Miller v. Astrue

Filing 15

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Miller's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 7/26/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOHN S. MILLER,
Plaintiff,

7:11-cv-631
(GLS)

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinksy Law Group
300 S. State Street
5th Fl., Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Mary Ann Sloan
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

HOWARD D. OLINSKY, ESQ.

JEREMY A. LINDEN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff John S. Miller challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI) and seeks judicial
review under 42 U.S.C. § 1383(c)(3). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Miller’s
arguments, the court affirms the Commissioner’s decision and dismisses
the Complaint.
II. Background
On September 5, 2006, Miller filed an application for SSI under the
Social Security Act (“the Act”), alleging disability since December 16, 2005.
(See Tr.1 at 13.) After his application was denied, Miller requested a
hearing before an Administrative Law Judge (ALJ), which was held on
February 10, 2009. (See id. at 13, 22-56.) On June 3, 2009, the ALJ
issued a decision denying the requested benefits, which became the
Commissioner’s final determination upon the Social Security Administration
Appeals Council’s denial of review. (See id. at 1-5, 10-21.) Miller

1

Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 8.)
2

commenced the present action by filing a complaint on June 7, 2011,
seeking review of the Commissioner’s determination. (See Compl. ¶¶ 1-7.)
The Commissioner filed an answer and a certified copy of the
administrative transcript. (See Dkt. Nos. 7, 8.) Each party, seeking
judgment on the pleadings, filed a brief. (See Dkt. Nos. 11, 14.)
III. Contentions
Miller contends that the Commissioner’s decision was the product of
the application of improper legal standards and is unsupported by
substantial evidence. (See generally Dkt. No. 11.) Specifically, Miller
claims the ALJ: (1) erred in finding that he knowingly and voluntarily waived
his right to legal representation; (2) erred by failing to develop the record
with regard to his limited intellectual capacity; (3) erred in determining his
Residual Functional Capacity (RFC); (4) did not apply the appropriate legal
standards in evaluating his credibility; and (5) erred at step five. (See Dkt.
No. 11 at 1, 13-15, 17-21.) Additionally, Miller claims that the Appeals
Council erred by failing to remand due to his severe depressive disorder.
(See id. at 15-17.) The Commissioner counters that the appropriate legal
standards were applied and substantial evidence supports the ALJ’s
decision. (See generally Dkt. No. 14.)
3

IV. Facts
The evidence in this case is undisputed and the court adopts the
parties’ factual recitations. (See Dkt. No. 11 at 2-11; Dkt. No. 14 at 1-7.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 1383(c)(3) is well established and will not be repeated here.
For a full discussion of the standard and the five-step process used by the
Commissioner in evaluating whether a claimant is disabled under the Act,
the court refers the parties to its previous opinion in Christiana v. Comm’r
of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Waiver of Right to Legal Representation
Miller first avers that the ALJ erred in finding that he knowingly and

voluntarily waived his right to legal representation, (see Dkt. No. 11 at 1314), because he had “limited intellectual capacity,” which prevented him
from doing so, (id. at 13). The court disagrees.
Although a claimant does not have a constitutional right to counsel
at a social security disability hearing, “[the claimant] does have a statutory
4

