Horning v. Colvin
Filing
15
DECISION AND ORDER denying Plaintiff's # 12 motion for judgment on the pleadings; granting Defendant's # 13 motion for judgment on the pleadings. Defendant's decision denying disability benefits is AFFIRMED; and Plaintiff's Complaint is DISMISSED. Signed by Judge Glenn T. Suddaby on 7/6/15. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PATRICIA ANN HORNING,
Plaintiff,
v.
Case No. 6:14-CV-0937 (GTS)
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
DEHANN BUSSE, LLP.
Counsel for Plaintiff
300 Rabro Drive East
Hauppauge, NY 11788
JOHN W. DEHAAN, 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
ELIZABETH ROTHSTEIN, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Patricia Ann
Horning (“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’ crossmotions for judgment on the pleadings. (Dkt. Nos. 12, 13.) For the reasons set forth
below, Plaintiff’s motion is denied and Defendant’s motion is granted.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born on July 19, 1977. (T. 165.) She completed high school. (T.
194.) Generally, Plaintiff’s alleged disability consists of depression, anxiety, back
problems, neck problems, and knee injury. (T. 193.) Her alleged disability onset date is
October 13, 2011. (T. 194.) She previously worked with the Department of Motor
Vehicles as a clerk, and at a gas station as a cashier. (T. 195.)
B.
Procedural History
On December 27, 2011, Plaintiff applied for Supplemental Security Income
(“SSI”) under Title XVI and Disability Insurance Benefits (“SSD”) under Title II of the
Social Security Act. (T. 165.) Plaintiff’s application was initially denied, after which she
timely requested a hearing before an Administrative Law Judge (“the ALJ”). On
December 27, 2012, Plaintiff appeared before the ALJ, David J. Begley. (T. 41-70) On
March 22, 2013, the ALJ issued a written decision finding Plaintiff not disabled under
the Social Security Act (T. 25-36.) On June 4, 2014, the Appeals Council (“AC”) denied
Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (T. 1-7.) 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. 25-36.) First, the ALJ found Plaintiff met the insured status
requirements through December 31, 2015 and had not engaged in substantial gainful
activity since October 13, 2011. (T. 27.) Second, the ALJ found Plaintiff had the severe
impairments of degenerative joint disease of the left knee, disorders of the cervical and
2
lumbar spine, post-traumatic stress disorder (“PTSD”), major depressive disorder, and
adjustment disorder with mixed anxiety and depression. (Id.) Third, the ALJ found
Plaintiff did not have an impairment that meets or medically equals one of the listed
impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 28-29.) Fourth,
the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform “light
work,” except:
she may occasionally push and pull with the left lower extremity and never
climb ladders, ropes or scaffolds. She must avoid slippery and uneven
surfaces, hazardous machinery, and unprotected heights. She [was]
limited to simple, routine and repetitive tasks in a work environment free of
fast paced production requirements and involving only simple work-related
decisions, with few if any workplace changes. She [was] limited to only
occasional interaction with coworkers and supervisors and only superficial
interaction with the public.
(T. 29.)1
Fifth, the ALJ determined Plaintiff was unable to perform her past relevant work;
however, there were jobs that existed in significant numbers in the national economy
Plaintiff could perform. (T. 34.)
II.
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.
Plaintiff’s Arguments
Plaintiff makes two separate arguments in support of her motion for judgment on
the pleadings. First, Plaintiff argues the ALJ improperly evaluated the medical
evidence. (Dkt. No. 12 at 18-24 [Pl.’s Mem. of Law].) Second, Plaintiff argues the ALJ
improperly evaluated Plaintiff’s credibility. (Id. at 25.)
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. §§ 404.567(b) and 416.967(b).
3
B.
Defendant’s Arguments
In response, Defendant makes two arguments. Defendant argues the ALJ
properly considered the evidence of record and his RFC finding was supported by
substantial evidence. (Dkt. No. 13 at 5-17 [Def.’s Mem. of Law].) Second, Defendant
argues the ALJ properly assessed Plaintiff’s credibility. (Id. at 17-20.)
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
4
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).
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.
§§ 404.1620 and 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.
5
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).
IV.
ANALYSIS
A.
Whether the ALJ Properly Evaluated the Evidence of Record.
