Howard v. Colvin
Filing
20
DECISION AND ORDER denying # 12 Plaintiff's motion for judgment on the pleadings; and granting # 17 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is AFFIRMED, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 3/11/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
SONJAH HOWARD,
Plaintiff,
v.
Case No. 3:14-CV-1155 (GTS)
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
LACHMAN & GORTON
Counsel for Plaintiff
P.O. Box 89
1500 East Main Street
Endicott, NY 13761-0089
PETER A. GORTON, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
SANDRA M. GROSSFELD, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Sonjah Howard
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 12, 17.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied and Defendant’s motion for judgment on the pleadings is
granted.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born on April 29, 1979. Plaintiff has a ninth grade education, and has
worked as a telemarketer. Generally, Plaintiff’s alleged disability consists of preexisting
intellectual deficits and the following impairments resulting from an injury at work on November
4, 2010: cervical disc displacement, L4/5 annular disc tear, C6/7 broad based posterior disc
bulge, moderate spinal stenosis, moderate right C6 neural foraminal stenosis, and post traumatic
stress disorder (“PTSD”). Plaintiff’s alleged disability onset date is April 27, 2011.
B.
Procedural History
On November 9, 2011, Plaintiff applied for Disability Insurance Benefits. Plaintiff’s
application was denied on May 8, 2012, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). On June 11, 2013, Plaintiff appeared in a video hearing
before the ALJ, John P. Ramos. (T. 30-66.) On August 27, 2013, the ALJ issued a written
decision finding Plaintiff not disabled under the Social Security Act. (T. 9-29.) On August 26,
2014, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner. (T. 1-6.)
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 14-23.) First, the ALJ found that Plaintiff met the insured status
requirements through December 31, 2016, and has not engaged in substantial gainful activity
since April 27, 2011. (T. 14.) Second, the ALJ found that Plaintiff’s degenerative disc disease
of the cervical and lumbar spine, thoracic sprain, PTSD, anxiety disorder, and pain disorder are
severe impairments, but that Plaintiff’s obesity is not a severe impairment. (T. 14-15.) Third,
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the ALJ found that Plaintiff’s severe impairments, alone or in combination, did not meet or
medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (T. 1516.) The ALJ considered Listings 1.04, 12.06, and 12.08. (Id.) Fourth, the ALJ found that
Plaintiff
retains the residual functional capacity [“RFC”] to lift no more than
10 pounds at a time; stand for 2 hours out of an 8 hour workday; walk
for 2 hours out of an 8 hour workday; sit for 6 hours out of an 8 hour
workday; perform simple tasks with supervision and independently;
maintain attention/concentration for simple tasks; regularly attend to
a routine and maintain a schedule; can relate to and interact with
others to the extent necessary to carry out simple tasks; and can
handle reasonable levels of simple work-related stress in that she can
make decisions directly related to the performance of simple work
and handle usual work place changes and interactions associated with
simple work.
(T. 17.) Fifth, the ALJ found that Plaintiff is unable to perform her past relevant work as a
telemarketer. (T. 21.) Sixth, and finally, the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform. (T. 22.)
D.
The Parties’ Briefings on Their Cross-Motions
Plaintiff makes four arguments in support of her motion for judgment on the pleadings.
First, Plaintiff argues that the ALJ’s mental RFC assessment was unsupported by substantial
evidence and inconsistent with the ALJ’s determination that Plaintiff had severe mental
impairments. (Dkt. No. 12, at 9-15 [Pl.’s Mem. of Law].) Within this argument, Plaintiff argues
that the ALJ (1) failed to order a full intelligence quotient (“IQ”) test, and (2) improperly
weighed the medical evidence of record regarding Plaintiff’s mental limitations. (Id.) Second,
Plaintiff argues that the ALJ erred in formulating the physical RFC and weighing the medical
evidence of record regarding Plaintiff’s physical limitations. (Id. at 16-21.) Third, Plaintiff
argues that the ALJ erred in evaluating Plaintiff’s credibility. (Id. at 20-21.) Fourth, and finally,
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Plaintiff argues that the ALJ’s step five determination was not supported by substantial evidence
because the ALJ (1) failed to consider Plaintiff’s ability to maintain regular attendance, and (2)
failed to consult a vocational expert. (Id. at 21-25.)
