Fiore v. Colvin
Filing
21
DECISION AND ORDER denying # 15 Plaintiff's motion for judgment on the pleadings; and granting # 16 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 7/5/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
TINA MARIE FIORE,
Plaintiff,
v.
5:15-CV-0415
(GTS)
CAROLYN W. COLVIN
Acting Commissioner of Social Security,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State Street, Suite 420
Syracuse, NY 13202
HOWARD D. OLINSKY, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL– REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
DAVID L. BROWN, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Tina Marie Fiore
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 15-16.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied and Defendant’s motion for judgment on the pleadings is
granted.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born on May 24, 1970. Plaintiff has a high school education and has past
work as a food service worker and a school monitor. Generally, Plaintiff’s alleged disability
consists of anxiety attacks, carpal tunnel syndrome and surgery, neck and shoulder pain,
depression, and arthritis in the hands. Plaintiff’s alleged disability onset date is May 17, 2012.
B.
Procedural History
On June 5, 2012, Plaintiff applied for Disability Insurance Benefits and Supplemental
Security Income. Plaintiff’s application was initially denied on September 21, 2012, after which
she timely requested a hearing before an Administrative Law Judge (“ALJ”). On September 23,
2013, Plaintiff appeared in a video hearing before the ALJ, Gregory M. Hamel. (T. 45-72.) On
October 1, 2013, the ALJ issued a written decision finding Plaintiff not disabled under the Social
Security Act. (T. 16-25.) On January 30, 2015, the Appeals Council denied Plaintiff’s request
for review, rendering the ALJ’s decision the final decision of the Commissioner. (T. 1-4.)
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 21-31.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since May 17, 2012, the alleged onset date. (T. 21.) Second, the ALJ found that
Plaintiff’s mild ulnar compression at the right elbow status post-surgical repair bilaterally for
carpal tunnel syndrome, neck pain with degenerative changes and disc protrusion, depressive
disorder, social phobia, and panic disorder are severe impairments, but that Plaintiff’s rib
fracture with back pain is not a severe impairment. (T. 21-22.) Third, the ALJ found that
Plaintiff’s severe impairments, alone or in combination, did not meet or medically equal one of
2
the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (T. 22-23.) The ALJ
considered Listings 1.02, 1.04, 12.04, and 12.06. (Id.) Fourth, the ALJ found that Plaintiff has
the residual functional capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)1 except
she can only occasionally climb stairs, balance, stoop, kneel, crouch,
and crawl; cannot climb ladders, ropes, or scaffolds; cannot work in
hazardous work environments; and can perform only routine and
repetitive tasks which do not require more than occasional public
contact.
(T. 24-25.) Fifth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T.
29.) Sixth, and finally, the ALJ found that there are other jobs that exist in significant numbers
in the national economy that Plaintiff can perform. (T. 29-30.)
D.
The Parties’ Briefings on Their Cross-Motions
Generally, Plaintiff advances two argument in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ’s RFC was not supported by substantial evidence.
(Dkt. No. 15, at 11-19 [Pl.’s Mem. of Law].) Within this argument, Plaintiff argues that the ALJ
erred in his treatment of the medical opinions of (1) consultative physical examiner Pamela
Tabb, M.D., (2) treating physician, Greg Orlando, M.D., (3) treating primary care physician,
Matthew Ulahannan, M.D., (4) treating psychiatrist, Bahram Omidian, M.D., (5) consultative
psychiatric examiner, Jeanne Shapiro, Ph.D., and (6) State agency consultant, J. Echevarria,
Psychiatrist. (Id.) Second, Plaintiff argues that the ALJ’s adverse credibility determination was
not supported by substantial evidence. (Id. at 19-21.)
1
Light work requires the abilities to sit for six hours, stand for two hours, and lift and carry up to
ten pounds frequently during an eight-hour workday. 20 C.F.R. §§ 404.1567(a), 416.927(a); SSR 83-10, 1983 WL
31251 (1983).
3
Generally, Defendant advances two arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that the ALJ’s RFC finding is supported by substantial
evidence. (Dkt. No. 16, at 11-22 [Def.’s Mem. of Law].) Second, Defendant argues that the
ALJ’s credibility assessment is supported by substantial evidence. (Id. at 22-24.)
II.
RELEVANT LEGAL STANDARD
A.
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and 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).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
4
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). 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 & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is 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
5
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. Under the cases previously discussed, the claimant bears
the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.
