Selby v. Commissioner of Social Security
Filing
16
DECISION and ORDERED, that the decision of the Commissioner is AFFIRMED. Signed by Senior Judge Lawrence E. Kahn on March 31, 2016. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SANDRA MARIE SELBY,
Plaintiff,
-against-
1:14-cv-1066 (LEK)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
DECISION and ORDER
I.
INTRODUCTION
This case has proceeded in accordance with General Order 18, which sets forth the
procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed
briefs. Dkt. Nos. 8 (“Plaintiff’s Brief”); 12 (“Defendant’s Brief”). For the following reasons, the
judgment of the Social Security Administration (“SSA”) is affirmed.
II.
BACKGROUND
Plaintiff Sandra Marie Selby (“Plaintiff”) was born on November 6, 1956. Dkt. No. 7
(“Record”) at 193.1 Plaintiff has a long history of health issues, including bipolar disorder,
depression, anxiety, panic attacks, agoraphobia, bladder issues, constipation, bone spurs in her feet,
and spinal stenosis in her back. R. at 178, 181, 191, 270, 298, 454. Plaintiff also had a
hysterectomy in 1996. R. at 298. Plaintiff claims that her medical conditions bar her from all
gainful work activity. R. at 454.
1
Citations to the Record refer to the pagination assigned by the SSA.
A. Psychiatric Conditions
1. Bipolar Disorder/ Depression/ Anxiety
Plaintiff has been diagnosed with anxiety, depression, and bipolar disorder. R. at 178, 18081, 183, 189-91. Plaintiff underwent monthly treatment with Dr. Fabio L. Urresta (“Dr. Urresta”)
and Nurse Practitioner Valerie Ramsey-Cummins (“Ms. Ramsey-Cummins”) from January 25, 2011
to November 4, 2011. R. at 246. During this period, Dr. Urresta diagnosed Plaintiff with bipolar
disorder. R. at 246, 406. Plaintiff was also found to suffer from “[i]rritability, initial insomnia,
[and] ruminative thought anxiety.” R. at 246. Plaintiff “tends to lose control of her bowels when
highly anxious.” R. at 248. While Ms. Ramsey-Cummins noted several instances where Plaintiff
suffered from anxiety, she also noted on multiple occasions that Plaintiff displayed “no signs of
anxiety.” R. at 397, 402, 405, 408, 419.
Plaintiff also received care from Nurse Practitioner Gail Casals (“Ms. Casals”) from 2007 to
2012. R. at 193, 360. On September 8, 2010, Ms. Casals noted that Plaintiff suffered from anxiety
but not depression, and that Plaintiff “is doing well [and] is just having episodic outbreaks of
anxiety.” R. at 181. On August 11, 2008, Ms. Casals increased Plaintiff’s Lexapro dosage to 20
milligrams, and on October 6, 2008, Plaintiff stated that the Lexapro had been working and her
anxiety was much improved. R. at 189-90.
2. Panic Attacks/Agoraphobia
Plaintiff suffers from panic attacks and agoraphobia. R. at 270. Dr. Urresta diagnosed
Plaintiff with panic attacks and agoraphobia after finding that Plaintiff suffered “panic
attacks/intolerable anxiety when attempting to go into public spaces.” R. at 246, 406. According to
a November 2011 psychiatric questionnaire co-signed by Dr. Urresta and Ms. Ramsey-Cummins,
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Plaintiff has suffered from panic attacks and agoraphobia for fifteen years and has only made
minimal improvement. R. at 246-47. On June 26, 2012, Ms. Ramsey-Cummins noted that Plaintiff
is unable to leave her house except for rare occasions when her daughter accompanies her. R. at
309. Plaintiff testified that she had not been to the market in sixteen years (as of 2012), and that she
rarely leaves the house unless driven by her daughter. R. at 42. Even when Plaintiff’s daughter
picks her up, Plaintiff only feels comfortable in Walmart. Id. Plaintiff testified that she would not
have been able to attend her ALJ hearing without taking her medication. R. at 44. Plaintiff stated
that she tries to get out of the house “at least once a week” and occasionally drives. R. at 135.
3. Suicidal Ideation
On December 1, 2010, Plaintiff told Ms. Casals that she wanted to kill herself. R. at 183.
Ms. Casals promptly contacted Four Winds—a mental health facility—and suggested that Plaintiff
be hospitalized. Id. Plaintiff was admitted to Four Winds that same day “due to suicidal thoughts
with a plan (intentional car accident).” R. at 183, 451. However, other than December 1, 2010,
Plaintiff has frequently denied having any suicidal or homicidal ideation. R. at 180, 183, 187, 19091. Plaintiff was discharged two days later, and upon discharge “denied suicidal and homicidal
ideation and was optimistic, future oriented and euthymic.” R. at 452.
