Delossantos v. Commissioner of Social Security
Filing
16
DECISION AND ORDER denying # 9 Plaintiff's motion for judgment on the pleadings; and granting # 13 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 9/11/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
STACY M. DELOSSANTOS,
Plaintiff,
v.
7:16-CV-0713
(GTS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
CONBOY, MCKAY, BACHMAN & KENDALL, LLP
Counsel for Plaintiff
P.O. Box 249
Fayetteville, NY 13066
LAWRENCE D. HASSELER, 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
SUSAN J. REISS, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Stacy M. Delossantos
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 9, 13.) 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. The Commissioner’s decision
denying Plaintiff’s disability benefits is affirmed, and Plaintiff’s Complaint is dismissed.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born in 1978, making her 33 years old at the date she filed her application
and 35 years old at the date of the ALJ’s decision. Plaintiff reported a 9th grade education with
involvement in special education. Plaintiff has no past relevant work. Generally, Plaintiff
alleges disability due to severe depression, anxiety, mental damage, emotional damage, and
physical damage.
B.
Procedural History
Plaintiff applied for Supplemental Security Income on October 11, 2012. Plaintiff’s
application was initially denied on May 1, 2013, after which she timely requested a hearing
before an Administrative Law Judge (“ALJ”). Plaintiff appeared at a video hearing before ALJ
Marie Greener on August 21, 2014. On October 31, 2014, the ALJ issued a written decision
finding Plaintiff was not disabled under the Social Security Act. (T. 14-22.) 1 On June 10, 2016,
the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner. (T. 1-3.)
C.
The ALJ’s Decision
Generally, in her decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 16-22.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since the application filing date. (T. 16.) Second, the ALJ found that Plaintiff’s
depressive disorder and anxiety disorder are severe impairments, while the alleged physical
1
The Administrative Transcript is found at Dkt. No. 6. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
system.
2
impairments are non-severe. (T 16-17.) Third, the ALJ found that Plaintiff’s severe
impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. § 404,
Subpart P, App. 1 (the “Listings”). (T. 17-18.) Specifically, the ALJ considered Listings 12.04
(affective disorders) and 12.06 (anxiety-related disorders). (Id.) Fourth, the ALJ found that
Plaintiff has the residual functional capacity (“RFC”) to perform the full range of work at all
exertional levels that consists of routine, daily tasks that do not significantly change in pace or
location on a daily basis. (T. 18.) Fifth, the ALJ found that Plaintiff does not have any past
relevant work. (T. 21.) Sixth, and last, the ALJ found that significant numbers of jobs exist in
the national economy that Plaintiff remains able to perform because the limitations in the RFC
have little or no effect on the ability to perform the occupational base of unskilled work. (T. 22.)
The ALJ therefore concluded that Plaintiff is not disabled.
D.
The Parties’ Briefings on Their Cross-Motions
Generally, Plaintiff makes four arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ erred when assessing credibility because she failed
to properly consider the required statutory factors and mischaracterized evidence in the record.
(Dkt. No. 9, at 10-12 [Pl. Mem. of Law].) More specifically, Plaintiff argues that the ALJ
mischaracterized or failed to properly assess evidence related to her medications, work history,
and statements regarding “inconsistent responding” on mental testing. (Dkt. No. 9, at 11-12 [Pl.
Mem. of Law].)
Second, Plaintiff argues that the ALJ erred in failing to afford greater weight to the
opinion of treating physician Michael Camillo, M.D., and in failing to “acknowledge the months
of treatment provided by Therapist Daily under Dr. Camillo’s supervision and further failed to
explain its implicit rejection.” (Dkt. No. 9, at 13-14 [Pl. Mem. of Law].) Plaintiff also argues
3
that the ALJ improperly selected only those portions of Physician Assistant (“PA”) Melinda
Rosner’s opinion that supported the ALJ’s conclusions, asserting it was part of the ALJ’s
“insufficient review of the medical evidence of record.” (Dkt. No. 9, at 14 [Pl. Mem. of Law].)
Third, Plaintiff argues that the RFC finding is not supported by substantial evidence
based on the mental limitations opined by Plaintiff’s treating physician. (Dkt. No. 9, at 15-16
[Pl. Mem. of Law].)
