Snyder v. Berryhill
Filing
15
MEMORANDUM-DECISION & ORDER that the Commissioner's decision is AFFIRMED, and pltf's complaint is DISMISSED; and that judgment be entered for the deft. Signed by US Magistrate Judge Andrew T. Baxter on 2/11/2019. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________________
KELLEY S.1,
Plaintiff,
v.
5:17-CV-1234 (ATB)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________________________________
HOWARD D. OLINSKY, ESQ., for Plaintiff
ELIZABETH D. ROTHSTEIN, 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, and 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, 5).
I.
PROCEDURAL HISTORY
Plaintiff protectively filed an application for Disability Insurance Benefits
(“DIB”) on May 8, 2014, and protectively filed an application for supplemental security
income (“SSI”) on August 31, 2015. (Administrative Transcript (“T.”) 10, 265-66).
Both applications alleged disability beginning July 1, 2013. (Id.) After plaintiff’s
1
In accordance with recent guidance from the Committee on Court Administration and
Case Management of the Judicial Conference of the United States, which was adopted by the
Northern District of New York in June 2018 in order to better protect personal and medical
information of non-governmental parties, this Memorandum-Decision and Order will identify the
plaintiff using only her first name and last initial.
claims were initially denied, Administrative Law Judge (“ALJ”) David J. Begley
conducted a hearing on March 25, 2016, at which plaintiff and Vocational Expert
(“VE” ) Mark A. Pinti testified. (T. 98-151, 156-69, 176).
In a decision dated June 10, 2016, the ALJ found that plaintiff was not disabled.
(T. 7-27). The ALJ’s decision became the Commissioner’s final decision when the
Appeals Council denied plaintiff’s request for review on September 25, 2017. (T. 1-6).
II.
GENERALLY APPLICABLE LAW
A.
Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that 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.
2
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 disabled without considering
vocational factors such as age, education, and work experience . . . .
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 can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 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, the burden then shifts to the Commissioner to prove the final step. Id.
B.
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
3
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).
III.
FACTS
As of the date of the March 25, 2016 administrative hearing, plaintiff was 31
years old. (T. 105, 265). She currently resided with her mother and a twin brother, but
had recently lived independently, with a boyfriend. (T. 108). Plaintiff had completed
the tenth grade in special education classes, before leaving school. (T. 110). While in
school, she had an Individualized Education Plan (“IEP”) to address difficulties with
4
math, and obtained additional time and assistance on tests due to reading problems. (T.
110). After leaving school, she had made two unsuccessful attempts to obtain her
G.E.D. (T. 109).
Plaintiff’s previous employment included work as a veterinary assistant, parts
runner at an automotive repair shop, and cashier at a grocery store. (T. 302-308). She
reported that she had difficulties at each of these positions due to problems counting
change and keeping up with the pace demanded by customers. (T. 107-108, 129-31,
302-308). Her most recent employment was as a security guard in 2011. (T. 105). She
testified that she had difficulty meeting the obligations of this job, but that she was
terminated for reasons unrelated to her impairments. (T. 105, 131).
Plaintiff had suffered a series of knee injuries that required surgery, most recently
in 2004. (T. 644-45). She still experienced an aching knee pain if she remained in one
position too long, or walked long distances. (T. 644). In 2012, plaintiff fractured both
elbows in a fall, and underwent several surgeries. (T. 127, 392, 644). Her left elbow2
suffered the most significant injuries, and she testified that she still experienced
frequent pain and numbness in her left elbow and hand. (T.106, 127, 460, 644). The
pain increased with lifting, holding her left arm in one position or putting any pressure
on the elbow, such as leaning on the arm of a chair. (T. 117, 644). She received
frequent cortisone injections into her left elbow to reduce the pain. (T. 117). Plaintiff
had also been diagnosed with anxiety and depression that stemmed from several
traumatic events in her life. (T. 124-25). She had been treated with both medication
2
Plaintiff is right-handed. (T. 106, 644).
