Bradley v. Astrue

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Bradley's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/30/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
GREGORY BRADLEY,
Plaintiff,

3:12-cv-1369
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Lachman, Gorton Law Firm
P.O. Box 89
1500 East Main Street
Endicott, NY 13761-0089
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
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

PETER A. GORTON, ESQ.

VERNON NORWOOD
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Gregory Bradley 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). (Compl., Dkt. No. 1.) After reviewing the administrative
record and carefully considering Bradley’s arguments, the court affirms the
Commissioner’s decision and dismisses the complaint.
II. Background
On April 16, 2010, Bradley filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since January 28, 2010.
(Tr.1 at 49-50, 98-102.) After his application was denied, (id. at 67-71),
Bradley requested a hearing before an Administrative Law Judge (ALJ),
(id. at 58). Pending that hearing, Bradley filed an application for SSI, which
was escalated to the hearing level so that both applications could be heard
together. (Id. at 405-11.) On March 5, 2012 Bradley appeared before the
ALJ for a hearing. (Id. at 441-73.) The ALJ issued an unfavorable

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)
2

decision on April 3, 2012, denying the requested benefits. (Id. at 14-29.)
The ALJ’s decision became the Commissioner’s final determination upon
the Social Security Administration Appeals Council’s denial of review. (Id.
at 6-10.)
Bradley commenced the present action by filing his complaint on
September 6, 2012 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. 7, 8.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 12.)
III. Contentions
Bradley contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 11 at 10-20.)
Specifically, Bradley claims that: (1) it was error for the ALJ to fail to obtain
the testimony of a vocational expert (VE) and the Appeals Council to fail to
find him disabled based on such testimony; (2) the ALJ improperly
evaluated the opinion of his treating psychiatrist; and (3) his credibility was
improperly assessed. (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. 12 at 12-20.)
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IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 11 at 1-10; Dkt. No. 12 at 2-9.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For
a 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.

Vocational Expert
First, Bradley contends that the ALJ should have obtained the

testimony of a VE. (Dkt. No. 11 at 11-13.) Using the same logic, Bradley
contends that testimony of a VE provided the Appeals Council a basis to
review the ALJ’s decision. (Id. at 10-11.) The court disagrees.

