Wilkinson v. Astrue
Filing
20
MEMORANDUM-DECISION AND ORDER. The Court hereby ORDERS that the Commissioner's motion for judgment on the pleadings (Dkt. No. 18 ) is GRANTED and Plaintiff's motion for judgment on the pleadings (Dkt. No. 17 ) is DENIED; andthe Court furt her ORDERS that the Commissioner's decision denying DIB and SSI is AFFIRMED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in the Commissioner's favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 05/29/2014. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
WILLIAM L.C. WILKINSON,
Plaintiff,
vs.
5:12-cv-1725
(MAD)
CAROLYN COLVIN, Acting Commissioner of
the Social Security Administration,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
IACONIS LAW FIRM
501 Genesee Street
Chittenango, New York 13037
Attorneys for Plaintiff
CHRISTOPHER D. THORPE, ESQ.
SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York, 10278
Attorneys for Defendant
KAREN T. CALLAHAN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On December 15, 2009, Plaintiff protectively filed applications for both disability
insurance benefits ("DIB") and an application for supplemental security income ("SSI"), alleging
a period of disability beginning on November 5, 2009. See Administrative Record ("R.") at 157167. On March 24, 2010, Plaintiff's applications were initially denied, and upon Plaintiff's
request, a hearing was held on February 23, 2011. See id. at 86-93, 33. At the hearing, Plaintiff
orally amended his alleged disability onset, now claiming a period of disability beginning on
October 26, 2009. See id. at 33. Thereafter, the ALJ issued an unfavorable decision on June 24,
2011, finding that Plaintiff was not disabled within the meaning of the Social Security Act (the
"Act"). See id. at 13-30.
On August 8, 2011, Plaintiff timely filed a request for review of the ALJ's unfavorable
hearing decision. See id. at 10-12. The Appeals Council denied review by letter dated October 1,
2012. See id. at 1-6.
On November 21, 2012, Plaintiff filed a summons and complaint in this Court seeking
judicial review of the Commissioner's unfavorable decision. See Dkt. No. 1. The Commissioner
filed an answer to the complaint on March 23, 2013. Currently pending before the Court are the
parties' cross-motions for judgment on the pleadings. See Dkt. Nos. 17-18.
II. BACKGROUND
Plaintiff seeks DIB and SSI benefits alleging that he was suffering with a "disability"
within the meaning of the Act since October 26, 2009, due to multiple impairments, including
"[b]ack problems, left foot problem[s], lupus," "[m]ental health problems," "right knee
problem[s]," and "left hand numbness." See R. at 182. Plaintiff was employed as a automobile
detailer until November 4, 2009 and remained insured for purposes of the Act through December
31, 2013. See id. at 16.
Plaintiff was born on September 1, 1970. See id. at 84. Plaintiff had a highschool
education, and a history of unskilled work, including stocking shelves at several different stores,
as a sales associate at a home improvement store, and as a car detailer at a car sales company. See
R. at 184. Plaintiff has not been employed since November 4, 2009. See id.
2
A.
Psychological conditions
A "Confidential Medical Report - Psychiatric Disability" was completed on October 22,
2007 by Colleen Miller, LCSW and Steven Adams, Ph.D., Plaintiff's treating therapist and
supervising psychologist. See R. at 514-515. Plaintiff was diagnosed with depressive disorder,
intermittent explosive disorder, and personality disorder. See id. at 514. Plaintiff's affect was
constricted, but could be congruent at times. Plaintiff became agitated when under pressure or
when he perceived an injustice towards him. The report noted became enraged and provoked,
when most people would ignore the situation, and became verbally abusive. See id. Further, the
report indicated that stress affected his personal and work relationships and that he did not
respond well to pressure in the workplace. See id. at 515.
On May 19, 2008, Plaintiff began treatment with the Madison County Mental Health
Department. See R. at 366. Plaintiff reported to Colleen Miller that he had been terminated from
his job because someone had complained about "sexual remarks." Id. At first he indicated that
the person who complained about him was a "narc," but then said that "she was wrong or lied and
he had not done or been the one to say sexual things, that it was someone else." Id. In a progress
note dated July 23, 2008, Ms. Miller indicated that, as his therapy progressed, Plaintiff reported
increased control over his temper and "a significant reduction in incidents of poor anger
management." Id. at 369. Ms. Miller noted similar progress being made in progress notes from
sessions with Plaintiff from August through December of 2008. See id. at 370-77. On December
1, 2008, although Plaintiff indicated that he needed help with temper control and learning socially
acceptable ways to express anger, he refused to attend group anger management sessions because
he claimed he was "uncomfortable" in groups. See id. at 376.
3
Throughout the beginning of 2009, the progress notes indicate that Plaintiff was still
dealing with anger management issues, and that he had a tendency to "sound off" when frustrated.
