Hall v. Astrue

Filing 15

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Hall's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 2/3/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DAWN HALL,
Plaintiff,

7:12-cv-1733
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Legal Aid Society of Northeastern
New York, Inc.
17 Hodskin Street
P.O. Box 648
Canton, NY 13617
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe

VICTORIA M. ESPOSITO, ESQ.

TOMASINA DIGRIGOLI
Special Assistant U.S. Attorney

Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Dawn Hall challenges the Commissioner of Social Security’s
denial of Supplemental Security Income (SSI), seeking judicial review
under 42 U.S.C. §§ 405(g) and 1383(c)(3). (Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Hall’s
arguments, the court affirms the Commissioner’s decision and dismisses
the complaint.
II. Background
On August 31, 2009, Hall filed an application for SSI under the Social
Security Act (“the Act”), alleging disability since July 1, 2009. (Tr.1 at 65,
115-17.) After her application was denied, (id. at 66-69), Hall requested a
hearing before an Administrative Law Judge (ALJ), which was held on
February 24, 2011, (id. at 27-64, 70). On April 7, 2011, the ALJ issued an
unfavorable decision denying the requested benefits, which became the
Commissioner’s final determination upon the Social Security Administration
Appeals Council’s denial of review. (Id. at 1-4, 11-26.)
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

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Hall commenced the present action by filing her complaint on
November 26, 2012 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 7, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 12.)
III. Contentions
Hall contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 11 at 22-24.)
Specifically, Hall claims that the ALJ erred in: (1) failing to consider her
social phobia in making his step two determination; (2) weighing the
medical evidence; and (3) evaluating her credibility. (Id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and his decision is also supported by substantial evidence. (Dkt.
No. 12 at 4-11.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 11 at 1-21; Dkt. No. 12 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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42 U.S.C. § 405(g)2 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 decision 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.

Severe Impairments
Hall argues that the ALJ erred, at step two of the sequential

evaluation, in failing to consider her diagnosis of social phobia. (Dkt. No.
11 at 23.) According to Hall, this omission requires remand, as “it follows
that [the ALJ] could not have considered” the effects of Hall’s social phobia
in determining her residual functional capacity (RFC).3 (Id.) The
Commissioner counters, and the court agrees, that the ALJ properly

2

Specific reference to 42 U.S.C. § 1383(c)(3) is unnecessary because judicial review
under that section is identical to review under section 405(g).
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A claimant’s RFC “is the most [she] can still do despite [her] limitations.” 20 C.F.R.
§ 416.945(a)(1). In assessing a claimant’s RFC, 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 evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be
affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).

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determined Hall’s severe impairments at step two. (Dkt. No. 12 at 4-7.)
At step two of the sequential analysis, the ALJ must “determine
whether the claimant has a severe impairment.” Christiana, 2008 WL
759076, at *3; see 20 C.F.R. § 416.920(a)(4)(ii), (c). A “severe
impairment” is “any impairment or combination of impairments which
significantly limits [her] physical or mental ability to do basic work
activities.” 20 C.F.R. § 416.920(c). “The ‘mere presence of a disease or
impairment, or establishing that a person has been diagnosed or treated
for a disease or impairment’ is not, itself, sufficient to deem a condition
severe.” Bergeron v. Astrue, No. 09-CV-1219, 2011 WL 6255372, at *3
(N.D.N.Y. Dec. 14, 2011) (quoting McConnell v. Astrue, No. 6:03-CV-0521,
2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008)). The omission of an
impairment at step two may be deemed harmless error, particularly where
the disability analysis continues and the ALJ later considers the impairment
in his RFC determination. See Tryon v. Astrue, No. 5:10-CV-537, 2012
WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012); see also Plante v. Astrue, No.
2:11-CV-77, 2011 WL 6180049, at *4 (D. Vt. Dec. 13, 2011).
Here, in June 2010 licensed psychologist William Kimball diagnosed
Hall with major depression, social phobia, and borderline intelligence. (Tr.
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at 354.) In making his step two determination, the ALJ considered Dr.
Kimball’s report; however, he failed to discuss the diagnosis of social
phobia, and only found Hall’s depression to be a severe impairment. (Id. at
16.) Nevertheless, the ALJ continued the sequential evaluation, and, at
step three, determined that Hall suffers only mild difficulties in social
functioning. (Id. at 17.) The ALJ specifically discounted Hall’s testimony
that “she does not like to be around people” based on her treatment notes
and the opinion of state agency psychological consultant H. Ferrin. (Id. at
17, 266-79.) Finally, in making his RFC determination, the ALJ again
noted Hall’s complaints of social anxiety, as well as her treatment for a
variety of mental impairments during the relevant period. (Id. at 18-19.)
Despite these impairments, the ALJ, relying on Hall’s consistent Global
Assessment of Functioning (GAF) scores,4 the results of her mental status
examinations, and the opinion of Ferrin, determined that Hall could perform
simple work. (Id.) As the disability analysis continued and the ALJ
considered claimant’s severe and non-severe impairments in making his
RFC determination, any error at step two is, at most, harmless. See Tryon,

