Brown v. Colvin
Filing
34
DECISION AND ORDER denying # 28 Plaintiff's motion for judgment on the pleadings; and granting # 32 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is affirmed. Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 5/26/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MARK S. BROWN,
Plaintiff,
v.
5:15-CV-1506
(GTS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
IACONIS LAW FIRM
Counsel for Plaintiff
501 Genesee Street
Chittenango, NY 13037
PAUL F. IACONIS, 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
LAUREN E. MYERS, 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 Mark S. Brown
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. § 405(g), are Plaintiff’s motion for judgment on the pleadings and
Defendant’s motion for judgment on the pleadings. (Dkt. No. 28, 32.) 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. The Commissioner’s decision denying Plaintiff’s
disability benefits is affirmed, and Plaintiff’s Complaint is dismissed.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born in 1964, making him 46 years old at the alleged onset date and 50
years old at the date of the final agency decision. Plaintiff has a ninth or tenth grade education
(both of which constitute a limited education under the applicable regulations), and past work as
a flagger, forklift operator, and machine operator for a wire manufacturer. Plaintiff was insured
for disability benefits under Title II until December 31, 2013. Generally, Plaintiff alleges
disability consisting of lower back problems, neck problems, and depression.
B.
Procedural History
Plaintiff applied for Title II Disability Insurance Benefits on July 8, 2010. Plaintiff
alleged disability beginning November 19, 2009. Plaintiff’s application was initially denied on
September 14, 2010, after which he timely requested a hearing before an Administrative Law
Judge (“ALJ”). Plaintiff appeared at an initial hearing before ALJ Elizabeth W. Koennecke on
November 15, 2011, as well as at subsequent hearings on January 26, 2012, and April 30, 2012.
On May 16, 2012, the ALJ issued a written decision finding Plaintiff not disabled under the
Social Security Act. (T. 195-211.) On April 3, 2013, the Appeals Council remanded for further
consideration of the opinion evidence, Plaintiff’s mental impairments, the residual functional
capacity, and whether there was any other work in the national economy that Plaintiff remained
able to perform. (T. 212-15.) Plaintiff amended his alleged onset date to June 14, 2010, and
appeared at hearings before the ALJ on September 25, 2013, and December 19, 2013. On March
27, 2014, the ALJ again issued an unfavorable written decision finding Plaintiff not disabled
under the Social Security Act. (T. 18-49.) On October 22, 2015, the Appeals Council denied
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Plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner.
(T. 1-4.)
C.
The ALJ’s Decision
Generally, in her decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 13-21.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since June 14, 2010, the amended alleged onset date. (T. 22.) Second, the ALJ
found that Plaintiff’s mild degenerative disc disease of the lumbar and cervical spine, mood
disorder, and substance-use disorder are severe impairments, while his hypertension,
hyperlipidemia, chronic obstructive pulmonary disease, gastroesophageal reflux disease,
overactive bladder, obesity, traumatic brain injury, headaches, and visual disturbances are not
severe impairments. (T. 22-23.) Third, the ALJ found that Plaintiff’s severe impairments do not
meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”). (T. 26.) More specifically, the ALJ considered Listing 1.04 (spinal impairments),
11.00 (neurological impairments), 14.09 (inflammatory arthritis), 12.02 (cognitive impairments),
12.04 (mood disorders), 12.05 (intellectual disorders), 12.06 (anxiety-related disorders), and
12.09 (substance addiction disorders). (T. 26-29.) Fourth, the ALJ found that Plaintiff has the
residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. 404.1567(b), except that the
claimant could lift, carry, push, or pull up to 25 pounds occasionally
and 10 pounds frequently; could occasionally bend at the waist; and
could alternate between sitting and standing throughout the
workday, but was otherwise capable of standing or walking, in
combination, for 6 hours total in an 8-hour workday, and sitting for
6 hours total in an 8-hour workday. Additionally, the claimant
retained the ability to understand and follow simple instructions and
directions; perform simple tasks with supervision and
independently; maintain attention and concentration for simple
tasks; regularly attend to a routine and maintain a schedule; relate to
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and interact appropriately with others to the extent necessary to
carry out simple tasks; handle reasonable levels of simple, repetitive
work-related stress in that he can make occasional decisions directly
related to the performance of simple tasks in a position with
consistent job duties that does not require the claimant to supervise
or manage the work of others; and required rare contact with the
general public.
(T. 29.) Fifth, the ALJ found that Plaintiff is unable to perform his past work based on the
restrictions in the RFC. (T. 46.) Sixth, and finally, the ALJ determined that there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform, including
housekeeping cleaner, automatic car-wash attendant, and coin-machine collector. (T. 47-48.)
D.
The Parties’ Briefings on Their Cross-Motions
Generally, Plaintiff asserts five arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ relied on selective evidence showing lesser
impairment while ignoring other evidence that showed greater impairment. (Dkt. No. 28, at 1920 [Pl. Mem. of Law].) Second, Plaintiff argues that the ALJ committed error in failing to find
that his traumatic brain injury and left knee impairment were severe impairments. (Dkt. No. 28,
at 20-22 [Pl. Mem. of Law].) Relatedly, Plaintiff also argues that the ALJ failed to include
limitations resulting from these impairments in the RFC. (Dkt. No. 28, at 22-23 [Pl. Mem. of
Law].) Third, Plaintiff argues that the ALJ arbitrarily substituted her own lay opinion for those
of Plaintiff’s medical practitioners. (Dkt. No. 28, at 23-31 [Pl. Mem. of Law].) Similarly,
Plaintiff argues that the ALJ erred in the weight she afforded to the treating and examining
sources, including the opinions from Nurse Practitioner Behling, Dr. Martin, and Dr. Finger.
(Dkt. No. 28, at 31-34 [Pl. Mem. of Law].) Plaintiff also argues that the ALJ erred in her
explanation for the weight afforded to the opinion of the non-examining State Agency
psychological consultant. (Dkt. No. 28, at 34 [Pl. Mem. of Law].) Fourth, Plaintiff argues that
4
the ALJ erred in applying the appropriate factors for assessing Plaintiff’s credibility. (Dkt. No.
28, at 34-39 [Pl. Mem. of Law].) Fifth, and last, Plaintiff argues that the ALJ failed to develop
the record by failing to re-contact Plaintiff’s treating physicians. (Dkt. No. 28, at 39- [Pl. Mem.
of Law].)
Generally, Defendant asserts five arguments in support of her motion for judgment on the
pleadings. First, in response to Plaintiff’s second argument, Defendant argues that the ALJ
correctly determined that Plaintiff’s traumatic brain injury and knee impairment were not severe
impairments, and asserting that, even though the ALJ found these impairments non-severe, she
still considered all medically determinable impairments in her analysis of the RFC. (Dkt. No.
