Alsheikhmohammed v. Colvin
Filing
19
DECISION AND ORDER granting in part and denying in part Plaintiff's # 16 motion for judgment on the pleadings; granting in part and denying in part Defendant's #[17} motion for judgment on the pleadings; and REMANDING this matter to Defendant, pursuant to 42 U.S.C. §405(g), for further proceedingsconsistent with the Decision and Order. Signed by Judge Glenn T. Suddaby on 7/1/15. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
INAAM ALSHEIKHMOHAMMED,
Plaintiff,
v.
Case No. 6:14-CV-461 (GTS)
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
OFFICE OF PETER M. HOBAICA, LLC
Counsel for Plaintiff
2045 Genesee St.
Utica, NY 13501
B. BROOKS BENSON, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278
EMILY M. FISHMAN, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Inaam
Alsheikhmohammed (“Plaintiff”) against the Commissioner of Social Security
(“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
are the parties’ cross-motions for judgment on the pleadings. (Dkt. Nos. 16, 17.) For
the reasons set forth below, Plaintiff’s motion is granted in part and denied in part and
Defendant’s motion is granted in part and denied in part.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born on February 19, 1966. (T. 120.) She completed high school.
(T. 140.) Generally, Plaintiff’s alleged disability consists of depression and dizziness.
(T. 139.) Her alleged disability onset date is May 26, 2011. (T. 120.) She has no
previous work experience. (Id.)
B.
Procedural History
On December 14, 2011, Plaintiff applied for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act. (T. 120.) Plaintiff’s application was
initially denied, after which she timely requested a hearing before an Administrative Law
Judge (“the ALJ”). On October 23, 2012, Plaintiff appeared before the ALJ, John P.
Ramos. (T. 32-47.) On December 4, 2012 the ALJ issued a written decision finding
Plaintiff not disabled under the Social Security Act (T. 9-27.) On February 28, 2014, the
Appeals Council (“AC”) denied Plaintiff’s request for review, rendering the ALJ’s
decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely
sought judicial review in this Court.
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 9-27.) First, the ALJ found Plaintiff had not engaged in
substantial gainful activity since the application date of December 14, 2011. (T. 14.)
Second, the ALJ found Plaintiff had the severe impairments of depression,
posttraumatic stress disorder (“PTSD”), and history of peripheral vertigo. (Id.) Third, the
ALJ found Plaintiff did not have an impairment that meets or medically equals one of the
2
listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 15-17.)
Fourth, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform
“light work,” except:
she should avoid climbing ladders or scaffolds, and she should not work or
balance at unprotected heights or with dangerous machinery. [Plaintiff]
retain[ed] the ability to understand and follow simple instructions and
directions; perform simple tasks with supervision and independently;
maintain attention/concentrations for simple tasks; regularly attend to a
routine and maintain a schedule; relate to and interact with others to the
extent necessary to carry out simple tasks; and handle reasonable levels
of simple, work-related stress, in that she [could] make occasional simple
decisions directly related to the completion of her tasks in a stable,
unchanging work environment.
(T. 17.)1
Fifth, the ALJ determined there were jobs that exist in significant numbers in the
national economy Plaintiff could perform. (T. 20.)
II.
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.
Plaintiff’s Arguments
Plaintiff makes nine separate arguments in support of her motion for judgment on
the pleadings. First, Plaintiff argues she meets Listings §§ 12.04 and 12.06. (Dkt. No.
16 at 10-13 [Pl.’s Mem. of Law].) Second, Plaintiff argues the ALJ erred in weighing the
opinion evidence in the record. (Id. at 13-17.) Third, Plaintiff argues the ALJ erred in
failing to consider the medical source statement provided by Tatyana Misyulya, M.D.
(Id. at 17-18.) Fourth, Plaintiff argues the ALJ erred in failing to find Plaintiff has severe
impairments of the neck and lower back, and obesity. (Id. at 18-20.) Fifth, the Plaintiff
1
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long
periods of time. 20 C.F.R. § 416.967(b)
3
argues the ALJ erred in relying on Global Assessment of Functioning (“GAF”) scores in
his RFC finding. (Id. at 20-21.)2 Sixth, the Plaintiff argues the ALJ erred in finding
Plaintiff “illiterate and unable to communicate in English” but retained the ability to
perform light work without seeking the opinion of a vocational expert (“VE”). (Id. at 2122.) Seventh, the Plaintiff argues the ALJ erred in finding Plaintiff had the RFC for light
work involving simple instructions, simple tasks, and simple stress without seeking the
opinion of a VE. (Id. at 22-23.) Eighth, Plaintiff argues the ALJ erred in failing to set forth
specific required findings supporting his opinion Plaintiff could perform light work. (Id. at
23-24.) Ninth, and lastly, Plaintiff argues the ALJ erred in failing to set forth required
findings to substantiate his rejection of Plaintiff’s testimony as to pain and limitations as
not credible. (Id. at 24-25.)