ANALYSIS
For the ease of analysis, Plaintiff’s arguments are reorganized below.
A.
Whether the ALJ Erred in Assessing the Medical Opinion Evidence in
Determining the RFC
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 16, at 11-22 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
RFC is defined as
what an individual can still do despite his or her limitations . . . .
Ordinarily, RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and
continuing basis, and the RFC assessment must include a discussion
of the individual’s abilities on that basis. A regular and continuing
basis means 8 hours a day, for 5 days a week, or an equivalent work
schedule.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “In assessing a claimant’s RFC, the ALJ must
consider all of the relevant medical and other evidence in the case record to assess the claimant’s
ability to meet the physical, mental, sensory and other requirements of work.” Domm v. Colvin,
12-CV-6640, 2013 WL 4647643, at *8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. §§
6
404.1545[a][3]-[4], 416.945[a][3]-[4]). The ALJ must consider medical opinions and facts,
physical and mental abilities, non-severe impairments, and the plaintiff’s subjective evidence of
symptoms. 20 C.F.R. §§ 404.1545(b)-(e), 416.945(b)-(e). The ALJ must consider RFC
assessments made by acceptable medical sources and may consider opinions from other sources
to show how a claimant’s impairments may affect his or her ability to work. 20 C.F.R. §§
404.1513(c)(d), 416.913(c)(d). Finally, an ALJ’s RFC determination “must be set forth with
sufficient specificity to enable [the Court] to decide whether the determination is supported by
substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Under the “treating physician’s rule,” controlling weight is afforded to a plaintiff’s
treating physician’s opinion when (1) the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques, and (2) the opinion is consistent with other
substantial evidence in the record, such as opinions of other medical experts. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004);
Brogan-Dawley v. Astrue, 484 F. App’x 632, 633-34 (2d Cir. 2012). Regulations require an ALJ
to set forth his or her reasons for the weight afforded to a treating physician’s opinion. Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000).
When controlling weight is not afforded to the opinion of a treating physician, or when
assessing a medical opinion from another source, the ALJ should consider the following factors
to determine the proper weight to afford the opinion: (1) the source’s examination relationship
and treatment relationship with the plaintiff, including the length, nature, and extent of the
treatment relationship, if applicable, (2) the opinion’s supportability, (3) the opinion’s
consistency with the record as a whole, (4) the source’s specialization, if any, and (5) other
factors, such as the source’s knowledge of disability programs and familiarity with the case
record. 20 C.F.R. § 404.1527(c), 416.927(c)(2); Halloran, 362 F.3d at 32 (listing regulatory
factors).
7
i.
The ALJ’s Physical RFC Determination
The ALJ found that Plaintiff has the physical RFC to perform light work except that she
can only occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; she cannot climb
ladders, ropes, or scaffolds; and she cannot work in hazardous work environments. (T. 24-25.)
For the reasons set forth below, the Court finds that the ALJ’s physical RFC determination was
supported by substantial evidence, including the opinion of consultative examiner, Dr. Tabb.
Moreover, the ALJ’s assessments of the opinions of Dr. Tabb, Dr. Orlando, and Dr. Ulahannan
were supported by substantial evidence.
a.
Consultative Physical Examiner, Dr. Tabb.
On August 21, 2012, Dr. Tabb diagnosed Plaintiff with carpal tunnel syndrome, status
post-surgical repair bilaterally, neck pain, anxiety attacks, and depression. (T. 28.) Upon
examination, Dr. Tabb observed that Plaintiff appeared to be in no acute distress, had a normal
gait and stance, and needed no help changing for the exam or getting on and off the examination
table. (T. 27.) Dr. Tabb observed that Plaintiff had full ranges of motion in her cervical and
lumbar spines, shoulders, elbows, forearms, and wrists. (Id.) Dr. Tabb observed that Plaintiff’s
joints were stable and nontender, her reflexes were equal in her upper and lower extremities with
no sensory deficits, and she had full motor strength in her upper and lower extremities. (T. 2728.) Dr. Tabb further observed that Plaintiff and had no cyanosis, clubbing, edema, or muscle
atrophy in her extremities. (T. 27-28.) Finally, Dr. Tabb observed that Plaintiff had no deficits
in fine motor activity of her hands, had full grip strength in her hands, her dexterity was intact,
and she was able to zip, button, tie, and use a Velcro fastener. (T. 27-28, 301.)
