Patterson v. Astrue
ORDER adopting Report and Recommendations re 17 Report and Recommendations: ORDERED that: The Report-Recommendation is hereby adopted in its entirety. The Plaintiff is granted judgment on the pleadings and the Commissioners motion forjudgment on t he pleadings is denied. The Clerk is directed to close the case and enter judgment accordingly. The Clerk of the Court shall serve a copy of this Order upon all parties and the Magistrate Judge assigned to this case. Signed by U.S. District Judge Mae A. D'Agostino on 2/14/13. (Attachments: # 1 Report and Recommendation) (ban)
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 1 of 45
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MANDI LYNNE PATTERSON,
Civil Action No.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
OLINSKY LAW GROUP
One Park Place
300 South State Street
Syracuse, New York 13202
KAREN S. SOUTHWICK, ESQ.
HON. RICHARD S. HARTUNIAN
United States Attorney
Northern District of New York
P.O. Box 7198
100 South Clinton Street
Syracuse, New York 13261-7198
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
VERNON NORWOOD, ESQ.
Special Ass’t U.S. Attorney
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 2 of 45
REPORT AND RECOMMENDATION
Plaintiff Mandi Lynne Patterson, who suffers from several diagnosed
mental impairments, has commenced this proceeding against the
Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g), seeking
judicial review of an administrative determination denying her application
for supplemental security income (“SSI”) benefits. In support of her
challenge, plaintiff argues that the decision of the administrative law judge
(“ALJ”) that led to the denial of benefits is fatally flawed for three reasons.
First, she contends that the ALJ’s residual functional capacity (“RFC”)
determination, representing an inventory of her ability to perform workrelated activities, is not supported by substantial evidence. Plaintiff further
contends that the ALJ erred in assessing her credibility and discounting
her statements regarding the limitations imposed by her impairments.
Lastly, she asserts that the ALJ’s determination at step five of the
governing sequential analysis, relating to the availability of work she is
able to perform notwithstanding her impairments, is not supported by
Having carefully considered the record now before the court, in light
of the parties’ arguments, and applying the requisite level of deference
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 3 of 45
owed to the Commissioner’s determination, I find that the ALJ erred in
assessing plaintiff’s credibility, and recommend that the matter be
remanded for further proceedings consistent with this report.
Plaintiff was born in August 1979; and at the time of the hearing in
this matter held on April 7, 2011, she was 31 years old. Administrative
Transcript at 16, 41, 150.1 Plaintiff is married and has six children, five of
whom live with her in Fulton, New York. Id. at 20, 150. Plaintiff does not
possess a driver’s license.2 Id. at 16, 19, 20, 182.
Plaintiff attended high school only through the tenth grade, but has
since earned a general educational development (“GED”) diploma, and
has attended a community college for one semester. Id. at 16-17.
Plaintiff held a variety of jobs prior to filing her application for SSI benefits,
including working as a gas station attendant, an aide at an adult home, an
assistant at a nursing home, and a waitress or dishwasher at a restaurant.
Portions of the administrative transcript, Dkt. No. 10, which is comprised of the
evidence and proceedings before the agency and was filed by the Commissioner
together with his answer, will be hereinafter cited as “AT __.”
During her last road test for a driver’s license, plaintiff drove around a
handicapped bus in a school zone. Id. at 28-29. After being admonished for having
done so by her driving instructor, plaintiff experienced a panic attack, and was issued a
traffic ticket. Id. The charge was ultimately reduced because of plaintiff’s mental
condition. Id. at 29, 46.
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AT 18, 25-27, 174, 188. Plaintiff was fired from her job at the gas station
for selling cigarettes to minors. Id. at 19. Plaintiff’s employment at the
adult home was terminated because she dispatched residents to run
personal errands for her. Id. at 27-28. Plaintiff lost her nursing home job
for providing patients with the wrong medication and falling asleep on the
job. Id. at 26. Plaintiff quit her employment at the restaurant after an
argument with the head cook. Id. at 26-27. At the hearing before the ALJ,
plaintiff testified that she had a difficult time working because she is
unable to “handle stress.” Id. at 18.
Plaintiff’s mental limitations have been addressed over the years by
various professionals. The following is a summary of the findings from the
care providers that have treated or evaluated the plaintiff since her alleged
disability onset date of February 26, 2008.
Plaintiff was treated by Dr. Suresh Patil, at Oswego Hospital
Behavioral Services (“Oswego Hospital”), on July 28, 2008. AT 261-62,
305-06. At the time, Dr. S. Patil did not believe plaintiff was psychotic, but
reported that she was “having trouble with some anxiety.” Id. Dr. S. Patil
diagnosed plaintiff with dysthymia, panic disorder, slightly overweight, with
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a global assessment of functioning (“GAF”) score of approximately 55-60.3
Id. at 262, 306.
Plaintiff was again seen by Dr. S. Patil for a follow-up appointment
on August 11, 2008. AT 295. Dr. S. Patil’s diagnosis and prognosis did
not change from plaintiff’s first visit in July, although s/he noted his/her
observation that plaintiff’s panic disorder showed “some improvement.”
Id.4 In his report of that visit, Dr. S. Patil also repeated the finding that
plaintiff is not psychotic. Id.
Plaintiff returned to Oswego Hospital on September 10, 2008, at
which time he was seen by Dr. Vilas Patil. AT 294. On that occasion,
plaintiff complained that she continued to experience panic symptoms,
and that she becomes nauseous while in the car and in crowds. Id. Dr.
V. Patil reported that there was “no evidence of delusions or paranoid
ideations” and that plaintiff denied feeling depressed. Id. Dr. V. Patil
acknowledged plaintiff’s diagnoses of panic and dysthmyic disorders. Id.
Plaintiff was again seen at Oswego Hospital by Dr. S. Patil on
The GAF scale considers psychological, social and occupational functioning on
a hypothetical continuum of mental health. DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 34 (Am. Psychiatric Assoc., 4th ed. Text Revision 2000)
(“DSM-IV-TR”). A GAF of fifty-five indicates moderate difficulty in social, occupational
or school functioning. DSM-IV-TR at 34.
The record does not reveal Dr. S. Patil’s gender.
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October 8, 2008. AT 293. During that visit, plaintiff reported that,
although she still experienced some “panicky feelings,” she was “doing
pretty well” and responding well to the medications Dr. S. Patil prescribed
in earlier visits. Id. Dr. S. Patil’s diagnosis at that time included only
Plaintiff was next seen at Oswego Hospital on July 2, 2009, on this
occasion by Dr. Lackshman Prasad. AT 361. During that visit, plaintiff
complained of anxiety symptoms, and described experiencing mood
fluctuations. Id. Dr. Prasad reported a diagnosis of bipolar disorder and
impulse control, and noted that plaintiff’s “insight and judgment were
somewhat compromised.” Id. At that time, Dr. Prasad transferred plaintiff
to the care of Nurse Practitioner (“NP”) Andrew Catalone. Id.