B. Physical Conditions
Plaintiff has also suffered, and continues to suffer from, multiple physical conditions. R. at
189, 191, 276. For example, during Plaintiff’s physical residual functional capacity (“RFC”)
assessment on January 12, 2012, Plaintiff claimed to suffer from “arthritis, bowel problems, thyroid
nodules, bone spurs and degenerative disc disease.” R. at 275, 276, 280. During Plaintiff’s RFC
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assessment on January 9, 2012, Plaintiff alleged “arthritis, bowel problems, thyroid nodules, bone
spurs, and DDD.” R. at 270, 273.
1. Bladder/Incontinence/Constipation
Plaintiff suffers from occasional bowel incontinence and bladder problems that she
contributes to anxiety, in addition to occasional abdominal pain and constipation. R. at 179, 239,
300. Plaintiff saw Dr. Brian P. Murray (“Dr. Murray”) on December 21, 2010, and in a letter
addressed to Dr. Vincent Corcoran (“Dr. Corcoran”), Dr. Murray explained that while “a cystoscopy
. . . show[ed] no abnormalities within the bladder . . . she certainly has bladder instability most
likely due to pelvic floor dysfunction.” R. at 298. Dr. Murray also stated that Plaintiff had a
“history of irritating voiding symptoms and pelvic pain that she has had primarily since
hysterectomy in 1996.” Id.
2. Spinal Stenosis
Plaintiff asserts that “she was diagnosed with spinal stenosis at L4-L5 in her 20s or 30s.” R.
at 481. On July 23, 2008, Ms. Casals observed that Plaintiff “does have spinal stenosis in her low
back and [that Plaintiff was] concerned about whether this could be true of her neck also.” R. at
191. An MRI exam of Plaintiff’s lumbar spine was performed on August 15, 2008. R. at 212. The
MRI exam showed “mild central canal stenosis at L3-4 and moderate to severe stenosis at L4-5,
both of which relate to ligamental and facet hypertrophy.” Id. Another MRI exam of Plaintiff’s
lumbar spine was performed on January 6, 2011. R. at 296. This MRI exam showed “multi-level
facet joint and ligamentous degenerative hypertrophic changes, most significant in L4-5 which
primarily result in borderline spinal canal narrowing.” Id. Dr. Luke Vincent Rigolosi (“Dr.
Rigolosi”) examined Plaintiff on June 5, 2012 in response to complaints of low back and neck pain.
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R. at 481. Dr. Rigolosi stated that Plaintiff was “in no acute distress.” Id. Plaintiff rose “from a
seated position without difficulty,” her gait was “non-antalgic and reciprocal,” and she could “toe
and heel walk.” Id. Plaintiff “ha[d] good range of motion of the cervical and lumbar spine in all
planes.” Id. However, Plaintiff suffered “end-range pain in flexion.” Id. Plaintiff’s palpation
revealed “mild cervical and lumbar spasm and tenderness.” Id. Dr. Rigolosi also noted that
Plaintiff’s thoracocervical spine was properly aligned. Id. While Plaintiff’s “cervical spine [had]
well- maintained disc height throughout,” Plaintiff’s “lumbar spine [had] mildly decreased disc
height at L5-S1.” Id. After the examination, Dr. Rigolosi “recommended chiropractic treatment.”
Id. Dr. Rigolosi added “[i]f her symptoms persist . . . [t]he next step would be [an] MRI . . .
possibly followed by interventional pain procedures.” Id.
Plaintiff was also examined by Dr. Joseph Prezio (“Dr. Prezio”), a consultative examiner, on
November 3, 2011. R. at 239. Dr. Prezio stated that Plaintiff had “arthritis in all of her bones, bone
spurs in her back, and a history of spinal stenosis at L4-L5.” Id. However, Dr. Prezio stated that
Plaintiff’s stenosis did not require surgery. Id. Dr. Prezio, like Dr. Rigolosi, found that Plaintiff
“appeared to be in no acute distress.” R. at 240. Plaintiff’s gait was normal and she could walk on
her heels and toes without difficulty. Id. Dr. Prezio found that “[a]s long as her anxiety and
depressive state do not overwhelm her, she can handle . . . [c]ooking, cleaning, laundry, shopping,
showering, bathing, and dressing.” Id. Based on this examination, Dr. Prezio stated “there do not
appear to be any significant physical limitations or restrictions noted at the present time.” R. at 242.
