Hackett v. Commissioner of Social Security
MEMORANDUM DECISION and ORDER: that the Commissioner's decision is Affirmed; that plaintiff's complaint is Dismissed and that judgment be entered for the Defendant. Signed by US Magistrate Judge Andrew T. Baxter on 04/13/2017. (hmr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SYLVIA A. HACKETT,
COMMISSIONER OF SOCIAL SECURITY,
STEVEN R. DOLSON, ESQ., for Plaintiff
BENIL ABRAHAM, Special Asst. U.S. Attorney, for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final
judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No.
18, in accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73,
N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6).
On September 21, 2012, plaintiff filed applications for Social Security
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
benefits, both alleging disability beginning June 1, 2012. (Administrative Transcript
(“T.”) 154-67). The applications were denied initially on February 6, 2013. (T. 5586). Administrative Law Judge (“ALJ”) Elizabeth W. Koennecke held a hearing on
May 7, 2014, at which plaintiff testified. (T. 40-54). Vocational Expert (“VE”) Robert
Baker testified at a a supplemental hearing before the ALJ on November 3, 2014. (T.
33-39). On November 5, 2014, the ALJ found plaintiff was not disabled. (T. 15-32).
The ALJ’s decision became the Commissioner’s final decision when the Appeals
Council denied plaintiff’s request for review on May 26, 2016. (T. 1-6).
GENERALLY APPLICABLE LAW
To be considered disabled, a plaintiff seeking disability insurance benefits or
SSI disability benefits must establish that he or she is “unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months . . . .” 42
U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff’s
physical or mental impairment or impairments [must be] of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
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 meets or equals the criteria of an impairment listed in
Appendix 1 of the regulations. If the claimant has such an impairment,
the Commissioner will consider him [per se] disabled . . . . 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.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that her impairment prevents her from performing
her past work, there is a “limited burden shift to the Commissioner” to “show that
there is work in the national economy that the claimant can do.” Poupore v. Astrue,
566 F.3d 303, 306 (2d Cir. 2009); Selian, 708 F.3d at 418 & n.2.
Scope of Review
In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence
is “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative record. Id.
However, this standard is a very deferential standard of review “ – even more so than
the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“To determine on appeal whether an ALJ’s findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.” Williams on behalf of Williams
v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not
substitute its interpretation of the administrative record for that of the Commissioner,
if the record contains substantial support for the ALJ’s decision. Id. See also
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence
in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983);
Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ
explicitly to reconcile every conflicting shred of medical testimony). However, the
ALJ cannot “‘pick and choose’ evidence in the record that supports his conclusions.”
Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
As of the date of the administrative hearing on May 7, 2014, plaintiff was 53
years old. (T. 43, 154). Plaintiff attended regular education classes in high school,
but did not graduate. (T. 194). She subsequently obtained her general equivalency
diploma. (T. 43, 194, 281). She had also taken several college courses, and completed
training as a certified nurse’s aide (“CNA”). (T. 43-44). At the time of the hearing,
plaintiff resided with two of her daughters, ages eighteen and thirteen, and a two year
old granddaughter. (T. 49).
All of plaintiff’s prior employment had been in the health care field, as either a
CNA or a home health aide. (T. 211). Plaintiff injured her back in 2002 and received
workers’ compensation benefits, but subsequently returned to work. (T. 358). Plaintiff
testified that she had “worked in pain” since 2002, but that her back and leg pain had
steadily grown worse. (T. 51-52). Plaintiff testified that she could not stand for more
than fifteen minutes or sit for more than twenty minutes without being in pain, and
could not lift more than five or ten pounds. (Id.) Her most recent employment ended in
June 2012, after a disagreement with a difficult client. (T. 45, 50-51, 211, 281). She
had sought other work in her field, but believed that employers had not hired her once
they became aware of her physical impairments. (T. 50-51).
Plaintiff also alleged mental impairments in her DIB and SSI applications. She
recalled experiencing depression symptoms since childhood, and her treating
physician had prescribed Cymbalta, an anti-depressant medication, since at least
September 2012. (T. 254, 384). She first received outpatient psychiatric treatment in
February 2013, and had attended three counseling sessions as of the date of the
administrative hearing. (T. 380-405).