Since that time, plaintiff has met with NP Catalone approximately
twice per month, principally for medication management. Id. at 20, 232.
Between July 2009 and February 2011, NP Catalone reported seeing
plaintiff for 16 appointments of 15 minute durations. AT 228-29, 231, 25860, 273, 276-77, 279-82, 286-88, 344, 346, 349, 351, 355.5 During that
same period of time, plaintiff was seen once by Joyce Behling (“NP
Some of the citations to NP Catalone’s reports include references to duplicative
reports in the administrative record.
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Behling”), another nurse practitioner at Oswego Hospital, on August 12,
2009. Id. at 289. With three exceptions, the reports generated by NP
Catalone and NP Behling note a diagnosis of bipolar disorder, hypomanic,
and impulse control disorder. Id. at 229-30, 228, 258-59, 273, 276-77,
279-82, 286-89, 349, 351, 355. The first appointment with NP Catalone
included a diagnosis of only dysthmyic disorder, panic disorder, and
obesity. Id. at 231, 260. In the notes of the last two appointments NP
Catalone included a diagnosis of only bipolar disorder and impulse control
disorder. Id. at 346, 344. In addition, in notes from 11 of the 16
appointments, NP Catalone reported plaintiff’s depression and anxiety
fluctuated or increased. Id. at 229, 231, 260, 273, 276-77, 279-80, 286,
288, 344, 346, 351, 355. After six of the 16 appointments, NP Catalone
reported plaintiff’s concentration and focus as fair, decreased, or
fluctuating. Id. at 231, 260, 273, 344, 346, 351, 355. In reports from eight
of the 16 appointments, NP Catalone noted that plaintiff experienced
mood swings, irritability, and anger. Id. at 276-77, 279-81, 288, 344, 346,
351, 355. At only one appointment, on April 22, 2010, NP Catalone
reported plaintiff complaining of auditory hallucinations and appearing to
have “some problems with psychosis.” Id. at 279.
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Notes of plaintiff’s visits to NP Catalone record some variances in
her condition from visit-to-visit. At the appointments where plaintiff
appeared to have the most difficulty, NP Catalone invariably reported a
corresponding issue with plaintiff’s medications. Id. at 279-80, 351, 355.
At all of his appointments with plaintiff, NP Catalone observed that
plaintiff’s appearance was good, she never experienced paranoia. Id. at
228-30, 258-59, 273, 276-77, 279-82, 286-89, 349, 351, 355. Following
plaintiff’s appointment on February 25, 2011, NP Catalone reported that
he “do[es] not feel that [plaintiff] could ever participate in the work
environment due to her mood swings, irritability, anger, and antisocial
personality disorder.” Id. at 344. Finally, in NP Catalone’s medical source
statement, he reported that plaintiff has marked limitations in interacting
appropriately with the public, supervisors and co-workers, and is
moderately limited in her ability to respond appropriately to usual work
situations and to changes in a routine work setting. Id. at 256. He also
noted that plaintiff “experiences severe difficulty with mood disability and
impulse control. These symptoms result in marked impairment of her
ability to cope with stressors.” Id.
In addition to NP Catalone, plaintiff attended 20 counseling sessions
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at Oswego Hospital with Michael Herrera, CSW, ASCW, BCD, between
February 2010 and February 2011. AT 271-72, 274-75, 278, 283-85, 345,
347-49, 352-53, 356-60, 384. Those sessions focused primarily on
stabilizing plaintiff’s mood and managing the various changes in her
personal life, such as her living situation and children’s health. See
Dr. Kristen Barry, Ph.D., conducted a consultative psychiatric
evaluation of the plaintiff on February 9, 2010. AT 232-36. Based upon
her examination, Dr. Barry found plaintiff to have fair relational and social
skills. Id. at 234. She also found that plaintiff's attention and
concentration are intact, and that she is capable of counting and making
simple calculations. Id. Dr. Barry opined that plaintiff does not have
difficulty with her ability to perform daily tasks, including to dress, bathe,
and groom herself, and cook, clean, and do laundry. Id. at 235. Dr. Barry
observed that plaintiff is able to understand simple instructions and
maintain her attention and concentration “fairly well.” Id. Dr. Barry also
noted that plaintiff “gets frustrated easily and may have difficulty making
appropriate decisions.” Id. Significantly, Dr. Barry concluded that
plaintiff’s “allegations are found to be consistent with examination results.”
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Id. Finally, Dr. Barry diagnosed plaintiff with cocaine abuse, in remission;
cannabis abuse, in remission; obsessive compulsive disorder; intermittent
explosive disorder; and rule out bipolar disorder. Id.
Plaintiff’s records were examined by Dr. M. Morog, a state agency
review psychologist. AT 237-54. Based upon his review, Dr. Morog
diagnosed plaintiff with obsessive compulsive disorder and intermittent
explosive disorder, with a medical history of polysubstance abuse. Id. at
242, 244-45. Dr. Morog completed a psychiatric review technique, in
which he concluded that plaintiff has mild restrictions in activities in daily
living; mild difficulties in maintaining concentration, persistence, or pace;
and moderate difficulties in maintaining social functioning, with insufficient
evidence of repeated episodes of decompensation. Id. at 247. In an
accompanying mental RFC assessment, Dr. Morog concluded that plaintiff
is moderately limited in her abilities to understand and remember detailed
instructions, maintain attention and concentration for extended periods,
interact appropriately with the general public, ask simple questions or
request assistance, accept instructions and respond appropriately to
criticism from supervisors, and get along with coworkers or peers without
distracting them or exhibiting behavior extremes. Id. at 251-52.
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As is evident from the diagnoses of Dr. Barry and Dr. Morog, and
the record confirms, plaintiff has a history of illicit drug use, including
ecstasy, cocaine, and marijuana. AT 21, 233, 245, 261, 361. Although
plaintiff admits to using marijuana as recently as the spring of 2010, id. at
281, 280, 276, the record evidence suggests that plaintiff has been in
remission from drug addiction since 2002.6 Id. at 21, 228-31, 235, 258,
260-61, 273, 282, 286-89, 305, 346, 349, 351, 355, 361.
Proceedings Before the Social Security Administration
Plaintiff applied to the Social Security Administration (“SSA”) for SSI
benefits on January 28, 2010, alleging a disability onset date of February
26, 2008. AT 150-54. The application was initially denied on February
22, 2010. Id. at 57-62. At plaintiff’s request, a hearing was conducted
with regard to the denial of her application on April 7, 2011, before ALJ
Rosanne Dummer. Id. at 12-36. Following the hearing, at which plaintiff
was represented by counsel, and testimony was received from the plaintiff
and a vocational expert, the ALJ rendered a written decision, dated April
22, 2011, denying heapplication for benefits. Id. at 38-56.
