Dougherty v. Commissioner of Social Security

Filing 18

ORDER: ORDERED, as follows: 1) Defendant's motion for judgment on the pleadings is GRANTED. 2) The Commissioner's determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 4/27/2021. (khr)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ MELISSA A. D., v. Plaintiff, Civil Action No. 3:20-CV-0115 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF BINDER, BINDER LAW FIRM 485 Madison Avenue, Suite 501 New York, NY 10022 CHARLES E. BINDER, ESQ. JOHN J. MORAN, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. 625 JFK Building 15 New Sudbury St Boston, MA 02203 MOLLY CARTER, ESQ. DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. §§ 405(g) and 1383(3)(c), are cross-motions for judgment on the pleadings. 1 Oral argument was heard in connection with those motions on April 21, 2021, during a telephone conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner=s determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal. After due deliberation, and based upon the court=s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby ORDERED, as follows: 1) Defendant=s motion for judgment on the pleadings is GRANTED. This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 1 2 2) The Commissioner=s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff=s complaint in its entirety. Dated: April 27, 2021 Syracuse, NY 3 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF NEW YORK 3 4 5 6 7 8 9 10 11 MELISSA A. D., ) ) ) Plaintiff, ) CASE NO. 20-CV-115 ) vs. ) ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ______________________________________ ) TRANSCRIPT OF PROCEEDINGS BEFORE THE HON. DAVID E. PEEBLES WEDNESDAY, APRIL 21, 2021 SYRACUSE, NEW YORK 12 13 14 15 16 17 18 FOR THE PLAINTIFF: BINDER & BINDER By: JOHN J. MORAN, ESQ. 485 Madison Avenue, Suite 501 New York, New York 10022 FOR THE DEFENDANT: SOCIAL SECURITY ADMINISTRATION By: MOLLY CARTER, ESQ. 625 JFK Building, 15 New Sudbury Street Boston, Massachusetts 02203 19 20 21 22 23 24 25 JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 2 20-CV-115 1 (Teleconference.) 2 THE COURT: Plaintiff has commenced this proceeding 3 pursuant to 42 United States Code Sections 405(g) and 1383(c)(3) 4 to challenge an adverse determination by the Commissioner of 5 Social Security finding that plaintiff was not disabled at the 6 relevant times and therefore is ineligible for the benefits that 7 she sought. 8 9 The background is as follows. April of 1973. Plaintiff was born in She is currently 48 years old. She was 10 approximately just about a couple weeks short of 33 years of age 11 at the time of the alleged onset of her disability on March 15, 12 2006. 13 has weighed between 140 and 220 pounds. 14 experiencing a 100-pound weigh gain attributable to the 15 medications that she has been prescribed. Plaintiff stands five foot, three inches in height and 16 Plaintiff has four children. She reported In April 2014, that 17 included a 22-year-old son, 16-year-old daughter, 7-year-old 18 daughter, and 4-year-old son. 19 hearing in this matter in Johnson City with a fiancé, three of 20 her children, and another man who helps. 21 She lived at the time of the She has completed ninth grade in school and achieved a 22 GED. She was in regular classes at the time of attending 23 school. 24 education. 25 tried to. She also has a little more than one year of college She went online to take college courses in 2017 or She is right-handed, and she drives. JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 3 20-CV-115 1 Plaintiff stopped working in 2005 or 2006. The 2 evidence is equivocal as to why. 3 testified that she was laid off due to attendance issues, but in 4 her function report 273, she stated that she was laid off due to 5 lack of work. 6 cashier, and a waitress. 7 position after getting into an argument with her manager. 8 9 At page 52 at the hearing, she When she worked, she was a certified solderer, a She was fired from her waitress Plaintiff suffers from various mental impairments. They have been variously diagnosed as anxiety, anxiety disorder 10 with agoraphobia, post traumatic stress disorder or PTSD, 11 manic-depressive psychosis, bipolar disorder, panic disorder, 12 personality disorder, and loss of interests. 13 Plaintiff has a history of sexual and physical abuse, 14 of being the victim of those. 15 and polysubstance abuse requiring treatment. 16 hospitalized in 2006 psychiatrically due to depression and 17 suicidal ideation. 18 transcript. 19 including crossing parking lots. 20 She also has a history of alcohol Plaintiff was That appears at 374 of the administrative Plaintiff is particularly afraid of open spaces Physically, plaintiff suffers from obesity, a back 21 issue, and she had a broken bone in her ankle or foot in 2013. 