and regulatory right to be represented should [he] choose to obtain
counsel.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.
2009); 42 U.S.C. §1383(d)(2)(D); accord 20 C.F.R. § 416.1506. If
properly informed of this right, a claimant may waive it. See Lamay, 562
F.3d at 507.
Relevantly, the regulations state that, when notifying a claimant of
an adverse determination, the Commissioner must “notify [the] claimant in
writing” of (1) his “options for obtaining attorneys to represent [him]” at his
hearing, and (2) “the availability to qualifying claimants of legal services
organizations which provide legal services free of charge.” 42 U.S.C. §
1383(d)(2)(D); accord 20 C.F.R. § 416.1506; see Lamay, 562 F.3d at 507.
Additionally, at the hearing itself, “the ALJ must ensure that the claimant is
aware of [his] right [to counsel].” Lamay, 562 F.3d at 507 (internal
quotation marks and citation omitted).
Here, Miller was informed of his right, in writing, on three separate
occasions. (See Tr. at 60, 70-76, 79.) And, though Miller stated that he
had difficulty with reading and math in school, and had dyslexia, (see id. at
48), Miller also testified that he could “read really well,” (id. at 30).
Moreover, the transcript evidences several occasions in which Miller
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stated he could: read and understand English, (see id. at 109); follow
spoken and written instructions, (see id. at 125); attend to and
appropriately respond to all questions and requests, (see id. at 228); and
read daily, (see id. at 231).
Indeed, Miller acknowledged at the hearing that he understood he
had a right to representation, and that the ALJ would adjourn the hearing if
he sought to obtain representation. (See id. at 24-25.) There is no
indication in the record that Miller was confused, or did not understand
what the right to counsel entailed. Rather, the ALJ noted that Miller
previously had an attorney, who withdrew his representation. (See id. at
24, 63, 69.) As such, the court concludes that Miller was aware he could
obtain representation to assist him with the hearing, and made a voluntary
choice to forego such representation.
B.

Development of the Record
Miller next contends that the ALJ failed to fully develop the

administrative record. (See Dkt. No. 11 at 14-15.) Specifically, he alleges
that the ALJ erred by failing to order a consultative intelligence
examination with regard to his intellectual capacity. (See id. at 15.) The
Commissioner counters that the record is complete and fully developed
6

under the regulations. (See Dkt. No. 14 at 12-13.) The court agrees with
the Commissioner.
While Miller is correct in stating that the ALJ has an affirmative
obligation to develop the administrative record, “it is also true that this
obligation is not limitless.” Guile v. Barnhart; No. 5:07-cv-259, 2010 WL
2516586, at *3 (N.D.N.Y. June 14, 2010). “Indeed, where the evidence
received by the ALJ is consistent and sufficient to determine whether a
claimant is disabled, further development of the record is unnecessary,
and the ALJ may make [his] determination or decision based on that
evidence.” Id.; see 20 C.F.R. § 416.920b(a); cf. § 416.920b(b) (providing
that even if the record evidence is inconsistent, the ALJ will weigh the
relevant evidence and decide whether a disability determination can be
made concerning a disability insurance benefit claim). As such, where no
“obvious gaps” exist in the administrative record, the ALJ is under no
evidentiary obligation to seek additional information. Rosa v. Callahan,
168 F.3d 72, 79 n.5 (2d Cir. 1999) (internal quotation marks and citation
omitted).
Here, in her assessment of Miller, consultative psychologist Jeanne
Shapiro, Ph.D., found that Miller had no significant psychiatric problems,
7

but noted that mild mental retardation had not been ruled out. (See Tr. at
17, 229.) Nonetheless, Dr. Shapiro opined that Miller was capable of
attending to, and appropriately responding to, all questions and requests;
performing simple and probably some complex tasks with supervision;
independently maintaining attention and concentration for tasks; regularly
attending to a routine and maintaining a schedule; learning new tasks;
making appropriate decisions; relating to and interacting appropriately with
others; and dealing with stress. (See id. at 17, 228-29.) State agency
psychiatrist Dr. Apacible corroborated Dr. Shapiro’s findings and opined
that Miller had no severe mental impairments, including no mental
retardation.2 (See id. at 17, 234.)
Based on these reports, the court concurs with the Commissioner
that further development of the record was unnecessary. The ALJ had
before him substantial, consistent evidence to gauge Miller’s mental
limitations and there were no obvious gaps in the record. In particular, the
clinical findings of Drs. Shapiro and Apacible both support the conclusion
that Miller is not significantly impaired.

2

Additionally, Miller was employed for extended periods prior to his
application for SSI. (See id. at 31-33, 91, 96.)
8

As to Miller’s claim that the ALJ has a “heightened duty” to develop
the record when a claimant proceeds pro se, Miller is also correct.
Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir.
1982) (internal quotation marks and citations omitted). However, the ALJ
fulfilled that duty by conducting an extensive hearing, (see id. at 24-56),
during which he permitted Miller to discuss any issues he felt were
important, (see id. at 49), questioned Miller as to whether there was any
additional medical evidence to collect, requested such evidence, and
added over 100 pages to the record, (see id. 49-55, 262-370). Thus,
Miller’s argument that the ALJ did not fully develop the record, fails.
C.