5
and counseling since at least 2011. (T. 111-112, 121-123).
The ALJ’s decision provides a detailed statement of the medical and other
evidence of record. (T. 12-21). Rather than reciting this evidence at the outset, the
court will discuss the relevant details below, as necessary to address the issues raised by
plaintiff.
IV.
THE ALJ’S DECISION
After finding that plaintiff met the insured status requirements through June 30,
2015, the ALJ found that plaintiff had not engaged in substantial gainful activity since
her alleged onset date of August 1, 2011. (T. 12). Next, the ALJ found that plaintiff
had the following severe impairments at step two of the sequential evaluation:
osteoarthritis (status-post left elbow surgery); status-post right knee surgery; bipolar
disorder; and anxiety. (T. 12-13). At the third step, the ALJ determined that plaintiff’s
impairments or combination thereof 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. 13-15).
The ALJ found at step four of the analysis that plaintiff could perform less than
the full range of light work. (T. 15-21). Specifically, he found that plaintiff was
limited to occasional pushing, pulling and overhead reaching with the left upper
extremity; was prohibited from climbing ladders, ropes, and scaffolds; could
occasionally climb ramps and stairs, balance, crouch, and crawl; and should avoid
concentrated exposure to extreme heat and cold, humidity, wetness, slippery and
uneven surfaces, hazardous machinery, unprotected heights, and open flames. (T. 15).
In making the RFC determination, the ALJ stated that he considered all of the
6
plaintiff’s symptoms, and 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 Ruling
(“SSR”) 96-4p. (T. 15-16). Finally, the ALJ stated that he considered opinion evidence
pursuant to 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 063p. (T. 16).
The ALJ also found that plaintiff’s medically determinable impairments could
reasonably be expected to cause some of her alleged symptoms, but that plaintiff’s
statements regarding the intensity, persistence, and limiting effects of those symptoms
were not entirely consistent with the medical evidence and other evidence in the record.
(T. 16-17). The ALJ then determined that plaintiff was unable to perform her past
relevant work. (T. 21). Relying on the VE testimony, the ALJ determined at step five
that plaintiff would be able to perform jobs that existed in significant numbers in the
national economy. (T. 40-41). Therefore, the ALJ determined that plaintiff had not
been under a disability from the alleged onset date of August 1, 2011 through the date
of his decision. (T. 21-22).
V.
ISSUES IN CONTENTION
Plaintiff raises the following arguments:
1.
The ALJ’s RFC assessment was not supported by substantial evidence due
to the ALJ’s failure to properly evaluate the medical opinions and other
evidence. (Pl.’s Br. at 17-25) (Dkt. No. 11).
2.
Plaintiff’s impairments met or equaled the severity of Listing 12.05. (Pl.’s
Br. at 25-26)
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3.
The ALJ failed to consider plaintiff’s documented difficulties with math in
his RFC determination or his step five determination. (Pl.’s Br. at 22-23).
Defendant argues that the Commissioner’s determination was supported by substantial
evidence and should be affirmed. (Def.’s Br. at 7-21) (Dkt. No. 14). For the following
reasons, this court agrees with defendant and will dismiss the complaint.
DISCUSSION
VI.
RFC EVALUATION/TREATING PHYSICIAN
A.
Legal Standards
1.
RFC
RFC is “what [the] individual can still do despite his or her limitations.
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis . . . .” A
“regular and continuing basis” means eight hours a day, for five days a week, or an
equivalent work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL
252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d
Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, at *2)).
In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must
specify the functions plaintiff is capable of performing, and may not simply make
8
conclusory statements regarding a plaintiff’s capacities. Martone, 70 F. Supp. 2d at
150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen,
737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F. Supp. 456, 460 (W.D.N.Y.
1987)). The RFC assessment must also include a narrative discussion, describing how
the evidence supports the ALJ’s conclusions, citing specific medical facts, and nonmedical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL 3825629 at *6
(N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling (“SSR”) 96-8p, 1996 WL
374184, at *7).
