Trombley v. Colvin

Filing 19

DECISION AND ORDER: It is ORDERED that the Commissioner's decision is affirmed and Defendant's motion for judgment on the pleadings is GRANTED and the # 1 Complaint is DISMISSED. Signed by Magistrate Judge Therese Wiley Dancks on 9/27/2016. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JENNIFER TROMBLEY,
Plaintiff,
v.

8:15-CV-00567
(TWD)

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF MARK A. SCHNEIDER
Counsel for Plaintiff
57 Court Street
Plattsburgh, New York 12901

MARK A. SCHNEIDER, ESQ.

HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
Counsel for Defendant
Room 218
James T. Foley U.S. Courthouse
Albany, New York 12207

ELIZABETH D. ROTHSTEIN, ESQ.
Special Assistant United States Attorney

OFFICE OF GENERAL COUNSEL
Social Security Administration
26 Federal Plaza, Room 3904
New York, New York 10278

STEPHEN P. CONTE, ESQ.
Chief Counsel, Region II

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION AND ORDER
Plaintiff Jennifer Trombley brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a final decision of the Commissioner of Social Security (“Commissioner”)

denying her Title II application for disability insurance benefits, Title XVI application for
supplemental security income (“SSI”), and application for child’s insurance disability benefits.1
(Administrative Transcript (“T”) at 14.2) This case has proceeded in accordance with General
Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of
Social Security benefits. Both parties have filed briefs. Oral argument was not heard. Pursuant
to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States
Magistrate Judge. (Dkt. No. 13. ) For the reasons discussed below, the Commissioner’s decision
(Dkt. No. 9-2) is affirmed.
I.

BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is twenty-seven years old, with a birth date of May 3, 1989. (T. at 134.)

Plaintiff completed tenth grade in school and subsequently obtained a GED. (T. at 34.) She has
worked as a cashier and sales associate in retail, an overnight stock clerk in a retail lumber store,
and a hotel receptionist. (T. at 171.) Plaintiff initially alleged disability due to
depression/borderline personality, anxiety, post traumatic stress disorder (“PTSD”), dissociative
disorder, and social phobia. (T. at 170.)
Plaintiff applied for disability insurance benefits and SSI on July 3, 2012. (T. at 59-60.)
She applied for child’s benefits on July 17, 2012. (T. at 61.) The date of alleged onset of

1

The Social Security Act provides disability insurance benefits for a disabled adult child
“on the earnings record of an insured person who is entitled to old-age or disability benefits” if
the claimant is “18 years old or older and ha[s] a disability that began before the [claimant]
became 22 years old . . . .” 20 C.F.R. § 404.350(a)(5) (2016).
2

The Administrative Transcript is found at Dkt. No. 9. Citations to the Administrative
Transcript will be referenced as “T” and the page numbers as set forth therein will be used rather
than the numbers assigned by the CF/ECM docketing system.
2

disability in the applications was May 15, 2010. (T. at 14, 134, 141.) The three applications were
initially denied on September 18, 2012. (T. at 59-73.) The explanation of determination on
Plaintiff’s disability insurance benefits application stated that a determination had been made that
Plaintiff’s condition was not disabling through March 31, 2012, when she was last insured for
disability benefits. (T. at 74.) Plaintiff’s SSI application was denied based upon a determination
that her condition was not severe enough to keep her from working. (T. at 72.) Plaintiff’s
application for child’s insurance disability benefits was denied based upon a determination that
her condition was not disabling before age twenty-two. (T. at 66.)
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (T. at 79-80.)
The hearing was held on November 13, 2013, before ALJ Arthur Patane. (T. at 31-52.) Plaintiff
was represented by counsel at the hearing. (T. at 31.) On February 21, 2014, the ALJ issued a
decision finding that Plaintiff had not been under a disability, as defined in the Social Security
Act, from May 15, 2010, through the date of the decision. (T. at 24.) The ALJ’s decision
became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s
request for review on May 4, 2015. (T. at 1-5.) Plaintiff timely commenced this action on May
7, 2015. (Dkt. No. 1.)
II.

LEGAL STANDARDS
A.

Applicable Law

To be considered disabled, a plaintiff seeking disability insurance or SSI benefits must
establish that she or he is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
3

months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (2015).
In addition, the plaintiff’s
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
Id., §§ 423(d)(2)(A),1382c(a)(3)(B).
Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social
Security Administration (“SSA”) promulgated regulations establishing a five-step sequential
evaluation process to determine disability.3 20 C.F.R. §§ 404.1520(a)(4) (2016), 416.920(a)(4).
Under that five-step sequential evaluation process, the decision-maker determines:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”
assessment, whether the claimant can perform any of his or her
past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.
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. Thomas, 540
U.S. 20, 24 (2003).
3

In determining eligibility for disabled child’s benefits, the term “disability” has
substantially the same definition as it does in traditional adult disability cases, and the five-step
sequential process is applicable. See Ahearn v. Astrue, No. 1:08-cv-951 (GLS/VEB), 2010 WL
653712, at *3 (N.D.N.Y. Feb. 22, 2010).
4

The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v.
Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the
defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of
working. Id.
B.

Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the
correct legal standards were applied and whether substantial evidence supports the decision.
Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted). A reviewing court may not
affirm an ALJ’s decision if it reasonably doubts whether the proper legal standards were applied,
even if the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817
F.2d 983, 985 (2d Cir. 1987).
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42
U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “An ALJ must set forth
the crucial factors justifying his findings with sufficient specificity to allow a court to determine
whether substantial evidence supports the decision.” Roat v. Barnhart, 717 F. Supp. 2d 241, 248
(N.D.N.Y. 2010); see Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). “Substantial
evidence has been defined as ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion . . . .’” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988) (citations omitted). It must be “more than a mere scintilla” of evidence scattered
5

throughout the administrative record. Featherly, 793 F. Supp. 2d at 630 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams, 859 F.2d at 258 (citations omitted). However, a reviewing court
cannot substitute its interpretation of the administrative record for that of the Commissioner if
the record contains substantial support for the ALJ’s decision. See Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982). If there is substantial evidence of record both for and against the
Commissioner’s decision, the court must uphold the decision absent legal error. See DeChirico
v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998).
III.

