Martin v. Commissioner of Social Security
Filing
17
DECISION AND ORDER reversing and remanding the Commissioner's decision. Signed by Senior Judge Thomas J. McAvoy on 9/18/12. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
DAVID C. MARTIN,
Plaintiff,
-against-
7:10-CV-1113(TJM)
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
David C Martin (“Plaintiff”) brought this suit under the
Social Security Act (“Act”), 42 U.S.C. § § 405(g), 1383(c)(3) to
review a final determination of the Commissioner of Social Security
(“Commissioner”)denying his application for disability insurance
benefits “DIB”)and Supplemental Security Income (“SSI”).
Plaintiff
alleges that the decision of the Administrative Law Judge (“ALJ”)
denying his applications for benefits was not supported by
substantial evidence and was contrary to the applicable legal
standards.
The Commissioner argues that the decision was supported
by substantial evidence and made in accordance with the correct
legal standards. Pursuant to Northern District of New York General
Order No. 8, the Court proceeds as if both parties had accompanied
1
their briefs with a motion for judgment on the pleadings.
II. BACKGROUND
A. Procedural History
Plaintiff, David C. Martin (hereinafter "Plaintiff') was born
on November 18, 1967.(Tr. 30). He contends that he suffers from an
anxiety disorder manifested by dizziness, cervical radiculopathy,
right shoulder pain and headaches. January 8, 2007 is Plaintiff’s
alleged onset date of disability.
Plaintiff was formerly employed
doing building maintenance. He left school in the 11th grade,
completing a GED sometime thereafter (Tr. 30).
Plaintiff filed an application for Social Security Disability
benefits on June 4, 2007.(Tr. 108-119). He alleged a disability due
to a pinched nerve in his neck, minimal use of his right arm, panic
attacks, anxiety disorder, dizziness and light headedness (Tr.
134). Plaintiff’s claim was initially denied on August 29, 2007.
(Tr. 66-69). A request for reconsideration was filed on September
9, 2007 and a request for a hearing was filed on September 12,
2007. (Tr. 72-75). Thereafter a hearing was held before
Administrative Law Judge Elizabeth W. Koennecke on September 3,2009
via video conference with the Plaintiff appearing in Watertown, New
York and ALJ Koennecke appearing in Syracuse, New York. Plaintiff
appeared with counsel and testified as to his disabilities and
conditions. (Tr. 26-62). ALJ Koennecke issued a decision dated
October 19, 2009 finding that Plaintiff is not disabled. (Tr. 4-
2
20). Plaintiff’s counsel made a request for review of the
Administrative Law Judge's decision on December 12, 2009. (Tr. 2125). The Appeals Council affirmed the Administrative Law Judge's
decision on September 9, 2010. (Tr. 1-3). This action followed.
B. Medical Evidence
The following facts are taken from Plaintiff’s brief, to which
Defendant consents.
See Def. Mem. of Law at 2.
Beginning January 8, 2007, Plaintiff reported serious problems
with dizziness and neck spasms. He began treatment at the Mountain
Medical Urgent Care Center in Watertown, New York on January 8,
2007, continuing treatment through January 31, 2007. (Tr. 231-245).
Plaintiff’s symptoms of severe dizziness and nausea were noted, as
well as his complaint that these conditions were aggravated by
standing. (Tr. 235). The Plaintiff was seen at the Samaritan
Medical Center Emergency Department on February 6, 2007 for an
allergic reaction to Lexapro. (Tr. 246-250). He was then seen in
the emergency room at Carthage Area Hospital on March 13, 2007 for
symptoms of nausea which were believed to be attributable to an
antidepressant medication he was taking. He was seen again at the
Carthage Area Hospital emergency department on April 3, 2007 for
complaints of severe pains in the neck radiating up to the base of
his skull and dizziness. X-rays revealed degenerative arthritis at
C5-C6. It was recommended that an MRI be ordered. (Tr. 257-258).
Plaintiff also underwent an esophagogastroduadenoscopy in an
3
effort to diagnose his nausea. The test results were normal. (Tr.
259-260). Plaintiff reported again to the Carthage Area Hospital
emergency department on April 15, 2007 complaining of having
headaches and dizziness for three months as well as facial
numbness. (Tr. 265-273). A CT scan was taken of his brain which was
read as otherwise unremarkable. (Tr. 273). His discharge diagnosis
was poorly controlled hypertension with dizziness - chronic, with
possible vertigo and rule out intracranial bleed and intracranial
mass, possible anxiety with non-compliance. (Tr. 267-268).
Plaintiff reported again to the Carthage Area Hospital
emergency department on May 28, 2007 with complaints of backache.
An x-ray of his lumbosacral spine revealed no evidence of
pathology, fractures, subluxation or dislocation. (Tr. 290-291).
Plaintiff was diagnosed with a backache due to possible
disarrangement or ligamentous sprain. (Tr. 290-291). X-rays and an
MRI were taken of his thoracic and lumbo-sacral spine on May
28,2007 and May 31, 2007. Minimal decreased disc signal was
observed at T8-9 and minimal disc bulge observed at L3-4 and L4-5.
(Tr. 294-296).
Plaintiff began treating with Dr. Mirza Ashraf on April 16,
2007. Dr. Ashraf noted Plaintiff’s complaints of dizziness was "so
bad I can't do anything", as well as neck and right shoulder pain.
(Tr. 319). Dr. Ashraf ordered an MRI of Plaintiff’s cervical spine
which revealed:
4
"degenerative disc disease mostly at C5-6 with superimposed
mild midline disc herniation, causing moderate crowding of the
thecal sac ... moderate right and mild left neural foraminal
narrowing in C5-6 ... small or mild narrowing left C3-4 neural
foramen ... thecal sac is relatively small in C3-4 and C4-5
[and] there is straightening of the cervical lordosis." (Tr.
288-289).
Dr. Ashraf completed an assessment of Plaintiff’s ability to
function in June 2007 noting Plaintiff was limited in his ability
to lift and carry 10 pounds; can stand and/or walk less than two
hours per day; is limited to sitting up to six hours per day; and
is limited in his ability to push and/or pull. (Tr. 274-280).
Plaintiff began treating at the Philadelphia Clinic on March
29, 2007 with Dr. Kahn, who ordered the MRIs of Plaintiff’s
thoracic and lumbar spine referenced above. Dr. Kahn also referred
Plaintiff to Dr. Latif, a neurologist in Watertown, and the
University Hospital-Orthopedic Surgery Unit in Syracuse. Plaintiff
was seen at the Philadelphia Clinic eight (8)times between February
6, 2007 and May 29, 2007 for anxiety, vertigo, abdominal pain,
heartburn, and dizziness, in addition to back pain. Plaintiff was
prescribed Paxil and Lexapro for his anxiety/panic disorder. (Tr.
325-342). Plaintiff declined to take Lexapro due to a bad reaction
following an incident in February. (Tr. 332). The Philadelphia
Clinic also prescribed Meclizine to the Plaintiff for dizziness.
(Tr. 33l).
Plaintiff was examined and treated by Dr. Kevin Scott, an
orthopedist with North Country Orthopedic Group from May 2, 2007 -
5
July 9, 2008. (Tr. 483-503). Dr. Scott noted, upon reviewing
Plaintiff’s MRI of his cervical spine during the examination on May
2, 2007, an osteophytic complex at C5-6, and small midline disc
herniation, as well as moderate right and left neuroforaminal
narrowing. (Tr. 483). Dr. Scott concluded that Plaintiff was
suffering from cervical spine disease with right upper extremity
radiculopathy. (Tr. 483). A nerve conduction test was ordered and
conducted on May 17,2007, which revealed "electrophysiologic
evidence in this study of chronic right C5-6 radiculpathy". (Tr.
