Irizarry v. Astrue

Filing 17

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Irizarry's complaint is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 1/23/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MARY J. IRIZARRY,
Plaintiff,

5:09-cv-1370
(GLS/DRH)

v.
MICHAEL ASTRUE, Commissioner of
Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinksy Law Group
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

JAYA A. SHURTLIFF, ESQ.
KAREN S. SOUTHWICK, ESQ.

SHEENA V. WILLIAMS-BARR
Special Assistant U.S. Attorney

Mary Ann Sloan
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
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Mary J. Irizarry challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI) and seeks judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (See Compl., Dkt. No. 1.) Upon reviewing the
administrative record and carefully considering the arguments, the court
affirms the Commissioner’s decision.
II. Background
On October 11, 2006, Irizarry filed applications for DIB and SSI under
the Social Security Act (the Act), alleging disability since March 1, 2006.
(Tr.1 at 120-25.) After her application was denied, Irizarry requested a
hearing before an Administrative Law Judge (ALJ), which was held on
January 15, 2009. (Id. at 20-54.) On July 21, 2009, the ALJ issued a
decision denying the requested benefits, which became the
Commissioner’s final decision upon the Social Security Administration
Appeals Council’s denial of review. (Id. at 1-4, 7-19.)
Irizarry commenced the present action by filing a complaint on

1

“(Tr. )” refers to the page of the Administrative Transcript in this case. (See Dkt. No.

9.)

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December 8, 2009, seeking review of the Commissioner’s determination.
(Compl., Dkt. No. 1.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 7, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 15.)
III. Contentions
Irizarry contends that the Commissioner’s decision is not supported
by substantial evidence or the appropriate legal standards. Specifically,
Irizarry claims the ALJ: (1) erred at step 2 when he found her depression
was non-severe; (2) failed to apply the appropriate legal standards in
evaluating her Residual Function Capacity (“RFC”); (3) did not apply the
appropriate legal standards in evaluating her credibility; and (4) erred when
he found that she was capable of her past work as a housekeeper. (See
Dkt. No. 11 at 5, 16-28.) The Commissioner counters that substantial
evidence supports the ALJ’s decision. (See generally Dkt. No. 15.)
IV. Facts
The evidence in this case is undisputed and the court adopts the
parties’ factual recitations. (See Dkt. No. 11 at 6-14; Dkt. No. 15 at 1-2.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard and the five-step process used by the
Commissioner in evaluating whether a claimant is disabled under the Act,
the court refers the parties to its previous opinion in Christiana v. Comm’r
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

ALJ’s Step Two Finding
Irizarry claims the ALJ erred when he found her “depression resulted

in ‘minimal, if any limitation’ in her ability to perform work-related activities.”
(Dkt. No. 11 at 16-17.) The court disagrees.
Where additional information is not readily available from the
claimant’s physicians or other medical sources, an ALJ is permitted to ask
the claimant “to attend one or more consultative examinations.” 20 C.F.R.
§ 404.1512(f). But, when the evidence remains incomplete, the ALJ “will
make a determination or decision based on the evidence” before him. 20
C.F.R § 404.1527(c)(4). It follows that, if a claimant, without good cause,2

2

Notably, Irizarry does not contend that she had “good cause” for her failure to attend
the examinations. See 20 C.F.R. § 404.1518.