After carefully considering the matter, the Court answers this question in the
affirmative, for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13 at
5-17 [Def.’s Mem. of Law].) The Court adds the following analysis.
Plaintiff argues the ALJ failed to properly evaluate the opinion evidence of Dilip
Kachare, M.D., Kumar Bahl, M.D., and David Stang, Psy.D. (Dkt. No. 12 at 18-24 [Pl.’s
Mem. of Law].)
Plaintiff argues Dr. Kachare, Plaintiff’s treating physician, deserved controlling
weight pursuant to the treating physician rule. (Id. at 20-22.) However, the ALJ properly
afforded Dr. Kachare’s opinion “little weight” based on his limited treatment history and
because his opinion was inconsistent with the objective medical evidence in the record
(T. 33.)
The opinion of a treating source will be given controlling weight if it “is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
6
not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§
404.1527(c)(2) and 416.927(c)(2).
The following factors must be considered by the ALJ when deciding how much
weight the opinion should receive, even if the treating source is not given controlling
weight: “(i) the frequency of examination and the length, nature, and extent of the
treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's
consistency with the record as a whole; and (iv) whether the opinion is from a
specialist.” 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). The ALJ is required to set
forth his reasons for the weight he assigns to the treating physician's opinion. Id., see
SSR 96-2p, 1996 WL 374188 (July 2, 1996); Shaw v. Charter, 221 F.3d 126, 134 (2d
Cir. 2000) (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998)).
Dr. Kachare began treating Plaintiff in June of 2011. (T. 358.) At that time Plaintiff
complained of back pain and tingling in her legs, but denied weakness, numbness, joint
pain, trouble walking, falls or limited movement. (T. 358.) Dr. Kachare conducted a
physical exam which showed full range of motion in Plaintiff’s neck and spine, no
deformity or tenderness of the joints and spine, and no edema. (T. 359.) Dr. Kachare
assessed Plaintiff with low back pain. (Id.) He prescribed Plaintiff pain medication and
referred her to pain management. (T. 360.) Plaintiff was scheduled for a follow-up exam
in August of 2011, but cancelled and rescheduled to December of 2011; however, the
next treatment note is dated July of 2012. (T. 358.)
In July of 2012, Plaintiff returned to Dr. Kachare complaining of back pain “for the
past [three] weeks.” (T. 370.) Plaintiff complained specifically of “severe” back pain
which radiated into her legs. (Id.) Plaintiff stated she was walking with help from her
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son, but denied leg edema, joint pain, weakness, falls or limited movement. (Id.) Upon
examination Dr. Kachare observed tenderness in her lower left back. (T. 371.) Dr.
Kachare noted Plaintiff had “chronic pain syndrome with acute exacerbation due to
sprain.” (Id.) Dr. Kachare prescribed pain medication. (Id.)
On October 14, 2012, Dr. Kachare completed a medical source statement. (T.
397-398.) Regarding exertional limitations, Dr. Kachare opined that in an eight hour
workday Plaintiff was able to occasionally lift and carry five pounds or less; frequently lift
and carry five pounds or less; stand and/or walk less than two hours; and sit less than
four hours. (T. 397.) In terms of non-exertional limitations, Dr. Kachare opined Plaintiff
should never climb, balance, kneel, crouch, crawl or stoop. (Id.) Dr. Kachare noted
Plaintiff could occasionally reach, handle, finger and feel. (T. 398.) He observed she
had no difficulty seeing, hearing or speaking. (Id.) Dr. Kachare opined Plaintiff’s
impairments caused environmental limitations as well. (Id.)
Plaintiff urges the adoption of Dr. Kachare’s limitations, stating the ALJ
improperly relied on his sparse treatment of Plaintiff and the ALJ erroneously held that
the opinion was inconsistent with objective medical evidence. (Dkt. No. 12 at 20-24
[Pl.’s Mem. of Law].) Contrary to the Plaintiff’s assertion, the Regulation specifically
state “frequency of treatment” is a factor ALJ’s should rely on in weighting opinion
evidence. 20 C.F.R. §§ 404.1527(c)(2)(i) and 416.927(c)(2)(i). Here, the ALJ properly
relied on the “frequency of treatment” as one factor in weighing the opinion evidence of
Dr. Kachare.