22 I do not understand, however, her claim to be related to 23 limitations associated with her physical condition. 24 25 Plaintiff has treated with Nurse Practitioner Ryan Little of United Health Services since November of 2008. JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY In 4 20-CV-115 1 2010, it was reported at 501 she was seeing Nurse Practitioner 2 Little monthly. 3 seeing Nurse Practitioner Little between four, every four and 4 six months. 5 transcript. 6 In 2018, however, it appears that she was only That appears at 835 and 842 of the administrative Plaintiff also treated since March of 2013 with 7 Dr. Arun, A-r-u-n, Shah, S-h-a-h, who she sees every three 8 months. 9 Services Center on seven occasions. 10 In 2006, she also saw professionals at Tricounty Human In terms of medication, plaintiff over time has been 11 prescribed Lexapro, Buspar, Zoloft, Seroquel, Geodon, Valium, 12 Paxil, Lamictal, Trazodone, Vistaril, Celexa, omeprazole, 13 diazepam, paroxetine, l-a-m-o-t-r-i-g-i-n-e. 14 she experiences side effects from her medications including 15 weight gain and fatigue. 16 She testifies that Plaintiff has a fairly wide range of activities of 17 daily living including caring for her children. 18 bathe, groom. She does dishes. 19 does laundry. She paints rooms in the interior of her house. 20 She shops approximately one time per month, often with help. 21 She drives. 22 television, and she reads. 23 She cleans. She can dress, She cooks. She can take public transportation. She She watches This case has a fairly tortured and extensive 24 procedural history dating back to June 11, 2010, when plaintiff 25 applied for Title 2 and Title 16 benefits under the Social JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 5 20-CV-115 1 Security Act alleging onset date of March 15, 2006. 2 at page 273 was that she is disabled based upon her bipolar 3 disorder and agoraphobia, also panic attacks and anxiety 4 disorder. 5 Her claim A hearing was conducted on November 8, 2011, by 6 Administrative Law Judge Marie Greener. Judge Greener issued an 7 adverse decision on December 15, 2011. 8 Social Security Administration Appeals Council remanded the 9 matter on the basis that there was an insufficient explanation On July 5, 2013, the 10 for rejecting the opinions of Nurse Practitioner Little and 11 cosigned by Dr. Jimenez, and also there was a lack of testimony 12 from a vocational exert with opinions as to job base erosion. 13 A subsequent hearing was conducted by ALJ Greener on 14 April 17, 2014. 15 determination July 22, 2014. 16 Council denied review of that decision. 17 Judge Greener issued another adverse On December 6, 2015, the Appeals However, on September 29, 2017, United States District 18 Court for the Middle District of Pennsylvania, Judge William J. 19 Nealon, N-e-a-l-o-n, vacated the commissioner's determination 20 and remanded the matter claiming there was insufficient 21 discussion of why there was no limitation in the residual 22 functional capacity finding involving attention, concentration, 23 and attendance. 24 Council issued a subsequent decision on April 27, 2018, 25 remanding the matter and directing it be assigned to a new So the Social Security Administration Appeals JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 6 20-CV-115 1 administrative law judge. 2 The matter was subsequently assigned to Administrative 3 Law Judge Elizabeth Koennecke, K-o-e-n-n-e-c-k-e. 4 Koennecke on May 4, 2018, in response to the District Court's 5 concern, requested updated information from plaintiff at 762 to 6 763. 7 however. There was no further clarification or material submitted 8 9 Judge Judge Koennecke conducted a hearing on January 9, 2019, and subsequently issued an unfavorable decision on 10 February 13, 2019. 11 agency on December 2, 2019, when the Social Security 12 Administration Appeals Council denied plaintiff's application 13 for review. 14 timely. 15 That became a final determination of the This actions was commenced February 3, 2020, and is In her decision, Judge Koennecke applied the familiar 16 five-step sequential test for determining disability. 17 found that plaintiff was insured through December 31, 2010. 18 19 20 She first At step 1, she concluded plaintiff had not engaged in substantial gainful activity since March 15, 2006. At step 2, ALJ Koennecke concluded that plaintiff does 21 suffer from severe impairments that impose more than minimal 22 limitations on her ability to perform basic work functions, 23 stating that they are, quote, "all mental impairments as 24 variously characterized." 