2.
Treating Physician
“Although the treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician, . . . the opinion of the treating physician is
not afforded controlling weight where . . . the treating physician issued opinions that
are not consistent with other substantial evidence in the record . . . .” Halloran v.
Barnhart, 362 F.3d 28, 32 (2004); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002);
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). The ALJ must properly analyze the
reasons that a report of a treating physician is rejected. Halloran, 362 F.3d at 32-33.
An ALJ may not arbitrarily substitute his own judgment for competent medical opinion.
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
3.
Credibility
“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
9
to decide whether the determination is supported by substantial evidence.’” Lewis v.
Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (quoting Gallardo v. Apfel, No. 96
CIV 9435, 1999 WL 185253, at *5 (S.D.N.Y. March 25, 1999)). To satisfy the
substantial evidence rule, the ALJ’s credibility assessment must be based on a two-step
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, 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), 416.929(a).
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 it limits the claimant’s capacity
to function. 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
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concerning claimant’s functional limitations and restrictions due to symptoms. 20
C.F.R. § 404.1529(c)(3), 416.929(c)(3).
B.
Application
As stated above, it is the province of the ALJ to resolve genuine conflicts in the
record. Veino, 312 F.3d at 588. However, the Commissioner need not “reconcile
explicitly every shred of medical testimony.” Galiotti v. Astrue, 266 F. App’x 66, 67
(2d Cir. 2008) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)). Here, the
ALJ resolved conflicts between the objective medical record, medical opinion evidence,
and plaintiff’s testimony by assigning the greatest weight to that evidence that he
deemed most consistent with plaintiff’s overall treatment record and activities. In
doing so, the ALJ appropriately evaluated the conflicting medical evidence, and made
an RFC finding that was consistent with the overall record. See Matta v. Astrue, 508 F.
App’x. 53, 56 (2d Cir. 2013) (although ALJ’s conclusion did not perfectly correspond
with any of the opinions of medical sources, ALJ was entitled to weigh all of the
evidence available to make an RFC finding that was consistent with the record as a
whole). In light of the ALJ’s analysis of plaintiff’s medical history, the relevant
medical opinions, and plaintiff’s activities of daily living, this court concludes that his
RFC determination was supported by substantial evidence, as summarized below.
1.
Physical Limitations
The ALJ found that plaintiff could perform less than the full range of light work.
(T. 15). Plaintiff argues that this RFC determination did not properly account for the
limitations associated with a left elbow injury that required multiple surgeries and
11
resulted in ongoing pain, stiffness, and limited use of plaintiff’s left arm. (Pl.’s Br. at
20). This court disagrees, and concludes that the ALJ’s assessment of plaintiff’s elbow
injury and the resulting limitations were supported by substantial evidence.
In assessing the functional limitations associated with plaintiff’s elbow
impairment, the ALJ gave “some weight” to the opinion of Dr. Kalyani Ganesh, who
performed a consultative examination of plaintiff on July 29, 2014. (T. 18-19, 644-48).
During the examination, Dr. Ganesh found that plaintiff’s left elbow showed flexion of
120 degrees3, and her right elbow showed flexion of 140 degrees. (T. 647). She had
full range of motion in her shoulders and wrists bilaterally. (Id.) Her left elbow showed
some tenderness, and Dr. Ganesh estimated that the strength in her left and right upper
extremities were both 4 out of 5. (Id.) Based on that examination, Dr. Ganesh opined
that plaintiff had “moderate” limitations for lifting, carrying, pushing, and pulling with
her left arm. (T. 648). Such limitations have typically been considered consistent with
the demands of light work. See Stacey v. Comm’r of Soc. Sec., No. 09-CV-638 (DNH),
2011 WL 2357665, at *6-7 (N.D.N.Y. May 20, 2011) (consultative examiner’s opinion
that plaintiff appeared to have moderate limitations with regard to bending, lifting, and
prolonged standing and walking was consistent with ALJ’s determination that plaintiff
could perform most forms of light work); see also Jordan v. Comm’r of Soc. Sec., 2018
WL 1388527, at *9-10 (S.D.N.Y. Mar. 19, 2018) (ALJ’s determination that plaintiff
could perform light work was supported by substantial evidence where consultative
3
“Normal” elbow range of motion is around 150 degrees, for individuals without medical
conditions affecting their joint mobility. https://www.cdc.gov/ncbddd/jointrom/index.html
12
examiner’s opinion of “moderate” limitations was consistent with objective medical
findings in the record).
