Freeman v. Commissioner of Social Security
Filing
12
MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Freeman's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 6/22/2012. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ROBERT E. FREEMAN,
Plaintiff,
7:11-cv-1276
(GLS)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Conboy, McKay Law Firm
Carthage Office
307 State Street
Carthage, NY 13619
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
LAWRENCE D. HASSELER,
ESQ.
DAVID L. BROWN
Special Assistant U.S. Attorney
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Robert E. Freeman challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. § 405(g).
(See Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Freeman’s arguments, the court affirms the
Commissioner’s decision and dismisses the Complaint.
II. Background
On October 19, 2004, Freeman filed applications for DIB and SSI
under the Social Security Act (“the Act”), alleging disability since
September 15, 2003. (See Tr.1 at 104-08, 800-02.) After his applications
were denied, (see id. at 65-69), Freeman made an untimely request for a
hearing before an Administrative Law Judge (ALJ). (See id. at 70-75.)
Because good cause was demonstrated, his late filing was excused and a
hearing was held on May 31, 2006. (See id. at 75, 813-40.) On August
25, 2006, the ALJ issued an unfavorable decision denying the requested
benefits, which became the Commissioner’s final determination upon the
1
Page references preceded by “Tr.” are to the Administrative Transcript.
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Social Security Administration Appeals Council’s denial of review. (See id.
at 7-9, 36-47.)
Freeman commenced an action wherein he sought review of the
Commissioner’s determination. (See Dkt. No. 1, 7:07-cv-379.) By
stipulation, however, the parties agreed to a remand pursuant to sentence
four of 42 U.S.C. § 405(g). (See Dkt. No. 17, 7:07-cv-379) The Appeals
Council then remanded the case to the ALJ for further proceedings. (See
Tr. 868-71.) Following a second hearing on July 9, 2009, Freeman’s
applications were again denied by the ALJ. (See id. at 848-58, 1141-82.)
The Appeals Council declined jurisdiction, and Freeman commenced this
action seeking review of the Commissioner’s final determination. (See id.
at 841-43; Compl.) The Commissioner filed an answer and a certified copy
of the administrative transcript. (See Dkt. No. 6.) Each party, seeking
judgment on the pleadings, filed a brief. (See Dkt. Nos. 9, 11.)
III. Contentions
Freeman contends that the Commissioner’s decision is tainted by
errors of law and is not supported by substantial evidence. (See Dkt. No. 9
at 13-25.) Specifically, Freeman claims that the ALJ: (1) erred by failing to
find that his affective mood disorder meets listing 12.04; (2) improperly
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refused to accord controlling weight to the opinions of his treating
physicians; (3) mistakenly evaluated his credibility; and (4) improperly
concluded that suitable significant work in the national economy exists.
(See id.) The Commissioner counters that the appropriate legal standards
were used by the ALJ and his decision is also supported by substantial
evidence. (See Dkt. No. 11 at 6-16.)
IV. Facts
The court adopts Freeman’s undisputed factual recitations. (See
Dkt. No. 9 at 2-9.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous 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.
Listing 12.04
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First, Freeman argues that “[t]he Commissioner erroneously failed to
find that [his] affective disorder meets listing 12.04.” (Dkt. No. 9 at 13-15.)
Specifically, Freeman claims that his affective disorder meets the criteria of
Listing 12.04(C). (See id.) In opposition, the Commissioner argues that
the two-year durational requirement of listing 12.04(C) was not met, nor
were Freeman’s symptoms or signs currently attenuated by medication or
therapy as required by the listing. (See Dkt. No. 11 at 8-9.) Although for
reasons other than those articulated by the Commissioner, the court
agrees that the listing criteria were not met.
As relevant here, affective disorders, which are “[c]haracterized by a
disturbance of mood, accompanied by a full or partial manic or depressive
syndrome,”2 constitute a listing level impairment—and presumptive
disability—provided that the claimant has a:
C. Medically documented history of a chronic
affective disorder of at least 2 years’ duration
that has caused more than a minimal limitation
of ability to do basic work activities, with
symptoms or signs currently attenuated by
medication or psychosocial support, and . . .
1. Repeated episodes of decompensation, each
2
“Mood refers to a prolonged emotion that colors the whole psychic life; it generally
involves either depression or elation.” 20 C.F.R. pt. 404, subpart P, app. 1, § 12.04(C).
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of extended duration . . . .
20 C.F.R. pt. 404, subpart P, app. 1, § 12.04(C); see §§ 404.1520(d),
416.920(d). Episodes of decompensation3 are rated on a four-point scale,
including: none, one or two, three, and four or more. See id. §§
404.1520a(c)(4), 416.920a(c)(4). “[R]epeated episodes of
decompensation, each of extended duration,” the required “C criteria” at
issue here, “means three episodes within [one] year, or an average of once
every [four] months, each lasting for at least [two] weeks.” Id. pt. 404,
subpart P, app. 1, § 12.00(C)(4). An ALJ may find repeated episodes of
decompensation, each of extended duration where the claimant has had
“more frequent episodes of shorter duration or less frequent episodes of
longer duration,” but such a finding is reached by “us[ing] judgment to
determine if the duration and functional effects of the episodes are of equal
severity and may be used to substitute for the listed finding in a
determination of equivalence.” Id.