25 At step 3, ALJ Koennecke concluded that plaintiff's JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 7 20-CV-115 1 conditions do not meet or medically equal any of the listed 2 presumptively disabling conditions set forth in the 3 commissioner's regulations, specifically considering listings 4 12.04, 12.06, 12.08, and 12.15. 5 ALJ Koennecke next concluded that plaintiff maintains 6 the residual functional capacity or RFC to perform a full range 7 of work at all exertional levels with several nonexertional 8 limitations addressing plaintiff's mental limitations. 9 The administrative law judge at step 4 concluded that 10 based on the residual functional capacity, the plaintiff was not 11 capable of performing her past relevant work as a wire worker, 12 both as generally and actually performed at the time. 13 5, ALJ Koennecke concluded -- I'm sorry. 14 administrative law judge concluded that plaintiff is capable of 15 performing her past relevant work as a wire worker both as 16 generally and actually performed. 17 At step At step 4, the As an alternative basis for finding no disability, the 18 ALJ proceeded to step 5 and concluded based on the testimony of 19 a vocational expert that plaintiff could also perform other 20 available work in the national economy, representative positions 21 being warehouse worker, laundry laborer, and evening industrial 22 cleaner, and that plaintiff is therefore not disabled at the 23 relevant times. 24 25 The Court's function in this case of course is limited and extremely deferential. The Court must determine whether the JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 8 20-CV-115 1 correct legal principles were applied and the resulting 2 determination is supported by substantial evidence, which is 3 defined as such relevant evidence as a reasonable factfinder 4 would conclude sufficient to support a finding. 5 The Second Circuit addressed the standard in Brault, 6 B-r-a-u-l-t, versus Social Security Administration Commissioner, 7 reported at 683 F.3d 443 from 2012, noting that the standard is 8 highly deferential, more stringent than even the clearly 9 erroneous standard that courts and lawyers are familiar with. 10 Notably, the Court stated that the substantial evidence standard 11 means that once an ALJ finds a fact, that fact can be rejected 12 only if a reasonable factfinder would have to conclude 13 otherwise. 14 The plaintiff in this case has two basic contentions. 15 In the first, she claims that the RFC finding is unsupported and 16 resulted from improper weighing of medical opinion evidence. 17 Subsumed within that argument is the claim that the treating 18 source rule was violated when Dr. Shah's opinion was not 19 accorded -- opinions, I should say, were not accorded 20 controlling weight. 21 The second argument raised by the plaintiff concerns 22 the evaluation of plaintiff 's subjective complaints. 23 argument is that her complaints were improperly weighed and 24 rejected. 25 The Of course, the first order of business for an JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 9 20-CV-115 1 administrative law judge such as ALJ Koennecke was to determine 2 plaintiff's RFC. 3 range of tasks she is capable of performing notwithstanding the 4 impairments at issue. 5 consideration of all of the relevant medical and other evidence. 6 20 CFR Sections 404.1545(a)(3) and 416.945(a)(3). 7 finding must include assessment of both a plaintiff's exertional 8 capabilities as well as nonexertional limitations including 9 those resulting from mental impairments. A claimant's RFC represents a finding of the An RFC determination is informed by The RFC And of course, an 10 ALJ's RFC determination, like all of the parts of the decision, 11 must be supported by substantial evidence. 12 In this case, there is considerable opinion evidence 13 in the record including two opinions reported at 12F and 22F of 14 the administrative transcript from Dr. Arun Shah, a treating 15 psychiatrist. 16 Dr. Shah on March -- I'm sorry, May 13, 2013, 17 evaluated the plaintiff and concluded that plaintiff is markedly 18 limited in many areas including the ability to maintain 19 attention and concentration for extended periods, the ability to 20 perform activities within a schedule and so forth, the ability 21 to work in coordination or proximity to others without being 22 unduly distracted, the ability to complete a normal workweek 23 without interruptions, the ability to interact appropriately 24 with the general public, the ability to get along with 25 coworkers, and the ability to travel to unfamiliar places or use JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 10 20-CV-115 1 public transportation. 