Defendant makes five arguments in support of her motion for judgment on the pleadings.
First, Defendant argues that the ALJ was not required to order a full IQ test. (Dkt. No. 17, at 4-5
[Def.’s Mem. of Law].) Second, Defendant argues that the ALJ’s RFC was supported by
substantial evidence. (Id. at 5-6.) Third, Defendant argues that the ALJ properly assessed
Plaintiff’s credibility. (Id. at 6-7.) Fourth, Defendant argues that the ALJ properly evaluated the
medical opinion evidence of record. (Id. at 8-15.) Fifth, and finally, Defendant argues that the
ALJ properly determined that Plaintiff could perform other work in the national economy at step
five of the sequential evaluation. (Id. at 15-17.)
II.
RELEVANT LEGAL STANDARD
A.
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct 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) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
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“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. § 404.1520. The
Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
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First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his 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] will consider him 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 has
the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner]
then determines whether there is other work which the claimant could
perform. Under the cases previously discussed, the claimant bears
the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.
ANALYSIS
For the ease of analysis, Plaintiff’s arguments will be reorganized and consolidated
below.
A.
Whether the ALJ Was Required to Order a Full IQ Test
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 17, at 4-5 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The ALJ has an affirmative duty to develop a claimant’s complete medical history. 20
C.F.R. § 404.1512(d); Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). By
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statute, an ALJ is required to develop a claimant’s complete medical history for at least twelve
months before an application for benefits was filed, and for a longer period when there is reason
to believe that additional information is necessary to reach a decision. DeChirico v. Callahan,
134 F.3d 1177, 1184 (2d Cir. 1998). This duty exists even when a claimant is represented by
counsel, due to the non-adversarial nature of a benefits proceeding. DeChirico, 134 F.3d at
1184; Lamay, 562 F.3d at 509.
Additional evidence or clarification is sought when there is a conflict or ambiguity that
must be resolved, when the medical reports lack necessary information, or when the reports are
not based on medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §
404.1520b(c)(1)-(4); Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d
496, 505 (2d Cir. 1998). However, reviewing courts hold that an ALJ is not required to seek
additional information absent “obvious gaps” in the administrative record that preclude an
informed decision. Rosa, 168 F.3d at 79 n.5; see also Hart v. Comm’r, 07-CV-1270 2010 WL
2817479, at *5 (N.D.N.Y. July 16, 2010).
Here, the ALJ considered Plaintiff’s intellectual functioning and determined that further
intellectual or cognitive testing was not required based on the evidence of record. (T. 15.) The
ALJ noted that consultative examiner, Mary Ann Moore, Psy.D., indicated that Plaintiff may
have borderline intellectual functioning, but did not definitively diagnose Plaintiff with the
condition. (Id.) The ALJ noted that examining psychologist, William Connor, Ph.D., observed
that Plaintiff had average intellectual functioning, and there was no indication that Plaintiff had
impairment in memory, concentration or attentional processes. (T. 15, 606.) Dr. Connor
observed that Plaintiff’s verbalizations were coherent, relevant, and internally consistent, and
that Plaintiff’s vocabulary and sentence structure were consistent with average intelligence. (T.
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606.) Finally, the ALJ found that Plaintiff’s ability to work at substantial gainful activity level in
the past, and currently engage in vocational training to become a medical assistant is inconsistent
with cognitive deficits necessitating further intellectual testing. (T. 21.) Additionally, the Court
notes that Plaintiff indicated that her intellectual deficits did not prevent her from performing her
past simple work. (Dkt. No. 12, at 1 [Pl.’s Mem. of Law].)
Accordingly, based on the evidence of record, the ALJ was not required to order an IQ
test. See Bushey v. Colvin, 552 F. App'x 97, 98 (2d Cir. 2014) (finding that the ALJ was not
required to order an IQ test because “where there are no obvious gaps in the administrative
record . . . the ALJ is under no obligation to seek additional information”); Crawford v.