3. Bilateral Cheilectomies
On May 24, 2011, Ms. Casal stated “[Plaintiff] ha[d] pain with palpation over the anterior
surface of the forefoot of the right foot. She also has altered sensation in the right great toe as well
5
as the right 2nd toe.” R. at 178. On September 9, 2011, Plaintiff had a left cheilectomy with no
apparent complications. R. at 500, 501. On December 9, 2011, Plaintiff underwent a right
cheilectomy, in which “20% of the joint which was significantly eburnated” was removed. R. at
492-93. Plaintiff’s surgeon, Dr. David J. Dixon (“Dr. Dixon”) noted “[t]he rest of the joint actually
had good range of motion.” R. at 493. When Plaintiff saw Dr. Dixon on February 1, 2012, he
observed that Plaintiff “feels some improvement . . . [and] [t]he injection does seem to help.” R. at
487. While Dr. Dixon noted Plaintiff seemed to be improving, he also observed that Plaintiff
continued to feel pain. Id. Dr. Dixon further noted that the x-rays “reveal[ed] some degenerative
changes but the alignment . . . [was] actually adequate on the x-rays.” Id. On August 7, 2012,
Plaintiff denied suffering joint pain, back pain, or gout. R. at 293. On August 8, 2012, Dr. Dixon
opined that “subsequent to [Plaintiff’s] cheilectomy . . . [Plaintiff] continue[d] to have pain, right
side worse than left side.” R. at 477. Plaintiff had “quite a bit of stiffness and her pain is quite
debilitating at both first MTP joints.” Id. Plaintiff’s examination revealed “tenderness and stiffness
to the first MTP joints bilaterally associated with minimal motion.” Id. While Plaintiff was
“neurovascularly intact . . . [i]njections and surgical debridements really have not significantly
improved the arthritic changes.” Id. In early December 2012, Plaintiff had a joint fusion with local
graft performed on her right great toe. R. at 360, 363, 375, 470, 474. In a post-operation follow up
examination, it was noted that Plaintiff’s wounds were healing well with no signs of infection and
no neurovascular complications. R. at 470. Radiographs showed “early healing of that first MTP
joint fusion with intact hardware and excellent alignment.” Id.
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C. Impact of Plaintiff’s Ailments on Her Ability to Work
Plaintiff asserts that, due to her physical and mental ailments and complications, she is
unable to work. R. at 454. Plaintiff was hospitalized at Four Winds due to concerns about her
suicidal tendencies. Id. During her stay, Plaintiff received an integrated assessment. Id. In this
assessment, Plaintiff explained that “[s]he has been unemployed for the last 2 1/2 years due to
exacerbated symptoms of anxiety and depression” and that she “can’t work because she is too
depressed.” Id. Plaintiff also reported poor concentration and the assessment noted that Plaintiff
was “clearly having difficulty during the interview.” Id. On January 25, 2011, Ms. RamseyCummins noted “[c]areless mistakes are typical of [Plaintiff’s] behavior. She is easily distracted.
Work is often left incomplete. [Plaintiff] tends to lose things.” R. at 395. Dr. Urresta found
Plaintiff unable to “function in [a] work environment” due to Plaintiff’s depression, anxiety, panic
attacks and bowel incontinence when leaving her home or around people. R. at 251.
Plaintiff also met with Dr. Dennis M. Noia (“Dr. Noia”), a psychologist, on November 3,
2011. R. at 235, 238. At this meeting, Plaintiff stated that she “is unable to work at the present time
because of psychiatric problems.” Id. While Plaintiff has been diagnosed with bipolar disorder and
panic disorder, Plaintiff did not “report any significant symptoms of a formal thought disorder or
cognitive dysfunction.” R. at 236, 238. According to Dr. Noia, Plaintiff “appears to be capable of
understanding and following simple instructions and directions [and] appears to be capable of
performing simple and some complex tasks with supervision and independently.” R. at 238.
Plaintiff also appeared “capable of maintaining attention and concentration for tasks [and] can
regularly attend to a routine and maintain a schedule.” Id. Plaintiff “appear[ed] to be capable of
learning new tasks [and] making appropriate decisions. She appears to be able to relate to and
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interact moderately well with others.” Id. However, Dr. Noia noted that Plaintiff “appears to be
having some difficulty dealing with stress.” Id.
Similarly, Plaintiff’s mental RFC assessment concluded that “[w]hile there is some support
for psychiatric difficulties . . . [Plaintiff] appears to have retained adequate cognitive functioning.”
R. at 270. The RFC assessment also found that Plaintiff had an adequate Activities of Daily Living
Skills (“ADLS”) range. Id. The assessment further found that Plaintiff’s clinical examination
(“CE”) “concluded no greater than moderate limitations and some difficulties dealing with stress,
but no other limitations are noted.” Id.