The ALJ also noted that Dr. Ganesh’s opinion was consistent with medical
evidence in the record that showed that plaintiff’s left elbow had improved with
treatment. (T. 18-19). For example, in August 2014, a physical examination showed
that plaintiff was lacking about fifteen degrees of full extension and flexion in the left
elbow, results that were slightly better than those found during the consultative
examination. (T. 647, 869). Other general examination notes from the same period,
referenced in the ALJ’s decision, describe plaintiff as able to move “all extremities
spontaneously and purposefully,” and document an improving range of motion in the
left elbow. (T. 756, 884, 894). The court also notes that one of plaintiff’s treating
physicians, Dr. Kevin Setter, opined that she had no significant limitations with respect
to repetitive reaching, handling, or fingering. (T. 915). The ALJ ultimately assigned
“little weight” to Dr. Setter’s full opinion because other portions were inconsistent with
the treatment record.4 (T. 18).
Plaintiff argues that the ALJ’s analysis ignores treatment notes from November
2015 that describe plaintiff as experiencing increased elbow pain, and the
accompanying physician’s recommendation that she use a sling for comfort. (T. 894).
The ALJ actually cited these notes for their description that plaintiff’s left elbow was
“near full range of motion with flexion extension.” (T. 18, 894). In addition, these notes
4
In particular, the ALJ discounted Dr. Setter’s opinion that plaintiff’s impairments would
cause her to be absent from work more than three times per month. (T. 18, 916).
13
make clear that plaintiff’s elbow pain was aggravated from a recent fall, not a
deterioration of plaintiff’s overall condition. (Id.) Plaintiff received one cortisone
injection for the pain at a follow-up visit, and subsequent treatment notes did not reflect
any ongoing restrictions or limitations in her elbow. (T. 898-901, 904-911).
In addition to the medical evidence, the ALJ also considered plaintiff’s daily
activities in determining her RFC. (T. 16-18). Plaintiff reported that she could perform
some household chores such as laundry, dusting, vacuuming, and cleaning toilets. (T.
16, 295-96). She could prepare simple meals on a regular basis. (T. 295). Although
she had difficulty remembering and following directions, she had no physical
restrictions that prevented her from driving a car, and regularly drove to appointments
or shopping. (T. 16, 109, 139-40, 296).
The ALJ also noted that plaintiff’s statement that she enjoyed hunting, and her
description of a recent hand injury sustained while she was hunting, were inconsistent
with her testimony regarding significant physical limitations. (T. 17-18). In particular,
the ALJ noted that an ability to hunt was consistent with other evidence that plaintiff
was able to walk without a limp.5 (T. 17, 900). Plaintiff contends that the ALJ ignored
plaintiff’s statements that she had a bench in some nearby woods to use while hunting.
She also cites external evidence (not submitted to the ALJ) regarding the limited recoil
of her 20-gauge shotgun, that would presumably make the firearm easier to use despite
5
During her July 29, 2014 consultative examination, Dr. Ganesh observed that plaintiff
had a limp favoring her right side. (T. 646). During a November 24, 2015 evaluation for
complaints of hip pain, the treating physician observed that plaintiff was walking without a limp.
(T. 900).