RFC Determination
Miller next avers that the ALJ’s RFC assessment is flawed because

the ALJ did not fully develop the record regarding Consultative Examiner
Dr. Naughten’s report and implicitly adopted the opinion of a state agency
disability analyst. (See id. at 17-19.) The Commissioner counters, and
the court agrees, that the ALJ properly evaluated and weighed the medical
evidence in determining Miller’s RFC. (See Dkt. No. 14 at 13-19.)
A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 416.945(a)(1). In assessing a claimant’s RFC,
9

an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 416.945(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence3
in the record. See Frye v. Astrue, No. 11-1585-cv, 2012 WL 2125910, at
*2 (2d. Cir. June 13, 2012) (stating that, pursuant to 42 U.S.C. §
1383(c)(3), the standards set forward in 42 U.S.C. § 405(g) apply to SSI
cases). If it is, that determination is conclusive and must be affirmed upon
judicial review. See id.; see also Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996).
Here, the ALJ found that Miller has the “residual functional capacity
to lift or carry 20 pounds occasionally and 10 pounds frequently, stand or
walk 6 hours in an 8-hour day and sit 6 hours in an 8-hour day with
occasional climbing, stooping, kneeling, crouching and crawling and
frequent balancing.” (Tr. at 18.) The ALJ also found that Miller should
avoid “concentrated exposure to hazards such as machinery and heights.”
(Id.)

3

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

10

In reaching his conclusion, the ALJ considered the August 2006
recommendation of orthopedic specialist David Van Eenenaam, M.D., that
Miller temporarily not work at his job because he could not sit for
prolonged periods with his back pain and radiation. (See id. at 18, 208.)
The ALJ also considered Dr. Naughten’s medical opinions in March 2007,
that Miller “may need to be restricted from activities requiring mild to
greater exertion with moderate limitation for walking and climbing stairs,”
that Miller “should be able to carry and handle objects with moderate
degree of weight on an occasional basis,” and had no limitation for sitting
or standing. (Id. at 18, 233.) Additionally, the ALJ considered a state
agency disability analyst’s opinion from April 2007, which opined that
Miller “could lift or carry [twenty] pounds occasionally and [ten] pounds
frequently, stand or walk about [six] hours in an [eight]-hour day and sit
about [six] hours in an [eight]-hour day and should avoid concentrated
exposure to hazards.” (See id. at 18, 249-250.) The ALJ also considered
notes from neurology associate Gabriela Canal, RPA-C, which indicated
that in May 2008, the claimant’s physical findings, which included an MRI
of both the cervical spine and lumbar spine, were out of proportion with his
complaints of pain. (See id. at 18, 266).
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Moreover, in an effort to develop a more complete record, the ALJ
requested that treating sources Drs. VanDeWall and Baird complete a
Medical Source Statement of Ability to do Work-Related Activities for
Miller; however, both declined to do so. (See id. at 19, 272-73, 346.)
Nonetheless, Drs. VanDeWall and Baird’s treatment notes remained
consistent with Dr. Naughten’s relatively benign findings. (See id. at 287,
280, 282, 287, 290, 358-61.) As such, the ALJ’s decision to afford
“considerable weight” to Dr. Naughten’s opinion was correct since
Naughten’s opinion is generally consistent with the record as a whole.
See 20 C.F.R. § 416.927(c)(4) (explaining that the more consistent an
opinion is with the record as a whole, the more weight it deserves).
Further, Miller’s claim that the ALJ “cherry-picked” findings from Dr.
Naughten’s opinion, (Dkt. No. 11 at 18), is untenable. Rather, the ALJ’s
RFC assessment is completely consistent with Dr. Naughten’s opinion.
Comparing the two, Dr. Naughten limited Miller to carrying and handling
objects with a “moderate degree of weight on an occasional basis,” and
the ALJ limited Miller to lifting or carrying twenty pounds “occasionally”
and ten pounds frequently. (Compare Tr. at 233, with Tr. at 18.)
Additionally, Dr. Naughten opined that Miller had a “moderate” limitation
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for walking and “no limitations” for sitting or standing, which is similar to
the ALJ’s RFC analysis that Miller could stand, walk, or sit six hours in an
eight-hour day. (Compare id. at 233, with id. at 18.) Also, Dr. Naughten
opined that Miller had a “moderate” limitation for climbing stairs, which is
compatible with the RFC analysis that he was limited to “occasional
climbing.”4 (Compare id. at 233, with id. at 18.)
Finally, Miller’s claim that the ALJ must have implicitly adopted the
non-medical disability analyst’s opinion because it “mirrors” the ALJ’s RFC
assessment, is also meritless. In fact, in making his determination, the
ALJ acknowledged that the disability analyst was an unacceptable medical
source under the regulations and consequently stated that he was giving
the opinion “little weight.” (Id. at 18.)
As such, the record as a whole demonstrates that the ALJ’s RFC
assessment is supported by substantial evidence and is thus conclusive.