THE ALJ’S DECISION
The ALJ found Plaintiff had not attained age twenty-two as of May 15, 2010, the alleged

onset date. (T. at 16.) The ALJ also found Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. Id. The ALJ determined Plaintiff had the following severe
impairments: affective disorder, anxiety disorder, and personality disorder. Id. Plaintiff’s back
pain, recurrent wrist pain, migraines, and asthma were found to be non-severe physical
impairments. (T. at 16-17.) The ALJ found that both before and after attaining the age of
twenty-two, Plaintiff did not have an impairment, considered singly and in combination, that met
or medically equaled the criteria of listings 12.04 (Affective Disorders), 12.06 (Anxiety Related
Disorders), and 12.08 (Personality Disorders) at 20 C.F.R. Pt. 404, Subpt. P, App. 1. (T. at 1819.)
6

The ALJ determined that both before and after attaining age twenty-two, Plaintiff had the
residual functional capacity (“RFC”) “to perform a full range of work at all exertional levels but
with the following nonexertional limitations: she can understand, remember, and execute simple,
detailed, and complex instructions, though complex tasks under supervision; she can respond
appropriately to regular workplace changes and stressors; she can interact with coworkers and
supervisors without restriction; and she can have no more than superficial contact with the
general public.” (T. at 20.)
IV.

THE PARTIES’ CONTENTIONS
Plaintiff argues that the ALJ erred in: (1) giving too much weight to the consulting

medical sources; (2) failing to find Plaintiff disabled under Listings 12.04 and 12.06; (3) failing
to find Plaintiff’s migraine headaches, back pain, recurrent wrist pain, and asthma to be severe
impairments; (4) finding in his RFC that Plaintiff could perform any work with her combination
of mental illness, migraine headaches, back pain, and ganglion cyst; and (5) failing to credit
Plaintiff’s testimony regarding her limitations. (Dkt. No. 15 at 2.4)
The Commissioner contends that the determination that Plaintiff is not disabled within
the Social Security Act is supported by substantial evidence and is based upon the application of
correct legal standards. (Dkt. No. 16 at 3.)
V.

DISCUSSION
A.

Severity Determination

Plaintiff’s primary focus in her challenge to the ALJ’s step-two severity findings is the

4

Citations to the parties’ Briefs (Dkt. Nos. 15 and 16) are to the page numbers assigned
by the Court's CM/ECF system.
7

failure to find that her migraine headaches constitute a severe impairment. (Dkt. No. 15 at 2930.) Plaintiff has also asserted, in conclusory fashion, that the ALJ “also erred in not considering
her back pain, recurrent wrist pain, and asthma to be severe impairments.” Id. at 30. Plaintiff’s
support for that assertion is the statement in her brief that “[t]hese impairments are all
documented in the record and all add additional restrictions for her RFC.” Id. The Court finds
that the ALJ’s non-severity determinations with respect to Plaintiff’s migraines, back pain,
recurrent wrist pain, and asthma are all supported by substantial evidence.
“Impairments” are “anatomical, physiological, or psychological abnormalities . . .
demonstrable by medically acceptable clinical and laboratory techniques.” 42 U.S.C. §
423(d)(3). “A severe impairment” is defined as “any impairment or combination of impairments
which significantly limits [the claimant’s] physical or mental ability to do basic work activities.”
20 C.F.R. §§ 404.1520(c), 416.920(c). “Basic work activities” are defined as “the abilities and
aptitudes to do most jobs.”5 Id. at 404.1521(a), 416.921(b). While the Second Circuit has held
that the severity regulation is “valid only if applied to screen out de minimis claims,” Dixon v.
Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995), “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, by
itself, sufficient to render a condition ‘severe.’” Taylor v. Astrue, 32 F. Supp. 3d 253, 265
(N.D.N.Y. 2012); Prince v. Astrue, 490 F. App’x 399, 400 (2d Cir. 2013) (a mere diagnosis,
without evidence of severity of symptoms and functional limitations, does not mandate a finding
5

Examples of basic work activities set forth in the regulations include such things as
physical functions such as walking, standing, lifting and carrying; capacity for seeing, hearing,
and speaking; understanding and carrying out simple instructions; use of judgment; responding
appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a
routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b).
8

of disability); Payne v. Astrue, No. 11-cv-322 (RFT), 2013 WL 550677, at * 5 (N.D.N.Y. Feb.
12, 2013) (“The mere existence of a diagnosis, however, is insufficient to show that functional
limitations are imposed as a result of the impairments.”)
1.

Migraines

In his severity assessment, the ALJ found that while Plaintiff had alleged persistent
migraines, an MRI study done in April 2012 was within normal limits, there was no evidence in
the record of observation under a neurologist, and Plaintiff was on record as stating that her
migraines improved when she began using prescription glasses.6 (T. at 17-18, 360, 689.)
A September 2, 2012, SSA Report of Contact reports that Plaintiff had stated she had
migraines almost every day and took Excedrin which helped to control them. (T. at 205.)
However, Plaintiff is also reported as saying that she was not receiving treatment for her
migraines, except for a visit to the emergency room three weeks ago, and that she had never been
an inpatient for migraines. Id. Plaintiff is reported as having stated that she “feels that migraines
keep her from working when she has them.” Id.
Dr. David Welch conducted a physical examination of Plaintiff on September 12, 2012,
for social security purposes. (T. at 521-22.) During the examination, Plaintiff reported having

6

It is not at all clear that the ALJ correctly interpreted the Nurse’s note from Plaintiff’s
October 9, 2012, appointment at Adirondack Medical Practice as Plaintiff having stated that her
migraines had improved following her attainment of prescription glasses. (T. at 689.) The note
actually reads “[p]atient feeling about the same compared to last visit she does not (sic) a
decrease in migraine headaches since getting prescription glasses.” Id. It appears just as likely,
if not more so, that the word “have” was meant to follow the word “not” and was inadvertently
omitted. If the ALJ did misread the note, it would be harmless error in light of the substantial
evidence supporting the non-severe determination. See, e.g., Barringer v. Comm’r Soc. Sec., 358
F. Supp. 2d 67, 82 n.26 (N.D.N.Y. 2005) (ALJ’s incorrect rendition of facts in the record nothing
more than harmless error where assessment supported by other substantial evidence).
9

