Taylor v. Astrue

Filing 14

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Taylor's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 11/22/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SEAN M. TAYLOR,
Plaintiff,

6:12-cv-1389
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter W. Antonowicz
148 West Dominick Street
Rome, NY 13440
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

PETER W. ANTONOWICZ, ESQ.

BENIL ABRAHAM
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Sean M. Taylor challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB), seeking judicial
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Taylor’s arguments, the
court affirms the Commissioner’s decision and dismisses the complaint.
II. Background
On May 21, 2009, Taylor filed an application for DIB under the Social
Security Act (“the Act”), alleging disability since February 20, 2006. (Tr.1 at
95, 137-42.) After his application was denied, (id. at 96-101), Taylor
requested a hearing before an Administrative Law Judge (ALJ), which was
held on July 27, 2010, (id. at 58-94, 102-03). On September 17, 2010, the
ALJ issued an unfavorable decision denying the requested benefits, which
became the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (See id. at 1-7, 36-52.)
Taylor commenced the present action by filing his complaint on
September 11, 2012 wherein he sought review of the Commissioner’s
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 7.)
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determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 6, 7.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 12.)
III. Contentions
Taylor contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 11 at 16-24.)
Specifically, Taylor claims that the ALJ failed to: (1) properly evaluate his
credibility; (2) properly weigh the medical evidence; (3) obtain the
testimony of a vocational expert (VE); and (4) consider whether his
traumatic brain injury met the requirements of listing 12.02. (Id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and his decision is also supported by substantial evidence. (Dkt.
No. 12 at 5-18.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 11 at 3-13; Dkt. No. 12 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
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full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Credibility
First, Taylor contends that “the ALJ failed to conduct a proper

analysis of [his] subjective complaints and his credibility.” (Dkt. No. 11 at
16-21.) The court disagrees.
Once the ALJ determines that a claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
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weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34,486 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
§ 404.1529(c)(3)(i)-(vi)).
Here, the ALJ determined that Taylor’s statements concerning the
intensity, persistence, and limiting effects of his symptoms were not
credible to the extent they are inconsistent with the ALJ’s residual
functional capacity (RFC)2 determination. (Tr. at 44.) In making this
determination, the ALJ considered the objective medical evidence, the
opinion evidence, and Taylor’s activities of daily living. (Id. at 44-46.) In
particular, the ALJ noted that Taylor is able to care for his personal
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A claimant’s RFC “is the most [he] can still do despite [his] limitations.” 20 C.F.R.
§ 404.1545(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 404.1545(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be
affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
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hygiene, care for his two small children, accompany his wife while
shopping during off-hours, take vacations, and travel to visit his family. (Id.
at 45-46, 252, 255, 262, 265, 280, 309, 311, 377, 379, 610.) Further,
Taylor testified that he attended college classes in the spring of 2010 for
three hours a day, five days a week, and “achieved two grades of A, two
grades of B[,] and an F.” (Id. at 46, 87-88.) Taylor was also enrolled in
classes for the fall 2010 semester. (Id. at 88-89.)
Taylor argues that the ALJ erred in not “offering any explanation as
to how performance in academic endeavors correlates to the ability to
perform a full time job,” and not “examin[ing] the reasons why [he] was
absent consistently from one class that resulted in a grade of ‘F.’” (Dkt. No.
11 at 19.) However, the ALJ reasonably concluded that Taylor’s ability to
attend and perform well in a college course of study, despite his receipt of
one failing grade which he attributed to several absences, contradicted his
alleged extensive problems with concentration and reading. (Tr. at 46, 7172.)
Further, Taylor asserts that his inconsistent treatment history and
noncompliance with prescribed treatment is the result of his mental
impairment itself. (Dkt. No. 11 at 19.) However, here, where there is
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nothing in the medical records to link Taylor’s inconsistent mental
treatment to his medical condition, the ALJ properly considered such
treatment history as one factor relevant to making a credibility assessment.
See 20 C.F.R. § 404.1529(c)(3)(iv)-(v); O’Grady v. Astrue, No. 3:10cv1704,
2012 WL 3727220, at *18 (D. Conn. Jan. 19, 2012); see also Mendoza v.
Astrue, No. 6:06-CV-1233, 2008 WL 5054243, at *17 (N.D.N.Y. Nov. 20,
2008). In this case, the ALJ noted that Taylor did not receive treatment for
Post Traumatic Stress Disorder (PTSD) from April 2008 until August 2009.
(Tr. at 45.) Indeed, in July 2009, Taylor explained to consultative examiner
Kristen Barry that he was not currently getting treatment or taking
medication because he was doing “fairly well” and “ha[d] a new baby in the
home and . . . there [wa]s just no time for depression.” (Id. at 309, 311.)
Additionally, in February 2009, when contacted by the Syracuse VA
Medical Center offering treatment for PTSD, Taylor indicated that he was
doing well and not in need of services. (Id. at 222-23.) At the
administrative hearing, Taylor asserted that he declined treatment from the
Syracuse VA Medical Center because a previous therapist had left without
explanation, causing him to lose trust in the facility. (Id. at 82.)3
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Taylor mistakenly testified that this conversation took place in 2006. (Tr. at 82.)
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Ultimately, the ALJ sufficiently set forth reasons, which were well
grounded in the record, for finding Taylor to be only partially credible.
B.

