McBride v. Commissioner of Social Security
Filing
18
MEMORANDUM-DECISION AND ORDER: Ordered that Commissioner's 16 motion for judgment on the pleadings is granted. Signed by Magistrate Judge Christian F. Hummel on 1/14/2019. (Attachments: # 1 Exhibit(s))(Copy served to Pro Se Plaintiff via regular and certified mail)(jdp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MALCOLM M.,
Plaintiff,
No. 1:17-CV-0986
(CFH)
v.
COMM’R OF SOC. SEC.,
Defendant.
APPEARANCES:
OF COUNSEL:
Malcolm M.
Plaintiff pro se
Social Security Administration
Office of Regional General Counsel,
Region II
26 Federal Plaza, Rm. 3904
New York, New York 10278
Attorney for Defendant
JUNE L. BYUN, ESQ.
Special Assistant U.S. Attorney
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Malcolm M. brings this action pursuant to 42 U.S.C. § 405(g)
seeking review of a decision by the Commissioner of Social Security (“Commissioner”)
denying his application for disability insurance benefits and supplemental security
income (“SSI”) payments. Dkt. No. 1 (“Compl.”).1 Plaintiff did not file a brief. The
Commissioner moves for judgment on the pleadings. Dkt. No. 16. For the following
1
Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §
636(c), FED. R. CIV. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. Dkt. No. 4.
reasons, the determination of the Commissioner is affirmed.
I. Relevant Background
A. Factual Background
At the time of the hearing, plaintiff was a forty-five-year-old male who resided
with his daughter. T. 40.2 Plaintiff completed eleventh grade. Id. Plaintiff previously
worked as a team leader at McDonald’s for approximately a year-and-a-half. Id. at 46.
He also performed computer work for estate sales, and worked in the child care
industry. Id. at 46-47, 56-59. At the time of the hearing, plaintiff worked part-time at
Restaurant Depot. Id. at 56-59.
B. Procedural History
On June 30, 2014, plaintiff protectively filed applications for disability insurance
benefits and SSI. T. 165-79. In both applications, plaintiff alleged disability beginning
on February 1, 2010. See id. Plaintiff’s applications for disability benefits were denied
initially on September 10, 2014. Id. at 100-07. Plaintif f requested a hearing, and a
hearing was held on February 23, 2016 before Administrative Law Judge (“ALJ”) David
Neumann. Id. at 37-80, 108-09. ALJ Neumann determined that plaintiff “ha[d] not been
under a disability, as defined by the Social Security Act from February 1, 2010, through
the date of this decision.” Id. at 30. The Appeals Council denied plaintiff’s request for a
2
“T.” followed by a number refers to the pages of the administrative transcript filed by the
Commissioner. Dkt. No. 8. Citations refer to the pagination in the bottom right-hand corner of the
administrative transcript, not the pagination generated by CM/ECF.
2
review, making the ALJ’s findings the final determination of the Commissioner. Id. at 13. Plaintiff commenced this action on September 5, 2017. See Compl.
On May 1, 2018, the Commissioner filed the Administrative Record / Transcript,
and the Court set June 15, 2018 as the deadline f or plaintiff’s brief. Dkt. No. 13. On
September 10, 2018, the Court issued a text order informing plaintiff that he had
missed the brief deadline, and, in deference to his pro se status, extended plaintiff’s
time to file until October 10, 2018. Dkt. No. 15. The Court also instructed that, “[i]f
plaintiff [did] not file a brief by October 10, 2018, defendant Commissioner shall file her
brief within sixty (60) days from October 10, 2018.” Id. Plaintiff failed to file a brief. On
December 6, 2018, the Commissioner filed her brief. Dkt. No. 16. As of the date of this
Memorandum-Decision and Order, plaintiff has not filed a brief.