Dr. Tabb opined that Plaintiff had “no restrictions for physical activities.” (T. 302.) The
ALJ afforded limited weight to Dr. Tabb’s opinion that Plaintiff had no physical restrictions,
8
reasoning that Plaintiff would be limited to light work based on other record evidence including
electromyogram nerve conductive studies, cervical MRI reports, and Plaintiff’s testimony about
pain in her upper extremities and neck. (T. 28.) For example, the ALJ noted that, in October
2012, Plaintiff reported left-sided neck pain and numbness and an MRI of the cervical spine
showed degenerative changes with posterolateral disc protrusion on the left. (Id.) The ALJ
further noted that, in January 2013, Dr. Orlando observed that Plaintiff’s electromyogram nerve
conduction studies showed mild ulnar compression at the right elbow. (T. 27.)
Plaintiff acknowledged that “substantial evidence supported the ALJ’s decision to
discount the opinion of Dr. Tab.” (Dkt. No. 15, at 12 [Pl.’s Mem. of Law].) However, Plaintiff
argues that the ALJ erred by citing Dr. Tabb’s “discredited” opinion to discount other medical
opinions and Plaintiff’s testimony regarding her symptoms and limitations. (Dkt. No. 15, at 1113 [Pl.’s Mem. of Law].)
First, the Court notes that the ALJ afforded some weight to Dr. Tabb’s opinion, albeit
limited weight. (T. 28.) Second, the ALJ did not discredit the opinions of Dr. Orlando and Dr.
Omidian based on Dr. Tabb’s opinion. Rather, the ALJ noted that Dr. Orlando’s opinion and Dr.
Omidian’s opinion were out of proportion with Dr. Tabb’s examination findings (as well as other
record evidence). (T. 28-29.) See Pellam v. Astrue, 508 Fed. App’x 87, 90 (2d Cir. 2013)
(finding that the ALJ properly relied on the consultative examiner’s examination findings, but
properly rejected his medical source statement of “moderate to severe limitations” ). In any
event, an ALJ is not required strictly to adhere to the entirety of one medical source’s opinion.
See Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) (“Although the ALJ's conclusion may
not perfectly correspond with any of the opinions of medical sources cited in his decision, he
was entitled to weigh all of the evidence available to make an RFC finding that was consistent
9
with the record as a whole.”); Zongos v. Colvin, 12-CV-1007, 2014 WL 788791, at *9 (N.D.N.Y.
Feb. 25, 2014) (finding that it was within the ALJ’s discretion to afford weight to a portion of a
treating physician’s opinion but not to another portion).
Moreover, an ALJ is entitled to rely on the opinions of both examining and
non-examining State agency medical consultants, because those consultants are deemed to be
qualified experts in the field of social security disability. 20 C.F.R. §§ 404.1512(b)(6),
404.1513(c), 404.1527(e), 416.912(b)(6), 416.913(c), 416.927(e); see also Little v. Colvin, 14CV-63, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency physicians are
qualified as experts in the evaluation of medical issues in disability claims. As such, their
opinions may constitute substantial evidence if they are consistent with the record as a whole.”);
Cobb v. Comm’r, 2014 WL 4437566, at *6 (N.D.N.Y. Sept. 9, 2014).
Accordingly, the ALJ’s assessment of Dr. Tabb’s opinion was supported by substantial
evidence. Moreover, the ALJ did not err by citing Dr. Tabb’s examination findings in assessing
the opinions of Dr. Orlando and Dr. Omidian discussed below. Therefore, remand is not
required on this basis.
b.
Treating Physician, Dr. Orlando
On March 12, 2013, Dr. Orlando assessed Plaintiff’s “final degree of disability” from her
carpal tunnel syndrome. (T. 367.) Dr. Orlando noted that Plaintiff’s grip strength was five
pounds on the right and 15 pounds on the left. (Id.) Dr. Orlando noted that Plaintiff had a
strongly positive Tinel’s sign of the wrists bilaterally and a strongly positive Phalen’s test
bilaterally. (Id.) Dr. Orlando indicated that Plaintiff had a 20 percent loss of use of her upper
extremities based on her positive neurologic symptoms and decreased grip strength. (Id.) On
May 24, 2013, Dr. Orlando observed that Plaintiff was “not improving at all” and recommended
10
carpal and ulnar tunnel release surgery. (T. 378.) Dr. Orlando reported that Plaintiff remained
out of work “because there is no light duty” and opined that she could lift five pounds. (Id.)
