Degraw v. Commissioner of Social Security

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Degraw's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 7/3/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RICKY DEGRAW,
Plaintiff,

3:13-cv-782
(GLS)

v.
CAROLYN W. COLVIN,
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.

JEREMY A. LINDEN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Ricky Degraw1 challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. §§ 405(g) and 1383(c)(3). (Compl., Dkt. No. 1.) 2
After reviewing the administrative record and carefully considering
Degraw’s arguments, the court affirms the Commissioner’s decision and
dismisses the complaint.
II. Background
On December 22, 2010, Degraw filed an application for SSI under the
Social Security Act (“the Act”), alleging disability since August 5, 2001.
(Tr.3 at 62-68, 123-29.) After his application was denied, (id. at 69-72),
Degraw requested a hearing before an Administrative Law Judge (ALJ),
which was held on April 2, 2012, (id. at 28-61, 76-78). On May 4, 2012, the

1

Plaintiff’s brief refers to plaintiff by his given name, “Ricky.” (See generally Dkt. No.
11.) The court, in keeping with its ordinary practice, will refer to plaintiff by his surname,
“Degraw.” Counsel is reminded that, as a basic principle of courtroom decorum, when
appearing in this court, all persons should be referred to by their surnames and not by their first
or given names.
2

Because no application for Disability Insurance Benefits (DIB) appears in the record
and it is otherwise clear that Degraw’s request for review pertains only to his application for
SSI, the court ignores the mistaken reference to DIB in his complaint. (Compl. ¶ 1.)
3

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

2

ALJ issued an unfavorable decision denying the requested benefits which
became the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (Id. at 1-6, 8-27.)
Degraw commenced the present action by filing his complaint on July
2, 2013 wherein he sought review of the Commissioner’s determination.
(Compl.) The Commissioner filed an answer and a certified copy of the
administrative transcript. (Dkt. Nos. 8, 9.) Each party, seeking judgment
on the pleadings, filed a brief. (Dkt. Nos. 11, 14.)
III. Contentions
Degraw contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 11 at 8-24.)
Specifically, Degraw claims that the ALJ erred in: (1) assessing the severity
of Degraw’s impairments; (2) determining Degraw’s residual functional
capacity (RFC); and (3) concluding that there is other work that Degraw
can perform. (Id.) The Commissioner counters that the appropriate legal
standards were used by the ALJ and his decision is also supported by
substantial evidence. (Dkt. No. 14 at 4-25.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt. No.
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11 at 1-8; Dkt. No. 14 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)4 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.

Severity Determination
First, Degraw claims that the ALJ erred in properly evaluating the

severity of his impairments. (Dkt. No. 11 at 8-17.) Specifically, Degraw
argues that the ALJ erred in failing to find that his back and knee
impairments, as well as his depression and psychiatric impairments, were
severe. (Id.) The court disagrees.
At step two of the sequential evaluation, a claimant has the burden of

4

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI

claims.