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fails or refuses to attend and participate in a consultative examination, the
ALJ may render a finding of not disabled. See id. § 404.1518(a); see also
Cornell v. Astrue, 764 F. Supp. 2d 381, 392 n.8 (N.D.N.Y. 2010) (“The
Regulations permit an ALJ to deny benefits on the basis of a claimant’s
failure or refusal to take part in an consultative examination or test
arranged by the Social Security Administration, in the absence of good
cause to excuse the failure.”) (citing 20 C.F.R. §§ 404.1518, 416.918)).
Here, it is undisputed that Irizarry—despite being warned of the
consequences of doing so—failed to attend the consultative examinations
scheduled for February and March 2007. (Tr. at 13-14,163, 253-80.) Her
failure, while not dispositive, prevented “the disability determination
service” from completing “assessments of [her] limitations and residual
capacities.” (Id. at 14.) In addition, the ALJ noted that Irizarry has not fully
complied with her treatment insofar as she has either refused to take the
prescribed medication “or stopped taking it altogether.” (Id. at 17, 378.)
Nevertheless, the ALJ considered, among other things, the April 2007
psychiatric assessment by Dr. Stanley Poreba, M.D., and Irizarry’s
testimony, in which she stated her depression only “sometimes” interferes
with her ability to relate to people, but is controllable when she takes her
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medication. (Id. at 14, 47-48.) Moreover, the treatment reports Irizarry
relies on from Oswego Hospital Behavioral Services Division do not refute
the ALJ’s findings. (Id. at 378-84; Dkt. No. 11 at 17-19.) Instead, the
doctors at Oswego Hospital consistently prescribed medication and
additional counseling to treat Irizarry’s depression. (Tr. at 378-84.)
Because substantial evidence supports the ALJ’s finding that Irizarry
“displayed little in the way of any limitations due to a mental impairment,”
(id. at 14), the court rejects Irizarry’s argument and affirms the ALJ’s steptwo determination.
B.

RFC Determination
Irizarry next avers the ALJ erred “because he did not provide a

function-by-function determination of limitations; substituted his lay opinion
for the medical evidence; and included no non-exertional limitations.”3
(Dkt. No. 11 at 19-20.) The court rejects these arguments.
First, Irizarry claims the ALJ committed “legal error” when he “did not
make a function-by-function determination of [her] exertional limitations.”
(Id. at 21.) In so arguing, Irizarry takes exception with the ALJ’s failure to

3

Irizarry’s argument regarding the non-extertional limitations ignores the fact that she
failed to attend the consultative examinations in February and March 2007. See Part VI(A)
supra. Thus, for the reasons discussed above, the court remains unpersuaded.

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explicate his assessment of “her ability to sit, stand, walk, lift, carry, push
and pull.” (Id.); see Crysler v. Astrue, 563 F. Supp. 2d 418, 436 (N.D.N.Y.
2008) (citing 20 C.F.R. §§ 404.1545(b), 404.1569a).
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence4 in
the record. See 42 U.S.C. 405(g). If it is, that determination is conclusive
and must be affirmed upon judicial review. See id.; Perez v. Chater, 77
F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ’s decision examined the relevant factors in reaching an
RFC determination—specifically noting that Irizarry’s testimony shows that
she “is essentially independent in the performance of all activities in daily
living, including cleaning and cooking”—and provides the definition of “light
work.” (Tr. at 18.) Additionally, the ALJ highlighted that Irizarry was able to

4

“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 quotations omitted).

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swim, go grocery shopping, and clean her own house. (See id.) Although
the ALJ could have provided further clarification with respect to Irizarry’s
exertional capabilities, this shortcoming does not amount to legal error
since the ultimate determination is supported by substantial evidence. See
Crysler, 563 F. Supp. 2d at 436.
Furthermore, Irizarry’s second contention—which is essentially that
the ALJ’s decision contradicts the opinions of Drs. Cambareri and
Sawyer—also lacks merit. (See Dkt. No. 11 at 21.) Normally the
commissioner is required to give controlling weight to a treating physician’s
medical opinions if they are supported by acceptable diagnostic techniques
and are not inconsistent with other substantial evidence in the record. See,
e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). However, the
“ultimate finding of whether a claimant is disabled and cannot work . . . [is]
reserved to the Commissioner.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (internal quotation marks and citation omitted). “That means that the
Social Security Administration considers the data that physicians provide
but draws its own conclusions as to whether those data indicate disability.”
Id. Thus, a treating physician’s disability assessment is not determinative.
See id.; see also 20 C.F.R. § 404.1527(e).
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In the instant case, the ALJ found there was “no evidence from any
source documenting significant symptoms related to the claimant’s hip
since November 8, 2007,” and that Irizarry testified in January 2009 that
her hip was better after her hip replacement surgery. (Tr. at 18, 33-34.)
Moreover, in rejecting the medical evidence relied on by Irizarry, the ALJ
noted that “Dr. Cambareri declined to answer many questions on” the RFC
questionnaire because they “were ‘outside the scope of [his] practice.’” (Id.
at 18.) The ALJ was similarly unpersuaded by Dr. Sawyer’s Medical
Source Statement as he opined it was “likely . . . largely influenced” by
Irizarry’s statements, which he found to be incredible. (Id.) As such, the
inconsistencies Irizarry cites are immaterial because the ALJ’s RFC
determination was supported by substantial evidence.
C.