Plaintiff argues the gap in treatment should have a minimal impact on the ALJ’s
reasoning because the Plaintiff was being treated during that time through a pain clinic.
8
(Id. at 20.) However, despite requests and a subpoena, treatment records were never
received. (T. 31, referring to T. 146 and 160.) Plaintiff asserts the ALJ “[held] it against”
her that the records were not received. (Dkt. No. 12 at 20 [Pl.’s Mem. of Law].)
However, the ALJ specifically stated he would “look upon [treatment with pain
management] in the most favorable light” despite lack of treatment notes. (T. 31.) This
Court will not speculate as to what the absence, or presence, of treatment notes from
Plaintiff’s pain clinic imply regarding Dr. Kachare’s opinion. The fact is, Dr. Kachare
treated Plaintiff twice, with a one year gap between the two examinations. The ALJ did
not err in taking Dr. Kachare’s length of treatment into consideration when evaluating
his opinion, as length of treatment is expressly stated in the Regulations as an
appropriate factor to be considered. Further, the ALJ did not err in failing to fill in this
gap with conjecture of what was, or wasn’t, in medical evidence.
Plaintiff argues subsequent records from Dr. Kachare support his medical source
statement. (Dkt. No. 12 at 21 [Pl.’s Mem. of Law].) Plaintiff submitted additional
evidence to the AC consisting of treatment notes from Dr. Kachare dated November 7,
2012, February 25, 2013 and March 27, 2013. (T. 453-459.) The AC held the newly
submitted evidence from Dr. Kachare was not “contrary to the weight of the evidence”
before the ALJ. (T. 2.) see Rutkowski v. Astrue, 368 Fed. Appx. 226, 229 (2d Cir. 2010);
see Bushey v. Colvin, 552 Fed. Appx. 97, 98 (2d Cir. 2014) (finding new evidence
presented to the AC did not alter the weight of the evidence so dramatically as to
require AC to take the case). Plaintiff does not argue the AC erred in their review of the
medical evidence.
9
Although the ALJ did not have the November 2012 treatment notes from Dr.
Kachare at the time he wrote his decision, he did have before him medical evidence
from Clifford Soults, M.D., the neurologist who saw Plaintiff on referral in December of
2012 and January of 2013. Dr. Soults observed severe tenderness over Plaintiff’s left
scapula, decreased range of motion in her cervical spine, mild weakness in her right
deltoid, positive Romberg, fairly steady gait, 5/5 strength in her lower extremities, and
decreased sensation in her entire left foot up to her ankle. (T. 411.) Overall, Dr. Soults
opined Plaintiff’s cervical and lumber MRI were “fairly unremarkable.” (Id.) He stated
cervical surgery may be a benefit “at some point” and there was no evidence of
significant cord compression to correlate with her myelopathy. (Id.) The observations by
Dr. Soults, that Plaintiff’s MRI were unremarkable, she did not require surgery and there
was no cord compression, are inconsistent with Dr. Kachare’s severe limitations.
Dr. Kachare’s limitations were also inconsistent with the medical opinion of
consultative examiner, Pamela Tabb, M.D. Dr. Tabb observed Plaintiff could not flex
beyond 30 degrees due to back pain, but had full extension. (T. 313.) She further noted
her lateral flex was limited due to pain. (Id.) Dr. Tabb observed Plaintiff’s cervical spine
had limited flexion, extension and rotation due to pain. (Id.) Plaintiff’s shoulders had
limited abduction on the left, but full on the right. (T. 314.) Dr. Tabb noted tenderness
over the patellar, but full range of motion. (Id.) She noted there was no edema. (Id.)
Based on the medical evidence and her examination, Dr. Tabb opined Plaintiff had “mild
restriction for performing bending, lifting heavy objects.” (Id.) The ALJ afforded Dr.
Tabb’s opinion “great weight.” (T. 33.)
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The medical evidence supplied by Dr. Kachare, Dr. Souts and Dr. Tabb do not
support the limitations imposed by Dr. Kachare in his medical source statement. The
ALJ properly afforded Dr. Kachare’s medical source statement “little weight,” as he aptly
reasoned, at the time the medical source statement was completed, Dr. Kachare treated
Plaintiff twice over the span of a year and the limitations were not supported by
objective medical evidence in the file.