See id. at 378-89. In an April 10, 2009 treatment plan review, Gregory Owens, a therapist with
the Madison County Mental Health Department, noted that Plaintiff had made "modest" progress
with some of his treatment goals, but also noted several areas in which Plaintiff needed to make
additional progress. See id. at 389. On August 4, 2009, Plaintiff reported "decreased problems
with anger but ha[d] vague complaints of depression." Id. at 385.
On October 26, 2009, Plaintiff refused to complete paperwork prior to his session and was
"gruff" with the staff. See id. at 385-86. When asked why he was again seeking treatment,
Plaintiff told Dr. Kim Guarascio, Ph.D., that he was "depressed," and described his symptoms as a
lack of motivation to do the things he enjoys. See id. at 386. Further, Plaintiff reported a
confrontation with his friends over the weekend, "and had words with one of them while playing
dungeons and dragons." Id. During a session on November 9, 2009, Plaintiff informed Dr.
Guarascio that he still felt depressed and that he still does not feel like engaging in some of the
activities that he used to enjoy (i.e., playing Dungeons and Dragons and spending time with
friends), but admitted that he still does engage in some of these activities. See id. Plaintiff also
stated that he is unwilling to take medication and that he is unwilling to attend group anger
management session. See id. at 387. Although Plaintiff informed Dr. Guarascio that his goal in
attending their therapy sessions was to treat his depression, Dr. Guarascio informed him that "his
stated symptoms do not meet diagnostic criteria for depression." Id.
On January 29, 2010, Plaintiff again saw Dr. Guarascio. See id. at 439. Plaintiff again
reported that he lacks motivation to do certain things and that he has "some low mood due to his
physical problems and stressors." Id. Plaintiff informed Dr. Guarascio that he still does not want
4
to take any medications and that he will not attend group anger management sessions. See id.
Plaintiff informed Dr. Guarascio that he "wants a therapist 'like Greg or Colleen' to just listen to
what he has to say and offer advice." Id. When Dr. Guarascio recommended Plaintiff seek
treatment with another provider, he refused because he "'didn't want to spend the gas money to
drive to Syracuse or Utica.'" Id. Dr. Guarascio discussed this issue with Dr. Steven Adams and
they decided to inform Plaintiff that "the agency would offer him individual therapy provided that
he attend and complete Anger Management Group." Id. at 440. Plaintiff responded that he was
unwilling to participate in group anger management sessions. See id. Thereafter, when Dr.
Adams informed him that they believed that Plaintiff would not benefit from individual therapy
alone, Plaintiff still declined to pursue the recommended treatment and Plaintiff's case was closed.
See id. at 440-41.
B.
Physical conditions
On August 12, 2008, Plaintiff was examined by Dr. Joseph Pierz, M.D. See R. at 352.
Plaintiff complained of "left great toe pain," which he had been experiencing for a few weeks.
See id. Plaintiff was diagnosed with "left great toe gout" and given a prescription to address his
condition. See id. at 353-54. Dr. Pierz examined Plaintiff again on August 27, 2008, and Plaintiff
was given an injection of Depo-Medrol and Xylocaine. See id. at 355. On September 10, 2008,
after his condition worsened, Dr. Pierz performed an excision of the mass on his left great toe.
See id. at 335, 357. In a December 24, 2008 follow-up examination, Dr. Pierz noted that Plaintiff
continues to have some pain in the left great toe and stiffness of the joint. See id. at 360. Dr.
Pierz could not explain why the pain had persisted, but noted that he believed that Plaintiff could
go back to work. See id. After several additional appointments and treatment for an ingrown
5
toenail, Plaintiff commenced physical therapy on March 24, 2009. See id. at 362-65, 442, 455-65,
529.
On February 25, 2011, Timothy Damron, M.D., indicated that the toe was "next to
impossible to move," secondary to pain. See R. at 533. X-rays showed "calcification . . .
certainly consistent with cartilage calcification, as would be suggestive of synovial
chondromatosis type process." Id. at 535. After a review of a CT scan, diagnosis was synovial
chondromatosis, and surgery was indicated, with an anticipated surgery date of March 30, 2011.
See id. The surgery was explained as follows: "We do an excision of the soft tissue extensions, as
well as an arthrotomy of the joint, debridement of the synovectomy of the joint, and trying to
make a volar arthrotomy to get at the deeper soft tissues of the plantar surface. This will be a
difficult procedure." Id.
Plaintiff also claims to have injured his back in July of 2006, and, since that time, has had
intermittent lower back pain. See R. at 505. On February 5, 2007, Plaintiff was examined by
Thomas Haher, M.D., for lower back pain, with radiation and weakness into both lower
extremities, and left upper extremity radiation. See id. Plaintiff claimed that the pain was worse
with activity, sitting, standing, repetitive motion, bending, lifting, and reaching. See id. Dr.