Plaintiff’s case analysis, completed by Edward W. Smith (“Mr. Smith”) noted that the
“[p]hysical RFC limited her to Light Work.” R. at 287. Mr. Smith found that Plaintiff’s physical
clinical examination “showed normal gait/station; normal heel/toe walk; ability to squat; normal
bowel sounds.” Id. On May 31, 2011, Dr. Urresta observed that Plaintiff “is friendly, attentive,
[and] fully communicative.” R. at 406. Dr. Urresta further noted that Plaintiff’s “[v]ocabulary and
fund of knowledge indicate cognitive function in the normal range.” Id. Dr. Urresta found similar
results on June 21, 2011. R. at 407-08. Furthermore, Dr. Urresta found that Plaintiff had a Global
Assessment of Functioning (“GAF”) of 65, which indicates only mild difficulty in social,
occupational, and psychological functioning, on several different occasions. R. at 406, 408, 419.
Ms. Ramsey-Cummins also noted a GAF of 65 on January 26, 2011 and February 8, 2011. R. at
398, 400. Ms. Ramsey-Cummins noted that Plaintiff did not show signs of anxiety, that Plaintiff’s
depressive symptoms seemed to be in remission, and that on certain occasions, Plaintiff denied
having any anxiety or depressive symptoms. R. at 397, 399, 401-02, 404-05, 408. While Dr. Prezio
noted that Plaintiff “has a longstanding history of bipolar issues,” he added that these issues “are
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being actively managed on a monthly basis.” R. at 239. Although it was recommended that
Plaintiff “may need a low contact setting, [Plaintiff can] understand and remember instructions and
sustain attention and concentration for tasks.” R. at 287. Therefore, because Plaintiff’s “[m]ental
RFC found only mild functional limitations,” Plaintiff had the functional capacity to return to her
previous work. Id. On August 7, 2012, Plaintiff met with Dr. Murray. R. at 292. At this meeting,
Plaintiff denied suffering from depression, anxiety, mental illness, sleep disorders, thyroid
problems, chronic constipation, abdominal pain, joint pain, and back pain. R. at 293
D. ALJ Hearing
On September 1, 2011, Plaintiff filed an application with the SSA for disability benefits
under Title II of the Social Security Act, alleging disability beginning February 8, 2009. R. at 52,
119. The claim was denied on January 13, 2012 after the SSA concluded that Plaintiff’s condition
did not amount to a recognized disability under SSA regulations. R. at 56. Thereafter, Plaintiff
filled a written request for hearing on January 24, 2012. R. at 10. Plaintiff appeared and testified at
a hearing held by Administrative Law Judge (“ALJ”) Arthur Patane on December 14, 2012, in
Albany, New York. R. at 10, 29.
At the hearing, the ALJ explored Plaintiff’s past work experience and functional capacity.
R. at 33-37. Plaintiff testified that she had previously worked as a temporary worker for the New
York State Department of Tax and Finance. R. at 33-34. Plaintiff held this job for about one year
before she was laid off in 2009. R. at 33, 35. Plaintiff “worked all day scanning and copying tax
forms” and also pulled staples from files. R. at 33, 143. Plaintiff’s job also required the use of
“technical knowledge or skill,” and included writing, completing reports, or similar duties. R. at
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155. At work, Plaintiff sat for five hours, walked for an hour, and stood for thirty minutes. Id.
Plaintiff also typically lifted less than ten pounds. Id.
At some point thereafter, the state hired Plaintiff as a temporary worker again, but this time
she was expected to do computer work. R. at 34. Plaintiff held this position for only two weeks
because it was not a good fit for her. Id. Plaintiff testified that prior to her work for the state, she
had been employed to drive a minivan for twenty five to thirty hours per week for about seven years.
R. at 36.
Plaintiff testified that she suffered from arthritis, and that Dr. Dixon at Northeastern
Orthopedic had performed three surgeries on her feet. R. at 39-40. When asked about her arthritis,
Plaintiff testified that she has arthritis in her “pelvis, fingers, shoulder, [and] neck.” R. at 40.
Plaintiff also testified that, depending on the angle and timing, lifting even five pounds can make the
bone in her pelvis feel like it is “splitting apart.” R. at 41. Plaintiff also testified that walking about
a quarter of a mile was too much walking. Id. When Plaintiff’s attorney asked her if she had a
computer, she testified that computers are too confusing and that she does not understand how to
use them. R. at 40.