Credibility Determination
Irizarry’s third claim focuses on the ALJ’s assessment of her

credibility. (See Dkt. No. 11 at 24-26.) Specifically, she objects to the
ALJ’s determination that her “statements concerning the intensity,
persistence and limiting effects of [her impairment] are not credible to the
extent they are inconsistent with the [RFC] assessment.” (Tr. at 16.)
Again, the court disagrees.
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As noted, an ALJ must consider a claimant’s subjective complaints of
pain in gauging her RFC. See 20 C.F.R. § 404.1545(a)(3). However, “[a]n
individual’s statement as to pain or other symptoms shall not alone be
conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A). The
Commissioner is obligated to evaluate all of a claimant’s symptoms,
“including pain, and the extent to which [those] symptoms can reasonably
be accepted as consistent with the objective medical evidence and other
evidence.” 20 C.F.R. §§ 404.1529(a), 416.929(a).
Ultimately, “[t]he reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or decision.” SSR 967p, 1996 WL 374186, at *4 (July 2, 1996). Thus, “after weighing the
objective medical evidence in the record, the claimant’s demeanor, and
other indicia of credibility,” an ALJ may reject the claimant’s subjective
allegations of pain as long as he sets forth his “reasons with sufficient
specificity to enable [the court] to decide whether the determination is
supported by substantial evidence.” Lewis v. Apfel, 62 F. Supp. 2d 648,
651 (N.D.N.Y. 1999) (internal quotation marks and citation omitted).
Here, the ALJ considered both the medical evidence and Irizarry’s
testimony concerning her activities of daily living. (Tr. at 16-18.) Notably,
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the ALJ highlighted the inconsistencies between Irizarry’s testimony, in
which she stated she “took walks, swam, cooked, dinner, washed dishes,
cleaned her house, and shopped,” and her application with the Division of
Disability Determinations, where she stated “she was unable to walk,
exercise, work, and swim.” (Id. at 16; compare Tr. at 34-36, 38, with Tr.
145-46.)
Thus, on the basis of the record before it, the court discerns no error
in the ALJ’s determination that Irizarry’s subjective statements were not
entirely credible and did not alone establish disability, see 20 C.F.R. §
404.1529(a), and concludes the ALJ’s RFC determination is supported by
substantial evidence.
D.

Vocational Assessment
Finally, Irizarry contends the ALJ erred when he determined she

could perform her past relevant work as a housekeeper. (See Dkt. No. 11
at 26-28.) Because this argument is, in part, predicated on a perceived
error in the ALJ’s RFC analysis—which has already been affirmed—the
court addresses only Irizarry’s claim that the ALJ was required to consult a
vocational expert. (See id. at 27.)
Relevantly, 20 C.F.R. § 404.1566(e) makes the use of a vocational
11

expert discretionary. Indeed, “the necessity for expert testimony must be
determined on a case-by-case basis.” Bapp v. Bowen, 802 F.2d 601, 605
(2d Cir. 1986). Here, the ALJ compared Irizarry’s RFC with the physical
and mental demands of a “cleaner housekeeper,” as described by Irizarry
in her testimony and the Dictionary of Occupational Titles. (Tr. at 19.) In
so doing, the ALJ determined, and the court agrees, the use of a vocational
expert was unnecessary. Though the ALJ’s comparison at this step was
brief, it was nevertheless supported by substantial evidence.5
E.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Irizarry’s complaint 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.

5

Indeed, Irizarry testified that she is able to clean “walls, the floors, the fridge, the,
anything” in her home. (Tr. at 38.)

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IT IS SO ORDERED.
January 23, 2012
Albany, New York

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