485,498-499). The test results also revealed an old left median
neuropathy distal in Plaintiff’s midpalm. Dr. Scott referred
Plaintiff to a neurologist, Dr. Latif, regarding his symptoms of
dizziness, and to the Pain Clinic for nerve injections in his
cervical spine area. (Tr. 486). Dr. Scott also referred Plaintiff
to the Ear, Nose and Throat Clinic in Syracuse for examination and
treatment of his long history of vertigo and right ear fullness and
pain. (Tr. 487). During his examination on December 12, 2007, Dr.
Scott reviewed an MRI of Plaintiff’s right shoulder which revealed
degenerative changes and a small partial-thickness tear of the
distal supraspinatus tendon and degenerative fraying of the
anterior labrum. (Tr. 490). Dr. Scott noted these observations in
the context of Plaintiff’s complaints of pain in his neck radiating
down into his right arm and right deltoid region. (Tr. 490).
Plaintiff was prescribed physical therapy and treatment through the
6
Pain Clinic. (Tr. 490).
Neurologist Dr. Abdul Latif examined Plaintiff on July 2, 2007
following a referral from Dr. Scott to evaluate his complaints of
dizziness. Dr. Latif’s examination was inconclusive; he ordered
additional tests and prescribed Depakote for treatment of his
headaches. (Tr. 224-225).
Plaintiff was examined on July 9, 2007 by Dr. Ivan MontalvoOtano for pain management in his cervical spine. Dr. Montalvo-Otano
noted some reduction of sensation in Plaintiff’s legs, and he noted
the findings of disc herniation and radiculopathy in Plaintiff’s
MRIs and EMG. (Tr. 344). No pain management treatment was elected
at this time. Plaintiff saw Dr. Montalvo again on November 19, 2007
and December 6, 2007. Treatment options were discussed, and it was
decided that cervical epidurals would be given if the orthopedic
intervention failed and it was determined that the pain was coming
from his spine. (Tr. 424-429).
Plaintiff was also seen at the Emergency Department of
University Hospital on June 21, 2007 and July 20, 2007 for his
symptoms of dizziness with nausea and tinnitus. He was referred
to the ENT clinic at University Hospital where he was seen on
August 3, 2007. The exam was conducted by Dr. Charles Woods who
found no inner ear problem and concluded that Plaintiff does not
have true vertigo or room-spinning vertigo. (Tr. 354-355). No
specific recommendations could be made at that time.
7
Plaintiff was also seen by Dr. Huang at the North Country
Orthopedic Group on June 23, 2008 concerning the pain in his neck
and right upper trapezius region. Dr. Huang noted Plaintiff
was experiencing pain in certain range of motion tests of his neck,
shoulder and upper back. He diagnosed Plaintiff with cervical
spondylosis, with degenerative and herniated disc, pain and
radiculpathy. (Tr. 492-493). Dr. Huang discussed with the Plaintiff
the possibility that his vertigo was attributable to his spinal
problems. (Tr. 540). In his examination of July 9, 2008, a lipoma
was found on his upper back. (Tr. 495). Plaintiff was referred to
North Country Surgical Specialists for removal of the lipoma. (Tr.
497). Plaintiff's condition continued to be followed by the North
Country Orthopedic Group through 2008 and 2009. They put continued
treatment on hold, pending a diagnosis of his dizziness. (Tr. 524).
An additional MRI of his cervical spine was taken on January 22,
2009 which revealed C5-C6 broad-based disc bulge with
subligamentous disc herniation with some spinal stenosis and mild
bilateral foraminal encroachment; C4-5 and C3-4 disc disease
including a central small sub ligamentous disc herniation and mild
central canal stenosis, but no foraminal encroachment. (Tr. 528529). Plaintiff underwent a needle electromyogram (EMG) on February
24, 2009 which was noted as a mildly abnormal study, raising the
possibility of mild, chronic right C5-6 radiculpathy and mild,
chronic, left C7 radiculpathy. (Tr. 53 1-535). Treatment plans were
8
discussed with the Plaintiff, including a surgical option;
Plaintiff elected a more conservative route including physical
therapy and electrical stimulation. (Tr. 537). Plaintiff was also
prescribed a cervical traction device. (Tr. 541).
Plaintiff was examined and treated at Mercy Center for
Behavioral Health and Wellness from April 26, 2008 through July 29,
2009. He was first seen by Dr. Kimball on April 21, 2008 where he
was given a psychological assessment, and then a psychiatric
assessment by Dr. Camillo on April 26, 2008. (Tr. 512-520). Therein
Dr. Kimball noted Plaintiff’s symptoms of dizziness, shaking,
feeling off-balance, heavy panic attacks, "fear feeling", anxiety,
and fear of going to public places. He diagnosed Plaintiff with
panic disorder with agoraphobia, social phobia, generalized anxiety
and depressive disorder. (Tr. 519). He gave Plaintiff a Global
Assessment of Functioning (“GAF”)1 score of 35, concluding:
"The anxiety symptoms are quite severe. He has extreme
avoidance behaviors. He is getting a thorough physical exam on
April 30, 2008. It is important to totally rule out any
medical cause. However, most likely anxiety is causing his
difficulties. He is being referred to our staff psychiatrist
to confirm this diagnosis and to determine if other
medications may be helpful. He also needs anxiety management
treatment. He needs intensive counseling for anxiety
management." (Tr. 520).
Plaintiff was then seen by Dr. Camillo on April 26, 2008 who
assessed him with a severe anxiety disorder, with a GAF score of
1
The GAF scale ranks psychological, social, and occupational functioning
on a hypothetical continuum of mental health-illness. See American Psychiatric
Association, Diagnostice and Statistical Manual of Mental Disorders 32 (4th ed.
2000) (“DSM-IV”); Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d Cir. 2004).
9
37. (Tr. 515). Claimant was prescribed Klonopin and Buspar, and
received regular psychotherapy. (Tr. 521). An annual assessment
prepared by Nurse Joyce Comes on April 2, 2009 confirmed that
Plaintiff was to continue psychotherapy and receive medications.
(Tr. 510-511). She gave him a GAF score of 55 on that date. Nurse
Comes noted that Plaintiff had benefitted from cognitive behavioral
therapy such that it enabled him to go deer hunting in the Fall of
2008, although she noted that he continued to suffer from dizziness
which is affected by his prior physical activities from the day
before. (Tr. 510). Dr. Camillo on two occasions submitted
psychiatric reports for employment activities to the Jefferson
County Department of Social Services wherein he identified the
following necessary work accommodations for Mr. Martin:
1. "would need to be able to call off work without notice becomes dizzy without warning”;
2. "only able to do activity for short period (approximately
half hour)." (Tr. 572 and 574).
Plaintiff received physical therapy from March 12, 2009
through June 11, 2009 from Samaritan Medical Center in Watertown.
(Tr. 541-570). Along with physical therapy he also received a
cervical traction device which he is to use daily. (Tr. 541). The
physical rehabilitation records suggest that he reported some
improvements with his neck and a reduction in dizziness. (Tr. 541570). A prior attempt at physical therapy from December 19, 2007
10
through March 24, 2008 through Carthage Area Hospital had similar
results. (Tr. 457-482).