The ALJ afforded limited weight to Dr. Orlando’s opinion to the extent that it suggested
that Plaintiff was limited to less than light work (based on his opinion that Plaintiff was limited
to lifting five pounds) and had a 20 percent loss of use of her upper extremities. (T. 28.) The
ALJ reasoned that these findings were out of proportion to the relatively normal examination
findings of Dr. Tabb discussed above in Part III.i.a. of this Decision and Order, as well as Dr.
Orlando’s own examination findings. (T. 28.)
For example, in October 2012, Dr. Orlando assessed Plaintiff with mild bilateral carpal
tunnel syndrome and bilateral ulnar nerve lesion, and observed that she had full strength in her
bilateral wrists. (T. 363.) In November 2012, Dr. Orlando stated that he saw “no problem” with
Plaintiff returning to work as a food service worker the following January. (T. 365.) In January
2013, Dr. Orlando observed that Plaintiff’s electromyogram nerve conduction studies showed
mild ulnar compression at the right elbow but, other than that, “all looks good.” (T. 27.) Dr.
Orlando agreed with Plaintiff that she could work the early food service shift, when her arms
were less tired. (T. 366.)
The Court finds that the ALJ properly applied the regulations in evaluating Dr. Orlando’s
opinion by considering his professional credentials, treatment relationship with Plaintiff,
treatment notes, and citing inconsistencies between the opinion and other evidence in the record,
including Dr. Tabb’s examination findings, pursuant to 20 C.F.R. §§ 404.1527(c), 416.927(c).
(T. 21-29.) Where, as here, an ALJ’s reasoning and adherence to the regulations are clear, the
ALJ is not required to review explicitly each and every factor of the regulation. Atwater v.
Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (holding that, where plaintiff challenged ALJ’s
11
failure to review explicitly each factor provided for in 20 C.F.R. § 404.1527[c], “no such slavish
recitation of each and every factor [was required] where the ALJ's reasoning and adherence to
the regulation [was] clear”).
Accordingly, the ALJ’s assessment of Dr. Orlando’s opinion was supported by
substantial evidence.
c.
Treating Primary Care Physician, Dr. Ulahannan
On September 23, 2013, Dr. Ulahannan provided a medical source statement of
Plaintiff’s abilities to perform work-related physical activities. (T. 374-79.) Dr. Ulahannan
opined that Plaintiff could sit, stand, and walk up to eight hours, and could occasionally lift and
carry up to ten pounds in an eight-hour workday. (T. 374-75.) Dr. Ulahannan opined that
Plaintiff had additional manipulative, postural, and environmental limitations, including never
reaching overhead, fingering or handling objects, pushing, pulling, crawling, or operating a
motor vehicle. (Id.)
The ALJ afforded limited weight to Dr. Ulahannan’s opinion that Plaintiff was limited to
sedentary work and had environmental restrictions, including never operating a motor vehicle
and never having exposure to extreme cold, heat or vibrations. (T. 28.) The ALJ reasoned that
this portion of Dr. Ulahannan’s opinion is not supported by the medical records as a whole and is
out of proportion to Plaintiff’s statements about her activities. (Id.)
First, Plaintiff argues that the ALJ “mischaracterized” Dr. Ulahannan’s opinion by stating
that it limited Plaintiff to sedentary work. (Dkt. No. 15, at 18 [Pl.’s Mem. of Law].) The Court
notes that Dr. Ulhannan opined that Plaintiff could lift and carry up to ten pounds occasionally,
however light work requires the ability to lift and carry up to ten pounds frequently during an
eight-hour workday. (T. 374); 20 C.F.R. §§ 404.1567(a), 416.927(a); SSR 83-10, 1983 WL
31251 (1983). Accordingly, Plaintiff’s argument is without merit.
12
Second, Plaintiff argues that the ALJ failed to provide “good reasons” for discounting the
opinion of Dr. Ulahannan or examine the regulatory factors for assessing opinion evidence
pursuant to 20 C.F.R. §§ 404.1527(c), 416.927(c). (Dkt. No. 15, at 18-19 [Pl.’s Mem. of Law].)
However, as noted above, the ALJ reasoned that Dr. Ulahannan’s opinion that Plaintiff is limited
to sedentary work with environmental restrictions (including never operating a motor and never
having exposure to extreme cold, heat or vibrations) is not supported by the medical records as a
whole and is out of proportion to Plaintiff’s statements about her activities. (T. 28.)