The ALJ’s decision provides a detailed statement of the medical and other
evidence of record. (T. 21-24). Rather than reciting this evidence at the outset, the
court will discuss the relevant details below, as necessary to address the issues raised
The ALJ determined that plaintiff met the insured status requirements through
December 31, 2018, and that plaintiff had not engaged in substantial gainful activity
since her alleged onset date of June 1, 2012. (T. 20-21). The ALJ found that
plaintiff’s lumbar stenosis qualified as a severe impairment at step two of the
sequential evaluation. (T. 21-24). She concluded that plaintiff’s other impairments,
including a mental impairment that was variously characterized as depressive disorder
and posttraumatic stress disorder, were not severe.1 At the third step, the ALJ
determined that plaintiff’s impairments did not meet or medically equal the criteria of
any listed impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P. (T. 24).
The ALJ found at step four of the analysis that plaintiff had the RFC to lift
and/or carry up to fifty pounds occasionally, twenty pounds frequently, and ten
pounds continously; to sit, stand, and/or walk for eight hours during a workday; to
frequently push and pull bilaterally; to handle, finger, feel, and reach in any direction;
to operate foot controls; to balance, climb stairs, ramps, ladders, or scaffolds; and to
frequently stoop. (T. 24-26). The ALJ found that plaintiff had no environmental
limitations. (T. 24).
In making the RFC determination, the ALJ stated that she considered all of the
plaintiff’s symptoms, and considered the extent to which those symptoms could
“reasonably be accepted as consistent with the objective medical evidence and other
evidence, based on the requirements of 20 C.F.R. 404.1529 and 416.929” and Social
Security Rulings (“SSRs”) 96-4p and 96-7p. (T. 24). Finally, the ALJ stated that she
considered opinion evidence pursuant to 20 C.F.R. §§ 404.1527 and 416.927 and
The ALJ applied the required “special technique”in her evaluation of the severity of
plaintiff’s mental impairments, in accordance with 20 C.F.R. § 404.1520a and 416.920a. (T. 2224). Plaintiff has not challenged the ALJ’s findings in that regard.
SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (Id.)
The ALJ also found that plaintiff’s statements alleging physical and mental
disability were not fully credible in light of the record evidence. (T. 26). Relying on
the VE testimony, the ALJ next determined that plaintiff was capable of performing
her past relevant work as a home health aide. (T. 27-28). In light of this finding, the
ALJ determined that plaintiff was not disabled from the alleged onset date, June 1,
2012, through the date of the decision. (T. 28).
ISSUES IN CONTENTION
Plaintiff raises the following argument:
The ALJ’s credibility findings are unsupported by substantial evidence
because the ALJ erred in analyzing the required factors when assessing
plaintiff’s credibility. (Pl.’s Br. at 4-8, Dkt. No. 9).
Defendant argues that the Commissioner’s determination, including the
credibility analysis, was supported by substantial evidence and should be affirmed.
(Def.’s Br. at 6-12) (Dkt. No. 11). For the following reasons, this court agrees with
the defendant and will dismiss the complaint.
“An [ALJ] may properly reject [subjective complaints] 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.’” Lewis
v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (citation omitted). To satisfy the
substantial evidence rule, the ALJ’s credibility assessment must be based on a twostep analysis of pertinent evidence in the record. See 20 C.F.R. §§ 404.1529, 416.929;
see also Foster v. Callahan, No. 96-CV-1858 (RSP/GJD), 1998 WL 106231, at *5
(N.D.N.Y. Mar. 3, 1998).
First, the ALJ must determine, based upon the claimant’s objective medical
evidence, whether the medical impairments “could reasonably be expected to produce
the pain or other symptoms alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a),
(b). Second, if the medical evidence alone establishes the existence of such
impairments, then the ALJ need only evaluate the intensity, persistence, and limiting
effects of a claimant’s symptoms to determine the extent to which they limit the
claimant’s capacity to work. 20 C.F.R. §§ 404.1529(c), 416.929(c). When the
objective evidence alone does not substantiate the intensity, persistence, or limiting
effects of the claimant’s symptoms, the ALJ must assess the credibility of the
claimant’s subjective complaints by considering the record in light of the following
symptom-related factors: (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. 20 C.F.R. §§
At the hearing, plaintiff testified that she was unable to work due to lower back
pain that radiated down her right leg and into her right foot. (T. 47). She estimated
that she could only sit for about twenty minutes at a time before having to get up;
could only walk about a quarter mile without resting; and could not stand for more
than fifteen minutes without being in pain. (T. 47-48). Plaintiff also testified that
bending and reaching were “very painful,” and that her back pain prevented her from
lifting or carrying items such as a gallon of milk. (T. 49).