4

establishing that he has a “severe impairment,” which is “any impairment or
combination of impairments which significantly limits [his] physical or
mental ability to do basic work activities.” 20 C.F.R. § 416.920(c); see
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). Basic work
activities are “the abilities and aptitudes necessary to do most jobs,”
including: “[p]hysical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;” and mental functions
such as “[u]nderstanding, carrying out, and remembering simple
instructions; [u]se of judgment; [r]esponding appropriately to supervision,
co-workers and usual work situations; and [d]ealing with changes in a
routine work setting.” 20 C.F.R. § 416.921(b)(3)-(6). “The ‘mere presence
of a disease or impairment, or establishing that a person has been
diagnosed or treated for a disease or impairment’ is not, itself, sufficient to
deem a condition severe.” Bergeron v. Astrue, No. 09-CV-1219, 2011 WL
6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting McConnell v. Astrue, No.
6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008)). The
omission of an impairment at step two may be deemed harmless error,
particularly where the disability analysis continues and the ALJ later
considers the impairment in his RFC determination. See Tryon v. Astrue,
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No. 5:10-CV-537, 2012 WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012); see also
Plante v. Astrue, No. 2:11-CV-77, 2011 WL 6180049, at *4 (D. Vt. Dec. 13,
2011).
Here, at step two, the ALJ determined that Degraw’s only severe
impairment was “possible borderline intellectual functioning.” (Tr. at 1314.) The ALJ determined that Degraw’s back and knee problems are not
severe because, although he alleged that they related to a 1993 car
accident, Degraw had not received treatment in more than ten years or a
formal diagnosis for such impairments, and x-rays of his back and
knees—the only diagnostic images of record—were negative. (Id. at 13,
59-60, 145, 242, 246-47, 284, 302-05.) Further, the ALJ determined that
Degraw’s psychiatric impairments, including diagnoses of bipolar disorder,
anxiety disorder, and depression, are not severe because the record does
not contain clinical findings to support such diagnoses, and Degraw did not
seek psychiatric treatment until February 2012. (Id. at 14, 238-39, 335,
337, 338-39.) Because he determined that Degraw suffered a severe
impairment, the ALJ continued with the sequential analysis, and, in
determining Degraw’s RFC, considered all of his impairments including his
back and knee pain, and his bipolar disorder. (Id. at 16-22.) The ALJ
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discussed in detail Degraw’s treatment notes with respect to these
impairments, as well as the opinions of his treating and examining medical
sources. (Id.); see infra Part VI.B. As the disability analysis continued and
the ALJ considered claimant’s severe and non-severe impairments in
making his RFC determination, any error at step two is, at most, harmless.
See Tryon, 2012 WL 398952, at *4; see also Plante, 2011 WL 6180049, at
*4.
B.

RFC Determination
Degraw next contends that the ALJ erred in determining his RFC.

(Dkt. No. 11 at 17-22.) According to Degraw, the ALJ’s conclusion that he
can perform work at all exertional levels is not supported by substantial
evidence. (Id. at 17-21) Further, Degraw argues that the ALJ erred in
failing to impose any restrictions resulting from his psychiatric issues. ( Id.
at 21-22.) The Commissioner counters, and the court agrees, that the ALJ
properly considered all the evidence of record, and rendered an RFC
determination that is supported by substantial evidence. (Dkt. No. 14 at
10-23.)
A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 416.945(a)(1). In assessing a claimant’s RFC, an
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ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 416.945(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence 5 in
the record. See Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 486 (2d. Cir.
2012). If it is, that determination is conclusive and must be affirmed upon
judicial review. See id.; see also Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996).
In this case, the ALJ determined that Degraw has the ability to
perform work at all exertional levels, but is limited to “unskilled work that
involves simple, one or two-step tasks[,] only occasional contact with the
general public[, and no] more than simple reading.” (Tr. at 16.) The ALJ
based his RFC determination on the reports of consulting examiner Mary
Ann Moore and psychological consultant E. Kamin, and Degraw’s reported
activities. (Id. at 16-22.) Specifically, despite his complaints of back and
knee pain, Degraw described using a chainsaw, ax, and hammer to split
wood, riding his bicycle long distances, walking long distances—including
up to twenty-eight miles in the course of a day—and playing pool. ( Id. at

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 citation omitted).

8

22, 45, 51, 239-40, 319, 336.) With respect to Degraw’s mental
impairments, Dr. Moore opined that Degraw was capable of following and
understanding simple instructions and performing simple tasks, but may
have difficulty dealing with stress, becomes easily overwhelmed, and has
poor coping skills. (Id. at 240.) According to Dr. Moore, Degraw’s ability to
relate adequately with coworkers and the public, make appropriate
decisions, and maintain a schedule are impaired. (Id.) However, after
reviewing the evidence of record, Dr. Kamin opined that Degraw is capable
of meeting all of the basic mental demands of unskilled work in a low
contact setting. (Id. at 265-66.)
The ALJ gave Dr. Moore’s opinion “partial weight,” crediting her
conclusion that Degraw is capable of following simple directions and
instructions, consistently performing simple rote tasks under supervision,
and learning simple tasks, and that his attention, concentration, and
memory are somewhat impaired, and he would have difficulty performing
complex tasks. (Id. at 20.) The ALJ also gave “some weight” to Dr.
Moore’s opinion that Degraw would have difficulty relating appropriately
with coworkers and the public. (Id.) However, the ALJ discounted Dr.
Moore’s opinion that Degraw may have difficulty dealing with stress or
9