Plaintiff testified that her panic attacks can be triggered by just about anything, including
thinking about death or thinking about her children getting hurt; which then results in Plaintiff
having bowel accidents. R. at 42. Plaintiff stated that she does not go outside much and that the
only store she feels safe in is Walmart. Id. Plaintiff explained that besides going to Walmart, she
only leaves the house for doctor appointments. Id. Plaintiff stated that she does not attend all of her
scheduled doctor appointments, depending on how she is feeling. R. at 43. Plaintiff explained that,
because she is bipolar, she could miss her appointments because she is high, or because she would
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rather just crochet. Id. However, Plaintiff does not attribute this only to her bipolar disorder, but
also to her anxiety medicine, because she is not allowed to drive while medicated. Id. Plaintiff
explained that one milligram of clonazepam can incapacitate her for about eight hours. R. at 43-44.
Plaintiff added that she took a half-milligram of clonazepam in order to attend the hearing. R. at 44.
When Plaintiff’s attorney asked Plaintiff why she had been fidgeting throughout the hearing,
Plaintiff responded that this is a result of her anxiety, even when she is on medication. Id. Plaintiff
testified that every time she has a panic attack and is outside of her home, she loses control of her
bowels. Id. Plaintiff stated that this also occurs when she is in her home, and that the frequency of
these episodes can range from occurring five times a week to not occurring for ten days, depending
upon the efficacy of her anxiety medicine. R. at 45.
When Plaintiff’s attorney asked her what she does for fun at home, Plaintiff mentioned that
she often has to re-watch her half hour shows, because she cannot pay attention for the whole half
hour. R. at 46. Plaintiff mentioned that she has nodules on her thyroid, which make it difficult for
her to turn her neck. R. at 47. Plaintiff testified that she had a surgery in her foot where they took
out a bone and replaced it with a stent. Id. Plaintiff also discussed that she has urinary issues, but
that she stopped pursuing help with this for personal reasons. R. at 48.
The ALJ asked Plaintiff about her ability to perform the following tasks on a regular basis:
“meals, family, socialization, pet care, self-care, some driving, shopping with daughter, money
management, independent use of public transportation.” R. at 49. Plaintiff responded that her
situation gets worse as she ages, that she cannot drive if she takes clonazepam, and that she cannot
take public transportation. R. at 50.
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E. Procedural History
The ALJ issued a decision on April 15, 2013, finding that Plaintiff had not engaged in any
substantial gainful activity since February 8, 2009, the alleged onset date of her disability. R. at 21.
While the ALJ found that Plaintiff’s bipolar disorder and panic disorder were severe impairments,
he also found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix I. R. at 12, 16. The ALJ considered Plaintiff”s lower back pain, foot disorder, bladder
incontinence, osteoarthritis and thyroid disorder, and found that these impairments were not severe
enough to be constitute a severe impairment under 20 CFR § 404.1521. R. at 15. While the ALJ
did not “doubt that the claimant may occasionally experience symptoms” the ALJ found “no
evidence that they are of such frequency, intensity, or duration as to render her incapable of
performing substantial gainful activity on a sustained basis.” R. at 19. The ALJ found that Plaintiff
had the RFC to “perform a full range of work at all exceptional levels but with the following
nonexertional limitations: the claimant requires a low contact setting since the claimant can only
work with large groups of people occasionally.” R. at 17. The ALJ listed several activities that
Plaintiff engaged in—maintaining her home, cooking, socializing with her daughter—as well as Dr.
Noia’s findings that Plaintiff did not “experience significant deficits in social interactions.” R. at
17-18. The ALJ stated that Plaintiff was capable of “performing past relevant work as a clerk.” R.
at 19. The ALJ also found that, in the alternative, there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform. R. at 20. Therefore, under the
standards set forth in the Social Security Act, the ALJ concluded that Plaintiff was not disabled
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between February 8, 2009, the alleged onset date of disability, and April 15, 2013, the date of
decision. R. at 20, 21.
III.
LEGAL STANDARD
A. Standard of Review
When the Court reviews the SSA’s final decision, it determines whether the ALJ applied the
correct legal standards and if her decision is supported by substantial evidence in the Record. 42
U.S.C. § 405(g); Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010) (Kahn, J.) (citing
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). Substantial evidence amounts to “more than
a mere scintilla,” and it must reasonably support the decision maker’s conclusion. Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court defers to the Commissioner’s decision if it is supported by substantial evidence, “‘even if
it might justifiably have reached a different result upon a de novo review.’” Sixberry v. Colvin, No.
12-CV-1231, 2013 WL 5310209, at *3 (N.D.N.Y. Sept. 20, 2013) (quoting Valente v. Sec’y of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). However, the Court should not
uphold the ALJ’s decision when it is supported by substantial evidence, but it is not clear that the
ALJ applied the correct legal standards. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
B. Standard for Benefits
According to SSA regulations, disability is “the inability to do 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.” 20 C.F.R. § 404.1505(a). An individual seeking disability benefits “need
not be completely helpless or unable to function.” De Leon v. Sec’y of Health & Human Servs.,
13
734 F.2d 930, 935 (2d Cir. 1984) (quoting Gold v. Sec’y of Health, Educ. & Welfare, 463 F.2d 38,
41 n.6 (2d Cir. 1972)).