Haher found that Plaintiff's range of motion was moderately reduced in all directions. See id. Dr.
Haher also noted that Plaintiff had been treated by a physical therapist and that the previous
treatments had "provided some relief of the pain." Id. at 506. Dr. Haher discussed the possibility
of surgery with Plaintiff. See id. at 507. On March 1, 2007, Plaintiff again saw Dr. Haher since
his symptoms had not improved. See id. at 509. Despite his pain, Plaintiff declined surgery and
opted for chiropractic treatment instead. See id. at 511; see also Dkt. No. 17 at 12.
6
On January 28, 2009, Plaintiff was examined by Dr. Daniel Ratnarajah, M.D., for a "work
evaluation." See R. at 468. Dr. Ratnarajah noted that Plaintiff had "multiple vague complaints,
including back pain, wrist pain, and toe pain." Id. Given the limited nature of the examination,
Dr. Ratnarajah was "unable to evaluate his functional capacity," and, therefore, referred Plaintiff
to physical therapy to do a formal functional evaluation. See id. On March, 24, 2009, Plaintiff
was examined by Dianne Fukes, a physical therapist at the Oneida Healthcare Center. See id. at
469-71. Plaintiff complained of, among other things, lower back pain, which was exacerbated by
bending forward, lifting and sitting for longer than one (1) hour. See id. at 469. Ms. Fukes
determined that Plaintiff "demonstrated the ability to lift medium workloads with fair body
mechanics. His pain responses to lifting appeared exaggerated. . . . His overall flexibility is
reduced in the spine and lower extremities. This client would best function in a workplace that
limited lifting and allowed for frequent position changes." Id. at 470-71.
In February of 2010, Plaintiff was referred to Dr. Kalyani Ganesh for a physical
examination by the Division of Disability Determination. See R. at 402-05. Upon completion of
the examination, Dr. Ganesh summarized the findings as follows: "No gross limitation sitting,
standing, or the use of upper extremities. The claimant was observed interacting with his 4-yearold child with all the bending and walking, and no gross difficulties noted at the time." Id. at 405.
On September 2, 2010, Plaintiff again went to the Oneida Healthcare Center for physical
therapy, and was seen by physical therapist Al Salati. See id. at 472-74. Plaintiff complained of
pain that increased with sitting, standing, walking and lifting. See id. at 472. Forward flexion
and standing extension were moderately limited. See id. The physical therapists observed that
Plaintiff "does not appear to be in distress" and also that "[h]is gait does not appear antalgic,
movement[s] are non-guarded." Id. at 473.
7
On September 22, 2010, Plaintiff was again examined by Dr. Ratnarajah. See id. at 45152. Plaintiff complained of back pain, knee pain, and foot pain. See id. at 451. Plaintiff denied
"any anxiety/depression or suicidal ideations." Id. According to Dr. Ratnarajah, "[o]n
examination of the back, he was really tender throughout in deep palpation. Otherwise
unremarkable. Straight leg raise while sitting supine was within normal limits, but he was slow in
doing so." Id. at 452. An MRI taken on September 29, 2010 revealed the following: "Mild
degenerative disc disease with loss of disc T2 signal and disc bulge is isolated to L4-5. There is
otherwise no disc herniation or significant spinal canal or neural foraminal narrowing to cause
neural impingement." Id. at 513. Plaintiff continued receiving physical therapy through October
26, 2010, with little improvement noted. See id. at 499.
In addition to the above discussed physical injuries, Plaintiff also claims that he has
asthma and a left wrist injury. On April 25, 2008, Plaintiff sought emergency room attention for
difficulty breathing. See R. at 321-23. He was treated and released. See id. A pulmonary
function test on January 28, 2009, revealed some restrictive lung patterns. See id. at 468.
Plaintiff claims that he injured his left wrist in April of 2008 and was treated at the Oneida
Healthcare Center from April 23, 2008 through July 24, 2008. See id. at 294-317. "Upon
discharge, range of motion was restricted but functional. He has complained of occasional pain,
stiffness and limitations of motion thereafter." See Dkt. No. 17 at 13.
C.
The ALJ's decision
On June 24, 2011, the ALJ found that Plaintiff was not disabled within the meaning of the
Act. See R. at 13-30. At step one of the sequential evaluation, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since November 5, 2009. See id. at 18. At step two,
8
the ALJ found that Plaintiff had several severe impairments: arthritis, a tumor on his left great toe,
and a bulging disc at L4-L5. See id. In so finding, the ALJ considered Plaintiff's alleged
depression, but found that it did not rise to the level of a severe impairment. See id. at 18-20. At
step three, the ALJ found that none of Plaintiff's severe impairments met or medically equaled an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. at 20. Next, the ALJ
found that, throughout the relevant period, Plaintiff had the residual functional capacity to
perform sedentary work. See id. at 20-23. At step four, the ALJ found that Plaintiff was not
capable of performing his past relevant work as a general laborer. See id. at 23. Finally, at step
five, the ALJ found that there was other work in the national economy which Plaintiff could
perform. See id. at 23-25.