4

Regarding Miller’s claim that the ALJ failed to fully develop the
record with regard to Dr. Naughten’s opinion, primarily because the ALJ
did not obtain documentation regarding Miller’s weight gain, that claim is
also without merit. (Dkt. No. 11 at 18.) In actuality, the record is complete
in this area and it appears that Miller did not gain this weight solely in the
two weeks preceding his consultative examination with Dr. Naughten.
(See Tr. at 165, 230-31, 233, 306, 361, 409.)
13

See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); see also Perez,
77 F.3d at 46.

D.

Credibility Assessment
Miller next objects to the ALJ’s analysis of his credibility. (See Dkt.

No. 11 at 19-20.) The Commissioner counters that the ALJ properly
evaluated the evidence in assessing Miller’s credibility. (See Dkt. No. 14
at 19-21.) Again, the court disagrees with Miller.
An ALJ must consider a claimant’s subjective complaints of pain in
gauging his RFC. See 20 C.F.R. § 416.929(a). However, an individual’s
statement as to pain or other symptoms will not alone be conclusive
evidence of disability. See id. The Commissioner is obligated to evaluate
all of a claimant’s symptoms, “including pain, and the extent to which
[those] symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” Id.
Ultimately, “[t]he reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or decision.” SSR 967p, 1996 WL 374186, at *4 (July 2, 1996). Thus, “after weighing the
objective medical evidence in the record, the claimant’s demeanor, and
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other indicia of credibility,” an [ALJ] may reject the claimant’s subjective
allegations of pain as long as he sets forth his “reasons with sufficient
specificity to enable [the court] to decide whether the determination is
supported by substantial evidence.” Lewis v. Apfel, 62 F. Supp. 2d 648,
651 (N.D.N.Y. 1999) (internal quotation marks and citation omitted).
Here, the ALJ considered both the medical evidence and Miller’s
testimony concerning his activities of daily living, and highlighted the
inconsistencies in Miller’s testimony. (See Tr. at 19.) For instance, Miller
testified that he could not return to work due to daily pain up his spine and
into his neck, that he takes Gabapentin for pain, and that his wife bought
him a cane that he uses around the house or if he has to go to the store,
but failed to bring the cane to the hearing. (See id. at 19, 36-39.)
Additionally, Miller stated that his wife does all the household chores
because it is “her thing,” not because he cannot do it. (See id. at 19, 44.)
Finally, the ALJ noted that Miller claimed that he used to bike ride, golf
and bowl, but now spends his day “sitting in front of the television or [lying]
down on the couch,” however, in June 2008, he complained of a blister on
his thumb which he acquired from doing work in the garden. (See id. at
19; compare id. at 45, with id. at 284.)
15

On the basis of the record before it, the court discerns no error in the
ALJ’s determination that Miller’s subjective statements were not entirely
credible and did not alone establish disability. See 20 C.F.R. §
416.929(a).
E.