maintaining a schedule. (Id.) The ALJ weighed Dr. Moore’s opinion based
on the extent that is was supported by the results of her mental status
examination, and the remaining evidence of record. (Id.) In that regard,
Dr. Moore’s examination revealed that Degraw’s manner of relating socially
was adequate, his speech was fluent and clear, his thought processes
were coherent and goal directed, and his insight and judgment were fair.
(Id. at 239.) However, his motor behavior was restless, his mood was
nervous, his affect was anxious, and his attention and concentration, and
memory skills were impaired. (Id.) The ALJ gave “great weight” to the
opinion of Dr. Kamin because it was consistent with Dr. Moore’s clinical
findings. (Id. at 21.)
Degraw argues that the ALJ erred in rejecting the opinion of
consultative examiner Edward Southard that he suffers moderate to
marked restrictions as a result of his low back and knee pain. (Dkt. No. 11
at 17-20; Tr. at 21, 242-45.) Further, Degraw contends that the ALJ erred
in finding him partially credible, and in concluding that he “does not have a
diagnosable psychiatric condition,” despite the diagnoses of Drs. Moore
and Kamin. (Tr. at 16-17, 21; Dkt. No. 11 at 20-22.) However, after
reviewing the administrative record, the court concludes that Degraw’s own
10

reports and testimony rendered the medical opinions of record less
credible, and that the ALJ did not improperly substitute his opinion for that
of a medical expert, but, rather, questioned the facts provided to Degraw’s
consultative examiners. See, e.g., Roy v. Massanari, No. Civ. 3:01CV306,
2002 WL 32502101, at *3 (D. Conn. June 12, 2002). In particular, despite
claiming his disability began in August 2001, Degraw failed to obtain any
treatment for his physical or psychiatric impairments until after he applied
for disability benefits in December 2010. See SSR 96-7p, 61 Fed. Reg.
34,483, 34,487 (July 2, 1996) (explaining that an “individual’s statements
may be less credible if the level or frequency of treatment is inconsistent
with the level of complaints”); (see generally Tr. at 237-372.) Degraw
testified that he failed to seek treatment because he is “not big with
doctors,” and did not have insurance, and that he only began seeing his
treating physicians in order to obtain disability benefits. (Tr. at 60.)
Further, Degraw told treating psychologist Robert Russell that he was
“trying to get SSI and the [d]octor said that the only way [he] could do it
was to go through [m]ental [h]ealth,” but that he did not wish to receive any
mental health services, only a disability evaluation. (Id. at 335, 337.)
Degraw claims that the ALJ erred in discounting his subjective
11

complaints due to his failure to seek treatment, because his lack of money
and insurance hampered his ability to obtain such treatment. (Dkt. No. 11
at 9.) However, the ALJ properly considered Degraw’s testimony that he
could not afford medical care and found it to be not credible because he
also testified that he received “a significant personal injury award and was
able to purchase property and other items[,] and pay his own living
expenses for many years using this award.” (Tr. at 18, 36.) Thus, the ALJ
properly considered Degraw’s explanation for his failure to seek treatment,
and his determination that such testimony is not credible is supported by
substantial evidence. See SSR 96-7p, 61 Fed. Reg. at 34,487. The ALJ
also properly considered Degraw’s lack of any work record since 2001, and
concluded that it “significantly detracts from his credibility regarding his
motivation to work.” (Tr. at 13, 17.)
With respect to Dr. Southard’s opinion, in March 2011, Degraw
complained of lower back pain that radiated down both of his extremities
and was exacerbated with very minimal activity. (Id. at 242.) He also
reported to Dr. Southard that his knees give out on a regular basis and he
uses a cane at times. (Id. at 243.) Upon examination by Dr. Southard,
Degraw’s gait was shuffling and slow and he was slow to get out of his
12