D.
Plaintiff's motion for judgment on the pleadings
In his motion for judgment on the pleadings, Plaintiff first argues that the ALJ failed to
properly utilize the factors set forth in 20 C.F.R. §§ 404.1527(c) and 416.927(c) in assessing the
weight to be given to the opinions of the State Agency's examining psychologist. See Dkt. No. 17
at 15-17. Second, Plaintiff contends that the ALJ's conclusion that Plaintiff has no more than a
"mild" limitation with regard to social functioning, concentration, persistence, or pace, is not
based upon substantial evidence. See id. at 17-18. Third, Plaintiff argues that the ALJ committed
reversible error in failing to properly utilize the factors of SSR 96-7p and 20 C.F.R. §§
404.1529(c)(3) and 416.929(c)(3) in evaluating Plaintiff's credibility and the subjective symptoms
that Plaintiff contended were disabling. See id. at 18-27. Finally, Plaintiff asserts that the ALJ's
residual functional capacity ("RFC") determination was not supported by substantial evidence.
See id. at 27-28.
9
III. DISCUSSION
A.
Standard of Review
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);
Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court
must examine the Administrative Transcript to ascertain whether the correct legal standards were
applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial
evidence" is evidence that amounts to "more than a mere scintilla," and it 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 (1971) (citations and quotations omitted).
If supported by substantial evidence, the Commissioner's finding must be sustained "even
where substantial evidence may support the plaintiff's position and despite that the court's
independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the
Commissioner's determination considerable deference, and may not substitute "its own judgment
for that of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
For purposes of SSI, a person is disabled when he or she is unable "to engage in
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), 1382c(a)(3)(A).
10
In reviewing the denial of a claim, the Court will typically employ the traditional five-step
analysis set forth in Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), and other cases. The
five-step analysis is detailed as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a "severe
impairment" which significantly limits his physical or mental
ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a "listed" impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Id.
In this analysis, the claimant has the burden of proof as to the first four steps, while the
Commissioner has the burden of proof on the fifth step. See Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987); Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984).
B.
Application
1. The ALJ properly considered Plaintiff's depression
Plaintiff claims that the ALJ committed reversible error by failing to properly utilize the
factors set forth in 20 C.F.R. §§ 1527(c) and 416.927(c) in assessing the weight to be given to the
opinions of the state agency's examining psychologist. See Dkt. No. 17 at 15-17. Specifically,
Plaintiff contends that Dr. Noia did not have an ongoing treatment relationship with Plaintiff and
11
saw him on only one single occasion. See id. at 16. Plaintiff argues that Dr. Noia presented "very
little 'relevant evidence' to support his opinion," yet "the ALJ states that such examination was
sufficient, when coupled with 'the claimant's subjective statements, which are consistent with the
record as a whole[.]'" Id. Plaintiff asserts that his treatment notes establish that he was agitated
and under pressure, "perceived injustice directed towards him, becoming enraged and provoked,"
he became verbally abusive and had an explosive, judgmental temperament, did not respond well
to pressure, and was constantly terminated from jobs because of his temper and anger issues. See
id. (citing R. at 375, 381-82, 386). Further, Plaintiff contends that his treatment records from
February 3, 2009 demonstrate that he was unable to motivate himself and that he became easily
frustrated. See id. (citing R. at 379). For example, he claims that the record shows that he refused
to complete paperwork, was unwilling to take medication, was "gruff with the staff," and tended
to blame others and avoided acknowledgment of his need for anger management. See id. at 16-17
(citing R. at 386-87).
"To determine what weight to give a medical opinion, an ALJ must consider the
following: (1) the examining relationship; (2) the treatment relationship; (3) supportability; (4)
consistency; (5) specialization; and (6) other considerations brought to the attention of the
Commissioner." Dwyer v. Astrue, 800 F. Supp. 2d 542, 549 (S.D.N.Y. 2011) (citing 20 C.F.R. §
416.927(d)).
While an ALJ is required to, "regardless of its source, . . . evaluate every medical opinion .