2

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

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 v. Chater, 77 F.3d 41, 45 (2d Cir.
1996). The Appeals Council “will then review the case if it finds that the
[ALJ]’s action, findings, or 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, Bradley submitted the deposition
testimony of VE Victor Alberigi. (Tr. at 415-22.) Alberigi testified that if an
individual of Bradley’s age, education, and work experience was limited to
sedentary work and was only able to understand, remember, and carry out
simple instructions, the occupational base for sedentary work would be
“materially limited.” (Id. at 419-20.) Additionally, Alberigi testified that a
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moderate limitation in concentration, persistence, and pace was the
equivalent of an inability to perform in those areas from sixteen to thirtythree percent of the time. (Id. at 421-22.) Alberigi further explained that, “if
that difficulty [in concentration, persistence, and pace] essentially
precluded the person from being able to discharge the functions of even an
unskilled job in an effective manner for [sixteen] percent of the workday,”
than the person would be unable to retain a job in the competitive labor
market. (Id. at 421-22.)
Initially, the Regulations provide that the “mental activities . . .
generally required by competitive, remunerative, unskilled work [include
u]nderstanding, carrying out, and remembering simple instructions[;
m]aking judgments that are commensurate with the functions of unskilled
work—i.e., simple work-related decisions[; r]esponding appropriately to
supervision, co-workers and usual work situations[; and d]ealing with
changes in a routine work setting.” SSR 96-9p, 61 Fed. Reg. 34,478,
34,483 (July 2,1996); see 20 C.F.R. § 404.1521(b)(3)-(6). Moreover, in
making a step-five ruling, an ALJ may rely on the Medical-Vocational
Guidelines found in 20 C.F.R. pt. 404, subpt. P, app. 2, as long as the
claimant’s age, education, work experience, and residual functional
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capacity (RFC)3 coincide with the criteria of a rule contained in those
Guidelines. See 20 C.F.R. § 404.1569; see also Calabrese v. Astrue, 358
F. App’x 274, 275 n.1 (2d Cir. 2009). However, when a claimant’s
nonexertional impairments “significantly limit the range of work permitted
by his exertional limitations,” the Commissioner “must introduce the
testimony of a [VE] (or other similar evidence) that jobs exist in the
economy which claimant can obtain and perform.” Bapp v. Bowen, 802
F.2d 601, 603, 605 (2d Cir. 1986)
Here, after noting the mental abilities required for unskilled work and
concluding that “the evidence establishes that the claimant has no
significant limitations in the performance of these basic mental demands of
work,” the ALJ applied the grid guidelines and found Bradley not disabled.
(Tr. at 28-29); see SSR 83-10, 1983 WL 31251, at *3 (1983) (explaining
that the rules contained in the grid guidelines “reflect[] the presence of
nonexertional capabilities sufficient to perform unskilled work at the
pertinent exertional levels”). Based on this determination, the Appeals
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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, 77 F.3d at 46.
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Council found that the ALJ did not err in failing to consult with a VE. (Tr. at
7.)
Bradley argues that the ALJ’s RFC determination—that Bradley
could, on a sustained basis, frequently understand, carry out, and
remember simple instructions, frequently respond appropriately to
supervision, co-workers, and usual work situations, and frequently deal
with changes in a work setting—is inconsistent with her later determination
that his nonexertional limitations did not significantly erode the
occupational base for sedentary work. (Dkt. No. 11 at 10-13; Dkt. No. 13,
Attach. 1 at 1-2; Tr. at 23.) According to Bradley, if he is limited to
performing the basic mental demands of work frequently, he would be
unable to perform such activities from one-third to two-thirds of the time.
(Dkt. No. 11 at 11.) Bradley points to the definition of the term “frequent” in
SSR 83-10, which defines “light work” as requiring frequent lifting and
carrying of objects weighing up to ten pounds, and explains that “‘[f]requent
means occurring from one-third to two-thirds of the time.” SSR 83-10,
1983 WL 31251, at *5-6. Despite this definition of “frequent” in relation to
light work, the Regulations provide no similar definition in terms of unskilled
work. Rather, the Regulations use the term “sustained basis” to describe
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the temporal requirements of unskilled work, specifically eight hours a day,
five days a week, or an equivalent work schedule. See SSR 96-9p, 61
Fed. Reg. at 34,483.
It may well be that “frequent” is a term of art under the Regulations,
however, in context, it is clear that the ALJ was using the term in the
vernacular sense,4 and her determination that Bradley could perform the
basic mental demands of unskilled work on a sustained basis is supported
by substantial evidence.5 (Tr. at 23, 26-27); infra Part VI.B. Accordingly,
the ALJ did not err in failing to consult with a VE, and Alberigi’s testimony
is irrelevant. See Bapp, 802 F.2d at 605-06 (holding that “[i]f the guidelines
adequately reflect a claimant’s condition, then their use to determine
disability status is appropriate”).
B.

Treating Source Rule
Bradley also argues that the ALJ’s decision to discount the opinion of

treating psychiatrist Damon Tohtz is not supported by substantial evidence.

4

Merriam–Webster lists the words “constant, regular, habitual, periodic, periodical,
repeated, steady” as synonyms for the word “frequent.” Merriam–Webster,
http://www.merriam-webster.com/dictionary/frequent (last visited Sept. 16, 2013).
5