C. ALJ Decision
Applying the five-step disability sequential evaluation, the ALJ determined that
plaintiff had not engaged in substantial gainful activity since February 1, 2010, the
alleged onset date. T. 23. The ALJ found at step two that plaintiff had the severe
impairments of lumbar degenerative disc disease, status post bilateral hip
replacements, asthma, depressive disorder, and anxiety disorder. Id. At step three, the
ALJ determined 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 1. Id. at 24. Before reaching step four, the ALJ
concluded that plaintiff retained the residual functional capacity (“RFC”) to
3
perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except [plaintiff could] perform low stress
(non production oriented) work with occasional contact with
supervisors, co-workers, and the public; can lift, carry, push,
and pull five pounds frequently and ten pounds occasionally;
can stand and walk for one hour total in an eight-hour
workday; can sit with normal breaks for seven hours total in
an eight-hour workday; should avoid concentrated pollutants
and temperature extremes; can occasionally climb ramps
and stairs, balance, stoop, kneel, crouch, or crawl; and can
use a cane for ambulation but the contralateral upper
extremity can be used to lift and carry up to the exertional
limits specified.
Id. at 25. At step four, the ALJ determined that plaintiff was unable to perform any past
relevant work. Id. at 29. At step five, the ALJ found that, considering plaintiff’s age,
education, work experience, and RFC, there were jobs that existed in significant
numbers in the national economy that plaintiff could perform. Id. Thus, the ALJ
determined that plaintiff “ha[d] not been under a disability, as defined by the Social
Security Act from February 1, 2010, through the date of this decision.” Id. at 30.
II. Legal Standard3
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner’s determination will only be reversed if the correct
3
Any unpublished decisions cited within this Memorandum-Decision and Order have been
provided to plaintiff pro se.
4
legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning that
in the record one can find “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations
omitted)). The substantial evidence standard is “a very deferential standard of review . .
. . [This] means once an ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r, 683
F.3d 443, 448 (2d Cir. 2012) (internal quotations marks omitted). Where there is
reasonable doubt as to whether the Commissioner applied the proper legal standards,
the decision should not be affirmed even though the ultimate conclusion is arguably
supported by substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148
(N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the correct legal
standards were applied and the ALJ’s finding is supported by substantial evidence,
such finding must be sustained “even where substantial evidence may support the
plaintiff’s position and despite that the court’s independent analy sis of the evidence may
differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.
1992) (citation omitted).
B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . .
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benefit . . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available
to him or her based on his or her age, education, and work experience. Id. §
423(d)(2)(A). Such an impairment must be supported by “medically acceptable clinical
and laboratory diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the
impairments is “based [upon] objective medical facts, diagnoses or medical opinions
inferable from the facts, subjective complaints of pain or disability, and educational
background, age, and work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB),
2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d
1033, 1037 (2d Cir. 1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which
significantly limits his [or her] 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]
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will consider him [or her] disabled without considering
vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who
is afflicted with a “listed” impairment is unable to perform
substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, he [or she] has the residual functional capacity to
perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). The plaintiff bears the initial burden of proof to
establish each of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 117980 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progress to the fifth step,
the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in
gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).
III. The Commissioner’s Argument
The Commissioner argues that the ALJ’s decision is supported by substantial
evidence. Specifically, the Commissioner contends that (1) the ALJ’s RFC assessment
is supported by substantial evidence; and (2) substantial evidence supports the ALJ’s
finding that plaintiff was capable of performing a significant number of jobs in the
national economy. See Dkt. No. 16 at 15-22.
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IV. Analysis
In a civil case, a court may dismiss an action where, as here, “the plaintiff fails to
prosecute or to comply with [the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”)] or
a court order . . . .” F ED. R. CIV. P. 41(b). In other districts in the Second Circuit, courts
have dismissed Social Security appeals sua sponte due to a pro se plaintiff’s failure to
prosecute. See Gonzalez v. Comm’r of Soc. Sec., No. 09-CV-10179, 2011 W L
2207574, at *2 (S.D.N.Y. June 2, 2011); see also W inegard v. Barnhart, No. 02-CV6231, 2006 WL 1455479, at *9-10 (W .D.N.Y. Apr. 5, 2006). Nevertheless, the Court
declines to do so in this case.