Astrue,13-CV-6085, 2014 WL 4829544, at *24 (W.D.N.Y. Sept. 29, 2014) (finding that, where
the record did not suggest that the plaintiff suffered from “significant cognitive impairments,”
the few references to the plaintiff’s mental retardation in the record were insufficient to trigger
the ALJ’s duty to order an intelligence examination).
Therefore, remand is not necessary on this basis.
B.
Whether the ALJ Properly Assessed the Medical Evidence of Record in
Determining Plaintiff’s Mental RFC
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 17, at 4-15 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
It is the duty of the ALJ to formulate a plaintiff’s RFC. 20 C.F.R. § 404.1545. RFC is
defined as
what an individual can still do despite his or her limitations . . . .
Ordinarily, RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and
continuing basis, and the RFC assessment must include a discussion
of the individual’s abilities on that basis. A regular and continuing
basis means 8 hours a day, for 5 days a week, or an equivalent work
schedule.
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Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2).
“Work-related mental activities generally required by competitive, remunerative work include
the abilities to understand, carry out, and remember instructions; use judgment in making workrelated decisions; respond appropriately to supervision, co-workers and work situations; and deal
with changes in a routine work setting.” SSR 96-8p, 1996 WL 374184, at *6 (July 2, 1996).
“In assessing a claimant’s RFC, the ALJ must consider all of the relevant medical and
other evidence in the case record to assess the claimant’s ability to meet the physical, mental,
sensory and other requirements of work.” Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at
*8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider
all of the relevant evidence, including medical opinions and facts, physical and mental abilities,
non-severe impairments, and the plaintiff’s subjective evidence of symptoms. 20 C.F.R. §
404.1545(b)-(e). The ALJ must consider RFC assessments made by acceptable medical sources
and may consider opinions from other sources, such as therapists and social workers, to show
how a claimant’s impairments may affect his or her ability to work. 20 C.F.R. § 404.1513(c)(d).
Finally, an ALJ’s RFC determination “must be set forth with sufficient specificity to enable [the
Court] to decide whether the determination is supported by substantial evidence.” Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Under the “treating physician’s rule,” controlling weight is given to a plaintiff’s treating
physician’s opinion when (1) the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques, and (2) the opinion is consistent with other substantial
evidence in the record, such as opinions of other medical experts. 20 C.F.R. § 404.1527(c)(2);
Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004); Brogan-Dawley v. Astrue, 484 F.
9
App’x 632, 633-34 (2d Cir. 2012). When controlling weight is not given to the opinion of a
treating physician, or when assessing other medical opinions, the ALJ should consider the
following factors to determine the proper weight: (1) the frequency of the examinations and the
length, nature and extent of the treatment relationship; (2) the evidence in support of the opinion;
(3) the opinion’s consistency with the record as a whole; and (4) whether the opinion is from a
specialist. 20 C.F.R. § 404.1527(c); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
Plaintiff argues that the ALJ determined that Plaintiff had no limitations from her
emotional conditions. (Dkt. No. 12, at 1[Pl.’s Mem. of Law].) However, the ALJ’s RFC limited
Plaintiff to performing simple tasks, which included maintaining attention/concentration for
simple tasks, relating to and interacting with others to the extent necessary to carry out simple
tasks, making decisions directly related to the performance of simple work, and handling usual
work place changes and interactions associated with simple work. (T. 17.) The Court finds that
the ALJ’s mental RFC determination was supported by substantial evidence, including the
opinions of State agency psychologist, T. Harding, and examining psychologist, William
Connor, Ph.D.
i.
State Agency Consultant, T. Harding, Psychology
On May 8, 2012, Dr. Harding noted that Plaintiff was diagnosed with PTSD and reported
that she had panic attacks. (T. 722.) Dr. Harding opined that Plaintiff could perform unskilled
or semiskilled work on a sustained basis. (T. 20.) The ALJ afforded significant weight to this
opinion based on Dr. Harding’s programmatic expertise, review of Plaintiff’s medical records,
and the consistency of the opinion with Plaintiff’s longitudinal medical record and reported
activities of daily living. (Id.)
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An ALJ is entitled to rely on the opinions of both examining and non-examining State
agency medical consultants, because those consultants are deemed to be qualified experts in the
field of social security disability. 20 C.F.R. § 404.1512(b)(6), 404.1513(c), 404.1527(e); see also
Little v. Colvin, 14-CV-63, 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.”); Cobb v. Comm’r, 2014 WL 4437566, at *6 (N.D.N.Y. Sept. 9, 2014).