. . receive[d]," when a plaintiff's treating source's opinion regarding the nature and severity of a
plaintiff's impairment(s) is "well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record," the ALJ will give controlling weight to medical opinions offered by the plaintiff's
12
treating sources.1 20 C.F.R. § 404.1527. If, however, the treating source's opinion is found to be
inconsistent with the other substantial evidence in the case record, it will not be given controlling
weight and is then reviewed by the ALJ, in light of the following factors: (i) the frequency of
examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in
support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the
opinion is from a specialist; and (v) other relevant factors. Schaal v. Apfel, 134 F.3d 496, 503 04
(2d Cir. 1998); see 20 C.F.R. § 404.1527. Upon issuing a notice of determination or a decision as
to the weight accorded to the treating source's opinion, the ALJ must provide good reasons for
doing so. Id. Though ultimately, the final determination of disability and a claimant's inability to
work rests with the Commissioner. Snell v. Apfel, 177 F.3d 128, 133 34 (2d Cir. 1999); see also
20 C.F.R. § 404.1527(e).
In the present matter, the ALJ correctly determined that Dr. Noia's opinion was entitled to
great weight. Aside from his own complaints, the record is devoid of evidence suggesting that
Plaintiff has a severe mental impairment. Colleen Miller, LCSW, who treated Plaintiff from 2007
through part of 2009, indicated that, as his therapy progress, Plaintiff reported increased control
over his temper and "a significant reduction in incidents of poor anger management." See R. at
369-77. In August of 2008, Plaintiff reported that he had no recent incidents or outbursts of
anger, and it was noted that Plaintiff made significant progress at increasing his frustration
tolerance and reducing his overreactions when irritated. See id. at 370. These improvements
were noted from December 2008 through August 2009. See id. at 377, 385. Further, although
This is typically the case because treating sources "are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the plaintiff's] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individuals examinations,
such as consultative examinations or brief hospitalization." 20 C.F.R. § 404.1527(c)(2).
1
13
Plaintiff complained to Dr. Guarascio that he was "depressed" and that he lacked motivation to
engage in the activities he enjoys, Dr. Guarascio informed Plaintiff that "his stated symptoms do
not meet diagnostic criteria for depression." Id. at 386-87. Moreover, despite his complaints,
Plaintiff admitted to Dr. Guarascio that he still does engage in the activities he enjoys, i.e.,
playing Dungeons and Dragons and spending time with friends. See id. Finally, in September 22,
2010, during a physical examination, Plaintiff denied any anxiety, depression or suicidal
ideations. See id. at 451.
The record also demonstrates that, despite his complaints of depression and issues with
anger management, Plaintiff repeatedly refused to take any prescription medications or attend
group anger management sessions, as recommended by his treating therapists. See id. at 387,
439-41. As such, the Court finds that the ALJ did not err in giving great weight to Dr. Noia's
opinion. Substantial evidence, including Plaintiff's statements and the medical records from
Plaintiff's treating therapists, fully support Dr. Noia's conclusion that, although Plaintiff
"[a]ppears to have some difficulty with stress, . . . evidence shows that [Plaintiff] does not have
any psychiatric symptoms that significantly impact his function." See id. at 424. Further, the
record is clear that the ALJ properly applied the factors contained in 20 C.F.R. §§ 404.1527 and
416.927 in determining the appropriate weight to give the opinions.
2. The ALJ properly considered Plaintiff's depression
Plaintiff contends that the ALJ's conclusion that Plaintiff has no more than a "mild
limitation" to social functioning and to concentration, persistence and pace was not supported by
substantial evidence. See Dkt. No. 17 at 17-18. Specifically, Plaintiff asserts that the ALJ
misconstrued his testimony and the record evidence. See id.
14
When a claimant alleges that a mental impairment is "severe," "[t]he Regulations require
the ALJ to utilize a 'special technique' at each step of the administrative review process.'" Rosado
v. Barnhart, 290 F. Supp. 2d 431, 437 (S.D.N.Y. 2003) (citing 20 C.F.R. §§ 416.920(a),
404.1520a(a)). First, the ALJ must evaluate the claimant's symptoms, as well as other signs and
laboratory findings, and determine whether the claimant has a "medically determinable mental
impairment." 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1); see also Dudelson v. Barnhart, No.
03 Civ. 7734, 2005 WL 2249771, *10 (S.D.N.Y. May 10, 2005) (citation omitted). If a medically
determinable impairment exists, the ALJ must "rate the degree of functional limitation resulting
from the impairment[.]" 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). This process requires the
ALJ to examine all relevant clinical and laboratory findings, as well as the effects of the
symptoms on the claimant, the impact of medication and its side effects, and other evidence
relevant to the impairment and its treatment. See 20 C.F.R. §§ 404.1520a(c)(1), 416.920a(c)(1).
The ALJ must rate the degree of the claimant's functional limitation in four specific areas,
referred to as "Paragraph B" criteria: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace; and (4) episodes of decompensation. See 20 C.F.R. §§
404.1520a(c)(3), 416.920a(c)(3). The ALJ rates the first three areas on a five-point scale of
"none," "mild," "moderate," "marked," and "extreme," and the fourth area on a four-point scale of
"none," "one or two," "three," and "four or more." 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4).