Plaintiff also argues the ALJ failed to properly consider evidence regarding
Plaintiff’s leg swelling. (Dkt. No. 12 at 22 [Pl.’s Mem. of Law].) The ALJ discussed
Plaintiff’s allegation of leg swelling in his decision, but stated he did not account for it
because he found no evidence of leg swelling or treatment for leg swelling in the record.
(T. 31.) Plaintiff refers to Dr. Kachare’s November 7, 2012 treatment note in support of
her argument, but as previously discussed, these treatment notes were first submitted
to the AC which properly found they were not contrary to the weight of the evidence.
Plaintiff also points to Dr. Soult’s exam in which Plaintiff reported her leg swelled;
however, Dr. Soult’s physical examination notations do not indicate edema or swelling.
(T. 411.) Overall the ALJ’s RFC limiting Plaintiff to less than a full range of light work,
was supported by the medical evidence pertaining to Plaintiff’s leg and knee
impairments.
Substantial evidence supported the limitations due to leg and knee impairments
in the ALJ’s RFC. Specifically, the ALJ limited Plaintiff to light work with only occasional
pushing/pulling with the left lower extremity. (T. 29.) Dr. Tabb noted Plaintiff had a
normal gait, full squat and did not need assistance in getting on/off the exam table. (T.
311.) Dr. Tabb noted “mild restrictions” with bending and lifting. (T. 314.) Dr. Tabb’s
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examination showed no edema. (Id.) Further, an X-Ray of Plaintiff’s knee conducted at
the time of the consultative exam was negative. (Id.) Dr. Soult observed a “fairly steady
gait” and made no notations that he observed edema or swelling. (T. 411.) Dr. Kachare
noted no edema during Plaintiff’s July 2012 exam and Plaintiff denied any weakness in
her extremities, numbness, tingling or trouble walking. (T. 370-371.) The RFC’s
limitations more than account for Plaintiff’s limitations in this area.
Therefore, the ALJ did not err in failing to provide Dr. Kachare’s medical source
statement controlling weight where the limitations imposed therein were inconsistent
with the objective medical evidence in the record and Dr. Kachare treated Plaintiff twice
with a year gap between treatments. Further, the ALJ’s RFC analysis regarding
Plaintiff’s physical conditions was supported by substantial evidence in the record as the
ALJ properly relied on the opinion evidence of the consultative examiner, Dr. Tabb, and
to a lesser extent the opinion evidence supplied by Dr. Kachare and Dr. Soults, and the
objective medical imaging in the record.
Plaintiff argues the ALJ also erred in his evaluation of the medical evidence
relating to her mental limitations. Specifically, Plaintiff argues the ALJ failed to provide
controlling weight to her treating psychiatrist Kumar Bahl, M.D. (Dkt. No.12 at 22-24
[Pl.’s Mem. of Law].) The ALJ afforded Dr. Bahl’s medical opinion “some weight”
reasoning his own treatment notes did not support the limitations imposed. (T. 33.) The
ALJ further reasoned Dr. Bahl based his limitations on Plaintiff’s alleged symptoms,
which were not fully credible, and therefore, the limitations were not credible. (Id.)
Dr. Bahl completed a medical source statement on behalf of Plaintiff on June 4,
2012. (T. 337-338.) Therein he opined Plaintiff had marked limitations in her ability to
12
deal with the public and deal with stress. (T. 337.)2 He opined Plaintiff had moderate
limitations in her ability to relate to family and acquaintances; use of judgment; relate to
authority figures; and maintain attention/concentration. (Id.) He further stated Plaintiff
had marked limitations in her ability to maintain personal appearance; behave in an
emotionally stable manner; and relate predictably in social situations. (T. 338.) Dr. Bahl
observed Plaintiff had moderate limitations in her ability to demonstrate reliability. (Id.)
Dr. Bahl stated Plaintiff had “poor interpersonal skills[,] especially in the context of
worsened psychiatric symptoms.” (Id.) The ALJ properly concluded Dr. Bahl’s limitations
were not supported by his treatment notes.