Accordingly, the ALJ’s assessment of Dr. Harding’s opinion was supported by
substantial evidence.
ii.
Examining Psychologist, William Connor, Ph.D.
On October 20, 2011, Dr. Connor diagnosed Plaintiff with chronic pain disorder, mood
disorder not otherwise specified, and ruled out bipolar disorder. (T. 606.) Dr. Connor opined
that Plaintiff’s ability to return to work “depends on physical, not psychiatric disability.” (Id.)
Dr. Connor observed that Plaintiff had average intellectual functioning, and there was no
indication that Plaintiff had any impairment in memory, concentration or attentional processes.
(T. 15, 606.) Dr. Connor observed that Plaintiff’s verbalizations were coherent, relevant, and
internally consistent; that Plaintiff’s vocabulary and sentence structure were consistent with
average intelligence; and that Plaintiff was oriented with respect to person, place, and time. (T.
606.) On December 20, 2011, Dr. Connor opined that Plaintiff could return to work as a
telemarketer as long as she was not around the coworker who allegedly attacked her. (T. 20.)
The ALJ afforded some weight to the opinions of Dr. Connor, reasoning that Dr. Connor
has programmatic expertise in psychology, examined Plaintiff, and his opinions are consistent
with the evidence as a whole including Plaintiff’s treatment records and reported abilities. (Id.)
Accordingly, the ALJ’s assessment of Dr. Connor’s opinions was supported by substantial
evidence.
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iii.
Treating Physician, Darlene Denzien, D.O., and
Treating Psychologist, Nathan Hare, Ph.D.
On May 12, 2011, Dr. Denzien submitted a Family Medical Leave Act Statement in
which she opined that Plaintiff would be unable to perform any of her job functions as a
telemarketer for one year due to her thoracic injury, cervical strain, and PTSD. (T. 739.) On
December 3, 2011, Dr. Denzien opined that Plaintiff was disabled from work due to her neck and
back pain, PTSD, and severe depression. (T. 1021.) More specifically, Dr. Denzien opined that
Plaintiff might be able to perform a desk job, but that her mental impairments made it difficult
for her to keep up with simple tasks at home. (Id.)
On January 6, 2012, Dr. Denzien opined that Plaintiff could not perform her telemarketer
job, but could probably perform a less stressful sedentary job on a limited basis. (T. 20.) On
January 13, 2012, Dr. Denzien opined that Plaintiff could perform less than the full range of
sedentary work. (Id.) On May 17, 2013, Dr. Denzien opined that Plaintiff could sit for four
hours and stand/walk for one hour in an eight-hour workday, and should alternate sitting and
standing positions every 20 minutes. (T. 907.) Dr. Denzien opined that Plaintiff could lift ten
pounds up to three hours per day, could never lift more than ten pounds, required complete
freedom to rest frequently without restriction during a workday, and would likely miss more than
four workdays per month. (T. 906-07.) Dr. Denzien opined that Plaintiff had moderate
limitation in her abilities to concentrate and sustain work pace as a result of pain or side effects
of medication.1 (T. 906.)
1
The assessment form stated that “moderate” indicates a 20 percent or greater limitation in an area,
but not precluding the function. (T. 906.)
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The ALJ afforded less weight to Dr. Denzien’s opinions on May 12, 2011, and January 6,
2012, reasoning that these opinions are not particularly descriptive in terms of Plaintiff’s
functional abilities and that Dr. Denzien is not a specialist in psychiatric matters. (T. 20.) The
ALJ noted that Dr. Denzien’s opinions on December 3, 2011, January 13, 2012, and May 17,
2013, are more specific regarding Plaintiff’s functional abilities, but are less consistent with the
other opinions of record, Plaintiff’s response to treatment, and Plaintiff’s reported activities of
daily living. (Id.)