The ALJ found that plaintiff’s testimony regarding the disabling nature of her
impairments was not fully credible. (T. 26). Plaintiff contends that the ALJ failed to
support this credibility determination with substantial evidence by failing to
adequately consider the seven factors listed above. (Pl.’s Br. at 6). In addition,
plaintiff contends that the ALJ failed to inquire into the reasons for a perceived lack of
treatment for plaintiff’s impairments, and exaggerated the scope of plaintiff’s daily
activities. (Pl.’s Br. at 6-7). This court disagrees, and concludes that the ALJ’s
credibility determination was supported by substantial evidence.
The ALJ cited a number of factors that played a role in her credibility
determination. For example, the ALJ noted the lack of objective medical evidence to
support the restrictive physical limitations described by plaintiff. (T. 25-26). Dr.
Kalyani Ganesh, whose opinion was assigned “significant weight” by the ALJ,
performed a consultative examination of plaintiff on July 21, 2014. (T. 25, 358-366).
Dr. Ganesh observed that plaintiff was in no acute distress, and had a normal gait. (T.
359). Plaintiff could not walk on heels and toes, and could not squat. (Id.) She used
no assistive devices, could rise from a chair without difficulty, and required no help
changing for the examination or getting on and off the examination table. (Id.)
During the consultative orthopedic examination, plaintiff’s lumbar spine
showed decreased flexion, extension, and rotary movement. (T. 359). Otherwise, Dr.
Ganesh did not identify any significant issues with plaintiff’s back, shoulders, or
extremities. She reported that plaintiff’s cervical spine showed full flexion, full
extension, full lateral flexion bilaterally, and full rotary movement bilaterally. (Id.)
Dr. Ganesh reported that plaintiff had full range of motion in her shoulders, elbows,
forearms, wrists, fingers, hips, knees, and ankles bilaterally. (T. 359-60). Plaintiff had
full strength in her upper and lower extremities, and full grip strength in both hands.
(Id.) Based on these findings, Dr. Ganesh opined that plaintiff had “no gross
limitation to sitting, standing, or walking.” (T. 360). She also found “mild to
moderate” limitations with regard to lifting, carrying, pushing, and pulling. (Id.)
The ALJ also cited notes from plaintiff’s treating sources that addressed the
frequency and intensity of plaintiff’s symptoms, and ran contrary to plaintiff’s
testimony. (T. 16-17). For example, plaintiff reported in visits with her treating
physicians that pain medication, including hydrocodone and transforaminal nerve
block injections, significantly controlled or alleviated her pain, although the injections
typically wore off after about three weeks. (T. 258, 262, 267, 291, 370, 372, 376).
Plaintiff and her physicians were reluctant to pursue surgery as an option. (T. 258,
267, 303). Instead, plaintiff’s physicians recommended exercises that she could
perform at home to strengthen her back. (T. 370, 373).
The ALJ undertook a similar analysis of plaintiff’s mental impairments,
including her diagnosed depression. (T. 22-23, 26). At the time of her November 12,
2012 consultative psychiatric examination, plaintiff reported no history of psychiatric
hospitalization or outpatient psychiatric treatment.2 (T. 281). Plaintiff began
psychiatric outpatient treatment in February 2012, although she had only attended
three sessions at the time of the hearing. (T. 386-405).
Plaintiff’s clinical psychiatric findings were generally consistent. During the
consultative examination, plaintiff exhibited a depressed mood, but was cooperative
with adequate social skills, appropriate eye contact, coherent thought processes, and
intact attention and concentration. (T. 282-83). Her treating physician consistently
described plaintiff as alert and oriented, with pleasant mood and affect. (T. 254, 260,
269, 288-89, 292, 295, 368-69). Treatment notes from plaintiff’s treating psychiatrist,
Dr. Paula Zobrowski, also reflect improvement in her depressive symptoms over the
course of three visits. (T. 386-405). In the most recent notes, dated August 29, 2014,
plaintiff reported that she was “much happier” since moving closer to her daughter
and grandchildren. (T. 405). She had also reduced a significant source of stress by
ending a difficult personal relationship. (T. 400, 405). On August 29, 2014, Dr.
Zobrowski recommended that plaintiff maintain her medication at current levels, and
The ALJ assigned “some weight” to the opinion of psychiatric consultative examiner
Dennis Noia. She also assigned “great weight” to the opinion of state agency psychiatric
consultant Dr. Kamin, who reviewed plaintiff’s medical records. There were no treating source
opinions in the record. Plaintiff has not challenged the weight that the ALJ assigned to this
medical opinion evidence.
follow-up with another appointment in two to three months. (T. 405).