In the Northern District of New York, General Order No. 18 notifies parties of the
consequences of failing to file a brief in connection with a social security action: “A
party’s brief may be its only opportunity to set forth arguments that entitle the party to
a judgment in its favor. The failure to file a brief by either party may result in the
consideration of the record without the benefit of the party’s arguments.” N.D.N.Y.
General Order No. 18 at 5. Thus, “[i]n a case such as this, where Plaintiff is proceeding
pro se, General Order No. 18's promise of a consideration of the merits complies with
the special solicitude that the Second Circuit mandates for pro se litigants.” Hubbard v.
Comm’r of Soc. Sec., No. 6:14-CV-1401 (GTS/WBC), 2016 WL 551783, at *4 (N.D.N.Y.
Jan. 14, 2016). As such, despite plaintiff’s failure to file a brief, the Court may
“examine[ ] the record to determine whether the ALJ applied the correct legal standard
and reached a decision based on substantial evidence.” Id. (citing Gregorka v. Comm'r
of Soc. Sec., No. 6:13-CV-1408, 2015 W L 3915959, at *4 (N.D.N.Y. June 25, 2015).
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A. RFC Determination
RFC describes what a claimant is capable of doing despite his or her
impairments, considering all relevant evidence, which consists of physical limitations,
symptoms, and other limitations beyond the symptoms. See Martone, 70 F. Supp. 2d
at 150; 20 C.F.R. §§ 404.1545, 416.945. “In assessing RFC, the ALJ’s findings must
specify the functions plaintiff is capable of performing; conclusory statements regarding
plaintiff’s capabilities are not sufficient.” Martone, 70 F. Supp. 2d at 150. T he ALJ then
uses the RFC to determine whether the claimant can perform his or her past relevant
work. See New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990); 20 C.F.R. §§
404.1545, 416.960. If it is determined that a claimant cannot perform past relevant
work, “the burden shifts to the Commissioner to determine whether there is other work
which the claimant could perform.” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
When assessing a claimant's RFC, an ALJ is entitled to rely on opinions from
both examining and non-examining State agency medical consultants because these
consultants are qualified experts in the field of social security disability. See also Frey
ex rel. A.O. v. Astrue, 485 F. App'x 484, 487 (2d Cir. 2012) (summary order) ("The
report of a State agency medical consultant constitutes expert opinion evidence which
can be given weight if supported by medical evidence in the record."); Little v. Colvin,
No. 14-CV-0063, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) ("State agency
physicians are qualified as experts in the evaluation of medical issues in disability
claims. As such, their opinions may constitute substantial evidence if they are
consistent with the record as a whole.") (internal quotation marks omitted). “An ALJ
9
should consider ‘all medical opinions received regarding the claimant.’” Reider v.
Colvin, No. 15-CV-6517, 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016) (quoting
Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005)); see also SSR 96-8p,
1996 WL 374184, at *7 (July 2, 1996). The factors for considering opinions from
non-treating medical sources are the same as those for assessing treating sources,
with the consideration of whether the source examined the claimant or not replacing the
consideration of the treatment relationship between the source and the claimant. 20
C.F.R. §§ 404.1527(c)(1)-(6).
The ALJ found that plaintiff could
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except [plaintiff could] perform low stress (non
production oriented) work with occasional contact with
supervisors, co-workers, and the public; can lift, carry, push,
and pull five pounds frequently and ten pounds occasionally;
can stand and walk for one hour total in an eight-hour workday;
can sit with normal breaks for seven hours total in an
eight-hour workday; should avoid concentrated pollutants and
temperature extremes; can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, or crawl; and can use a
cane for ambulation but the contralateral upper extremity can
be used to lift and carry up to the exertional limits specified.
T. 25. The regulations define sedentary work as work that
involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers,
and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally
and other sedentary criteria are met.