B.
Defendant’s Arguments
In response, Defendant makes essentially seven arguments. First, Defendant
argues the ALJ properly considered the opinion evidence regarding Plaintiff’s mental
impairments. (Dkt. No. 17 at 5-17 [Def.’s Mem. of Law].) Second, Defendant argues
the AC properly considered Dr. Misyulya’s physical RFC assessment. (Id. at 17-19.)
Third, Defendant argues the ALJ properly considered all of Plaintiff’s impairments. (Id.
at 19-21.) Fourth, Defendant argues the ALJ properly considered Plaintiff’s illiteracy and
inability to communicate in English. (Id. at 21-22.) Fifth, the Defendant argues the ALJ
was not required to seek the opinion of a VE. (Id. at 22-23.) Sixth, the Defendant argues
remand is not warranted for a function-by-function analysis. (Id. at 23.) Seventh, and
lastly, Defendant argues the ALJ properly evaluated Plaintiff’s credibility. (Id. at 23.)
2
The American Psychiatric Association (“APA”) recognized the GAF scale as a means of tracking
clinical progress of individuals with respect to psychological, social, and occupational functioning. Diagnostic and
Statistical Manual of Mental Disorders, at 32 (4th ed. 2000).
4
III.
RELEVANT LEGAL STANDARD
A.
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g) and 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and has been defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
5
If supported by substantial evidence, the Commissioner’s finding must be
sustained “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable
deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R. §
416.920. The Supreme Court has recognized the validity of this sequential evaluation
process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The
five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which significantly limits his
physical or mental ability to do basic work activities. If the claimant suffers such
an impairment, the third inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in Appendix 1 of the regulations.
If the claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether, despite
the claimant’s severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform his past work,
the [Commissioner] then determines whether there is other work which the
claimant could perform. Under the cases previously discussed, the claimant
bears the burden of the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
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IV.
ANALYSIS
Plaintiff’s offers a host of arguments in support of her brief. In an attempt to
address her arguments efficiently, this Court will address them in a consolidated
manner.
A.
Whether the ALJ Properly Determined Plaintiff Did Not Meet a Listing
at Step Three.
After carefully considering the matter, the Court answers this question in the
affirmative, in part for the reasons stated in Defendant’s memorandum of law. (Dkt. No.
17 at 14 [Def.’s Mem. of Law]). The Court adds the following analysis.
Plaintiff argues she meets Listings §§ 12.04: Affective disorders and 12.06:
Anxiety-related disorders, based on the medical opinion of Dr. Misyulya. (Dkt. No. 16 at
10-13 [Pl.’s Mem. of Law].) Defendant counters, although the ALJ did not specifically
address Dr. Misyulya’s opinion at step three, the ALJ’s decision as a whole supports his
step three determination. (Dkt. No. 17 at 14 [Def.’s Mem. of Law].)
The ALJ determined at step three Plaintiff did not meet or equal Listings §§ 12.04
or 12.06. (T. 15.) The ALJ analyzed the “paragraph B” criteria for the two listings. (Id.)3
The ALJ found Plaintiff had mild restrictions in activities of daily living; mild difficulties in
social functioning; and moderate difficulties in concentration, persistence or pace. (T.
15.)
3
To satisfy “paragraph B” criteria for both Listings, the mental impairments must result in at least two
of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence or pace; or repeated episodes of decompensation, each
of extended duration. See 20 C.F.R. Part 404, Subpart P, Appendix 1
7
The ALJ then examined the “paragraph C” criteria of each Listing.4 Under Listing
§12.04 the ALJ determined Plaintiff did not meet the criteria because she did not have
repeated episodes of decompensation, each of extended duration and there was no
evidence Plaintiff required a highly supportive living arrangement. (T. 16.) The ALJ
analyzed the “paragraph C” criteria under Listing § 12.06.5 He determined Plaintiff did
not meet the criteria because restrictions in this area were due to a language barrier,
not her mental health impairments. (Id.)
