Parks v. Commissioner of Social Security

Filing 17

DECISION AND ORDER denying # 12 Plaintiff's motion for judgment on the pleadings; granting # 15 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 2/11/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TAMMY JO PARKS,
Plaintiff,
v.

Case no. 7:14-CV-1367 (GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

CONBOY, McKAY, BACHMAN & KENDALL
Counsel for Plaintiff
307 State Street
Carthage, NY 13619

LAWRENCE D. HASSLER, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

DANIEL R. JANES, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Tammy Jo Parks
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 12, 15.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied and Defendant’s motion for judgment on the pleadings is
granted.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on April 3, 1967. She completed the ninth grade of high school,
obtained a general education development (GED) certificate, and completed training as a
licensed practical nurse. Plaintiff has worked as a licensed practical nurse, a private duty nurse,
and a nursing assistant. Generally, Plaintiff’s alleged disability consists of major depressive
disorder with fatigue, concentration and memory deficits, anxiety with panic attacks, and
obstructive sleep apnea. Plaintiff’s alleged disability onset date is May 1, 2009, and her date last
insured is December 31, 2014.
B.

Procedural History

On March 19, 2010, Plaintiff applied for Social Security Disability Insurance Benefits.
Plaintiff’s application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On May 4, 2011, Plaintiff appeared before the ALJ,
John P. Ramos. (T. 68-104.) On July 8, 2011, the ALJ issued a written decision finding Plaintiff
not disabled under the Social Security Act. (T. 107-21.) On September 26, 2012, the Appeals
Council remanded the matter for further administrative proceedings. (T. 122-25.)
On February 28, 2013, Plaintiff appeared by video for a second hearing before the ALJ.
(T. 34-67.) On April 23, 2013, the ALJ issued a second written decision finding Plaintiff not
disabled under the Social Security Act. (T. 11-33.) On October 29, 2014, the Appeals Council
denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this Court.

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C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 17-28.) First, the ALJ found that Plaintiff met the insured status
requirements through December 31, 2014. (T. 17.) Second, the ALJ found that Plaintiff (1)
engaged in substantial gainful activity from September 2011 to March 2012, (2) did not engage
in substantial gainful activity from May 1, 2009, the alleged onset date, to September 2011, and
(3) did not engage in substantial gainful activity since March 2012. (Id.) Third, the ALJ found
that Plaintiff’s depressive disorder and anxiety disorder are severe impairments, but that
Plaintiff’s sleep apnea, hyperlipidemia, obesity, tobacco use, fatty liver, left shoulder
impairment, chondromalacia patellae, and medial joint space narrowing of the knees are not
severe impairments. (T. 18-20.) Fourth, the ALJ found that Plaintiff’s severe impairments,
alone or in combination, do not meet or medically equal one of the listed impairments in 20
C.F.R. Part 404, Subpart P, App. 1. (T. 20-21.) The ALJ considered Listings 12.04 and 12.06.
(Id.) Fifth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels. She retains
the ability to understand and follow simple instructions and
directions, perform simple and detailed tasks with supervision and
independently, maintain attention and concentration for simple tasks,
regularly attend to a routine and maintain a schedule, relate to and
interact appropriately with coworkers sufficiently to complete simple
tasks but should avoid work requiring more complex interaction or
joint efforts to achieve work goals. The claimant is able to handle
simple, repetitive work-related stress in that she is able to make
simple decisions directly related to the completion of her tasks and
work in a stable, unchanging work environment. The claimant is able
to tolerate occasional, but not frequent contact with the general public
and supervisors.
(T. 21-22.) Sixth, the ALJ found that Plaintiff is unable to perform her past relevant work as a
licensed practical nurse, a private duty nurse, or a nursing assistant. (T. 26.) Seventh, and
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finally, the ALJ found that there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. (T. 27-28.)
D.

