Marvin v. Astrue

Filing 21

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with the Order. Signed by Chief Judge Gary L. Sharpe on 3/31/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DAWN MARVIN,
Plaintiff,

3:12-cv-1779
(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.

JOANNE JACKSON
TOMASINA DIGRIGOLI
Special Assistant U.S. Attorneys

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Dawn Marvin 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 Marvin’s arguments, the Commissioner’s
decision is reversed and remanded for further administrative proceedings.
II. Background
On August 20, 2008, Marvin filed applications for DIB and SSI under
the Social Security Act (“the Act”), alleging disability since January 1, 2006.
(Tr.1 at 96-97, 208-10, 211-17.) After her applications were denied, (id. at
120-25), Marvin requested a hearing before an Administrative Law Judge
(ALJ), (id. at 133-35), which was held on February 22, 2010 and October
12, 2011, (id. at 30-71, 72-95). On November 4, 2011, the ALJ issued an
unfavorable decision denying the requested benefits, which became the
Commissioner’s final determination upon the Social Security Administration

1

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

8.)
2

Appeals Council’s denial of review. (Id. at 1-5, 7-29.)
Marvin commenced the present action by filing her complaint on
December 4, 2012, wherein she sought review of the Commissioner’s
determination. (See generally 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. 17, 18.)
III. Contentions
Marvin contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 17 at 7-25.)
Specifically, Marvin claims that: (1) the ALJ did not consider all of the
relevant evidence, as he failed to mention Marvin’s low Global Assessment
of Functioning (GAF) scores; (2) the ALJ committed factual and legal
errors at step three, by failing to find that Marvin met listing 12.04; (3) the
ALJ’s determination of Marvin’s mental residual functional capacity (RFC)
was unsupported by substantial evidence because the ALJ improperly
assessed Marvin’s treating providers’ opinions and afforded improper
weight to agency consultants; (4) the ALJ erred in assessing Marvin’s
credibility; and (5) the ALJ committed legal errors at step five because he
improperly relied on a vocational expert’s (VE) telephonic testimony in
3

determining that there was a significant number of jobs available to Marvin
and failed to consider Marvin’s ability to work on a consistent basis. (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. 18 at 2-22.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 17 at 1-7; Dkt. No. 18 at 2.)
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).

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

VI. Discussion
A.

Failure to Consider GAF Scores
First, Marvin argues that the ALJ committed legal error when he

failed to consider her GAF scores. (Dkt. No. 17 at 12-13.) The
Commissioner counters, and the court agrees, that the ALJ was not
required to explicitly mention the GAF scores. (Dkt. No. 18 at 8-9.)
Under 20 C.F.R. § 404.1520(3), the ALJ must “consider all evidence”
in order to determine whether a claimant is disabled. It is also true,
however, that an ALJ “is not required to discuss all the evidence submitted,
and his failure to cite specific evidence does not indicate it was not
considered.” Santos v. Astrue, 709 F. Supp. 2d 207, 211 (S.D.N.Y. 2010)
(quoting Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 79
(N.D.N.Y. 2005)); see Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.
1983) (“When . . . the evidence of record permits [the court] to glean the
rationale of an ALJ’s decision, we do not require 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.”).
As relevant here, GAF is a scale that indicates a clinician’s overall
5

opinion of an individual’s psychological, social, and occupational
functioning. See Petrie v. Astrue, 412 F. App’x 401, 406 n.2 (2d Cir. 2011)
(citing American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders 376-77 (4th ed., text revision, 2000)). GAF scores
between fifty-one and sixty indicate that the individual “has moderate
symptoms or moderate difficulty in social, occupational, or school
situations.” Id.; see Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir.
2012). GAF scores of forty-one to fifty indicate that the individual has
“serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).”
Stewart v. Astrue, No. 10-CV-3032, 2012 WL 314867, at *2 n.1 (E.D.N.Y.
Feb. 1, 2012) (internal quotation marks and citations omitted).
Here, Marvin contends that the ALJ’s failure to explicitly mention her
“consistently low GAF scores” was legal error. (Dkt. No. 17 at 12-13.)
Marvin’s GAF scores ranged from forty-eight to sixty, with a score of fiftyfive being the most consistent. (Tr. at 368, 388, 401, 413, 527, 536-541,
543-50, 631, 666-67, 670-74.) While it is true that GAF scores may be
relevant to an ALJ’s severity and RFC determinations, see Parker-Grose,
6