It should be noted that plaintiff was incarcerated as the result of a conviction for
burglary and drug possession between 2002 and January 2006. AT 233-34, 307.
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In her decision, ALJ Drummer applied the now-familiar five-step
prescribed test for evaluating claims of disability. At step one, she
concluded that plaintiff has not engaged in substantial gainful activity
since January 12, 2010, the date of plaintiff’s application. AT 43. At step
two, the ALJ found that plaintiff suffers from multiple severe impairments,
including bipolar disorder, impulse control disorder, obsessive compulsive
disorder, depression, anxiety, and cocaine and cannabis abuse in
remission. Id. At step three, however, the ALJ concluded that those
impairments, either individually or in combination, do not meet or
medically equal any of the listings of presumptively disabling conditions
set forth in the applicable regulations. Id.
Before proceeding to step four, the ALJ concluded that plaintiff
retains the RFC to “follow and understand simple directions and
instructions, and [plaintiff] is able to maintain attention and concentration .
. . [and] is limited to routine, repetitive type tasks involving occasional
contact with others.” AT 45. In arriving at her RFC determination, the ALJ
concluded that, although plaintiff’s “medically determinable impairments
could reasonably be expected to cause [her] alleged symptoms. . .
[plaintiff’s] statements concerning the intensity, persistence and limiting
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effects of these symptoms are not credible to the extent they are
inconsistent with the above [RFC].” Id. at 49. Additionally, the ALJ
concluded that she could not “rule out the [e]ffect of ongoing substance
abuse on [plaintiff’s] mood swings and irritability and functioning.” Id. The
ALJ assigned “great weight” to Dr. Barry’s consultative opinions because
she found them to be “consistent with the overall record evidence.” Id. at
50. The ALJ also attributed “great weight” to Dr. Morog’s opinions
because “[t]he evaluator is experienced in the sequential evaluation
process and familiar with Social Security rules and regulations, and the
opinion is consistent with the overall evidence of record.” Id. In contrast,
the ALJ assigned “little weight” to the opinion of NP Catalone regarding
her limitations noting, inter alia, that “it is inconsistent with [plaintiff’s]
treatment record noting mostly positive evaluations and mental status
findings, and her busy activities of daily living.” Id. at 51. Finally, the ALJ
concluded that “[n]othing in [plaintiff’s] clinical signs suggest that the
[RFC] assessment is unreasonable. Nor does the medical record reflect a
treatment regimen inconsistent with such limitations.” Id.
At step four, the ALJ concluded that plaintiff has no past relevant
work. AT 51. At step five, the ALJ found, based upon the testimony of a
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 14 of 45
vocational expert in response to hypothetical questions approximating
plaintiff’s RFC and other relevant characteristics, that jobs exist in
significant numbers in the national economy that plaintiff can perform.7 Id.
Based upon that finding, ALJ Drummer concluded that plaintiff is not
disabled, and therefore does not qualify for SSI benefits. AT 53. The
ALJ’s determination became final on August 31, 2011, when the Social
Security Administration Appeals Council rejected plaintiff's application for
review of that decision. Id. at 1-3.
Proceedings in This Court
Plaintiff commenced this action on September 26, 2011. Dkt. No. 1.
Issue was thereafter joined by the Commissioner’s filing of an answer,
accompanied by an administrative transcript of the evidence and
proceedings before the SSA, on March 9, 2012. Dkt. Nos. 9, 10. With the
filing of the briefs on behalf of the plaintiff on April 23, 2012, Dkt. No. 13,
and the Commissioner on June 6, 2012, Dkt. No. 14, the matter is now
ripe for determination, and has been referred to me for issuance of a
The vocational expert also testified that there would be no available jobs that
plaintiff would be capable of performing if she “assume[d] [that plaintiff’s] testimony
was completely credible and supported by the medical evidence and all of the
impairments were supported by the medical evidence.” Id.
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report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
Northern District of New York Local Rule 72.3(d). See also Fed. R. Civ. P.
Scope of Review
A court’s review under 42 U.S.C. § 405(g) of a final decision by the
Commissioner is limited; that review requires a determination of whether
the correct legal standards were applied, and whether the decision is
supported by substantial evidence. Veino v. Barnhart, 312 F.3d 578, 586
(2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal
v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Martone v. Apfel, 70 F. Supp.
2d 145, 148 (N.D.N.Y. 1999) (Hurd, J.) (citing Johnson v. Bowen, 817
F.2d 983, 985 (2d Cir. 1987)). Where there is reasonable doubt as to
whether the Commissioner applied the proper legal standards, his
decision should not be affirmed even though the ultimate conclusion
This matter has been treated in accordance with the procedures set forth in
General Order No. 18 (formerly General Order No. 43), which was issued by the Hon.
Ralph W. Smith, Jr., then-Chief United States Magistrate Judge, on January 28, 1998,
and amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on
September 12, 2003. Under General Order No. 18, in an action such as this, once
issue has been joined and the parties have submitted their briefs, the court considers
the case as if both parties have submitted a motion for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 16 of 45
reached is arguably supported by substantial evidence. Martone, 70 F.
Supp. 2d at 148 (citing Johnson, 817 F.2d at 986). If, however, the
correct legal standards have been applied and the ALJ’s findings are
supported by substantial evidence, those findings are conclusive, and the
decision will withstand judicial scrutiny regardless of whether the reviewing
court might have reached a contrary result if acting as the trier of fact. 42
U.S.C. § 405(g); Veino, 312 F.3d at 586; Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988); Barnett v. Apfel, 13 F. Supp. 2d 312, 314
(N.D.N.Y. 1998) (Hurd, M.J.).
The term “substantial evidence” 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S. Ct. 206, 217 (1938)); Jasinski v. Barnhart, 341 F.3d 182, 184
(2d Cir. 2003). To be substantial, there must be “‘more than a mere
scintilla’” of evidence scattered throughout the administrative record.
Richardson, 402 U.S. at 401, 91 S. Ct. at 1427 (quoting Consolidated
Edison Co., 308 U.S. at 229, 59 S. Ct. 219); Martone, 70 F. Supp. 2d at
148 (quoting Richardson). “To determine on appeal whether an ALJ’s
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 17 of 45
findings are supported by substantial evidence, a reviewing court
considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also
include that which detracts from its weight.” Williams, 859 F.2d at 258
(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 715 S. Ct.
456, 464 (1951)).