Psychologist, Dr. Hare, treated Plaintiff for PTSD, anxiety disorder, and pain disorder
from September 12, 2011, to June 10, 2013. (T. 867.) On February 20, 2013, Dr. Hare opined
that Plaintiff was ready to be employed and opined that Plaintiff had no more than “fair”
limitations in her work and social abilities.2 (T. 21.) On June 10, 2013, Dr. Hare opined that
Plaintiff had “medium” to “marked” limitations in concentration and persistence, “medium” to
“extreme” limitations in interaction with others, “marked” limitations in adaptation/stress, and
would likely miss two to three workdays per month.3 (T. 865-66.)
The ALJ afforded some weight to the opinion of Dr. Hare based on his experience and
treatment relationship with Plaintiff. (T. 21.) However, the ALJ reasoned that Dr. Hare’s
conclusion that Plaintiff is disabled and unable to handle stress is inconsistent with (1) Dr.
Denzien’s treatment notes that Plaintiff’s mental health symptoms had stabilized, and (2)
Plaintiff’s testimony that she is training to become a medical assistant and cares for her two
2
The assessment form stated that “fair” indicates that the individual’s “ability to function is limited
but satisfactory.” (T. 870.)
3
The assessment form stated that an “extreme” limitation indicates a major limitation in the area,
with no or very little useful ability to function in the area. (T. 865.) A “marked” limitation indicates there is a
serious limitation in the area, with substantial (greater than 33 percent) loss in the ability to function effectively in
the area. (Id.)
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children. (Id.) Further, the ALJ noted that Dr. Hare’s own opinions “appear to be inconsistent,”
and that Dr. Hare did not provide treatment notes to substantiate his conclusion that Plaintiff’s
mental abilities declined from February 2013 to June 2013. (Id.) Finally, the ALJ noted that the
remaining evidence of record also does not demonstrate that Plaintiff’s mental health declined as
indicated by Mr. Hare’s opinions.
The Court finds that the ALJ properly applied the regulations in evaluating the opinions
from Dr. Denzien and Dr. Hare. The ALJ accurately summarized Dr. Denzien and Dr. Hare’s
opinions and treatment notes, considered each source’s specialty and treatment relationship with
Plaintiff, and cited inconsistencies between each source’s opinions and other substantial evidence
in the record pursuant to 20 C.F.R. § 404.1527(c). (T. 19-28.) Where, as here, an ALJ’s
reasoning and adherence to the regulations are clear, the ALJ is not required to review explicitly
each and every factor of the regulation. Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013)
(holding that, where plaintiff challenged ALJ’s failure to review explicitly each factor provided
for in 20 C.F.R. § 404.1527[c], “no such slavish recitation of each and every factor [was
required] where the ALJ's reasoning and adherence to the regulation [was] clear”).
For these reasons, the ALJ properly assessed the medical evidence of record in
determining Plaintiff’s mental RFC. Therefore, remand is not necessary on this basis.
C.
Whether the ALJ Properly Assessed the Medical Evidence of Record in
Determining Plaintiff’s Physical RFC
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 17, at 5-15 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The ALJ determined that Plaintiff has the physical RFC to sit for six hours, stand/walk
for two hours, and lift no more than ten pounds at a time during an eight-hour workday. (T. 17.)
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Plaintiff argues that the ALJ’s RFC is unsupported by a medical opinion that Plaintiff can sit for
six hours during an eight-hour work day, and that the ALJ’s physical RFC failed to include a
sit/stand option. (Dkt. No. 12, at 16-21 [Pl.’s Mem. of Law].) The Court finds that the ALJ’s
physical RFC assessment was supported by substantial evidence, including the opinions of (1)
consultative examiner, Rehan Khan, M.D, (2) treating physician, Sajid Khan, M.D., and (3)
independent examining physician, Lawrence Wiesner, D.O. The Court has also considered the
opinions from Dr. Denzien, discussed above in Part III.B.iii. of this Decision and Order, which
included assessments of Plaintiff’s mental and physical limitations.
i.
Consultative Physical Examiner, Rehan Khan, M.D.
On March 31, 2012, Dr. Khan performed a physical examination and diagnosed Plaintiff
with status post injury thoracic region sprain, cervical and lumbar disc displacement, and PTSD.