20 C.F.R. § 416.967(a).
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1. Physical Impairments
As to plaintiff’s physical impairments, the Court concludes that the ALJ’s RFC
determination is supported by substantial evidence. In making his determination that
plaintiff could perform sedentary work with certain limitations, the ALJ relied on the
consultative examination of Dr. Joseph Prezio, whom he assigned “significant weight
. . . because he examined [plaintiff] personally.” T. 25-26, 29. At the August 2014
examination, Dr. Prezio noted that although plaintiff “appear[ed] worried,” he was in no
acute distress. Id. at 399. Plaintiff’s gait showed a minimal limp to the right, and he
could not walk or stand on his heels and toes due to discom fort in his right hip. Id.
Plaintiff’s squat was limited, but with a cane he could “get lower.” Id. Dr. Prezio noted
that plaintiff did not need help changing for his examination, and that he needed
“minimal assistance” getting off the examination table. Id. Plaintiff was able to rise
from the chair by pushing himself up with his cane. Id.
Dr. Prezio noted that plaintiff’s cervical spine and lumbar spine had full flexion,
extension, lateral flexion bilaterally, and full rotary movement bilaterally. T. 400.
Plaintiff had full range of motion in his left hip, bilateral knees, and bilateral ankles. The
right hip had full range of motion that “approach[ed] normal, but not quite and there
[was] no pain or tenderness noted over the right hip.” Id. Plaintiff’s hand and finger
dexterity were intact, and his grip strength was 5/5 bilaterally. Id. at 401. Dr. Prezio
also noted that although plaintiff stated that he could not stand alone or bend dow n
much, he cooked, cleaned, did laundry, shopped, showered three times a week, and
dressed three times a week. Id. at 399.
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Based on his examination, Dr. Prezio diagnosed plaintiff with (1) residual right
hip pain, post total hip replacement; (2) depression, by history; (3) asthma; and
(4) hypertension. T. 401. He opined that plaintiff’s prognosis was good, and affirmed
that “[b]ased on the current physical examination, [plaintiff] ha[d] mild to moderate
limitations with respect to prolonged standing, walking, squatting, kneeling, bending,
and doing any heavy lifting as a result of the post operative discomfort still in the
residual phase, post right hip replacement.” Id. He also opined that plaintiff should
avoid smoke, dust, and other respiratory irritants. Id. Dr. Prezio’s assessment that
plaintiff suffered mild to moderate limitations is consistent with the ALJ’s determination
that plaintiff could perform limited sedentary work. See T. 25, 401; see also Calero v.
Colvin, No.16 Civ. 6582 (PAE), 2017 WL 4311034, at *7 (S.D.N.Y. Sept. 26, 2017)
(citing cases for the proposition that an ALJ’s finding that the plaintiff could perform
sedentary or light work is consistent with the plaintiff’s mild to moderate limitations in
prolonged standing or sitting).
The Court finds that the ALJ did not abuse his discretion in relying on Dr.
Prezio’s opinion as the opinion is supported by substantial evidence in the record. See
Byrne v. Berryhill, 284 F. Supp. 3d 250, 260 (E.D.N.Y. 2018) (“An ALJ is permitted to
accord greater weight to a consultative examiner's opinion if the conclusions are more
consistent with the medical evidence.”) (citing Rivera v. Colvin, No. 13-CV-7150, 2015
WL 1027163, at *16 (S.D.N.Y. Mar. 9, 2015)); Suttles v. Colvin, 654 F. App'x 44, 46 (2d
Cir. 2016) (summary order) (concluding no error by ALJ to give great weight to
consultative examiner's opinion because it was consistent with record evidence). Dr.
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Prezio’s opinion is consistent with other evidence in the record, including the March 20,
2016 opinion of Dr. Margaret Denio, who determined that plaintiff could return to work
on March 23, 2016 with “no restrictions.” Id. at 506.