The Plaintiff first argues the ALJ erred in failing to discuss how Plaintiff meets the
requirements of “paragraph A” of Listing §§ 12.04 and 12.06. (Dkt. No. 16 at 10-11 (Pl.’s
Mem. of Law].) This is a fundamental misunderstanding of the Listings. For each Listing
the “paragraph A” criteria must be met AND the criteria in “paragraph B” OR “paragraph
C” must be met. In starting the discussion with paragraphs B and C, it is assumed
Plaintiff’s impairment met the criteria of paragraph A.
The “paragraph A” criteria establishes the presence of an impairment (or
combination of impairments) that triggers a review of that particular Listing. For
example, Listing § 12.04 addresses affective disorders. Paragraph A of Listing § 12.04
provides the criteria for establishing an affective disorder; such as medically
documented evidence of depressive syndrome with at least four of the symptoms listed,
such as sleep disturbance or decreased energy. See 20 C.F.R. Part 404, Subpart P,
4
The “paragraph C” criteria of Listing § 12.04 requires: Medically documented history of a chronic
affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the
following: 1. Repeated episodes of decompensation, each of extended duration; or 2. A residual disease process that
has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate; or 3. Current history of 1 or more years'
inability to function outside a highly supportive living arrangement, with an indication of continued need for such an
arrangement. 20 C.F.R. Part 404, Subpart P, App. 1.
5
The “paragraph C” criteria of Listing § 12.06 requires: complete inability to function independently
outside the area of one's home. 20 C.F.R. Part 404, Subpart P, App. 1.
8
App. 1. Here, the ALJ determined at step two Plaintiff suffers from the severe mental
impairments of depression and PTSD. (T. 14.) Therefore, the “paragraph A” criteria
were met, in Plaintiff’s favor, and the ALJ did not harm Plaintiff in failing to provide a
detailed discussion of how Plaintiff satisfied “paragraph A” requirements.
Plaintiff next argues the ALJ erred in failing to discuss the medical opinion of Dr.
Misyulya in his step three analysis. (Dkt. No. 16 at 11-13 [Pl.’s Mem. of Law].)
Dr. Misyulya provided two medical source statements regarding Plaintiff’s mental
impairments, both dated November 13, 2012. (T. 355-359, 360-363.) At the time of
completing the statements Dr. Misyulya reported only treating Plaintiff twice for thirty
minutes each session. (T. 355.) She opined Plaintiff had marked limitations in the areas
of activities of daily living; maintaining social functioning; and maintaining concentration,
persistence or pace.6 Dr. Misyulya opined Plaintiff’s anxiety caused a complete inability
to function independently outside the area of her home. (T. 358.) Although the ALJ did
not discuss this particular opinion in his step three analysis, he did discuss it in his RFC
analysis. See Berry, 675 F.2d at 469 (finding that a court may be able “to look to other
portions of the ALJ's decision ... in finding that his determination was supported by
substantial evidence....”)
In the ALJ’s RFC analysis he discussed Dr. Misyulya’s medical source
statements and his reasoning for providing those statements “little weight.” (T. 19.)
Whether the ALJ’s evaluation of Dr. Misyulya’s opinion in formulating his RFC was
appropriate is discussed later. For the purpose of his step three analysis, the ALJ did
consider the opinion evidence of Dr. Misyulya, as the ALJ discussed the opinion
6
The statement completed by Dr. Misyulya defined marked as meaning more than moderate but
less than extreme.
9
elsewhere in his decision. Failure to discuss Dr. Misyulya’s opinion specifically at step
three was harmless as the ALJ discussed the opinion elsewhere in his decision and the
ALJ provided substantial evidence to support his conclusion that Plaintiff did not meet or
equal a Listing.
Here, the ALJ provided a detailed discussion of his step three analysis and the
evidence he relied on in making his decision. (T. 15-17.) The Plaintiff urges that this
case is “exactly like” the case of Hunt v. Astrue, 06-CV-99, 2008 WL 3836406 (N.D.N.Y.