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her elbow impairment. (Pl.’s Br. at 21). However, even if plaintiff took measures that
made it easier to hunt, she has not demonstrated that it was unreasonable for the ALJ to
connect the physical activities common to hunting with the standing, walking, lifting,
reaching, bending and other physical requirements set forth in the RFC.
2.
Mental Limitations
Plaintiff also contends that the ALJ erred by failing to properly account for
plaintiff’s mental limitations in his RFC determination. (Pl.’s Br. at 21-26). This court
finds that the ALJ’s consideration of the impact of plaintiff’s anxiety, depression, and
other mental impairments on her RFC was supported by substantial evidence.
In reaching the mental RFC, the ALJ assigned “some weight” to the March 16,
2016 opinion of Dr. Mohammad Iqbal, a treating psychiatrist. (T. 19, 927-32). Dr.
Iqbal opined that most of plaintiff’s mental abilities should be categorized as “fair,”
including maintaining regular attendance, understanding and carrying out simple
instructions, making simple work-related decisions, completing a normal workday, and
sustaining an ordinary routine without supervision. (T. 19, 930-31). As defined in the
Medical Source Statement prepared by Dr. Iqbal, the term “fair” described an “[a]bility
to function in this area is seriously limited, but not precluded.” (T. 930). Although the
form requested additional explanation for limitations that fell within the “fair” or
“poor” categories, Dr. Iqbal did not complete this portion of the evaluation. (T. 93031). However, he did opine that plaintiff had “moderate” restrictions on activities of
daily living, and “moderate” difficulties in maintaining social functioning. (T. 931). He
further opined that plaintiff had a poor prognosis if her mental impairments were not
15
treated. (T. 929). The ALJ found that Dr. Iqbal’s opinion was consistent with treatment
notes showing that plaintiff’s mental impairments were under control with medication
and that plaintiff was “happy” with her current treatment regimen. (T. 19, 858, 935-37,
939-45).
The ALJ also found that Dr. Iqbal’s opinion was consistent with the opinion of
Dr. S. Bhutwala, a non-examining state psychologist. (T. 20, 164-68). Dr. Bhutwala
opined that plaintiff had “moderate” limitations in her ability to understand and carry
out detailed instructions, maintain attention and concentration for extended periods,
perform activities without a schedule, sustain an ordinary routine without supervision,
interact appropriately with the general public, accept instructions and respond to
supervisors, get along with peers, and respond to changes in the work setting. (T. 20,
164-66). An ALJ may rely on a non-examining state agency consultant’s opinion when
it is supported by other record evidence. Frey ex rel. A.O. v. Astrue, 485 F. App'x 484,
487 (2d Cir. 2012).
The ALJ assigned “very little weight” to the July 25, 2014 opinion of Dr. Robert
Kohlbrenner, a former treating psychologist. (T. 19, 442-46). Dr. Kohlbrenner opined
that plaintiff was “severely emotionally disturbed and her capacity for stable
interpersonal interactions is quite limited.” (T. 446). He further opined that plaintiff
was “an extremely poor candidate for any type of consistent competitive employment.”
(Id.) The ALJ found that Dr. Kohlbrenner’s broadly generalized opinion was not
consistent with plaintiff’s mental health record, and was based on a limited treatment
relationship of four visits between July 2013 and April 2014. (T. 19, 442). The ALJ
16
also noted that the “primary” purpose of these office visits was to administer mental
health tests and discuss their results. (Id.) Plaintiff contends that this oversimplifies the
treatment relationship, but has not identified anything in the four pages of handwritten
treatment notes included with Dr. Kohlbrenner’s opinion that are inconsistent with the
ALJ’s findings. In addition, despite the minimal weight assigned to this opinion, the
ALJ’s RFC incorporated the only specific limitation identified by Dr. Kohlbrenner
when he limited plaintiff to occasional interaction with co-workers and supervisors, and
no interaction with the general public. (T. 15).