Plaintiff underwent a consultative psychiatric examination on
August 7, 2007 conducted by Dr. Jeanne Shapiro. (Tr. 356-360). Dr.
Shapiro noted that vocationally she believed Plaintiff appeared to
be capable of understanding and following simple directions and
capable of performing simple and complex tasks with supervision.
She saw some anxiety, but otherwise found no basis for a mental
health diagnosis, concluding that his dizziness was attributable to
a physical, not a psychiatric condition. (Tr. 357).
Plaintiff also underwent a neurologic consultative examination
on August 7, 2007 conducted by Dr. Kalyani Ganesh. (Tr. 361-364).
Dr. Ganesh noted Plaintiff's complaints of pain and dizziness, and
observed some tremulousness and shaking of the legs intermittently,
which interfered with Plaintiff’s attempts to walk on heels and
toes as instructed. (Tr. 362 and 364). Dr. Ganesh concluded that
Claimant would have no difficulty sitting, standing, or walking,
with only mild to moderate limitations lifting, carrying, pushing
and/or pulling. (Tr. 364).
A Residual Functional Capacity Assessment was prepared by J.
Ayres on August 14, 2007. (Tr. 365-370). There is no indication in
the physical residual functional capacity assessment that J. Ayres
is a physician or otherwise qualified to prepare this assessment.
(Tr. 370). The assessment found that the Plaintiff had the ability
11
to occasionally lift 10 pounds, frequently lift less than 10
pounds, stand and/or walk at least two hours in an eight hour work
day, sit about six hours in an eight hour work day, and had an
unlimited ability to push and/or pull. (Tr. 366). Ayres also found
that Plaintiff had certain postural limitations, such that he
should never climb ramps, stairs, ladders, lifts or scaffolds, and
should not engage in any activities requiring balancing. (Tr. 367).
Ayres also found that Plaintiff could only occasionally engage in
activities involving stooping, kneeling, crouching and crawling,
and must avoid hazards. (Tr. 367 & 368). All such postural
limitations were attributable to Plaintiff's dizziness.
Defendant adds the following facts to those provided by
Plaintiff.
When Plaintiff was examined by Dr. Shapiro, the psychiatric
consultative examiner, on August, 7, 2007, Plaintiff complained of
“chronic pain and dizziness” that began in January 2007, and he
stated that he woke up three or four times a night (Tr. 356). His
appetite was normal, and he did not have any significant manic or
depressive symptoms, or symptoms of a formal thought disorder or
cognitive dysfunction (Tr. 356-57).
According to Plaintiff, his
medication (Meclazine and Alprazolam) had improved his symptoms,
but “some symptoms” still occurred (Tr. 357). Plaintiff reported
having “panic attacks” that were characterized by feelings of
dizziness, shakiness, and a lump in his throat. Id. He felt panic
12
due to a feeling “like a shot of electricity” running from his
stomach up to his throat. Id.
All of his medical tests to
that point had been negative. See id. On examination, Plaintiff’s
demeanor and responsiveness were cooperative, and his manner of
relating, social skills, and overall presentation was adequate (Tr.
358). His gait and posture were normal; he used no assistive
devices and did not support himself by touching the wall or
anything else as he walked. See id. His thought processes were
coherent and goal directed, with no evidence of delusions,
hallucinations, or disordered thinking. See id.
Dr. Shapiro noted
that Plaintiff was “a little anxious” and “a little apprehensive”;
Plaintiff said that he was “‘probably nervous’ because he did not
know what to expect” during the examination. Id.
Plaintiff’s
sensorium was clear and he was oriented times three. See id. His
attention and concentration skills were intact, and his
intellectual functioning appeared to be in the low average range.
See id. His insight and judgment were fair. See id. Plaintiff
reported being able to dress, bathe, and groom himself, but due to
his dizziness could only fix a sandwich or a bowl of cereal
(instead of cooking), and could not clean, do laundry, or go
shopping (Tr. 358-59). He was able to take public transportation,
however, and drove infrequently (Tr. 359).
He also reported
“gett[ing] along well with friends and family.” Id. According to
Dr. Shapiro, Plaintiff was capable of understanding and following
13
simple instructions and directions, and could perform simple and
complex tasks both independently and under supervision (Tr. 359).
He appeared to be able to maintain concentration and attention for
tasks, and could regularly attend to a routine and maintain a
consistent schedule if he had reliable transportation. See id. He
could make some appropriate decisions, deal with some stress, and
was capable of relating to and interacting appropriately with
others. See id. Dr. Shapiro also noted that the results of the
examination were “inconsistent with [Plaintiff’s] allegations.” Id.
Further, Plaintiff’s “[r]eported psychiatric symptoms do not meet
the criteria for diagnosis of a panic disorder and do not warrant a
formal diagnosis.” Id.
Dr. Kalyani Ganesh performed a consultative neurologic
examination the same day (Tr. 361-64). Plaintiff reported being
unable to do chores at home because of a “balance problem,
dizziness, and shaking.” (Tr. 361). On examination, Dr. Ganesh
noted that Plaintiff’s gait “appeared quite normal” and that he was
able to walk “from the examining room to the front desk with no
problem noted,” and he used no assistive devices (Tr. 362). When
asked to walk on his heels and toes, Plaintiff first was unable to
because of “some tremulousness” in his legs. Id.
He also could not
tandem walk heel-to-toe at first because he was “anxious,” but he
eventually became more calm and was able to do so (Tr. 362-63).
Plaintiff needed no help changing his clothes for the examination
14
or getting on and off the examination table, and he could rise from
his chair without difficulty (Tr. 363). On examination, Plaintiff
had a slightly limited range of motion in the cervical spine, and
normal ranges of motion in the thoracic and lumbar spines. See id.
A straight-leg-raising test was negative. See id.
Examinations of
Plaintiff’s upper and lower extremities were normal, as was a
sensory exam. See id. Dr. Ganesh diagnosed a history of dizziness
and balance problems; neck pain; degenerative disc disease of the
cervical spine; anxiety and panic; and lower-back pain. See id.
In
Dr. Ganesh’s opinion, Plaintiff had no difficulties sitting,
standing, or walking; and had a “mild to moderate” limitation with
lifting, carrying, pushing, and pulling (Tr. 364).
Dr. Ganesh also
noted that Plaintiff had had some intermittent shaking in his legs
at the beginning of the exam, but that it “seemed to ease up
somewhat after he was relaxed.” Id.
Plaintiff attended physical therapy from December 19, 2007
until March 24, 2008, when his physical therapist determined that
he would no longer benefit from therapy services (Tr. 457).
Plaintiff’s pain had decreased significantly and he had “less
dizziness overall,” although he continued to experience dizziness
“when he lifts [his right] arm overhead.” Id. He reported being
able to go shopping without “having to stop [and] leave due to
dizziness and loss of balance,” and he could complete his
activities of daily living with some small amount of pain. Id.
15
The
therapist, Ms. Holmerpt, suggested that Plaintiff’s dizziness might
be caused by muscle spasms in his shoulder or neck due to pain; a
“hypersensitive” sympathetic nervous system might be causing “an
exaggerated response to pain creating muscle spasms and dizziness.”
Id.
She recommended further neurological testing. See id.
On April 3, 2008, Plaintiff went to Dr. Michael McElheran, an
orthopedist, and reported “some improvement” in his dizziness (Tr.