Fourth, Plaintiff argues that the ALJ erred in failing to obtain testimony from a vocational
expert to support the Step Five finding because the record established that Plaintiff experienced
non-exertional limitations. (Dkt. No. 9, at 16-17 [Pl. Mem. of Law].)
Generally, Defendant makes three arguments in support of her motion for judgment on
the pleadings. First, in response to Plaintiff’s second and third arguments, Defendant argues that
the RFC finding is supported by substantial evidence because the ALJ properly relied on the
opinion from consultative examiner Dennis Noia, Ph.D., and on the objective treatment evidence
showing improvement of symptoms with treatment. (Dkt. No. 13, at 12-14 [Def. Mem. of
Law].) Defendant also argues that the ALJ properly afforded less than controlling weight to Dr.
Camillo’s opinion due to a lack of support from the treatment record and Dr. Camillo’s own
statement that the opinion was based on Plaintiff’s subjective reports and speculation. (Dkt. No.
13, at 15-17 [Def. Mem. of Law].) Defendant additionally argues that the ALJ appropriately
weighed PA Rosner’s opinion according to the weight of the evidence and properly considered
the totality of the evidence. (Dkt. No. 13, at 18-19 [Def. Mem. of Law].)
Second, in response to Plaintiff’s first argument, Defendant argues that the ALJ properly
assessed Plaintiff’s subjective allegations as required under the regulations. (Dkt. No. 13, at 1920 [Def. Mem. of Law].) Defendant argues that the ALJ’s credibility finding is supported by the
4
objective medical evidence, Plaintiff’s non-existent work history and reasons she provided for
not working, her reported daily activities, and inconsistent responses during cognitive and mental
health testing. (Dkt. No. 13, at 20-23 [Def. Mem. of Law].)
Third, in response to Plaintiff’s fourth argument, Defendant argues that the ALJ was not
required to solicit vocational expert testimony because, although there was evidence of nonexertional impairments, such impairments did not significantly limit Plaintiff’s ability to perform
the basic mental demands of unskilled work. (Dkt. No. 13, at 23-24 [Def. Mem. of Law].)
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
5
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
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, 416.920.
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
6
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).
III.
ANALYSIS
A.
Whether the Credibility Finding is Supported By Substantial Evidence
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 21-23 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
In determining whether a claimant is disabled, the ALJ must also make a determination
as to the credibility of the claimant’s allegations. “‘An administrative law judge may properly
reject claims of severe, disabling pain after weighing the objective medical evidence in the
record, the claimant’s demeanor, and other indicia of credibility, but must set forth his or her
reasons with sufficient specificity to enable us to decide whether the determination is supported
by substantial evidence.’” Schlichting v. Astrue, 11 F. Supp. 3d 190, 205 (N.D.N.Y. 2012)
(quoting Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit
recognizes that “‘[i]t is the function of the [Commissioner], not [reviewing courts], to resolve
7
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,’” and
that “[i]f there is substantial evidence in the record to support the Commissioner’s findings, ‘the
court must uphold the ALJ’s decision to discount a claimant’s subjective complaints of pain.’”
Schlichting, 11 F. Supp. 3d at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705
F.2d 638, 642 (2d Cir. 1983); Aponte v. Sec’y, Dep’t of Health and Human Servs., 728 F.2d 588,
591 (2d Cir. 1984)). Due to the fact that the ALJ has the benefit of directly observing a
claimant’s demeanor and “other indicia of credibility,” the ALJ’s credibility assessment is
generally entitled to deference. Weather v. Astrue, 32 F. Supp. 3d 363, 381 (N.D.N.Y. 2012)
(citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999)).
The ALJ found that Plaintiff’s reports of the intensity, persistence, and limiting effects of
her symptoms were not credible because “they are unsupported by medical and other evidence,
competent medical opinion, and testimony.” (T. 19.) In the decision, the ALJ noted Plaintiff’s
reported daily activities, which included helping with household chores with reminders,
managing her finances with some assistance, regularly performing self-care and grooming tasks,
and engaging in hobbies such as watching television and doing puzzles. (T. 17-18.) The ALJ
noted that Plaintiff’s treatment was “generally successful” in reducing her symptoms without
side effects. (T. 19.) The ALJ also noted that Plaintiff has never worked and that she told one
medical source that she did not want to work because she did not want to leave her children. (T.