The ALJ also considered the opinion of Dr. Thomas Lazzaro, a psychologist who
met with plaintiff and conducted a series of intelligence and other tests in March 2016.6
(T. 19, 917-22). In his Medical Source Statement, Dr. Lazzaro opined that plaintiff had
moderate limitations in her ability to understand and carry out simple instructions. (T.
920). The ALJ assigned this portion of his opinion “some weight” because it was
consistent with the opinions of Dr. Iqbal and Dr. Bhutwala, as well as plaintiff’s
treatment record and daily activities. (T. 19).
Dr. Lazzaro also opined that plaintiff had “marked” limitations in her ability to
understand and carry out detailed instructions, make simple work-related decisions,
interact with others, respond to changes in the work setting, and deal with work
pressures. (T. 920-21). He based these opinions on plaintiff’s full scale IQ score of 69,
which placed her “in the high end of the Mildly Mentally Retarded range of intellectual
6
The ALJ discussed Dr. Lazzaro’s opinion (Exhibit Nos. 23F and 24F) at length in the
decision, but cited to an incorrect exhibit number (22F) for part of that discussion. (T. 19).
17
functioning.” (T. 918, 921). The ALJ assigned “little weight” to these opinions, citing
the lack of record support and the evidence indicating that plaintiff’s mental
impairments were well-controlled with medication. (T. 19). The ALJ also noted that
plaintiff’s educational record, which included an IEP for math, did not suggest the
marked or extreme intellectual deficits described by Dr. Lazzaro. (T. 19, 318-25, 32733). In addition, plaintiff had obtained a driver’s license, took care of her personal
needs and basic chores, worked at multiple jobs after leaving school, and had lived
independently before returning to her mother’s home. (T. 14, 19, 109, 113, 115, 12628). She also reported that she used the internet to read the newspaper on a daily basis.
(T. 298). The ALJ thus had substantial evidence to discount those portions of Dr.
Lazzaro’s opinion that he found inconsistent with the record.
As set forth above, the ALJ determined the functional limitations imposed by the
combination of plaintiff’s physical and mental impairments after considering the
objective medical evidence, relevant medical opinions, plaintiff’s daily activities and
the hearing testimony. Therefore, this court concludes that the ALJ’s determination
that plaintiff was able to perform less than the full range of light work was supported by
substantial evidence.
VII. LISTED IMPAIRMENT
A.
Legal Standard
At step three of the disability analysis, the ALJ must determine if plaintiff suffers
from a listed impairment. See 20 C.F.R. §§ 404.1520, 416.920. It is the plaintiff’s
burden to establish that his or her medical condition or conditions meet all of the
18
specific medical criteria of particular listed impairments. Pratt v. Astrue, 7:06-CV-551,
2008 WL 2594430 at *6 (N.D.N.Y. 2008) (citing Sullivan v. Zebley, 493 U.S. 521, 530
(1990)). If a plaintiff’s “impairment ‘manifests only some of those criteria, no matter
how severely,’ such impairment does not qualify.” Id. In order to demonstrate medical
equivalence, a plaintiff “must present medical findings equal in severity to all the
criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. at 531
(emphasis added).
B.
Application
In light of plaintiff’s full scale IQ score of 69 on the test administered by Dr.
Lazzaro, plaintiff contends that the ALJ erred by failing to consider whether plaintiff’s
impairments met or substantially equaled Listing 12.05, Intellectual Disorders. (Pl.’s
Br. at 25-26). Plaintiff’s representative raised the potential applicability of Listing
12.05 at her hearing, but the ALJ did not expressly consider it as part of his step three
determination. (T. 13-15, 104-105).