intermittent migraines most of her life and having them two or more times a week at the time of
her examination. (T. at 521.) Plaintiff was taking Excedrin for headaches at the time. Id.
Dr. Welch noted that Plaintiff’s problems appeared to be primarily psychiatric and or
psychosocial “but aggravated by the presence of recurrent migraine headaches most of which
never appear to have been treated in a consistent fashion.” (T. at 522.) Dr. Welch otherwise
deferred to Plaintiff’s psychiatry program for discussion of her psychiatric problems. Id.
Dr. Welch’s evaluation contained no assessment of functional limitations, if any, on Plaintiff’s
ability to do basic work activity as a result of her migraines. (T. at 521-522.)
Plaintiff’s medical and mental health records contain limited information regarding her
migraines, and as noted by Dr. Welch, the records show no clear and consistent pattern of
treatment. Id. Plaintiff’s Plattsburgh Pediatrics medical records note that Plaintiff was having
migraines as of November 4, 2004. (T. at 587.) A June 9, 2006, note in Plaintiff’s records with
Plattsburgh Pediatrics noted that her headaches had greatly subsided, although she reported
having had one the day before that subsided on its own. (T. at 580.) Although Plaintiff reported
having had a migraine recently at a mental health therapy session on April 4, 2009, Plaintiff’s
mental health records seldom reference her migraines or list migraines on the Axis III diagnosis.
(T. at 257.)
Plaintiff went to the emergency room at CVPH Medical Center complaining of a
migraine headache at 11:42pm on June 20, 2012. (T. at 365-72.) She was diagnosed with a
severe migraine, treated, and discharged at 1:26am on June 21, 2012. Id. Plaintiff’s patient
notes at Adirondack Medical Practice, beginning with her new patient examination on September
7, 2012, generally include headaches on the list of Plaintiff’s medical problems but do not
10

address them in detail, note a current problem, or indicate any treatment. (T. at 685, 689, 694.)
A Nurse’s note dated April 9, 2013, however, did indicate that Plaintiff had reported an increase
in migraines and was not finding Excedrin as effective. (T. at 699.) Plaintiff informed the nurse
that she had taken Imitrex several years ago but it had made her nauseous. Id. Plaintiff was
placed back on Imitrex on April 9, 2013. (T. at 701.)
Plaintiff testified at the hearing before the ALJ that she had been having migraines since
she was a teenager, was getting them a couple of times a week or more, and was treated by her
family doctor. (T. at 39.) According to Plaintiff since she began taking Imitrex, her migraines
were not lasting more than four or five hours. (T. at 40.)
Although Plaintiff’s medical records reference her having migraine headaches that started
before the period during which she was gainfully employed and before she applied for disability
insurance benefits and SSI, when Plaintiff applied for benefits, she did not include migraines
among the causes. (T. at 170.) Moreover, at her hearing, Plaintiff blamed her inability to work
on anxiety without implicating her migraines. (T. at 40.)
Based upon the spotty reference to Plaintiff’s migraines and treatment for migraines in
her medical and mental health records, despite her many years of having recurrent migraines; her
normal MRI; Plaintiff’s ability to work in retail, as a stock clerk, and as a hotel receptionist in
spite of recurrent migraines; Plaintiff’s claim that she left her last employment at Sam’s Club
because of increasing anxiety; and the absence of evidence in the record that Plaintiff’s migraines
affected her ability to do basic work, i.e., a lack of medical evidence or other source opinions
showing functional limitations on her ability to do basic work as a result of her migraines, the
Court finds that there is substantial evidence in the record supporting the ALJ’s determination
11

that Plaintiff’s migraines constitute a non-severe impairment.
2.

Back Pain

The ALJ acknowledged Plaintiff’s claim of persistent back pain and resulting difficulty in
maintaining a raised position with her arms in his decision. (T. at 17.) Based upon the record
evidence, he nonetheless determined Plaintiff’s back pain to be non-severe. (T. at 17.) The
Court finds that the ALJ’s determination is supported by substantial evidence in the record.
The ALJ noted that laboratory and diagnostic studies were inconsistent with the
impairment or limitation claimed by Plaintiff. Id. The ALJ referenced a June 26, 2012,
lumbosacral MRI study revealing vertebral bodies, disc space heights, bone marrow, and
posterior elements all within normal limits. Id.; T. at 570-71. The ALJ pointed out that similar
results were received in a June 2013 radiograph study. Id.; T. at 650. Based upon those studies,
the ALJ found little support for Plaintiff’s subjective complaints of radiating pain and numbness.
Id.
The ALJ also noted that although Plaintiff complained of radiculopathy, there was no
evidence of disc herniations, spinal stenosis, or paraspinal abnormalities. Id.; T. at 570. In
addition, the ALJ explained that Plaintiff’s musculoskeletal and neurological physical
examinations were consistently within normal limits, with normal motor function, sensation,
range of motion, and reflexes in all extremities; and that there was no evidence in the record of
any gait abnormality or deficits in upper extremity ranges of motion or strength. Id.; T. at 339,
367-68, 378.
The ALJ found that Dr. Welch’s exam, which revealed some mild tender point activity
through the upper trapezius and posterior neck but no evidence of loss of motion in neck; normal
12

dorsal and lumbar spine; normal gait; good active and passive range of motion in all four
extremities; and appropriate strength with no localizing weakness, was unsupportive of more
than a minimal limitation in basic work. (T. at 17; Dkt. No. 16 at 20.)
3.

Recurrent Wrist Pain

The ALJ determined that there was no evidence that a ganglion cyst on Plaintiff’s right
wrist caused more than minimal limitation in basic work activities and constituted a non-severe
impairment. (T. at 17.) Plaintiff has claimed in conclusory fashion on this appeal that the ALJ
should have found her recurrent wrist pain to constitute a severe impairment. (Dkt. No. 15 at
30.)
Plaintiff’s medical records reveal that she was diagnosed with a ganglion cyst on her right
wrist on October 28, 2003. (T. at 595.) The ALJ noted that the cyst had reportedly been drained
several times. (T. at 17.) Plaintiff testified at her hearing that her ganglion cyst sometimes
flared up and became swollen if she bent her wrist the wrong way so that she would have to wear
a wrist brace and could not do crafts for a while. (T. at 47.) As noted by the ALJ, the report on a
radiograph of Plaintiff’s right wrist taken on January 20, 2012, revealed no significant
abnormalities in the bones, joints, or soft tissue. (T. at 17, 361.) The ALJ concluded that the
record was devoid of clinical support for any medically determinable impairment. (T. at 17, 10203.)
The Court notes that although Plaintiff had the ganglion cyst during her employment in
retail sales, stocking shelves, and as a hotel receptionist, there is no evidence in the record that it
impacted on her ability to do her job. In addition, Plaintiff testified at her hearing that she spends
a considerable amount of time knitting and crocheting, and at the time of her hearing, was
13

learning to embroider and cross-stitch. (T. at 37.)
Based upon the foregoing, the Court finds that the ALJ’s determination that Plaintiff’s
ganglion cyst and resulting intermittent wrist pain was a non-severe impairment is supported by
substantial evidence.
4.