Aug. 13, 2008), which was remanded for a proper step three evaluation. However, in
Hunt, the court remanded because the ALJ “cited no medical evidence and provided
very little reasoning to explain his [step three] findings.” Hunt, at *10. Here, the ALJ cited
specific medical evidence, Plaintiff testimony, and provided sufficient reasoning to
explain his findings for the requirements of Listing §§ 12.04 and 12.06. Further, an
assessment of mental impairments at step three does not require the same level of
detailed functional analysis as step four and five require. See SSR 96-8p, 1996 WL
374184 (July 2, 1996). Therefore, the ALJ’s step three determination was supported by
substantial evidence.
A.
Whether the ALJ Properly Considered the Opinion Evidence
Regarding Plaintiff’s Mental Impairments.
After carefully considering the matter, the Court answers this question in the
negative, in part for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 16
at 13-17, 20-21 [Pl.’s Mem. of Law]). The Court adds the following analysis.
Plaintiff argues throughout her brief the ALJ erred in providing “significant weight”
to the opinion of Dr. Snow and only “little weight” to the opinion of Dr. Misyulya and Dr.
Melnick. For the ease of analysis, the mental health portion of the medical record, and
10
subsequent mental health portion of the ALJ’s RFC analysis, will be addressed first. The
physical portion will be addressed in the subsequent section.
Plaintiff received mental health treatment from Dr. Snow, Dr. Misyulya, Benedette
Melnick, NPP, Ph.D., and Joanne McPherson, LSCW-R7, CASAC8. In formulating his
mental RFC analysis, the ALJ relied heavily on the opinion evidence of Dr. Snow;
however, the ALJ failed to discuss, or mention, the mental health treatment Plaintiff
received from Ms. McPherson with the Upstate Cerebral Palsy Community Health &
Behavioral Services Division.
To be sure, the ALJ was not required to mention or discuss every single piece of
evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.1983);
Berry, 675 F.2d at 469; Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981). However, the
ALJ cannot pick and choose the evidence from medical sources that support a
particular conclusion and ignore the contrary evidence. Walsh v. Colvin, 1:13-CV- 0603,
2014 WL 4966142, at *9 (N.D.N.Y. Sept. 30, 2014), see also Royal v. Asture, 5:11-CV456, 2012 WL 5449610, at *6 (N.D.N.Y. Oct. 2, 2012) (while ALJ’s are entitled to
resolve conflicts in the record, they cannot pick and choose only evidence from the
same sources that supports a particular conclusion.)
Here the ALJ placed questionable emphasis on Dr. Snow’s opinion at the
expense of the medical evidence on a whole, which presented a contrary and more
restrictive view of Plaintiff’s mental functional abilities. For the reasons stated below, this
7
Psychotherapy "R" Privilege: An LCSW who fulfills the requirements of the insurance law for
supervised experience providing psychotherapy, is recognized in New York State as a reimbursable psychotherapist.
The "R" privilege requires insurance carriers to provide reimbursement for psychotherapy services whenever a health
insurance contract includes reimbursement of qualified psychologists and psychiatrists.
http://www.op.nysed.gov/prof/sw/lcswprivilege.htm
8
Credentialed Alcoholism and Substance Abuse counselor
11
matter is remanded for a more thorough and balanced analysis of all the medical
evidence in the record.
Plaintiff received comprehensive mental health treatment from Ms. McPherson, a
licensed social worker. While opinions from social workers are not considered
“acceptable medical sources,” such opinions are nevertheless “important and should be
evaluated on key issues such as impairment severity and functional effects.” 20 C.F.R.
§ 416.913, see also SSR 06–03p, 2006 WL 2329939, at *3 (Aug. 9, 2006); see also
White v. Comm'r, 302 F.Supp.2d 170, 174–76 (W.D.N.Y.2004) (reversing where the
ALJ failed to give appropriate weight to the plaintiff's social worker, who had a regular
treatment relationship with the plaintiff and whose diagnosis was consistent with the
treating psychiatrist); Allen v. Astrue, 05-CV-0101, 2008 WL 660510, at *9 (N.D.N.Y.
Mar.10, 2008) (remanding because ALJ did not evaluate the treating therapist's
opinion); Bergman v. Sullivan, 88-CV-513, 1989 WL 280264, *3 (W.D.N.Y. Aug. 7,
1989) (holding that treating social worker is “a non-medical source whose opinion
concerning the nature and degree of plaintiff's impairment is not only helpful, but
critically important, since he is the only treating source”).