The regulations governing Listing 12.05 were revised on September 26, 2016,
with an effective date of January 17, 2017. See Revised Medical Criteria for Evaluating
Mental Disorders, 81 Fed. Reg. 66,138, 2016 WL 5341732 (F.R.), at *66138, *66167
(Sept. 26, 2016). Plaintiff’s counsel relies on this revised rule in its brief. (Pl.’s Br. at
26). However, in its recent consideration of this question, the Second Circuit has
applied the version of Listing 12.05 in effect at the time of a plaintiff’s application. See
Bushey v. Berryhill, 739 F. App’x 668, 672 (2d Cir. 2018). This court will do the
19
same.7
Under the version of Listing 12.05 in effect when plaintiff filed her disability
application, a person is per se disabled if she exhibits “significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.” See Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
The Listing, as set forth in relevant part at 12.05C, also stated that “[t]he required level
of severity for this disorder is met when” the applicant has “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of function.”
Id. at 152.
In addition, the applicant must also carry “her separate burden of establishing
that she suffers from qualifying deficits in adaptive functioning,” and that those deficits
“initially manifested ... before age 22.” Id. at 152 n.4, 153 (emphasis added). These
deficits must arise from an applicant’s cognitive limitations. See Lawler v. Astrue, 512
F. App’x 108, 110 (2d Cir. 2013). “Adaptive functioning refers to an individual’s
‘ability to cope with the challenges of ordinary everyday life.’ ” Talavera, 697 F. 3d at
153 (internal brackets omitted) (quoting Novy v. Astrue, 497 F.3d 708, 710 (7th Cir.
2007) ). Thus, “‘persons with an IQ in the 60s (or even lower) may still be able to hold
7
When confronted with the same question, a recent decision from the Western District of
New York applied the version of Listing 12.05 that was in effect at the time of the ALJ’s
decision. See Redding v. Berryhill, No. 16-CV-848, 2019 WL 91690, at *3, n.1. (W.D.N.Y. Jan.
2, 2019). In this case, the distinction is academic, because the same regulations were in effect at
the time of plaintiff’s May 8, 2014 application and the ALJ’s June 10, 2016 decision.
20
a full-time job,’ and are therefore not disabled, if their adaptive functioning is
sufficiently intact.” Id. (quoting Novy, 497 F.3d at 709).
Even if the court assumes that plaintiff met her burden of demonstrating that her
low IQ score developed prior to age twenty-two, plaintiff has not demonstrated that she
also suffered from qualifying deficits in adaptive functioning. In his decision, the ALJ
marshaled record evidence in his RFC determination that showed that plaintiff was able
to care for herself, live independently, drive, and engage in other daily activities that
demonstrated had the ability to “cope with the challenges of ordinary everyday life.”
Therefore, plaintiff would not qualify under Listing 12.05, and the ALJ’s failure to
expressly consider that listing in his step three determination would be harmless error.
See Lawler, 512 F. App’x at 111 (“While the ALJ did not base her conclusion about
listing 12.05 on [plaintiff’s] adaptive functioning, this determination and its
corresponding support in the record renders remand futile.”).
Similar analysis would govern even if the court applied the current version of
Listing 12.05, as set out in plaintiff’s brief.8 In his decision, the ALJ found that
plaintiff did not have extreme or marked limitations in the ability to understand,
remember or apply information; the ability to interact with others; the ability to
8
In relevant part, revised Listing 12.05B is satisfied when a claimant has a “full scale (or
comparable IQ score of 70 or below on an individually administered standardized test of general
intelligence . . . .,” and “significant deficits in adaptive functioning currently manifested by
extreme limitation of one, or marked limitation of two, of the following areas of mental
functioning: (a) understand, remember or apply information . . . . or (b) interact with others . . . or
(c) concentrate, persist, or maintain pace . . . or adapt or manage onself.” In addition, there must
be evidence demonstrating or supporting the conclusion that the disorder began prior to the
claimant reaching the age of 22. See Revised Medical Criteria for Evaluating Mental Disorders,
81 Fed. Reg. 66,138, 2016 WL 5341732 (F.R.), at *66138, *66167 (Sept. 26, 2016).
21
concentrate, persist, or maintain pace; or the ability to adapt or manage onself. (T. 1415, 23-26). As detailed above, the ALJ supported those conclusions with substantial
evidence.