32, at 5-8 [Def. Mem. of Law].) Second, in response to Plaintiff’s first and third arguments,
Defendant argues that the RFC determination was supported by substantial evidence. (Dkt. No.
32, at 8-17 [Def. Mem. of Law].) More specifically, Defendant argues that the ALJ properly
considered all the evidence in the record, appropriately weighed the opinion evidence, and
formulated a decision based on the record as a whole. (Id.) Third, in response to Plaintiff’s
fourth argument, Defendant argues the ALJ’s credibility determination was supported by
substantial evidence, asserting that the ALJ properly relied on inconsistencies in Plaintiff’s
reports throughout the record, his course of treatment and medication compliance, and receipt of
unemployment benefits during the period Plaintiff alleged he was disabled, as well as that the
ALJ properly rejected the testimony of Plaintiff’s family due to inconsistencies and a lack of
corroboration with the record. (Dkt. No. 32, at 17-19 [Def. Mem. of Law].) Fourth, in response
to Plaintiff’s fifth argument, Defendant argues that the record was appropriately developed and
there was no legal requirement to re-contact any medical source for clarification or further
information. (Dkt. No. 32, at 19-20 [Def. Mem. of Law].) Fifth, and last, Defendant argues that
5
the ALJ’s Step Five conclusion that there was a significant number of jobs Plaintiff could
perform was supported by substantial evidence. (Dkt. No. 32, at 20-21 [Def. Mem. of Law].)
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).
“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
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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 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
A.
Whether the ALJ Improperly Ignored Evidence in the Record When Making
Her Findings
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. 32, at 8-10 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
This Court has recognized that “the ALJ must consider all evidence in the record” and
“cannot ignore evidence supporting Plaintiff’s claim while at the same time accepting evidence
that supports his decision.” Ryan v. Astrue, 650 F.Supp.2d 207, 216 (N.D.N.Y. 2009) (citing
Sutherland v. Barnhart, 322 F.Supp.2d 282, 289 (E.D.N.Y. 2004); Armstead ex. rel. Villanueva
v. Astrue, No. 1:04-CV-0503, 2008 WL 4517813, at *18 (N.D.N.Y. Sept. 30, 2008)). However,
“‘an ALJ is not required to discuss in depth every piece of evidence contained in the record, so
long as the evidence of record permits the Court to glean the rationale of an ALJ’s decision.’”
Coleman v. Comm’r of Soc. Sec., No. 5:14-CV-1139, 2015 WL 9685548, at *5 (N.D.N.Y. Dec.
11, 2015) (Report and Recommendation), adopted by 2016 WL 109994 (N.D.N.Y. Jan. 8, 2016)
(quoting LaRock ex. rel. M.K. v. Astrue, No. 10-CV-1019, 2011 WL 1882292, at *7 (N.D.N.Y.
Apr. 29, 2011)).
In arguing that the ALJ improperly ignored evidence, Plaintiff points to a few instances
from the record that were contrary to the ALJ’s findings, such as evidence purportedly
establishing that Dr. Finger’s release to full duty work was in the context of his work as a flagger
(in which job Plaintiff reported lifting 10 pounds), that the ALJ ignored evidence that Plaintiff’s
work as a flagger was performed with “marked accommodations,” that chiropractic and physical
therapy treatments had been unsuccessful and examinations showed progression of Plaintiff’s
impairments after Dr. Finger opined he had reached maximum medical improvement, that
Plaintiff’s medications did not allow him to perform more than minimal activities such as short
walks and minimal part-time work, and that some examinations showed abnormal physical
findings. (Dkt. No. 28, at 19-20 [Pl. Mem. of Law].)
Plaintiff’s argument that the ALJ improperly ignored evidence favorable to Plaintiff
when formulating the RFC assessment is not availing for a number of reasons. First, the
majority of Plaintiff’s issues with the ALJ’s discussion of the evidence relate to the alleged
failure to consider that Plaintiff’s work as a flagger had been (according to Plaintiff) significantly
accommodated. Yet, Plaintiff reported leaving this job not because his impairments prevented
him from continuing to do it, but rather that he was laid off when the company did not have
enough work for him to do. (T. 35, 438.) Nor is there any evidence other than Plaintiff’s
testimony that showed this work was accommodated to such a significant degree that it would
undermine the ALJ’s findings. Additionally, although the ALJ did rely in part on opinions from
treating physician Dr. Finger from as far back as 2005, Plaintiff is alleging he became disabled as
of June 14, 2010. (T. 19, 168.) Whether Plaintiff’s work as a flagger prior to that date was
accommodated to any degree is of little importance to the issue of whether he was disabled
between the alleged onset date of June 14, 2010, and the date last insured of December 31, 2013.
Additionally, Plaintiff’s inability to perform work as a flagger specifically would not necessitate
a finding of disability so long as the ALJ could show there were other jobs Plaintiff remained
9
able to perform, something which the ALJ did in her Step Five finding. (T. 46-47.) See also 20
C.F.R. § 404.1520(a)(4)(v).
Second, the ALJ’s written decision indicates that she did not engage in an improperly
selective review of the evidence. The ALJ’s 32-page decision contains detailed recitations and
discussions of the evidence that indicate she assessed the whole record, whether or not she
specifically highlighted the portions of the evidence that were more favorable to her findings.
(T. 18-49.) As noted above, the ALJ is not required to discuss every piece of evidence before
her. Coleman, 2015 WL 9685548, at *5; see also Barringer v. Comm’r, 358 F.Supp.2d 67, 7879 (N.D.N.Y. 2005) (noting that an ALJ’s failure to cite specific evidence does not mean it was
not considered). The ALJ’s discussion makes it apparent that, although she focused her
discussion more heavily on the evidence that supported her findings, she did consider all the
evidence before her and reconciled inconsistencies between different treatment notes when
making her findings. See Bliss v. Colvin, No. 3:13-CV-1086, 2015 WL 457643, at *7 (N.D.N.Y.
Feb. 3, 2015) (“It is the ALJ’s sole responsibility to weigh all medical evidence and resolve
material conflicts where sufficient evidence provides for such.”); White v. Colvin, No. 6:13-CV0084, 2014 WL 1311993, at *7 (N.D.N.Y. Mar. 31, 2014) (“[I]t is the ALJ’s job to properly
evaluate the evidence and reconcile any apparent inconsistencies.”). Because this Court is able
to glean the ALJ’s rationale and the basis for her findings from the decision, the ALJ did not
commit reversible error in failing to explicitly discuss the evidence Plaintiff points to in his brief.