When a reviewing court concludes that incorrect legal standards
have been applied, and/or that substantial evidence does not support the
SSA’s determination, the SSA’s decision will be reversed. 42 U.S.C. §
405(g); Martone, 70 F. Supp. 2d at 148. In such a case, the court may
remand the matter to the Commissioner under sentence four of 42 U.S.C.
§ 405(g), particularly if deemed necessary to allow the ALJ to develop a
full and fair record or to explain her reasoning. Martone, 70 F. Supp. 2d at
148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). A remand
pursuant to sentence six of section 405(g) is warranted if new,
non-cumulative evidence proffered to the district court should be
considered at the agency level. Lisa v. Sec’y of Dep’t of Health and
Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). Reversal without remand,
while unusual, is appropriate when there is “persuasive proof of disability”
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in the record and it would serve no useful purpose to remand the matter
for further proceedings before the SSA. Parker, 626 F.2d at 235; see also
Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992);
Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 644 (2d Cir.
Disability Determination - The Five Step Evaluation Process
The Social Security Act defines “disability” to include the “inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A).
In addition, the Act requires that a claimant’s
physical or mental impairment or impairments [must
be] of such severity that he is not only unable to do
his previous work but cannot, considering his age,
education, and work experience, engage in any other
kind of substantial gainful work which exists in the
national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
Id. at § 423(d)(2)(A).
The agency has prescribed a five step evaluative process to be
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 19 of 45
employed in determining whether an individual is disabled. See 20 C.F.R.
§§ 404.1520, 416.920. The first step requires a determination of whether
the claimant is engaging in substantial gainful activity; if so, then the
claimant is not disabled, and the inquiry need proceed no further. Id. at
§§ 404.1520(b), 416.920(b). If the claimant is not gainfully employed,
then the second step involves an examination of whether the claimant has
a severe impairment or combination of impairments which significantly
restricts his or her physical or mental ability to perform basic work
activities. Id. at §§ 404.1520(c), 416.920(c). If the claimant is found to
suffer from such an impairment, the agency must next determine whether
it meets or equals an impairment listed in Appendix 1 of the regulations.
Id. at §§ 404.1520(d), 416.920(d), Part 404, Subpt. P, App. 1. If so, then
the claimant is “presumptively disabled.” Id. at §§ 404.1520(d),
416.920(d); see also Martone, 70 F. Supp. 2d at 149 (citing Ferraris v.
Heckler, 728 F.2d 582, 584 (2d Cir. 1984)).
If the claimant is not presumptively disabled, step four requires an
assessment of whether the claimant’s RFC precludes the performance of
his or her past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If it
is determined that it does, then as a final matter, the agency must
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examine whether the claimant can do any other work. Id. at §§
The burden of showing that the claimant cannot perform past work
lies with the claimant. Burgess v. Astrue, 537 F.3d 117, 118 (2d Cir.
2008); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Ferraris, 728 F.2d
at 584. Once that burden has been met, however, it becomes incumbent
upon the agency to prove that the claimant is capable of performing other
work. Burgess, 77 F.3d at 118; Perez, 77 F.3d at 46. In deciding whether
that burden has been met, the ALJ should consider the claimant’s RFC,
age, education, past work experience, and transferability of skills.
Ferraris, 728 F.2d at 585; Martone, 70 F. Supp. 2d at 150.
The Evidence in This Case
In support of her appeal, plaintiff argues that (1) the ALJ’s RFC
determination is not supported by substantial evidence, and was not made
after conducting the requisite function analysis of plaintiff’s work-related
capabilities; (2) the ALJ erred in assessing plaintiff’s credibility; and (3) the
errors in formulating an RFC determination and assessing credibility,
compounded by the ALJ’s failure to consider plaintiff’s stress limitations,
difficulty in making decisions, and susceptibility to frustration, undermine
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the step five finding of no disability.
The ALJ’s RFC Determination
Plaintiff assigns error to the ALJ’s RFC determination in five
respects, contending that she (1) failed to fulfill her obligation to fill critical
gaps in the record by eliciting further opinions from a treating physician;
(2) failed to give proper weight to NP Catalone’s opinions; (3) failed to fully
include the limitations identified by Drs. Barry and Morog, despite giving
their opinions “great weight”; (4) failed to apply the required psychiatric
review technique; and (5) failed to provide a function-by-function analysis.
Plf.’s Memo. of Law (Dkt. No. 13) at 11-23. In response, defendant
argues that (1) the ALJ’s RFC assessment is supported by substantial
evidence; (2) the ALJ did, in fact, assign some weight to NP Catalone’s
opinions; and (3) the ALJ was under no obligation to recontact a treating
physician because the existing record completely reflects plaintiff’s
medical history. Def.’s Memo. of Law (Dkt. No. 14) at 14-18. For the
reasons set for the below, I recommend that each of plaintiff’s arguments
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 22 of 45
The ALJ’s Failure to Recontact Dr. S. Patil
The Commissioner’s regulations require that an ALJ develop a
claimant’s complete medical history for at least twelve months prior to the
filing of an application for benefits, and longer if necessary to reach an
informed decision. 20 C.F.R. § 416.912(d); see DeChirco v. Callahan,
134 F.3d 1177, 1184 (2d Cir. 1998). This obligation exists regardless of
whether the claimant is represented by counsel or a paralegal, or instead
is proceeding pro se, in which case the duty is heightened. Perez, 77
F.3d at 47; DeVora v. Barnhart, 205 F. Supp.2d 164, 172 (S.D.N.Y. 2002).
The duty of an ALJ to develop the record is particularly acute when there
are gaps of information from a claimant’s treating physician. Boswell v.
Astrue, No. 09-CV-0533, 2010 WL 3825622, at *4 (N.D.N.Y. Sept. 7,
2010) (Bianchini, M.J.), adopted in its entirety by 2010 WL 3825621
(N.D.N.Y. Sept. 23, 2010) (Mordue, C.J.).
In this instance, however, Dr. S. Patil does not qualify as a treating
physician. The regulation defining a treating physician, for purposes of
the SSA, provides in pertinent part, as follows:
Treating source means your own physician,
psychologist, or other acceptable medical source
who provides you, or has provided you, with medical
treatment or evaluation and who has, or has had, an
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 23 of 45
ongoing treatment relationship with you. Generally,
we will consider that you have an ongoing treatment
relationship with an acceptable medical source when
the medical evidence establishes that you see, or
have seen, the source with a frequency consistent
with accepted medical practice for the type of
treatment and/or evaluation required for your medical
condition(s). We may consider an acceptable
medical source who has treated or evaluated you
only a few times or only after long intervals (e.g.,
twice a year) to be your treating source if the nature
and frequency of the treatment or evaluation is
typical for your condition(s).