This Court is mindful of the fact that the Second Circuit has stated that “the ALJ
has discretion to determine the appropriate weight to accord the [other source's] opinion
based on all the evidence before him.” Diaz v. Shalala, 59 F.3d 307, 313–14 (2d
Cir.1995). However, here the question of appropriate weight is not even at issue,
because the ALJ provides no discussion of Ms. McPherson’s opinion. Therefore, this
Court is not aware if the ALJ even considered Ms. McPherson’s opinion in his mental
RFC analysis.
12
Ms. McPherson began treating Plaintiff as a referral from Dr. Snow. (T. 246.) She
provided mental health counseling from December 12, 2011 through October 29, 2012.
(T. 246-332.) Ms. McPherson worked in conjunction with Dr. Melnick in providing talk
therapy and medication, as treatment records also contain psychopharmacology
records. (T. 339-345.) Of note, the ALJ credits Dr. Snow for providing Plaintiff with
mental health treatment, which he did from October 2011 until he referred Plaintiff to
Ms. McPherson in December of 2011. Although Dr. Snow continued to treat the Plaintiff,
it is apparent from the record that Ms. McPherson and Dr. Melnick took primary control
of Plaintiff’s mental health needs, including medication.
In December 2011 Ms. McPherson’s treatment notes indicated Plaintiff
complained of an inability to sleep, feelings of anxiousness, lack of enjoyment in daily
activities, and she felt “like dying.” (T. 246.) Ms. McPherson noted symptoms of severe
fatigue, heart palpitations, and dizziness. (T. 248.) In January 2012, Ms. McPherson
noted Plaintiff appeared depressed with a flat affect. (T. 249.) Plaintiff again reported
symptoms of a racing heart, fear, panic, no energy and body trembles. (Id.) Ms.
McPherson stressed the importance of a routine to which Plaintiff responded she tried
to conduct a normal life, but symptoms would escalate and caused her to “retreat[] to
her bedroom.” (T. 249.) In March 2012, Ms. McPherson noted Plaintiff was depressed
with a flat affect. (T. 285.) During the March session Plaintiff described her fearfulness
as causing a “shaky” feeling throughout her body which left her weak and exhausted.
(Id.) In April 2012, Plaintiff felt medication was helping her depression, but she still had
a sense of fear. (T. 290.) She reported she would become so overcome by fear that she
could not even shower by herself. (Id.)
13
During her psychiatric evaluation in April 2012, Dr. Melnick observed Plaintiff’s
insight and judgment were appropriate; however, Plaintiff became “overwhelmed very
easily.” (T. 292.) Plaintiff informed Dr. Melnick that she found the noise and light from
the television “overwhelming.” (Id.) Dr. Melnick opined Plaintiff’s memory was intact, but
she could not abstract, generalize, or complete serial sevens. (Id.) Plaintiff complained
that her symptoms of depression, anxiety and panic, together with nightmares and
flashbacks interfered with her activities of daily living. (Id.) Dr. Melnick assigned her a
GAF score of 50 at that time. A GAF score of 41 to 50 indicates “serious symptoms or
any serious impairment in social, occupation, or school functioning.” DSM–IV–TR, at 34.
Although the ALJ did not discuss Ms. McPherson’s treatment of Plaintiff in
analyzing her RFC, the ALJ did provide a discussion of his mental RFC analysis. The
ALJ provided “significant weight” to Dr. Snow’s opinion regarding Plaintiff’s mental
health limitations, “some weight” to Dr. Noia and Dr. Butensky, and “little weight” to Dr.
Misyulya and Dr. Melnick. (T. 18-19.) In affording “significant weight” to the opinion of
Dr. Snow, the ALJ reasoned he was Plaintiff’s treating physician, his opinion was
consistent with a GAF score of 60, treatment notes indicated a decrease in symptoms,
and his opinions were consistent with “very conservative” treatment and lack of
hospitalization. (T. 19.)9
The Plaintiff asserts Dr. Snow’s medical source statement should be afforded
less weight because it was “unclear” and “ambiguous” (Dkt. No. 16 at 15 [Pl.’s Mem. of
Law].) In June 2012 Dr. Snow completed a medical source statement regarding
Plaintiff’s mental abilities. (T. 320-325.) Dr. Snow opined Plaintiff had only “mild”
9
The GAF score of 60 was assigned to Plaintiff by Dr. Melnick on September 20, 2012. The ALJ
afforded Dr. Melnick’s opinion “little weight,” yet he placed significant weight on her one time GAF score of 60. A GAF
score between fifty-one and sixty indicates moderate symptoms or moderate difficulty in social, occupational, or
school functioning. See DSM-IV at 34.