(T. 704.) Dr. Khan opined that Plaintiff had no gross limitations in sitting, standing, walking, or
the use of her upper extremities. (T. 701-05.) The ALJ noted that Dr. Khan observed that
Plaintiff had a normal gait, normal strength and sensation in her extremities, and reduced range
of motion of her back. (T. 18.) Dr. Khan observed that Plaintiff’s cervical spine showed full
flexion, extension, and lateral flexion bilaterally. (T. 704.)
The ALJ afforded significant weight to Dr. Khan’s opinion because Dr. Khan has
programmatic expertise, examined Plaintiff, and his opinion was consistent with his examination
findings. (T. 19.) As discussed above in Point III.B.i. of this Decision and Order, an ALJ is
entitled to rely on the opinions of both examining and non-examining State agency medical
consultants, because those consultants are deemed to be qualified experts in the field of social
security disability. 20 C.F.R. § 404.1512(b)(6), 404.1513(c), 404.1527(e); see also Little, 2015
WL 1399586, at *9.
15
Therefore, the ALJ’s assessment of Dr. Khan’s opinion was supported by substantial
evidence.
ii.
Treating Physician, Sajid Khan, M.D.
On January 10, 2012, treating physician, Dr. Khan opined that Plaintiff could perform
sedentary work, and would need to stand up, stretch, and change body positions. (T. 19.) The
ALJ afforded the opinion significant weight, reasoning that Dr. Khan is a specialist in physical
medicine and rehabilitation, has treated Plaintiff, and his opinion is consistent with Plaintiff’s
positive response to treatment and reported activities, including her ability to care for two
children, perform household chores with help, drive, and actively look for employment. (Id.)
Plaintiff argues that the ALJ’s physical RFC failed to include a sit/stand option based on
Dr. Khan’s opinion. (Dkt. No. 12, at 16-21 [Pl.’s Mem. of Law].) However, an ALJ is not
required to adhere strictly to the entirety of one medical source’s opinion. See Matta v. Astrue,
508 F. App'x 53, 56 (2d Cir. 2013) (“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.”); Zongos v. Colvin, 12-CV-1007, 2014 WL 788791, at *9 (N.D.N.Y. Feb. 25, 2014)
(finding that it was within the ALJ’s discretion to afford weight to a portion of a treating
physician’s opinion but not to another portion). Further, an ALJ is not required “explicitly to
reconcile every conflicting shred of medical testimony.” See Miles v. Harris, 645 F.2d 122, 124
(2d Cir. 1981) (finding that the ALJ was not required to reconcile two apparently inconsistent
medical opinions; it was sufficient that the ALJ noted that he carefully considered the exhibits
presented in evidence in reaching his decision).
Accordingly, the ALJ’s assessment of Dr. Khan’s opinion was supported by substantial
evidence.
16
iii.
Independent Examining Physician, Lawrence Wiesner, D.O.
On October 7, 2011, Dr. Wiesner examined Plaintiff and opined that she should be able to
return to her telemarketer job “immediately.” (T. 607-09.) Dr. Wiesner observed that Plaintiff
had difficulties performing elements of the physical exam, such as raising her arms which she
stated caused her back to spasm. (T. 608.) However, Dr. Wiesner observed that Plaintiff
ambulated without difficulty and had no deficits in sensation of the upper and lower extremities,
that Plaintiff’s muscle strength in the upper and lower extremities was intact, and that Plaintiff’s
reflexes were symmetrical and intact. (Id.) The ALJ afforded more weight to Dr. Wiesner’s
opinion, reasoning that Dr. Wiesner has programmatic expertise and based his opinion on an
examination of Plaintiff. (T. 20.)
Accordingly, the ALJ’s assessment of Dr. Wiesner’s opinion was supported by
substantial evidence.
iv.
Treating Chiropractor Timothy Stmatke, D.C.
On June 14, 2011, Mr. Stmatke opined that Plaintiff could not return to work due to an
inability to maintain a static position. (T. 20.) The ALJ afforded little weight to Mr. Stmatke’s
opinion, reasoning that the opinion is unsupported by Plaintiff’s treatment records, Plaintiff’s
presentation during consultative exams, and Plaintiff’s statement that she has been looking for a
job, drives, cares for a special needs child, and is starting school. (T. 20.)