The Parties’ Briefings on Their Cross-Motions

Plaintiff makes five arguments in support of her motion for judgment on the pleadings.
First, Plaintiff argues that the ALJ erred in determining that Plaintiff engaged in substantial
gainful activity from September 2011 through March 2012 because Plaintiff’s work activity
during that period should be considered an unsuccessful work attempt. (Dkt. No. 12, at 10-13
[Pl.’s Mem. of Law].) Second, Plaintiff argues that the ALJ erred in assessing the severity of
Plaintiff’s obstructive sleep apnea. (Id. at 13-16.) Third, Plaintiff argues that the ALJ did not
properly apply the special technique required for analyzing the severity of Plaintiff’s mental
impairments. (Id. at 16-20.) Fourth, Plaintiff argues that the ALJ erred in evaluating Plaintiff’s
credibility. (Id. at 21-23.) Fifth, and finally, Plaintiff argues that the ALJ erred at step five by
relying on vocational expert testimony that was in response to an incomplete hypothetical and
improperly restricting cross-examination of the vocational expert. (Id. at 23-25.)
Defendant makes five arguments in support of her motion for judgment on the pleadings.
First, Defendant argues that the ALJ properly concluded that Plaintiff performed substantial
gainful activity from September 2011 through March 2012. (Dkt. No. 15, at 6-8 [Def.’s Mem. of
Law].) Second, Defendant argues that the ALJ properly concluded that Plaintiff’s sleep apnea
was not a severe impairment. (Id. at 8-10.) Third, Defendant argues that the ALJ properly
analyzed Plaintiff’s mental impairments using the special technique. (Id. at 11-13.) Fourth,
Defendant argues that the ALJ properly evaluated Plaintiff’s credibility. (Id. at 13-17.) Fifth,
Defendant argues that the ALJ properly solicited testimony from the vocational expert and did
not unfairly constrain Plaintiff’s ability to cross-examine the vocational expert. (Id. at 17-18.)
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II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
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the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.” Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. § 404.1520. The Supreme
Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482
U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant has an
impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education,
and work experience; the [Commissioner] presumes that a claimant who
is afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform his past
work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform. Under the cases previously discussed, the
claimant bears the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
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III.

ANALYSIS
A.

Whether the ALJ Erred in Determining That Plaintiff Engaged in Substantial
Gainful Activity From September 2011 Through March 2012

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 6-8 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
At step one of the sequential analysis, the ALJ must consider a plaintiff’s work activity
during the period of alleged disability. C.F.R. § 404.1520(a)(i). If a plaintiff is working and the
work is substantial gainful activity, a plaintiff will be found not disabled regardless of his or her
age, education, and work experience. C.F.R. § 404.1520(b). An unsuccessful work attempt will
not constitute substantial gainful activity. 20 C.F.R. §§ 404.1574(c)(1), 404.1575(d)(1); SSR 0502, 2005 WL 6491604, at *2 (Feb. 28, 2005).
Work activity that lasted between three months and six months will be considered an
unsuccessful work attempt when it ended, or was reduced below substantial gainful activity
earnings level, because of a plaintiff’s impairment or removal of special conditions which took
into account an impairment and permitted a plaintiff to work, and (i) a plaintiff was frequently
unable to work because of an impairment, (ii) a plaintiff’s work was unsatisfactory because of an
impairment, (iii) a plaintiff worked during a period of temporary remission of an impairment, or
(iv) a plaintiff worked under special conditions that were essential to performance and these
conditions were removed. 20 C.F.R. §§ 404.1574(c), 404.1575(d).
Here, Plaintiff testified that she returned to full time work as a nurse in September 2011,
earning $16.00 per hour. (T. 17.) The ALJ noted that Plaintiff’s earning records indicate that she
earned $7,792 during the four months that she worked in 2011, totaling $1,948 per month, which