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The GAF Scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d
Cir. 2004).

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2012 WL 398952, at *4; see also Plante, 2011 WL 6180049, at *4.
B.

Weighing the Medical Evidence
Hall also contends that “the ALJ incorrectly weighed the evidence.”

(Dkt. No. 11 at 22-23.) Specifically, Hall argues that the ALJ: (1)
improperly dismissed the opinions of her primary care provider, physician
assistant Ronald Simmons; (2) failed to provide a function-by-function
analysis of her physical capabilities; and (3) failed to consider or weigh the
opinion of treating licensed master social worker Jonathan Blankenship.
(Id.) On the other hand, the Commissioner asserts that remand is not
warranted in this case, as substantial evidence5 supports the ALJ’s RFC
finding. (Dkt. No. 12 at 7-11.) The court again agrees with the
Commissioner.
Here, the ALJ determined that Hall retained the RFC to perform light
work as defined in the regulations, except that she is limited to simple
work. (Tr. at 18.) In making this determination, the ALJ relied on the
objective medical evidence, Hall’s own reports of decreased pain and
psychiatric symptoms, the results of Hall’s various physical and mental

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“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).

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examinations, and the opinions of Drs. R. Paul Ferenchak, Jeanne
Shapiro, and psychologist Ferrin. (Id at 18-19.) Specifically, in August
2009, x-rays of Hall’s lumbar spine revealed moderate degenerative
changes, and an October 2009 MRI showed mild to moderate disc bulge,
but no disc herniation or stenosis. (Id. at 210, 220.) Treating physician
John Savage reviewed Hall’s MRI and x-rays and noted that, other than
“mild degenerative changes, predominantly at L5, S1[, Hall’s] spine really
looks pretty normal for her age.” (Id. at 254.) Upon examination by Dr.
Savage, Hall exhibited a normal gait and there was no evidence of
radicular discomfort. (Id.) Hall’s muscle strength was normal, sensation
intact, and she had good circulation distally. (Id.) In December 2009, Dr.
Savage’s examination results were again benign, and he suggested that
Hall take Tylenol for pain relief. (Id. at 314.)
In November 2009, Dr. Ferenchak, a consultative examiner, noted
that Hall was in no acute distress, could ambulate without discomfort, and
exhibited a normal gait and station. (Id. at 262-65.) Hall could walk on her
heels and toes without difficulty, fully squat, change for the exam, get on
and off the exam table, and rise from a chair without difficulty. (Id. at 263.)
Hall had full range of motion in her thoracic and lumbar spine, and only
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mild tenderness over the incision from her 2007 back surgery. (Id. at 264.)
Straight leg raising was positive at forty-five degrees, but she had full
range of motion, and 5/5 muscle strength in her lower extremities. (Id.) Dr.
Ferenchak also found no evidence of muscle atrophy, intact sensation, and
physiological and equal reflexes in Hall’s lower extremities. (Id.) Based on
this examination and a review of Hall’s x-rays, Dr. Ferenchak opined that
Hall’s ability to walk, stand, sit, lift, bend, push, and pull was mildly limited.
(Id.)
The record also contains several assessments completed by
physician assistant Simmons in October 2009, and March and April 2010.
(Id. at 250-51, 329-32.) In his most restrictive opinion, Simmons stated
that Hall can walk, sit, and stand for two hours a day. (Id. at 329.)
According to Simmons, Hall can lift no more than twenty pounds, bend
occasionally, and never squat, crawl, or climb. (Id.) The ALJ afforded
Simmons’ opinions “very little weight” because Simmons is not an
acceptable medical source, and his opinions are not consistent with Hall’s
treatment record. (Id. at 19.)
Under the regulations, physician assistants are not “acceptable
medical sources,” but, instead, are considered “other sources” whose
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opinions may be used to show the severity of a claimant’s impairment. 20
C.F.R. § 416.913(a), (d)(1). Further, only “acceptable medical sources”
can be considered treating sources. SSR 06-03p, 71 Fed. Reg. 45,593,
45,594 (Aug. 9, 2006). Unless controlling weight is given to a treating
source’s opinion, the ALJ is required to consider the following factors in
determining the weight assigned to a medical opinion: whether or not the
source examined the claimant; the existence, length and nature of a
treatment relationship; the frequency of examination; evidentiary support
offered; consistency with the record as a whole; and specialization of the
examiner. See 20 C.F.R. § 416.927(c).
Here, the ALJ properly considered Simmons’ opinions and
discounted them due to their inconsistency with the record as a whole. (Tr.