The ALJ must evaluate every medical opinion of record made by an acceptable medical
source. 20 C.F.R. §§ 404.1513(a), 404.1527(b). A chiropractor is not an acceptable medical
source under the regulations, but an ALJ may consider an opinion from a chiropractor as an
“other source” opinion to show the severity of a plaintiff’s impairments and how the impairments
affect her ability to work. 20 C.F.R. §§ 404.1513(a), (c)-(d). However, an opinion from a
17
chiropractor is not a medical opinion that is entitled to any particular weight under the
regulations. 20 C.F.R. §§ 404.1513(a), 404.1527(b); Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir.
1995) (“Because the regulations do not classify chiropractors as either physicians or ‘other
acceptable medical sources,’ chiropractors cannot provide medical opinions.”) Accordingly, the
ALJ’s assessment of Mr. Stmatke’s opinion was supported by substantial evidence.
For these reasons, the ALJ properly assessed the medical evidence of record in
determining Plaintiff’s physical RFC, and remand is not necessary on this basis.
D.
Whether the ALJ’s Credibility Evaluation Was Supported by Substantial
Evidence
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 17, at 6-8 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
A plaintiff’s allegation of pain is “entitled to great weight where . . . it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009)
(quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ “is
not required to accept [a plaintiff’s] subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff’s] testimony in light of the other evidence
in the record.” Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15
2012). “When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s
disbelief.” Rockwood, 614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two step analysis of pertinent
evidence in the record. First, the ALJ must determine whether the claimant has medically
18
determinable impairments, which could reasonably be expected to produce the pain or other
symptoms alleged.” Id. at 271.
Second, if medically determinable impairments are shown, then the
ALJ must evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the
claimant’s capacity to work. Because an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, an ALJ will
consider the following factors in assessing a claimant’s credibility:
(1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating
factors; (4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment received
to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s
functional limitations and restrictions due to symptoms.
Id. Further, “[i]t is the role of the Commissioner, not the reviewing court, ‘to resolve evidentiary
conflicts and to appraise the credibility of witnesses,’ including with respect to the severity of a
claimant’s symptoms.” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (quoting Carroll
v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 [2d Cir. 1983]).
Here, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms, but that her statements regarding the
intensity, persistence and limiting effects of her symptoms are not fully credible. (T. 18.) In
assessing Plaintiff’s subjective complaints, the ALJ determined that Plaintiff’s complaints are not
well supported by the evidence as a whole including clinical findings, Plaintiff’s treatment
history, Plaintiff’s reported activities of daily living, and Plaintiff’s earnings record. (T. 18-20.)
First, the ALJ determined that substantial medical evidence of record was inconsistent
with Plaintiff’s alleged degree of disability. The ALJ noted that consultative examiner, Dr.
Khan, observed that Plaintiff had a normal gait, and normal strength and sensation in her
19
extremities. (T. 18.) Regarding Plaintiff’s mental abilities, the ALJ noted that Dr. Harding
opined that Plaintiff could perform unskilled or semiskilled work on a sustained basis. (T. 20.)
Additionally, the ALJ noted that Dr. Connor observed that Plaintiff had average intellectual
functioning, and that there was no indication that Plaintiff had impairment in memory,
concentration or attentional processes. (T. 15, 606.)
Second, the ALJ noted that Plaintiff’s treatment history included medications,
chiropractic care, physical therapy, and epidural injections to her cervical and lumbar spine. (T.
18.) The ALJ noted that Plaintiff “has not always had consistent treatment due, in part, to
problems obtaining insurance and a reported pregnancy.” (Id.) The ALJ noted that Dr. Denzien
reported that Plaintiff “really is not using her tramadol, her flexeril, or her gabapentin at the
doses prescribed and so is undoubtedly not getting full benefits from these medications.” (Id.)