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constitutes substantial gainful activity.1 (Id.) Although Plaintiff testified that she was fired due to
poor attendance, the ALJ noted that Plaintiff told her psychiatrist that she quit her job to care for
her injured mother. (Id.)
In any event, the Second Circuit has found that, where an ALJ continues the disability
evaluation process past step one and considers medical evidence from the entire relevant period,
an error in determining that a plaintiff performed substantial gainful activity at step one is
harmless. See Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (finding that an ALJ’s erroneous
determination that a plaintiff’s part-time job constituted substantial gainful activity was harmless
where there was substantial evidence of other substantial gainful employment that Plaintiff could
perform at step five). Here, the ALJ continued his analysis of Plaintiff’s claim through the
remainder of the sequential analysis. (T. 17-28.) As discussed below in Part III.E. of this
Decision and Order, the ALJ properly determined that there was other existing work in the
national economy that Plaintiff could perform. (T. 27-28.) Accordingly, even if the ALJ erred in
determining that Plaintiff engaged in substantial gainful activity at step one, it is harmless.
For these reasons, the ALJ’s step one finding was supported by substantial evidence and
remand is not necessary on this basis.
B.

Whether the ALJ Erred in Assessing the Severity of Plaintiff’s Obstructive
Sleep Apnea

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 8-10 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.

1

Substantial Gainful Activity Monetary Amounts, Social Security Administration,
http//www.ssa.gov/OACT/COLA/sga.html (last visited Feb. 5, 2016).

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According to Social Security Regulations, “[a]n impairment or combination of
impairments is not severe if it does not significantly limit a [plaintiff’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1521(a). The regulations define basic work
activities as the “abilities and aptitudes necessary to do most jobs,” with the following examples:
(1) physical functions such as walking, standing, lifting, pushing, pulling, carrying or handling;
(2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering
simple instructions; (4) using judgment; (5) responding appropriately to supervision, co-workers,
and ususal work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. §
404.1521(b). Accordingly, the severity of an impairment is determined by the limitations
imposed by the impairment, and not merely by diagnosis of the impairment. Ellis v. Comm’r, 11CV-1205, 2012 WL 5464632, at *4 (N.D.N.Y. Sept. 7, 2012); accord, McConnell v. Astrue, 03CV-0521, 2008 WL 833968, at *12 (N.D.N.Y. Mar. 27, 2008).
“The second step requirement under the prescribed disability analysis is truly de minimis,
and intended only to screen out the truly weakest of cases.” Davis v. Colvin, 11-CV-0658, 2013
WL 1183000, at *8 (N.D.N.Y. Feb. 27, 2013) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 [2d
Cir. 1995]). When an ALJ finds that one or more of a plaintiff’s impairments are severe, an error
in the severity analysis at step two may be harmless because the ALJ continued with the five-step
analysis and did not deny the claim based on lack of a severe impairment alone. Stanton v.
Astrue, 370 F. App’x 231, 233 n.1 (2d Cir. 2011); Ellis, 2012 WL 5464632, at *5.
Here, a review of the entire decision indicates that the ALJ’s step two determination was
supported by substantial evidence and that the ALJ properly considered the effects of Plaintiff’s
combined impairments in the remainder of the sequential analysis. At step two, the ALJ noted
that Plaintiff was diagnosed with “severe sleep apnea” based on a polysomnogram performed on
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January 12, 2011. (T. 18.) The ALJ noted that “there is no suggestion, however, that the
diagnosing doctor’s definition of ‘severe’ is the same as the definition established by the Social
Security Act, Rules, and Regulations.” (Id.) The ALJ determined that the evidence of record did
not indicate that Plaintiff’s sleep apnea caused more than minimal work-related limitations for 12
consecutive months. (Id.) The ALJ noted that physician, A. Melynne Youngblood, M.D., who
treated Plaintiff for sleep apnea, was asked to complete a medical source statement which she
returned blank and unsigned. (Id.) Further, the ALJ noted that Dr. Youngblood’s treatment notes
do not suggest that Plaintiff had any functional limitations resulting from her sleep apnea. (Id.)
The ALJ noted that, immediately after Plaintiff was diagnosed with sleep apnea in January
2011, she was prescribed continuous positive airway pressure (“CPAP”) therapy. (T. 18.) The
ALJ noted that Plaintiff sought no treatment for her sleep apnea from March 2011 to October
2012. (Id.) Further, the ALJ noted that Plaintiff’s treatment records since October 2012 showed
that her sleep apnea events had been completely eliminated and that her symptoms of daytime
fatigue or sleepiness had improved with CPAP therapy. (Id.) The ALJ noted that Plaintiff has a
CPAP machine, but does not always use it as directed. (Id.)
In any event, where “an ALJ has omitted an impairment from step two of the sequential
analysis, other courts have declined to remand if the ALJ clearly considered the effects of the
impairment in the remainder of his analysis.” Chavis v. Astrue, 07-CV-0018, 2010 WL 624039,
at *12 (N.D.N.Y. Feb. 18, 2010); see also 20 C.F.R. § 416.923 (stating that the ALJ is required to
consider the “combined effect of all of [plaintiff’s] impairments without regard to whether any
such impairment, if considered separately would be of sufficient severity”). Here, the ALJ found
that Plaintiff’s depressive disorder and anxiety disorder are severe impairments, and therefore the
ALJ did not deny benefits based on lack of a severe impairment. (T. 18.)

