Blasco v. Commissioner of Social Security et al
MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Blasco's complaint (Dkt. No. 1) is DISMISSSED. Signed by Chief Judge Gary L. Sharpe on 7/31/2014. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHARLES A. BLASCO,
COMMISSIONER OF SOCIAL
FOR THE PLAINTIFF:
Law Offices of Steven R. Dolson
126 North Salina Street, Suite 3B
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
STEVEN R. DOLSON, ESQ.
ELIZABETH D. ROTHSTEIN
Special Assistant U.S. Attorney
MEMORANDUM-DECISION AND ORDER
Plaintiff Charles A. Blasco challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. § 405(g).
(Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Blasco’s arguments, the court affirms the
Commissioner’s decision and dismisses the complaint.
On December 13, 2010, Blasco filed applications for DIB and SSI
under the Social Security Act (“the Act”), alleging disability since June 1,
2006. (Tr.1 at 83-84, 184-202.) After his applications were denied, (id. at
85-92), Blasco requested a hearing before an Administrative Law Judge
(ALJ), which was held on February 16, 2012, (id. at 26-81, 93-94). On
March 30, 2012, the ALJ issued an unfavorable decision denying the
requested benefits which became the Commissioner’s final determination
upon the Social Security Administration Appeals Council’s denial of review.
(Id. at 1-23.)
Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)
Blasco commenced the present action by filing his complaint on May
17, 2013 wherein he sought review of the Commissioner’s determination.
(Compl.) The Commissioner filed an answer and a certified copy of the
administrative transcript. (Dkt. Nos. 7, 8.) Each party, seeking judgment
on the pleadings, filed a brief. (Dkt. Nos. 11, 15.)
Blasco contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 11 at 3-10.)
Specifically, Blasco claims that the ALJ failed to: (1) properly assess his
credibility; and (2) follow the treating physician rule. (Id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and his decision is also supported by substantial evidence. (Dkt.
No. 15 at 5-16.)
The court incorporates the factual recitations of the parties and the
ALJ. (Dkt. No. 11 at 1-2; Dkt. No. 15 at 2; Tr. at 12-19.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
First, Blasco contends that the ALJ failed to properly assess his
credibility. (Dkt. No. 11 at 3-6.) In particular, Blasco argues that the ALJ’s
failure to follow the required two-step inquiry to evaluate his subjective
complaints requires remand. (Id. at 3-4.) Further, Blasco claims that the
ALJ failed to adequately address the required factors under the regulations,
and improperly compared the consistency of Blasco’s statements with the
ALJ’s own residual functional capacity (RFC) 3 finding. (Id. at 4-5.) Lastly,
42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.
A claimant’s RFC “is the most [he] can still do despite [his] limitations.” 20 C.F.R.
§ 404.1545(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 404.1545(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be
Blasco asserts that it is not clear from the ALJ’s decision if he considered
only Blasco’s substance abuse in assessing Blasco’s credibility, or if the
ALJ improperly segregated out the effects of Blasco’s substance use
disorders when determining his RFC. (Id. at 6.) The court disagrees.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment that could reasonably be expected to produce
the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the ALJ
“must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34,485 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
Here, the ALJ found that Blasco “alleges disability due to
schizoaffective disorder and acid reflux. However, [Blasco’s] statements
concerning the intensity, persistence and limiting effects of his symptoms
are not credible to the extent that they are inconsistent with the [RFC]
assessment.” (Tr. at 14.) The ALJ then went on to explain that Blasco’s
“activities are suggestive of greater abilities than . . . alleged.” ( Id. at 1415.) The ALJ pointed out that Blasco is able to care for his personal
hygiene, cook, clean, help his daughter with child care of his
granddaughter, mow the lawn, drive, use public transportation, and
manage money. (Id. at 14-15, 40, 47.) Blasco is also able to work out with
friends, play disc golf, take guitar lessons from a friend, attend yoga
classes, go out to eat once a week with his girlfriend, watch television, and
read. (Id. at 15, 48-50, 52, 54, 277, 377.) In addition, treatment notes
indicate that Blasco had taken steps to pursue finishing his college degree.