Weighing Medical Evidence
Next, Taylor argues that the Commissioner failed to properly weigh

the medical evidence. (Dkt. No. 11 at 21-23.) Specifically, Taylor asserts
that there is a contradiction in the ALJ’s RFC determination which indicated
that Taylor could perform a limited range of medium work and that he was
capable of performing work at all exertional levels. (Id. at 21.) Further,
Taylor contends that the ALJ should have afforded great weight to the
opinion of treating psychologist Tanya Bowen.4 (Dkt. No. 11 at 22-23.)
The Commissioner counters, and the court agrees, that the ALJ properly
evaluated the medical opinion evidence. (Dkt. No. 12 at 12-16.)
Initially, the court concludes that the ALJ determined that Taylor
could perform the demands of “medium work,” and his reference to “work
at all exertional levels” was an inadvertent typographical error. (Tr. at 43.)
Notably, throughout his determination, the ALJ references medium work
and cites to the definition of such work in the Regulations. (Id. at 43, 45,

4

In his brief, Taylor mistakenly refers to Dr. Bowen as “treating physician Young.”
(Dkt. No. 11 at 22; Tr. at 599-601.)
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47); see 20 C.F.R. 404.1567(c). Further, as the ALJ explained, the opinion
of consultative examiner Kalyani Ganesh, as well as the objective medical
evidence of record, and Taylor’s treatment history, supports a limitation to
medium work. (Id. at 45.)
Turning to the opinion of Dr. Bowen, controlling weight will be given
to a treating source’s opinion on the nature and severity of a claimant’s
impairments where it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence.” 20 C.F.R. § 404.1527(c)(2); see Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). When a treating source’s opinion
is given less than controlling weight, the ALJ is required to consider the
following factors: the length, nature and extent of the treatment
relationship; the frequency of examination; evidentiary support offered;
consistency with the record as a whole; and specialization of the examiner.
20 C.F.R. §§ 404.1527(c)(2)-(6). The ALJ must provide “‘good reasons’ for
the weight given to the treating source’s opinion.’” Petrie v. Astrue, 412 F.
App’x 401, 407 (2d Cir. 2011) (citations omitted). “Nevertheless, where
‘the evidence of record permits [the court] to glean the rationale of an ALJ’s
decision,’” it is not necessary that the ALJ “‘have mentioned every item of
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testimony presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion of
disability.’” Id. (citation omitted).
Here, Dr. Bowen opined that Taylor had “no ability to” deal with the
public and stress, and was “effectively precluded from” relating to family
and acquaintances, relating to authority figures, functioning independently,
and relating predictably in social situations. (Tr. at 599-600.) In addition,
Taylor was effectively precluded from using judgment, maintaining
attention and concentration, and understanding, remembering, and
carrying out complex and detailed, but not complex, instructions. (Id. at
599.) According to Dr. Bowen, Taylor was also “significantly limited but not
precluded from” understanding, remembering, and carrying out simple
instructions, behaving in an emotionally stable manner, and demonstrating
reliability. (Id. at 599-600.) The ALJ gave “little weight” to the opinion of
Dr. Bowen, because it is unsupported by the objective medical evidence
and is inconsistent with the level of functioning reported by Taylor. (Id. at
46.)
Taylor points to the opinion of treating psychiatrist Dr. Louis Profenno
as support for Dr. Bowen’s restrictive opinion. (Dkt. No. 11 at 22.) Dr.
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Profenno opined that Taylor’s ability to deal with the public, deal with
stress, understand, remember, and carry out complex instructions, behave
in an emotionally stable manner, and relate predictably in social situations
was “seriously limited.” (Tr. at 406-07.) However, “whether there is
substantial evidence supporting the [claimant]’s view is not the question”;
instead, the court “must decide whether substantial evidence supports the
ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, No. 12-4186-cv, 2013 WL
3214890, at *1 (2d Cir. June 27, 2013).
Here, substantial evidence supports the ALJ’s decision to discount
the opinion of Dr. Bowen. For example, Taylor’s mental status