2 the administrative transcript. 3 That opinion is at 514 through 521 of A second opinion from Dr. Shah was given on March 28, 4 2014, and contains similar limitations in a checkbox format with 5 many marked limitations. 6 Dr. Shah also issued a letter on June 11, 2013, that 7 appears at 535 of the administrative transcript, stating that 8 the plaintiff remains disabled. 9 a function by function analysis and speaks to a matter that is 10 11 Of course, that doesn't include reserved to the commissioner. Dr. Shah is clearly a treating source as recognized by 12 the administrative law judge. 13 opinions ordinarily would be entitled to considerable deference 14 provided that his opinions are supported by medically acceptable 15 clinical and laboratory diagnostic techniques and are not 16 inconsistent with other substantial evidence. 17 versus Barnhart, 312 F.3d 578, 588, Second Circuit 2002. 18 As a treating source, his Veino, V-e-i-n-o, Such opinions are not controlling, however, if they 19 are contrary to other substantial evidence in the record, 20 including the opinions of other medical experts. 21 F.3d at 588. 22 contradictory medical evidence, their resolution of course is 23 properly entrusted to the commissioner. 24 25 Veino at 312 Where there are conflicts in the form of If controlling weight is not given to a treating source's opinion, the ALJ must apply several factors that are JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 11 20-CV-115 1 specified in the regulations, 20 CFR Sections 404.1527 and 2 416.927, the so-called Burgess factors, and the ALJ must provide 3 reasons for the rejection. 4 Of course, under Estrella versus Berryhill, 925 F.3d 5 90 from Second Circuit 2019, in recognition of the fact that in 6 most instances, the ALJ does not specifically list the Burgess 7 factors, the Second Circuit has noted that the treating source 8 rule is not violated if a searching review of the record reveals 9 that the factors have been properly considered. 10 In this case, the administrative law judge discussed 11 Dr. Shah's opinions at pages 595 to 596 and again at 599 of the 12 administrative transcript. 13 not supported by treatment records. 14 were not supported by the cited global assessment on function or 15 GAF scores recorded. 16 GAF at 60 to 65, and although it may be an error, an obvious 17 error, stated that the lowest GAF for the past year for the 18 plaintiff was 75. 19 65, and the lowest GAF in the past year was listed as 60. 20 She concluded that the opinions were She also noted that they Dr. Shah at page 514 listed the current At 555, the current GAF was listed at 60 to Under the standard set out in DSM-4 -- and I 21 understand that that standard no longer applies, but it did at 22 the time of Dr. Shah's opinions -- a GAF of 61 to 70 represents 23 some mild symptoms or some difficulty in social, occupational, 24 or school functioning, but generally functioning pretty well, 25 has some meaningful interpersonal relationships. JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 60, which is 12 20-CV-115 1 at the high end of the 51 to 60 category, reflects moderate 2 symptoms, more moderate difficulty in social, occupation, or 3 school functioning. 4 The consideration of GAF scores is proper as one 5 factor. It is certainly not the be all and end all, and in many 6 respects, represents only a snapshot of plaintiff's functioning 7 at any given time. 8 of Social Security, 2016 Westlaw 3511780 from the Northern 9 District of New York, May 19, 2016, approved of consideration of 10 GAF score -- in that case, a score of 60 -- as inconsistent with 11 the conclusion of serious limitations in maintaining attention, 12 working without distraction, and adhering to standards of 13 neatness and cleanliness. 14 at 2016 Westlaw 3512219 and noted in note 2 the relevance on a 15 limited basis of GAF score. 16 But the Court in Leonard versus Commissioner The Second Circuit affirmed that case In this case, this is not a situation where a 17 treatment note is cherry-picked and it has a GAF score of a 18 certain figure. 19 that is issuing the opinions with the significant limitations. 20 And moreover, it doesn't represent just a single snapshot 21 because it reports the lowest GAF score in the past year in both 22 instances. 23 factor in weighing Dr. Shah's opinions. 24 25 This is a GAF score recorded by the very person I think the ALJ properly considered those as a The ALJ also noted the lack of deficits in attention and concentration reflected in treatment notes, the fact that it JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 13 20-CV-115 1 was speculative when it comes to absences, and the significant 2 gaps in treatment. 