chair and off of the examination table. (Id.) In addition, Degraw’s range of
motion in his bilateral shoulders and lumbar spine was decreased, he
complained of tenderness in his thoracic and lumbar spines, and straight
leg raise tests were positive. (Id. at 243-44.) While such clinical findings
“tend to lend credibility to an individual’s allegations about pain or other
symptoms and their functional effects,” SSR 96-7p, 61 Fed. Reg. at
34,487, here, Degraw’s statements to Dr. Southard and his observable
findings are contradicted by Degraw’s own reports throughout the record
that he walks and bikes great distances, chops wood, and shoots pool, (Tr.
at 45, 51, 239-40, 319, 336.) Further, on the same day as his evaluation
by Dr. Southard, Degraw was examined by Dr. Moore, who indicated that
Degraw’s gait was normal. (Id. at 238.) The ALJ noted that, at the
administrative hearing, Degraw used a cane that he had purchased at WalMart, but was not using it properly to take pressure off either his knees or
his back, and sat comfortably throughout the hearing, only appearing in
discomfort when being specifically asked about his ability to sit. ( Id. at 1718, 40.) Despite Degraw’s objections to the ALJ’s observations, (Dkt. No.
11 at 20), an ALJ “may also consider his or her own recorded observations
of the individual as part of the overall evaluation of the credibility of the
13

individual’s statements.” SSR 96-7p, 61 Fed. Reg. at 34,486.
Degraw points to treatment records which indicate Degraw’s reports
of pain, tenderness in his lumbar spine, decreased range of motion, limited
squat, and gait dysfunction as support for Dr. Southard’s opinion. (Dkt. No.
11 at 17-19.) However, Degraw began seeking treatment for his physical
impairments in February 2011. (Tr. at 284.) Treatment notes from March
and May 2011 reveal no abnormal clinical findings, but, instead, full range
of motion of Degraw’s lower lumbar spine and knees, and no pain with
palpation. (Id. at 280, 282.) Degraw attended physical therapy from June
2011 until October 2011 and complained of lower back pain which was
aggravated with standing, sitting, bending, and lying on his back or
stomach. (Id. at 298, 301, 307-09, 311-13, 316-17, 319-21.) While his
physical therapy treatment records indicate decreased range of motion,
lower extremity weakness, and gait dysfunction, (id. at 301, 307), a
September 2011 physical therapy treatment record notes that Degraw’s
“high pain levels do not correspond with his movements and his ability to
[ambulate.]” (Id. at 311.) January and February 2012 treatment records
from Comprehensive Pain Relief indicate pain upon straight leg raising and
a decreased range of motion of Degraw’s lumbar spine, but also note
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Degraw’s reports that treatment provided a greater than forty percent
reduction in his pain. (Id. at 286-91.) Treating physician Maria Galu began
treating Degraw in January 2012 and found “[m]inimal tenderness along
the cervical, thoracic and lumbar spine. Straight leg elevation is negative.
Bilateral knees with minimal crepitus. No swelling.” (Id. at 323.)
Thereafter, on March 9, 2012, Degraw presented to Dr. Galu requesting
she complete disability paperwork. (Id. at 324-25.) Dr. Galu’s examination
only revealed tenderness along the lumbar spine and paraspinal muscle.
(Id. at 324.)6 In any event, Degraw’s own reports of his functional
capabilities provide substantial evidence to support the ALJ’s physical RFC
determination.
Turning to Degraw’s mental impairments, Dr. Russell examined
Degraw on two occasions in March 2011. (Id. at 335-37.) On the first
occasion, Dr. Russell noted that Degraw complained of depression, but
was “very vague about his symptoms,” and had “great difficulty describing
and/or elaborating on any of his symptoms.” (Id. at 335, 337.) On his
second examination, Dr. Russell noted that Degraw came in with brochures

6

Despite these limited clinical findings, Dr. Galu completed a questionnaire on March 9,
2012 and opined that, in an eight-hour day, Degraw cannot sit for six hours or stand for two
hours, and cannot lift over ten pounds. (Tr. at 329-30.)