examinations throughout the record were largely benign. (Tr. at 224, 24041, 249, 253, 263, 266-67, 273, 275, 302, 310-11, 356, 369, 372, 377, 38081, 431, 434-35, 448-49, 454, 480, 602-03, 609-10, 613.) Additionally,
testing conducted by the Syracuse VA Medical Center in November 2007
revealed only mild memory deficits and it was noted that Taylor remained
focused during testing. (Id. at 255-56.) Dr. Barry conducted intelligence
testing on Taylor in July 2009 and noted that he was relaxed and
comfortable throughout the testing session, was able to recall and
understand the instructions, and had good attention and concentration.
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(Id. at 314.) The results of that testing revealed that Taylor’s cognitive
functioning was in the average range. (Id. at 314-15.) As discussed
above, Taylor attended college classes five days a week, with fifteen
students in a class, and planned to take additional classes in the future.
(Id. at 87-90.) He testified that while attending classes he suffered no
instances of loss of impulse control, although he failed to attend classes
approximately once a week. (Id. at 91-92.) Further, he reported playing
video games “hourly” and participating in the care of his two children. (Id.
at 173, 176.) He also reported no “problems getting along with” people in
positions of authority, and that he “can tolerate being around a group of
people as long as he knows them.” (Id. at 178, 293.) Dr. Barry’s report
indicates that Taylor has fair to good relationships with his family, and,
although Taylor denied it at the administrative hearing, (id. at 81-82), he
has friends with whom he socializes, (id. at 311). Based on her
examination, Dr. Barry opined that Taylor is able to follow and understand
simple instructions and directions and maintain attention and
concentration. (Id.) In addition, after reviewing the medical evidence of
record, psychologist M. Totin opined that Taylor’s mental health impairment
was not severe under the Regulations. (Id. at 323, 333, 335.)
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Lastly, it is important to note that the ALJ did not discount the opinion
of Dr. Profenno wholesale, but rather adopted some of the limitations
adduced by him in finding that Taylor could perform only simple, unskilled
work, with only occasional interaction with the public. (Id. at 43.) Indeed,
Dr. Profenno himself opined that Taylor had a “fair” ability to, among other
things, relate to acquaintances, use judgment, relate to authority figures,
maintain attention and concentration, understand, remember, and carry out
simple and detailed, but not complex instructions, and demonstrate
reliability. (Id. at 406-07.)
In sum, the ALJ provided sufficient reasons for discounting the
opinions of Drs. Bowen and Profenno, and his decision to do so is
supported by substantial evidence.
C.

Vocational Expert
Taylor also argues that “[s]ince the ALJ found ‘marked difficulties in

social functioning,’ a [VE] should have been called.” (Dkt. No. 11 at 23.)
Moreover, Taylor contends that errors in assessing his credibility and
weighing the medical evidence caused the ALJ to improperly determine
Taylor’s nonexertional impairments. (Id.) The court disagrees.
As discussed above, the ALJ’s credibility finding and evaluation of
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the medical evidence were legally sound and are supported by substantial
evidence. See supra Part VI.A-B. Further, contrary to Taylor’s argument,
at step two of the sequential evaluation, the ALJ found Taylor to suffer mild
limitations in social functioning. (Tr. at 42.) Although the ALJ determined
that Taylor suffers from nonexertional limitations, he concluded that such
limitations had little or no effect on the occupational base of unskilled
medium work. (Id. at 47); see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.
1986) (explaining that an ALJ should consult with a VE “if a claimant’s
nonexertional impairments ‘significantly limit the range of work permitted by
[his] exertional limitations’” (quoting Blacknall v. Heckler, 721 F.2d 1179,
1181 (9th Cir. 1983))). As the Commissioner points out, (Dkt. No. 12 at
18), unskilled work “ordinarily involve[s] dealing primarily with objects,
rather than with data or people.” SSR 85-15, 1985 WL 56857, at *4
(1985). Accordingly, the ALJ did not err in failing to obtain the testimony of
a VE.
D.