Here, the ALJ’s determination that Freeman “does not have an
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“Episodes of decompensation are exacerbations or temporary increases in symptoms
or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in
performing activities of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace.” 20 C.F.R. pt. 404, subpart P, app. 1, § 12.00(C)(4).
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impairment or combination of impairments that meets or medically equals
one of the listed impairments” is supported by substantial evidence.4 (Tr.
at 855.) Particularly, the ALJ considered whether any “C criteria” were
present, and he ultimately determined that, while Freeman “experienced
one or two extended duration episodes of decompensation,” the evidence
did not establish repeated episodes of decompensation.5 (Id.) The
evidence supports the ALJ’s determination in this regard. Since his
alleged onset date of September 15, 2003, Freeman has experienced only
two episodes of decompensation for extended periods of time, and those
incidents occurred nearly three years apart from each other . (See Tr. 59295, 800, 1012-14.) Thus, those occurrences fall short of the requirement
for “repeated episodes of decompensation.” 20 C.F.R. pt. 404, subpart P,
app. 1, § 12.00(C)(4). Even considering another extended episode, which
occured in August 2002—predating the alleged onset date by more than
one year—and four shorter incidents, occurring in October 2002, October
2003, November 2003 and January to February 2008, respectively, there
4
“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 citation omitted).
5
Freeman mistakenly contends that the ALJ’s finding of one or two extended episodes
of decompensation necessarily satisfied the “C criteria” in this case. (See Dkt. No. 9 at 15.)
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has been no period of time where Freeman experienced the requisite
episodes of decompensation. (See Tr. at 318-19, 330-31, 345-50, 412-14,
955-58.) Thus, the ALJ did not err.
B.
Weight Afforded to Opinions of Treating Physicians
Next, Freeman asserts that the ALJ erred by failing to assign
controlling weight to the opinions of his treating physicians; he also claims
that the ALJ ignored opinions from two treating physicians that he was
unable to work full time. (See Dkt. No. 9 at 16-20.) The Commissioner
counters that the residual functional capacity (RFC) determination is
consistent with the opinions of Freeman’s treating physicians; thus, the
Commissioner seems to suggest that the ALJ gave those opinions
controlling weight even though not explicitly stated in his decision. (See
Dkt. No. 11 at 10-11.) The court agrees with the Commissioner.
Controlling weight will be given to a treating physician’s opinion that
is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial
evidence.” 20 C.F.R. §§ 404.1537(c)(2), 416.927(c)(2); see Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). However, opinions from treating
sources on issues reserved to the Commissioner, i.e., dispositive issues,
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are not given “any special significance.” 20 C.F.R. §§ 404.1537(d)(3),
416.927(d)(3).
Here, it is obvious that the ALJ appropriately assigned controlling
weight to the opinions of Freeman’s treating physicians despite his failure
to explicitly state as much. The ALJ carefully recounted the physicians’
opinions—nearly identically to the way Freeman has restated them in his
brief—regarding Freeman’s impairments, and the RFC determination
reflected Freeman’s resultant limitations. (Compare Tr. at 855-57, with
Dkt. No. 9 at 16-19.) Thus, the ALJ committed no error regarding his
assignment of weight to the opinions of Freeman’s treating physicians.
As for the ALJ’s failure to acknowledge the opinions of two treating
sources, each of whom opined that Freeman could only work part-time,
(see Tr. at 281, 1126), those opinions “are not medical opinions, . . . but
are, instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case.” 20 C.F.R.
§§ 404.1527(d), 416.927(d); see Willis v. Comm’r of Soc. Sec., No. 3:09cv-297-J-20MCR, 2010 WL 3245449, *7 & n.10 (M.D. Fla. Aug. 17, 2010)
(stating that an “opinion[] that Plaintiff could only work part time . . . [is an]
administrative finding[] reserved to the Commissioner”). Although the ALJ
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did not make any specific findings about Freeman’s ability “to do sustained
work activities in an ordinary work setting on a regular and continuing
basis,” which means eight hours a day for five days a week or an
equivalent schedule, SSR 96-8P, 1996 WL 374184, at *7 (July 2, 1996),
substantial evidence in the record supports Freeman’s ability to perform
work on a regular and continuing basis.
At the time of the hearing, Freeman had been—for eight
months—working at a super market stocking produce four or five days a
week for six hours at a time. (Tr. at 1147, 1163-64.) Additionally, in March
2004, a state agency medical consultant opined that Freeman was “not
significantly limited” in his “ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and
length of rest periods.” (Id. at 516 (emphasis added).) Indeed, the ALJ
acknowledged the consultant’s opinion that Freeman “maintains the
residual functional capacity to perform substantial gainful activity.” (Id.