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Additionally, the ALJ properly considered the effects of Plaintiff’s combined impairments
in the remainder of his analysis and included limitations in the RFC for Plaintiff’s combined
impairments. (T. 21-55.) For example, the ALJ considered Plaintiff’s sleep apnea diagnosis,
reported symptoms, and treatment notes in assessing Plaintiff’s RFC and evaluating Plaintiff’s
credibility. (T. 23.) Accordingly, even if the ALJ’s failure to find Plaintiff’s sleep apnea severe
at step two of the sequential analysis is error, it is harmless. Ellis, 2012 WL 5464632, at *5;
Tyron, 2012 WL 398952, at *3.
Therefore, the ALJ’s assessment of Plaintiff’s sleep apnea was supported by substantial
evidence, and remand is not necessary on this basis.
C.

Whether the ALJ Properly Applied the Special Technique in Assessing the
Severity of Plaintiff’s Mental Impairments

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 11-13 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
The regulations require application of a special technique at the second and third steps of
the five-step framework for evaluating the severity of mental impairments. 20 C.F.R. §
404.1520a. When applying the special technique, the ALJ must first decide whether a plaintiff
has a medically determinable impairment, and then rate the degree of functional limitation
resulting from the impairment in four broad areas. 20 C.F.R. § 404.1520a(b)-(c). The four areas,
or “paragraph B” criteria, are: (1) activities of daily living, (2) social functioning, (3)
concentration, persistence, or pace, and (4) episodes of decompensation. 20 C.F.R. §
404.1520a(c)(3). Each of the first three areas is rated on a five-point scale of “none,” “mild,”
“moderate,” “marked,” and “extreme.” 20 C.F.R. § 404.1520a(c)(4). The fourth area is rated on
a four-point scale of “none,” “one or two,” “three,” and “four or more.” Id.
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If the degree of limitation in each of the first three areas is rated “mild” or better, and no
episodes of decompensation are identified, then the reviewing authority generally will conclude
that a plaintiff’s mental impairment is not severe and will deny benefits. 20 C.F.R. §
404.1520a(d)(1); Petrie v. Astrue, 412 F. App’x 401, 408 (2d Cir. 2011); Kohler v. Astrue, 546
F.3d 260, 265-66 (2d Cir. 2008). Notably, the psychiatric review technique and RFC assessment
are two separate analyses. See SSR 96-8p, 1996 WL 374184, at *4 [July 2, 1996]) (“The
adjudicator must remember that the limitations identified in the ‘paragraph B’ . . . criteria are not
an RFC assessment.”)
Application of the psychiatric review technique must be documented and the ALJ’s
written decision must reflect application of the technique and include a specific finding as to the
degree of limitation in each of the four functional areas. 20 C.F.R. § 404.1520a(e); Kohler, 546
F.3d at 266 (remanding where the ALJ did not adhere to the special technique requirements).
Failure to follow the psychiatric review technique is error and results in an inadequately
developed record with regard to the four functional areas. Kohler, 546 F.3d at 267. Where the
court cannot identify findings regarding the degree of a plaintiff’s limitations to discern whether
the ALJ properly considered all evidence relevant to those areas, the court cannot determine
whether the ALJ’s decision is supported by substantial evidence and reflects application of the
correct legal standards. Id. at 269.
Here, the ALJ made a specific finding regarding Plaintiff’s limitations in each of the four
functional areas set forth in 20 C.F.R. § 404.1520a(c)(4). (T. 20-21.) First, the ALJ determined
that Plaintiff had mild limitation in activities of daily living. (T. 20.) The ALJ noted that
Plaintiff could dress, bathe, and groom herself on a regular basis, cook and prepare food, clean,
do laundry, shop, manage money, and drive. (Id.) The ALJ noted that Plaintiff spent her days
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doing chores, going for short walks, and reading. (Id.) Further, the ALJ noted that, during the
period of alleged disability, Plaintiff cared for her injured mother, attended college full time, and
worked full time as a nurse. (Id.)
Second, the ALJ determined that Plaintiff had no more than moderate limitation in social
functioning. (Id.) The ALJ noted that Plaintiff reported difficulty getting along with friends and
family, and did not use public transportation. (Id.) However the ALJ noted that Plaintiff
reported no problems getting along with bosses, teachers, police, landlords, or other authority
figures, and never lost a job due to problems getting along with others. (Id.) The ALJ noted
that, upon examination on June 10, 2010, consultative examiner, Dennis Noia, Ph.D., observed
that Plaintiff’s demeanor and responsiveness to questions was cooperative and that her manner of
relating, social skills, and overall presentation were adequate. (Id.) Finally, the ALJ noted that
Plaintiff returned to work as a nurse in September 2011, which requires frequent, if not constant,
interaction with others, suggesting that Plaintiff believes that she is able to interact with others.
(Id.)
Third, the ALJ determined that Plaintiff had mild limitation in concentration, persistence,
or pace. (T. 20-21.) The ALJ noted that mental status exams indicated that Plaintiff’s cognition
was grossly intact, attention and concentration were intact, cognitive functioning appeared to be
within the average range, and insight and judgment were fair. (Id.) The ALJ noted that treating
psychiatrist, Sadaqat Khan, M.D., consistently reported that Plaintiff’s cognition was intact. (T.
21.) Finally, the ALJ noted that Plaintiff took college courses on a full time basis and earned a
4.0 grade point average during the period of alleged disability. (Id.)