20 C.F.R. §§ 404.1502, 416.902.
A review of the administrative record reveals that Dr. S. Patil does
not meet this definition of a treating physician. Dr. S. Patil examined
plaintiff on only three occasions – on July 28, 2008, August 8, 2008, and
October 8, 2008. AT 261, 293, 295, 305. On November 5, 2008, plaintiff
did not attend her scheduled appointment with Dr. S. Patil, and she failed
to respond to a follow-up letter that was subsequently sent to her by the
doctor’s office. Id. at 291. On February 25, 2009, Oswego Hospital
closed plaintiff’s case with Dr. S. Patil as a result of her failure to attend
her appointment or communicate with Oswego Hospital. Id. The next
time plaintiff sought treatment from Oswego Hospital was on July 2, 2009,
when she was seen by Dr. Prasad. Id. at 361. At that appointment, Dr.
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Prasad transferred plaintiff’s care to NP Catalone, who continued to treat
her at least through February 25, 2011. Id.
After careful consideration, I conclude that three examinations by Dr.
S. Patil over the course of four months in 2008 does not constitute the
type of “ongoing relationship” that is required for finding that s/he is
plaintiff’s treating physician under the relevant regulations. 20 C.F.R. §§
404.1502, 416.902; see also Daniels v. Comm’r of Soc. Sec., 152 F. App’x
485, 490-91 (6th Cir. 2005) (finding that plaintiff did not have an ongoing
relationship with Dr. Pinson where Dr. Pinson saw the plaintiff only twice
over the course of three days, and where the plaintiff sought treatment for
the same issue “from other sources on many more occasions” than these
two visits); Coy v. Astrue, No. 12-CV-0381, 2012 WL 5497850, at *6 (N.D.
Ohio Nov. 13, 2012) (“Two instances of treatment four months apart are
not sufficient to establish a treating relationship.”).9 For this reason, I
conclude that the ALJ was under no duty to develop the record by eliciting
additional information from Dr. S. Patil.
In coming to this conclusion, I also note that plaintiff has not provided any
support for her position that Dr. S. Patil qualifies as her treating physician after only
three examinations over the course of four months. See generally Plf.’s Memo. of Law
(Dkt. No. 13) at 11-13.
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The Weight Owing to NP Catalone’s Opinions
On June 7, 2010, NP Catalone completed a medical source
statement in which he concluded, in relevant part, that plaintiff has a
marked limitation in her ability to interact appropriately with the public,
supervisors, and co-workers; a moderate limitation in her ability to
respond appropriately to usual work situations and to changes in a routine
work setting; and “severe difficulty with mood lability and impulse control..
. .result[ing] in marked impairment of her ability to cope with stressors.”
AT 255-57. ALJ Drummer assigned “little weight” to NP Catalone’s
opinions, finding them to be inconsistent with treatment records, which
“not[ed] mostly positive evaluations and mental status findings,” and
based further upon the extent of her daily activities. AT 51. Plaintiff
challenges that implicit rejection and concludes that NP Catalone’s
opinions should have been given at least “some weight by the ALJ.” Plf.’s
Memo. of Law (Dkt. No. 13) at 13-19.
Having carefully examined NP Catalone’s treatment notes, I find that
the ALJ’s conclusion that his opinions are inconsistent is supported by
substantial evidence, bearing in mind that “substantial evidence” means
“such relevant evidence as a reasonable mind might accept as adequate
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to support a conclusion.” Richardson, 402 U.S. at 401. The following
summary of NP Catalone’s reports, which includes one report from NP
Behilng, is illustrative of this point.10
None of the 16 reports from NP Catalone and NP Behling note that
plaintiff has experienced suicidal or homicidal ideations. In 13 of the 16
reports it was noted that either plaintiff’s depression and anxiety was
controlled, or they fluctuated up and down. In all 16 reports, plaintiff’s
appearance was rated as “good.” None of the reports note any evidence
of paranoia. With one exception, NP Catalone reported that plaintiff did
not experience hallucinations. In nine of the 16 reports, plaintiff’s
concentration and focus were assessed as good or fair. Only half of the
time did plaintiff experience mood swings, irritability, and anger. While
there were occasions when plaintiff appeared to have the most difficulty –
such as when NP Catalone noted that plaintiff attended the session in an
“anxious mood,” complained of “a significant decompensation in her
symptoms,” or complained of experiencing an auditory hallucination – NP
Catalone also reported that she had difficulty with her medications, in that
All 16 of the reports by NP Catalone and NP Behling between July 2009 and
February 2011 are found at AT 228-29, 231, 258-60, 273, 276-77, 279-82, 286-89,
344, 346, 349, 351, 355. NP Catalone’s medical source statement can be found at AT
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she complained about feeling addicted to or running out of them, or asking
to be placed back on medication for her bipolar disorder. NP Catalone’s
last report noted plaintiff’s inability to work due to mood swings and an
antisocial personality disorder. Also, NP Catalone’s medical source
statement includes his opinion that plaintiff is markedly limited in acting
appropriately with the public, and moderately limited in her ability to
respond appropriately to usual work situations.
Taking all of NP Catalone’s reports together, I conclude that there is
“more than a mere scintilla” of evidence that supports the ALJ’s finding
that NP Catalone’s opinions are inconsistent within his own treatment
records. Richardson, 402 U.S. at 401; see also Rosado v. Sullivan, 805
F. Supp. 147, 153 (S.D.N.Y. 1992 ) (“The Secretary’s finding will be
sustained if supported by substantial evidence, 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 Secretary’s.”)
(internal citations omitted). Accordingly, I recommend that this argument
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Reconciliation of Plaintiff’s Limitations, as Identified
by Drs. Barry and Morog, in Determining Plaintiff’s
Plaintiff next argues that the ALJ was required to explain how her
RFC assessment reconciled some of the differing limitations identified by
Drs. Barry and Morog. Plf.’s Memo. of Law (Dkt. No. 13) at 19-21. More
specifically, plaintiff contends that, because Dr. Barry found that plaintiff
had “difficulty handling stress and gets frustrated easily and may have
difficulty making appropriate decisions,” the ALJ was required to explain
how those findings comport with her RFC determination. Id. at 20.
Similarly, plaintiff argues that, because Dr. Morog found that plaintiff is
moderately limited in her ability to “maintain attention and concentration
for extended periods,” to respond to changes in a work setting, and to ask
simple questions or request assistance, the ALJ was required to explain
how these findings are consistent with her RFC determination. Id. at 2021.
It is true that “[r]emand is . . . appropriate where. . . [a court] is
‘unable to fathom the ALJ’s rationale in relation to the evidence in the
record’ without ‘further findings or clearer explanation for the decision.’”
Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Berry v.