20.) Additionally, the ALJ cited to inconsistent reports regarding her ability to read and
suggestions that Plaintiff might be exaggerating her symptoms, such as her report of various
physical issues despite the lack of any medical evidence substantiating those symptoms and a
notation of inconsistent responses during the psychological evaluation. (Id.)
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Plaintiff argues that the ALJ failed to properly consider the factors required by the
regulations and mischaracterized the evidence in finding Plaintiff not credible. (Dkt. No. 9, at
10-12 [Pl. Mem. of Law].) However, Plaintiff’s arguments are not persuasive. The ALJ
explicitly cited to the correct standard for assessing credibility and provided multiple clear
reasons for her conclusion. (T. 19-20.) The ALJ discussed the factors that were most relevant to
the determination in this case and there is nothing to suggest that the ALJ failed to apply the
proper standard. This Court does not require the ALJ explicitly discuss every factor or engage in
a specific formulaic recitation so long as the ALJ’s rationale and compliance with the regulations
can be gleaned from the written decision. See Showers v. Colvin, No. 3:13-CV-1147, 2015 WL
1383819, at *6 (N.D.N.Y. Mar. 25, 2015) (“Courts conducting judicial review in social security
cases, however, do not require perfect opinions or rigid, mechanical, formulaic applications of
administratively-prescribed evaluative protocols.”) (citing Cichocki v. Astrue, 729 F.3d 172, 17778 (2d Cir. 2013)).
Likewise, Plaintiff’s assertion that the ALJ mischaracterized the evidence is not
supported. Plaintiff first argues that the ALJ erred in finding that her medications and treatment
had been generally successful because she needed ongoing treatment and her medications had to
be changed on multiple occasions by Dr. Camillo. (Dkt. No. 9, at 11 [Pl. Mem. of Law].)
However, Plaintiff’s argument ignores the fact that the evidence does show notations of
improvement with treatment; the fact that her medications and treatment did not completely
alleviate her symptoms does not negate the fact that they did lessen her symptoms and increase
her ability to function to some extent. (See e.g., T. 221-22, 236, 272, 284, 286, 291, 319, 325,
340.) Notably, on March 31, 2014, Joanna Dailey, L.C.S.W., noted that Plaintiff reported her
medications were effective; Therapist Dailey also indicated they discussed that it was normal for
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Plaintiff to be experiencing some continuing symptoms of depression despite medication due to
the amount of stress in her life recently. (T. 340.) Additionally, on January 2, 2014, and March
17, 2014, Plaintiff reported that, although she was experiencing increased anxiety due to her
fiancé’s criminal trial and the prospect of becoming a single parent, her anxiety did not interfere
with her ability to perform activities of daily living. (T. 315, 336.) Consequently, the treatment
evidence supports the ALJ’s finding that Plaintiff’s medications and treatment improved her
symptoms to an appreciable degree.
Plaintiff next argues that the ALJ “misconstrue[d] Plaintiff’s work ethic” in citing her
non-existent work history because a school report from 1992 had noted she was a “hard worker”
and she was continuing in her efforts to learn to read. (Dkt. No. 9, at 11 [Pl. Mem. of Law].)
However, at the hearing, Plaintiff testified that she has always relied on Social Services for her
income and has never even attempted to work. (T. 40.) Given Plaintiff’s complete lack of a
work history and her own testimony that she has not attempted to work, combined with her
statement to one source that she did not want to work because she did not want to leave her
children, there was nothing unreasonable about the ALJ’s conclusion that this work history
suggested that Plaintiff’s lack of employment was related to factors other than her medical
issues. See Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998) (noting that poor work history can
be probative to a claimant’s credibility when considered with other relevant evidence, but
cautioning that work history is only one factor to consider when assessing credibility).
Plaintiff also argues that the ALJ misrepresented portions of the psychological and
cognitive evaluation performed by Thomas Knudsen, Psy. D., on July 18, 2013. (Dkt. No. 9, at
11-12 [Pl. Mem. of Law].) Plaintiff argues that the ALJ should not have found this exam to
constitute evidence of exaggeration because Dr. Knudsen ultimately concluded that the results of
10
the exam were an accurate picture of her emotional functioning despite the inconsistent
responding. (Id.) However, the ALJ’s failure to note that Dr. Knudsen found the results to be an
accurate assessment of Plaintiff’s emotional functioning despite the inconsistencies is not a
material misinterpretation of the evidence because there is no indication that the ALJ rejected
any portion of Dr. Knudsen’s findings. Dr. Knudsen concluded that, despite her emotional and
cognitive symptoms, Plaintiff had the capacity to understand psychotherapy and learn
appropriate skills to deal with her symptoms, an assessment that is not inconsistent with the
ALJ’s ultimate finding of non-disability. (T. 254.) In any event, even if the ALJ did err in
considering this as evidence of exaggeration, the ALJ provided multiple other reasons that were
supported by the evidence for ultimately concluding that Plaintiff was not entirely credible.