In January 2011, Dr. Bahl observed Plaintiff had a limited range affect, but good
insight and judgment. (T. 293.) He noted work stressors which increased Plaintiff’s
anxiety and he increased her dosage of Klonopin and added Abilify. (Id.) Dr. Bahl did
not treat Plaintiff again until March of 2011 at which time Plaintiff reported feeling “OK,”
but the death of her grandfather and having to care for her son caused her stress. (T.
294.) Plaintiff reported she was looking forward to going on vacation for a few weeks.
(T. 294.) Plaintiff also reported she stopped taking Ability. (Id.) Dr. Bahl observed mild
psychomotor retardation, a normal range of affect, and good insight and judgment. (Id.)
Dr. Bahl recommended Plaintiff follow up “as needed.” (Id.)
Plaintiff sought treatment in May of 2011 because she was “stressed out;”
however, she also reported improving relationships at work and with her son and
otherwise had no other concerns or problems. (T. 295.) Dr. Bahl observed a normal
range affect and fair insight and judgment. (Id.) Plaintiff saw Dr. Bahl again in May of
2
The medical source statement completed by Dr. Bahl defines “marked” as “effectively precluded
from performing the activity in a meaningful manner. Limitations are present for 51-75% of the time in an 8-hour
workday.” The form defines “moderate” as “significantly limited by not precluded from performing the activity.
Limitations are present for 26-50% of the time in an 8-hour workday.”
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2011 complaining of stress with work and cervical cancer. (T. 296.)3 Again it was noted
she discontinued her Abilify. (T. 296.) Dr. Bahl observed Plaintiff had a limited range
affect and good insight and judgment. (Id.)
In June of 2011 Plaintiff complained of increased stress due to work conflicts. (T.
297.) With the help of Dr. Bahl, Plaintiff took temporary leave from work to help
“stabilize” her symptoms. (T. 297.) Dr. Bahl stated Plaintiff could work on a reduced part
time schedule, and limited her to four hours a day and three days a week. (T. 286.) Dr.
Bahl did not provide specific work limitations. Dr. Bahl’s treatment notes from June 2011
indicated Plaintiff’s work stressors were primarily caused by conflict with a particular
supervisor. (T. 297.) His treatment notes further indicated Plaintiff’s stress decreased
during her time off, as she was spending more time with her son and partner. (Id.) Dr.
Bahl again treated Plaintiff in late June. He noted a limited range affect, dysphoric mood
and fair insight and judgment. (T. 298.) He increase her dosage of Lexapro. (Id.) In July
of 2011 Plaintiff stated she felt she had no choice but to go back to work and that she
was able to “tolerate the frustration and disappointment.” (T. 299.) She denied any
major depressive, manic, psychotic, or anxiety related problems. (Id.)
In late July 2011 Plaintiff reported she was “OK” at work, she felt “happy,” but did
continue to have intermittent depressed moods. (T. 300.) Plaintiff reported she was able
to tolerate work “without any difficulty.” (Id.) Dr. Bahl observed Plaintiff continued to
have psychological stressors, but had shown improvement in her occupational ability
and was able to tolerate work. (Id.) He noted he was reintroducing Abilify, as Plaintiff
stopped the medication due to cost concerns, but she felt it did have an effect on her.
(Id.) In August of 2011 Plaintiff again reported feeling “OK” and she had “mild and
3
Of note, the record indicated Plaintiff was never diagnosed with cervical cancer. (T. 458.)
14
intermittent” stress and anxiety. (T. 301.) She reported she returned to work and was
tolerating it well. (Id.) In October 2011, Plaintiff reported to Dr. Bahl she was wrongfully
terminated at work. (Id.) Plaintiff stated her termination caused an increase in her
stressors; however, overall she was able to tolerate it with medication and remained
hopeful. (Id.)
Plaintiff did not seek care from Dr. Bahl again until January 2012 due to
insurance issues. (T. 333.) She reported increase stressors and Dr. Bahl prescribed
Xanax. (Id.) In March 2012, Plaintiff complained of increased symptoms; however, she
self-discontinued her Ability and Dr. Bahl noted her symptoms worsened due to this. (T.
334.) In April 2012, Plaintiff again reported increased symptoms and nightmares. (T.