(Id. at 15, 401, 436, 489.) Further, the ALJ noted that Blasco’s treatment
records document his improvement with medication and therapy. (Id. at
15-16, 337-55, 481-96.) Additionally, the ALJ considered Blasco’s
substance abuse and criminal history, as well as inconsistencies in
Blasco’s statements. (Id. at 16, 35-37, 42.) Finally, the ALJ considered the
opinion evidence of record, including that of substance abuse counselor
Mary Nordone that Blasco would benefit from job training and was ready
for job placement, and consulting examiner Dennis Noia that Blasco could
perform the mental activities required by unskilled work. (Id. at 16-17, 26465, 434-37.)
Blasco is correct in pointing out that the first step of the credibility
analysis requires the ALJ to determine whether the claimant has medically
determinable impairments that could reasonably be expected to produce
the symptoms alleged. (Dkt. No. 11 at 3-4); see 20 C.F.R. § 404.1529(a)(b). The Second Circuit has held that remand is required where the court
“is unable to discern whether the ALJ found that: (1) [claimant’s]
contentions . . . are not reasonably consistent with those medical
conditions from which he suffers; or (2) [claimant’s] contentions . . . are
consistent with those medical conditions, but the intensity and persistence
he identifies are unsubstantiated and h[is] subjective allegations alone are
not credible.” Meadors v. Astrue, 370 F. App’x at 184. Here, however,
there is no such confusion, as it is clear from the ALJ’s decision that he
found that, although Blasco suffers from schizoaffective disorder, which
could reasonably be expected to produce the symptoms alleged, 4 Blasco’s
subjective allegations as to the intensity and functionally limiting effects of
his symptoms are not fully credible. (Tr. at 12-14.)
Blasco argues that the ALJ erred in considering medical findings
when discounting his testimony regarding the functional effects of his
symptoms. (Dkt. No. 11 at 4.) On the contrary, “[o]bjective medical
evidence . . . is a useful indicator to assist [the Commissioner] in making
reasonable conclusions about the intensity and persistence of [a
claimant’s] symptoms and the effect those symptoms . . . may have on [his]
ability to work.” 20 C.F.R. § 404.1529(c)(2). In keeping with the
regulations, in addition to the objective medical evidence, the
Commissioner must “consider all of the evidence presented, including
information about [a claimant’s] prior work record, . . . statements about
[his] symptoms, evidence submitted by [his] treating or nontreating source,
Blasco testified that he cannot work because of social anxiety, memory loss, attention
problems, and daily hallucinations. (Tr. at 38, 57-59.)
and observations by [Social Security Administration’s] employees and other
persons.” Id. § 404.1529(c)(3). Here, the ALJ did just that. (Tr. at 14-18.)
Although the ALJ did not undertake a step-by-step exposition of the
factors articulated in 20 C.F.R. § 404.1529(c), “[f]ailure to expressly
consider every factor set forth in the regulations is not grounds for remand
where the reasons for the ALJ’s determination of credibility are sufficiently
specific to conclude that he considered the entire evidentiary record.”
Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y.
June 25, 2012) (internal quotation marks and citation omitted); see
Oliphant v. Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22 (E.D.N.Y.
Aug. 14, 2012) (stating that the 20 C.F.R. § 404.1529(c)(3) factors are
included as “‘examples of alternative evidence that may be useful [to the
credibility inquiry], and not as a rigid, seven-step prerequisite to the ALJ’s
finding’” (quoting Snyder v. Barnhart, 323 F. Supp. 2d 542, 546 (S.D.N.Y.
2004))). Here, the ALJ explicitly acknowledged consideration of the 20
C.F.R. § 404.1529 factors, (Tr. at 14), and it is evident from his thorough
discussion that his credibility determination was legally sound. See Britt v.
Astrue, 486 F. App’x 161, 164 (2d Cir. 2012) (finding explicit mention of 20
C.F.R. § 404.1529 and SSR 96-7p as evidence that the ALJ used the
proper legal standard in assessing the claimant’s credibility). Further, it is
clear from the ALJ’s detailed credibility analysis that his reference to
consistency with the RFC determination was merely an indication that the
RFC determination incorporated those findings. (Tr. at 14-18.)
Blasco argues that the ALJ erred in finding that factual
inconsistencies “diminish [Blasco’s] overall credibility” because he testified
that he experiences “memory issues.” (Tr. at 16; Dkt. No. 11 at 5.)
However, the ALJ permissibly considered “inconsistencies in the evidence
and the extent to which there [were] conflicts between [Blasco’s]
statements and the rest of the evidence.” 20 C.F.R. § 404.1529(c)(4).
