Sharp v. Colvin
DECISION AND ORDER denying # 14 Plaintiff's motion for judgment on the pleadings; and granting # 15 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 1/5/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LEROY EUGENE SHARP, III,
CAROLYN W. COLVIN
Acting Commissioner of Social Security,
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
JASON P. PECK, ESQ.
Special Assistant U.S. Attorney
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Leroy Eugene Sharp,
III, (“Plaintiff”) against Carolyn W. Colvin, the Acting 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. 14, 15.) For the reasons set
forth below, Plaintiff’s motion is denied and Defendant’s motion is granted.
Plaintiff was born in 1988. (Tr. 190.) The highest level of education that he achieved
was completing his GED in 2004. (Tr. 195.) Plaintiff has never worked and, therefore, does not
have an employment history. (Id.) Generally, Plaintiff’s alleged disability consists of a head
injury that resulted in a fractured skull after an automobile accident, deafness in his left ear,
seizures, headaches, memory problems, and anger issues. (Id.) Plaintiff’s alleged disability
onset date is November 1, 2006. (Tr. 190.)
On September 30, 2010, Plaintiff applied for Child’s Insurance Benefits and
Supplemental Security Income. (Tr. 169-176, 181-189.) Plaintiff’s application was initially
denied on January 1, 2011, after which he timely requested a hearing before an Administrative
Law Judge (“the ALJ”). (Tr. 90-107.) On November 21, 2011, Plaintiff appeared before the
ALJ, Bruce S. Fein. (Tr. 48-79.) On March 21, 2012, the ALJ issued a written decision finding
Plaintiff not disabled under the Social Security Act. (Tr. 19-34.) On September 5, 2013, the
Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the final
decision of the Commissioner. (Tr. 1-6.) Thereafter, Plaintiff timely sought judicial review in
this Court and, on April 1, 2014, U.S. District Court Judge Frederick J. Scullin reversed the
ALJ’s decision and remanded the case to the Commissioner for further proceedings. (Tr. 566570.)
On July 23, 2015, Plaintiff appeared before the ALJ for a second hearing. (Tr. 491-529.)
On September 15, 2015, the ALJ issued a written decision that was once again unfavorable to
Plaintiff. (Tr. 467-490.) The ALJ’s decision became the final decision of the Commissioner on
the 61st day after the decision was rendered. (Tr. 468.) Thereafter, Plaintiff timely sought
judicial review in this Court.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (Tr. 473-480.) First, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since November 1, 2006, his alleged onset date. (Tr. 473.) Second,
the ALJ found that Plaintiff had the following two severe impairments: (1) status post traumatic
brain injury and craniotomy with encephalomalcia, and (2) depressive disorder. (Tr. 473.) Third,
the ALJ found that Plaintiff’s impairments do not meet or medically equal one of the listed
impairments located in 20 C.F.R. Part 404, Subpart P, Appendix, 1. (Tr. 473-75.) In so doing,
the ALJ considered the listings in Sections 11.02, 12.02, and 12.04 (the “Listings”) and the
criteria in Paragraphs B and C. (Id.) Fourth, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform medium work with the following limitations:
[Plaintiff] should never climb ropes, ladders, or scaffolds; should
avoid concentrated exposure to excessive vibration, operational
control of moving machinery, unprotected heights, and exposure to
hazardous machinery; and is limited to simple, routine and
repetitive tasks in a low stress work setting defined as only
occasional decision-making, occasional changes in a work setting,
occasional judgment required, and occasional interaction with coworkers, supervisors, and/or the public. The claimant has no other
exertional or non-exertional limitations.
(Tr. 475-79.) Fifth, the ALJ found that Plaintiff does not have past relevant work. (Tr. 476.)
Sixth, and finally, the ALJ determined that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform, considering his age, education, work experience,
and RFC. (Tr. 480.)
THE PARTIES’ BRIEFINGS
Generally, Plaintiff makes the following two arguments in support of his motion for
judgment on the pleadings.
First, Plaintiff argues that the ALJ did not adhere to the treating physician rule when he
failed to accord proper weight to the opinion of Dr. Glenn Thibault, M.D., because, despite some
benign findings on Plaintiff’s mental status examinations, the record supports Dr. Thibault’s
assessment of (a) poor memory and concentration, and (b) severely deficient social skills and
judgment, resulting in the work-related limitations contained in Dr. Thibault’s opinion. (Dkt. No.