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Fourth, and finally, the ALJ determined that Plaintiff had no episodes of decompensation
that have been of extended duration. (Id.) The ALJ noted that Plaintiff was never hospitalized
for psychiatric treatment, and there was no evidence that Plaintiff had any episodes of
decompensation since her alleged onset date. (Id.)
The Court finds that the ALJ properly applied the special technique for evaluating
Plaintiff’s mental impairments. The analysis was complete and supported by substantial
evidence in the record, including the psychiatric review technique completed by State agency
psychologist, Dr. V. Reddy, on May 15, 2010, with the same findings. (T. 503.) Additionally, in
determining the RFC, the ALJ considered this detailed mental assessment and accounted for the
findings. (T. 20-22.) Specifically, the ALJ accounted for Plaintiff’s moderate limitation in
social functioning by limiting her to occasional contact with the general public and supervisors,
and found that she could relate and interact with coworkers sufficiently to complete simple tasks,
but should avoid work requiring more complex interaction or joint efforts to achieve work goals.
(Id.) The ALJ accounted for Plaintiff’s mild limitation in concentration, persistence, or pace by
limiting Plaintiff to simple, repetitive work related tasks in environments that were stable and
unchanging and required her to make only simple decisions directly related to the completion of
her tasks. (Id.)
Therefore, remand is not necessary on this basis.
D.

Whether the ALJ Erred in Assessing Plaintiff’s Credibility

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 13-17 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.