For all these reasons, the ALJ did not improperly ignore evidence favorable to Plaintiff,
and remand is not required on this basis.
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B.
Whether the ALJ Erred at Step Two in Failing to Find Plaintiff’s Traumatic
Brain Injury and Knee Impairment to Be Severe Impairments
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. 32, at 5-8 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
At Step Two of the sequential evaluation process, the ALJ must determine whether the
claimant has a severe impairment that significantly limits his physical or mental abilities to do
basic work activities. 20 C.F.R. § 404.1520(c). Basic work activities include walking, standing,
sitting, lifting, carrying, pushing, pulling, reaching, handling, seeing, hearing, speaking,
understanding, remembering and carrying out simple instructions, using judgment, and
responding appropriately to supervision, co-workers and usual work situations. Taylor v. Astrue,
32 F.Supp.3d 253, 265 (N.D.N.Y. 2012) (citing Gibbs v. Astrue, No. 07-CV-10563, 2008 WL
2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(1)-(5)). “Although the
Second Circuit has held that this step is limited to ‘screening out de minimis claims’ [], the ‘mere
presence of a disease or impairment, or establishing that a person has been diagnosed or treated
for a disease or impairment’ is not, by itself, sufficient to render a condition severe.” Taylor, 32
F.Supp.3d at 265 (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995); Colvin v.
Shalala, 895 F.Supp. 50, 53 (S.D.N.Y. 1995)). Overall, the claimant retains the burden of
presenting evidence to establish severity. Taylor, 32 F.Supp.3d at 265 (citing Miller v. Comm’r
of Soc. Sec., No. 7:05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16, 2008)).
This Court has also indicated that the failure to find a specific impairment severe at Step
Two is harmless where the ALJ concludes there is at least one other severe impairment, the ALJ
continues with the sequential evaluation, and the ALJ provides explanation showing he
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adequately considered the evidence related to the impairment that is ultimately found non-severe.
Fuimo v. Colvin, 948 F.Supp.2d 260, 269-70 (N.D.N.Y. 2013) (citing Dillingham v. Astrue, No.
09-CV-0236, 2010 WL 3909630 (N.D.N.Y. Aug. 24, 2010) (Report and Recommendation),
adopted by 2010 WL 3893906 (N.D.N.Y. Sept. 30, 2010)); see also Reices-Colon v. Astrue, 523
F.App’x 796, 798 (2d Cir. 2013) (finding that any error in failing to find plaintiff’s anxiety and
panic disorder severe at Step Two would be harmless because the ALJ found other severe
impairments present, continued through the sequential evaluation process, and specifically
considered plaintiff’s anxiety and panic attacks at those subsequent steps).
Plaintiff’s arguments regarding his knee impairment are unavailing. The record does not
contain evidence that Plaintiff sought treatment for this impairment on any sort of regular basis,
nor do the treatment notes show a concrete diagnosis of a specific knee impairment or any
evidence of functional limitations resulting from any such impairment. An x-ray of the knee
taken on October 9, 2013, showed unremarkable osseous structure with no focal lesions or acute
fracture, well-preserved joint spaces with no effusion, and normal soft tissues. (T. 1048.) The
ALJ’s finding that Plaintiff’s reported knee symptoms did not constitute a medically
determinable impairment, let alone a severe impairment causing functional limitations that would
need to be accounted for in the RFC, is supported by substantial evidence.
Plaintiff’s traumatic brain injury presents a more complex situation, because he did seek
treatment for that impairment in 2012 and 2013. The record, however, contains conflicting
evidence as to the severity of the functional limitations that this impairment imposed. Plaintiff
reported experiencing significant deficits in memory and concentration as a result of his
traumatic brain injury. (T. 104-05, 123, 175-76, 759, 1095-96, 1101, 1109.) However, treatment
providers (including Nurse Practitioner Behling) generally noted fair or good attention and
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concentration on examinations. (T. 760, 809, 1000, 998, 1002, 1004, 1006, 1055-56, 1058,
1060, 1064, 1066, 1068, 1072, 1074, 1076, 1078, 1081, 1083, 1085, 1087, 1089, 1170, 1176,
1178.) On other occasions, his memory was noted to be intact or otherwise not significantly
impaired. (T. 760, 785, 790, 1101, 1110-11, 1121, 1170.) In fact, the notes from Plaintiff’s
regular mental health treatment as a whole indicate that, although Plaintiff continued to
experience symptoms such as frustration, depressed mood, and abnormal affect, these symptoms
(particularly his anger) had visibly improved with medication and he was fairly stable. (T. 785,
805-06, 809, 998, 1000, 1002, 1004, 1006, 1055-56, 1058, 1060, 1062, 1066, 1068, 1070, 1072,
1074, 1076, 1078, 1081, 1083, 1087, 1089, 1176, 1178.)
In addition, the results of examinations focusing more closely on Plaintiff’s traumatic
brain injury provide a mixed picture of Plaintiff’s cognitive and mental functioning. A
concussion management psychological evaluation with Dr. Spinks on August 29, 2012, did
reveal symptoms including slow processing speed, variable attention, some impairment in his
comprehension of questions, and memory deficits; however, while Dr. Spinks did indicate that
the results of her evaluation were consistent with a traumatic brain injury of unknown severity,
she noted that “depression can also cause several symptoms that overlap with TBI symptoms”
and emphasized the importance of managing Plaintiff’s depression. (T. 1096-97.) On September
24, 2012, Dr. Spinks noted that, although Plaintiff displayed a depressed mood and generally flat
affect on examination, he “demonstrate[d] some logical thinking and good problem-solving
abilities” during the session; she recommended a neuropsychological assessment and a
consultation with a vocational rehabilitation counselor. (T. 1093-94.) On September 25, 2012,
Occupational Therapist Harris observed that, although Plaintiff reported impaired memory and
attention, he was able to remember two of three words after a delay and the third word when
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given a prompt. (T. 1101.) On November 6, 2012, Dr. Ward observed a slightly depressed
mood and a flat affect as well as that Plaintiff had scored 21/30 on the Mini Mental Status
Examination with difficulties in language with repetition of sentences and abstraction and
deficits in delayed recall and attention. (T. 1106-07.)
At a neuropsychological consultation on February 6, 2013, Dr. Bauer observed that
Plaintiff was appropriate during the whole exam despite reporting easy agitation, though he did
become too agitated to continue with the testing after completing 45 minutes. (T 1110-11.) Dr.