491). On examination, Plaintiff walked with a normal gait and could
walk on his heels and toes. See id. A straight-leg-raising test was
normal. See id.
Dr. William Kimball, a psychologist, completed a psychological
assessment of Plaintiff on April 21, 2008 (Tr. 516-20).
Plaintiff
reported dizziness, shaking, loss of balance, and being lightheaded (Tr. 516). Plaintiff also stated that he did not feel lightheaded if he ate small portions of food five times a day. See id.
He spent most of his days in bed, and that he would become dizzy if
he got out of bed. See id. According to Plaintiff, he no longer had
panic attacks, although he did still have a “fear feeling” or
“physical sensations in his chest.” Id. In the past few years he
had become less comfortable being around people, and had difficulty
going to stores if other people were there (Tr. 516-17). On
examination, Plaintiff’s appearance, speech, and expressive
language were normal (Tr. 517). He made good eye contact and was
fully oriented and attentive (Tr. 517-18). His intelligence
16
appeared average, and his recent and remote memory were intact (Tr.
518). Plaintiff reported sleeping five hours a night and having a
full appetite. See id. His judgement was fair and his insight was
poor; he had no suicidal, homicidal, or other violent ideations
(Tr. 519). Dr. Kimball diagnosed depressive disorder not otherwise
specified, and assessed a GAF score of 35 (Tr. 519-20).
In his
opinion, Plaintiff’s anxiety symptoms were “quite severe” and he
showed “extreme avoidance behavior” (Tr. 520).
Dr. Kimball
recommended anxiety management treatment, “intensive counseling,”
and possible medication. See id.
Plaintiff returned to Dr.
McElheran on June 23, 2008 (Tr. 494).
Dr. McElheran noted that
Plaintiff continued to make “day-by-day improvements.” Id.
Plaintiff reported that his dizziness was “positional,” and caused
by lying on his back or by leaning forward. Id. He had not had any
falls, and he walked with a normal gait. See id. Dr. McElheran
noted that Plaintiff could move easily from a sitting to a standing
position and could get on the examination table without any
difficulty. Plaintiff was also able to walk on his heels and toes.
See id.
Dr. McElheran examined Plaintiff again on July 9, 2008
(Tr. 495-96, repeated at 522- 23). Plaintiff’s “chief complaint”
was dizziness, which was caused by leaning forward (Tr. 495). Dr.
McElheran noted that Plaintiff had had “no change in his
activities,” was “doing physical therapy on his own,” had no
weakness in his upper extremities, and had no problems buttoning
17
clothes or getting dressed. Id.
Dr. McElheran further noted that
Plaintiff walked with a normal gait, was able to walk on his heels
and on his toes, moved easily from a sitting to a standing
position, and could get onto the examination table without
difficulty. See id. Dr. McElheran advised Plaintiff to discontinue
physical therapy and continue performing his home exercises (Tr.
496). Plaintiff returned to Dr. McElheran on September 10, 2008;
January 16, 2009; and February 2, 2009 (Tr. March 18, 2011523, 527,
530).
At each of these visits, Dr. McElheran noted that Plaintiff
walked with a normal gait and could walk on his heels and toes
without difficulty. See id.
Plaintiff also reported no difficulty
with walking, and that he had not been falling (Tr. 530).
On October 3, 2008, Dr. Michael Camillo, a psychiatrist who
with his staff had treated Plaintiff since April 2008 (see Tr. 51221), completed a one-page psychiatric report, in which he indicated
that Plaintiff was capable of independently completing his
activities of daily living ; scheduling appointments; accessing
transportation; and attending appointments (Tr. 572).
Although he
could “only do a little at a time,” Plaintiff was able to wash
dishes, do laundry, and fix meals. Id. According to Dr. Camillo,
Plaintiff became dizzy without warning and was only able to do
activities for short periods of time, and “would need to be able to
call off work without notice.” Id.
Dr. Camillo diagnosed an
anxiety disorder, not otherwise specified. See id.
18
Plaintiff began physical therapy again on March 12, 2009, with
the goal of reducing dizziness (Tr. 544-45).
On March 31, he
underwent thirty minutes of therapy (10 minutes each of heat,
manual, and therapeutic procedures) and he reported decreased pain
and dizziness symptoms afterwards (Tr. 549).
At his next session
on April 3, he reported that his pain and dizziness were “not . . .
nearly as bad as last time.” (Tr. 550). After thirty minutes of
therapy, his dizziness symptoms were again decreased. See id.
Plaintiff reported increased pain, however, at his next session on
April 6 (Tr. 551).
Four days later, however, he was feeling
“pretty good,” and had decreased pain after another thirty-minute
therapy session (Tr. 552). At the end of a session on April 13,
Plaintiff reported that his pain was gone (Tr. 553). Two days
later, his pain had returned after he had lifted a five-gallon jug
of water; at the end of the therapy session his pain had been
somewhat relieved (Tr. 554). In this session, Plaintiff did not
mention dizziness. See id.
On April 20, Plaintiff reported experiencing neck pain after
performing isometric neck exercises at home; his therapist advised
not performing any exercises other than cervical retraction (Tr.
555). On April 24, Plaintiff reported having been dizzy “all week”
to his physical therapist, but that he “fe[lt] good today” (Tr.
556).
Five days later, Plaintiff stated that “this is the best
week I have had in terms of my dizziness” (Tr. 557).
19
His pain
level also continued to be very low. See id. Plaintiff was then
discharged from physical therapy; the therapist noted that
Plaintiff’s prescription had expired but also that he had met his
goals: “dizziness was described as 1-2/10 at last session” (Tr.
558).
On April 2, 2009, Joyce Combs, a registered nurse, completed a
psychological assessment of Plaintiff (Tr. 510-11). Plaintiff
continued to experience anxiety and dizziness, but had been able to
go deer hunting “several times” in the fall of 2008 “by using
cognitive behavioral therapy” (Tr. 510). The dizziness “comes and
goes” and appeared to be partially related to what kind of physical
activity he had done the day before. Id. Ms. Combs assessed
Plaintiff’s GAF as 55 (Tr. 511). Plaintiff received another
prescription for physical therapy in May 2009, and resumed
therapy on May 7 (Tr. 559). He reported that his previous therapy
had decreased his pain and dizziness, but that his pain increased
with increased activity (Tr. 562). He did not report an increase in
dizziness. See id. At his May 21 therapy session, Plaintiff
reported no dizziness, but reported some dizziness on May 26 after
putting a day bed together for his mother (Tr. 563-64). After the
May 26 therapy session, his dizziness was decreased (Tr. 564). He
then did not report dizziness at his May 28 session for neck pain
(Tr. 565). On June 2, he stated that he had “been great the last
few days, but I’m a little dizzy today” (Tr. 566). The therapy
20
again diminished his symptoms. See id. On June 4, he reported
“feeling pretty good” other than some soreness in his back (Tr.
568). Nor did he report dizziness at his June 9 session (Tr. 569).
On June 11, he reported “just a little dizziness” and otherwise
felt “pretty good”; the therapy session again diminished his
symptoms (Tr. 570).
On July 27, 2009, Dr. Camillo and Ms. Combs completed a second
one-page psychiatric report (Tr. 574). They indicated again that
Plaintiff could independently perform his activities of daily
living, schedule and attend appointments, and take transportation.
See id. Plaintiff enjoyed being outdoors, and was now doing chores
around the house, cooking, and other activities of daily living.