The treatment notes and consultative examination findings relied upon by the
ALJ reflect a medical consensus that plaintiff’s symptoms were controlled or
improving under current treatment, and that plaintiff’s current condition did not
warrant more extensive measures or more frequent evaluation. (T. 284, 360, 370, 405).
Therefore, although the ALJ did not question the plaintiff at her hearing regarding the
reasons for the conservative treatment of her back injury and her limited psychiatric
treatment history, the decision reflects a consideration of “other information in the
case record,” that addresses these issues. See Hamilton v. Colvin, 8 F. Supp. 3d 232,
240-41 (N.D.N.Y. 2013) (citing SSR 96-7p).
In addition to the medical evidence, the ALJ found that plaintiff’s testimony
was also inconsistent with her activities of daily living. (T. 23). During the July 2014
consultative examination, plaintiff reported that she was able to attend to her personal
needs such as bathing and dressing herself, could cook once or twice a week, shop
regularly, and do laundry. (T. 359). The ALJ noted that plaintiff was able to attend
community college classes,3 regularly attend church, and play BINGO once or twice a
week. (T. 205, 218, 287). The ALJ also noted that plaintiff frequently cared for her
young granddaughter during the day. (T. 359). Plaintiff contends that ALJ overstated
the scope of plaintiff’s child care duties, but the record shows that the ALJ had
Plaintiff contends that the ALJ failed to adequately consider plaintiff’s statement that
walking on campus and sitting in class aggravated her back pain. (T. 287). However, plaintiff
has offered no evidence to contradict the ALJ’s factual finding that plaintiff had attended
community college classes. (T. 26). Plaintiff also testified at the hearing that she had completed
some college courses after her 2002 back injury. (T. 43-44).
substantial evidence on this point. When describing her daily activities in her 2012
application for benefits, plaintiff reported that she prepared her granddaughter’s bottle
and fed her, changed the infant’s diapers, and put her down for a nap. (T. 201). At her
2014 hearing, plaintiff testified that she was unable to lift her now two year old
granddaughter, but regularly prepared the toddler’s breakfast, helped her in the
bathroom, and changed diapers when necessary. (T. 50).
The decision reflects that the ALJ considered plaintiff’s treatment record, the
consultative examination findings, her documented daily activities, as well as
plaintiff’s testimony and her other self-reports of her functional limitations as part of
the credibility assessment. Because the ALJ explained multiple valid reasons for her
findings, her credibility determination, and the related RFC determination, were
supported by substantial evidence.
VII. PRIOR WORK
Plaintiff did not raise any direct challenge to the ALJ’s determination that
plaintiff could perform her prior work as a home health aide, so the court will only
briefly address the issue. At step four of the disability analysis, the ALJ has the option
to rely on VE testimony. See 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2) ("A
vocational expert or specialist may offer expert opinion testimony . . . about whether a
person with the physical and mental limitations imposed by the claimant's medical
impairment(s) can meet the demands of the claimant’s previous work, either as the
claimant actually performed it or as generally performed in the national economy.")
(emphasis added). The ALJ elected to called a VE to testify at plaintiff’s November 3,
2014 supplemental hearing. (T. 33-39).
Plaintiff had previously testified about her prior work. (T. 44-47). She visited
patients in their home, and performed housecleaning, assisted with personal care,
prepared meals, and assisted them on errands such as shopping or medical
appointments. (T. 27, 44-47). The VE considered this job description and categorized
the position as a home health aide, with a Dictionary of Occupational Title (“DOT”)
Code of 354.377-014. (T. 36-37). The ALJ asked whether a hypothetical individual
with plaintiff’s RFC could perform work as a home health aide. (T. 37-38). The VE
testified that such an individual could perform such work, as generally performed. (T.
27, 38). Based upon the VE testimony, the ALJ concluded that plaintiff could perform
her prior work as a home health aide, and found that plaintiff was not disabled. (T. 2728). Because the ALJ’s RFC determination was supported by substantial evidence,
her hypothetical question to the VE contained the appropriate restrictions based on her
analysis of the record, and her reliance on the VE’s determination that plaintiff could
perform her prior work was also supported by substantial evidence. Accordingly, the
ALJ had substantial evidence for her conclusion that plaintiff was not disabled from
June 1, 2012 through the date of her decision.
WHEREFORE, based on the findings above, it is
ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiff’s
complaint is DISMISSED, and it is
ORDERED, that judgment be entered for the DEFENDANT.
April 13, 2017
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