The ALJ also acknowledged the “limited substantive support” in the record of
plaintiff’s “disabling symptompology.” T. 28. Although “it is well-settled that the
performance of basic daily activities does not necessarily contradict allegations of
disability, as people should not be penalized for enduring the pain of their disability in
order to care for themselves,” Battease v. Comm’r of Soc. Sec., No. 3:15-CV-867
(ATB), 2016 WL 3824146, at *7 (N.D.N.Y. July 13, 2016) (internal quotations omitted),
the Court concludes that the ALJ did not err in determ ining that plaintiff’s daily activities
failed to support his allegations of pain. T. 28. Plaintiff testified that he cooks, cleans,
does laundry, shops, and “do[es] everything [he] can” in terms of household chores. Id.
at 59-60. Plaintiff’s testimony is also consistent with his own statements during his
consultative examinations. See id. at 395, 399. He further stated that he, for the most
part, showers, uses the toilet, and dresses independently, with the exception of his
socks, which his daughter helps him with. Id. at 61. Plaintiff further testified that he
maintained part-time employment at multiple jobs including McDonald’s, in estate sales,
performing childcare, and at Restaurant Depot. Id. at 45-59. Plaintif f testified that, at
Restaurant Depot, he lifted gallons of milk weighing seven of eight pounds, stood about
two hours a day with breaks, two hours walking, and a half hour sitting. Id. at 58. He
also testified that he walked from work to the bus station, and then from the bus station
home. Id. at 59. Such testimony, in addition to the medical evidence described above,
13
is consistent with the ALJ’s finding that plaintiff could “lift carry, push, and pull five
pounds frequently and ten pounds occasionally; can stand and walk for one hour in an
eight-hour workday; can sit with normal breaks for seven hours total in an eight-hour
work day; . . . [and could] occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, or crawl.” Id. at 25. Thus, the ALJ’s reliance, in part, on plaintiff’s activities of
daily living was not in error. See Martone, 70 F. Supp. 2d at 153 (“In sum mary, the
objective medical evidence, the conservative treatment which plaintiff receives, as well
as plaintiff's daily activities all belie plaintiff's claims of disabling pain and functional
limitations. Therefore, substantial evidence supports the ALJ's decision to not f ully
credit plaintiff's subjective allegations.”).
Thus, the Court concludes that the ALJ properly weighed the medical evidence
in the record in determining plaintiff’s RFC as to his physical impairments, and that the
RFC determination is based on substantial evidence. As such, remand on this issue is
not required.
2. Mental Impairments
As to plaintiff’s mental impairments, the Court concludes that the ALJ’s RFC
determination is supported by substantial evidence. The ALJ’s finding that plaintiff
could perform “low stress (non production oriented) work with occasional contact with
supervisors, co-workers, and the public” is consistent with the medical evidence in the
record. T. 25. The ALJ afforded “significant weight” to the consultative psychiatric
examination of Dr. Nicole Bromley, Psy.D as “her opinion [was] supported by her own
14
examination of” plaintiff. Id. at 29. At the August 2014 evaluation, plaintiff reported
difficulty falling asleep, loss of appetite, and occasional depressive symptoms. Id. at
393. Plaintiff denied suicidal or homicidal ideation, and although he had a history of
cutting himself, he stated that it had been “several years” since he last cut. Id. Dr.
Bromley noted that plaintiff was cooperative and had an “[a]dequate manner of
relating.” Id. at 394. Plaintiff appeared his stated age, and was causally dressed and
well-groomed. Id. He had normal posture and motor behavior, and appropriate eye
contact. Id. Dr. Bromley noted that plaintiff’s speech was “intelligibility fluent.” Id. He
had a clear quality of voice, and adequate expressive and receptive language. Id.
Plaintiff’s thought process was coherent and goal-directed, and his “affect was of full
range and appropriate in speech and thought content.” Id. Plaintiff’s mood was
“euthymic,” his sensorium was clear, and he was “oriented x3.” Id. Plaintiff’s attention
and concentration were intact, and he was able to do counting, simple calculations, and
serial 3s. Id. at 395. Dr. Bromley indicated that plaintiff’s recent and remote memory
were intact. Id. He recalled three out of three objects immediately, and three out of
three objects after a five minute delay. Id. He did five digits forward and four digits
back. Id. Plaintiff’s intellectual functioning appeared average, and his general fund of
information was appropriate to experience. Id.