See id. Dr. Camillo’s assessment that Plaintiff became dizzy
without warning, could do activities for only short times, and
would need to cancel work without notice was unchanged, however,
and Plaintiff also had difficulty “being around people.” Id.
C.
Plaintiff’s Testimony
Plaintiff was the sole person testifying at the hearing. (Tr.
26-62). He testified he lives alone, however, he was living with
his wife, step-daughter and step-grandchild from the on-set date
until July 2009. (Tr. 30-31). He alleged that his disability began
on January 8, 2007, from which date he has continued to suffer from
dizziness and nausea.(Tr. 32). He first sought treatment at
Mountain Medical Clinic and then later Samaritan Medical Center
21
emergency room. (Tr. 32-33). Plaintiff also initially sought
treatment at the emergency room of Carthage Area Hospital as he did
not have insurance or a regular family physician. (Tr. 33). He also
began to suffer pain in his neck and back which some doctors
suspected may be causing the dizziness. (Tr. 35). Plaintiff also
testified that his symptoms of anxiety had become quite severe in
2007. (Tr. 36-37). He affirmed that he does a lot of shaking,
although no doctor has explained a reason for this condition. (Tr.
36). He was unable to drive a car in all of 2008 due to dizziness,
and he was otherwise limited to lying in bed. (Tr. 37). He
explained that although certain income was reported in 2007, this
was attributed to him running a simple business with his wife and
step-daughter mowing lawns. (Tr. 37-38). Plaintiff affirmed that
his involvement in the business was limited to running an ad in the
paper and accompanying his wife to the location for lawn mowing
where he would advise her what to charge. (Tr. 38). Their income
from this activity was approximately $50 every two weeks. (Tr. 3839). Plaintiff affirmed that he was having a problem with headaches
starting with January of 2007, and that he had pain in his right
shoulder due to a torn tendon. (Tr. 40-41). He has pain every day
from his neck and shoulder, but finds that the dizziness is most
disabling. (Tr. 43-44). The pain was described as a constant pain
at a level between 3 and 5 on a 10 point scale.
His pain rises to
a level 10 approximately 15 out of 30 days in a month, triggered by
22
activity. (Tr. 44). He stated that he is dizzy every day and that
he cannot stand for more than 10 minutes without otherwise feeling
like he is going to pass out. (Tr. 44). Plaintiff asserted that his
activities of daily living are greatly limited. His meals are
limited to things that are simple to prepare, such as cereal and
T.V. dinners; he receives some prepared food from his mother and
sister. (Tr. 46). His mother and sister also help clean his house.
He mows his lawn with a riding lawn mower which he does for about
15-20 minutes a day, which takes him 3 days to mow his whole lawn.
(Tr. 47-48). Plaintiff attested that he believes the limitations
listed by Dr. Camillo in the psychiatric report for employment
activities (Tr. 572-573) are correct. (Tr. 53-54). He also
explained his attempt at deer hunting as was referenced in his
medical records. He said that in the Fall of 2008 he went out with
his brother a few times for an hour to an hour and a half and would
communicate with him via radio. (Tr. 54). He affirmed that he could
not lift anything; his brothers would have to do everything if a
deer were shot, and that he would not be able to help. (Tr. 54-55).
He could not have done this in the year 2007.(Tr. 54).
Plaintiff
explained that he needs to use ice, heat and biofreeze on a daily
basis in order to manage the pain in his neck and shoulder. (Tr.
55-56). He uses a traction unit daily for 10 minutes at a time (Tr.
57); he sees a mental health counselor once a week for anxiety, and
a psychiatrist once every three months. (Tr. 49). He has had
23
problems with anxiety all of his life, but it became much worse in
the last few years. He does not like being around people (Tr. 4950). Plaintiff also described his past employment, primarily
building maintenance. (Tr. 60). His work involved repairing leaks
and replacing refrigerators, working on stoves, laying tile,
painting, lawn care and some construction. (Tr. 60).
III. DISCUSSION
A. Standard of Review
The Court's review of the Commissioner's determination is
limited to two inquiries.
See 42 U.S.C. § 405(g).
First, the
Court determines whether the Commissioner applied the correct legal
standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999);
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); Shane v. Chater, No.
96-CV-66, 1997 WL 426203, at *4 (N.D.N.Y July 16, 1997)(Pooler,
J.)(citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
Second, the Court must determine whether the Commissioner's
findings are supported by substantial evidence in the
administrative record. See Tejada, 167 F.3d at 773; Balsamo, 142
F.3d at 79; Cruz, 912 F.2d at 11; Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982).
A Commissioner's finding will be deemed
conclusive if supported by substantial evidence. See 42 U.S.C. §
405(g); see also, Perez, 77 F.3d at 46; Townley v. Heckler, 748
24
F.2d 109, 112 (2d Cir. 1984)("It is not the function of a reviewing
court to determine de novo whether a Plaintiff is disabled.
The
[Commissioner's] findings of fact, if supported by substantial
evidence, are binding.")(citations omitted). In the context of
Social Security cases, substantial evidence consists of "'more than
a mere scintilla'" and is measured by "'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, 28
L. Ed.2d 842 (1971)(quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229, 59 S.Ct. 206, 217, 83 L. Ed. 126 (1938)).
Where the
record supports disparate findings and provides adequate support
for both the Plaintiff's and the Commissioner's positions, a
reviewing court must accept the ALJ's factual determinations. See
Quinones v. Chater, 117 F.3d 29, 36 (2d Cir. 1997)(citing Schauer
v. Schweiker, 675 F.2d 55, 57 (2d Cir.1 982)); Alston v. Sullivan,
904 F.2d 122, 126 (2d Cir. 1990). However, although the reviewing
court must give deference to the Commissioner’s decision, the Act
is ultimately “‘a remedial statute which must be “liberally
applied;” its intent is inclusion rather than exclusion.’” Vargas
v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990)(quoting Rivera v.
Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).
B. Analysis
1. The Commissioner's Decision
To receive federal disability benefits, an applicant must be
25
“disabled” within the meaning of the Social Security Act.
U.S.C. § 423(a),(d).
See 42
A claimant must establish an “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . which
has lasted or can be expected to last for a continuous period of
not less than 12 months.”
Id. § 423(d)(1)(A).
The impairment must
be of “such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work
which exists in the national economy.”
Id. § 423(d)(2)(A).
Agency
rules promulgated under the Act outline a five-step analysis to
determine disability.
20 C.F.R. §§ 404.1520, 416.920.
The steps
are as follows:
(1) The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity; (2) if
not, the Commissioner considers whether the claimant has a
“severe impairment” which limits his or her mental or
physical ability to do basic work activities; (3) if the
claimant has a “severe impairment,” the Commissioner must
ask whether, based solely on medical evidence, claimant has
an impairment listed in Appendix 1 of the regulations. If
the claimant has one of these enumerated impairments, the
Commissioner will automatically consider him disabled,
without considering vocational factors such as age,
education, and work experience; (4) if the impairment is
not “listed” in the regulations, the Commissioner then asks
whether, despite the claimant's severe impairment, he or
she has residual functional capacity to perform his or her
past work; (5) if the claimant is unable to perform his or
her past work, the Commissioner then determines whether
there is other work which the claimant could perform. The
Commissioner bears the burden of proof on this last step,
while the claimant has the burden on the first four steps.
Shaw v. Carter, 221 F.3d 126, 132 (2d Cir. 2000).