462 F. App’x at 17-18; Ortiz Torres v. Colvin, 939 F. Supp. 2d 172, 184
(N.D.N.Y. 2013), the ALJ need not explicitly mention the GAF score, see
Ortiz Torres, 939 F. Supp. 2d at 184 (“This Court rules that the hearing
officer’s failure to discuss the [GAF] scores does not constitute an error
worthy of remand.”); Dwyer v. Astrue, 800 F. Supp. 2d 542, 548 (S.D.N.Y.
2011) (noting that “the ALJ’s failure to mention [the claimant’s] GAF of
[fifty] is insufficient to conclude that she failed to consider it”). Here, as an
initial matter, the ALJ determined that Marvin’s impairments were severe,
rendering his failure to explicitly mention Marvin’s GAF score insignificant
with respect to the severity determination. (Tr. at 13-15.) Further, the
court is satisfied that the ALJ properly considered all of the evidence
available to him. Indeed, the ALJ discussed at length the opinion of
consultative psychological examiner Dr. Mary Ann Moore, which reflected
Marvin’s lowest GAF score of forty-eight. (Tr. at 13, 20, 631.) Thus, the
ALJ’s failure to state Marvin’s GAF scores does not amount to legal error.
B.

Listing 12.04
Second, Marvin contends that the ALJ committed factual and legal

errors at step three because Marvin’s mental impairment meets the
requirements of listing 12.04, specifically paragraphs A and B. (Dkt. No.
7

17 at 21-22.) In opposition, the Commissioner argues that the ALJ’s listing
determination is supported by substantial evidence.3 (Dkt. No. 18 at 2022.) The court agrees with the Commissioner.
By way of background, affective disorders, which are “[c]haracterized
by a disturbance of mood, accompanied by a full or partial manic or
depressive syndrome,” constitute a listing level impairment, and
presumptive disability, provided that the claimant meets the requirements
set forth in paragraphs A and B, or the claimant satisfies the requirements
set forth in paragraph C, of listing 12.04. See 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.04. Here, the parties do not dispute whether the paragraph A
criteria were met, but instead address only the paragraph B criteria.4
Paragraph B requires that a claimant’s mental impairment result in at least
two of the following: “(1) [m]arked restriction of activities of daily living; or
(2) [m]arked difficulties in maintaining social functioning; or (3) [m]arked
difficulties in maintaining concentration, persistence, or pace; or (4)

3

“Substantial evidence is defined as more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept to support a conclusion.” Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).
4

Marvin mostly takes issue with the ALJ’s reliance on non-treating sources. (Dkt.
No. 17 at 20-22.) Although the court addresses below the ALJ’s apportionment of weight
among the medical sources, see infra Part VI.C, the court nevertheless considers whether
substantial evidence supports the ALJ’s listing determination.
8

[r]epeated episodes of decompensation, each of extended duration.” 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.04(B).
Here, ultimately concluding that the paragraph B criteria were not
met, the ALJ found that Marvin suffered from mild limitations in activities of
daily living, mild restrictions in social functioning, moderate difficulties with
regard to concentration, persistence or pace, and no episodes of
decompensation. (Tr. at 15-17.) In so deciding, the ALJ predominantly
relied on the opinions of consulting examining physicians Drs. Justine
Magurno and Dennis Noia, and treatment notes from FNP Ryan Little. (Id.
at 16, 429-32, 433-37, 672-73.)
First, with respect to activities of daily living, the record establishes
that Marvin is able to care for her three children, cook, clean, do laundry,
shop, attend to her own personal hygienic needs, watch television, listen to
the radio, and take the bus several times each week. (Id. at 82, 84-86, 9091, 431-32, 434, 454.) Thus, substantial evidence supports the ALJ’s
decision that Marvin suffered from only a mild impairment in activities of
daily living.
Second, with respect to social functioning, the record establishes that
Marvin socializes with friends and family, has a boyfriend, spends most
9