Dr. Bromley opined that plaintiff had no evidence of limitations (1) following and
understanding simple directions and instructions, (2) performing simple tasks
independently, (3) maintaining attention and concentration, (4) learning new tasks, and
(5) performing complex tasks independently. T. 395. She indicated that plaintiff was
15
“moderately limited” in (1) making appropriate decisions, (2) relating adequately with
others, and (3) dealing with stress due to his psychiatric symptoms. Id. Dr. Bromley
concluded that “[t]he results of the exam appear to be consistent with psychiatric
problems, but in itself does not appear to be significant enough to interfere with
[plaintiff’s] ability to function on a daily basis.” Id. at 395-96. She diagnosed plaintiff
with unspecified depressive disorder and unspecified anxiety disorder. Id. at 396. Dr.
Bromley recommended that plaintiff undergo individual therapy and a psychiatric
intervention. Id. She noted that his prognosis was “fair.” Id.
The ALJ’s reliance on Dr. Bromley’s opinion is consistent with the totality of the
evidence in the record. See Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)
(summary order) (“Although the ALJ’s conclusion may not perfectly correspond with any
of the opinions of medical sources cited in his decision, he was entitled to weigh all of
the evidence available to make an RFC finding that was consistent with the record as a
whole.”). As both the Commissioner and the ALJ noted, plaintiff failed to seek mental
health treatment from 2010 through 2014. Dkt. No. 16 at 18; T. 28. It is well-settled
that “[a]n ALJ is permitted to considered a Plaintiff’s failure to seek treatment for alleged
disabilities when evaluating a Plaintiff’s credibility with respect to statements of the
extent of the impairments.” Miller v. Colvin, 85 F. Supp. 3d 742, 755 (W .D.N.Y. 2015);
see Arnone v. Bowen, 882 F.2d. 34, 39 (2d Cir. 1989) (determining that the plaintiff’s
failure to seek medical attention “seriously undermine[d]” his contention of disability).
Thus, the ALJ did not err in relying on plaintiff’s lack of documented medical treatment
for his mental health problems. A June 2010 document from Crisis Intervention entitled
16
“Crisis Intervention Triage Sheet” found that plaintiff was not suicidal, homicidal, or
psychotic. See T. 291-307. Although plaintiff reported that he had suicidal thoughts, he
stated that he “would never do that [because he] love[s] [his] family too much.” Id. at
295. At the Crisis Intervention evaluation, he denied suicidal intent, and stated that his
“vague comments [regarding suicide] were misinterpreted” and his earlier suicide
attempt was not something he would do again. Id. at 298. The mental status
examination was largely unremarkable, and was consistent with Dr. Bromley’s findings
at the 2014 consultative examination. See id. at 300-01, 393-96.
Moreover, the ALJ assessed plaintiff’s subjective complaints regarding his
mental limitations in conjunction with the totality of the record. T. 28. As discussed
above, plaintiff’s statements as to his daily activities are inconsistent with disabling
mental impairments; notably, the ALJ took into account that plaintif f was able to
supervise both children and adults while working in child care and at Restaurant Depot,
respectively. See id. at 56-59. Thus, the Court concludes that the ALJ did not err in his
determining that plaintiff could perform “low stress (non production oriented) work with
occasional contact with supervisors, co-workers, and the public,” as the RFC
determination is supported by substantial evidence. See T. 25. As such, remand on
this issue is not required.
B. Step Five Determination
The Court finds that the ALJ’s finding that plaintiff was capable of performing a
significant number of jobs in the national economy is supported by substantial evidence
17
in the record. As stated above, the ALJ properly determined plaintiff’s RFC, and
substantial evidence in the record supports that finding. See T. 30, 76-79. Because
the ALJ posed a hypothetical based on that RFC, and the jobs that the v ocational
expert set forth all constitute sedentary work with the limitations set forth in the RFC,
the Court finds that the step five determination is supported by substantial evidence.
See id.
V. Conclusion
WHEREFORE, for the reasons stated above, it is hereby:
ORDERED, that the Commissioner’s motion for judgment on the pleadings (Dkt.
No. 16) is GRANTED; and it is further
ORDERED, that the Clerk of the Court serve copies of this MemorandumDecision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated:
January 14, 2019
Albany, New York
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