In sum, even if plaintiff exhibits some of the required signs and symptoms
required by Listing 12.05, that does not meet plaintiff’s burden at step three to show
that she meets all the requirements of a particular Listing. Therefore, this court finds
that the ALJ’s determination that plaintiff’s impairments did not meet or equal the
severity of a Listed Impairment was supported by substantial evidence.
VIII. STEP FIVE DETERMINATION
A.
Legal Standards
At step five of the disability analysis, the burden shifts to the ALJ to demonstrate
that there is other work in the national economy that plaintiff can perform. Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009). If the ALJ utilizes a VE at the hearing, the
VE is generally questioned using a hypothetical question that incorporates plaintiff’s
limitations. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981). Although the
ALJ is initially responsible for determining the claimant’s capabilities based on all the
evidence, see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983), a
hypothetical question that does not present the full extent of a claimant’s impairments
cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec’y of
Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F.
Supp. 497, 503-04 (S.D.N.Y. 1996). Conversely, the ALJ may rely on a VE’s
testimony regarding the availability of work as long as the hypothetical facts the expert
22
is asked to consider are based on substantial evidence and accurately reflect the
plaintiff’s limitations. Calabrese v. Astrue, 358 F. App’x 274, 276 (2d Cir. 2009).
Where the hypothetical is based on an RFC analysis supported by substantial facts, the
hypothetical is proper. Id. at 276-77.
B.
Application
In order to determine whether there were jobs that existed in significant numbers
in the national economy that plaintiff could perform, the ALJ asked the VE a
hypothetical question that mirrored his ultimate determination of plaintiff’s RFC. (T.
142-43). The VE testified that, based on his professional experience, there were a
series of jobs available in the national economy that an individual with that RFC would
be able to perform. (T.143-44). The ALJ relied on this testimony at step five. (T. 2122). Because this court has found that the ALJ's RFC determination was supported by
substantial evidence, it also finds that the ALJ's determination at step five, and the
ultimate determination of disability, were similarly supported by substantial evidence.
Plaintiff’s brief suggests that the ALJ’s RFC and his hypothetical question to the
VE failed to adequately account for plaintiff’s documented difficulties with math. (Pl.’s
Br. at 22-23). However, the three unskilled light work jobs identified by the VE in
response to the ALJ’s questioning were housekeeping cleaner, inspector, and packager.
(T. 22, 143-44). Each of these jobs require, at most, a mathematical development level
of 1.9 See Dictionary of Occupational Titles (“DOT”), Cleaner Housekeeping, 1991
9
Level 1 mathematical development entails the ability to add and subtract two digit
numbers; multiple and divide 10’s and 100’s by 2, 3, 4, 5; perform the four basic arithmetic
operations with coins as part of a dollar; perform operations with units such as cup, pint, quart,
23
WL 672783; DOT, Paint-Spray Inspector, 1991 WL 680249; DOT, Inspector and Hand
Packager, 1991 WL 683797. Plaintiff’s IEP indicated that her math skills were at least
at the fifth grade level (T. 332), so she would be able to meet the associated
mathematical demands of these jobs. See Hall v. Astrue, No. 2:11-CV-22-D, 2012 WL
3732815, at *8 (E.D. N.C. July 6, 2012) (“In any event, mathematical development
level 1 corresponds to no more than a fourth-grade level of mathematical ability.”)
(collecting cases). Therefore, to the extent that the ALJ erred by not referencing
plaintiff’s math skills in his RFC and the resulting hypothetical question to the VE,
such error was harmless. See Ortiz v. Colvin, 298 F. Supp. 581, 590 (W.D.N.Y. 2018)
(omitting a limitation from the RFC finding is irrelevant when the jobs the ALJ relies
on at step five do not require activities affected by that limitation) (collecting cases).
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.
Dated:
February 11, 2019
inch, foot, yard, ounce, and pound. See DOT, Appendix C, Components of the Definition
Trailer, Part III, available at https://occupationalinfo.org/appendxc_1.html#III.
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