Consequently, any misinterpretation of Dr. Knudsen’s statement would not by itself merit
invalidating the credibility determination as a whole. See Schlichting v. Astrue, 11 F. Supp. 3d
190, 206-07 (N.D.N.Y. 2012) (finding harmless error in the ALJ’s adverse inference of a failure
to pursue treatment where the credibility analysis as a whole was supported by substantial
evidence); see also Taylor v. Colvin, No. 3:14-CV-0928, 2016 WL 1049000, at *8-9 (N.D.N.Y.
Mar. 11, 2016) (noting that the ALJ’s failure to inquire into the reasons for gaps in mental health
treatment prior to using those gaps against the plaintiff’s credibility was harmless where the ALJ
provided other reasons supported by substantial evidence to support the overall credibility
determination).
Plaintiff does not challenge the ALJ’s citation to inconsistencies in Plaintiff’s reports
about her ability to read as a factor adverse to her credibility. Notably, the ALJ cited to an
inconsistency related to Plaintiff’s testimony that she was teaching herself to read and could only
read books intended for three year old children or, later in the hearing, at a second grade level.
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(T. 43, 46-47.) However, school records from when Plaintiff was in the seventh grade indicate
she was reading at a fourth grade level. (T. 196, 198.) Plaintiff’s school records therefore show
that she does have difficulties reading, but do not support her allegations that she needed to teach
herself to read or that her reading skills were at such an elementary level as she reported at the
time of the hearing. Such inconsistencies are properly within the range of factors that the ALJ
must assess when making the credibility finding. See Jackson v. Comm’r of Soc. Sec., No. 3:14CV-0350, 2015 WL 2356738, at *12 (N.D.N.Y. May 15, 2015) (finding the adverse credibility
finding supported in part by citations to inconsistencies between plaintiff’s various statements);
Lawton v. Comm’r of Soc. Sec., No. 7:10-CV-0256, 2010 WL 4810676, at *9 (N.D.N.Y. Nov. 2,
2010) (upholding the credibility assessment based on the ALJ’s reliance on contrary medical
evidence, plaintiff’s reported daily activities, and inconsistencies in plaintiff’s various
statements).
The ALJ provided multiple clear reasons that are consistent with the evidence for
concluding Plaintiff’s allegations were not credible. The credibility determination is therefore
supported by substantial evidence, and remand is not warranted on this basis.
B.
Whether the Weight Afforded to the Opinion Evidence is Consistent with
Applicable Legal Standards and Supported By Substantial Evidence
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 12-21 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§ 416.927(c). “‘[T]he opinion of a claimant’s treating physician as to the nature and severity of
the impairment is given ‘controlling weight’ so long as it is ‘well-supported by medically
12
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, there are situations
where the treating physician’s opinion is not entitled to controlling weight, in which case the
ALJ must “explicitly consider, inter alia: (1) the frequency, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a specialist.’”
Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). However,
“[w]here an ALJ’s reasoning and adherence to the Regulations is clear, she is not required to
explicitly go through each and every factor of the Regulation.” Blinkovitch v. Comm’r of Soc.
Sec., No. 3:15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017), Report and
Recommendation adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017) (citing Atwater v.
Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)). After considering these factors, “the ALJ must
‘comprehensively set forth [his] reasons for the weight assigned to a treating physician’s
opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129). “The failure to provide
‘good reasons for not crediting the opinion of a claimant’s treating physician is a ground for
remand.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30).
The factors for considering opinions from non-treating medical sources are the same as
those for assessing treating sources, with the consideration of whether the source examined the
claimant replacing the consideration of the treatment relationship between the source and the
claimant. See 20 C.F.R. § 416.927(c)(1)-(6). Additionally, when weighing opinions from
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sources who are not considered “medically acceptable sources” 2 under the regulations, the ALJ
must consider the same factors as used for evaluating opinions from medically acceptable
sources. Saxon v. Astrue, 781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011) (citing Canales v. Comm’r
of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)); SSR 06-03p, 2006 WL 2329939.