Specifically, the ALJ considered inconsistent explanations as to why Blasco
left his last place of employment, and inconsistent statements about
Blasco’s physical impairments. (Tr. at 14, 16.) Blasco testified to the ALJ
that he was fired from his most recent employer because he could not
“keep up” due to his impairments, but he told Dr. Noia that he quit working
when he moved, and, on a form submitted to the Social Security
Administration, Blasco reported that he was laid off when the company
changed owners. (Id. at 14, 34, 217, 434.) Further, Blasco told consultive
examiner Kalyani Ganesh that he is physically healthy and that medication
helps with his acid reflux, however, he reported on a function report
submitted to the Social Security Administration that he requires hearing
aids, has pain in his joints, and suffers from hip soreness. (Id. at 16, 24243, 438.) Standing alone, the purported “inconsistencies” do not create an
independent basis for finding Blasco not credible. However, taken as a
whole, the ALJ’s credibility determination is not “patently unreasonable.”
Pietrunti v. Director, Office of Workers’ Comp. Programs, 119 F.3d 1035,
1042 (2d Cir. 1997) (“Credibility findings of an ALJ are entitled to great
deference and therefore can be reversed only if they are patently
unreasonable.” (internal quotation marks and citation omitted)).
Turning to the ALJ’s consideration of Blasco’s substance abuse, as
Blasco concedes, substance abuse is one of many factors an ALJ may
consider when evaluating a claimant’s credibility. (Dkt. No. 11 at 6); see
Arrington v. Astrue, No. , 2011 WL 3844172, at *13 (W.D.N.Y. Aug. 8,
2011) (holding that, although the ALJ may consider a claimant’s criminal
history and substance abuse as factors in assessing the claimant’s
credibility, they cannot be the only factors considered). According to
Blasco, however, rather than considering his substance abuse in terms of
his credibility, the ALJ actually considered whether or not Blasco’s drug
abuse is a contributing factor material to a finding of disability, without
considering whether Blasco would be disabled if he stopped using drugs or
alcohol. (Dkt. No. 11 at 6.) Under the regulations, in order for the ALJ to
address whether drug addiction or alcoholism is a contributing factor
material to making a determination of disability, the ALJ must first find the
claimant disabled, and then determine whether the claimant would still be
disabled if he stopped using drugs or alcohol. See 20 C.F.R.
§ 404.1535(a), (b)(1). In this case, the ALJ concluded that Blasco is not
disabled, and, thus, he did not address whether Blasco’s drug and alcohol
use may be a contributing factor material to the determination of disability.
The ALJ concluded that “while [Blasco] testified that he was primarily
unable to work due to social anxiety and memory problems . . . ongoing
polysubstance abuse [cannot be ruled out] as a factor or catalyst with
regard to some of these issues.” (Tr. at 16.) Although this language could
suggest that the ALJ improperly segregated out the effects of Blasco’s
substance use disorders when determining his RFC in the first instance,
the ALJ’s discussion of the entirety of the evidence of record—which
suggests that Blasco was capable of performing unskilled work—and his
reliance on the opinions of Dr. Noia and substance abuse counselor
Nordone, makes it clear that the ALJ considered the ill effects of Blasco’s
substance use on his functional abilities when determining that Blasco was
not disabled. (Id. at 14-18.)
Treating Physician Rule
Blasco also claims that the ALJ failed to follow the treating physician
rule. (Dkt. No. 11 at 6-10.) According to Blasco, the ALJ’s reasoning for
discounting the co-signed opinion of treating psychiatrist David Kang 5 and
nurse practitioner Scott Burnside triggered the ALJ’s duty to re-contact Dr.
Kang. (Id. at 8.) Further, Blasco argues that, even if the opinion of
Burnside is not that of an acceptable medical source, his opinion was
entitled to more than “little weight,” and the ALJ erred in placing too much
emphasis on a single Global Assessment of Functioning (GAF) 6 score. (Tr.
at 17; Dkt. No. 11 at 9.) The Commissioner counters, and the court
agrees, that the ALJ properly evaluated the medical opinions of record, and
his decision to discount the opinion of Dr. Kang and Burnside is supported
Blasco’s brief mistakenly refers to Dr. Kang as “Dr. Kahn.” (Dkt. No. 11 at 7-8; Tr. at
342, 348, 355, 486, 491, 496, 506.)
The GAF scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d
by substantial evidence. 7 (Dkt. No. 15 at 11-16.)