335.) In May 2012 Plaintiff expressed concerns about her ability to work with her
anxiety symptoms. (T. 340.) In June of 2012, Plaintiff reported she was “OK” and that
her medication was helping her, she was motivated and her functioning increased. (T.
341.) Dr. Bahl reported Plaintiff was “maintaining her gains.” (Id.)
Although Dr. Bahl’s treatment notes document Plaintiff’s symptoms due to her
mental impairments, they do not support the degree of limitations imposed in his
medical source statement. His notations indicated Plaintiff did well on medication and
her symptoms increased when she stopped part of her medication regiment. Notations
further indicated Plaintiff’s specific work stressors centered around a particular
supervisor and not her work in general; in fact, and to her credit, the Plaintiff worked
successfully for many years in that particular place of employment. Therefore, the ALJ
did not err in affording Dr. Bahl’s opinion limited weight based on internal
inconsistencies.
15
The ALJ’s RFC did provide for functional limitations based on Plaintiff’s mental
impairments, which were supported by substantial evidence in the record. (T. 29.) In
making his RFC determination the ALJ relied on the opinions of Plaintiff’s treating
psychiatrist Dr. Bahl, consultative examiner Dr. Hansen, state agency medical examiner
J. Echevarria, and Plaintiff’s testimony. The ALJ afforded Dr. Bahl’s opinion “some
weight,” acknowledging Dr. Bahl as the treating psychiatrist with a substantial
relationship with Plaintiff. (T. 33.) The ALJ also relied on the opinion evidence of
consultative examiner Dr. Hansen.
In March of 2012, Dr. Hansen opined Plaintiff was capable of following and
understanding simple directions and instructions, performing simple tasks, could
maintain attention and concentration, and could maintain a regular schedule. (T. 308.)
Dr. Hansen further observed Plaintiff was capable of making appropriate decisions and
able to relate adequately with others. (Id.) Dr. Hansen opined Plaintiff “appeared to be
malingering with many of her symptoms.” (T. 306.)
The Plaintiff argues, in weighing opinion evidence, the ALJ placed unwarranted
emphasis on notations of Plaintiff’s possible malingering and questionable credibility.
(Dkt. No. 12 at 23-24 [Pl.’s Mem. of Law].) In addition to Dr. Hansen’s notation of
malingering, Dr. Stang, who performed a medical examination on behalf of New York
State, and then later became Plaintiff’s psychologist, stated Plaintiff’s “degree of
veracity in regards to her psychiatric allegations are somewhat unclear, but could not be
proven false.” (T. 354.) Plaintiff argues her credibility was never questioned by Dr. Bahl,
and further Dr. Stang later became her psychologist, thus indicating that any question of
veracity were “resolved in her favor.” (Dkt. No. 12 at 24 [Pl.’s Mem. of Law].)
16
Although a Plaintiff’s subjective complaints are an important diagnostic tool,
especially in the realm of mental illness, the ALJ does not have to accept Plaintiff’s
allegations without question. The ALJ did not discredit Dr. Bahl’s medical source
statement simply because Plaintiff’s veracity was questioned by other medical
providers. The ALJ provided a detailed discussion of the medical evidence in the record
and determined that Dr. Bahl’s statement was entitled to “little weight” based on the
overall objective medical findings and observations of medical providers, including
concerns regarding Plaintiff’s veracity. The fact that Dr. Stang did not expressly
question her veracity during treatment does not provide the “clearest indication
possible” that Dr. Stang no longer questioned her veracity. (Dkt. No. 12 at 24 [Pl.’s
Mem. of Law].) As Defendant properly points out, the doctor’s primary role is to provide
treatment, not assess a plaintiff’s credibility. See Bliss v. Comm’r of Soc. Sec., 406 Fed.
Appx. 541, 542 (2d Cir. 2011). Therefore, for the reasons stated herein, the ALJ
properly evaluated the opinion evidence regarding Plaintiff’s mental health.
B.
Whether the ALJ Properly Evaluated Plaintiff’s Credibility.
After carefully considering the matter, the Court answers this question in the
affirmative, for the reasons stated in Defendant’s memorandum of law. (Dkt. No. [Def.’s
Mem. of Law].) The Court adds the following analysis.