Asthma

The ALJ also found that Plaintiff’s asthma was a non-severe impairment. (T. at 18.) As
with her alleged back pain and wrist pain, Plaintiff has claimed in conclusory fashion that the
ALJ erred in failing to find that her asthma constituted a severe impairment. (Dkt. No. 15 at 30.)
Plaintiff’s medical records reveal that she was treated in the emergency room at CVPH
Medical Center for asthma attacks on January 2, 2010, and June 11, 2010, and was given
Albuterol both times. (T. at 406, 409.) An SSA report of contact in the record reveals that when
asked about her asthma on August 12, 2012, Plaintiff reported that her primary care provider
treated her asthma, that she had not been seen in the emergency room or hospitalized for asthma,
and that her asthma did not significantly impact her ability to function in a work environment.
(T. at 205.)
The Court notes that Plaintiff had been diagnosed with and treated for asthma while she
was still working and did not identify asthma as a disabling impairment or attribute her alleged
inability to work in whole or in part to her asthma. (T. at 40, 170, 205, 406.) The Court further
notes that there is no evidence in the record that would support a determination that Plaintiff’s
asthma had ever limited, or would, significantly limit, her ability to do basic work. Therefore,
the Court finds that the ALJ’s determination that Plaintiff’s asthma was a non-severe impairment
is supported by substantial evidence.
14

B.

Listing Determination

Plaintiff contends that the ALJ erred at step-three of his analysis by determining that
Plaintiff’s mental impairments did not meet Listings 12.04 (Affective Disorders) and 12.06
(Anxiety Related Disorders). (Dkt. No. 15 at 25-27.) To satisfy the requirements of Listing
12.04, a claimant must demonstrate continuous or intermittent symptoms listed in Section A and
at least two of the following in Section B: marked restriction in activities of daily living; marked
difficulties in social functioning; marked difficulties in maintaining concentration, persistence,
and pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.04(A)-(B) (2013) (“App. 1”). Alternatively, a claimant must show a
medically documented chronic affective disorder of at least two years’ duration, with at least one
of the following: (1) repeated episodes of decompensation, each of extended duration; (2) a
residual disease process that resulted in such a marginal adjustment that even a minimal increase
in mental demands or change in the environment would be predicted to cause the individual to
decompensate; or (3) a current history of one or more years’ inability to function outside a highly
supportive living environment. App. 1 at § 12.04(C).
To satisfy the requirements of Listing 12.06, a claimant must show specific symptoms
listed in Section A of the Listing and at least two in Section B, which are the same as in Listing
12.04. Id. at § 12.06 (A)-(B). Alternatively, a claimant must show the specific symptoms listed
in Section A and a complete inability to function independently outside the area of her home. Id.
at § 12.06(C).
For the reasons that follow, the Court finds that the ALJ’s determination that Plaintiff did
not meet Listings 12.04 or 12.06 is supported by substantial evidence.
15

1.

Paragraph B

In his analysis of whether Plaintiff’s mental impairments, affective disorder and anxiety
disorder, considered singly and in combination, met or medically equaled Listings 12.04 and
12.06, the ALJ focused initially on the paragraph B criteria and concluded that the criteria were
not satisfied. (T. at 18.)
Plaintiff’s challenge to the ALJ’s finding with regard to the Listings is largely conclusory.
Without citing evidence from the record, Plaintiff has asserted that “[a]ll of the treating sources
concluded that he (sic) was significantly limited in social functioning, had difficulty sustaining
focus, concentration, and ability to attend, had problems with his (sic) memory, had a low stress
tolerance, and was at risk of decompensation.” (Dkt. No. 15 at 29.) Plaintiff has also asserted,
again without citing to record evidence, that “[t]he evidence conclusively shows that Ms.
Trombley has marked limitations in: activities of daily living; in maintaining social functioning;
deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks
in a timely manner (in work settings or elsewhere); and repeated episodes of deterioration or
decompensation in work or work-like settings which caused the individual to withdraw from that
situation or to experience exacerbation of signs and symptoms.” Id.
In support of her conclusory assertions as to her functional limitations, Plaintiff notes
that: (1) she has been treated for anxiety and depression since she was a child, and in March 2012
was given a GAF score of 40 and a diagnosis of dissociative identity disorder, social phobia,
cannabis dependence, and borderline personality by her treating psychiatrist, Dr. Schenkel;7 (2)
7

As noted by the Commissioner in her Brief, GAF is a rating of overall psychological
functioning on a scale of 0-100. (Dkt. No. 16 at 10 n.4.) A rating of 31 to 40 means some
impairment in reality testing or communication or major impairment in several areas such as
16

psychiatrist Dr. Kokernot incorporated Dr. Schenkel’s assessments in his 2013 reports; and (3) in
a source statement given to the Clinton County Department of Social Services, Plaintiff’s
counselor at Clinton County Mental Health (“CCMH”), Vicki Dauphinais, wrote that Plaintiff
could not perform competitive work.8 (T. at 29.)
The Court finds that the ALJ’s paragraph B determination that Plaintiff had no marked
functional limitations is supported by substantial evidence.
a.

Activities of Daily Living

In determining that Plaintiff had a mild restriction in activities of daily living, the ALJ
noted Plaintiff’s hearing testimony that she spends her days listening to music and working on
crafts. (T. at 18.) The ALJ also noted that Plaintiff had told consultative examiner (Brett
Hartman, Psy.D.) that she does her own cooking, cleaning, laundry, and money management;
gets along well with her parents; and attends counseling sessions. (T. at 18, 502.)
The Court notes that the record also shows that at the time of the hearing in November

work or school, family relations, judgment, thinking, or mood. 41-50 signifies serious symptoms
or any serious impairment in social, occupational, or school functioning. 51-60 means moderate
symptoms or moderate difficulty in social, occupational, or school functioning. Id.
8