Bauer noted that Plaintiff scored 30/30 on the Mini Mental Status Examination and that the
results of the testing that was completed showed mildly impaired processing speed, mildly
impaired memory for complex visual information, and moderately impaired visual planning and
organization abilities; Dr. Bauer noted that Plaintiff did not complete the portions of the test
assessing memory. (Id.) On March 11, 2013, Occupational Therapist Walter observed that
Plaintiff had slow processing speed, though he was able to recall two of three words after a delay
and the remaining word when given a prompt. (T. 1121.) At a neurological consultation on
December 2, 2013, Dr. Shukri observed that Plaintiff was attentive and able to provide a wellorganized medical history, had an intact fund of knowledge and no difficulty with complex
instructions, and displayed intact recent and remote memory. (T. 1170.)
Although the evidence from when Plaintiff sought treatment in 2012 and 2013 showed
that Plaintiff experienced some symptoms as a result of his traumatic brain injury, assertions that
these symptoms would preclude work are undermined by the fact that Plaintiff’s head injury
occurred in 1997, after which time he continued to work making well above substantial gainful
activity levels for most years between 1997 and 2009. (T. 412-13.) Plaintiff’s ability to work for
more than 10 years after his traumatic brain injury supports to some extent the ALJ’s reliance on
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notations that there was a question as to whether Plaintiff’s cognitive symptoms were related to
his traumatic brain injury or depression. (T. 24, 1096-97.)
The evidence related to Plaintiff’s remote traumatic brain injury (recounted in detail
above) suggests that this impairment may have caused some degree of limitations on Plaintiff’s
work-related functioning. However, even if those limitations were more than minimal, any
failure by the ALJ to classify this impairment as a severe impairment at Step Two is harmless
error in the context of this case. The ALJ properly considered all the evidence and formulated
the RFC based on her assessment of that evidence and her resolution of the inconsistencies
between various treatment notes, including the evidence of Plaintiff’s traumatic brain injury.
Bliss, 2015 WL 457643, at *7; White, 2014 WL 1311993, at *7. Most importantly, Plaintiff has
not shown that the ALJ’s resolution of the conflicting evidence related to this impairment was
unreasonable, or that the mental limitations included in the RFC were not sufficient to account
for the functional impact of Plaintiff’s traumatic brain injury as shown by the treatment evidence
as a whole. Consequently, because the ALJ considered the evidence related to Plaintiff’s
traumatic brain injury and accounted for the range of mental and cognitive impairment
reasonably supported by the evidence in the record, any error to classify Plaintiff’s traumatic
brain injury as severe at Step Two was harmless and does not merit remand.
C.
Whether the RFC Assessment and the Weight Afforded to the Opinion
Evidence Were 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. 32, at 8-17 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
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The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§ 404.1527(c). “‘[T]he opinion of a claimant’s treating physician as to the nature and severity of
the impairment is given ‘controlling weight’ so long as 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.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, there are situations
where the treating physician’s opinion is not entitled to controlling weight, in which case the
ALJ must “explicitly consider, inter alia: (1) the frequency, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a specialist.’”
Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). After
considering these factors, “the ALJ must ‘comprehensively set forth [his] reasons for the weight
assigned to a treating physician’s opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d
at 129). “The failure to provide ‘good reasons for not crediting the opinion of a claimant’s
treating physician is a ground for remand.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d
at 129-30). The factors for considering opinions from non-treating medical sources are the same
as those for assessing treating sources, with the consideration of whether the source examined
the claimant or not replacing the consideration of the treatment relationship between the source
and the claimant. See 20 C.F.R. § 404.1527(c)(1)-(6). Additionally, when weighing opinions
from sources who are not considered “medically acceptable sources” 1 under the regulations, the
1
Medically acceptable sources are noted to include the following: licensed physicians;
licensed or certified psychologists; licensed optometrists; licensed podiatrists; and qualified
speech-language pathologists. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
16
ALJ must consider the same factors as used for evaluating opinions from medically acceptable
sources. Saxon v. Astrue, 781 F.Supp.2d 92, 104 (2011) (citing Canales v. Comm’r of Soc. Sec.,
698 F.Supp.2d 335, 344 (E.D.N.Y. 2010)); SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
The ALJ justified her rejection of much of the opinion evidence based on finding that
they were inconsistent with the severity of Plaintiff’s impairments shown in the treatment notes.
(T. 37-46.) This Court would like to point out that, although Plaintiff argues that the ALJ
ignored evidence and failed to appropriately assess the evidence, that is not the case here and
results from Plaintiff’s own misinterpretation of the medical evidence. Regarding Plaintiff’s
assertions that the ALJ ignored evidence, such claims have already been addressed above in Part
III.A of this Decision and Order. Regarding Plaintiff’s assertions that the ALJ failed to properly
assess the progression of Plaintiff’s impairments over time when determining that the various
opinions were inconsistent with the evidence, Plaintiff is mistaken. For example, Plaintiff
indicates that Dr. Finger had “strongly urged [Plaintiff] to look for a job of lesser exertion” based
on findings from an exam on February 26, 2009; however, review of this particular treatment
note does not indicate that Dr. Finger made any such statement. (T. 741; Dkt. No. 28, at 25 [Pl.
Mem. of Law].) Plaintiff also asserts that an MRI of Plaintiff’s cervical spine “revealed marked
degenerative changes” that were consistent with Dr. Finger’s prognosis that Plaintiff’s disability
was “moderate partial and [] likely to become permanent and progressive.” (Dkt. No. 28, at 26
[Pl. Mem. of Law].) However, review of the MRI study Plaintiff cites shows that this MRI
actually showed no more than mild-to-moderate narrowing of the spinal canal and canal stenosis.
(T. 814.) Plaintiff’s misinterpretation of the medical evidence weakens his argument that the
ALJ erred in finding that much of the opinion evidence inconsistent with the evidence in the
record.
17
Given the significant volume of opinion evidence in this case and the fact that Plaintiff
has both physical and mental impairments, matters related to the distinct assessment of the
physical and mental RFC findings will be discussed separately below.
1. Physical RFC and Opinions
The ALJ afforded some weight to the opinion of the New York State Worker’s
Compensation Board that Plaintiff was 50 percent disabled related to injuries from July 2005,
some weight to the “early-dated” opinions from treating physician Dr. Finger and Nurse
Practitioner Jacobson, little weight to the “later” opinions from Dr. Finger, and little weight to
the opinions from treating physician Dr. Martin. (T. 37-39.) These opinions will be discussed in
turn below. The ALJ also afforded little weight to assessments from various sources related to
Plaintiff’s traumatic brain injury; however, these will be discussed in connection in relation to
Plaintiff’s mental RFC given that the majority of Plaintiff’s complaints regarding that
impairment involved mental and cognitive limitations. (T. 40-41.)
a. Worker’s Compensation Rating
Plaintiff argues that the ALJ erred in affording weight to a New York State Worker’s
Compensation Board decision that found Plaintiff had a permanent partial disability rating of 50
percent, asserting that this rating was only in relation to injuries suffered in July 2005 and there
was no indication as to how such rating was determined. (Dkt. No. 28, at 20 [Pl. Mem. of Law].)