“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).
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(Dkt. No. 11 at 13-16.) Further, Bradley contends that the ALJ failed to
provide good reasons for such decision, as required by the treating source
rule. (Id. at 14-16.) The Commissioner counters, and the court agrees,
that the ALJ properly evaluated Dr. Tohtz’s opinion, and her decision to
afford it less than controlling weight is supported by substantial evidence.
(Dkt. No. 12 at 12-15.)
Controlling weight will be given to a treating source’s opinion on the
nature and severity of a claimant’s impairments where it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent 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).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. 20 C.F.R. § 404.1527(c)(2)-(6). 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]
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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. (citation omitted).
Here, Dr. Tohtz opined that Bradley suffered a serious limitation in
the areas of maintaining attention and concentration for extended periods
of time, and completing a normal work day and work week without
interruptions from symptoms and performing at a consistent pace. (Tr. at
318.) However. Dr. Tohtz also explained that Bradley’s “mental condition
is well-controlled and has been for the last couple of years on his current
medication, his mental condition is not an issue.” (Id. at 319.) The ALJ
considered Dr. Tohtz’s opinion and gave it “more weight” than the opinion
of Bradley’s former treating psychiatrist Tahirul Hoda because his
statement that Bradley’s mental impairment “is not an issue” is consistent
with the record. (Id. at 26-27.) However, the ALJ concluded that Dr.
Tohtz’s opinion regarding Bradley’s stamina, concentration, and
persistence is not consistent with the longitudinal medical evidence of
record. (Id. at 27.) The ALJ pointed out various occasions when Dr. Tohtz
indicated that Bradley’s recent and remote memory skills were intact. (Id.
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at 23, 225-26, 340-43, 346-48.) In addition, Dr. Tohtz’s opinion with
respect to concentration, persistence, or pace is inconsistent with the
opinion of psychological consultant L. Blackwell. (Id. at 23, 308-11.) Thus,
the ALJ “acknowledged Dr. Tohtz’s limitations by limiting [Bradley] to only
the basic mental demands of unskilled work,” as opposed to semi-skilled
work, which he had performed in the past. (Id. at 27.)
In weighing the opinion evidence of record, the ALJ explicitly
referenced 20 C.F.R. §§ 404.1527 and 416.927, as well as relevant social
security rulings. (Id. at 24.) The ALJ also undertook a thorough discussion
of the medical evidence of record which suggested impairments less
severe than those articulated by Dr. Tohtz. (Id. at 23, 25-27.) Finally, it is
evident from the ALJ’s direct citation to “extensive treatment notes”
spanning a more than two-year-period, (Id. at 23, 25-27), that the nature
and duration of Dr. Tohtz’s treatment relationship with Bradley were
properly considered. As it is clear that he properly applied section
404.1527(c), the ALJ did not err in failing to methodically discuss each
individual factor, and his assessment of Dr. Tohtz’s opinion is legally
sound. See SSR 06-03p, 71 Fed. Reg. 45,593, 45,596 (Aug. 9, 2006)
(“Not every factor for weighing opinion evidence will apply in every case.”).
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Bradley’s argument that the ALJ’s decision to discount Dr.Tohtz’s
assessment is not supported by substantial evidence is similarly
unavailing. As noted by the ALJ, throughout the relevant period, Bradley
denied any manic or depressive symptoms and expressed no acute
concerns. (Tr. at 22, 25, 225, 230, 264, 280, 337, 340, 343-44, 346, 35152, 364, 369, 377-78.) Bradley also consistently indicated that he was
functioning relatively well, and treatment notes reveal that he reported
eating, sleeping and enjoying activities regularly. (Id. at 225, 280, 340,
343-44, 346, 351-52, 364, 372, 377-78.) In July 2009, Dr. Tohtz assigned
Bradley a Global Assessment of Functioning (GAF)6 score of sixty-five,
indicating some mild symptoms or some difficulty in social or occupational
functioning. (Id. at 280-82); Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed., Text Rev. 2000). Thereafter, Dr. Tohtz consistently
assigned Bradley GAF scores suggesting mild symptoms or difficulty.7 (Tr.
at 232, 266, 282, 337, 343, 348, 366, 371, 374, 379.) Moreover,