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A plaintiff’s allegation of pain is “entitled to great weight where . . . it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009)
(quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ “is
not required to accept [a plaintiff’s] subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff’s] testimony in light of the other evidence
in the record.” Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15
2012). “When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s
disbelief.” Rockwood, 614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two step analysis of pertinent
evidence in the record. First, the ALJ must determine whether the claimant has medically
determinable impairments, which could reasonably be expected to produce the pain or other
symptoms alleged.” Id., at 271.
Second, if medically determinable impairments are shown, then the
ALJ must evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the
claimant’s capacity to work. Because an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, an ALJ will
consider the following factors in assessing a claimant’s credibility:
(1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating
factors; (4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment received
to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s
functional limitations and restrictions due to symptoms.
Id. Further, “[i]t is the role of the Commissioner, not the reviewing court, ‘to resolve evidentiary
conflicts and to appraise the credibility of witnesses,’ including with respect to the severity of a

15

claimant’s symptoms.” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (quoting Carroll
v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 [2d Cir. 1983]).
Here, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms, but that her statements regarding the
intensity, persistence and limiting effects of her symptoms are not fully credible. (T. 22.) In
assessing Plaintiff’s allegations, the ALJ determined that Plaintiff’s complaints were not
supported by the evidence of record, including medical evidence and examination notes,
Plaintiff’s daily activities, and Plaintiff’s full time work and full time college course work taken
during the time period in which she alleges disability. (T. 22-26.)
First, the ALJ found that Plaintiff’s allegations of disabling symptoms were not well
supported by the medical evidence of record and treatment history. (Id.) The ALJ noted that
Plaintiff complained of symptoms related to sleep apnea including daytime fatigue or sleepiness.
(Id.) The ALJ noted that Plaintiff was diagnosed with sleep apnea in January 2011, but did not
seek treatment for the impairment from March 2011 to October 2012, “shortly after the case was
remanded for further development of the evidence relating to her sleep apnea.” (Id.) The ALJ
found that Plaintiff’s lack of treatment “until she was alerted of the need for additional evidence
in relation to her disability case suggests that this condition is not very bothersome.” (Id.)
Further, the ALJ noted that Plaintiff’s treatment records since October 2012 showed that her
sleep apnea events had been completely eliminated and that her symptoms of daytime fatigue or
sleepiness had improved with CPAP therapy. (T. 18.) The ALJ noted that Plaintiff has a CPAP
machine, but does not always use it as directed. (Id.)

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Second, the ALJ noted that Plaintiff’s allegations of disabling symptoms were not well
supported by the medical evidence of record regarding her mental impairments and symptoms.
(T. 22-26.) The ALJ noted that Plaintiff’s psychiatric symptoms worsened in late 2009 in
response to the death of her husband, but that her symptoms quickly improved with medication
and therapy. (T. 23.) The ALJ noted that, in May 2010, Plaintiff reported that she felt much
better and was feeling well. (Id.) The ALJ noted that Plaintiff was assigned global assessment
of functioning (“GAF”) scores of 55, indicating moderate psychiatric symptoms.2 The ALJ
noted that Plaintiff’s mental health treatment records indicated that Plaintiff’s symptoms
generally continued to improve, including notes that Plaintiff was less anxious and less
depressed, was doing better and was more confident. (T. 23-24.)
Third, the ALJ found that Plaintiff’s allegations of disabling symptoms were inconsistent
with her daily activities. (T. 20, 25.) For example, the ALJ noted that Plaintiff reported that she
is able to shop in stores. (T. 25.) Elsewhere in the decision, the ALJ noted that Plaintiff could
dress, bathe, and groom herself on a regular basis, cook and prepare food, clean, do laundry,
shop, manage money, and drive. (T. 20.) The ALJ further noted that Plaintiff did chores, went
for short walks, read, and cared for her injured mother. (Id.)
Fourth, the ALJ found that Plaintiff’s allegations of disabling symptoms were
inconsistent with her demonstrated ability to work full time and take college courses full time
during the period of her alleged disability. (T. 24.) The ALJ noted that Plaintiff was
interviewing for work as a nurse in March 2011, and was working full time as a nurse at a

2

A GAF score of 51 to 60 indicates moderate symptoms (i.e., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (i.e., few friends,
conflicts with peers or co-workers.) Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000)
(DSM-IV).