However, the ALJ’s explanations show that she did not rely heavily on this opinion. (T. 37.)
The ALJ afforded this rating only “some weight,” noting that such a determination was not
binding due the fact that it used different standards for determining disability than the Social
Security Administration applies and that the issue of disability is one reserved to the
Commissioner. (Id.) The ALJ noted, however, that a 50 percent partial disability rating was
18
“not inconsistent with the finding that the claimant is unable to perform very heavy, heavy, and
medium work activity, but retains the physical capacity to perform a range of light work.” (Id.)
Whether or not this specific rating accounted for all of Plaintiff’s impairments is inconsequential
because the ALJ formulated her findings based on all of the evidence (not just this opinion) and
her own explanation indicates that she did not heavily rely on this Worker’s Compensation
disability percentage, but instead found that it was not inconsistent with her findings based on the
other evidence. Consequently, the ALJ’s partial reliance on this opinion was not error and does
not undermine the validity of the RFC assessment.
b. Dr. Finger and Nurse Practitioner Jacobson
The ALJ afforded “some weight” to the earlier opinions from Dr. Finger and Nurse
Practitioner Jacobson that ranged from 2005 to 2010. (T. 37-38.) The ALJ noted that these
opinions showed somewhat greater limitations than she adopted, which explains why she did not
afford them greater weight. (T. 38.) The ALJ found that Dr. Finger’s treatment notes from that
time period did not show greater physical limitations. (Id.) Dr. Finger provided a number of
functional opinions prior to the amended alleged onset date of July 14, 2010. On September 29,
2005, Dr. Finger released Plaintiff to work with standing for no longer than two hours at one
time, the need to frequently reposition, lifting 20 pounds, and pushing and pulling 50 pounds.
(T. 706.) She reiterated a need to change positions at will with no prolonged sitting or standing
and no lifting greater than 20 pounds in October and December 2010; in December 2010, Dr.
Finger also indicated that he was able to stand for four hours at one time now rather than two
hours. (T. 708, 710.) On January 24, 2006, Dr. Finger released him to work in a “fully duty
capacity” due to his ability to perform his activities of daily living with the assistance of his pain
medications. (T. 712.) Dr. Finger reiterated limitations including the need to change positions at
19
will with no prolonged sitting or standing and the ability to lift approximately 20 pounds in
October and December 2007. (T. 727-28.) On April 28, 2008, Dr. Finger opined Plaintiff
needed to change positions at will with no prolonged sitting or standing, lifting no greater than
25 pounds, and infrequent bending or squatting. (T. 732.) On June 30, 2008, Dr. Finger advised
him against repetitive bending or lifting, lifting no more than 25 pounds, and reiterated the need
to change positions at will. (T. 734.) On October 30, 2008, Dr. Finger noted the need to change
positions at will and restricted him to lifting no greater than 25 pounds with infrequent bending
at the waist. (T. 739.) On December 12, 2008, Dr. Finger opined he should avoid prolonged
sitting or standing and lifting greater than 25 pounds. (T. 740.) On February 29, 2009, Dr.
Finger opined limited bending at the waist, lifting no more than 25 pounds, no prolonged
positions, and the need to change positions at will. (T. 741.) On July 12, 2010, which appears to
be the last instance of treatment with her office, Dr. Finger noted that Plaintiff had a “moderate
partial disability from a back standpoint.” (T. 757.)
Regarding the later opinions from Dr. Finger, the ALJ afforded these little weight
because she found them to be inconsistent with the objective medical evidence, including Dr.
Finger’s own examinations and the objective imaging reports. (T. 38-39.) These opinions
included a statement on May 22, 2009, that Plaintiff could not perform any lifting in addition to
similar limitations Dr. Finger had previously assessed, a statement on June 7, 2010, that Plaintiff
would be precluded from employment at that time due to a combination of his back impairment
and his “current mental state” (he had been admitted to the hospital for homicidal and suicidal
ideation the week previously), and a November 23, 2010, note in which Dr. Finger checked a
box indicating Plaintiff was “disabled from ‘substantial gainful activity’” though she indicated
20
that she would not complete a functional capacity questionnaire because it was against her
policy. (T. 744, 754, 816.)
The ALJ provided good reasons supported by substantial evidence for the weight she
afforded to the various opinions from Dr. Finger. See Reddick v. Comm’r of Soc. Sec., No. 5:15CV-0004, 2014 WL 1096178, at *4-5 (N.D.N.Y. Mar. 19, 2014) (finding that the ALJ did not err
in giving less than controlling weight to the physician’s opinions because they were inconsistent
with the substantial evidence of record). The ALJ correctly indicated that Dr. Finger’s
statements that Plaintiff was “disabled” or unable to perform substantial gainful activity, without
more, were opinions on issues that were reserved to the Commissioner that were not entitled to
special deference. (T. 39.) See 20 C.F.R. § 404.1527(d); Fuimo v. Colvin, 948 F.Supp.2d 260,
267 (N.D.N.Y. 2013) (“It was proper to give little weight to [an opinion that plaintiff was
“severely disabled and not competitively employable”], which concerned issues reserved to the
Commissioner.”). The ALJ’s rejection of Dr. Finger’s one-time indication that Plaintiff was
unable to lift any weight is also supported by the evidence in the record as a whole. Although
Plaintiff continued to experience symptoms including tenderness and decreased range of motion
related to his back and neck impairments on occasion, the medical evidence does not substantiate
an inability to lift or to perform the reduced range of light work in the RFC. After ending his
treatment with Dr. Finger in July 2010, there is little notable physical treatment, with most
physical exams in 2011 through early 2013 showing very little objective physical findings
supporting Plaintiff’s allegations of limitations. (T. 788, 790, 792, 795, 797, 801, 803, 1033,
1035, 1037, 1039, 1041, 1044.) Although Plaintiff argues that the MRI studies of the lumbar and
cervical spine revealed dramatic changes showing progressive worsening of his degenerative
disc disease, the evidence reveals otherwise. An MRI of the cervical spine from March 2013
21
indicated that there had been “no significant interval change” and revealed only mild findings,
findings which were hardly different from the cervical spine MRI taken in March 2011. (T. 814,
1027.) Lumbar MRIs from later-2005 showed mild degenerative changes. (T. 686-87.) A
subsequent lumbar spine MRI from September 2012 showed degenerative changes and disc
bulging that was described as mild. (T. 1008.) Consequently, the ALJ’s partial reliance on Dr.