14, at 19-21 [Pl.’s Mem. of Law].) Specifically, Plaintiff argues that the following record
evidence supports the assessed limitations contained in Dr. Thibault’s opinion: (a) Plaintiff’s
Global Assessment Functioning (“GAF”)1 score of 41; (b) Dr. Dennis Noia’s consultative
examination findings that Plaintiff’s recent and remote memory skills are moderately impaired,
he was unable to recall any objects after five minutes, and could restate five digits forward and
two backward; (c) Dr. Michael Giglio’s treating source opinion that Plaintiff suffers from
impulsiveness and anger issues as a result of his traumatic brain injury; (d) Dr. Changsoo Hahm’s
treating source opinion that Plaintiff suffers from mental problems as a result of his brain injury,
including depression, irritability, behavior extremes, and difficulty with stress; (e) Dr. Rebecca
“GAF is a scale that indicates a clinician’s overall opinion of an individual’s
psychological, social, and occupational functioning.” Marvin v. Colvin, 12-CV-1779, 2014 WL
1293509, at *2 (N.D.N.Y. Marc. 31, 2014) (Sharpe, C.J.). “GAF scores of forty-one to fifty
indicate that the individual has serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” Marvin, 2014 WL 1293509,
at *2 (internal quotation marks omitted).
Fisher’s treatment notes documenting that Plaintiff was hostile, uncooperative, and had poor
social skills, memory, insight, and judgment, which may significantly interfere with his ability to
function on a daily basis; (f) an encounter between Plaintiff and Dr. Lynn Miller during an
examination in which Plaintiff acted erratic and threatening, resulting in Dr. Miller’s office
calling the police; (g) Plaintiff’s admission that he suffers from an addiction to opiates after being
treated with them for severe pain following his accident; and (h) Dr. Thibault’s treatment notes
documenting Plaintiff’s bizarre thoughts and instability, including his statements that he believes
in aliens and that he believed Pope Francis would be announcing that aliens exist on Earth and
that they have been present for thousands of years. (Id.)
Second, and finally, Plaintiff argues that the ALJ erred at Step Five by failing to
incorporate the limitations opined by Dr. Thibault into the hypothetical questions posed to the
vocational expert (“VE”). (Id. at 21-22.) Accordingly, Plaintiff argues that the ALJ’s Step Five
finding is not supported by substantial evidence. (Id.)
Generally, Defendant makes the following two arguments in opposition to Plaintiff’s
motion for judgment on the pleadings and in support of her own such motion.
First, Defendant argues that the ALJ did not traverse the treating physician rule and
properly assigned “little weight” to Dr. Thibault’s opinion for the following six reasons: (1) GAF
scores are not dispositive in determining the severity of a claimant’s mental impairments and, in
any event, Plaintiff’s GAF score is inconsistent with the record medical evidence as a whole; (2)
Dr. Noia’s opinion regarding Plaintiff’s vocational abilities is consistent with the ALJ’s RFC
determination; (3) although Dr. Giglio opined that Plaintiff suffered from impulsiveness and
anger issues, she refused to comment on Plaintiff’s work-related limitations caused by these
issues other than to note that it is unlikely that Plaintiff would perform well in a customer service
position, which the ALJ accounted for in his RFC; (4) Dr. Hahm noted that Plaintiff’s seizures
are well controlled and recommended that Plaintiff perform low-stress work, which is consistent
with the ALJ’s RFC finding; (5) Dr. Fisher’s opinion that Plaintiff has a marked limitation in his
ability to relate adequately to others is inconsistent with the record evidence demonstrating that
he interacted well with most medical staff and his own reports that he is able to engage in many
social activities, including maintaining a relationship with his girlfriend, talking with others
daily, attending group meetings, caring for his mother, playing poker, playing basketball, going
to the movies, writing and recording music, and shopping; and (6) Dr. Thibault’s assessed
limitations are inconsistent with the level of Plaintiff’s activities noted above, especially when he
is not abusing opiates, and the fact that Plaintiff has worked under the table as a mason, which
does not enhance his credibility. (Dkt. No. 15, at 10-16 [Def.’s Mem. of Law].)
Second, Defendant argues that, for the reasons discussed above, it was proper for the ALJ
to accord little weight to Dr. Thibault’s opinion and, therefore, it was appropriate not to
incorporate Dr. Thibault’s assessed limitations in the hypothetical question posed to the VE.
(Id. at 16.) Accordingly, Defendant argues that, because substantial evidence supports the ALJ’s
RFC determination, the ALJ properly relied on the VE’s responses to the hypothetical questions
that tracked his RFC finding. (Id.)
RELEVANT LEGAL STANDARD
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 the determination 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 (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).
“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).
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
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).