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Schweiker, 675 F.2d 464, 469 (2d Cir. 1982); see also Sweat v. Astrue,
No. 08-CV-1108, 2011 WL 2532932 at *6 (N.D.N.Y. May 23, 2011)
(Bianchini, M.J.) (finding that the ALJ’s RFC determination not supported
by substantial evidence where “[t]he ALJ noted the consultative
examiners’ findings that Plaintiff would have difficulty dealing with stress,
but did not explain how he reconciled those findings with his RFC
assessment (which contained no determination regarding stress)”); James
v. Astrue, No. 09-CV-0424, 2010 WL 5536338, at *6 (N.D.N.Y. May 7,
2010) (Bianchini, M.J.) (recommending remand where “[t]he ALJ
‘accepted’ [the consultative examiner’s] assessment, but made no attempt
to reconcile his conclusion that Plaintiff could lift 20 pounds occasionally
and 10 pounds frequently with [the consultative examiner’s] determination
that Plaintiff had a moderate-to-severe limitation as to lifting”).
Here, however, the court is not confronted with such a circumstance.
The ALJ’s ten-page decision accounts for nearly every piece of medical
evidence in the record. See generally AT 38-53. In her decision, the ALJ
comprehensively discussed the findings of both Dr. Barry and Dr. Morog,
and concluded that their findings were not inconsistent with her RFC
determination. Id. at 50. Although the ALJ did not explain how she
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 30 of 45
arrived at this conclusion, there is substantial evidence in the record to
support it. For example, the ALJ’s RFC assessment limits plaintiff’s
abilities to “simple, routine, repetitive type tasks involving occasional
contact with others,” id. at 45, a finding that is not in conflict with Dr.
Barry’s determination that plaintiff has a history of obsessive-compulsive
traits, anxiety, difficulty handling stress, and is easily frustrated, id. at 235.
Indeed, had the ALJ’s RFC assessment included an ability to process
complex instructions or carry out multiple tasks at once, it would have
directly conflicted with Dr. Barry’s findings that plaintiff is easily frustrated
and can only undertake repetitive tasks. Instead, there is nothing in the
record to suggest that the anxiety and difficulty handling stress that Dr.
Barry discerned would preclude plaintiff from undertaking simple, routine,
Similarly, Dr. Morog’s findings that plaintiff is moderately limited in
her ability to understand and remember detailed instructions and maintain
attention for an extended period of time does not appear to limit plaintiff’s
ability to undertake the types of tasks envisioned by the ALJ’s RFC
assessment, especially because the RFC limits plaintiff to tasks that do
not routinely involve interacting with people. Finally, considering, as a
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 31 of 45
whole, NP Catalone’s and Mr. Herrera’s report notes from their
appointments with plaintiff, it appears that, at the time of the hearing,
plaintiff had already been undertaking tasks that meet the description of
her RFC, including cleaning her home daily and taking her children to their
scheduled, weekly appointments – both of which are routine and
repetitive, and do not involve significant interaction with people. For these
reasons, I recommend that plaintiff’s argument that the ALJ’s RFC
determination is unsupported because she failed to reconcile some of the
limitations set forth by Drs. Barry and Morog be rejected.
Whether the ALJ Erred in Failing to Apply the
Psychiatric Review Technique
When considering a mental impairment at the second and third
steps of the sequential analysis, an ALJ must apply a “special technique”
set forth in 20 C.F.R. §§ 404.1520a(a) and 416.920a(a) to determine
whether it is severe. Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir.
2008). The prescribed analysis requires that the ALJ consider whether
the claimant has a medically determinable impairment, and that she rate
the degree of the claimant’s functional limitation resulting from the
impairments in four areas, including (1) activities of daily living; (2) social
functioning; (3) concentration, persistence, or pace; and (4) episodes of
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 32 of 45
decompensation.11 20 C.F.R. §§ 404.1520a(c)(3); 404.920a(c)(3). The
first three areas are rated on a scale of “none, mild, moderate, marked,
and extreme,” and the last area is rated on a scale of “[n]one, one or two,
three, four or more.” 20 C.F.R. §§404.1520a(c)(4); 416.920a(c)(4).
Generally, if the degree of limitation in the first three areas is mild or none
and there are no episodes of decompensation, then the impairment is not
severe. 20 C.F.R. § 1520a(d)(1). If the claimant’s mental impairment is
severe, the ALJ must next determine whether the impairment meets or
equals the severity of any listed mental disorder. 20 C.F.R. §
404.1520a(d)(2); see also Kohler, 546 F.3d at 266. If so, the claimant will
be found disabled; otherwise, the ALJ must next assess the claimant’s
RFC. 20 C.F.R. § 404.1520a(d)(3).
An ALJ’s failure to apply the special technique constitutes a ground
for remand absent a finding of harmless error. See O’Connell v. Astrue,
No. 06-CV-1113, 2009 WL 606155, at *21 (N.D.N.Y. Mar. 9, 2009) (Kahn,
J.) (explaining that, although the Second Circuit found that failure to apply
the special review technique was legal error, it had left open the possibility
“Episodes of decompensation are exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as manifested by
difficulties in performing activities of daily living, maintaining social relationships, or
maintaining concentration, persistence, or pace.” Kohler, 546 F.3d at 266 n.5.
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 33 of 45
that an ALJ’s failure to apply it would be harmless error, as when, for
example, “an ALJ actually complied with the special technique by making
determinations regarding a [claimant’s] degree of limitation . . . but merely
fail[ed] to strictly comply with the documentation requirement”).
Plaintiff does not challenge the ALJ’s application of the special
technique to her step-two and step-three determinations. Plf.’s Memo. of
Law (Dkt. No. 13) at 21-22. Instead, she asserts that the ALJ erred in
failing to consider the four activities identified in “paragraph B” criteria
Listings of § 12.00 et al., related to adult mental disorders, in arriving at
his RFC. Id.
It is clear that the psychiatric review technical required by regulation
extends beyond merely considering limitations associated with mental
impairments at steps two and three of the sequential analysis, and
extends further into the RFC determination. As the Commissioner has
noted, addressing the psychiatric review technique,
[t]he adjudicator must remember that the limitations
identified in the “paragraph B” and “C” criteria are not
an RFC assessment but are used to rate the severity
of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process. The mental RFC
assessment used at steps four and five of the
sequential evaluation process requires a more
detailed assessment by itemizing various functions
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 34 of 45
contained in the broad areas found in paragraphs B
and C of Adult Mental Disorders Listings and 12.00 of
the Listing of Impairments, and summarized on the
[Psychiatric Review Technique Form].
Social Security Ruling (“SSR”) 96-8p (emphasis added).