days caring for her children—occasionally taking them to the park and to
the mall—travels to the methadone clinic several times each week, and
meets with two separate counselors/clinicians. (Id. at 84-85, 86-89, 90-91,
431-32, 434, 454.) Given this evidence, the ALJ’s decision that Marvin has
only mild restrictions in social functioning is supported by substantial
evidence.
Third, with regard to concentration, persistence, and pace, Marvin is
able to manage money, do counting, simple calculations, and serial threes,
and Dr. Noia noted that “[h]er attention and concentration [were] intact.”
(Id. at 431-32.) Additionally, consulting non-examining physician Dr. Maria
Morog concluded that Marvin was “not significantly limited” with respect to
most areas regarding her ability to sustain concentration and persistence.
(Id. at 452-54.) Nevertheless, as the ALJ noted, Marvin has a history of
drug and alcohol abuse, and relapsed on alcohol as recently as January
2011 and on drugs as recently as May 2007. (Id. at 16, 430, 672-73.) The
ALJ also cited FNP Little’s notation in a February 1, 2011 report that
Marvin reported decreased concentration. (Id. at 16, 672-73.) While
Marvin certainly has some limitations, the ALJ’s determination that she
suffered from moderate restrictions in concentration, persistence, and pace
10

is supported by substantial evidence.
Finally, there is no evidence that Marvin suffered any episodes of
decompensation. While Marvin points to her prior hospitalizations to refute
the ALJ’s statement that “[t]here is no evidence of psychiatric
hospitalization,” (Dkt. No. 18 at 21; Tr. at 16), all of Marvin’s
hospitalizations occurred prior to her alleged onset date of January 1,
2006, (Tr. at 522, 628). Thus, the ALJ correctly determined that the
paragraph B criteria were not met, and the ALJ’s conclusion that Marvin
does not meet the 12.04 listing is supported by substantial evidence.
C.

RFC Determination
The ALJ found Marvin to retain the RFC5 to perform light work, and

that, mentally, she is
able to understand, carry out, and remember simple
instructions, use appropriate judgment to make simple work
related decisions, respond appropriately to supervision, coworkers, and usual work situations, and deal with changes in
a routine work setting. [However, she] should have no more
than occasional interaction with co-workers, supervisors, and
the general public in an occupation with little change in job
duties or routine on a daily basis.
5

A claimant’s RFC “is the most [she] can still do despite [her] 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. at § 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).
11

(Id. at 17.) Marvin takes issue only with the ALJ’s determination of her
mental RFC. (Dkt. No. 17 at 16-20, 22-23.)
The thrust of Marvin’s argument is that the ALJ’s misappropriation of
weight to the medical sources resulted in a flawed RFC determination.
(Id.) The Commissioner counters that the ALJ properly discounted
acceptable treating sources’ opinions and RFC assessments because they
were inconsistent with other substantial evidence in the record. (Dkt. No.
18 at 12-21.) The court agrees with the Commissioner.
In determining a claimant’s RFC, evidence from multiple sources
often conflicts, thus requiring administrative law judges to make credibility
assessments, and decide how much weight to give particular items of
evidence. See Mauzy v. Colvin, No. 5:12-cv-866, 2014 WL 582246, at *6
(N.D.N.Y. Feb. 13, 2014). Through various regulations and internal policy
rulings, the Commissioner provides guidance in the form of protocols for
determining credibility of subjective testimony,6 opinions of “treating”
sources,7 opinions of “acceptable” medical sources,8 and opinions of
6

See 42 U.S.C. § 1382c (a)(3)(A); 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p, 61
Fed. Reg. 34,483, 34,484-85 (July 2, 1996).
7

See 20 C.F.R. § 404.1502 (“Treating source means your own physician,
psychologist, or other acceptable medical source who provides you, or has provided you,
12

“other” medical sources.9 Generally, they follow similar patterns.
Testimony and other evidence are compared to objective factors that
enhance or support credibility. The closer the evidence matches objective
factors, the more likely its credibility.
With this guidance in mind, the court is also mindful that, generally,
an ALJ is required to give controlling weight to a treating physician’s
medical opinion if it is supported by acceptable diagnostic techniques and
is not inconsistent with other substantial evidence in the record. See 20
C.F.R. § 404.1527(c)(2); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004). The ALJ is required to explain the weight he gives to the opinions
of a treating physician. See 20 C.F.R. § 404.1527(c)(2). When an ALJ
does not give a treating physician’s opinion controlling weight, he must
assess several factors to determine how much weight to give the opinion,

with medical treatment or evaluation and who has, or has had, an ongoing treatment
relationship with you.”).
8

See 20 C.F.R. § 404.1513(a). “Acceptable medical source refers to one of the
sources described in § 404.1513(a) who provides evidence about your impairments. It
includes treating sources, nontreating sources, and nonexamining sources.” 20 C.F.R.
§ 404.1502. Only “acceptable” medical sources may give medical opinions and be
considered treating sources whose medical opinions may be entitled to controlling weight.
See SSR 06-03p, 71 Fed. Reg. 45,593, 45,594 (Aug. 9, 2006)..
9