at 19.) Not only did Simmons’ opinions contradict the findings of Dr.
Savage and the opinion of Dr. Ferenchak, in July 2010—one year after
Hall’s alleged onset date—Simmons noted that Hall was in no acute
distress, could get on and off the exam table without difficulty, squat and
stoop, and bend on her heels and toes without difficulty. (Id. at 254, 264,
299.) Further, in January 2011, Hall reported to treating physician Juan
Diego Harris that she was “feeling much better,” and was “quite satisfied”
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with her medication regimen, which she was tolerating well. (Id. at 359.)
In sum, the ALJ provided sufficient reasons for discounting the opinion of
Simmons, and his physical RFC determination is supported by substantial
evidence. (Id. at 18-19.)
Hall also complains that the ALJ did not provide a function-byfunction analysis of her physical capabilities. (Dkt. No. 11 at 22.) Although
the ALJ could have provided further clarification with respect to Hall’s
capabilities, as the ALJ’s decision examined the relevant factors in
reaching an RFC determination, and the ultimate determination was
supported by substantial evidence, this shortcoming does not amount to
legal error. (Tr. at 18-19); see Cichocki v. Astrue, 729 F.3d 172, 177-78
(2d Cir. 2013); Irizarry v. Astrue, No. 5:09-cv-1370, 2012 WL 177969, at *2
(N.D.N.Y. Jan. 23, 2012).
Turning to Hall’s mental limitations, throughout the record, treating
psychiatrist Michael Camillo consistently noted that Hall presented well
with “no flagrantly abnormal mental status findings.” (Tr. at 244-46, 248,
307, 309-13, 373-75.) According to Dr. Camillo, Hall’s symptoms are fairly
well controlled with medication, and her major depression is in full
remission as of December 2010. (Id. at 311, 373.) In August and
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December 2010, Dr. Camillo assigned Hall GAF scores of fifty-five and
fifty-eight respectively, indicating that she suffers moderate symptoms or
moderate difficulty in social, occupational, or school functioning. (Id. at
312, 374); Diagnostic and Statistical Manual of Mental Disorders 34 (4th
ed., Text Rev. 2000).
In addition, in November 2009, consulting examiner Jeanne Shapiro
found Hall to exhibit adequate social skills, fluent and clear speech,
coherent thought processes, and appropriate eye contact. (Tr. at 259-60.)
Dr. Shapiro also noted that Hall’s attention and concentration and recent
and remote memory were intact. (Id. at 259.) Hall’s insight and judgment
were fair, mood was “reflective of physical pain,” and affect was congruent
with her thoughts and of full range. (Id.) Based on this examination, Dr.
Shapiro opined that Hall could perform simple and some complex tasks
with supervision and independently, maintain attention and concentration,
regularly attend and maintain a schedule, learn new tasks, make
appropriate decisions, and relate to and interact moderately well with
others. (Id. at 260.) After reviewing the record, psychological consultant
Ferrin adopted the opinion of Dr. Shapiro. (Id. at 288.)
Hall contends that remand is required because the ALJ failed to
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consider and weigh the opinion of social worker Blankenship. (Dkt. No. 11
at 23.) In February 2011, Blankenship opined that, among other things,
Hall had a poor ability to relate to coworkers, deal with work stress,
maintain attention and concentration, understand complex instructions,
behave in an emotionally stable manner, and demonstrate reliability. (Tr.
at 396-98.) According to Blankenship, Hall had no ability to deal with the
public, function independently, or complete a normal work-day and workweek. (Id. at 369-97.) Hall is correct in noting that, although Blankenship’s
opinion is not that of an “acceptable medical source,” an ALJ should
generally “explain the weight given to the opinions from . . . ‘other sources,’
or otherwise ensure that the discussion of the evidence . . . allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning.”
SSR 06-03p, 71 Fed. Reg. at 45,594, 45,596. Here, however, it is clear
that the ALJ considered all of Blankenship’s treatment records, which do
not support a finding of disability. (Tr. at 19, 62-63, 376, 380, 382-83, 386,
391-93.) Indeed, Blankenship’s treatment notes reflect that Hall’s
medications were working well, she was experiencing fewer feelings of
depression and anxiety, and her mental status examinations were normal.
(Id.) Moreover, while the ALJ is obligated to fully develop the record, he is
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not required to discuss all of the evidence submitted and a failure to do so
does not indicate that the evidence was not considered. See Craig v.
Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (citation omitted). Therefore, the
court declines to remand on this basis.
C.

