Colon-Torres v. Astrue

Filing 15

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Colon-Torres' complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 1/27/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MARY A. COLON-TORRES,
Plaintiff,

6:12-cv-1591
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Stanley Law Offices
215 Burnet Avenue
Syracuse, NY 13203
Law Offices of Kenneth Hiller, PLLC
6000 North Bailey Avenue - Suite 1A
Amherst, NY 14226
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

JAYA A. SHURTLIFF, ESQ.

KENNETH R. HILLER, ESQ.

KATRINA M. LEDERER
Special Assistant U.S. Attorney

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Mary A. Colon-Torres challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. §§ 405(g) and 1383(c)(3). (Compl., Dkt. No. 1.)
After reviewing the administrative record and carefully considering ColonTorres’ arguments, the court affirms the Commissioner’s decision and
dismisses the complaint.
II. Background
On February 23, 2009, Colon-Torres filed an application for SSI
under the Social Security Act (“the Act”), alleging disability since October
10, 1995. (Tr.1 at 60, 135-41.) After her application was denied, (id. at 6164), Colon-Torres requested a hearing before an Administrative Law Judge
(ALJ), which was held on December 1, 2010, (id. at 41-59, 65-67). On
January 21, 2011, the ALJ issued an unfavorable decision denying the
requested benefits, which became the Commissioner’s final decision upon
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

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the Social Security Administration Appeals Council’s denial of review. (Id.
at 1-4, 25-40.)
Colon-Torres commenced the present action by filing her complaint
on October 24, 2012 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 9, 10.) Each party,
seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 12, 13.)
III. Contentions
Colon-Torres contends that the Commissioner’s decision is tainted
by legal error and is not supported by substantial evidence. (Dkt. No. 12 at
6-11.) Specifically, Colon-Torres claims that the ALJ: (1) failed to fully
develop the record; (2) rendered a residual functional capacity (RFC)
determination that is unsupported by substantial evidence and internally
inconsistent; and (3) failed to consult with a vocational expert (VE) in
making her step five determination. (Id.) The Commissioner counters that
the appropriate legal standards were used by the ALJ and her decision is
also supported by substantial evidence. (Dkt. No. 13 at 5-9.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
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No. 12 at 3-5; Dkt. No. 13 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For
a 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.

Duty to Develop the Record
Colon-Torres argues first that the ALJ violated her duty to develop

the record with regard to listing 12.05, by failing to order an IQ
examination. (Dkt. No. 12 at 6-8.) The Commissioner counters that an
intelligence exam was not necessary because, in the absence of such an
exam, the record was sufficient for the ALJ to render a determination about
Colon-Torres’ mental functional capacity. (Dkt. No. 13 at 5-6.) The court

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42 U.S.C. § 1383(c)(3) renders section 405(g) of Title 42 applicable to judicial review
of SSI claims.

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agrees with the Commissioner.
Listing 12.05 pertains to mental retardation, which “refers to
significantly subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested . . . before age [twenty-two].” 20
C.F.R. pt. 404, subpt. P, app. 1 § 12.05. To satisfy listing 12.05(B), a
claimant must demonstrate a valid verbal, performance, or full scale IQ of
fifty-nine or less. Id. § 12.05(B). To satisfy listing 12.05(C) or (D) a
claimant must demonstrate, among other things, a valid verbal,
performance, or full scale IQ of sixty through seventy. Id. § 12.05(C)-(D).
In this case, the ALJ had before her intelligence testing conducted in
September 1995, on which Colon-Torres received a verbal score of
seventy-five, a performance score of eighty-four, and a full scale score of
seventy-eight. (Tr. at 300.) The ALJ considered these scores and noted
that they are too high to satisfy the requirements of listing 12.05. (Id. at
32.) Colon-Torres correctly points out that these scores are stale because
20 C.F.R. pt. 404, subpt. P, app. 1 § 112.00(D)(10) limits the validity of IQ
test results obtained between ages seven and sixteen to two years when
the score is 40 or above.3 (Dkt. No. 12 at 7); see LaRock ex rel. M.K. v.
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Colon-Torres was fifteen at the time of the September 1995 evaluation. (Tr. at 135.)