Controlling weight will be given to a treating source’s opinion on the
nature and severity of a claimant’s impairments where it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ
must provide “‘good reasons’ for the weight given to the treating source’s
opinion.” Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (citations
omitted). “Nevertheless, where the evidence of record permits [the court]
to glean the rationale of an ALJ’s decision,” it is not necessary that the ALJ
“have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or
“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).
insufficient to lead him to a conclusion of disability.” Id. (internal quotation
marks and citation omitted).
Here, the ALJ gave “little weight” to the opinion of Dr. Kang and nurse
practitioner Burnside that Blasco suffers marked restrictions of activities of
daily living and extreme difficulty in maintaining social functioning. (Tr. at
17, 502-06.) The ALJ highlighted Dr. Kang’s notation that he was the
“collaborating physician” and Burnside was the primary treatment provider.
(Id. at 16, 506.) The ALJ explained that he discounted this opinion
because it was inconsistent with Blasco’s treatment records, the nature of
Dr. Kang’s treatment relationship with Blasco was unclear, and the opinion
rated Blasco’s current GAF as sixty-five, indicating only mild symptoms. 8
(Id. at 16-17.) Thus, the ALJ considered relevant factors under the
regulations for evaluating a medical opinion. See 20 C.F.R.
§ 404.1527(c)(2), (4). 9 Contrary to Blasco’s argument, (Dkt. No. 11 at 8),
A GAF score between sixty-one and seventy reflects a person with “‘[s]ome mild
symptoms (e.g. depressed mood or mild insomnia) OR some difficulty in social, occupational,
or school functioning . . . but [who is] generally functioning pretty well, has some meaningful
interpersonal relationships.’” Kohler v. Astrue, 546 F.3d 260, 262 (2d Cir. 2008) (quoting
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., Text Rev. 2000)).
As Blasco concedes, as a nurse practitioner, Burnside’s opinion is not entitled to
controlling weight. See SSR 06-03p, 71 Fed. Reg. 45,593, 45,594 (Aug. 9, 2006); see 20
C.F.R. § 404.1513(a), (d)(1); Crysler v. Astrue, 563 F. Supp. 2d 418, 434-35 (N.D.N.Y. 2008).
Further, the ALJ’s explanation that the restrictive opinion is inconsistent both internally, and
with the other evidence of record, is a sufficient basis for discounting the opinion of an “other
the ALJ was under no duty to re-contact Dr. Kang to obtain clarification of
his treatment relationship, as there are no obvious gaps, and the record
presents “a ‘complete medical history.’” Rosa v. Callahan, 168 F.3d 72, 79
n.5 (2d Cir. 1999) (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).
Here, the ALJ had before him treatment records of Dr. Kang and Burnside,
along with the opinions of Dr. Noia, substance abuse counselor Nordone,
and non-examining review psychiatrist E. Kamin. (Tr. at 264-65, 337-61,
434-37, 456-59, 481-96.) The administrative record also contains Blasco’s
prison health records, which include mental status examinations. ( Id. at
Finally, Blasco’s argument that the ALJ “places wholly too much
emphasis on a single GAF score” is without merit. (Dkt. No. 11 at 9.)
Although the ALJ considered that the opinion completed by Dr. Kang and
Burnside indicated Blasco’s GAF score was sixty-five, he also considered
the entirety of Blasco’s treatment notes, which indicate that, over the
course of his treatment, Blasco’s symptoms steadily improved and his GAF
scores raised. (Tr. at 15-16.) In fact, Dr. Kang’s most recent treatment
source” as well as well as that of an “acceptable medical source.” See SSR 06-03p, 71 Fed.
Reg. at 45,595.
note of record indicates that Blasco’s GAF score was seventy and he
reported experiencing only “minor or occasional symptom interference,” as
his medication was working effectively. (Id. at 492-93.) Thus, the court is
satisfied that the ALJ properly considered all of the evidence available to
him in weighing this opinion. In addition, it is important to note that the ALJ
did not discount the opinion of Dr. Kang and Burnside wholesale, but rather
concluded that Blasco suffers some nonexertional limitations based on
their opinion. (Id. at 17.) Ultimately, the ALJ’s decision to afford “little
weight” to their opinion is supported by substantial evidence. ( Id. at 16-17.)
Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of
the ALJ’s decision as it is supported by substantial evidence.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Blasco’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
July 31, 2014
Albany, New York
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