“Other” sources are ancillary providers such as nurse practitioners, physician
assistants, licensed clinical social workers, and therapists. 20 C.F.R. § 404.1513(d); SSR
06-03p, 71 Fed. Reg at 45,594.
13

including: (1) the length, nature, and extent of the treatment relationship;
(2) the frequency of examination by the treating physician for the conditions
in question; (3) the medical evidence and explanations provided in support
of the opinion; (4) the consistency of the opinion with the record as a
whole; (5) the qualifications of the treating physician; and (6) other relevant
factors tending to support or contradict the opinion. See id.
§ 404.1527(c)(2)-(6). Additionally, the opinion of a non-examining source
can override the opinion of an examining source if it is supported by
evidence in the record. See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir.
1995); see also Netter v. Astrue, 272 F. App’x 54, 55-56 (2d Cir. 2008);
Beasock v. Colvin, No. 6:12-cv-1355, 2014 WL 421324, at *9 (N.D.N.Y.
Feb. 4, 2014); Everson v. Comm’r of Soc. Sec., No. 6:11-cv-901, 2012 WL
3061944, at *2 (N.D.N.Y. July 26, 2012). The court now turns to the weight
afforded to each medical source.
1.

Examining Psychiatric Consultant Dr. Noia

First, the ALJ gave significant weight to the report completed by Dr.
Noia “due to [his] programmatic expertise and examinations of [Marvin],”
and also because his conclusions were consistent with the record. (Tr. at
19-20, 429-32.) Dr. Noia diagnosed Marvin with depressive disorder NOS,
14

panic disorder NOS, crack cocaine and cannibus use—in full
remission—and heroine addiction—maintained with methadone. (Id. at
432.) He further opined that Marvin is capable of understanding and
following simple instructions and directions, performing simple and some
complex tasks with supervision and independently, maintaining attention
and concentration for tasks, attending to a routine and maintaining a
schedule, learning new tasks, making appropriate decisions, and relating
to and interacting moderately well with others. (Id.)
Upon review of the record, the court is satisfied that Dr. Noia’s
opinion is consistent with the rest of the medical evidence. Indeed,
although Marvin contends that Dr. Noia’s report is insufficient because it
fails to mention Marvin’s past hallucinations and suicidal ideation, (Dkt. No.
17 at 18), Dr. Noia’s report discusses her “history of psychiatric
hospitalizations, including 2002, Strong Memorial Hospital,” and her history
of panic attacks, (Tr. at 429). Additionally, consistent with Marvin’s medical
records and testimony, Dr. Noia’s report states and considers Marvin’s
history of drug use, (id. at 389, 430), and notes that her symptoms of
depression and panic attacks have improved with treatment, (id. at 37,
430).
15

Moreover, in his medical source statement, Dr. Noia opines that
Marvin can regularly attend to a routine and maintain a schedule, which is
supported by her documented ability to go to the methadone clinic for
treatment six days per week and her ability to maintain a routine with her
children. (Id. at 86-88, 89-91, 432.) Further, despite Marvin’s objections
that the record proves otherwise, (Dkt. No. 17 at 18), Dr. Noia’s conclusion
that Marvin can maintain concentration and attention is corroborated by Dr.
Moore’s evaluation, which indicated that Marvin’s ability to maintain
attention and concentration was normal. (Tr. at 432, 630); see Bonet ex
rel. T.B. v. Colvin, 423 F. App’x 58, 59 (2d. Cir. 2013) (noting that “whether
there is substantial evidence supporting the appellant’s view is not the
question;” instead, the court must “decide whether substantial evidence
supports the ALJ’s decision”). Finally, Dr. Noia’s medical source statement
also accounts for some of Marvin’s documented limitations, and states that
she interacts “moderately well” with others and “has a history of difficulty
dealing with stress.” (Tr. at 432.)
2.