In order to receive disability benefits, a claimant must satisfy the requirements set forth in
the SSA’s five-step sequential evaluation process. 20 C.F.R. § 404.1520(a)(1). In the first four
steps, the claimant bears the burden of proof; at step five, the burden shifts to the SSA. Kohler v.
Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)).
The five-step analysis used by the SSA is sequential, meaning that the determination at each step
dictates whether the analysis proceeds to the subsequent step. Gennardo v. Astrue, 333 F. App’x
609, 610 (2d Cir. 2009). If the SSA is able to determine that the claimant is disabled or not disabled
at any step, the evaluation ends. 20 C.F.R. § 404.1520(a)(4). Otherwise, the SSA will proceed with
the analysis. Id.
At step one, the SSA considers whether the claimant’s current work is “substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If it is, the claimant is not disabled under the SSA
standards. Id. At step two, the SSA considers whether the claimant has a severe medically
determinable physical or mental impairment, or combination of impairments that is severe, that
meets the duration requirement in 20 C.F.R. § 404.1509. Id. § 404.1520(a)(4)(ii). If she does not
have such an impairment, the claimant is not disabled under the SSA standards. Id. At step three,
the SSA considers the severity of the claimant’s medically determinable physical or mental
impairment(s) to see if it meets or equals an impairment and the requisite duration listed in 20
C.F.R. Part 404, Subpart P, Appendix I. Id. § 404.1520(a)(4)(iii). If it does not, the SSA continues
to step four to review the claimant’s RFC and past relevant work. Id. § 404.1520(a)(4)(iv). The
claimant is not disabled under the SSA standards if the RFC reveals that the claimant can perform
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past relevant work. Id. If the claimant cannot perform her past relevant work, the SSA decides at
step five whether adjustments can be made to allow the claimant to work somewhere in a different
capacity. Id. § 404.1520(a)(4)(v). If appropriate work does not exist, then the SSA considers the
claimant to be disabled. Id.
IV.
DISCUSSION
Plaintiff argues that the ALJ committed reversible error in the following ways: (1) by failing
to properly assess the opinion evidence of Plaintiff’s treating mental health providers; (2) by
concluding that Plaintiff could return to her past relevant work at step four; (3) by failing to properly
assess Plaintiff’s mental health impairments and the impact of Plaintiff’s non-severe impairments
when conducting his RFC analysis. Pl. Br. at 3, 6, 8.2
A. Proper Weighing of Medical Opinions
Treating physicians’ opinions are to be given controlling weight if they are supported by
medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with
other substantial evidence in the record. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); 20
C.F.R. § 404.1527(c)(2). Plaintiff argues that the ALJ erred by not giving controlling weight to the
medical opinions of Dr. Urresta, Plaintiff’s treating physician. Pl.’s Br. at 3. In November 2011,
Dr. Urresta and Ms. Ramsey-Cummins co-signed a psychiatric questionnaire concerning Plaintiff’s
mental state. R. at 246. In this questionnaire, Dr. Urresta opined that Plaintiff was unable to work
because of anxiety, depression, panic attacks, and bowel incontinence. R. at 251. Plaintiff takes
issue with the ALJ’s conclusion that Dr. Urresta’s findings should be afforded little weight because
2
Citations to the parties’ briefs refers to the pagination assigned by the Court’s Electronic
Filing System (“ECF”).
15
his conclusions were inconsistent with the medical evidence, and that even if the ALJ properly
concluded that the treatment notes did not support Dr. Urresta’s findings, the ALJ should have
contacted the sources for clarification, considering that the ALJ has an affirmative duty to make
reasonable efforts to develop the record. Pl.’s Br. at 3-6.
The ALJ properly accorded little weight to both Dr. Urresta and Ms. Ramsey-Cummins
medical opinions because they were inconsistent with Plaintiff’s medical records. A treating
physician’s opinion is given “controlling weight” where it is “well-supported by medially acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the substantial evidence in
[the] case record.” 20 C.F.R. § 404.1527(c)(2). However, a treating physician’s opinion “need not
be given controlling weight where [it is] contradicted by other substantial evidence in the record.”
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Where an ALJ does not assign controlling
weight to a treating physician’s opinion, the ALJ must then consider the following factors in
determining the appropriate weight to assign the opinion:
The length of the treatment relationship and the frequency of examination, (ii) the nature
and extent of the treatment relationship; (iii) the extent to which the opinion is
supported by relevant evidence, (iv) the consistency of the opinion with the record as
a whole; (v) specialization; and (vi) other factors.
