’s view is not the question,”
instead, the court must “decide whether substantial evidence supports the
ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir.
2013).
Based on the foregoing, the court concludes that the Appeals Council
properly determined that the new evidence submitted by Jenkins did not
15

affect the validity of the ALJ’s decision. See 20 C.F.R. § 404.1527(c)(3)(6); Perez, 77 F.3d at 45 (“When the Appeals Council denies review after
considering new evidence, [the court] simply review[s] the entire
administrative record, which includes the new evidence, and determine[s],
as in every case, whether there is substantial evidence to support the
decision of the [Commissioner].”).
E.

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

the ALJ’s decision as it correctly applies the relevant legal standards and 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
Jenkins’ 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 19, 2015
Albany, New York
16