The records show that Dr. Schenkel gave a GAF score on Plaintiff on only one
occasion. (T. at 463-65, 758-60.) Although Dr. Kokernot initially made no change to Dr.
Schenkel’s diagnosis of Plaintiff (T. at 757), shortly after Plaintiff was transferred to his care, he
began to list her diagnosis as PTSD and does not appear to have adopted Dr. Schenkel’s GAF
score or to ever have assigned Plaintiff a GAF score. (T. at 750-57.) In her September 9, 2013,
medical source statement prepared for the New York State Office of Temporary and Disability
Assistance, in response to the question “[t]aking into consideration physical, mental and
addiction limitation(s), describe any working conditions, environments, or work activities which
are contraindicated,” Ms. Dauphinais wrote “competitive work not indicated, but she is interested
in working (non-competitive).” Ms. Dauphinais indicated that her statement was expected to last
“7-11 months to start.” (T. at 626.)
17

2013, Plaintiff, who had told Dr. Hartman in August 2012 that she had a goal of “becoming
independent and having her own apartment,” had been living in an apartment by herself for over
six months. (T. at 35-36, 502.) In addition, Plaintiff’s mental health records indicate that she
was able to care appropriately for her grooming and hygiene. For example, in the Psychiatric
Evaluation done by psychiatrist Dr. Schenkel on or about March 28, 2012, Plaintiff was found to
be “appropriately groomed and dressed.” (T. at 463.) Dr. Hartman described Plaintiff as
“dressed in a casual and well groomed fashion” in his Psychiatric Evaluation of August 10, 2012.
(T. at 501.)
The Court finds that the foregoing evidence well supports non-examining State agency
consultant psychologist Dr. H. Ferrin’s functional limitation assessment that Plaintiff had only a
mild degree of limitation in activities of daily living, and the ALJ’s finding to that effect. (T. at
547.) See Barber v. Comm’r of Soc. Sec., No. 6:15-CV-0338 (GTS/WBC), 2016 WL 4411337,
at * 7 (N.D.N.Y. July 22, 2016) (“It is well settled that an ALJ may rely on the medical opinions
provided by State agency consultants and that those opinion[s] may constitute substantial
evidence.”); Miller v. Colvin, No. 15-CV-6249P, 2016 WL 4478690, at * 12 (W.D.N.Y. Aug. 26,
2016) (“the law refutes any suggestion that the opinions of non-examining physicians may never
constitute substantial evidence to support an RFC determination”); Baszto v. Astrue, 700 F. Supp.
2d 242, 249 (N.D.N.Y. 2010) ) (“[A]n ALJ is entitled to rely upon the opinions of both
examining and non-examining State agency medical consultants, since such consultants are
deemed to be qualified experts in the field of social security disability.”).
b.

Difficulties in Social Functioning

The ALJ found that Plaintiff has moderate difficulties in social functioning. (T. at 19.)
18

The ALJ acknowledged Plaintiff’s claims of struggling in crowds and having difficulty
establishing relationships. Id. He observed, however, that treatment notes regularly referenced
either normal or only mildly impaired speech and language skills, and during Plaintiff’s alleged
period of disability, she participated in roller derby as a referee and teammate, suggesting she did
not have marked limitations in social functioning. Id. The Court notes in addition that Plaintiff
reported to Dr. Hartman that she got along well with her parents, although she avoided her
siblings, and that she had a few friends, including one very close friend. (T. at 502.)
Without seeking the Court’s permission or offering any reason for failure to incorporate it
into the earlier proceedings in this matter, Plaintiff has submitted a September 14, 2015, letter to
the Court from Danielle Baker (“Baker”), the 2013-2014 President of, and former skater with, the
roller derby team with which Plaintiff was involved. (Dkt. No. 15 at 44-45.) Baker has
identified herself as a physician assistant whose specialty is not mental health, but who has
experience dealing with patients with depression and anxiety. Id. at 44. The letter contains the
personal assessment of its author regarding Plaintiff’s involvement with the roller derby team, as
well as her belief that Plaintiff’s experience with the team indicates that Plaintiff could not
maintain a regular schedule; handle stress; or maintain attention, focus and concentration; and
that she struggled in her interactions with others. Id.
Baker asserts that there are several misconceptions in the ALJ’s decision regarding
Plaintiff’s involvement with the roller derby team. Id. The letter states that while Plaintiff
enjoyed coming to practices and occasionally acting as referee, she was not a sufficiently
competent skater to ever skate with the team. According to Baker, Plaintiff enjoyed coming to
roller derby because she was a very shy, anxious, and isolated person who did not have other
19

social outlets. Because of that, according to Baker, team members went out of their way to be
nice and supportive to her even though Plaintiff could be demanding and annoying, complained
about her aches and pains, rubbed people the wrong way, and got upset at little things. Id. The
letter states that Plaintiff did not attend all practices; missed several away games and refereed at
most once a month (because there was generally only one game per month); had to stop
refereeing in the middle of a game because of severe anxiety attacks on at least two occasions;
and several times had to leave after-practice and games social gatherings because she was too
uncomfortable being in a public place. Id.
Generally, “evidence not contained in the administrative record may not be considered
[by a district court] when reviewing the findings of the Commissioner.” Collins v. Comm’r of
Soc. Sec., 960 F. Supp. 2d 487, 500 (S.D.N.Y. 2013) (quoting Brown v. Barnhart, No. 02 Civ.
4523(SHS), 2003 WL 1888727, at 10 (S.D.N.Y. April 15, 2003) (citations omitted), aff’d 85 F.
App’x 249 (2d Cir. 2004)). The reviewing court may, however, remand the claim to the Agency
for consideration of evidence that is not contained in the administrative record “upon a showing
that there is new evidence which is material and that there [was] good cause for the failure to
incorporate such evidence” into the administrative record. 42 U.S.C. § 405(g) (sentence six);
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (claimant must show good cause for failure to
present evidence earlier) (citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1985)).
The Court finds that Plaintiff, who was represented by counsel in the administrative
proceedings, has failed to satisfy the statutory requirement that she show good cause for failure to
incorporate the letter or information contained in the letter into the prior proceedings. The Court
further finds that even if Plaintiff had shown good cause for the delay in presenting the letter,
20