26
At step one of the sequential analysis, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
January 8, 2007, his alleged onset date (Tr. 9). See 20 C.F.R.
§§ 404.1520(b). 416.920(b).
At step two, the ALJ found that
Plaintiff had two severe impairments: an anxiety order “manifested
by dizziness,” and cervical radiculopathy (Tr. 9-14). See 20
C.F.R. §§ 404.1520(c), 416.920(c).
At step three, the ALJ
determined that Plaintiff’s impairments, either singly or in
combination, did not meet or medically equal one of the
impairments in the Listings (Tr. 14-15). See 20 C.F.R. §§
404.1520(d), 416.920(d). The ALJ therefore proceeded to determine
Plaintiff’s RFC, or what he could do despite the limitations
caused by his impairments (Tr. 15-18). The ALJ found that
Plaintiff was able to perform light work:2 that is, he could lift
and/or carry up to 20 pounds occasionally and up to 10 pounds
frequently, had no limitation in his ability to stand, walk, or
sit; and had some postural limitations. See Tr. 15; 20 C.F.R. §§
404.1520(e), 416.920(e). At step four, the ALJ determined that,
given Plaintiff’s RFC, Plaintiff could perform “many parts” of his
past relevant work as a maintenance worker (Tr. 18). See 20 C.F.R.
§§ 404.1520(f), 416.920(f). Finally, at step five, the ALJ found
2
Light work involves lifting and/or carrying up to 20 pounds occasionally
and up to 10 pounds frequently. See 20 C.F.R. §§ 404.1567(a), 416.967(b). A job
in the light work category requires either “a good deal of walking and standing”
or “sitting most of the time with some pushing and pulling of arm or leg
controls.” Id. In his brief, Plaintiff does not challenge the ALJ’s finding that
he was physically able to meet these exertional demands.
27
that, in the alternative, Plaintiff was also capable of performing
other jobs that existed in substantial numbers in the national
economy. See 20 C.F.R. § 404.1520(f).
2. Plaintiff’s Arguments
Plaintiff seeks reversal of the Commissioner’s decision that
he was not disabled because his anxiety disorder and cervical
radiculopathy did not prevent him from performing jobs that
existed in significant numbers in the national economy. Plaintiff
does not challenge the Commissioner’s finding that he was
exertionally capable of performing light work. Instead, he argues
that his anxiety disorder caused dizziness to a degree that made
him incapable of working.
Thus, the Court must determine whether
the ALJ’s RFC finding was legally correct and supported by
substantial evidence, and whether the ALJ properly determined at
step five of the sequential analysis that Plaintiff was capable of
performing jobs existing in substantial numbers in the national
economy.
A.
Treating Physician Rule
Plaintiff first argues that the ALJ erred by not giving
controlling weight to the opinion of Dr. Camillo, who prepared a
psychiatric assessment of Plaintiff on October 3, 2008. See Pl.
Br. at 12-15; Tr. 572. Under the “treating physician’s rule,”3 the
3
“The ‘treating physician's rule’ is a series of regulations set forth by
the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a
treating physician's opinion.” de Roman v. Barnhart, No.03-Civ.0075, 2003 WL
28
ALJ must give controlling weight to the treating physician's
opinion when the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362
F.3d 28, 31-32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134
(2d Cir. 2000). Even if a treating physician's opinion is deemed
not to be deserving of controlling weight, an ALJ may nonetheless
give it “extra weight” under certain circumstances. In this
regard, the ALJ should consider the following factors when
determining the proper weight to afford the treating physician's
opinion if it is not entitled to controlling weight: (1) length of
the treatment relationship and the frequency of examination, (2)
nature and extent of the treatment relationship, (3)supportability
of opinion, (4) consistency, (5) specialization of the treating
physician, and (6) other factors that are brought to the attention
of the court. C.F.R. § 404.1527(d)(1)-(6); see also de Roman, 2003
WL 21511160, at *9; Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc.
Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d
496, 503 (2d Cir. 1998).
Dr. Camillo opined that Plaintiff “would need to be able to
call off work without notice” because he experienced dizziness
“without warning,” and that he was only able to perform activities
21511160, at *9 (S.D.N.Y. July 2, 2003).
29
for a short period of time, approximately half an hour (Tr. 572).
In her decision, the ALJ gave “limited weight” to Dr. Camillo’s
opinion, due, inter alia, to the fact that it was not supported by
treatment records or by evidence of Plaintiff’s own activities,
and because it was contradicted by the opinion of the consultative
psychiatric examiner, Dr. Shapiro (Tr. 17). Plaintiff argues that
the ALJ erred by using Dr. Shapiro’s report as a basis to give
little weight to Dr. Camillo’s assessment. See Pl. Br. at 14-15.
It is well settled that the opinion of a consultative
examiner can override that of a treating physician. See 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2); Snell v. Apfel, 177 F.3d 128,
132-33 (2d Cir. 1999); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d
Cir. 1983). Dr. Shapiro’s opinion as a consultative examiner is
not infirm simply because she examined Plaintiff before he began
treatment with Dr. Camillo. A consultative examiner is an
independent physician who examines a claimant on a one-time basis.
See 20 C.F.R. §§ 404.1517, 404.1519 et seq., 404.1527(d), 416.917,
416.919 et seq., 416.927(d). As a consultative examiner, Dr.
Shapiro’s task was to examine Plaintiff directly and provide a
medical opinion based on that examination, rather than on a review
of his medical records.
Moreover, there is substantial evidence supporting the ALJ’s
conclusion to give Dr. Camillo’s opinion less than controlling
weight.
Dr. Camillo’s assessment of Plaintiff’s limitations was
30
contradicted by Plaintiff’s treatment records, the observations of
other medical personnel, and Plaintiff’s own testimony.
Plaintiff’s medical records also show that his dizziness steadily
improved after Dr. Shapiro examined him. See Tr. 457 (physical
therapy from December 2007 to March 2008 resulted in “less
dizziness overall”), 554-558 (physical therapy records from
March 2009 to April 2009), 559-70 (physical therapy records from
May 2009 to June 2009). In this regard, physical therapy steadily
reduced Plaintiff’s dizziness until it was rated at only “1” or
“2” on a scale of ten by April 2009 (Tr. 558), and by June 2009
Plaintiff
reported “being great” for days at a time and then
feeling only “a little dizzy” (Tr. 566). At one session Plaintiff
did not report dizziness at all (Tr. 569) and soon after again
felt “pretty good” with “just a little dizziness” (Tr. 570).
Further, other physicians noted in their records that
Plaintiff did not seem to have any problems with balance or
dizziness.
Both Dr. Ganesh, the consultative neurologic examiner,
and Dr. McElheran, a treating physician, noted when examining
Plaintiff that he walked normally with no indication of balance
problems caused by dizziness. See Tr. 362 (despite complaints of a
“balance problem,” Plaintiff’s gait was “quite normal” and he was
able to walk “with no problem noted”); 491, 494, 495 523, 527, 530
(Dr. McElheran noting on multiple occasions that Plaintiff walked
with a normal gait). Plaintiff was also able to walk on his heels
31
and toes, could rise from a chair, and get on and off an
examination table without any difficulty. See Tr. 362-63, 522,
523, 527, 530. And Ms. Combs, a nurse at Dr. Camillo’s practice,
assessed Plaintiff’s GAF score at 55 in April 2009, indicating
only moderate symptoms, or moderate difficulty in social,
occupational, or school functioning (Tr. 511).4 See DSM-IV.