For example, the ALJ noted that Plaintiff reported that she drives to doctor appointments
and to pick up or drop off her six-year-old daughter, cares for her children, shops for clothing
and food, and cooks occasionally. (T. 22-23.) The ALJ further noted that Plaintiff speaks to her
mother on the telephone frequently, goes outside every day, watches her daughter’s dance
classes one or two times a week, watches her son’s baseball games, and goes out to eat with her
husband approximately once a month. (Id.) Finally, the ALJ noted that Plaintiff reported to Dr.
Shapiro that she spends her days watching her children, taking walks, reading, and talking with
her mother. (T. 23-24.)
Accordingly, the Court agrees that Dr. Ulahannan’s restrictive opinion conflicted with
Plaintiff’s reported activities. See Roma v. Astrue, 468 F. App’x 16 (2d Cir. 2012) (finding that,
in declining to afford controlling weight to a treating physician’s opinion, the ALJ properly
noted that the opinion that the plaintiff could not work conflicted with the plaintiff’s testimony
that she could perform a reasonably broad range of light, non-stressful activities at or near her
home, including, driving, reading, sending email, and independently performing activities of
daily living).
13
Moreover, the ALJ properly applied the regulations in evaluating Dr. Ulahannan’s
opinion by considering his professional credentials, treating relationship with Plaintiff, and
citing inconsistencies between the opinion and other evidence in the record pursuant to 20 C.F.R.
§§ 404.1527(c), 416.927(c), including the medical evidence as a whole and Plaintiff’s reported
activities. (T. 21-29.) As noted above, when an ALJ’s reasoning and adherence to the
regulations are clear, the ALJ is not required to review explicitly each and every factor of the
regulation. Atwater, 512 F. App'x at 70. Finally, an ALJ is not required “explicitly to reconcile
every conflicting shred of medical testimony.” See Miles v. Harris, 645 F.2d 122, 124 (2d Cir.
1981) (finding that the ALJ was not required to reconcile two apparently inconsistent medical
opinions; it was sufficient that the ALJ noted that he carefully considered the exhibits presented
in evidence in reaching his decision).
For these reasons, the ALJ’s assessment of Dr. Ulahannan’s opinion was supported by
substantial evidence, and remand is not required on this basis.
ii.
The ALJ’s Mental RFC Determination
“Work-related mental activities generally required by competitive, remunerative work
include the abilities to understand, carry out, and remember instructions; use judgment in making
work-related decisions; respond appropriately to supervision, co-workers and work situations;
and deal with changes in a routine work setting.” SSR 96-8p, 1996 WL 374184, at *6 (July 2,
1996). The ALJ determined that Plaintiff has the mental RFC to perform only routine and
repetitive tasks which do not require more than occasional public contact. (T. 24-25.) For the
reasons set forth below, the Court finds that the ALJ’s mental RFC determination was supported
by substantial evidence, including the opinion of consultative psychiatric examiner, Dr. Shapiro.
14
a.
Consultative Psychiatric Examiner, Dr. Shapiro
On September 21, 2012, Dr. Shapiro diagnosed Plaintiff with depressive disorder NOS,
social phobia, and panic disorder. (T. 296.) Dr. Shapiro opined that Plaintiff
appears capable of following and understanding simple directions
and instructions. Barring any medical contraindications, she appears
capable of performing simple and complex tasks independently, but
may not always feel motivated to do so. She may not be able to
consistently maintain attention and concentration because she
complains of problems doing so. She is able to maintain a regular
schedule, but may not always feel motivated to do so. She appears
capable of learning some new tasks. She does not always make
appropriate decisions, relate adequately with others, or appropriately
deal with stress.
(T. 296.)
The ALJ afforded great weight to Dr. Shapiro’s opinion that Plaintiff could follow and
understand simple directions and instruction, and perform simple tasks independently. (T. 28.)
The ALJ afforded less weight to Dr. Shapiro’s opinion that Plaintiff could perform complex
tasks, in light of Plaintiff’s testimony about difficulties with focus and concentration. (Id.)
Additionally, the ALJ afforded limited weight to Dr. Shapiro’s opinion that Plaintiff may not be
able to consistently maintain attention and concentration or maintain a regular schedule due to a
lack of motivation, reasoning that it was out of proportion to the findings made on examination.
(Id.)
For example, elsewhere in the decision, the ALJ noted that Dr. Shapiro observed that
Plaintiff’s attention and concentration were grossly intact and she was able to perform counting,
simple calculations, and serial threes from 20. (T. 23.) The ALJ noted that Dr. Shapiro
observed that Plaintiff’s recent and remote memory skills were intact, her manner of relating,
social skills, and overall presentation were adequate, and her thought processes were coherent
and goal directed. (Id.)