14
impairments in her ability to understand and remember simple instructions; carry out
simple instructions; and carry out complex instructions. (T. 326.) He opined Plaintiff had
no limitations in her ability to interact appropriately with supervisors, co-workers and the
public. (T. 327.) Plaintiff stresses Dr. Snow’s statement is unclear because he originally
indicated Plaintiff did have limitations in her ability to interact with others, but then
indicated she did not have difficulty. (Dkt. No. 16 at 15 [Pl.’s Mem. of Law].) However, it
is apparent from Dr. Snow’s report that his original answer, that she did have limitations,
was in error. Dr. Snow clearly wrote the word “error” and provided his signature and
date next to his incorrect choice. (T. 327.) Therefore, Dr. Snow’s form, in and of itself,
was not unclear or ambiguous. However, for the reasons discussed here, the ALJ erred
in choosing to rely almost exclusively on Dr. Snow’s opinion and in doing so, glossing
over other relevant and contrary evidence in the record.
The Plaintiff urges the adoption of Dr. Misyulya’s opinion, which was outlined in
Part IV.A. The ALJ correctly points out that Dr. Misyulya had a very limited contact with
Plaintiff. (T. 19.) Contrary to Plaintiff’s assertions, the fact Dr. Misyulya only treated her
twice was not “irrelevant,”(Dkt. No. 16 at 14 [Pl.’s Mem. of Law]), because “frequency of
examination” is a relevant factor to consider when affording a medical opinion weight.
20 C.F.R. § 416.927(c)(2). The ALJ further reasoned Dr. Misyulya’s didn’t examine the
Plaintiff for the entire period for which she was seeking disability and her opinion is
inconsistent with Plaintiff’s GAF score of 60. (T. 20.)
Although the ALJ does provide an analysis for the weight he afforded Dr.
Misyulya, the ALJ’s rational is thin. Dr. Misyulya may have only treated Plaintiff twice;
however, she provided detailed treatment notes and a completed medical source
statement. (T. 346-350, 355-359.) Further, the ALJ erroneously placed significant
15
emphasis on Plaintiff’s GAF score of 60 as definitive support of his reasoning in
affording her opinion less weight.
Although a GAF score is opinion evidence, it should be considered in the context
of the record and not as a stand-alone indicator of Plaintiff’s ability (or inability) to
function. “The GAF score is a scale promulgated by the American Psychiatric
Association to assist ‘in tracking the clinical progress of individuals [with psychological
problems] in global terms.’” Kohler, 546 F.3d 260, 262, n. 1, quoting DSM–IV, at 32.
Here, the ALJ used Plaintiff’s GAF score of 60 as stand-alone medical evidence
in support for providing “little” or “some” weight to medical opinions in the record,
indicating that their medical findings are inconsistent with a GAF score of 60. The ALJ
cited to the GAF score in his analysis of each medical opinion concerning mental
limitations in his decision. (T.19-20.) Throughout the record Plaintiff’s lowest GAF score
was 50 in April 2012 (T. 293) and highest of 60 in September 2012 (T. 338). Contrary to
the ALJ’s reasoning, a GAF score of 60 actually supports the bulk of the medical
evidence regarding Plaintiff’s mental limitations.
Dr. Noia opined Plaintiff was capable of understanding and following simple
tasks; she may have difficulty attending to a routine and maintaining a schedule; she
may have difficulty dealing with stress; and she had impaired attention and
concentration. (T. 251-254.) The GAF score was also consistent with Dr. Misyulya’s
observation that Plaintiff had “moderate” limitations in her ability to make judgments;
carry out simple instructions; understand and remember complex instructions; and carry
out complex instructions. (T. 360.) A GAF score of 60 would be inconsistent with Dr.
Snow’s opinion that Plaintiff had only “mild” or no limitations in her ability to carry out
work related mental activities. (T. 19, referring to T.326.) Dr. Snow’s opinion would be
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more consistent with a GAF score of 61 or higher.10 Although an ALJ may take a
Plaintiff’s GAF score into consideration when formulating his RFC analysis, it is
improper for a GAF to replace actual medical evidence such as treatment notes and
medical findings that document Plaintiff’s level of ability to function.