5

Astrue, No. 10-CV-1019, 2011 WL 1882292, at *5 (N.D.N.Y. Apr. 29, 2011)
(holding that the operative date in evaluating qualification for benefits is
that of application).
The ALJ also considered education records which she stated
contained a January 2000 evaluation on which Colon-Torres scored a
forty-four verbal IQ, a fifty-four performance IQ, and a forty-four full scale
IQ. (Tr. at 32.) The ALJ discounted these scores because the
psychologist who administered the exam and evaluated Colon-Torres
“concluded that she was exhibiting significant drug withdrawal symptoms at
that time” and “diagnosed her with a substance induced mood disorder.”
(Id.) However, because they are illegible, the court cannot read the
education records cited by the ALJ. (Id. at 32, 167-68.) In any event, the
parties do not dispute the results of the testing or the validity of those
scores. Rather, Colon-Torres argues that, because the ALJ found her
January 2000 scores invalid and her September 1995 scores were stale,
the ALJ should have ordered additional IQ testing. (Dkt. No. 12 at 7.) She
further argues that because physician Nikita Dave, who performed an
internal medicine consultative examination, suggested that an intelligence
evaluation be performed, the ALJ should have ordered IQ testing. (Id.; Tr.
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at 270-71.)
While the ALJ has an affirmative obligation to develop the
administrative record, her duty to do so is not without limit. See Guile v.
Barnhart, No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y. June 14,
2010). Indeed, if all of the evidence received is consistent and sufficient to
determine whether a claimant is disabled, further development of the
record is unnecessary, and the ALJ may make her determination based
upon that evidence. See 20 C.F.R. § 416.920b(a). Consistent with that
notion, where there are no “obvious gaps” in the record, the ALJ is not
required to seek additional information. Rosa v. Callahan, 168 F.3d 72, 79
n.5 (2d Cir. 1999). Moreover, the ALJ is afforded discretion in determining
whether a consultative intelligence exam is warranted. See 20 C.F.R.
§ 416.919a. As with development of the record generally, “[a] consultative
examination is unnecessary if the record contains sufficient information on
which to base the decision.” Hall ex rel. M.M. v. Astrue, No. 11-CV-6317T,
2012 WL 2120613, at *4 (W.D.N.Y. June 11, 2012).
Here, consultative examiner Kristen Barry examined Colon-Torres in
June 2009. (Tr. at 263-67.) Upon examination, Colon-Torres displayed
adequate social skills, normal motor behavior, appropriate eye contact,
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fluent and clear speech, and coherent and goal directed thought
processes. (Id. at 264-65.) Her mood was relaxed and calm, affect was
full and appropriate, attention and concentration grossly intact, and recent
and remote memory skills intact. (Id. at 265.) Colon-Torres reported that
she is able to care for her personal hygiene, cook, clean, do laundry, and
shop, but not manage money. (Id.) Dr. Barry estimated her intellectual
functioning to be in the borderline range and opined that Colon-Torres is
able to follow and understand simple directions and instructions, but may
have difficulty performing complex tasks independently. (Id. at 266.)
Thereafter, psychological consultant M. Totin reviewed Colon-Torres’
medical records, including Dr. Barry’s report, and opined that she can do
simple work in a low contact setting. (Id. at 283-96.) These opinions
provided the ALJ substantial evidence to gauge Colon-Torres’ mental
limitations. See Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y.
2010) (“[A]n ALJ is entitled to rely upon the opinions of both examining and
non-examining State agency medical consultants, since such consultants
are deemed to be qualified experts in the field of social security disability.”).
Colon-Torres cites to Major v. Astrue, 12-CV-304S, 2013 WL
2296306 (W.D.N.Y. May 24, 2013), to support her argument that an IQ
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examination was necessary. (Dkt. No. 12 at 7.) In that case, the court
held that remand was warranted where two treating psychologists opined
that a “‘comprehensive neuropsychological evaluation’ was necessary to
obtain objective data for identifying ‘the pattern and severity’ of [the
claimant’s] cognitive impairments.” Major, 2013 WL 2296306 at *3-4. The
court concluded that the psychologists rendered no final opinions as to the
claimant’s mental limitations and the ALJ improperly substituted his own
judgment for competent medical opinion. Id. at *4. Unlike Major, here,
Drs. Barry and Totin did not indicate that further testing was required to
assess Colon-Torres’ limitations, but, rather, opined that she was capable
of performing simple work. (Tr. at 267, 295.)
Ultimately, as the ALJ had before her substantial evidence that
enabled her to render a decision with respect to Colon-Torres’ mental
impairments, the court is satisfied that further development of the record
was unnecessary. See Hall ex rel. M.M., 2012 WL 2120613, at *4.
B.

RFC Determination
Next, Colon-Torres claims that the RFC determination is infirm

because the ALJ inconsistently found that she could “[d]eal with changes in
a routine work setting,” and perform “routine daily tasks and duties which
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do not significantly change in pace or location on a daily basis.” (Dkt. No.
12 at 8-9.) Further, according to Colon-Torres, the ALJ erred in failing to
obtain a treating source opinion or advising her that one was needed. (Id.
at 9-10.) The court disagrees.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(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. § 416.945(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence4 in
the record. See Frye ex rel. A.O. v. Astrue, No. 11-1585-cv, 2012 WL
2125910, at *2 (2d. Cir. June 13, 2012). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; see also
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
First, the court notes that the absence of a medical source statement
from a treating physician will not, by itself, make the record incomplete. 20
C.F.R. § 416.913(b)(6); Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir.
2013). Here, the ALJ had the opinions of Drs. Barry and Totin to rely on,

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“Substantial evidence is defined as more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept to support a conclusion.” Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).