15
Plaintiff argues that the ALJ “appears to misunderstand” Dr. Shapiro’s opinion and
provides a conflicting summary of her findings by indicating that Dr. Shapiro found that she
could perform both simple and complex tasks. (Dkt. No. 15, at 14 [Pl.’s Mem. of Law].) A
review of the complete decision and record indicates that the ALJ correctly summarized Dr.
Shapiro’s opinion and appropriately addressed the discrepancy in Dr. Shapiro’s opinion as
discussed above (by affording great weight to the portion of her opinion that Plaintiff could
perform simple tasks independently and less weight to the portion of the opinion that Plaintiff
could perform complex tasks independently). (T. 28.) Notably, an ALJ is not required strictly to
adhere to the entirety of one medical source’s opinion. Matta, 508 F. App'x at 56; see also
Zongos, 2014 WL 788791, at *9 (finding that it was within the ALJ’s discretion to afford weight
to a portion of a medical source’s opinion but not to another portion).
Moreover, the ALJ properly applied the regulations in evaluating Dr. Shapiro’s opinion
by considering her professional credentials, examining relationship with Plaintiff, examination
notes and findings, and the consistency of the opinion with other evidence in the record pursuant
to 20 C.F.R. §§ 404.1527(c), 416.927(c). (T. 21-29.) Where, as here, an ALJ’s reasoning and
adherence to the regulations are clear, the ALJ is not required to review explicitly each and
every factor of the regulation. Atwater, 512 F. App'x at 70.
Accordingly, the ALJ’s assessment of Dr. Shapiro’s opinion was supported by substantial
evidence.
b.
Treating Psychiatrist, Dr. Omidian
The ALJ noted that Plaintiff was treated by Dr. Omidian in July 2013 for depression and
anxiety. (T. 24, 359.) Dr. Omidian diagnosed Plaintiff with major recurrent depression versus
dysthymia, adjustment disorder with mixed emotional features, and additional depressional
16
anxiety secondary to the general medical condition. (Id.) Although Dr. Omidian observed that
Plaintiff appeared to be depressed and anxious upon examination, Dr. Omidian also observed
that Plaintiff was cooperative, friendly, and pleasant; was alert and oriented; had no suicidal
preoccupations, hallucinations, or delusions; and was benefitting from taking the prescription
medication wellbutrin. (T. 359.)
On September 16, 2013, Dr. Omidian provided an assessment of Plaintiff’s ability to
perform mental work-related activities and limitations due to her depressed mood, anxious
mood, temper, and poor concentration and attention. (T. 370-72.) Dr. Omidian opined that
Plaintiff had mild limitation in her ability to understand and remember simple instructions, and
moderate limitation in her ability to carry out simple instructions. (T. 370.) Dr. Omidian opined
that Plaintiff had marked limitation in her abilities to understand, remember and carry out
complex instructions, and make judgments on complex work-related decisions. (Id.) Dr.
Omidian opined that Plaintiff had mild to moderate limitation in her ability to interact with the
public, and had moderate limitation in her abilities to interact appropriately with supervisors and
coworkers, and respond appropriately to usual work situations and changes in a routine work
setting. (Id.)
The ALJ afforded limited weight to Dr. Omidian’s opinion that Plaintiff had several
marked limitations, reasoning that it is not well supported and is out of proportion to the medical
records as a whole, including Dr. Tabb’s examination findings. (T. 28-29.) Plaintiff argues that
the ALJ erred by using Dr. Tabb’s examination findings (which addressed her physical
impairments) to discredit Dr. Omidian’s opinion (which addressed Plaintiff’s mental
impairments). (Dkt. No. 15, at 13 [Pl.’s Mem. of Law].)
17
Plaintiff’s argument is well taken. However, the ALJ did not discount any portion of Dr.
Omidian’s opinion solely based on its inconsistency with Dr. Tabb’s examination findings. (T.
28-29.) Rather, the ALJ afforded limited weight to Dr. Omidian’s opinion that Plaintiff had
several marked limitations, reasoning that this portion of the opinion is not well supported and is
out of proportion to the medical records as a whole. (T. 28-29.) For example, the ALJ noted
that, upon examination, Dr. Omidian assessed Plaintiff with a Global Assessment of Functioning
(“GAF”) score of 50, indicating only moderate symptoms or limitations.2 (T. 24.) Moreover,
the ALJ stated that he credited Dr. Omidian’s finding that Plaintiff had a moderate limitation in
social functioning. (T. 23.) Finally, the ALJ properly applied the regulations in evaluating Dr.