3 treatment: 4 2015, November 2015 to July 2016, and July 2016 to March of 5 2017, a proper consideration. 6 There are essentially four gaps in October 2011 to March 2013, July 2014 to November The ALJ also noted that Dr. Shah found a marked 7 limitation in the plaintiff's ability to perform -- to take 8 public transportation, and yet she reported to one of the 9 consultative examiners that she is -- and she testified she can 10 take public transportation. 11 were properly considered. 12 review of the record reflects a violation of the treating source 13 rule in consideration of Dr. Shah's opinions. 14 In my view, the Burgess factors I am not able to say that a searching The record also contains opinions from Nurse 15 Practitioner Ryan Little. 16 to page 508, a checkbox form reflects that there are marked 17 limitation in several areas including the ability to maintain 18 attention and concentration for extended periods, the ability to 19 perform activities within a schedule and maintain regular 20 attendance, the ability to make simple work-related decisions, 21 the ability to accept instructions and respond appropriately to 22 criticism, the ability to get along with coworkers or peers, the 23 ability to respond appropriately to changes in work setting, and 24 the ability to be aware of normal hazards. 25 In 2011, November 2011, at page 501 Nurse Practitioner Little also indicated that the JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 14 20-CV-115 1 plaintiff is incapable of even a low stress position and would 2 be likely absent more than three times a month. 3 through 840, Nurse Practitioner Little provides an opinion from 4 February 28, 2018, indicating similarly marked limitations in 5 various areas and a likelihood that plaintiff would be absent 6 two to three times per month. 7 At pages 835 On December 13, 2018, appearing at 842 to 847, Nurse 8 Practitioner Little provided yet another assessment in a 9 checkbox format, similarly finding marked limitations in many 10 areas and a finding that plaintiff would be absent more than 11 three times per month. 12 Nurse Practitioner Little signed or authored a "to 13 whom it may concern" letter on July 13, 2017, that is cosigned 14 by Dr. Domingo Jimenez. 15 that Dr. Jimenez ever treated the plaintiff. 16 anxiety disorder with agoraphobia and social anxiety. 17 marked limitations in several areas. 18 There's no indication in the record It references It finds The record further contains some conclusory opinions 19 from Nurse Practitioner Little. May 14, 2013, she is currently 20 disabled from her mental health issues, a matter reserved to the 21 commissioner. 22 unable to work from 2009 until the present. 23 by function limitations and on a matter reserved for the 24 commissioner, and once again, inability to work doesn't -- is 25 not supported by any functional limitations cited. On May 26, 2011, at 531, plaintiff has been Again, no function JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY And 15 20-CV-115 1 March 10, 2014, 554, similarly plaintiff is unable to work. 2 The opinions of Nurse Practitioner Little are 3 comprehensively discussed by Administrative Law Judge Koennecke 4 as 596, 597 and again at 598 to 599, not given significant 5 weight. 6 the time, this action involving an application that was made 7 prior to March 2017, Little is not an acceptable medical source, 8 and once again, there's no evidence that Dr. Jimenez ever 9 treated the plaintiff. 10 Of course, under the regulations that were in effect at The ALJ properly rejected the nurse practitioner's 11 opinions because the treatment notes do not support. 12 many visits without any findings. 13 deficits in plaintiff's ability to concentrate and attention. 14 The activities of daily living were properly considered when 15 rejecting those opinions. 16 relatively benign transcript notes with reference to any anxiety 17 and depression. 18 There are There's lack of evidence of Frankly, a modest number of I do acknowledge, as plaintiff has argued, that there 19 are some treatment notes that reflect modest anxiety or 20 depression levels, but that doesn't undermine the administrative 21 law judge's decision. 22 evidence would support a finding of no disability or a finding 23 of disability. 24 supports the finding of no disability. 25 refusing to accord greater weight to the opinions of Nurse The question is not whether substantial The issue is whether substantial evidence I find no error in JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 16 20-CV-115 1 Practitioner Little. 