Non-Examining Psychological Consultant Dr. Morog

Second, the ALJ gave “some weight” to the reports of Dr. Morog due
to her programmatic expertise and review of Marvin’s medical records. (Id.
16

at 20, 438-51, 452-55.) Dr. Morog completed a psychiatric review
technique and a mental RFC assessment. (Id. at 438-51, 452-55.) She
concluded that Marvin was not significantly limited in most areas of
understanding and memory, sustained concentration and persistence,
social interaction, and adaptation. (Id. at 452-53.)
Marvin contends that Dr. Morog gave no explanation for her opinions,
and, therefore, they are not entitled to any weight. (Dkt. No. 17 at 19.)
However, Dr. Morog fully explained her opinions. (Tr. at 454.) In her
functional capacity assessment, Dr. Morog cited Marvin’s history of drug
abuse, past psychiatric hospitalizations, and current methadone treatment.
(Id.) Dr. Morog also explained that Marvin’s “statements regarding workrelated mental limitations,” including her difficulty concentrating and
completing tasks, hesitation to being around people, and anxiety, “are
credible,” but that, given her daily activities, such as caring for her children,
reading, going to the methadone clinic, and socializing, “it is not credible
that [Marvin’s] symptoms have been of such intensity, frequency or
duration as to preclude all work activity.” (Id.) As mentioned above, see
supra Part VI.C, when a non-examining physician’s opinions are explained
and consistent with the record—as Dr. Morog’s are here—the non17

examining physician’s opinions may override those of an examining
physician. See Diaz, 59 F.3d at 313 n.5; Thompson v. Comm’r of Soc.
Sec., No. 7:10-CV-1085, 2011 WL 5080239, at *10 n.5 (N.D.N.Y. Aug. 18,
2011).
3.

Examining Psychological Consultant Dr. Moore

Third, the ALJ gave reduced weight to Dr. Moore’s assessment
because she was not a treating source and because her conclusions were
inconsistent with the record medical evidence. (Tr. at 20, 627-34.) Dr.
Moore concluded that Marvin was experiencing major depression with
posttraumatic stress as well as panic disorder with agoraphobia and a
reading disorder. (Id. at 633.) Her diagnostic impression was that Marvin
appeared permanently disabled. (Id.)
The ALJ determined that Dr. Moore’s opinion was inconsistent with
the record because, while Dr. Moore indicated that Marvin was very limited
from using public transportation, at the hearing, Marvin testified that she
rides the bus almost daily. (Id. at 20, 86, 631.) The ALJ further explained
that Dr. Moore’s opinion was inconsistent with the record because, while
Dr. Moore stated that Marvin would have difficulty maintaining a schedule,
the record indicates that she regularly attends her methadone treatment
18

and appointments. (Id. at 20, 86-88.) Insofar as Dr. Moore’s opinion
conflicted with the other opinions in the record, the ALJ acted within his
discretion in affording it less weight, because “[g]enuine conflicts in the
medical evidence are for the Commissioner to resolve,” Veino v. Barnhart,
312 F.3d 578, 588 (2d Cir. 2002), and making credibility determinations is
within the ALJ’s province, Mauzy, 2014 WL 582246, at *6. Moreover, even
if substantial evidence did support Dr. Moore’s viewpoints here, the court
must uphold the Commissioner’s finding, because “[w]here there is
substantial evidence to support either position, the determination is one to
be made by the factfinder.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990); see DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998).
4.

FNP Little

Fourth, the ALJ gave reduced weight to FNP Little because “he is not
an acceptable medical source,” yet the ALJ did consider FNP Little’s
reports for functional limitations, given his treating relationship with Marvin.
(Tr. at 20, 464-65, 466-89, 490-94.) FNP Little opined that Marvin was not
capable of any work activity, (id. at 464-65), and that she was extremely
limited in concentration and pace, in her ability to interact with others, and
in her ability to adapt and manage stress, and that her mental impairment
19

would likely cause her to be absent from work more than three days per
month, (id. at 490-91). Despite his treating relationship with Marvin,
however, the ALJ determined that FNP Little’s conclusions that Marvin
suffered from extreme limitations were “wholly inconsistent with the
longitudinal medical evidence in the record and [Marvin’s] reported
activities of daily living,” and that he otherwise made conclusory statements
on issues reserved to the Commissioner. (Id. at 20.)
As an initial matter, contrary to Marvin’s assertion, (Dkt. No. 17 at
17), it was appropriate for the ALJ to discount FNP Little’s opinion
because, as discussed above, see supra Part VI.C., he is a nurse
practitioner, and therefore, his opinions are considered “other” medical
sources, which are not entitled to the controlling weight generally afforded
to “acceptable” medical sources, such as physicians or psychologists. See
20 C.F.R. §§ 404.1502, 404.1513(a) & (d); SSR 06-03p, 71 Fed. Reg. at
43,594. Furthermore, like Dr. Moore’s opinion discussed above, Marvin’s
activities of daily living belie the extreme limitations suggested by FNP
Little. In particular, despite the fact that Marvin herself has stated that she
occasionally goes to the mall and park with her children, is able to maintain
a childcare routine, regularly takes the bus to the methadone clinic for
20

treatment, and spends her free time socializing with friends and family, (Tr.
at 84-85, 86-87, 90-91, 432, 434), FNP Little concluded that Marvin’s
abilities to interact appropriately with the general public, perform activities
within a schedule, maintain regular attendance and/or be punctual within
customary tolerances, and sustain ordinary routine without special
supervision were extremely limited, (id. at 490-91).
5.