In her determination, ALJ Drummer indicated her awareness of this
requirement, noting, after referencing SSR-96-8p, that “the following
residual functional capacity assessment reflects a degree of limitation the
undersigned as found in the ‘paragraph B’ mental function analysis.” AT
44. In arriving at her RFC finding, ALJ Drummer engaged in a
comprehensive discussion of the available evidence, extending over a
period of seven pages. Id. at 45-51. While her decision could have been
included greater detail to indicate consideration of the specific paragraph
B criteria, including activities of daily living, difficulties of maintaining social
functioning, and difficulties in maintaining concentration, persistent or
pace, it is nonetheless apparent that she did consider those factors and
weighed them against the record evidence.12 Id. Accordingly, I conclude
that the ALJ did not fail to comply with the psychiatric technique specified
by the Commissioner’s regulations in arriving at her RFC finding.
Plaintiff has not alleged that she suffered any episodes of decompensation of
extended duration, nor does the record reveal any evidence of such incidents.
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 35 of 45
Whether the ALJ Erred by Failing to Engage in a
When determining a plaintiff’s mental RFC, the ALJ is required to
itemize various functions contained in the broad categories of 20 C.F.R. §
416.920a. SSR 96-8p; see also Tilbe v. Astrue, No. 10-CV-0910, 2012
WL 2930784, at *11 (N.D.N.Y. July 17, 2012) (Mordue, J.). “The particular
functions that must be assessed are the basic work-related mental
activities specified by the regulations – such as limitations in
understanding, remembering, and carrying out instructions, and in
responding appropriately to supervision, co-workers, and work pressures
in a work setting[.]” Tilbe, 2012 WL 2930784, at *11 (citing, inter alia, 20
C.F.R. §§ 404.1520a(d)(3), 404.1545(c), 416.920a(d)(3), 416.945(c)).
Here, I find that the ALJ adequately assessed “the basic workrelated mental activities specified by the regulations.” Tilbe, 2012 WL
2930784, at *11. Specifically, in her RFC assessment, ALJ Drummer
concluded that plaintiff “is able to follow and understand simple directions
and instructions, and she is able to maintain attention and concentration.
She is limited to simple, routine, repetitive type tasks involving occasional
contact with others.” AT 45 (internal citation omitted). This RFC
assessment takes into consideration the work-related activities envisioned
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 36 of 45
by the regulations, including assessing plaintiff’s ability to understand,
remember, and carry out instructions, and plaintiff’s ability to interact with
others. See, e.g., 20 C.F.R. § 416.945(c) (instructing that the
Commissioner will take into consideration certain “mental activities” in
assessing a claimant’s RFC, “including limitations in understanding,
remembering, and carrying out instructions, and responding appropriately
to supervision, coworkers, and work pressures in a work setting”). In
addition, the ALJ’s RFC determination as it relates to these “work-related
mental activities” is supported by substantial evidence in the record,
including, but not limited to, the opinions of Drs. Barry and Morog.
The ALJ’s Assessment of Plaintiff’s Credibility
Plaintiff asserts that the ALJ erred in assessing her credibility. In
support of her contention, plaintiff alleges that the ALJ improperly
evaluated her credibility by comparing plaintiff’s alleged limitations to her
RFC determination, failed to adequately explain how plaintiff’s daily
activities are inconsistent with her complaints, and failed to acknowledge
her OCD diagnosis and its effects upon her ability to perform work-related
functions. Plf.’s Memo. of Law (Dkt. No. 13) at 23-26. In response,
defendant argues that the evidence, including plaintiff’s criminal, drug, and
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work histories, supports the ALJ’s credibility assessment, and that the
court should defer to the Commissioner’s credibility assessment. Def.’s
Memo. of Law (Dkt. No. 14) at 18-20.
As it relates to plaintiff’s first argument, “[a]n [ALJ] may properly
reject [subjective complaints] after weighing the objective medical
evidence in the record, the claimant’s demeanor, and other indicia of
credibility, but must set forth his or her reasons ‘with sufficient specificity
to enable us to decide whether the determination is supported by
substantial evidence.’” Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y.
April 22, 1999) (Kahn, J.) (quoting Gallardo v. Apfel, No. 96-CV-9435,
1999 WL 185253, at *5 (S.D.N.Y. Mar. 25, 1999)). To satisfy the
substantial evidence rule, the ALJ’s credibility assessment must be based
on a two-step analysis of pertinent evidence in the record. 20 C.F.R. §
404.1529; see also Foster v. Callahan, No. 96-CV-1858, 1998 WL
106231, at *5 (N.D.N.Y. Mar. 3, 1998) (Pooler, J.) (“Social Security
regulations describe a two-step process for evaluating a claimant’s
symptoms, including pain.”). First, the ALJ must determine, based on the
claimant’s objective medical evidence, whether the medical impairments
“could reasonably be expected to produce the pain and other symptoms
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 38 of 45
alleged[.]” 20 C.F.R. § 404.1529(a). Second, if the medical evidence
alone establishes the existence of such impairments, then the ALJ need
only evaluate the intensity, persistence, and limiting effects of a claimant’s
symptoms to determine the extent to which they limit the claimant’s
capacity to work. 20 C.F.R. § 404.1529(c).
When the objective evidence alone does not substantiate the
intensity, persistence, or limiting effects of the claimant’s symptoms, the
ALJ must assess the credibility of the claimant’s subjective complaints by
considering the record in light of the following symptom-related factors: (1)
claimant’s daily activities; (2) the location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating factors;
(4) the 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 alleviate symptoms;
and (7) any other factors concerning claimant’s functional limitations and
restrictions due to symptoms. 20 C.F.R. § 404.1529(c)(3). An ALJ’s
evaluation of a plaintiff’s credibility is entitled to great deference provided it
is supported by substantial evidence. Murphy v. Barnhart, No. 00-CV9621, 2003 WL 470572, at *10 (S.D.N.Y. Jan. 21, 2003).
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 39 of 45
After considering plaintiff’s subjective testimony, the objective
medical evidence, and any other factors deemed relevant, the ALJ may
accept or reject claimant’s subjective testimony. 20 C.F.R. §§
404.1529(c)(4), 416.929(c)(4); see also Martone, 70 F. Supp. 2d at 151.
If such testimony is rejected, however, the ALJ must explicitly state the
basis for doing so with sufficient particularity to enable a reviewing court to
determine whether those reasons for disbelief were legitimate, and
whether the determination is supported by substantial evidence. Martone,
70 F. Supp. 2d at 151 (citing Brandon v. Bowen, 666 F. Supp. 604, 608
(S.D.N.Y. 1987)). Where the ALJ’s findings are supported by substantial
evidence, the decision to discount subjective testimony may not be
disturbed on court review. Aponte v. Sec’y, Dep't of Health & Human
Svcs., 728 F.2d 588, 591 (2d Cir. 1984).
Here, the ALJ concluded that plaintiff’s “statements concerning the
intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the [RFC] assessment.”
AT 49. This assessment of plaintiff’s credibility is formed only on the
basis of how plaintiff’s statements compare to the ALJ’s RFC assessment.