15

from the waiting area regarding depression and bipolar disorder and began
reading off some of the symptoms as his own. (Id. at 370.)7 Later that
month, Degraw was examined by consultative examiner Moore and
reported difficulty sleeping, and feelings of depressions, hopelessness and
irritability. (Id. at 237-38.) He reported punching and throwing things, selfmutilative behaviors, a diminished sense of pleasure, and a loss of energy.
(Id. at 238.) Degraw also indicated some manic symptoms with mood
swings and a decreased need for sleep, as well as flight of ideas,
pressured speech, and agitation. (Id.) Degraw indicated excessive
involvement in pleasurable activities and at times expansive moods, and
reported to Dr. Moore that he had, in the past, “traveled up and down the
coast hopping trains.” (Id.) While the ALJ credited the portions of Dr.
Moore’s opinion supported by her clinical findings, (id. at 20), based on the
foregoing, the ALJ did not err in discounting the portions of Dr. Moore’s
7

Based on his examinations, Dr. Russell diagnosed Degraw with adjustment disorder
with mixed disturbance of emotions and conduct, and rule out borderline intellectual
functioning, and assigned Degraw a Global Assessment of Functioning (GAF) score of
seventy. (Tr. at 370.) GAF is a scale that indicates a clinician’s overall 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). A GAF score of sixty-one to seventy indicates the existence
of some mild symptoms, or some difficulty in social, occupational, or school functioning, but
also that the individual is able to function fairly well and has some meaningful interpersonal
relationships. See Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., Text
Rev. 2000).

16

opinion that were tainted by the incredible subjective reports and
complaints of Degraw.
In sum, the portions of Drs. Moore’s and Southard’s opinions that
Degraw relies on are, simply put, inconsistent with the record as a whole
and thus, are not entitled to greater weight. See Roy, 2002 WL 32502101,
at *3 (explaining that, there is no “basis in law by which an ALJ must accept
a medical opinion in its entirety even when premised on arguably false
representations”). The ALJ’s decision is, therefore, affirmed.
C.

Other Work
Finally, Degraw argues that the ALJ erred in making his step five

determination. (Dkt. No. 11 at 22-24.) In particular, Degraw contends that
the ALJ’s errors in determining his RFC render his step five determination
unsupported by substantial evidence. (Id. at 22.) Further, Degraw claims
that the ALJ failed to meet his burden to demonstrate that other work exists
which Degraw is capable of performing because he failed to obtain the
testimony of a vocational expert (VE). (Id. at 22-24.) Again, the court
disagrees.
In making his ultimate disability determination, the ALJ must consider
whether the claimant can do any other, less demanding work existing in the
17

national economy. See 20 C.F.R. §§ 416.920(g), 416.960(c); White v.
Sec’y of Health & Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). To make
such a determination, an ALJ may rely on the Medical-Vocational
Guidelines, referred to as “the grids,” 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, “if a claimant’s nonexertional impairments
‘significantly limit the range of work permitted by his exertional limitations’
then the grids obviously will not accurately determine disability status
because they fail to take into account claimant’s nonexertional
impairments.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (quoting
Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)). In that case,
the ALJ should consult with a VE before making a determination as to
disability. See id.
Because Degraw’s argument is, in part, predicated on a perceived
error in the ALJ’s RFC analysis—which has already been affirmed—the
court addresses only his claim that the ALJ was required to consult a VE.
(Dkt. No. 11 at 22-24.) Here, the ALJ determined that, although Degraw
18

suffers nonexertional limitations as a result of his possible borderline
intellectual functioning, these limitations do not significantly limit Degraw’s
occupational base of unskilled work at all exertional levels. (Tr. at 22-23.)
In so doing, the ALJ determined, and the court agrees, the use of a VE was
unnecessary. As the Commissioner points out, Degraw was limited to
simple tasks and only occasional contact with the general public, and
unskilled work primarily involves objects, not data or people. (Dkt. No. 14
at 24-25); see SSR 85-15, 1958 WL 56857 at *4 (1985).
D.

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
Degraw’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.

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IT IS SO ORDERED.
July 3, 2014
Albany, New York

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