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and their opinions support the ALJ’s assessment of Colon-Torres’ RFC.
(Tr. at 266, 295.) The record also contains a December 2010 assessment
conducted by certified alcohol and substance abuse counselor Nancy
Deangells. (Id. at 331-34.) Upon examination, Colon-Torres was attentive,
engaging, motivated, and pleasant with appropriate motor behavior, an
euthymic mood, and clear speech. (Id. at 331.) Although Colon-Torres
had a hard time staying focused during the exam, her perceptions were
appropriate and thought process were coherent and logical. (Id. at 332.)
Deangells noted that Colon-Torres “has been unable to maintain
employment due to panic symptoms.” (Id. at 333.) Colon-Torres argues
that this is an opinion from a treating source, which the ALJ failed to
address. (Dkt. No. 12 at 9.) However, Deangells was completing a social
history of Colon-Torres, as part of her examination, when she noted her
employment status. (Tr. at 332-33.) Thus, this note indicates ColonTorres explanation of her employment status, and not an opinion as to
Colon-Torres’ ability to perform the basic mental demands of work.
Moreover, the ALJ explicitly considered the Global Assessment of
Functioning (GAF) score of sixty, which Deangells assigned Colon-Torres.

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(Id. at 33, 334.)5 A score of sixty indicates only moderate symptoms or
moderate difficulty in social, occupational, or school functioning. (Id.)
Turning to the alleged internal inconsistency of Colon-Torres’ RFC,
the ALJ’s determination that Colon-Torres could “perform work in low
stress environments, meaning routine daily tasks and duties which are not
fast-paced and which do not significantly change in pace or location on a
daily basis” is consistent with a finding that she could deal with changes in
a routine work setting. (Tr. at 32.) Here, the ALJ was fulfilling her duty to
set forth with sufficient specificity the crucial factors in making her RFC
determination. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(explaining that such specificity is necessary to enable the court to decide
whether the determination is supported by substantial evidence). Thus,
the ALJ made clear that, although Colon-Torres’ ability to respond to the
demands of work limits her to performing low stress jobs, she retains the
ability to perform the basic mental demands of unskilled work. See SSR
85-15, 1985 WL 56857, at *5-6 (1985) (explaining that the skill level of a
position is not necessarily related to the difficulty an individual will have in

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The GAF Scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d
Cir. 2004).

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meeting the demands or “stress”of the job). As the Commissioner points
out, the basic demands of unskilled work require only an ability to deal with
changes in a routine work setting. (Dkt. No. 13 at 7); see Howe v. Colvin,
No. 12 Civ. 6955, 2013 WL 4534940. Indeed, this court and other district
courts in this Circuit have held that limiting a claimant to low stress
environments would not prevent them from performing unskilled work. See
Howe v. Colvin, No. 12 Civ. 6955, 2013 WL 4534940, at *18 (S.D.N.Y.
Aug. 27, 2013) (holding that a claimant’s limitation to simple, routine, and
repetitive tasks in a low stress environment had little or no effect on the
occupational base of unskilled sedentary work); Webb v. Astrue, No. 3:11CV-94, 2012 WL 589660, at *6 (N.D.N.Y. Feb. 22, 2012) (holding that the
ALJ did not err in determining that the claimant was able to meet the
demands of unskilled work where the RFC determination included
“reasonable avoidance of unusually high stress or danger work, i.e., doing
routine daily tasks and duties which are not too fast-paced and which do
not significantly change in pace or location on a daily basis, and which
does not require more than occasional contact with supervisors,
co-workers, or the general public”).
C.

Vocational Expert Testimony
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Lastly, Colon-Torres asserts that the ALJ should have consulted a
VE because her “mental impairments are non-exertional and result in more
than ‘negligible’ limitations.” (Dkt. No. 12 at 10-11.) Again, the court
disagrees.
In making a step-five ruling where the claimant suffers solely from a
nonexertional impairment, the ALJ must consider: (1) the RFC reflecting
such nonexertional impairment and its limiting effects on the availability of
other work; and (2) the claimant’s age, education, and work experience.
See SSR 85-15, 1985 WL 56857, at *2-3. Those medical and vocational
factors must be analyzed under the framework set out in the MedicalVocational Guidelines § 204.00. See id. Although “[t]he assistance of a
vocational resource may be helpful,” and, in some cases, necessary, SSR
85-15 does not require that the ALJ always call upon the services of a VE.
Id. at *3. The ultimate inquiry in a case such as this one is whether the
claimant can perform unskilled work. See id. at *4.
Here, the ALJ concluded that Colon-Torres could meet the basic
demands of unskilled work despite her nonexertional limitations. (Tr. at
35.) As discussed above, this conclusion is supported by substantial
evidence. See supra Part VI.B. That finding obviated the need to consult
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with a VE. See generally SSR 85-15, 1985 WL 56857, at *3-4.
D.

Remaining Findings and Conclusions
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
Colon-Torres’ 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.
January 27, 2014
Albany, New York

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