Plaintiff argues that the ALJ should have afforded controlling weight to the opinions
from PA Rosner and treating physician Dr. Camillo, asserting that the ALJ’s selective review of
the evidence in the record caused him to reach an improper conclusion, particularly related to PA
Rosner’s opinion. (Dkt. No. 9, at 13-14 [Pl. Mem. of Law].) Plaintiff’s arguments fail for a
number of reasons.
First, PA Rosner is not a medically acceptable source as that classification is defined in
the regulations, and therefore her opinion would in no circumstance be legally entitled to
controlling weight. See 20 C.F.R. § 416.927; SSR 06-03p, 2006 WL 2329939.
Second, Plaintiff does not indicate what evidence she alleges the ALJ supposedly ignored
or overlooked when weighing PA Rosner’s opinion. (Dkt. No. 9, at 14 [Pl. Mem. of Law].) In
explaining the weight afforded to PA Rosner’s opinion, the ALJ does not even rely on whether
the statement that Plaintiff was “unable to work until further notice” was inconsistent with the
evidence, but rather noted that this statement was inconsistent with the rest of PA Rosner’s
opinion that there was no evidence that Plaintiff had mental restrictions. (T. 20-21, 218 245.)
The ALJ is certainly correct that there is a material conflict between an opinion that a claimant
has no work-related limitations and a statement by the same source that the claimant is unable to
2
Medically acceptable sources are noted to include the following: licensed physicians;
licensed or certified psychologists; licensed optometrists; licensed podiatrists; and qualified
speech-language pathologists. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
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work due to her impairments; there is no logical way the ALJ could have relied on one of these
statements without rejecting the other. There was nothing improper about the ALJ’s choice to
afford greater weight to PA Rosner’s more specific functional opinion than to her conflicting,
conclusory, and unexplained statement that Plaintiff was unable to work. Notably, whether a
claimant is disabled is an issue reserved to the Commissioner, and an opinion indicating that a
claimant is “disabled” or “unable to work” is not entitled to special deference. See Mortise v.
Astrue, 713 F. Supp. 2d 111, 125 (N.D.N.Y. 2010) (“[A]n opinion concerning the ultimate issue
of disability, from any source, is reserved to the commissioner.”); Fuimo v. Colvin, 948 F. Supp.
2d 260, 267 (N.D.N.Y. 2013) (noting that it was proper for the ALJ to give little weight to an
opinion that the plaintiff was severely disabled and not competitively employable because that
concerned an issue reserved to the Commissioner) (citing 20 C.F.R. § 416.927(d)(1)).
Additionally, to the extent that Plaintiff’s argument seems to assert that the ALJ erred in ignoring
evidence showing mental limitations when affording significant weight to PA Rosner’s opinion
that there was no evidence of mental limitations, the ALJ did not conclude that Plaintiff had no
mental limitations, but rather, after assessing the evidence as a whole, found her limited to
routine daily tasks that do not significantly change in pace or location on a daily basis. See
Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 80 (N.D.N.Y. 2005) (“Where the
evidence of record includes medical source opinions that are inconsistent with other evidence or
are internally inconsistent, the ALJ must weigh all of the evidence and make a disability
determination based on the totality of that evidence.”) (citing 20 C.F.R. § 416.927(c)(2)).
Notably, the ALJ afforded great weight to the opinion from consultative examiner Dr. Noia, who
opined that Plaintiff had only mild-to-moderate limitations in learning new tasks and moderate
limitations in dealing with stress. (T. 207-08.) Because Plaintiff does not point to what material
15
evidence she believes the ALJ ignored, 3 and because the ALJ’s conclusions are supported by
substantial evidence, there is no error meriting remand in the ALJ’s assessment of PA Rosner’s
opinion.
Third, the ALJ correctly declined to rely on Dr. Camillo’s opinion because the evidence
clearly establishes that, as the ALJ found, Dr. Camillo based his opinion on Plaintiff’s subjective
reports rather than his own medical judgment. (T. 21.) In the opinion from March 25, 2014, Dr.