Listing 12.02
Finally, Taylor contends that the ALJ erred in failing to consider

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whether he suffers from an impairment equal to listing 12.02.5 (Dkt. No. 11
at 23-24.) According to Taylor, the evidence of record supports the finding
that, as a result of his brain injury, he experiences perceptual or thinking
disturbances and emotional lability resulting in a marked restriction of
activities of daily living, and marked difficulties in maintaining social
functioning and maintaining concentration, persistence, and pace. (Id.)
On the other hand, the Commissioner argues that the ALJ properly
determined that Taylor failed to meet the B requirements of listing 12.02.
(Dkt. No. 12 at 5-8.) The court agrees with the Commissioner.
At the third step of the disability evaluation, the ALJ is required to
determine whether the claimant’s impairment(s) meet or equal an
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. See 20 C.F.R.
§ 404.1520(d); Encarnacion ex rel. George v. Barnhart, 331 F.3d 78, 81
(2d Cir. 2003). To satisfy listing 12.02, which pertains to organic mental
disorders, Taylor was required to demonstrate, “a loss of specific cognitive
abilities or affective changes and the medically documented persistence of
at least one of” the conditions specified in paragraph A, including

5

Although Taylor asserts that he meets the requirements of listing 12.02(C), his
arguments pertain to the requirements of paragraphs A and B of that section.
15

perceptual or thinking disturbances, or emotional lability and impairment in
impulse control. 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.02(A)(3), (6).
The persistent condition from paragraph A must result in at least two of the
paragraph B conditions, specifically: “1. [m]arked restriction of activities of
daily living; or 2. [m]arked difficulties in maintaining social functioning; or 3.
[m]arked difficulties in maintaining concentration, persistence, or pace; or
4. [r]epeated episodes of decomposition.” Id. § 12.02(B).
Taylor’s claim that the ALJ failed to consider listing 12.02 is flatly
incorrect. (Dkt. No. 11 at 23-24.) The ALJ explicitly considered listing
12.02 and concluded that Taylor suffered only a mild restriction in activities
of daily living, mild difficulties in social functioning, moderate difficulties in
maintaining concentration, persistence, and pace, and has experienced no
episodes of decompensation. (Tr. at 42.) Taylor relies on the opinions of
Drs. Bowen and Profenno, to support his argument that he suffers marked
restrictions in activities of daily living, social functioning, and concentration,
persistence, and pace. (Dkt. No. 11 at 24.) However, as discussed above,
the ALJ properly declined to give the opinions of these treating sources
controlling weight. See supra Part VI.B. Further, the ALJ’s determination
with respect to each of the relevant areas of functioning, is supported by
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substantial evidence. Treatment notes and Taylor’s own reported activities
indicate that he is able to care for his personal hygiene, drive a vehicle,
care for his two small children, perform yard work with assistance, and
accompany his wife while shopping. (Tr. at 42, 173-76, 256, 311.) With
respect to social functioning, although Taylor suffered difficulties, treatment
notes reveal that he was pleasant and sociable, with good eye contact, and
was able to attend college courses, attend group therapy sessions, travel
to visit family, and maintain a good relationship with his spouse. (Id. at
224, 232, 239, 242, 249, 253, 262, 266, 310-311, 369, 372, 377, 379, 437,
454, 491, 610.) Taylor’s memory was consistently found to be intact and
his attention and concentration within normal limits, he achieved high
marks in four of his five college courses, and regularly played video games.
(Id. at 88, 176, 224, 241, 249, 253, 263, 266-67, 275, 311, 356, 435.) In
addition, Dr. Totin opined that Taylor only suffered mild functional
limitations. (Id. at 333.)
Based on the foregoing, the court cannot find that the ALJ’s
determination—that Taylor did not meet the requirements of listing
12.02(B)—was unsupported by substantial evidence.
E.

Remaining Findings and Conclusions
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After careful review of the record, the court affirms the remainder of
the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Taylor’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
November 22, 2013
Albany, New York

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