Finger’s earlier opinions that showed a fairly consistent range of functioning from 2005 through
2010 are supported by the evidence showing that Plaintiff’s spinal conditions did not
significantly change or worsen throughout the period at issue.
The ALJ was also correct that Dr. Finger’s own treatment notes from prior to the
amended alleged onset date were indicative that Plaintiff did not have greater limitations than
those included in the ALJ’s RFC assessment. Dr. Finger did note symptoms variously including
tenderness to palpation, limited range of motion, and somewhat stiff gait or positive straight leg
raising at times, but also generally noted normal motor tones, strength, reflexes, and sensation.
(T. 704, 708, 710, 712, 714, 716, 718, 727-28, 730, 732, 734, 736, 739-42, 744, 747, 749, 751,
753, 756-57.) Although these treatment notes do show a “waxing and waning” pattern in which
Plaintiff’s symptoms fluctuated in severity at times, as a whole they fail to show limitations
greater than those included in either the ALJ’s RFC or Dr. Finger’s multiple opinions suggesting
a capacity to perform light work with the need to change positions and limit his bending at the
waist.
The record does contain neurological examinations from 2012 and 2013 in which
Plaintiff is sporadically noted to have a degree of decreased sensation in his lower extremities,
some balance and gait abnormalities, and use of a cane on one occasion. (T. 595, 1101, 1113,
1122, 1139, 1171.) An MRI of his brain from October 2013 indicated findings suggestive of a
22
demyelinating disease such as multiple sclerosis, raising the question of whether these more
recently-developed neurological symptoms were related to his spinal impairments or a different
disorder. (T. 1157.) In any event, even if they were caused by Plaintiff’s spinal impairments,
there is substantial evidence to support the ALJ’s RFC assessment that Plaintiff could perform a
reduced range of light work with the ability to alternate between sitting and standing throughout
the workday and occasional bending at the waist, a finding which is generally consistent with Dr.
Finger’s earlier opinions with alterations based on the ALJ’s consideration of the evidence as a
whole. (T. 29.) The weight the ALJ afforded to Dr. Finger’s various opinions is supported by
substantial evidence.
c. Dr. Martin
The ALJ afforded little weight to Dr. Martin’s opinion, indicating that it was “not
supported by the record.” (T. 38.) As the ALJ noted, Dr. Martin opined that Plaintiff could
never lift any weight, could sit more than two hours at one time and less than one hour total, 2
could stand 10 minutes at one time, could stand or walk less than two hours total, would need to
shift positions at will, take breaks every 30 minutes to walk or stretch and use a cane to stand and
walk, and could never climb, balance, kneel, crouch, crawl or stoop, occasionally bend and twist
and occasionally use his upper extremities (T. 1163-1168.)
The ALJ’s rejection of Dr. Martin’s opinion is supported by substantial evidence because,
as already detailed above in Part III.C.1.b above, the overall medical evidence, including Dr.
Martin’s own treatment notes, does not show that Plaintiff’s impairments imposed such severely
2
Because a second page in the same functional opinion from Dr. Martin also indicates a
restriction to sitting for 15 minutes at one time, it is unclear what Dr. Martin actually opined on
that particular limitation. (T. 1164.)
23
restrictive physical limitations as expressed in Dr. Martin’s opinion. Because the ALJ provided a
good reason supported by substantial evidence for rejecting Dr. Martin’s opinion, she committed
no error in doing so. Greek, 802 F.3d at 375; Reddick, 2014 WL 1096178, at *4-5.
2. Mental RFC and Opinions
The ALJ afforded little weight to the opinions from Nurse Practitioner Behling, little
weight to the mental portions of opinions from Dr. Finger and Dr. Martin, little weight to the
opinions from Ms. Warren and Ms. Venditti related to the traumatic brain injury waiver program,
little weight to the opinion from consultative examiner Dr. Shapiro, and some weight to State
Agency psychological consultant Dr. Altmansberger. (T. 41-42, 44-46.) These opinions will be
discussed in turn below.
a. Nurse Practitioner Behling
The ALJ afforded little weight to the multiple opinions from treating Nurse Practitioner
Behling, finding that these opinions appeared to be primarily based on Plaintiff’s subjective
complaints because they were not supported by the mental health treatment evidence, including
Nurse Practitioner Behling’s own examinations. (T. 44.) Nurse Practitioner Behling submitted
two functional opinions regarding Plaintiff’s mental functioning, on February 2, 2012, and
November 26, 2013, both of which contained limitations which indicated Plaintiff would be
unable to perform the mental demands required of even basic unskilled work. (T. 817-23, 114853.) However, this Court agrees with the ALJ that such an extensive degree of mental limitation
is not supported by the evidence in the record as a whole. Much of the mental health evidence
(which has been discussed above in Part III.B of this Decision and Order) shows that, while
Plaintiff experienced some degree of limitation, there was nothing to substantiate greater
limitations than those accommodated for in the RFC. Nurse Behling’s treatment notes in
24
particular do not support her extensive limitations, because they show that, although Plaintiff
continued to report occasional suicidal thoughts without plan or intent, some irritability, and
some ongoing mood and affect abnormalities, he was consistently noted to have fair or good
attention and concentration, fair to good eye contact, and generally normal speech and thought
process. (T. 805-06, 809, 998, 1000, 1002, 1004, 1006, 1055-56, 1058, 1060, 1062, 1064, 1066,
1068, 1070, 1072, 1074, 1076, 1078, 1081, 1083, 1176, 1178.) In addition, Nurse Practitioner
Behling specifically noted that Plaintiff’s symptoms had visibly improved with medication, even
when Plaintiff reported they were not helping. (T. 806, 1000, 1002, 1047.) Notably, on
December 3, 2013 (about a week after Nurse Practitioner Behling wrote one of her opinions),
Nurse Practitioner Behling observed he had good concentration and focus, normal thought
process and speech, fair insight and judgment, a slightly tense affect, and a slight frustrated and
anxious mood. (T. 1176.) This treatment note is generally representative of the findings Nurse
Practitioner Behling made throughout her treatment relationship with Plaintiff and does not
provide support for the disabling limitations she included in her opinions. The ALJ’s rejection of
Nurse Behling’s opinions due to a lack of support from the mental health treatment evidence is
supported by substantial evidence.
b. Dr. Finger and Dr. Martin
The ALJ afforded little weight to portions of the opinions of Dr. Finger and Dr. Martin
that related to Plaintiff’s mental functioning, such as Dr. Finger’s June 2010 opinion that
Plaintiff was precluded from performing work at that time due to the combination of his back
pain and his current mental state, and Dr. Martin’s notations that Plaintiff would constantly
experience symptoms severe enough to interfere with his attention and concentration and would
have a moderate limitation in dealing with work stress. (T. 44-45, 754, 1145, 1168.) As noted
25
previously in relation to Dr. Finger’s physical opinions, the ALJ need not afford any special
deference to an opinion that Plaintiff is disabled because that is an issue reserved to the
Commissioner. Fuimo, 948 F.Supp.2d at 267. As the ALJ notes, Dr. Finger rendered her
opinion not long after Plaintiff’s hospital admission for an acute exacerbation of his mental
impairment, and Dr. Finger only ever assessed Plaintiff’s mental state personally on the
examination when she made this statement that Plaintiff was unable to work; she did not have the
opportunity to revise that opinion after Plaintiff was in treatment for his mental impairments. (T.