information in the letter is not material to the determination of whether Plaintiff meets Listings
12.04 or 12.06 or, as discussed below, the RFC.
To be material, the evidence must be relevant to the plaintiff’s condition during the
alleged period of disability and probative. Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004).
While Baker’s assessment relates to Plaintiff’s condition during the period of disability, “the
concept of materiality requires, in addition, a reasonable possibility that the new evidence would
have influenced the [Commissioner] to decide claimant’s application differently.” Id. The Court
does not find that to be the case.
Although the Commissioner may use evidence from non-medical sources to show
severity of impairments and how they affect a claimant’s ability to work, see 20 C.F.R. §
404.1513(d), Baker is admittedly not a mental health specialist, and she did not have a
professional relationship with Plaintiff. (T. at 44-45.) The Court concludes that what are
essentially Baker’s unsworn lay opinions with regard to Plaintiff’s ability to maintain a regular
schedule; handle stress; maintain attention, focus and concentration; and interact with others,
based upon her involvement with Plaintiff in roller derby, would have been given little weight by
the Commissioner had they been presented in the administrative proceedings. (T. at 45.)
The Baker letter confirms that Plaintiff did in fact participate in roller derby, albeit
perhaps not at the same level as would be expected of someone without moderate difficulties in
social functioning. (T. at 44-45.) The Court finds it unlikely, however, given the substantial
evidence supporting the ALJ’s determination, that Baker’s personal observations regarding
various aspects of Plaintiff’s involvement with the roller derby team, including her enjoyment at
coming to practices and occasionally refereeing games; limited skating ability; the warm
21

supporting nature of the team environment despite Plaintiff often being annoying and demanding
and “rub[bing] people the wrong way”; severe anxiety attacks on at least two occasions while
refereeing; and discomfort at social events with the team in public places, would have influenced
the Commissioner to decide Plaintiff’s applications differently. (T. at 44-45.)
Non-examining State agency consultant Dr. Ferrin concluded that Plaintiff had moderate
limitations in maintaining social functioning and concluded that Plaintiff’s mental impairments
did not meet a listed impairment. (T. at 537-49.) The opinions of non-examining medical or
mental consultants can constitute substantial evidence under 20 C.F.R. § 404.1527. See Fessler
v. Astrue, No. 09 Civ. 6905 (WHP)(JCF), 2011 WL 346553, at * 9 (S.D.N.Y. Jan. 10, 2011).
In addition, there is extensive evidence in the record indicating that Plaintiff participated
fairly extensively in roller derby. Plaintiff received physical therapy in February 2012 for an
ankle sprain sustained while roller-skating for her roller derby team on December 23, 2011. (T.
at 300.) Plaintiff’s physical therapy note from May 2, 2012, indicates that she was skating three
times a week even though it irritated her back and leg pain. (T. at 297.) On August 10, 2012,
Plaintiff told Dr. Hartman she helped with the local roller derby team. (T. at 502.) On March 13,
2013, Plaintiff reported to Dr. Kokernot that she continued to referee for roller derby two to three
times a week and was on skates when she refereed. (T. at 754.) She also reported having a social
relationship with the other referees but not much with the players. Id. On July 3, 2013, Plaintiff
reported to Dr. Kokernot that while she had not skated for a couple of weeks because she had
fallen on her back, she planned on going to practice that evening and was scheduled to go on a
trip with the other referees that weekend. (T. at 753.) On September 4, 2013, Plaintiff reported
to Dr. Kokernot that she had been successful in getting to out of town roller derby meets. (T. at
22

572.) Plaintiff testified at her hearing that although she only refereed up to two games a month,
she participated in roller derby on more less a weekly basis depending on her anxiety and
depression, and that she did not socialize much with the other referees outside of roller derby.
(T. at 38, 41.)
Based upon Plaintiff’s self-reported good relationship with her parents, friendships,
participation in roller derby, Dr. Ferrin’s functional assessment, along with the absence of record
evidence from Plaintiff’s treating psychologists and therapist indicating marked limitations in
social functioning, the Court finds that the record contains substantial evidence for the ALJ’s
determination that Plaintiff has moderate and not marked difficulties with social functioning.
c.

Difficulties in Maintaining Concentration, Persistence, and Pace

The ALJ found that Plaintiff has moderate difficulties in the area of maintaining
concentration, persistence, and pace. (T. at 19.) The ALJ noted that Plaintiff enjoys watching
television and working on crafts in her leisure, tasks that require sustained attention and
concentration. Id.; T. at 37. The Court notes Plaintiff’s testimony that she knits and crochets,
and that she was also teaching herself to embroider and cross-stitch. Id. The ALJ acknowledged
that sources had indicated some cognitive restrictions, particularly when considering subjective
reports of difficulties with stress management.9 Id. However, he determined that Plaintiff’s
participation in roller derby as a referee required attention, observation, and judgment while
interacting with others and under outside scrutiny. Id.

9

Dr. Hartman opined that Plaintiff had “moderate to marked difficulty dealing
appropriately with the normal stressors of life.” (T. at 502.) Dr. Hartman found Plaintiff’s
memory skills only mildly impaired, and her intellectual functioning to be somewhat below
average. Id.
23

In addition, the Court notes that Dr. Hartman found that Plaintiff had only mild difficulty
in maintaining attention. (T. at 502.) The Court finds that the foregoing provides substantial
evidence that supports Dr. Ferrin’s assessment of Plaintiff as having moderate functional
limitations in the area (T. at 547), as well as the ALJ’s determination to that effect.
d.

Episodes of Decompensation

The record reveals that Plaintiff suffered only one episode of decompensation. The
episode occurred on July 29, 2012. (See T. at 469-94.)
2.

Paragraph C

The Court finds, based upon the record evidence referenced throughout this Decision, that
the ALJ correctly concluded that none of the Paragraph C criteria under either 12.04 or 12.06 was
satisfied in that there is no evidence in Plaintiff’s medical records suggesting that her
impairments resulted in a complete inability to function outside of her home; caused repeated
episodes of decompensation; caused her to be unable to function outside of a highly supportive
living arrangement; or resulted in such a marginal adjustment that even a minimal increase in
mental demands or change in environment would be predicted to cause decompensation. (T. at
19.)
C.