6

The GAF Scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d
Cir. 2004).
7

On one occasion, in December 2009, Dr. Tohtz assessed a GAF score of fifty-five,
indicating moderate symptoms or moderate difficulty in social or occupational functioning. (Tr.
at 249); Diagnostic and Statistical Manual of Mental Disorders at 34.
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throughout the record, Bradley’s mental status examinations were largely
benign, as Bradley was found to have good eye contact, an appropriate
affect, normal mood, and intact thought processes, memory, cognitive
function, insight, and judgment. (Id. at 225-27, 230-32, 264-65, 280-82,
336-37, 340-42, 344-48, 352-53, 364-66, 369-70, 372-73, 378-79.) Dr.
Tohtz repeatedly noted that Bradley’s mental status examinations were
stable, and that his symptoms were well controlled by medication. (Id. at
265, 282, 337-38, 341-42, 345, 347, 353, 370, 373, 379.) Accordingly, the
ALJ provided sufficient reasons for discounting portions of Dr. Tohtz’s
opinion, and her decision to do so is supported by substantial evidence.
C.

Credibility
Finally, Bradley contends that the ALJ erred in evaluating his

credibility, arguing that the reasons provided by the ALJ for discounting his
testimony are not supported by the record. (Dkt. No. 11 at 16-20.)
According to the Commissioner, the ALJ’s credibility determination was
legally sound and is supported by substantial evidence. (Dkt. No. 12 at 1617.) The court again agrees with the Commissioner.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
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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, 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-CV444, 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)).
In this case, the ALJ found Bradley’s statements concerning the
intensity, persistence, and limiting effects of his symptoms “partially
credible.” (Tr. at 25.) The ALJ explained that the medical and opinion
15

evidence contradicted Bradley’s subjective complaints. (Id. at 22-23, 2527.) Specifically, Bradley testified that he suffered severe restrictions to his
activities of daily living, which was inconsistent with Dr. Tohtz’s treatment
notes. (Id. at 22, 225, 280, 340, 343-44, 346, 351-52, 364, 372, 377-78,
453-58, 460-61.) Bradley also testified that he has significant difficulty
interacting with others, but Dr. Tohtz opined that Bradley suffered no
limitations in his ability to interact with others. (Id. at 22-23, 457, 464-65,
319.) Although Bradley testified that he soils himself three to four times a
week as a side effect of his medication, treatment notes are devoid of such
complaints, and Dr. Tohtz noted that Bradley reported no side effects of his
medication. (Id. at 225, 227, 237, 253, 280, 320, 340, 343-44, 352, 361,
371-72, 374-75.) The ALJ also noted that Bradley left his last job due to
downsizing, reported working after his alleged onset date, and collected
unemployment benefits after his alleged onset date.8 (Id. at 25, 103-04,
150, 199, 352, 372, 469.) Further, the ALJ noted that Bradley was not

8

Despite Bradley’s assertions, (Dkt. No. 11 at 17-18), an ALJ may consider evidence
that a claimant received unemployment benefits and/or certified that he was ready, willing, and
able to work during the time period for which he claims disability benefits as one factor relevant
to assessing credibility. See Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005); Andrews
v. Astrue, Civ. No. 7:10-CV-1202, 2012 WL 3613078, at *12-13 (N.D.N.Y. Aug. 21, 2012);
House v. Comm’r of Soc. Sec., No. 09-CV-913, 2012 WL 1029657, at *12 (N.D.N.Y. Feb. 29,
2012).
16

always compliant with his prescribed treatment. (Id. at 25, 267, 366.)
Ultimately, the ALJ explicitly acknowledged consideration of 20
C.F.R. § 404.1529, (Tr. at 24), and it is evident from her thorough
discussion that her credibility determination was legally sound. See
Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y.
June 25, 2012) (“[F]ailure to expressly consider every factor set forth in the
regulations is not grounds for remand where the reasons for the ALJ’s
determination of credibility are sufficiently specific to conclude that she
considered the entire evidentiary record.” (internal quotation marks and
citation omitted)). Additionally, the ALJ’s determination that Bradley’s
subjective complaints were partially credible is supported by substantial
evidence. (Tr. at 25-26.)
E.

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
Bradley’s complaint (Dkt. No. 1) is DISMISSED; and it is further
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ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
September 30, 2013
Albany, New York

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