Treating Psychiatrist Dr. Kaneria

Finally, the ALJ gave “very little weight” to treating psychiatrist Dr.
S.J. Kaneria, because his treatment notes are inconsistent with the record.
(Id. at 20.) Dr. Kaneria opined that Marvin had marked restrictions in
concentration and persistence, in her ability to interact with others, and in
her ability to adapt and manage stress. (Id. at 640-42.) He also stated
that Marvin’s symptoms would cause her to be absent from work more than
three days per month. (Id. at 641.)
In making his determination, the ALJ noted that, despite Marvin’s
well-documented history of drug use and methadone maintenance, in Dr.
Kaneria’s March 22, 2011 initial intake, he omits that Marvin is on
methadone maintenance and instead states that she does not have a
history of drug or alcohol use. (Id. at 20, 518-626, 635-39.) The ALJ
21

surmised that Marvin misstated her drug use and medical history so that
Dr. Kaneria would prescribe her Klonopin—previously, on February 1,
2011, Marvin requested Klonopin from a nurse practitioner at her
outpatient mental health clinic, and after it was explained to her that
Klonopin is not prescribed to individuals on methadone treatment, she
became upset and stated that she would go elsewhere to find a doctor
willing to prescribe Klonopin for her. (Id. at 20, 635, 672.) The ALJ
concluded that Marvin’s “failure to give a correct history to the doctor
significantly reduces the weight attributable to his evaluations and
opinions.” (Id. at 20.)
Given this significant and material inconsistency with the rest of the
record, the ALJ did not err in affording Dr. Kaneria very little weight. See
20 C.F.R. § 404.1527(c)(2)(4) (“Generally, the more consistent an opinion
is with the record as a whole, the more weight we will give to that
opinion.”). The ALJ fully explained his determination, and it is not for the
court to disturb his thoughtful and well-reasoned credibility determination.
See Mauzy, 2014 WL 582246, at *6.
Ultimately, although the ALJ could have discussed the factors listed
in 20 C.F.R. § 404.1527(c)(2)-(6) in more detail, this shortcoming does not
22

amount to error because his final determination is supported by substantial
evidence. Thus, the ALJ’s RFC determination is free from legal error and
supported by substantial evidence.
D.

Credibility Assessment
Marvin next argues that the ALJ did not apply the appropriate legal

standards in assessing her credibility. (Dkt. No. 17 at 14-16.) The
Commissioner argues, and the court agrees, that, in light of
inconsistencies in the record that call into question Marvin’s credibility, it
was reasonable for the ALJ to find Marvin’s subjective allegations only
partially credible. (Dkt. No. 18 at 9-12.)
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[ ] that could reasonably be expected to produce
the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
23

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)).
Here, the ALJ found that Marvin’s statements concerning the
intensity, persistence, and limiting effects of her symptoms were only
partially credible. (Tr. at 18.) In making his determination, the ALJ relied
on Marvin’s treatment records, activities of daily living, and hearing
testimony. (Id.) Although the ALJ did not undertake a step-by-step
exposition of the factors articulated in 20 C.F.R. § 404.1529(c), “[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 he considered the entire evidentiary
record.” Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6
24

(W.D.N.Y. June 25, 2012) (internal quotation marks and citation omitted);
see Oliphant v. Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22
(E.D.N.Y. Aug. 14, 2012) (stating that the 20 C.F.R. § 404.1529(c)(3)
factors are included as “‘examples of alternative evidence that may be
useful [to the credibility inquiry], and not as a rigid, seven-step prerequisite
to the ALJ’s finding’” (quoting Snyder v. Barnhart, 323 F. Supp. 2d 542,
546 (S.D.N.Y. 2004))). Here, the ALJ explicitly acknowledged
consideration of the 20 C.F.R. § 404.1529 factors, (Tr. at 17), and it is
evident from his thorough discussion that his credibility determination was
legally sound. See Britt v. Astrue, 486 F. App’x 161, 164 (2d Cir. 2012)
(finding explicit mention of 20 C.F.R. § 404.1529 and SSR 96-7p as
evidence that the ALJ used the proper legal standard in assessing the
claimant’s credibility).
Further, and importantly, inconsistencies in Marvin’s statements and
admitted-to misrepresentations throughout the record call her credibility
into question. For example, as the ALJ noted, at the hearing, Marvin
testified that she rides the bus—albeit anxiously—nearly every day, (Tr. at
40, 86-87), but she told Dr. Moore that she cannot use public
transportation, (id. at 631). Additionally, as noted above, see supra Part
25