45.) Additionally, regarding both Dr. Finger’s and Dr. Martin’s opinion, neither the mental
health evidence nor the sources’ own treatment records support their assessment of the impact of
Plaintiff’s mental limitations. Because the ALJ explicitly indicated he was rejecting Dr. Martin’s
opinion based on the few positive clinical findings noted on Dr. Martin’s examinations, the ALJ
has provided reasons supported by substantial evidence for declining to rely on either of these
opinions. See Greek, 802 F.3d at 375; Reddick, 2014 WL 1096178, at *4-5.
c. Ms. Warren and Ms. Venditti
The ALJ afforded little weight to the opinions from Ms. Warren and Ms. Venditti, both of
whom assessed Plaintiff in relation to his participation in the traumatic brain injury waiver
program. (T. 45.) The ALJ found that Ms. Warren’s assertion that Plaintiff had “poor”
rehabilitation potential and degree of improvement due to his traumatic brain injury was
inconsistent with a previous statement she had made indicating that Plaintiff had no significant
impairment in behavior or basic activities of daily living. (Id.) Ms. Venditti opined that Plaintiff
required significant supports in order to stay out of a nursing facility, would benefit from
frequent reminders and clear step-by-step instructions, and was impulsive when triggered,
difficult to re-direct, escalated quickly, and internalized his feelings for days at a time. (T. 114626
47.) The ALJ found that Ms. Venditti’s opinion lacked support from the record, which she
indicated showed involvement in a range of daily activities that used social, attention, memory,
and concentration skills, as well as that the assessment appeared to rely primarily on Plaintiff’s
subjective report rather than objective evidence. (T. 45.) The ALJ’s notation of inconsistencies
in Ms. Warren’s statements and of a lack of support from the medical evidence for the severe
limitations Ms. Venditti opined are supported by substantial evidence based on the previous
discussion of the mental health treatment evidence that showed moderate limitations at most, in
particular the evidence related to Plaintiff’s generally good attention and concentration on
examinations and the cognitive and neuropsychological testing. The ALJ therefore provided
adequate reasons for declining to accept the limitations suggested by their opinions. See SSR 0603p, 2006 WL 2329939.
d. Dr. Shapiro
The ALJ afforded little weight to the opinion from CE Dr. Shapiro, indicating that this
opinion was based on a single examination and appeared to be based primarily on Plaintiff’s
subjective reports when compared with the “few positive clinical findings” that were noted on
Dr. Shapiro’s examination. (T. 45-46.) Dr. Shapiro opined that Plaintiff would have difficulty
adequately understanding and following some instructions and directions as well as completing
tasks due to memory and concentration deficits, difficulty interacting appropriately with others
due to social withdrawal, difficulty attending work and maintaining a schedule due to lack of
motivation and lethargy, and an inability to appropriately manage stress. (T. 761.) However, on
examination, Dr. Shapiro observed that Plaintiff was cooperative with adequate social skills and
presentation, appropriately dressed with good hygiene and grooming, had normal motor
behavior, normal speech, a normal thought process, and a depressed mood, appeared sad with a
27
constricted and somewhat reduced affect, and had intact attention and concentration, intact recent
and remote memory, estimated deficient intellectual functioning, limited general fund of
information, and poor judgement and insight. (T. 760.) As the ALJ noted, these mostly normal
examination observations do not appear to support her opinion. For example, there is a clear
internal inconsistency between Dr. Shapiro’s notation that Plaintiff had intact attention,
concentration, and recent and remote memory when tested on the exam, and her opinion that
Plaintiff would have difficulty performing tasks due to memory and concentration deficits. (T.
760-61.) Given the lack of support from Dr. Shapiro’s own opinion, the ALJ had sufficient
reason supported by substantial evidence to decline to rely on Dr. Shapiro’s opinion. 20 C.F.R. §
404.1527(c)(3) (indicating that the degree to which the source provides evidence and explanation
to support her opinion is one of the factors to be considered when weighing opinion evidence).
e. Dr. Altmansberger
Regarding the opinion of State Agency psychological consultant Dr. Altmansberger,
Plaintiff asserts that “the ALJ did not state what significant mental capabilities the consultant
found,” further asserting that “[a]ll of the functional opinions of the consultant were phrased in
the negative.” (Dkt. No. 28, at 29 [Pl. Mem. of Law].) Plaintiff argues that the perceived nature
of Dr. Altmanberger’s opinion and the ALJ’s failure to state what capabilities Dr. Altmansberger
found resulted in the ALJ substituting her own opinion for Dr. Altmansberger’s opinion. (Id.)
These assertions are unpersuasive and not consistent with either the ALJ’s written decision or
Dr. Altmansberger’s opinion. In his opinion, Dr. Altmansberger opined Plaintiff was moderately
limited in the following mental abilities: understanding, remembering, and carrying out detailed
instructions; performing activities within a schedule, maintaining regular attendance, and being
punctual within customary tolerances; completing a normal workday or workweek without
28
interruptions from psychologically based symptoms and performing at a consistent pace without
an unreasonable number and length of rest periods; interacting appropriately with the general
public; getting along with co-workers or peers without distracting them or exhibiting behavioral
extremes; responding appropriately to changes in the work setting; and setting realistic goals or
making plans independently of others. (T. 776-77.) Dr. Altmansberger concluded that Plaintiff
remained capable of “simple work in a position with limited contact with people.” (T. 778.)
In her decision, the ALJ specifically indicated that Dr. Altmansberger had opined this
ability to perform simple work with limited contact with people and afforded that opinion “some
weight,” finding that it was generally supported by the objective medical evidence including the
evidence received after Dr. Altmansberger’s review. (T. 41-42.) The ALJ essentially limited
Plaintiff to simple work with limited interaction with others (including interaction to the extent
required to carry out simple tasks only with no management or supervision of others and rare
contact with the general public) and simple, repetitive work-related stress. (T. 29.) Although the
ALJ’s RFC deviated somewhat from Dr. Altmansberger’s opinion based on her consideration of
all the evidence, it is clear that, contrary to Plaintiff’s arguments, the ALJ did not substitute her
own opinion for Dr. Altmansberger. See Quinn v. Colvin, 199 F.Supp.3d 692, 712 (W.D.N.Y.