The regulations also provide that a claimant's mental impairment will generally be considered
non-severe if he is rated "non" or mild" in the first three functional areas, and "none" in the fourth
area. See 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1).
In the present matter, the ALJ found that Plaintiff's social functioning was mildly
impaired. See R. at 19. The record reveals that Plaintiff engaged in a variety of social activities,
15
and was no more than mildly limited in social functioning. When he was examined by Dr. Noia,
Plaintiff was cooperative, and his manner of relating, social skills, and overall presentation were
adequate. See id. at 409. Plaintiff reported that he could take public transportation and that he
got along well with his friends and family. See id. at 410. Plaintiff also reported that he "spends
his days doing chores, socializing, watching television, and listening to the radio." Id. Further,
Plaintiff reported to Dr. Ratnarajah that he "does not feel the need for any counseling." Id. at 19,
453. The ALJ also noted that Plaintiff got together to play board games with his friends and
family on a weekly basis and that he takes his daughter to a friend's house for their children to
play together. See id. at 19, 43, 196-97, 386.
The ALJ's findings are also supported by several medical opinions. Dr. Noia found that
Plaintiff would be capable of making appropriate decision, and would be able to relate and
interact moderately well with others. See R. at 411. Dr. Totin, the state agency reviewing
psychologist, determined that Plaintiff had only mild difficulties in maintaining social
functioning. See id. at 422. After reviewing Plaintiff's medical record, Dr. Totin opined that
Plaintiff's depression was not severe. See id. at 424. Accordingly, the Court finds that the ALJ's
finding at step two was supported by substantial evidence.
In support of his argument that the ALJ erred in finding that he had only a mild limitation
in his concentration, persistence, and pace, Plaintiff cites to his own testimony in which he states
that he had diminished concentration with increased pain. See Dkt. No. 17 at 18. The ALJ's
finding, however, is supported by the opinions of Drs. Noia and Totin. Dr. Noia assessed that
Plaintiff's attention and concentration were intact, that he could do calculations, counting, and
serial three tests. See R. at 410. Dr. Noia also found that Plaintiff's recent and remote memory
skills were also intact. See id. Dr. Totin also found only a mild limitation in this domain. See id.
16
at 422. Finally, in the "Function Report" Plaintiff filled out in which he was asked to describe his
illnesses, injuries, or conditions that limit his activities, Plaintiff indicated that he does not "have
problems paying attention," and that he can finish what he starts,"follow spoken instructions," and
"follow written instructions." See R. at 198.
3. The ALJ properly evaluated Plaintiff's credibility
Next, Plaintiff contends that the ALJ committed reversible error in failing to properly
utilize the factors of SSR 96-7p and 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) in evaluating
Plaintiff's credibility and the subjective symptoms that Plaintiff contended were disabling. See
Dkt. No. 17 at 18-27.
An ALJ must evaluate the intensity and persistence of those symptoms and any functional
limitations attendant to them in order to determine how they affect a claimant's capacity for work.
See 20 C.F.R. § 416.929(c)(1). Since symptoms such as pain sometimes suggest a greater
severity of impairment than can be shown by objective medical evidence alone, the ALJ must
carefully consider any other information submitted by the claimant for its consistency with any
and all relevant evidence. See 20 C.F.R. § 416.929(c)(3). A claimant's statement(s) about the
intensity and persistence of a particular symptom, such as pain, or about the limiting effects the
symptoms have on their ability to work will not be rejected solely because the available objective
medical evidence does not substantiate a claimant's statement(s). See 20 C.F.R. § 416.929(c)(2).
"However, the ALJ is not obliged to accept without question the credibility of such subjective
evidence." Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009) (citing Martone v.
Apfel, 70 F. Supp. 2d 145, 151 (N.D.N.Y. 1999)) (internal citation omitted). "When such
[statements are] consistent with and supported by objective clinical evidence demonstrating that
17
[the] claimant has a medical impairment which one could reasonably anticipate would produce
such pain, it is entitled to considerable weight." Crysler v. Astrue, 563 F. Supp. 2d 418, 439-40
(N.D.N.Y. 2008) (citations omitted).
If this is found not to be the case, as was found here by the ALJ, the "ALJ will consider
the following factors in assessing a claimant's credibility: (1) claimant's daily activities; (2)
location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and
aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to
relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by
the claimant to relieve symptoms; and (7) any other factors concerning claimant's functional
limitations and restrictions due to symptoms." Rockwood, 614 F. Supp. at 271 (citing 20 C.F.R.