856; accord id. at 517.)
C.
Credibility Determination
Freeman next alleges that the ALJ “failed to adequately support his
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finding against [Freeman]’s credibility and he failed to properly consider the
credibility implications of [Freeman]’s attempts at work.” (Dkt. No. 9 at 2023.) The Commissioner counters, and the court agrees, that the ALJ’s
credibility determination was not infirm. (See Dkt. No. 11 at 13-14.)
An ALJ must consider a claimant’s subjective complaints of
limitations resulting from his impairments, including those from pain, in
gauging his RFC. See 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3).
However, “[a]n individual’s statement as to pain or other symptoms shall
not alone be conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A).
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.” 20 C.F.R. §§ 404.1539(a), 416.929(a).
Ultimately, “[t]he reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or decision.” SSR 967p, 61 Fed. Reg. 34483, 34485-86 (July 2, 1996). Thus, “after weighing
the objective medical evidence in the record, the claimant’s demeanor, and
other indicia of credibility,” an ALJ may reject the claimant’s subjective
allegations regarding limitation as long as he sets forth his “reasons with
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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).
In this case, the ALJ’s determination that Freeman’s “subjective
complaints are not fully credible” is supported by substantial evidence in
the record. (Tr. at 857.) As pointed out by Freeman in his brief, he
testified “that he has difficulty concentrating, becomes manic, and yells at
people for no good reason.” (Dkt. No. 9 at 21; see Tr. at 1153-54.)
Freeman also explained that he suffers from a shoulder impairment that
has improved with physical therapy. (See Tr. at 1154-55.) Despite his
subjective allegations of limitation, Freeman is able to maintain reasonable
daily activities like driving, cleaning the apartment where he lives alone,
buying groceries, maintaining personal hygiene, and visiting some family
and friends. (See id. at 1145, 1156-57.) Contrary to Freeman’s argument,
the ALJ also clearly considered the relevant factors set forth in 20 C.F.R.
§§ 404.159(c)(3), 416.929(c)(3), and his findings with respect to those
factors were supported by substantial evidence. (See Tr. at 856-57.)
D.
Vocational Assessment
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Lastly, Freeman contends that substantial evidence does not support
the ALJ’s determination that significant jobs exist in the national economy
that he can perform. (See Dkt. No. 9 at 23-25.) Specifically, Freeman
argues that his ability to respond appropriately to supervision, coworkers,
and usual work settings, and to deal with changes in a routine work setting,
is limited to the point where he cannot “successfully transition to other work
existing in significant numbers in the national economy.” (Id. at 24-25.) In
response, the Commissioner asserts that the hypothetical question posed
to the vocational expert (VE) was supported by substantial evidence . (See
Dkt. No. 11 at 14-16.) The court agrees with the Commissioner.
After concluding that a claimant cannot perform his past relevant
work, if any, the ALJ must consider whether the claimant “can make an
adjustment to other work” based upon his RFC and vocational factors. 20
C.F.R. §§ 404.1520(g), 416.920(g). As was done here, a VE should be
used when the claimant suffers from nonexertional impairments that
significantly limit basic work activities, such as his ability “to respond
appropriately to supervision, coworkers, and usual work situations; or to
deal with changes in a routine work setting.” SSR 85-15, 1985 WL 56857,
at *4 (1985); see 20 C.F.R. §§ 404.1521(b)(5)-(6), 416.921(b)(5)-(6), Bapp
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v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986). A hypothetical question
posed by the ALJ must be based on substantial evidence; if it is, the ALJ
may rely on a VE’s responsive testimony in rendering a determination
about the claimant’s ability to do other work. See 20 C.F.R.
§§ 404.1566(e), 416.966(e); Wavercak v. Comm’r of Soc. Sec., No. 5:07cv-482, 2010 WL 2652201, at *5 (N.D.N.Y. June 25, 2010).
Here, the hypothetical question posed to the VE—which fully
accounted for Freeman’s nonexertional limitations as opined by his treating
physicians, (see Tr. 856, 1173 )—was supported by substantial evidence
as indicated above. (See supra Pt. VI.B.) Specifically, the ALJ inquired of
the VE whether any jobs exist in significant numbers that Freeman could
perform assuming he has the ability to, among other things, “understand,
remember and perform simple jobs[,] . . . work in a low stress environment
defined as only occasional decision making and occasional interaction with
the public, coworkers and supervision; and occasional changes in the work
setting.” (Id. at 1173.) The VE opined that, despite the hypothetical
limitations, there are jobs in significant numbers that Freeman can perform.
(See id.) The ALJ was entitled to rely on the VE’s testimony because the
hypothetical was based on substantial evidence. See Dumas v.
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Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983). Accordingly, the ALJ’s
determination was free from error.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Freeman’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.
June 22, 2012
Albany, New York
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