VI.C.5, Marvin completely omitted her history of drug and alcohol use to Dr.
Kaneria during an initial intake interview. (Id. at 635.) Lastly, an April 14,
2011 treatment note states that Marvin “[a]cknowledges [that] she feigned
mental health symptoms when in jail previously so as to receive
medications which would significantly sedate her.” (Id. at 669.) Given
these inconsistencies and misrepresentations, and considering Marvin’s
daily activities, the ALJ’s credibility assessment is supported by substantial
evidence and free from legal error.
E.

Step Five Determination
Next, Marvin contends that the ALJ committed legal errors at step

five. (Dkt. No. 17 at 7-12, 23-25.) Specifically, Marvin makes three
arguments: (1) the VE’s testimony via telephone, over Marvin’s objection,
was legal error; (2) the VE’s testimony did not establish that there were a
significant number of jobs available to Marvin in the national and regional
economy; and (3) the ALJ failed to consider Marvin’s ability to work on a
consistent basis. (Id.) The Commissioner argues that the ALJ’s step five
determination was free from legal error and supported by substantial
evidence. (Dkt. No. 18 at 5-8.) The court agrees with Marvin that remand
is required because the VE’s testimony was insufficient to support a finding
26

that a significant number of jobs exist in the national economy.10
Where a claimant is able to demonstrate that her impairments
prevent a return to past relevant work, as is the case here, (Tr. at 20-21),
the burden then shifts to the Commissioner to prove that a job exists in the
national economy which the claimant is capable of performing. See
Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (quoting Carroll v. Sec’y
of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)); see also 20
C.F.R. § 404.1560(c). 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 RFC coincide with the criteria of a rule contained in those
Guidelines. See 20 C.F.R. § 416.969; 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

10

Given this conclusion, the court need not address Marvin’s first argument: that the
VE’s testimony via telephone, over Marvin’s objection, was reversible error. Nevertheless,
the court is cognizant that there is a split among the district courts in this Circuit on this
issue. Compare Palaschak v. Astrue, No. 3:08-cv-1172, 2010 WL 1257895, at *3-5
(N.D.N.Y. Mar. 26, 2010) (holding that the ALJ’s reliance on the VE’s telephonic testimony
constituted harmless error), with Koutrakos v. Astrue, No. 3:11 CV 306, 2012 WL 1283427,
at *4-7 (D. Conn. Jan. 9, 2012) (holding that the ALJ’s decision to allow the VE to testify
telephonically “clearly violates the SSA’s governing regulations” and constitutes reversible
error). The court also need not consider Marvin’s third argument—that the ALJ failed to
consider Marvin’s ability to work on a consistent basis.
27

by his exertional limitations,” the Commissioner “must introduce the
testimony of a vocational expert (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).
The VE may testify as to the existence of jobs in the national
economy and as to the claimant’s ability to perform any of those jobs, given
her functional limitations. See Colon v. Comm’r of Soc. Sec., No. 6:00 CV
0556, 2004 WL 1144059, at *6 (N.D.N.Y. Mar. 22, 2004). A vocational
expert’s testimony is useful only if it addresses whether the particular
claimant, with her limitations and capabilities, can realistically perform a
particular job. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981).
The ALJ is responsible for determining the claimant’s capabilities based on
all the evidence, and the hypothetical questions must present the full
extent of the claimant’s impairments to provide a sound basis for the VE’s
testimony. Colon, 2004 WL 1144059, at * 6. However, there must be
“‘substantial record evidence to support the assumption upon which the
[VE] based [her] opinion.’” Id. at *6 (quoting Dumas v. Schweiker, 712
F.2d 1545, 1554 (2d Cir. 1983)).
As relevant here, “‘work which exists in the national economy’”
28