Camillo wrote that the mostly marked limitations he opined were based on “pure speculation—
history of anxiety likely to worsen with stress.” (T. 256-57.) This by itself is convincing
evidence that Dr. Camillo’s opinion was a representation of Plaintiff’s self-reported level of
3
Plaintiff does argue that “the ALJ [] failed to acknowledge months of treatment provided
by Therapist Daily under Dr. Camillo’s supervision and further failed to explain its implicit
rejection.” (Dkt. No. 9, at 13 [Pl. Mem. of Law].) However, “[a]n ALJ is not required to discuss
in depth every piece of evidence contained in the record, so long [as] the evidence of record
permits the Court to glean the rationale of the ALJ’s decision.” LaRock ex. rel. M.K. v. Astrue,
No. 10-CV-1019, 2011 WL 1882292, at *7 (N.D.N.Y. Apr. 29, 2011) (citing Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). Plaintiff does not specify how the ALJ’s failure
to discuss the therapy notes from Therapist Dailey prevents this Court from adequately
discerning the ALJ’s rationale or from determining whether the ALJ’s conclusions are supported
by substantial evidence. Nor does Plaintiff point to any example of greater objective limitations
from Therapist Dailey’s treatment notes that would suggest the ALJ would have been required to
engage in a more detailed discussion of those treatment notes. Additionally, even if the ALJ
failed to specifically mention a statement in Therapist Dailey’s notes where she recommended
that Plaintiff was not employable at that time, such omission is harmless given that the clear
reliance on Plaintiff’s self-reports as the basis for that opinion would indicate it would have been
rejected for precisely the same reasons the ALJ rejected Dr. Camillo’s opinion. Remand for
consideration of Therapist’s Dailey’s opinion would not serve any useful purpose. See Cottrell
v. Colvin, 206 F. Supp. 3d 804, 810 (W.D.N.Y. 2016) (noting that an error is considered
harmless where proper consideration of the physician’s opinion would not change the outcome
of the claim) (citing Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)); Blabac v. Comm’r of
Soc. Sec., No. 3:08-CV-0849, 2009 WL 5167650, at *9 (N.D.N.Y. Dec. 18, 2009) (collecting
cases which indicate harmless error where the opinions that the ALJ failed to weigh either did
not conflict with the ALJ’s findings or written consideration of the opinions would not have
changed the outcome of the ALJ’s decision).
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limitation rather than an indication of Dr. Camillo’s own judgment regarding Plaintiff’s
limitations. However, there is additional evidence that further supports this interpretation. On
August 15, 2013, Dr. Camillo noted, “it appears that her concern is regarding her work status.
My earlier impression is that she was ready to be trained for employment. However, [her]
boyfriend feels that symptoms are not well addressed and [Plaintiff] endorsed persisting panic
attacks, anxiety, and depression that she thinks would be an impairment to work. So, disability
will be reevaluated.” (T. 282-83.) On August 29, 2013, Dr. Camillo noted that “[s]he certainly
is invested on not working so I had to refill out the DSS workability form.” (T. 284.)
Additionally, in a treatment note from Therapist Dailey—who worked at the same clinic where
Dr. Camillo treated Plaintiff—from June 23, 2013, it was noted that a disability form was filled
out while discussing matters with Plaintiff during a session; Therapist Dailey concluded that
Plaintiff was not employable at that time due to her reports of an increase in symptoms. (T.
268.) All of these statements, combined with the clear statement in Dr. Camillo’s opinion that
his answers were purely speculative, provide substantial evidence to support the ALJ’s rejection
of this opinion given that the ALJ properly concluded Plaintiff’s subjective allegations were not
credible. See Rivera v. Colvin, 592 F. App’x 32, 33 (2d Cir. 2015) (affirming the rejection of an
opinion where it relied heavily on plaintiff’s subjective complaints rather than objective medical
evidence); Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir. 2012) (affirming ALJ’s decision to
afford less weight to a physician’s opinion where it was based largely on plaintiff’s subjective
statements, which the ALJ had found were less than fully credible); Ford v. Astrue, No. 1:06CV-1227, 2010 WL 3825618, at *9 (N.D.N.Y. Sept. 24, 2010) (“It was entirely appropriate for
the ALJ to differentiate between those portions of [the treating physician’s] report based on
objective tests and those supported only by [p]laintiff’s subjective report.”).