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dialysis center by September 2011. (Id.) The ALJ determined that this evidence suggests that
Plaintiff’s mental impairments are not as severe as alleged. (T. 23.)
Finally, the ALJ noted that Plaintiff began college in September 2012 and was studying to
become a social worker. (T. 24.) The ALJ noted that Plaintiff earned straight A marks in college
courses and received recognition on the President’s List for her grades. (T. 23.) The ALJ found
that Plaintiff’s ability to take college courses and earn A marks significantly undermines her
credibility regarding the severity of her mental impairments. (Id.)
For these reasons, the ALJ’s credibility analysis was supported by substantial evidence.
Accordingly, remand is not required on this basis.
E.

Whether the ALJ’s Step Five Determination Was Supported by Substantial
Evidence

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 17 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
At step five of the sequential process, the burden shifts to the Commissioner to establish
that there are a significant number of jobs in the national economy that a plaintiff can perform
based on the plaintiff’s RFC, age, education, and past relevant work. 20 C.F.R. § 404.1512(g),
404.1560(c); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). The ALJ can usually establish
that there is other work that a plaintiff can perform by reliance on the Medical-Vocational
guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the
Grids.” Baldwin v. Astrue, 07-CV-6958, 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009).

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When a plaintiff suffers from nonexertional limitations that significantly limit the
plaintiff’s employment opportunities, exclusive reliance on the Grids is inappropriate. Baldwin,
2009 WL 4931363, at *27 (citing Bapp v. Bowen, 802 F.2d 601, 605 [2d Cir. 1986]). However,
“the mere existence of a non-exertional limitation does not automatically preclude reliance on the
guidelines.” Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (citing Bapp, 802 F.2d at
603.) A plaintiff’s range of potential employment is significantly limited when the plaintiff
“suffers from the additional loss of work capacity beyond a negligible one or, in other words, one
that so narrows a claimant’s possible range of work as to deprive him of a meaningful
employment opportunity.” Baldwin, 2009 WL 4931363, at *27.
Here, the ALJ provided a hypothetical to the vocational expert that included Plaintiff’s
abilities and restrictions set forth in the RFC to determine whether Plaintiff could perform other
existing work in the national economy. (T. 27-28, 55-58.) The vocational expert testified that,
based on Plaintiff’s RFC, age, education, and work experience, Plaintiff could perform jobs that
exist in significant numbers in the national economy. (T. 27-28.)
First, Plaintiff essentially argues that the ALJ erred in relying on vocational expert
testimony that was in response to a hypothetical that did not accurately represent Plaintiff’s
nonexertional limitations. (Dkt. No. 12, at 23 [Pl.’s Mem. of Law].) Because the Court finds no
error in the ALJ’s RFC assessment, as discussed above in Part III.B. and Part III.C. of this
Decision and Order, we conclude that the ALJ did not err in posing a hypothetical question to the
vocational expert that was based on the RFC. Dumas, 712 F.2d at 1553-54 (approving a
hypothetical question to a vocational expert that was based on an assumption supported by
substantial evidence in the record).

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Second, Plaintiff argues that the ALJ denied Plaintiff the right to cross-examine the
vocational expert regarding Plaintiff’s nonexertional limitations as outlined by Plaintiff’s treating
physician. (Dkt. No. 12, at 24[Pl.’s Mem. of Law].) To be sure, Plaintiff has the due process
right to cross-examine a vocational expert and present rebuttal evidence. Townley v. Heckler,
748 F.2d 109, 114 (2d Cir. 1984). However, a review of the hearing transcript indicates that
Plaintiff’s counsel attempted to present a hypothetical containing Dr. Khan’s assessment in
medical terms, rather than vocational terms. The ALJ did not improperly restrict Plaintiff’s right
to cross-examine the vocational expert, but directed Plaintiff “to translate what the doctor is
saying into vocational terminology.” (T. 62.) The ALJ was effectively assisting Plaintiff’s
counsel by directing him to present a hypothetical with functional limitations that correspond to
the terms used by the vocational expert to determine whether Plaintiff could perform other
existing work. (T. 60-63.)
Therefore, the ALJ’s determination at step five of the sequential analysis was supported
by substantial evidence, and remand is not necessary on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further is
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: February 11, 2016
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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