Finally, Plaintiff went deer hunting several times in the fall of
2008 (Tr. 510). These hunting trips lasted, according to
Plaintiff’s testimony, “maybe an hour to an hour and a half,” Tr.
54,contradicting Dr. Camillo’s opinion that Plaintiff would only
be able to perform activities for a half an hour at a time, see
Tr. 572.
Substantial evidence supported the ALJ’s determination to
assign little weight to Dr. Camillo’s assessment and, therefore,
the ALJ did not err by making this determination.
B.
Plaintiff’s Credibility
Next, Plaintiff argues that the ALJ erred in assessing little
weight to Plaintiff’s statements regarding his symptoms in
relation to the RFC determination (see Tr. 18). See 20 C.F.R. §§
404.1529, 404.1545(a)(3), 416.929, 416.945(a)(3). An ALJ has
discretion to evaluate the credibility of a claimant and to make
an independent judgment based on medical findings regarding the
4
Plaintiff argues that Dr. Shapiro’s opinion should be rejected because he
stated that Plaintiff reported that he “gets along well with friends and
family.” See Tr. 358-59
32
true extent of the claimant's symptoms.
Mimms v. Heckler, 750
F.2d 180, 186 (2d Cir. 1984); Dumas v. Schweiker, 712 F.2d 1545,
1553 (2d Cir. 1983). It is the function of the Commissioner, not
the reviewing court, to “resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.”
Caroll v. Sec’y of Health and Human Serv., 705 F.2d 638, 642 (2d
Cir. 1983); see Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n. 6
(S.D.N.Y. 1995)(An ALJ's determination with respect to the
credibility of witnesses is given great deference because the ALJ
heard the testimony and observed the demeanor of the witnesses.).
Further, Plaintiff must produce appropriate, probative evidence in
support of any subjective statements of symptoms, 20 C.F.R. §§
404.1529(c)(4), 416.929(c)(4), and the ALJ's decision to discount
Plaintiff's statements of symptoms must be accepted by a reviewing
court unless it is clearly erroneous. Centano v. Apfel, 73 F.
Supp.2d 333, 338 (S.D.N.Y.1999).
When an individual has a medically determinable impairment
that could reasonably be expected to produce the symptoms alleged,
but the objective evidence does not substantiate the alleged
intensity and persistence of the symptoms, the ALJ considers other
factors in assessing the individual’s subjective symptoms. These
factors include: (1) Plaintiff’s daily activities; (2) the nature,
duration, frequency and intensity of his symptoms; (3)
precipitating and aggravating factors; (4) the type of medication
33
and other treatment or measures which Plaintiff uses to relieve
pain and other symptoms; (5) treatment other than medication
Plaintiff has received for relief of pain and other symptoms; (6)
any other measures used by Plaintiff to relieve pain and other
symptoms; and (7) other factors concerning Plaintiff’s functional
limitations and restrictions due to pain or other symptoms. See 20
C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
Plaintiff alleges that his anxiety was so severe that he
often could barely get out of bed due to dizziness (Tr. 37), could
not do any activities for more than 10 minutes at a time (Tr. 4344), and that he avoided being around people to the extent that he
went to stores early so he would not have to be around other
shoppers (Tr. 50).
Both the medical evidence and Plaintiff’s
description of his activities did not corroborate his complaints
to the extent alleged, and, further, Plaintiff’s statements
regarding his symptoms were sometimes contradictory.5 See 20 C.F.R.
5
Both the consultative examiners, Drs. Shapiro and Ganesh, as well as a
treating physician, Dr. McElheran, noted that Plaintiff had no trouble with
walking, walking on his heels and toes, rising from a chair, or getting on and
off the examination table despite his alleged problems with balance and
dizziness (Tr. 358, 362-63, 491, 494, 495, 523, 527, 530). Plaintiff’s physical
therapy records show that by the spring of 2009 he “felt great” some days and
only “a little dizzy” other days (Tr. 554-70). In her report, Dr. Shapiro noted
that the results of Plaintiff’s psychiatric examination were “inconsistent with
[his] allegations” (Tr. 359). In April 2008 he reported no longer having panic
attacks (Tr. 516). Plaintiff also contradicted himself, telling one doctor that
his dizziness was caused by standing up from lying in bed (Tr. 516); to another
doctor he said that his dizziness was caused by lying down (Tr. 494) or by
leaning forward from a standing position (Tr. 494, 522). And despite Plaintiff’s
claim that he is unable to be around people, he told Dr. Shapiro that he “gets
along well with friends and family” (Tr. 359), went deer hunting with his
brothers (Tr. 54- 55), and by March 2008 he was able to go shopping without
worrying about being around people (Tr. 457). Finally, as the ALJ noted,
Plaintiff’s subjective complaints were also belied by his ability to repeatedly
34
§§ 404.1529(c)(2), 416.929(c)(2). The ALJ therefore did not err in
finding Plaintiff’s subjective complaints not credible to the
extent alleged.
C.
Evidentiary weight to the opinion of a
non-physician, state-agency disability analyst
(“single decision maker”)
Next, Plaintiff argues that the ALJ improperly gave
evidentiary weight to the opinion of J. Ayres, a non-physician,
state-agency disability analyst (a “single decision maker”) who
prepared an RFC Assessment.
“Single decision makers” (“SDMs”)are
non-physician disability examiners who “may make the initial
disability determination in most cases without requiring the
signature of a medical consultant.” 71 FR 45890–01, 2006 WL
2283653.
On May 19, 2010, the Chief Administrative Law Judge for
the Social Security Administration issued a memorandum citing POMS6
Instruction DI 24510.050C and instructing all ALJs that RFC
determinations by SDMs should not be afforded any evidentiary
weight at the administrative hearing level. Numerous courts have
concluded, per this memorandum, that assigning any evidentiary
weight to an SDM’s opinion is an error. See Yorkus v. Astrue, No.
10-2197, 2011 WL 7400189, at *5 (E.D. Pa. Feb. 28, 2011)
(collecting cases).
go deer hunting in the Fall of 2008. See Tr. 18, 510.
6
The “POMS” is the Social Security Administration’s “Program Operations
Manual System,” an internal manual used by Social Security employees to process
disability claims.
35
In her decision,7 the ALJ stated that Ayres’s opinion “does
not constitute a medical opinion” and therefore “is not entitled
to much weight.” Tr. 17. Plaintiff argues that, because the
opinion is entitled to no weight, the ALJ’s decision must be
reversed. The Court disagrees.
The ALJ’s decision does not indicate that Ayre’s opinion was
relied upon. The analyst stated that Plaintiff had an RFC for
sedentary work — a more restrictive RFC than the ALJ ultimately
found. See Tr. 15-17; Tr. 365-70. It would appear that the ALJ did
not give much weight to the opinion and therefore does not
constitute a basis for remand. See Lawton v. Astrue, No. 1:08–CV0137, 2009 WL 2867905, at *16 n.28 (N.D.N.Y. Sept. 2, 2009)(no
error in assigning “only slight weight” to the opinion of a
disability analyst).
Moreover, Plaintiff has not demonstrated that he was
prejudiced by the minimal weight afforded this opinion. See
Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (burden of
showing harmful error “falls on the party attacking the agency’s
determination” )(citing Nelson v. Apfel, 131 F.3d 1228, 1236 (7th
Cir. 1997). The mere mention in the ALJ’s decision that the
analyst’s report was “not entitled to much weight” is not a basis
for remand, especially in light of the wealth of other information
7
Administrative Law Judge Koennecke issued her decision on October 19,
2009.