means work which exists in significant numbers either in the region where
the individuals live or in several regions of the country.” SSR 82-53, 1982
WL 31374, at *3 (1982). This definition is designed “to emphasize that . . .
a type(s) of job which exists only in very limited numbers or in relatively few
geographic locations may not be said to ‘exist in the national economy.’”
Id. “Courts have generally held that what constitutes a ‘significant’ number
is fairly minimal.” Fox v. Comm’r of Soc. Sec., No. 6:02-CV-1160, 2009
WL 367628, at *20 (N.D.N.Y. Feb. 13, 2009).
Here, relying on the VE’s testimony, the ALJ determined that Marvin
could perform the jobs of small product assembler, housekeeper/cleaner,
and preparer. (Tr. at 21-23, 51-52.) Again relying on the VE’s testimony,
the ALJ concluded that: (1) for the position of small products assembler,
there were 307,082 jobs available nationally, and 849 jobs available
regionally; (2) for the position of housekeeper/cleaner, there were 1.1
million jobs available nationally, and 471 jobs available regionally; and (3)
for the position of preparer, there were 82,550 jobs available nationally,
and 270 jobs available regionally. (Id.) Upon questioning by Marvin’s
counsel, however, the VE explained that the numbers to which she testified
pertained to a broad range of positions, including jobs that Marvin cannot
29

perform based on her RFC. (Id. at 62, 64-65; see id. at 310-54.) The ALJ
relied on this testimony to determine that Marvin is capable of making a
successful adjustment to other work that exists in significant numbers in
the national economy. (Id. at 21-23.)
Under these circumstances, the VE’s testimony was hardly clear as
to the number of jobs available to Marvin in the local or national economy.11
This testimony, therefore, does not constitute substantial evidence. See
Rosa v. Colvin, No. 3:12-CV-0170, 2013 WL 1292145, at *9-10 (N.D.N.Y.
Mar. 27, 2013); Johnston v. Barnhart, 378 F. Supp. 2d 274, 283 (W.D.N.Y.
2005) (finding that the ALJ erred where the VE’s testimony concerning
numbers of jobs available pertained to broad categories of jobs that
included positions other than the two jobs claimant could perform within
11

The court acknowledges that the ALJ addressed this issue at length in his
decision. (Tr. at 22-23.) The ALJ concluded, however, that the Commissioner met her
burden because: (1) “the use of government statistics and the testimony of a [VE] to prove
the existence of significant numbers of jobs which a claimant can perform is
administratively noticed, and therefore deemed as valid and sufficient from an evidentiary
standpoint”; (2) “the claimant is found not disabled within the framework of MedicalVocational Rules, which take administrative notice of the existence in significant numbers
in the national economy of unskilled, entry level jobs within the sedentary, light, and
medium occupational categories”; and (3) “[p]roving significant numbers of existing jobs
does not necessarily require proof of the exact number of existing jobs.” (Id.) While the
court appreciates the ALJ’s points, it is nevertheless constrained by case law. Here, there
is no testimony from the VE that indicates that she accounted for the fact that the
Occupational Employment Statistics (OES) codes—the source that provided the number of
jobs available—included more jobs than Marvin could actually perform, and that she
adjusted the number of jobs available accordingly. Thus, the court cannot conclude that
the ALJ’s determination, which relied on the VE’s testimony, is supported by substantial
evidence.
30

her limitations and the VE could not say how many positions existed for
those two jobs); cf. Kennedy v. Astrue, 343 F. App’x 719, 722 (2d Cir.
2009) (concluding that a VE’s testimony was reliable where the VE
acknowledged that the data on which she relied in determining the
existence of positions which the claimant could perform also encompassed
approximately fifty-nine other [Dictionary of Occupational Titles (DOT)]
titles because “it [was] apparent that the expert arrived at her estimated
figures . . . by discounting from the total numbers for all [sixty] DOT titles.
Thus, the expert’s testimony . . . did not introduce any meaningful
uncertainty as to the number of . . . positions available in the local or
national economy.”); Jones-Reid v. Astrue, 934 F. Supp. 2d 381, 407 n.13
(D. Conn. 2012) (holding that the ALJ was entitled to rely on a VE’s
testimony as long as his methodology for determining the number of jobs
by DOT code “is not wholly arbitrary and provides a fair estimate of the
jobs available in the national economy”). Accordingly, on remand, the ALJ
should solicit from the VE an explanation regarding the foundation and
reliability of the job numbers.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
31

ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Order; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 31, 2014
Albany, New York

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