20 C.F.R. § 404. 1527(c).
The ALJ accorded Dr. Urresta’s opinion that Plaintiff was unable to work little weight
because it was inconsistent with Dr. Urresta’s own examinations of the Plaintiff and contrary to his
treatment notes. R. at 19. On May 31, 2011, Dr. Urresta noted that Plaintiff “is friendly, attentive,
[and] fully communicative.” R. at 406. Dr. Urresta further noted that Plaintiff showed no signs of
anxiety, and that Plaintiff’s “[v]ocabulary and fund of knowledge indicate cognitive function in the
normal range.” Id. Dr. Urresta made similar oservations on June 21, 2011. R. at 407-08.
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Furthermore, Plaintiff’s GAF of 65 indicates only mild difficulty in social, occupational, and
psychological functioning. R. at 406. Plaintiff scored a GAF of 65 on several different occasions.
R. at 406, 408, 419. Ms. Ramsey-Cummins similarly noted a GAF of 65 on January 26, 2011 and
February 8, 2011. R. at 398, 400. Ms. Ramsey-Cummins also noted that Plaintiff did not show
signs of anxiety, that Plaintiff’s “[d]epressive symptoms appear[ed] to be in remission,” and that on
certain occasions, Plaintiff denied having “anxiety or depressive symptoms.” R. at 397, 399, 401,
402, 404, 405, 408. Therefore, the November 2011 functional assessment cosigned by Dr. Urresta
and Ms. Ramsey-Cummins is contradicted by the treatment notes of Dr. Urresta and Ms.
Ramsey-Cummins.
Dr. Urresta’s findings are also inconsistent with other objective medical evidence. The
opinion of a consultative examiner can comprise substantial evidence in support of an ALJ’s
determination. See Diaz v. Shalala, 59 F. 3d 307, 315 (2d Cir. 1995); Monguer v. Heckler, 722 F.2d
1033, 1039 (2d Cir. 1983). For example, Dr. Murray noted that Plaintiff denied suffering from
depression, anxiety, mental illness, and sleep disorders. R. at 293. Dr. Noia found that Plaintiff
could follow and understand simple directions and could perform “simple and some complex tasks
with supervision and independently.” R. at 238. Plaintiff’s RFC assessment found an adequate
ADLS range, and Plaintiff’s CE found only moderate limitations. R. at 270. Plaintiff tries to get
out of the house “at least once a week” and occasionally drives. R. at 135. Therefore, the
November 2011 functional assessment cosigned by Dr. Urresta and Ms. Ramsey-Cummins is
inconsistent with other medical evidence.
Plaintiff argues that the ALJ should have requested a clarification from Dr. Urresta. Pl.’s Br.
at 5. While the ALJ has an affirmative duty to make reasonable efforts to develop the record, the
17
Court finds that the Record in the present case was adequately developed and the ALJ’s decision
was supported by substantial evidence.
B. Step Four Determination
When determining if an individual can perform past relevant work, “[a]n individual retains
the capacity to perform his past relevant work when he can perform the functional demands and
duties of the job as he actually performed in or as generally required by employers throughout the
national economy.” Kempston v. Colvin, No. 13-CV-1064, 2015 WL 5709012, at *11 (N.D.N.Y.
Sept. 29, 2015) (Kahn, J.); see also Jock v. Harris, 651 F.2d 133, 135 (2d Cir. 1981).
The ALJ found that Plaintiff could perform the job of a clerk, as defined in the Dictionary of
Occupational Titles (“DOT”) and that the position of clerk was consistent with Plaintiff’s past
relevant work. R. at 19-20. Plaintiff first argues that the ALJ did not provide a specific DOT code,
but instead equated “clerk” to the performance of light work. Pl.’s Br. at 7. Plaintiff also argues
that her past relevant work is not consistent with the role of “clerk.” Id. Plaintiff’s past relevant
work consisted of pulling staples, scanning and copying forms, and sorting papers. R. at 34, 143,
155. Plaintiff also reported that her previous job required her to draft reports and involved some
technical knowledge. R. at 155. Plaintiff’s typical work day consisted of sitting for five hours,
walking for an hour, and standing for thirty minutes. Id. Plaintiff also typically lifted less than ten
pounds. Id.