§§ 416.929(c)(3)(i)-(vii)). In doing so, the ALJ will "consider whether there are any
inconsistencies in the evidence and the extent to which there are any conflicts between [the
claimant's] statements and the rest of the evidence." 20 C.F.R. § 416.929(c)(4). The claimant's
symptoms will "be determined to diminish [their] capacity for basic work activities . . . to the
extent that [the claimant's] alleged functional limitations and restrictions due to symptoms, such
as pain, can reasonably be accepted as consistent with the objective medical evidence and other
evidence." 20 C.F.R. § 416.929(c)(4).
"An ALJ rejecting subjective testimony 'must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's
disbelief and whether his decision is supported by substantial evidence.'" Abdulsalam v. Comm'r
of Soc. Sec., No. 5:12-CV-1631, 2014 WL 420465 (N.D.N.Y. Feb. 4, 2014) (quoting Melchior v.
Apfel, 15 F. Supp. 2d 215, 219 (N.D.N.Y. 1998)). Further, the Agency rules provide that
[i]t is not sufficient for the adjudicator to make a single,
conclusory statement that "the individual's allegations have been
18
considered" or that "the allegations are (or are not) credible." It is
also not enough for the adjudicator simply to recite the factors that
are described in the regulations for evaluating symptoms. The
determination or 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
adjudicator gave to the individual's statements and the reasons for
that
weight.
SSR 96 7p, 1996 WL 374186, at *2.
In the present matter, in finding that Plaintiff could perform at the level of sedentary work,
the ALJ evaluated Plaintiff's credibility, and found that while Plaintiff's medically determinable
impairments could reasonably have been expected to cause his alleged symptoms, his statements
concerning the intensity, persistence, and limiting effects of those symptoms were only partially
credible. See R. at 20-23. First, as the Commissioner correctly contends, it is worth noting that
the ALJ largely credited Plaintiff's subjective complaints with respect to his exertional limitations.
Although Plaintiff protests that the ALJ erred in assessing the effects of his toe and back pain, the
ALJ limited Plaintiff to sedentary work, thereby significantly crediting Plaintiff's subjective
complaints. See R. at 21-22.
In fact, several medical opinions found that Plaintiff was capable of greater than sedentary
work. For example, in 2007, Dr. Shayevitz limited Plaintiff only in his capacity for repetitive
forward flexing and heavy lifting. See R. at 282. In February 2010, Dr. Ganesh assessed no
limitation in Plaintiff's ability to sit, stand, or use his upper extremities. See id. at 405. Dr.
Ganesh noted that, despite Plaintiff's claims of an inability to walk on his heels or toes, or to
squat, Plaintiff was observed interacting with his daughter, and was able to bend and walk
without difficulty. See id. Further, an x-ray of Plaintiff's lumbar spine was negative. See id. at
406. Additionally, in May of 2010, Dr. Pierz noted that, despite Plaintiff's complaints of
19
difficulty walking, and an inability to be on his feet for any length of time, Dr. Pierz's staff had
observed Plaintiff walking without any problems. See id. at 442. Further, Dr. Selvarajah, who
treated Plaintiff's wrist injury, noted that Plaintiff exaggerated his pain. See id. at 317.
Plaintiff also contends that the ALJ improperly relied on the fact that he takes care of his
child in deciding that Plaintiff's subjective complaints were only partially credible. See Dkt. No.
17 at 23-24. Although Plaintiff attempts to downplay the amount of time and attention his child
required, the record indicates that Plaintiff was actively involved with her upbringing. For
example, in August of 2008, after Plaintiff won primary custody of his daughter, Plaintiff's
therapist noted that his daughter was "very demanding and busy, thus giving him an opportunity
to practice patience." See R. at 371. The therapist also noted that Plaintiff was happier, and was
adjusting to the increased responsibility of childcare. See id. Another treatment note indicates
that Plaintiff was picking his daughter up after school to take care of her, as he did not want to
pay for daycare. See id. at 373. Additionally, Plaintiff testified that he prepared her food, made
sure that she bathed, cleaned, did laundry, and did other various household activities. See id. at
59-61. As such, the Court finds that the ALJ properly considered Plaintiff's role in taking care of
his child in assessing Plaintiff's credibility regarding his subjective complaints. See Poupore v.
Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (holding that evidence that the plaintiff could take care
of a young child demonstrated that the plaintiff's subjective complaints were not fully credible).
To the extent that Plaintiff is claiming that the ALJ failed to sufficiently support his
credibility determination, the Court disagrees. See Dkt. No. 17 at 25. Rather, the ALJ discussed
at length his reasons for finding Plaintiff only partially credible. See R. at 22. The ALJ discussed
in detail the medical record and Plaintiff's own statements, in which "the claimant has reported a
20
range of activities of daily living that do not support a finding that he has any disabling medical
impairments." Id.