2 There are also some consultative examination results 3 from examining and nonexamining consultants in the record. All 4 were considered by Administrative Law Judge Koennecke. 5 Dr. Sarah Long examined the plaintiff and issued an opinion on 6 July 23, 2010. 7 and understand simple directions and instructions and to perform 8 simple tasks independently. 9 and concentration and is able to maintain a regular schedule. She opined that the plaintiff is able to follow She is able to maintain attention 10 She appears able to learn new tasks, perform complex tasks 11 independently, make appropriate decisions, relate adequately to 12 others, and is capable of adequate stress management. 13 opinions are at 374 to 378 in the record. 14 594 and given some weight. 15 Her They are discussed at It is true that a consultative examiner's opinion can 16 provide substantial evidence to an RFC finding if it is 17 supported. 18 findings and are consistent with a residual functional capacity 19 finding. 20 Dr. Long's opinions are well supported by the exam There is a statement that plaintiff focuses on in the 21 next paragraph on page 376. Quote, "The results of the present 22 evaluation appear to be consistent with psychiatric problems, 23 comma, which may, comma, at times, comma, interfere with her 24 about to function on a regular basis," close quote. 25 that statement is vague, and the medical source statement that I JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY However, 17 20-CV-115 1 just summarized is more specific when it comes to maintaining a 2 schedule, for example, and concentration, and once again is 3 supportive of the residual functional capacity finding. 4 The record also contains the opinion of Dr. Cheryl 5 Loomis dated August 27, 2013, appearing at 523 to 527 of the 6 administrative transcript. 7 there are some moderate impairments of the plaintiff and a 8 marked impairment in her ability to maintain attention and 9 concentration, perform complex tasks independently or under It is Dr. Loomis's opinion that 10 supervision, make appropriate decisions, relate adequately with 11 others, and appropriately deal with stress. 12 discussed at pages 594 to 595 and given some weight. 13 The opinion was As the administrative law judge noted, however, some 14 of the conclusions including the marked impairment and the 15 ability to maintain attention and concentration are inconsistent 16 with the exam findings since at page 525, she assessed 17 plaintiff's ability in the area of concentration and attendance 18 as moderately impaired and spelled that out. 19 It also indicates in Administrative Law Judge 20 Koennecke's consideration of Dr. Loomis's opinion, which she 21 gave some weight, that it's based quite a bit on plaintiff's 22 subjective statements, and in any event, is generally consistent 23 with some exceptions to -- with the RFC finding. 24 25 There is also the opinion, two opinions of Dr. T. Harding, a nonexamining state agency consultant from JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 18 20-CV-115 1 September 10, 2010. 2 applies the psychiatric review technique, finds the existence of 3 some impairments, but finds that they do not meet the B or C 4 criteria of the listings, finding a moderate limitation and 5 restriction in activities of daily living, a moderate 6 restriction in maintaining social functioning, and a moderate 7 limitation to maintaining concentration, persistence, or pace at 8 page 429. 9 In the first Exhibit 3F, he considers. He Assessing plaintiff's residual functional capacity 10 from a mental standpoint, Dr. Harding finds some moderate 11 limitations at page 433 to 435, but summarizes as follows: 12 examiner opines that claimant is able to perform simple tasks 13 independently and maintain attention and concentration, is able 14 to keep a regular schedule and learn new tasks and perform 15 complex tasks independently and make appropriate decisions and 16 relate adequately with others and is capable of dealing with 17 stress. 18 consistent with the MER, the medical evidence in the file, and 19 is adopted. 20 retains the capacity for simple and semiskilled work," close 21 quote. 22 CE With respect to cognitive functioning, this opinion is And based on the medical evidence, quote, "Claimant That opinion of course is consistent with the residual 23 functional capacity finding. It was discussed at pages 597 to 24 598 and given some weight. 25 weighing of the various medical opinions. I find no error in conclusion in the Under Veino, it is JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 19 20-CV-115 1 for the administrative law judge to weigh conflicting opinions, 2 and it is plaintiff's burden to show greater limitations than 3 set forth in the residual functional capacity, and I find that 4 that burden is not carried. 