Whether the ALJ Violated the Treating Physician Rule
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Defendant in her memorandum of law. (Dkt. No. 15, at 8-16 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
The opinion of a treating source will be given controlling weight if it “is well supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. §§ 416.927(c)(2), 404.1527(c)(2);
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
The following factors must be considered by the ALJ when deciding how much weight
the opinion should receive, even if the treating source is not given controlling weight: “(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; and
(iv) whether the opinion is from a specialist.” 20 C.F.R. §§ 416.927(c)(2)(i)-(iv), 404.1527(c)(1)(5). “Although the ALJ is required to explicitly consider all of the factors, the ALJ is not
required to explicitly ‘address or recite’ each factor in his decision.” Reyes v. Colvin, 13-CV4683, 2015 WL 337483, at *16 (S.D.N.Y. Jan. 26, 2015); see also Marquez v. Colvin, 12-CV6819, 2013 WL 5568718, at *12 (S.D.N.Y. Oct. 9, 2013) (“Although the ALJ did not explicitly
recite the factors, his decision nonetheless adequately considered each factor.”). “If it is unclear
whether the ALJ explicitly considered all of the factors, the court may search the record to assure
that the treating physician rule has not been traversed, but only when the ALJ gives good enough
reasons to allow the court to engage in such an inquiry.” Reyes, 2015 WL 337483, at *16 (citing
Halloran v. Barnhart, 362 F.3d 28, 32 [2d Cir. 2004]). Finally, the ALJ is also required to set
forth his reasons for the weight he assigns to the treating physician’s opinion. Id.; see also SSR
96-2p, 1996 WL 374188 (July 2, 1996); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)
(quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 [2d Cir. 1998]). “Failure to provide
‘good reasons’ for not crediting the opinion of a claimant’s treating physician is a ground for
remand.” Reyes, 2015 WL 337483, at *14.
The Court agrees with Defendant that the ALJ did not traverse the treating physician rule
and finds that his RFC determination is supported by substantial evidence. As an initial matter,
Defendant correctly argues that a GAF score is but one piece of evidence to be considered and is
not dispositive, in and of itself, of a disability determination. See Carrigan v. Astrue, 10-CV0303, 2011 WL 4372651, at *6 (D. Vt. Aug. 26, 2011) (“[Plaintiff] claims that the ALJ’s failure
to discuss the GAF scores of 50 or below was error, but, as this Court has stated before, GAF
scores–in and of themselves–do not demonstrate that an impairment significantly interferes with
a claimant’s ability to work.”); Rivera v. Astrue, 10-CV-1035, 2014 WL 5419529, at *10 (D.
Conn. Oct. 22, 2014) (“[A] GAF score of 50 does not, ipso facto, direct a finding of disability, or
even a restrictive assessment of one’s functional capacity.”). Therefore, the fact that Plaintiff’s
GAF score may support Dr. Thibault’s opinion does not automatically mean that his opinion is
entitled to greater weight.
Next, Plaintiff argues that the findings and opinions of Drs. Noia, Giglio, Hahm, and
Fisher are consistent with Dr. Thibault’s opinion. (Dkt. No. 14, at 20 [Pl.’s Mem. of Law].)
However, Dr. Noia’s assessed limitations were not as severe as those assessed by Dr. Thibault.
Specifically, Dr. Noia opined as follows:
Vocationally, the claimant appears to be capable of understanding
and following simple instructions and directions. He appears to be
capable of performing simple and some complex tasks with
supervision and independently. He appears to be capable of
maintaining attention and concentration for tasks. He can regularly
attend to a routine and maintain a schedule. He appears to be
capable of learning new tasks. He appears to be capable of making
appropriate decisions. He appears to be able to relate to and
interact moderately well with others. He appears to be having
some difficulty dealing with stress.
(Tr. 281-82.) These findings support the ALJ’s RFC determination. Similarly, while Dr. Giglio
was hesitant to give a full assessment regarding Plaintiff’s work limitations (due to certain issues
that he felt would be better addressed by specialists outside of his area of expertise), the ALJ
incorporated Dr. Giglio’s opinion that Plaintiff should not work in a customer service related
position into his RFC. (Tr. 365.) Finally, with respect to the remaining opinion evidence cited
by Plaintiff, the Court agrees with Defendant that the opinions of Drs. Fisher and Hahm support
the ALJ’s RFC determination for the reasons stated by Defendant in her memorandum of law.
(Dkt. NO. 15, at 13-14 [Def.’s Mem. of Law].) The Court further notes that the ALJ properly
evaluated the other record evidence when according Dr. Thibault’s opinion little weight,
including Plaintiff’s activities of daily living and his credibility. (Tr. 476-78.)
Whether the ALJ’s Step Five Determination Is Supported by Substantial
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Defendant in her memorandum of law. (Dkt. No. 15, at 16-17 [Def.’s Mem.
of Law].) More specifically, because the Court finds that the ALJ’s RFC determination is
supported by substantial evidence, the ALJ did not commit reversible error by omitting Dr.
Thibault’s assessed limitations from the hypothetical questions posed to the VE.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: January 5, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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