17
For all the above reasons, the ALJ properly weighed the opinion evidence. Remand is
not warranted on this basis.
C.
Whether the RFC Finding is Supported By Substantial Evidence
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 12-19 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
Residual functional capacity is defined as “‘what an individual can still do despite his or
her limitations . . . Ordinarily, RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing basis.’” Pardee
v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52
(2d Cir. 1999)). “In making a residual functional capacity determination, the ALJ must consider
a claimant’s physical abilities, mental abilities, [and] symptomology, including pain and other
limitations which could interfere with work activities on a regular and continuing basis.” Pardee,
631 F. Supp. 2d at 210 (citing 20 C.F.R. § 404.1545(a)). “Ultimately, ‘[a]ny impairment-related
limitations created by an individual’s response to demands of work . . . must be reflected in the
RFC assessment.’” Hendrickson v. Astrue, No. 5:11-CV-0927, 2012 WL 7784156, at *3
(N.D.N.Y. Dec. 11, 2012) (quoting SSR 85-15, 1985 WL 56857, at *8).
Plaintiff’s challenge to the RFC assessment is essentially a reiteration of her objections to
the ALJ’s rejection of the marked limitations opined by Dr. Camillo. (Dkt. No. 9, at 16 [Pl.
Mem. of Law].) For the reasons already detailed previously, the ALJ’s rejection of Dr.
Camillo’s opinion is supported by substantial evidence. Plaintiff’s argument that the RFC
assessment erroneously fails to account for the limitations from that opinion is therefore not
persuasive. Remand is not warranted on this basis.
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D.
Whether the Step Five Finding is Supported By Substantial Evidence
Without Supporting Testimony From a Vocational Expert
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 23-24 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
Although the claimant has the general burden to prove he has a disability under the
definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five “‘to
show there is other work that [the claimant] can perform.’” McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). “If a
claimant has non-exertional limitations that ‘significantly limit the range of work permitted by
his exertional limitations,’ the ALJ is required to consult with a vocational expert.” Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.
1986)). “However, the ‘mere existence of a non-exertional impairment does not automatically . .
. preclude reliance on the [Medical-Vocational] guidelines.’” Zabala, 595 F.3d at 410-11
(quoting Bapp, 802 F.2d at 603). “A non-exertional impairment ‘significantly limits a claimant’s
range of work when it causes an 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.’” Zabala, 595 F.3d at 410-11 (quoting Bapp, 802 F.2d at
605-06).
Plaintiff argues that the ALJ was required to obtain testimony from a vocational expert
due to the presence of mental impairments. (Dkt. No. 9, at 16-17 [Pl. Mem. of Law].) While
Plaintiff is correct that these impairments imposed non-exertional limitations, she fails to allege
how these impairments significantly impacted her work-related abilities such that the ALJ would
19
have been required to obtain vocational expert testimony. The ALJ found Plaintiff able to
perform a full range of work at all exertional levels consisting of routine daily tasks that would
not significantly change in pace or location on a daily basis. (T. 18.) The ALJ cited to the
definition of the basic mental demands required for the performance of unskilled work from SSR
85-15, namely the abilities to understand, carry out and remember simple instructions, respond
appropriately to supervision, coworkers and usual work situations, and deal with changes in a
routine work setting. (T. 22.) The ALJ noted that he found Plaintiff limited to unskilled work
due to her low IQ and academic achievement with specific limitations for low stress work with
limited changes in tasks and workplace to account for her anxiety, but otherwise found her
capable of performing simple tasks and getting along well socially. (Id.) He concluded that
these mental limitations did not significantly narrow the range of work she would be able to
perform and therefore used the Medical-Vocational Guidelines as a framework for finding
Plaintiff was not disabled. (Id.) These limitations are consistent with an ability to perform
unskilled work and do not suggest a significant impact on the occupational base. See
Woodmancy v. Colvin, 577 F. App’x 72, 76 (2d Cir. 2014) (finding the ALJ was not required to
consult a vocational expert where the ALJ found the plaintiff remained able to perform the basic
mental demands of unskilled work). The ALJ was therefore not required to obtain testimony
from a vocational expert, but instead appropriately relied on the Medical-Vocational Guidelines.
Zabala, 595 F.3d at 410-11. Remand is not warranted on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
20
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: September 11, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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