5 Turning to the second argument, what we used to refer 6 to as credibility, the evaluation of plaintiff's subjective 7 complaints. 8 plaintiff's subjective complaints in rendering the five-step 9 disability analysis. 10 Naturally an ALJ must take into account a 20 CFR Sections 404.1529 and 416.929. The ALJ is not, comma, however, required to blindly 11 accept the subjective testimony of a claimant. 12 ALJ instead in his or her discretion to weigh the credibility of 13 the claimant's testimony in light of the other evidence in the 14 record. 15 Circuit 2010. 16 It is up to the Genier, G-e-n-i-e-r, versus Astrue, 606 F.3d 46, Second In this case, the administrative law judge recounted 17 plaintiff's claims at 591 and 592 and applied the required 18 two-step analysis under Social Security Ruling or SSR 16-3P. 19 The administrative law judge first concluded that plaintiff's 20 medically determinable mental impairments could reasonably cause 21 the symptoms reported, but found that plaintiff's testimony 22 concerning those symptoms was not consistent with other medical 23 evidence, explaining her ruling from 592 to 600, pointing out 24 among other things that there was a lack of support from the 25 clinical findings for the reported symptoms, the clinical JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 20 20-CV-115 1 2 findings being relatively benign. She also cited significant and multiple gaps in 3 treatment, proper considerations under Landis P. versus 4 Commissioner of Social Security, 2020 Westlaw 2770434 from the 5 Northern District of New York 2020; as well as Camille versus 6 Colvin, 652 Federal Appendix 25 from the Second Circuit 2016. 7 It is true that in some instances, there may be 8 evidence that gaps in treatment have been caused by a mental 9 condition, but there is little support, if any, in the record 10 that this plaintiff could not, for example, retain a 11 psychiatrist when recommended by Nurse Practitioner Little and 12 could not attend treatment during those gap periods. 13 I note that plaintiff alleges an onset date of March 14 of 2006, and yet her first significant treatment for her mental 15 condition did not take place until November 2008 when she first 16 consulted with Nurse Practitioner Little, and at that time or 17 shortly thereafter, she declined Nurse Practitioner Little's 18 recommendation to seek specialized care. 19 The reported symptoms are also inconsistent with the 20 opinions of the consultative examiners and plaintiff's 21 activities of daily living. 22 poor work history, and the plaintiff was apparently laid off in 23 2005 due to lack of work rather than her mental condition. 24 These are all permissible factors. 25 It was noted that plaintiff has a Administrative Law Judge Koennecke also based her JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 21 20-CV-115 1 decision in part on observations of the plaintiff during the 2 hearing in this matter. 3 failed to carry her burden of demonstrating that no reasonable 4 factfinder, or put another way, that a reasonable factfinder 5 would have to find that plaintiff's complaints were credible. 6 Simply put, I find that plaintiff has So in conclusion, I reject plaintiff's arguments. I 7 find that the determination of the administrative law judge was 8 supported by substantial evidence and resulted from the 9 application of proper legal principles. I will therefore grant 10 judgment on the pleadings to the defendant and order dismissal 11 of plaintiff's complaint. 12 13 14 Thank you both for excellent presentations. working with you. I enjoyed Please stay safe. (The matter adjourned at 11:59 a.m.) 15 16 17 18 19 20 21 22 23 24 25 JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY 22 20-CV-115 1 CERTIFICATION OF OFFICIAL REPORTER 2 3 4 I, JACQUELINE STROFFOLINO, RPR, Official Court Reporter, 5 in and for the United States District Court for the Northern 6 District of New York, do hereby certify that pursuant to Section 7 753, Title 28, United States Code, that the foregoing is a true 8 and correct transcript of the stenographically reported 9 proceedings held in the above-entitled matter and that the 10 transcript page format is in conformance with the regulations of 11 the Judicial Conference of the United States. 12 13 Dated this 22nd day of April, 2021. 14 15 /s/ JACQUELINE STROFFOLINO 16 JACQUELINE STROFFOLINO, RPR 17 FEDERAL OFFICIAL COURT REPORTER 18 19 20 21 22 23 24 25 JACQUELINE STROFFOLINO, RPR UNITED STATES DISTRICT COURT - NDNY

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