As a whole, the ALJ’s analysis of Plaintiff’s mental functioning in his RFC
analysis is flawed. The ALJ failed to discuss the medical evidence provided by Ms.
McPherson was in error as the evidence provided a contrary opinion to that of Dr.
Snow. The opinion evidence of Ms. McPherson, together with the opinion evidence of
Dr. Noia and Dr. Misyulya, provided a more restrictive view of Plaintiff’s mental
functional abilities. Further, the ALJ improperly used Plaintiff’s GAF score as standalone evidence. Therefore, this matter should be remanded for a proper analysis of the
medical evidence regarding Plaintiff’s mental functional ability, specifically, the ALJ
should address Ms. McPherson’s opinion evidence in accordance with the factors
outlined in 20 C.F.R. § 416.927(c).
B.
Whether the ALJ Properly Considered the Opinion Evidence
Regarding Plaintiff’s Physical Impairments.
1.
Whether the AC Properly Considered Additional Evidence
After carefully considering the matter, the Court answers this question in the
affirmative, in part for the reasons stated in Defendant’s memorandum of law. (Dkt. No.
17 at 17-18 [Def.’s Mem. of Law]). The Court adds the following analysis.
Plaintiff argues that “new and material” evidence was submitted to the AC
consisting of a physical medical source statement completed by Dr. Misyulya regarding
10
61 - 70 Some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning
pretty well, has some meaningful interpersonal relationships. DSM-IV, at 34.
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Plaintiff’s physical impairments; however, the Plaintiff does not argue the AC failed in
not accepting Plaintiff’s request for review. (Dkt. No. 16 at 17 [Pl.’s Mem. of Law].) This
Court agrees with the Defendant, the AC correctly determined the additional evidence
was not “contrary to the weight of the evidence currently of record.” 20 C.F.R. §
416.1470(b).
2.
Whether the ALJ’s Step Two Determination Was Proper
After carefully considering the matter, the Court answers this question in the
affirmative, in part for the reasons stated in Defendant’s memorandum of law. (Dkt. No.
17 at 20 [Def.’s Mem. of Law]). The Court adds the following analysis.
Plaintiff argues the ALJ erred in failing to find Plaintiff’s neck and back
impairments, and obesity, severe at step two. (Dkt. No. 16 at 17-18 [Pl.’s Mem. of Law].)
At step two the ALJ determined Plaintiff had the severe impairments of depression,
PTSD and vertigo. (T. 14.)
The ALJ’s decision discussed Plaintiff’s physical limitations as provided by Dr.
Snow and consultative examiner Joseph Vilogi, M.D. Where, as here, “an ALJ has
omitted an impairment from step two of the sequential analysis, other courts have
declined to remand if the ALJ clearly considered the effects of the impairment in the
remainder of his analysis.” Chavis v. Astrue, 07-CV-0018, 2010 WL 624039, at *12
(N.D.N.Y. Feb. 18, 2010), see also 20 C.F.R. § 416.923 (ALJ required to consider the
“combined effect of all of [plaintiff’s] impairments without regard to whether any such
impairment, if considered separately would be of sufficient severity”). The ALJ’s failure
to find Plaintiff’s back and neck impairment, and obesity, severe at step two of the
sequential analysis is harmless error. See Ellis v. Comm’r of Soc. Sec., 11-CV-2305,
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2012 WL 5464632, at *5 (N.D.N.Y. Sept. 7, 2012). Therefore, remand is not necessary
on this basis.
3.
Whether the ALJ Properly Assessed Plaintiff’s Physical Limitations
in His RFC Analysis
After carefully considering the matter, the Court answers this question in the
negative, in part for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 16
at 19 [Pl.’s Mem. of Law]). The Court adds the following analysis.
As with his mental RFC analysis, the ALJ improperly concentrated on the opinion
evidence of Dr. Snow to the detriment of other relevant and contrary evidence. The ALJ
appears to have not taken into consideration the medical opinion evidence supplied by
Dr. Misyulya regarding Plaintiff’s physical impairments. The ALJ provides a discussion
of Dr. Misyulya’s opinion regarding Plaintiff’s mental impairments; however, provides no
discussion of her treatment notes which contain physical examinations as well. (T. 19.)