Omidian’s opinion by considering Dr. Omidian’s professional credentials, treatment relationship
with Plaintiff, treatment notes, and citing inconsistencies between the opinion and other evidence
in the record pursuant to 20 C.F.R. §§ 404.1527(c), 416.927(c). (T. 21-29.)
Accordingly, the ALJ’s assessment of Dr. Omidian’s opinion was supported by
substantial evidence and remand is not required on this basis.
c.
State Agency Psychiatrist, Dr. Echevarria
On September 18, 2012, Dr. Echevarria completed a psychiatric review technique and
mental RFC assessment form based on a review of Plaintiff’s medical records. (T. 303-20.)
Plaintiff argues that the ALJ failed to discuss or weigh Dr. Echevarria’s opinion that Plaintiff
had moderate limitation in (1) carrying out detailed instructions; (2) maintaining attention and
concentration for extended periods; (3) performing activities within a schedule, maintaining
2
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 Cir. 2004). A GAF score of 51 to
60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers.)
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) (DSM-IV).
18
regular attendance, and being punctual within customary tolerances; and (4) completing a normal
workday or workweek without interruption from psychologically based symptoms and
performing at a consistent pace without an unreasonable number and length of rest periods.
(Dkt. No. 15, at 15 [Pl.’s Mem. of Law].)
Defendant correctly notes that the moderate limitations Plaintiff referenced are from the
check-box portion in Section I of the mental RFC form completed by Dr. Echevarria. (Dkt. No.
16, at 20-22 [Def.’s Mem. of Law].) The Social Security Administration’s Program Manual
Operation System instructs that the check-box portion in Section I of the mental RFC form is not
an RFC assessment, but is “a worksheet to ensure that the psychiatrist or psychologist has
considered each of these pertinent mental activities and the claimant’s or beneficiary’s degree of
limitation for sustaining these activities over a normal workday and workweek on an ongoing,
appropriate, and independent basis.” SSA POMS DI 25020.010(B)(1). “It is the narrative
written by the psychiatrist or psychologist in Section III . . . that adjudicators are to use as the
assessment of RFC.” (Id.) In the narrative section in Section III, Dr. Echevarria wrote that
Plaintiff “does not meet or equal a psychiatric listing and retains the capacity to earn substantial
gainful activity in a low contact, low stress setting.” (T. 319.)
Therefore, contrary to Plaintiff’s argument, the ALJ did not commit reversible error by
not discussing or weighing the Section I worksheet completed by Dr. Echevarria. SSA POMS
DI 25020.010(B)(1). Nonetheless, the Court recognizes that the ALJ also did not discuss or
afford weight to Dr. Echevarria’s narrative in Section III, which the ALJ should consider as the
mental RFC assessment. Id. To the extent that Plaintiff may be understood to argue that the
ALJ failed to weigh Dr. Echevarria’s mental RFC assessment, the Court notes that remand for an
error is not required when application of the correct legal principles could only lead to the same
19
conclusion. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010). Here, Dr. Echevarria’s mental
RFC assessment (that Plaintiff retains the capacity to earn substantial gainful activity in a low
contact, low stress setting) is consistent with and supports the ALJ’s mental RFC determination
(that Plaintiff was limited to routine and repetitive tasks which do not require more than
occasional public contact). (T. 24-25.) Accordingly, remand is not required under the
circumstances.
For these reasons, the ALJ’s RFC determination was supported by substantial evidence,
and remand is not necessary on this basis.
B.
Whether the ALJ’s Credibility Assessment was Supported by Substantial
Evidence
After carefully considering the matter, the Court answers this question in the affirmative,
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 16, at 22-24 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
A plaintiff’s allegation of pain is “entitled to great weight where . . . it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009)
(quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ “is
not required to accept [a plaintiff’s] subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff’s] testimony in light of the other evidence
in the record.” Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15
2012). “When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s
disbelief.” Rockwood, 614 F. Supp. 2d at 270.
20
“The ALJ’s credibility assessment must be based on a two step analysis of pertinent
evidence in the record. First, the ALJ must determine whether the claimant has medically
determinable impairments, which could reasonably be expected to produce the pain or other
symptoms alleged.” Id., at 271 (citing SSR 96-7p, 1996 WL 374186, at *2 [July 2, 1996].)