Plaintiff also contends that the ALJ improperly determined that "'there is no evidence in
the record . . .'" to support Plaintiff's contention that he has a learning deficiency that would
impact his employability. See Dkt. No. 17 at 26. Plaintiff contends that this finding is only
supportable if the Court "sustains the determination that the plaintiff has no credibility." Id.
(emphasis in original). Contrary to Plaintiff's contentions, the record fully supports this
determination. Plaintiff repeatedly denied any barriers or impairments to his ability to learn. See
R. at 319, 322, 337, 340, 343, 347, 350. Further, Plaintiff's treating physicians regularly noted
Plaintiff's normal mental status. See id. at 319, 322, 337, 340, 343, 347, 350, 353. Plaintiff
reported that he could follow spoken and written instructions, and he has never alleged that his
alleged cognitive impairment ever interfered with his ability to perform any of his past relevant
work. See id. at 199, 263. At his psychiatric evaluation in 2007, Plaintiff informed Dr. Barry that
he graduated from high school, having taken regular classes. See id. at 183. Plaintiff did inform
Dr. Barry that he was a slow learner and had "some resource help;" he did not, however, allege a
cognitive impairment and none of his treating physicians ever noted one. See id. at 389, 393, 395,
397.
Based on the foregoing, the Court finds that the ALJ correctly determined that Plaintiff's
subjective complaints were not supported by objective medical evidence. As such, the ALJ
properly concluded that Plaintiff's allegations of disability were not entirely credible.
4. Plaintiff could perform work in the national economy
21
In step four of the sequential analysis, the ALJ found that Plaintiff could not perform his
past relevant work as a general laborer. See R. at 23. At step five, however, considering
Plaintiff's age, education, work experience, and residual functional capacity, the ALJ found that
there were jobs in the national economy which Plaintiff could perform. See id. at 23-24. Plaintiff
contends that the ALJ's determination was not supported by substantial evidence. See Dkt. No.
17 at 27. Specifically, Plaintiff argues that the "record supports marked mental limitations to
concentration, persistence, or pace, a very limited ability to understand, remember and carry out
even simple instructions, or accept criticism and work cooperatively with coworkers, and to make
reasonable work judgments." Id. Further, Plaintiff contends that, "[w]hile such may not be of
such severity to meet a Listing, they are still disabling, under SSR 85-15, since even 'unskilled
work' requires that the plaintiff is . . . able to understand, carry out and remember simple
instructions, to respond appropriately to supervision, co-workers, and usual work situations and to
deal with changes in a routine work setting on a consistent basis." Id. (citing SSR 96-8). Further,
Plaintiff argues that the "substantial evidence only supports the conclusion that Plaintiff was
limited to: sitting for no more than 30 min. at a time, standing no more than 10 min. and walking
no more than 10 min. at a time; sitting, walking and standing, in combination, can be done for no
more than one and one-half in total hours, before needing to rest in a recliner." Id. Additionally,
Plaintiff asserts that he can only infrequently lift twenty-five pounds, infrequently bend at the
waist, twist or turn, and that he cannot, even on an infrequent basis, crawl, kneel, stoop or
balance. See id.
Contrary to Plaintiff's contentions, the ALJ's determination that Plaintiff has the residual
functional capacity to perform the full range of sedentary work was supported by substantial
evidence. As discussed above, the ALJ properly considered Plaintiff's mental and physical
22
limitations in reaching this conclusion. The ALJ considered Plaintiff's testimony, including his
activities during a typical day. See R. at 20-21. These activities included "playing with his
daughter ('when possible'), fixing easy/simple meals, doing the laundry, and cleaning the house."
Id. at 20 (citing Exhibit 3E/2-3, 6-8). Plaintiff also testified that his typical day "consists of
taking his daughter to and from school and going to doctor appoint[ments] (averaging about 100
miles of driving a week); generally, he is up and down all day between his recliner and truck." Id.
at 21. Moreover, as discussed, the ALJ correctly found Plaintiff only minimally credible
regarding the severity and intensity of his impairments considering his own testimony and the
medical record. See id. at 22-23.
Based on the foregoing, the Court finds that the ALJ properly determined that Plaintiff has
the residual functional capacity to perform the full range of sedentary work and that Plaintiff
could perform other work in the national economy.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the Commissioner's motion for judgment on the pleadings (Dkt. No. 18) is
GRANTED and Plaintiff's motion for judgment on the pleadings (Dkt. No. 17) is DENIED; and
the Court further
ORDERS that the Commissioner's decision denying DIB and SSI is AFFIRMED; and
the Court further
ORDERS that the Clerk of the Court shall enter judgment in the Commissioner's favor
and close this case; and the Court further
23
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 29, 2014
Albany, New York
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