2016) (noting that, “‘while an ALJ cannot arbitrarily substitute his own judgment for a
competent medical opinion,’ [] ‘the ALJ’s RFC finding need not track any one medical
opinion’”) (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); O’Neil v. Colvin, No. 13CV-0575, 2014 WL 5500662, at *6 (W.D.N.Y. Oct. 30, 2014)); Kitka v. Comm’r of Soc. Sec.,
No. 5:15-CV-0060, 2016 WL 825259, at *9 (N.D.N.Y. Feb. 9, 2016) (“There is no requirement
that the ALJ accept every limitation in the opinion of a consultative examiner.”) (citing Pellam v.
Astrue, 508 F.App’x 87, 89 (2d Cir. 2013)). Although it has been recognized that the opinion of
29
a non-examining physician, standing alone, does not constitute substantial evidence to support
the ALJ’s findings, the ALJ very clearly relied on more than just Dr. Altmansberger’s opinion in
this case, as can be seen from her detailed discussion showing thorough consideration of the
mental health treatment evidence. (T. 41-46.) See also Henry v. Astrue, 32 F.Supp.3d 170, 18788 (N.D.N.Y. 2012) (finding that the ALJ’s consideration of the treatment evidence, along with
the State Agency medical consultant’s opinion, amounted to “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion”). As in Henry, the ALJ’s
consideration of the treatment evidence in addition to Dr. Altmansberger’s opinion show that her
mental RFC findings are supported by substantial evidence.
For all these reasons, the weight the ALJ afforded to the various opinions in the record
and the RFC determination were supported by substantial evidence, and remand is not required
on this basis.
D.
Whether the Credibility Determination 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. 32, at 17-19 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
In determining whether a claimant is disabled, the ALJ must also make a determination
as to the credibility of the claimant’s allegations. “‘An administrative law judge may properly
reject claims of severe, disabling pain after weighing the objective medical evidence in the
record, the claimant’s demeanor, and other indicia of credibility, but must set forth his or her
reasons with sufficient specificity to enable us to decide whether the determination is supported
by substantial evidence.’” Schlichting v. Astrue, 11 F.Supp.3d 190, 205 (N.D.N.Y. 2012)
30
(quoting Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit
recognizes that “‘[i]t is the function of the [Commissioner], not [reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,’” and
that “[i]f there is substantial evidence in the record to support the Commissioner’s findings, ‘the
court must uphold the ALJ’s decision to discount a claimant’s subjective complaints of pain.’”
Schlichting, 11 F.Supp.3d at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705 F.2d
638, 642 (2d Cir. 1983); Aponte v. Sec’y, Dep’t of Health and Human Servs., 728 F.2d 588, 591
(2d Cir. 1984)). Due to the fact that the ALJ has the benefit of directly observing a claimant’s
demeanor and “other indicia of credibility,” the ALJ’s credibility assessment is generally entitled
to deference. Weather v. Astrue, 32 F.Supp.3d 363, 381 (N.D.N.Y. 2012) (citing Tejada v. Apfel,
167 F.3d 770, 776 (2d Cir. 1999)).
Plaintiff outlines a number of objections to the ALJ’s credibility determination. (Dkt.
No. 28, at 34-39 [Pl. Mem. of Law].) However, this Court agrees with Defendant that the ALJ
provided sufficient clear reasons to show that her credibility determination was supported by
substantial evidence. (Dkt. No. 32, at 17-19 [Def. Mem. of Law].) The ALJ’s decision is filled
with statements regarding the reasons for her finding that Plaintiff’s allegations were not fully
credible, including a four-page section exclusively devoted to the issue of credibility. (T. 32-36.)
In particular, this Court highlights the ALJ’s citation to treatment records which show that
Plaintiff’s mental impairments were somewhat improved and stable while taking medications,
that he did not require any further hospitalization once he began mental health treatment, that he
did not report any side effects of the medications he was maintained on for either pain or mental
health purposes, that there were conflicting reports made to different sources regarding
Plaintiff’s ability to perform activities of daily living (some of which showed he was far more
31
functional and independent than he alleged particularly at the hearing), and that he stopped
working due to a lay-off related to a lack of work rather than his impairments. (T. 33-35.) These
reasons, which are clearly laid out in the ALJ’s decision and consistent with the evidence, are
sufficient to show that the ALJ’s credibility finding is supported by substantial evidence.
For all these reasons, the ALJ’s credibility finding was supported by substantial evidence
and remand is not required on this basis.
E.
Whether the ALJ Erred in Failing to Further Develop the Record
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. 32, at 19-20 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The Second Circuit has noted that, “[e]ven when a claimant is represented by counsel, it
is the well-established rule in our circuit ‘that the social security ALJ, unlike a judge in a trial,
must on behalf of all claimants . . . affirmatively develop the record in light of the essentially
non-adversarial nature of a benefits proceeding.’” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
2009) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009)). “‘It is the
ALJ’s duty to investigate and develop the facts and develop the arguments both for and against
the granting of benefits.’” Moran, 569 F.3d at 112-13 (quoting Butts v. Barnhart, 388 F.3d 377,
386 (2d Cir. 2004)). This Court has recognized that “[i]n furtherance of the duty to develop the
record, an ALJ may re-contact medical sources if the evidence received from the treating
physician or other medical sources is inadequate to permit a reasoned disability determination
and additional information is needed to resolve the question.” Crysler v. Astrue, 563 F.Supp.2d
418, 432 (N.D.N.Y. 2008) (citing 20 C.F.R. § 404.1512(e)).
32
As Defendant points out, Plaintiff does not indicate what sources the ALJ erred in failing
to re-contact or what information Plaintiff believes needed to be obtained in order to create a
complete record. (Dkt. No. 28, at 39-40 [Pl. Mem. of Law]; Dkt. No. 32, at 19-20 [Def. Mem. of
Law].) To the extent that Plaintiff asserts that the ALJ needed to re-contact the treating sources
to determine what they based their opinions on, such an argument is not availing. There were
ample treatment records from Dr. Finger, Nurse Practitioner Behling, and Dr. Martin in
particular from which the ALJ was able to determine whether those opinions were supported by
the treatment each of those sources provided. The evidence in this case was more than adequate
to allow the ALJ to make a reasoned determination of Plaintiff’s disability status and there is no
indication that further evidence was needed to resolve any outstanding questions or
inconsistencies.
For all these reasons, there is no basis for requiring further development of the record and
remand is not required for such purposes.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 28) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 32) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: May 26, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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