Third, the ALJ found that Plaintiff’s activities of daily living were inconsistent with her
alleged degree of disability. (T. 17, 19.) The ALJ noted that, despite Plaintiff’s physical
symptoms and varying degrees of compliance with treatment, she reported being able to perform
a variety of activities of daily living since her alleged onset date. (T. 18.) The ALJ noted that
Plaintiff expressed pride in her functioning as a single mother raising two children, working hard,
and being successful in her work. (T. 19.) The ALJ noted that Plaintiff could cook, clean, shop
for food and clothing, care for her children, perform household chores with help, attend frequent
doctor’s appointments, actively look for work, and apply for BOCES courses. (Id.) The ALJ
determined that Plaintiff’s ability to perform these tasks suggests that her mental abilities are
greater than alleged. (Id.) Finally, the ALJ noted that Plaintiff’s “earnings record does not
enhance her credibility.” (Id.)
For these reasons, the ALJ’s credibility evaluation was supported by substantial evidence,
and remand is not necessary on this basis.
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E.
Whether the ALJ’s Step Five Determination Was Supported by Substantial
Evidence
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 17, at 15-17 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
At step five of the sequential process, the burden shifts to the Commissioner to establish
that there are a significant number of jobs in the national economy that a plaintiff can perform
based on his or her RFC, age, education, and past relevant work. 20 C.F.R. § 405.1560(c)(1);
Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004); Edwards v. Astrue, 07-CV-0898, 2010 WL
3701776, at *12 (N.D.N.Y. Sept. 16, 2010). The Commissioner can usually establish that there
is other work that Plaintiff can perform by reliance on the Medical-Vocational guidelines
contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the Grids.”
Baldwin v. Astrue, 07-CV-6958, 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009).
When a plaintiff suffers from nonexertional limitations that significantly limit the
plaintiff’s employment opportunities, exclusive reliance on the Grids is inappropriate. Baldwin,
2009 WL 4931363, at *27 (citing Bapp v. Bowen, 802 F.2d 601, 605 [2d Cir. 1986]). However,
“the mere existence of a non-exertional limitation does not automatically preclude reliance on the
guidelines.” Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (citing Bapp, 802 F.2d at
603.) A plaintiff’s range of potential employment is significantly limited when the plaintiff
“suffers from the additional loss of work capacity beyond a negligible one or, in other words, one
that so narrows a claimant’s possible range of work as to deprive him of a meaningful
employment opportunity.” Baldwin, 2009 WL 4931363, at *27.
21
First, Plaintiff argues that the ALJ failed to consider Plaintiff’s ability to maintain regular
attendance in determining whether Plaintiff could perform other existing work in the national
economy. (Dkt. No. 12, at 21-23 [Pl.’s Mem. of Law].) However, the ALJ’s RFC found that
Plaintiff could attend to a routine and maintain a schedule. (T. 17.) As discussed in Part III.B.
and Part III.C. of this Decision and Order, the Court finds that the ALJ’s RFC assessment was
supported by substantial evidence, including Dr. Harding’s opinion that Plaintiff could perform
unskilled or semiskilled work on a sustained basis. (T. 20.)
Second, Plaintiff argues that the ALJ was required to consult a vocational expert at step
five based on Plaintiff’s nonexertional limitations. (Dkt. No. 12, at 23-25 [Pl.’s Mem. of Law].)
Here, the ALJ determined that Plaintiff’s nonexertional limitations had little or no effect on the
occupational base of unskilled sedentary work because Plaintiff has the ability to perform the
basic mental demands of competitive, remunerative, unskilled work. (T. 22.) “The basic mental
demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis)
to understand, carry out, and remember simple instructions; to respond appropriately to
supervision, coworkers, and usual work situations; and to deal with changes in a routine work
setting.” SSR 85-15, 1985 WL 56957, at *4 (1985).
As discussed above, the ALJ properly determined that Plaintiff had the mental RFC to
perform simple tasks with supervision and independently; maintain attention/concentration for
simple tasks; regularly attend to a routine and maintain a schedule; relate to and interact with
others to the extent necessary to carry out simple tasks; handle reasonable levels of simple workrelated stress; make decisions directly related to the performance of simple work; and handle
usual work place changes and interactions associated with simple work. (T. 17.) Accordingly,
based on Plaintiff’s age, education, and work experience, the ALJ properly found Plaintiff “not
disabled” as directed by Medical-Vocational Rule 201.25.
22
For these reasons, the ALJ’s step five determination was supported by substantial
evidence, and remand is not necessary on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further is
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: March 11, 2016
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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