A plaintiff’s allegations of pain and functional limitations are “entitled to great
weight where ... it is supported by objective medical evidence.” Rockwood v. Astrue,
614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009) (quoting Simmons v. U.S. R.R. Ret. Bd., 982
F.2d 49, 56 (2d Cir.1992). However, the ALJ “is not required to accept [a plaintiff’s]
subjective complaints without question; he may exercise discretion in weighing the
credibility of the [plaintiff’s] testimony in light of the other evidence in the record.”
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Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15 2012).
“When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the
ALJ’s disbelief.” Rockwood, 614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two-step analysis of
pertinent evidence in the record. First, the ALJ must determine whether the claimant
has medically determinable impairments, which could reasonably be expected to
produce the pain or other symptoms alleged.” Id., at 271.
Second, if medically determinable impairments are shown,
then the ALJ must evaluate the intensity, persistence, and
limiting effects of the symptoms to determine the extent to
which they limit the claimant’s capacity to work. Because an
individual’s symptoms can sometimes suggest a greater
level of severity of impairment than can be shown by the
objective medical evidence alone, an ALJ will consider the
following factors in assessing a claimant’s credibility: (1)
claimant’s daily activities; (2) location, duration, frequency,
and intensity of claimant’s symptoms; (3) precipitating and
aggravating factors; (4) type, dosage, effectiveness, and
side effects of any medication taken to relieve symptoms; (5)
other treatment received to relieve symptoms; (6) any
measures taken by the claimant to relieve symptoms; and
(7) any other factors concerning claimant’s functional
limitations and restrictions due to symptoms.
Id.
Here, the ALJ found Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms; however, her statements were
not entirely credible. (T. 30.) Plaintiff argues the ALJ improperly relied on Dr. Stang and
Dr. Hansen’s questions of veracity, and improperly relied on Plaintiff’s exaggeration of
her need for surgery. (Dkt. No. 12 at 25 [Pl.’s Mem. of Law].) However, the Plaintiff only
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points to two factors of the ALJ’s vast credibility analysis. Overall, the ALJ provided a
proper and very thorough credibility analysis.
The ALJ determined Plaintiff’s testimony was inconsistent with the medical
evidence in the record. (T.30-32.) The ALJ specifically discussed her allegations of
back, neck and knee pain. (T. 30.) The ALJ looked to the objective medical imaging in
the record as well as the opinions of Dr. Kachare, Dr. Soults, and Dr. Tabb in making a
credibility determination. (T. 31.) Regarding Plaintiff’s alleged mental health symptoms,
the ALJ discussed medical evidence from Dr. Stang, Dr. Bahl and providers at CAP
Medical Psychiatry. (T. 32.) And as discussed in Point IV.A. the ALJ also evaluated
notations regarding Plaintiff’s veracity.
In addition to the objective medical evidence, the ALJ also took into consideration
Plaintiff’s strong work history, inconsistency within her own testimony, and her receipt of
unemployment benefits. (T. 32-33.) In assessing her credibility, the ALJ stated Plaintiff
misrepresented her physical conditions, claiming she had to have neck surgery and had
a 50/50 chance of being paralyzed. (T. 32 referring to T. 406.) However, Dr. Soults
indicated that she may benefit from surgery at some point in the future. (Id. referring to
T. 415.) The Plaintiff claims this statement was merely “agitated venting” which the ALJ
improperly used to discredit Plaintiff. (Dkt. No. 12 at 25 [Pl.’s Mem. of Law].) Once
again, this Court will not partake in speculation. It is impossible to know Plaintiff’s
mindset when making such comments. It is a reviewing court’s role to determine
whether substantial evidence supports the ALJ’s decision to discount a plaintiff’s
subjective complaint. Reynolds v. Colvin, 570 Fed. Appx. 45, 49 (2d Cir. 2014) quoting
Aponte v. Sec., Dept. of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
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Having reviewed the record, the ALJ conducted a proper and detailed credibility
analysis that followed the proper legal standards as provided in the Regulations. There
was substantial evidence to support the ALJ’s conclusion that Plaintiff’s allegations were
not entirely credible.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13)
is GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED;
and it is further is
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated:
July 6, 2015
Syracuse, NY
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