Second, if medically determinable impairments are shown, then the
ALJ must evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the
claimant’s capacity to work. Because an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, an 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. 2d at 271 (citing §§ 404.1529[c][3], 416.929[c][3]). Further, “[i]t is the
role of the Commissioner, not the reviewing court, ‘to resolve evidentiary conflicts and to
appraise the credibility of witnesses,’ including with respect to the severity of a claimant’s
symptoms.” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (quoting Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 642 [2d Cir. 1983]).
Here, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that her statements regarding the
intensity, persistence and limiting effects of her symptoms are not entirely credible. (T. 26.)
In making this determination, the ALJ noted that Plaintiff testified that she stopped working
because her employer would not let her continue working the first shift, which she was then
actually working. (Id.) The ALJ found that “this suggests that she stopped working not due to
21
an inability to do the actual work, but rather because she did not feel she could work a different
shift.” Plaintiff argues that this finding mischaracterized the record because evidence indicated
that Plaintiff could not work the later shift because her arms hurt more in the evening. (Dkt. No.
15, at 20-21 [Pl.’s Mem. of Law].)
The Court notes that the ALJ determined that Plaintiff could not perform her past work.
(T. 29.) Nonetheless, the ALJ properly considered that Plaintiff did not stop working because
her symptoms prevented her from performing any work. (T. 26.) Further, the ALJ did not rely
on this one factor alone in assessing Plaintiff’s credibility. (T. 27.) The ALJ stated that “no
single factor mentioned here is alone conclusive on the issue to be determined, but when viewed
in combination and in conjunction with the medical history and examination findings they
suggest that Ms. Fiore is not as limited as she claims.” (Id.) Throughout the decision, the ALJ
articulated additional inconsistencies that he considered in assessing the allegations of Plaintiff’s
symptoms, and in determining that Plaintiff is not as limited as alleged. (T. 21-30.)
First, the ALJ considered medical evidence that was inconsistent with Plaintiff’s
statements regarding her alleged symptoms and limitations. (T. 21-29.) The ALJ noted that, at
the hearing and in written statements, Plaintiff stated that she has difficulty with fine
manipulation and buttoning items due to hand pain, and drops things. (T. 27.) However, during
a consultative examination in August 2012, Dr. Tabb observed that Plaintiff had no deficits in
fine motor activity of the hands and had full grip strength in her hands bilaterally. (T. 27-28.)
Dr. Tabb further observed that Plaintiff’s dexterity was intact and she and was able to zip,
button, tie, and use a Velcro fastener. (T. 27-28, 301.)
Second, the ALJ considered the measures that Plaintiff took to relieve her symptoms,
including medication taken. (T. 21-29.) For example, the ALJ noted that Plaintiff reported
22
partial relief from her neck pain from a steroid injection. (T. 28.) The ALJ further noted that
Plaintiff testified that she takes prednisone (for pain), topiramate (for headaches) and wellbutrin
(for depression). (T. 27.) Psychiatrist Dr. Omidian’s treatment records noted that Plaintiff was
benefitting from taking wellbutrin. (T. 359.)
Third, the ALJ considered Plaintiff’s activities of daily living that were inconsistent with
her allegations of disabling symptoms. (T. 21-29.) The ALJ noted that Plaintiff reported that
she shops for clothing and food, cooks occasionally, and drives approximately two to three times
a week to doctor appointments and to pick up or drop off her six-year-old daughter. (T. 22.)
The ALJ noted that Plaintiff cares for her children and reads to them, watches her daughter play
in the yard, watches her son’s baseball games, and watches her daughter’s dance class one or
two times a week. (T. 22-23.) The ALJ further noted that Plaintiff goes outside on a daily basis,
speaks to her mother on the telephone frequently, socializes with her husband and children, and
goes out to eat with her husband approximately once a month. (Id.)
Accordingly, the Court finds that the ALJ’s credibility assessment is supported by
substantial evidence. When the evidence of record “permits us to glean the rationale of an ALJ’s
decision, we do not require that he have mentioned every item of testimony presented to him or
have explained why he considered particular evidence unpersuasive or insufficient to lead him to
a conclusion of disability.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Here, the
ALJ complied with the Regulations and articulated the inconsistencies he considered in
discrediting Plaintiff’s allegations of disabling impairments.
For these reasons, the ALJ’s credibility analysis was supported by substantial evidence,
and remand is not necessary on this basis.
23
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 15) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 16) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: July 5, 2016
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?