Vocational Expert
Miller next avers that the “ALJ erred by relying solely on the medical-

vocational guidelines and not introducing the testimony of a vocational
expert.” (Dkt. No. 11 at 21.) Specifically, Miller argues that the ALJ is
required to consult with a vocational expert where significant nonexertional
impairments are present, and that Miller himself suffered from such
impairments. (See id.) Conversely, the Commissioner asserts that the
ALJ correctly determined that there were jobs in the national economy that
Miller could perform. (See Dkt. No. 14 at 21-22.) The court agrees with
the Commissioner.
The appropriateness of applying the grid guidelines, and the
“necessity for expert testimony must be determined on a case-by-case
basis.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986). Indeed, the
ALJ is vested with discretion regarding whether to use a vocational expert.
See 20 C.F.R. § 416.966(e). But “if a claimant’s nonexertional
16

impairments ‘significantly limit the range of work permitted by his
exertional limitations’ then the grids obviously will not accurately determine
disability status because they fail to take into account claimant’s
nonexertional impairments.” Bapp, 802 F.2d at 605 (quoting Blacknall v.
Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)). In that case, the ALJ
should consult with a vocational expert before making a determination as
to disability. See Id. However, “the mere existence of a nonexertional
impairment does not automatically require the production of a vocational
expert nor preclude reliance on the guidelines.” Id. at 603. Instead,
exclusive reliance on the grids will only be deemed inappropriate where
the non-exertional impairments “significantly limit the range of work
permitted by his exertional limitations.” Id. at 605 (emphasis added)
(internal quotation marks and citation omitted).
Here, the ALJ concluded that Miller’s ability to perform a full range of
exertional requirements of light work had been compromised by nonexertional limitations, such as an inability to ascend or descend
scaffolding, poles, and ropes; an inability to crawl on hands and knees;
and an inability to use his fingertips to sense the temperature or texture of
an object. (See Tr. at 20.) However, the ALJ found that the non17

exertional limitations or restrictions “have very little or no effect on the
unskilled light occupational base.” (Id. at 20.) Additionally, as discussed
above, Miller’s ability to meet the demands of unskilled work are
demonstrated by ample evidence in the record.
Miller’s contention that his nonexertional limitation, related to his
depressive disorder, makes the ALJ’s step-five finding inappropriate, is
flawed. First, the evidence on which Miller relies was provided after the
ALJ rendered his decision. (See id. at 10, 424-28, 430-35, 439-42.) And
more importantly, as discussed below, the Appeals Council’s decision to
deny review of the ALJ’s decision after considering the new evidence, was
appropriate.
Thus, the ALJ made the proper decision to forego consultation with
a vocational expert.
F.

Appeals Council’s Denial of Review
Lastly, Miller contends that the Appeals Council erred by failing to

remand based on psychiatric evidence submitted to it after the ALJ’s
decision. (See Dkt. No. 11 at 15-17.) Specifically, Miller contends that the
psychiatric evidence from Dr. Kimball and social worker Perry, provided a
basis to change the ALJ’s decision. (See id.) The Commissioner counters
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that the records presented to the Appeals Council provided no basis to
change the ALJ’s decision. (See Dkt. No. 14 at 22-25.) The court agrees
with the Commissioner.
The Appeals Council shall consider “new and material” evidence if it
“relates to the period on or before the date of the [ALJ] hearing decision.”
20 C.F.R. § 416.1476(b)(1); accord § 405.401(c); see Perez, 77 F.3d at
45. The Appeals Council “will then review the case if it finds that the
[ALJ]’s action, findings, or conclusion is contrary to the weight of the
evidence currently of record.” 20 C.F.R. § 416.1470(b). However, even if
“the Appeals Council denies review after considering new evidence, the
[Commissioner]’s final decision necessarily includes the Appeals Council’s
conclusion that the ALJ’s findings remained correct despite the new
evidence.” Perez, 77 F.3d at 45 (internal quotation marks and citation
omitted). Accordingly, the additional evidence becomes part of the
administrative record reviewed by the district court. Id. at 45-46.
Presuming, without deciding, that the evidence relating to Miller’s
condition was within the relevant time period,5 the evidence would not

5

“The Appeals Council shall consider the additional evidence only where it relates to
the period on or before the date of the administrative law judge hearing decision.” See 20
C.F.R. § 416.1470(b).