Of specific interest is the limiting effects of Plaintiff’s vertigo, which the ALJ did find to be
a severe impairment. Dr. Misyulya first opined Plaintiff had no dizziness and vertigo
except only after sudden changes in position. (T. 351.) However, Plaintiff returned four
days later with her daughter due to concerns that Plaintiff’s language barrier prevented
Dr. Misyulya from obtaining an accurate medical history. (T. 346.) At that visit, Plaintiff’s
daughter expressed concerns that Plaintiff had frequent dizziness and balance
problems. (Id.) Dr. Misyulya then noted Plaintiff had dizziness upon standing, walking up
stairs, and her dizziness caused difficulty in concentrating. (T. 347.) Dr. Misyulya also
observed abnormal gait and stance. (T. 348.)
Dr. Misyulya’s observations are supported by the observations of Dr. Vilogi. Dr.
Vilogi noted Plaintiff had an unsteady gait, was “entirely dependent” for getting on and
19
off the exam table, and was dependent on daughter for walking and dressing. (T. 256.)
Dr. Vilogi opined Plaintiff had “marked” limitations in her ability to stand and walk, and
she should avoid heights and operating heavy machinery. (T. 258.)
Given that this matter is being remanded for a proper evaluation of other medical
opinion evidence, the ALJ should also take care to re-evaluate the opinion evidence
regarding Plaintiff’s physical limitations, specifically the opinion evidence of Dr.
Misyulya’s and Dr. Vilogi regarding limitations due to Plaintiff’s vertigo.
C.
Whether the ALJ Erred in Failing to Provide a Function-by-Function
Analysis.
After carefully considering the matter, the Court answers this question in the
negative, in part for the reasons stated in Defendant’s memorandum of law. (Dkt. No.
17 at 23 [Def.’s Mem. of Law]). The Court adds the following analysis.
Plaintiff argues the ALJ erred in failing to provide a function-by-function analysis
of Plaintiff’s mental impairments and physical impairments. (Dkt. No. 16 at 16, 23-24
[Pl.’s Mem. of Law].)
A function-by-function analysis requires the ALJ to express “the RFC ... [not] in
terms of the exertional categories of ‘sedentary,’ ‘light,’ ‘medium,’ ‘heavy,’ and ‘very
heavy’ ....,” but instead in terms “of the individual's physical and mental capacities,” so
that it is “possible to determine whether the individual is able to do past relevant
work....” SSR 96–8p. These functions include physical abilities such as “sitting,
standing, walking, lifting, carrying, pushing, pulling,” and mental abilities such as
“understanding, remembering, carrying out instructions, and responding appropriately to
supervision,” and other abilities such as “the ability to tolerate environmental factors.”
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir.2013) (citing 20 C.F.R. § 416.945, SSR
20
96–8p). In this Circuit, an ALJ's failure to perform a function-by-function analysis does
not necessitate a per se remand. Cichocki, 729 F.3d at 177. Rather, “the relevant
inquiry is whether the ALJ applied the correct legal standards and whether the ALJ's
determination is supported by substantial evidence.” Id. Here, the ALJ did not err to
provide a function-by-function analysis of Plaintiff’s abilities. However, as stated in Part
IV.B and C(3), the ALJ’s RFC determination is not supported by substantial evidence
and is therefore remanded on those grounds.
D.
Whether the ALJ Properly Determined Plaintiff’s Credibility.
Here, the ALJ found Plaintiff not credible, because her statements were
inconsistent with objective medical evidence and she had no work history. (T. 18.) As
this matter is being remanded for a proper evaluation of medical evidence in the record,
it would be prudent for the ALJ to conduct a credibility assessment once that medical
evidence is properly evaluated.
E.
Whether the ALJ Was Required to Call On the Testimony of a VE.
Plaintiff argues the ALJ should have sought VE testimony. (Dkt. No. 16 at 21-23
[Pl.’s Mem. of Law].) As explained in Parts IV.B. and C. of this Decision and Order, the
ALJ’s RFC determination is not supported by substantial evidence. Accordingly, the
ALJ’s determinations at step five of the sequential analysis is not based on substantial
evidence. On remand, the ALJ may require the assistance of a VE to determine Plaintiff
can perform other work. See 20 C.F.R. § 416.960.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 16) is
GRANTED in part and DENIED in part; and it is further
21
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
GRANTED in part and DENIED in part; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated:
July 1, 2015
Syracuse, NY
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