Credibility Determination
Finally, Hall claims that the ALJ failed to properly evaluate her

credibility. (Dkt. No. 11 at 23-24.) According to Hall, the ALJ failed to
provide specific reasons for his credibility finding, preventing meaningful
review for subsequent reviewers. (Id. at 24.) The court disagrees.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 1996 WL
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374186, at *4 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R. §§
404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi)).
Here, the ALJ concluded that Hall’s statements concerning the
intensity, persistence, and limiting effects of her symptoms were not fully
credible. (Tr. at 19.) In making this determination, the ALJ considered the
objective medical records, the opinion evidence, and inconsistencies
between Hall’s testimony and her reports to treating sources and
consultative examiners. (Id. at 18-19.) Indeed, while Hall testified that she
suffers social anxiety on a daily basis that makes it difficult for her to
interact with others, and experiences crying “episodes” four to five times a
month, she reported to Dr. Shapiro that, due to treatment, she no longer
suffers depression and anxiety symptoms. (Id. at 46, 258.) In addition,
although Hall testified that her medications do not reduce her pain “at all,”
15

she reported to Dr. Harris, in January 2011, that she was satisfied with her
medication regimen and was “feeling much better.” (Id. at 55-56, 359.)
Although the ALJ did not undertake a step-by-step exposition of the
factors articulated in 20 C.F.R. § 416.929(c), “[f]ailure to expressly consider
every factor set forth in the regulations is not grounds for remand where
the reasons for the ALJ’s determination of credibility are sufficiently specific
to conclude that he considered the entire evidentiary record.” Judelsohn v.
Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y. June 25,
2012) (internal quotation marks and citation omitted); see Oliphant v.
Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22 (E.D.N.Y. Aug. 14,
2012) (stating that the 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3)
factors are included as “‘examples of alternative evidence that may be
useful [to the credibility inquiry], and not as a rigid, seven-step prerequisite
to the ALJ’s finding’” (quoting Snyder v. Barnhart, 323 F. Supp. 2d 542,
546 (S.D.N.Y. 2004))). Here, the ALJ explicitly acknowledged
consideration of 20 C.F.R. § 416.929, (Tr. at 18), and it is evident from his
thorough discussion that his credibility determination was legally sound.
See Britt v. Astrue, 486 F. App’x 161, 164 (2d Cir. 2012) (finding explicit
mention of 20 C.F.R. § 404.1529 and SSR 96-7p as evidence that the ALJ
16

used the proper legal standard in assessing the claimant’s credibility).
Additionally, the ALJ’s determination that Hall’s subjective complaints were
not credible to the extent that they suggested impairment greater than the
ability to perform light, simple work is supported by substantial evidence.
(Tr. at 18.)
D.

Remaining Findings and Conclusions
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
Hall’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.
February 3, 2014
Albany, New York

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