36
that the ALJ considered. See Zabala v. Astrue, 595 F.3d 402, 409
(2d Cir. 2010) (remand unnecessary where “application of the
correct legal principles . . . could lead only to the same
conclusion” (internal quotation marks and brackets omitted));
Mitchell v. Astrue, No. 09-CV-6301, 2010 WL3070094, at *4
(W.D.N.Y. Aug. 4, 2010) (remand inappropriate where Plaintiffs
fails to show that any alleged error “was determinative of . . .
the final RFC assessment”). Thus, the Court finds no reason for
reversal on this ground.
D.
Plaintiff’s Capability to Perform Jobs Existing In
Significant Numbers In The National Economy
Plaintiff argues that the ALJ erred in determining that
Plaintiff was capable of performing jobs existing in significant
numbers in the national economy. At step four of the sequential
analysis, the ALJ found that Plaintiff was capable of performing
his past relevant work as a maintenance worker “as it was actually
performed.” Tr. 18. That past work sometimes required frequently
lifting up to 30 pounds and occasionally lifting much more. See
id.; Tr. 135-36. As Plaintiff points out, this amount of lifting
and carrying exceeds Plaintiff’s RFC for light work. See Pl. Br.
at 21; 20 C.F.R. §§ 404.1567(b), 416.967(b)(light work requires
lifting no more than 20 pounds at a time).
The Commissioner
concedes that the ALJ’s step-four finding was erroneous but argues
that the error was harmless because the ALJ made an alternative
finding at step five of the sequential analysis that Plaintiff was
37
capable of performing other jobs existing in significant numbers
in the national economy. See Tr. 18-19; see Thompson v. Astrue,
No. 1:06-CV-1328, 2010 WL 502868, at *1 (N.D.N.Y. Feb. 9, 2010)
(“[A] deficiency in an ALJ’s step-four analysis does not require
remand if the ALJ subsequently made a correct ruling at step
five.”).
At step 5 in the sequential evaluation, an ALJ is required to
perform a two part process to first assess Plaintiff's job
qualifications by considering his physical ability, age,
education, and work experience, and then determine whether jobs
exist in the national economy that Plaintiff could perform. See 42
U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v.
Campbell, 461 U.S. 458, 460 (1983). The second part of this
process is generally satisfied by referring to the applicable rule
of the Medical-Vocational Guidelines set forth at 20 C.F.R. Part
404, Subpart P, Appendix 2 (“the Grid”). See Bapp v. Bowen, 802
F.2d 601, 604 (2d Cir. 1986).
“The Grid takes into account the
claimant's residual functional capacity in conjunction with the
claimant's age, education and work experience. Based on these
factors, the Grid indicates whether the claimant can engage in any
other substantial gainful work which exists in the national
economy.” Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y.1996).8
8
“The Grid classifies work into five categories based on the exertional
requirements of the different jobs. Specifically, it divides work into
sedentary, light, medium, heavy and very heavy, based on the extent of
38
“Generally the result listed in the Grid is dispositive on
the issue of disability.” Id.
However, if the claimant has
nonexertional impairments, the ALJ must determine whether those
impairments “significantly” diminish the claimant’s work capacity
beyond that caused by his or her exertional limitations. Id. A
claimant’s work capacity is “‘significantly diminished’ if there
is an ‘additional loss of work capacity . . . that so narrows a
claimant’s possible range of work as to deprive him of a
meaningful employment opportunity.’” Id.(quoting Bapp, 802 F.2d at
606). If a claimant's work capacity is significantly diminished by
non-exertional impairments beyond that caused by his or her
exertional impairment(s), then the use of the Grids may be an
inappropriate method of determining a claimant's residual
functional capacity and the ALJ may be required to consult a
vocational expert. See Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996); Bapp, 802 F.2d at 604-605.
At step five, the ALJ found that, given Plaintiff’s RFC, age
at the time of the alleged onset date (39), high-school education,
and ability to communicate in English, he was able to perform jobs
that existed in substantial numbers in the national economy (Tr.
18-19). The ALJ relied on the Grid (Tr. 19). Plaintiff argues,
requirements in the primary strength activities of sitting, standing, walking,
lifting, carrying, pushing, and pulling.” Zorilla, 915 F. Supp. at 667 n. 2;
see 20 C.F.R. § 404.1567(a). Upon consideration of the claimant's residual
functional capacity, age, education, and prior work experience, the Grid yields
a decision of “disabled” or “not disabled.” 20 C.F.R. § 404.1569, § 404 Subpt.
P, App. 2, 200.00(a).
39
however, that because of evidence of his dizziness which was a
manifestation of the anxiety disorder found to be a severe
impairment, and because of his daily requirements to treat his
pain, the ALJ erred by relying on the Grid rather than obtaining
evidence from a vocational expert. See Pl. Br. at 21-22.
While the “mere existence of a nonexertional impairment does
not automatically require the production of a vocational expert
nor preclude reliance on the [Grids],” Bapp, 802 F.2d at 603, here
the ALJ failed to incorporate Plaintiff’s symptoms of dizziness
when considering Plaintiff's residual functional capacity even
though she acknowledged that his dizziness was a manifestation of
his severe impairment of anxiety. (Tr. 24).
While the ALJ took
Plaintiff’s anxiety into account when finding that Plaintiff had a
moderate restriction in activities of daily living and a mild
restriction in social functioning, see Tr. 15 (“This is so because
of his dizziness . . . .”), and while the ALJ might have
determined to discount Plaintiff’s subjective complaints of
dizziness for the reasons discussed above, that conclusion is not
clear from the record.
It is not this Court’s position to
determine whether Plaintiff’s complaints of dizziness should have
been totally discounted, or whether the ALJ did so.
Further, Plaintiff argues that the ALJ failed to incorporate
“the multiple actions Plaintiff takes daily to manage his neck
pain and to follow his doctor’s instructions.” Pl. Br. at 19.
40
These consist of “home physical therapy, us[ing] a traction unit,
and alternate[ly] applying ice packs and heat packs to his neck.”
Id.
Plaintiff contends that he would be unable to work “for
significant portions of the work day when performing these
activities to manage his pain.” Id.
Defendant contends that,
based on evidence that Plaintiff’s physical therapy sessions
(consisting of applying heat packs, traction, and stretching)
lasted no more than 20 to 30 minutes, see Tr. 549-57, 563-66,
568-70, the ALJ could have concluded that Plaintiff would not need
to perform “home physical therapy” exercises at work but instead
could perform these activities before work, after work, or during
work breaks.
Again, the record is not developed in this regard
and this Court is not in the position to infer what the ALJ might
have considered or concluded.
Although this Court must give deference to the Commissioner’s
decision, the present record leaves open the question of whether
Plaintiff’s work capacity is significantly diminished by the nonexertional impairments posed by his dizziness and daily treatment
regime such to limit his ability to find meaningful employment
opportunities in the national economy. Combined with the
concession that the Commissioner erred at step four of the
sequential analysis, the matter must be reversed and remanded for
a hearing to resolve these issues.
41
IV.
CONCLUSION
For the reasons set forth above, the decision of the
Commissioner is REVERSED, and the case is REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405 (g) for
further administrative proceedings consistent with this Decision
and Order.
IT IS SO ORDERED.
Dated:
September 18, 2012
42
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