19

have altered the Commissioner’s decision because the opinions therein
deserve little weight. See Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir.
1991).
Under the “treating physician rule,” the ALJ must give controlling
weight to the treating physician’s opinion when that opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in
[the] record.” 20 C.F.R. § 416.927(c)(2); see Halloran v. Barnhart, 362
F.3d 28, 31-32 (2d Cir. 2004). And, if a treating physician’s opinion is
rendered undeserving of “controlling weight,” an ALJ may nonetheless
consider the following factors when determining the proper weight to
afford the treating physician’s opinion: (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. 20 C.F.R. § 416.927(c)(1)-(6); see
Kaminski v. Astrue, No. 09-CV-655, 2012 WL 887468, at *6 (N.D.N.Y.
Feb. 21, 2012).

20

Here, Dr. Kimball’s assessment of Miller at Mercy is not only
contradicted by substantial evidence of record, but by his own statements.
On June 16, 2009, Dr. Kimball maintained that Miller had a GAF score of
48, and opined that, “depression appears to be related to his pain and
physical inactivity.” (Id. at 432, 435.) However, that same day Dr. Kimball
noted that Miller showed normal grooming and hygiene, good eye contact,
normal speech, full orientation, average estimated IQ, intact remote
memory, lucid thought process, no hallucinations, good insight and
judgment, good impulse control, and no suicidal or homicidal ideation.
(See id. at 432-34.)
Moreover, on December 17, 2009, Dr. Kimball opined that Miller
would have “poor”6 ability to use judgment, relate to authority, deal with
stress, function independently, maintain attention/concentration, behave in
an emotionally stable manner, relate predictably in social situations,
demonstrate reliability, and understand, remember, and carry out
detailed/complex instructions; and had a current GAF of 40. (Id. at
424-25, 428.) However, again, that same day Dr. Kimball opined that
6

“Poor” means, “ability to function in this area is “seriously limited.
Ability to function is less than satisfactorily maintained for periods in
excess of 2 or 3 hours a day, 5 days per week.” (Tr. at 424.)
21

Miller had normal grooming and hygiene, cooperative relation, fair eye
contact, normal speech, normal expressive language, full orientation,
average estimated IQ, intact remote memory, lucid thought, no delusions,
fair insight and judgment, fair impulse control, and no suicidal, homicidal,
or violent ideation. (See id. at 426-28.) Additionally, Dr. Kimball
maintained that Miller could maintain personal appearance, follow rules,
deal with the public, manage his own benefits to his own best interest, and
understand, remember, and carry out simple instructions. (See id. at 42425.)
Furthermore, Dr. Kimball’s opinions are also inconsistent with
evidence from the relevant period, which show Miller maintaining
intelligible speech, a coherent thought process and directed goal, a calm
mood, intact attention and concentration; and the ability to perform simple
and “probably” some complex tasks. (Id. at 228-29.)
Given these inconsistencies, the court agrees with the
Commissioner that Dr. Kimball’s opinions were undeserving of controlling

22

weight, and thus, would not have influenced the Appeals Council to decide
Miller’s position differently.7
Finally, Perry, as a social worker, is not an acceptable medical
source, as defined under the regulations; thus the evidence she provided
is inconclusive in the disability determination. See 20 C.F.R. §
416.913(a). In any event, her assessment is unavailing considering on
May 14, 2010, she discharged Miller from care at Mercy because he had
not attended counseling since January 5, 2010. (See Tr. at 430.)
Moreover, Perry’s opinion, rendered that same day, which indicated that
Miller had a current GAF of 40 and a GAF of 48 for the past year, is
equally dubious considering she had not seen Miller in months. (See id. at
430-31.)
As such, the records presented to the Appeals Council provided no
basis to change the ALJ’s decision. 
G.

Remaining Findings and Conclusions

7

Even if one were to consider the factors regarding the proper
weight to afford Dr. Kimball’s opinion, Dr. Kimball saw Miller only two
times, six months apart. (See Tr. at 424, 432.) According to Dr. Kimball’s
notes, Miller has “surely” not participated in treatment “except to attend
this evaluation which his lawyer set up to help his social security case.”
(Id. at 428.)
23

After careful review of the record, the court affirms the remainder of
the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Miller’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
July 26, 2012
Albany, New York

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