The ALJ’s analysis is therefore fatally flawed, because, it demonstrates
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 40 of 45
that she improperly arrived at her RFC determination before making her
credibility assessment, and engaged in a credibility assessment calculated
to conform to that RFC determination. See Gehm v. Astrue, No. 10-CV1170, 2013 WL 25976, at *5 (N.D.N.Y. Jan. 2, 2013) (Hurd, J.) (“A
claimant’s credibility may be questioned if it is inconsistent with medical
evidence. However, it is improper to question the plaintiff’s credibility
because it is inconsistent with the RFC determined by the ALJ.”); see also
Zenka v. Astrue, — F. Supp. 2d —, No. 11-CV-7039, 2012 WL 5613646,
at *11 (N.D. Ill. Nov. 15, 2012) (“Additionally, the phrase ‘to the extent they
are inconsistent with the above [RFC]’ indicates that the ALJ first
determined what Plaintiff’s RFC would be and then used that
determination to assess Plaintiff’s credibility, a reversal of the proper order
of an RFC assessment.” (citing Bjornson v. Astrue, 671 F.3d 640, 644-46
(7th Cir. 2012)); Bostic v. Astrue, No. 10-CV-1153, 2012 WL 786909, at *1
(D. Or. Mar. 9, 2012) (holding that, although “[a]n ALJ may not simply
define an RFC and then, without more, conclude the claimant’s testimony
is only credible to the extent it aligns with the RFC[,] . . . there is nothing
wrong with an ALJ stating a conclusion and then explaining it” (internal
quotation marks and citations omitted)). It is for that reason that the
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 41 of 45
regulations require an ALJ, when determining a claimant’s credibility as it
relates to the intensity, persistence, and limiting effects of the symptoms,
to indicate the amount of weight afforded to the claimant’s statements in
consideration of the entire case record. SSR 96-7p; see also Nelson v.
Astrue, No. 09-CV-0909, 2010 WL 3522304, at *7 (N.D.N.Y. Aug 12,
2010) (Lowe, M.J.) (“An ALJ’s decision must contain specific reasons for
the finding on credibility, supported by the evidence in the case record,
and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the ALJ gave to the individual’s
statements and the reasons for weight.” (citing SSR 96-7p)).
Although the ALJ in this case explained that plaintiff’s “criminal and
drug use history do little to bolster [plaintiff’s] credibility,” AT 49, that
limited explanation does little to illuminate whether the ALJ considered the
entire record in coming to her conclusions regarding credibility.13 In
Parenthetically, to the extent this statement is an implicit conclusion by the ALJ
that plaintiff’s past drug use actually detracts from her credibility, such a conclusion is
not supported by substantial evidence. While it is true that plaintiff admitted to using
marijuana on “rare occasions” as recently as spring 2010, AT 281, 280, 276, the
record evidence does not support a conclusion that either plaintiff regularly uses drugs,
or that any drug use has an effect on plaintiff’s “mood swings and irritability and
functioning.” AT 49. Rather, the record indicates that, except for two relapses prior to
2008, plaintiff has been in remission for drug addiction since 2002. Id. at 21, 260, 231,
289, 288, 230, 287, 229, 286, 228, 282, 273, 258, 355, 351, 349, 346, 235, 361,261,
305. The ALJ’s consideration of plaintiff’s felony conviction, on the other hand, is
proper when assessing plaintiff’s credibility. Cf. Fed. R. Ev. 609.
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 42 of 45
addition, the court notes that, although the ALJ afforded Dr. Barry’s
opinions “great weight,” the ALJ appears to have discredited Dr. Barry’s
conclusion that plaintiff’s “allegations are found to be consistent with
examination results,” AT 235, a statement which directly conflicts with the
ALJ’s credibility assessment.
When formulating her RFC finding, ALJ Drummer rejected
subjective statements by the plaintiff that conflict with that determination,
including her claim that she is unable to deal with the stress of work, and
her accounts of prior unsuccessful work experiences. AT 18-19.
Because the RFC determination was pivotal to the finding of no disability,
the ALJ’s failure to properly assess plaintiff’s credibility, and its potential
effect in undermining the RFC determination, requires that the
Commissioner’s determination be vacated and the matter remanded for a
proper assessment of plaintiff’s credibility.
The ALJ’s Step-Five Determination
Plaintiff argues that the ALJ erred at step-five of the sequential
disability analysis because the assumption upon which the vocational
expert relied when forming her opinions is not supported by substantial
evidence. Plf.’s Memo. of Law (Dkt. No. 13) at 26-27. More specifically,
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 43 of 45
plaintiff argues that because the ALJ’s RFC determination is not
supported by substantial evidence, the vocational expert’s opinions, which
are based on that RFC assessment, are flawed. Id. In response,
defendant argues that the ALJ properly relied on the vocational expert’s
testimony because the expert properly considered plaintiff’s “vocational
factors and credibly established RFC.” Def.’s Memo. of Law (Dkt. No. 14)
In light of the ALJ’s failure to properly assess plaintiff’s credibility
before arriving at her RFC determination, that RFC determination cannot
withstand judicial scrutiny. And, because that RFC determination forms
the underpinning for the vocational expert’s testimony, the conclusion that
there are available jobs that the plaintiff is capable of performing is not
supported by substantial evidence. I therefore recommend that the matter
be remanded so that the ALJ may, following a reevaluation of plaintiff’s
credibility and RFC, again conduct a step-five determination.
SUMMARY AND RECOMMENDATION
While the ALJ in this case did not err in failing to recontact Dr. S.
Patil, or in her assessment of the weight to be assigned to NP Catalone’s
opinions, she failed to properly assess plaintiff’s credibility concerning her
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 44 of 45
limitations. That failure directly affected the ALJ’s RFC finding and, in
turn, the opinions given by a vocational expert, based upon the RFC
finding, to the effect that there are available jobs in the national economy
that the plaintiff is able to perform, despite her limitations. In light of these
errors, the Commissioner’s determination of no disability cannot withstand
judicial scrutiny, and must be set aside in favor of further proceedings
before the SSA, at which plaintiff’s credibility may be properly assessed.
It is therefore hereby respectfully
RECOMMENDED that plaintiff’s motion for judgment on the
pleadings be GRANTED, the Commissioner’s determination of no
disability VACATED, and the matter REMANDED for further proceedings
consistent with this report.
Case 5:11-cv-01143-MAD-DEP Document 17 Filed 01/24/13 Page 45 of 45
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge
written objections to the foregoing report. Such objections must be filed
with the clerk of the court within FOURTEEN days of service of this report.
FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
72; Roldvan v. Racette, 984 F.2d 85 (2d Cir. 1993).
January 24, 2013
Syracuse, New York
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