While the ALJ may have defined the occupation of clerk as light work in lieu of providing a
specific DOT code, the Court finds that Plaintiff’s past relevant work corresponds with the job of
administrative clerk, DOT 219.362-010 (Administrative Clerk). Pl.’s Br. at 7; R. at 19-20, 34, 143,
155. According to the DOT, an administrative clerk’s duties include compiling records, copying
18
data, and operating office machinery. DOT 219.362-010. The position does not involve significant
social interaction or physical demands. Because Plaintiff’s RFC is compatible with this DOT Title,
Plaintiff can perform this job as generally performed in the national economy. Furthermore, this
position is consistent with Plaintiff’s previous experience pulling staples and sorting, scanning, and
copying documents in the past. R. at 34, 143, 155. As a result, there is little reason to believe that
Plaintiff’s past relevant work exceeds her RFC, meaning that Plaintiff could perform her past work
as she actually performed it. R. at 18-19. Therefore, the ALJ properly concluded that Plaintiff was
not disabled according to step four. R. at 19-20.
C. Step Two Analysis
Plaintiff argues that the ALJ did not properly assess Plaintiff’s mental health non-exertional
limitations in his RFC analysis and Plaintiff’s limitations due to non-severe impairments. Pl.’s Br.
at 8-10. Plaintiff first argues that the ALJ failed to include Plaintiff’s mental limitations—most
notably her agoraphobia and incontinence—in the RFC analysis. Id. Plaintiff also argues that the
ALJ wrongly found that Plaintiff’s physical limitations, in particular her bone spurs and back pain,
were not severe. Pl. Br. at 10. Plaintiff argues in the alternative that even if her physical limitations
were not severe, the ALJ failed to consider them in the RFC analysis. Id.
While the ALJ did not use the word agoraphobia, he discussed that Plaintiff “has bowel
incontinence as a symptom of her panic attacks” and that Plaintiff “reported panic attacks and
difficulty leaving her house.” R. at 18-19. Furthermore, the ALJ considered Dr. Urresta and Ms.
Ramsey-Cummins’ findings, and as discussed above, found that they were internally inconsistent
with the rest of their findings. R. at 19. Therefore, Dr. Urresta’s evaluation was entitled to little
weight. Id. As a result, while the ALJ did not “doubt that the claimant may occasionally experience
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symptoms” the ALJ found “no evidence that they are of such frequency, intensity, or duration as to
render her incapable of performing substantial gainful activity on a sustained basis.” Id.
The Court finds that the ALJ correctly determined that neither Plaintiff’s foot disorder or
lower back pain were severe impairments. R. at 15. As for Plaintiff’s foot disorders, both Dr.
Prezio and Dr. Rigolosi found that Plaintiff was not in acute distress. R. at 240, 481. Dr. Prezio
found that Plaintiff’s gait was normal and she could walk on her heels and toes without difficulty.
R. at 240. Dr. Rigolosi noted that Plaintiff could heel and toe walk effectively. R. at 481.
Furthermore, on a follow up examination to Plaintiff’s 2012 procedure, Plaintiff’s wounds were
healing well without any sign of infection. R. at 470. Also, Plaintiff was neurovascularly intact and
radiographs displayed early healing as well as intact hardware and excellent alignment. Id.
Therefore, the ALJ correctly determined that Plaintiff’s foot disorder was not a severe impairment.
As for Plaintiff’s lower back pain, Plaintiff admits that “there are no specific limitations placed on
her by her treating sources.” Pl.’s Br. at 12. Plaintiff was able to rise “from a seated position
without difficulty,” her gait was “non-antalgic and reciprocal,” she could “toe and heel walk,” and
she had “good range of motion of the cervical and lumbar spine in all planes.” R. at 481. Plaintiff’s
palpation only suffered “mild cervical and lumbar spasm and tenderness.” R. at 296. Also,
Plaintiff’s thoracocervical spine was properly aligned, and Plaintiff’s cervical spine’s disc height
was well-maintained throughout. Id. However, Dr. Rigolosi did note that Plaintiff’s lumbar spine
had “mildly decreased disc height at L5-S1.” Id. Nevertheless, Dr. Rigolosi only recommended
chiropractic treatment as the next step. Id. Dr. Prezio also stated that Plaintiff’s stenosis did not
require surgery, and found that “there do not appear to be any significant physical limitations or
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restrictions noted at the present time.” R. at 239, 242. Therefore, the ALJ correctly determined that
Plaintiff's lower back pain was not a severe impairment.
Plaintiff further asserts in the alternative that, even if the ALJ correctly determined that
Plaintiff’s foot disorder and lower back pain were non-severe impairments, the ALJ failed to
consider Plaintiff’s non-severe foot disorder and lower back pain in the RFC analysis. Pl.’s Br. at
11. However, the ALJ implicitly considered these when evaluating her activities of daily living, and
found only mild restrictions. R. at 16. Therefore, the ALJ still considered these restrictions in the
overall analysis.
IV.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the decision of the Commissioner is AFFIRMED; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
March 31, 2016
Albany, New York
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