RFC Determination

A claimant’s RFC is the most she or he can do despite her limitations. 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). 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, and
the RFC assessment must include a discussion of the individual’s abilities on that basis. “A
regular and continuing basis means eight hours a day, for five days a week, or an equivalent work
24

schedule.” Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (citing Melville v. Apfel,
198 F.3d 45, 52 (2d Cir. 1999) (quotations omitted)).
It is the ALJ’s job to determine a claimant’s RFC, and not to simply agree with a
physician’s opinion. 20 C.F.R. §§ 404.1546(c), 416.946(c). In determining RFC, “the ALJ must
consider objective medical facts, diagnoses and medical opinions, based on such facts, as well as
a plaintiff’s subjective symptoms, including pain and descriptions of other limitations.” Aiello v.
Comm’r Soc. Serv., No. 5:06-CV01021 (DNH), 2009 WL 87581, at * 3 (N.D.N.Y. Jan. 9, 2009)
(citing 20 C.F.R. § 404.1545). The ALJ must consider all of plaintiff’s medically determinable
impairments of which he is aware and the limiting effects of all impairments, even those not
deemed severe, in determining RFC. 20 C.F.R. §§ 404.1545(a), 416.945(a). Age, education,
past work experience, and transferability of skills are vocational factors to be considered.
Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999).
Physical abilities are determined by evaluation of exertional and nonexertional
limitations. Exertional limitations include the claimant’s ability to walk, stand, lift, carry, push,
pull, reach, and handle. 20 C.F.R. §§ 404.1545(b), 416.945(b). Nonexertional limitations
include mental impairments and difficulty performing the manipulative or postural functions of
some work such as reaching, handling, stooping, climbing, crawling, or crouching. Id. A limited
ability to carry out certain mental activities, “such as limitations in understanding, remembering,
and carrying out instructions, and in responding appropriately to supervision, co-workers, and
work pressures in a work setting, may reduce your ability to do past work and other work.” Id. at
§ 404.1545(d), 416.945(c).
The ALJ “is not required to accept the claimant’s subjective complaints without question;
25

he may exercise discretion in weighing the credibility of the claimant’s testimony in light of the
other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Once the ALJ
has resolved a claimant’s complaints of pain, he can then evaluate exertional and non-exertional
limitations. Lewis v. Apfel, 62 F. Supp. 2d 648, 658 (N.D.N.Y. 1999).
D.

Analysis of the ALJ’s RFC Determination

As noted above, the ALJ found that Plaintiff had the RFC to “perform a full range of
work at all exertional levels but with the following non-exertional limitations: she can
understand, remember, and execute simple, detailed, and complex instructions, though complex
tasks under supervision; she can respond appropriately to regular workplace changes and
stressors; she can interact with coworkers and supervisors without restriction; and she can have
no more than superficial contact with the general public.” (T. at 20.)
Plaintiff argues that the ALJ erred in determining her RFC by: (1) giving too much
weight to consultative examining psychologist Dr. Hartman and non-examining State agency
consultant Dr. Ferrin (Dkt. No. 15 at 19-27); (2) failing to find that Plaintiff did not have the
RFC to perform any work because of her combination of mental illness, migraine headaches,
pain, and ganglion cyst, id. at 31-36; and (3) failing to credit Plaintiff’s testimony regarding her
limitations, id. at 36-41. For reasons explained below, the Court disagrees.
1.

Claim that the ALJ Gave to Much Weight to the Consulting Medical
Sources

Plaintiff had the burden of demonstrating her functional limitations. See 42 U.S.C. §§
423(d)(5)(A), 1382c(a)(3)(H)(i) (“[a]n individual shall not be considered to be under a disability
unless [s]he furnishes such medical and other evidence of the existence thereof as the

26

Commissioner of Social Security may require.”); 20 C.F.R. §§ 404.1512(c), 416.912(c) (“you
must provide medical evidence showing that you have an impairment(s) and how severe it is
during the time you say you are disabled. You must provide evidence, without redaction,
showing how your impairment(s) affects your functioning during the time you say you are
disabled . . . .”); 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3) (“In general, you are responsible for
providing the evidence we will use to make a finding about your residual functional capacity.”).
“A lack of supporting evidence on a matter for which the claimant bears the burden of proof,
particularly when coupled with other inconsistent record evidence, can constitute substantial
evidence supporting a denial of benefits.” Eusepi v. Colvin, 595 F. App’x 7, 8 (2d Cir. 2014).
Under the “treating physician’s rule,” the ALJ must give controlling weight to a treating
physician’s opinion when that position is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the]
record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(d)(2); Shaw v. Chater, 221 F.3d 126, 134 (2d
Cir. 2000).
Plaintiff has argued that the ALJ violated the treating physician’s rule by failing to give
controlling weight to the opinions of Plaintiff’s treating psychiatrists and therapist and giving
more weight to the opinion of non-examining consultant Dr. Ferrin. (Dkt. No. 15 at 26.)
Plaintiff also asserts that the ALJ failed to consider the factors set forth in 20 C.F.R. §
404.1527(d)(2)(I) in determining the amount of weight to assign to the opinion of Plaintiff’s
treating psychiatrists.10
10

The factors set forth in 20 C.F.R. §§ 404.1527(d), 416.927(d) are “(1) the frequen[cy],
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
27

However, as noted by the Commissioner on this appeal, Plaintiff has failed to point to any
opinion of functional limitations from her treating psychiatrists Dr. Schenkel and Dr. Kokernot to
which controlling weight should be given. (Dkt. No. 16 at 8.) The only opinion evidence cited
by Plaintiff was from her non-physician therapist, Ms. Dauphinais, and involved Plaintiff’s
ability to work. Id. at 25. In a September 19, 2013, report, Ms. Dauphinais opined in conclusory
fashion in response to a question on limitations of work activities that “competitive work not
indicated, but she is interested in working (non-competitive).” (T. at 625-26.) Ms. Dauphinais
does not fall within the treating physician’s rule, and although the opinions of “other sources”
should be given “some consideration,” the ALJ is not required to give them controlling weight.
See Kohler v. Astrue, 546 F.3d 268-69 (2d Cir. 2008). Moreover, the question of whether or not
a claimant can work is reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d).
In the absence of opinion evidence on her functional limitations from her treating
psychiatrists, Plaintiff has relied upon her psychiatrists’ and Ms. Dauphinais’ treatment notes in
support of her challenge to the ALJ’s assignment of weight in the RFC. Plaintiff relies heavily
on Dr. Schenkel’s diagnosis of PTSD, dissociative identity disorder, social phobia, cannabis
dependence, and borderline personality, along with a single GAF score of 40 given by Dr.
Schenkel on his initial evaluation of Plaintiff on March 28, 2012. (Dkt. No. 15 at 24-27.)
It is well established that a mere diagnosis, without evidence of severity of symptoms and
functional limitations, does not mandate a finding of disability. See Prince, 514 F. App’x at 20;
Payne, 2013 WL 550677, at * 5 (“The mere existence of a diagnosis, however, is insufficient to
show that functional limitations are imposed as a result of the impairments.”).

the physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
28

Furthermore, a GAF score is only a snapshot of estimated functioning at the time the
score is assessed. See Schneider v. Colvin, No. 13-cv-0790 (MPS), 2014 WL 4269083, at * 4 (D.
Conn. Aug. 29, 2014) (“a GAF score is merely a ‘snapshot opinion of one or more doctors as to
an individual’s level of social, psychological and occupational function at a specific point in
time.’”) (citation omitted); Rock v. Colvin, 628 F. App’x 1, 4 n.3 (2d Cir. 2015) (“Because the
GAF score was properly discounted, we need not consider whether a GAF generally provides a
reliable basis for disability determinations

a proposition questioned by several courts, both

before and after the removal of the GAF metric from the fifth edition of the Diagnostic and
Statistical Manual of Mental Disorders.”) (collecting cases); Mainella v. Colvin, No. 13-CV2453 -JG, 2014 WL 183957, at * 5 (E.D.N.Y. Jan. 14, 2014) (“The Social Security
Administration issued a bulletin dated July 31, 2013, limiting use of GAF scores. At a basic
level, the Administration noted that the problem with using the GAF to evaluate disability is that
there is no way to standardize measurements and evaluation. . . . There are other problems: the
GAF score is not designed to predict outcomes, and the scores are so general that they are not
useful without additional supporting description and detail. . . . Generally, the guidance instructs
ALJ’s to treat GAF scores as opinion evidence; the details of the clinician’s description, rather
than a numerical range, should be used.”) (internal citation and punctuation omitted)). The Court
notes that the ALJ did consider a GAF score of 55 assessed by providers at CVPH Medical
Center on July 30, 2013, and found it to be consistent with those in Plaintiff’s treatment notes
and generally inconsistent with “markedly restrictive mental health symptoms and limitations.”11
11

Plaintiff was assessed a GAF score of 55 on July 30, 2012, at CVPH Medical Center
after having been brought there the previous night following a suspected suicide attempt. (T. at
469, 493.) Ms. Dauphinais assessed Plaintiff a GAF score of 56 on October 10, 2013. (T. at
29

(T. at 21.)
The ALJ did consider Plaintiff’s diagnosis as well as her treatment records in determining
her RFC. (T. at 20-22.) In doing so, he noted and found significant that although Plaintiff had an
established treatment history for bipolar disorder, generalized anxiety disorder, PTSD, and
dissociative identity disorder that pre-dated her May 15, 2010, onset of disability, her records
showed a gap in mental health treatment from July 2009 to 2012. (T. at 20-21, 24.)
The ALJ considered Plaintiff’s mental health treatment records after she had reestablished treatment at Clinton County Mental Health and noted that at her initial evaluation by
Dr. Schenkel on March 28, 2012, where she complained of symptoms of PTSD, depression,
anxiety, dissociation, and difficultly sleeping, Plaintiff was found to be alert, cooperative, and
coherent; her grooming and appearance appropriate and healthy; speech at a normal rate with no
evidence of delusion, psychotic signs, or cognitive deficits. (T. at 462-63.) Dr. Schenkel noted
that while Plaintiff initially appeared depressed, it looked more like fatigue as the evaluation
continued. (T. at 463.) Over the next several months, Plaintiff was started on a range of
medications, including Buspirone, Clonidine, Keppra, Paxil, and Wellbutrin with some reported
improvements. (T. 21, 464-65, 731-32, 747, 758-60.)
The Court also notes that on January 15, 2013, Plaintiff told Dr. Kokernot, to whom she
had been transferred, that Dr. Schenkel was helping her with problems of dissociation, anxiety,
and difficulty motivating herself, and she thought that the medications had been somewhat
helpful. (T. at 756.) Plaintiff reported that there were days when she had a lot of trouble getting
herself to do anything out of the house, but that she got herself out of the house a couple of times

723.)
30

a week to go to roller derby and most of the time felt better for doing it. Id. One of her main
complaints was difficulty sleeping. Id. Dr. Kokernot noted that he found Plaintiff’s hygiene to
be good; she was polite and cooperative; her mood was dysthymic and affect congruent; her
thought processes flowed logically; and she was having problems with dissociation and had not
yet seen an improvement in that since stopping the marijuana. (T. at 757.) While Plaintiff has
asserted that Dr. Kokernot continued with the same assessment as Dr. Schenkel and incorporated
Dr. Schenkel’s assessments in his 2013 reports, Dr. Kokernot’s subsequent treatment notes set
forth a diagnosis of PTSD, and they contain no reference to a GAF score. (T. at 752-54, 756,
758-60.)
On March 20, 2013, Dr. Kokernot reported that Plaintiff’s thought processes flowed
logically, and her thought content seemed to be feeling more empowered, especially with her
referee activities. (T. at 754.) Plaintiff was found to be tearful and depressed by Dr. Kokernot on
July 7, 2013, after she had stopped taking all of her medications. (T. at 753.) Dr. Kokernot
recommended that she go back on Nefazodone, and on September 4, 2013, Plaintiff reported to
Dr. Kokernot that she was satisfied with the medication but had trouble remembering to take it.
(T. at 752.) At that appointment, Dr. Kokernot found Plaintiff’s grooming to be fair, motor
activity normal, thought stream logical, thought content self-critical, oriented times 3,
intelligence average, concentration good, memory okay, insight and judgment good, and
interview behavior pleasant and cooperative. Id.
The ALJ also relied upon the psychiatric evaluation of consultative psychologist Dr.
Hartman, who opined that Plaintiff could follow, understand, and perform simple tasks; had mild
difficulty maintaining attention, learning new tasks, performing complex tasks independently,
31

and making appropriate decisions; moderate difficulty maintaining a regular schedule and
relating adequately with others; and had moderate to marked difficulty dealing with the normal
stressors of life. (T. at 22, 502.) The ALJ found that overall, Dr. Hartman’s assessment was
consistent with Plaintiff’s attention, concentration, behavior, and socials skills. (T. at 22.)
However, the ALJ found that Dr. Hartman’s assessments of moderate to marked
difficulties with stressors, moderate difficulty with maintaining a schedule, and mild difficulty
with attention and concentration and complex tasks, appeared to “overestimate limitations.” Id.
The ALJ determined that those assessments appeared to be heavily based on Plaintiff’s subjective
reports during the examination, which differed from reports elsewhere. Id. Specifically, the ALJ
noted in regard to social functioning, that Dr. Hartman recorded that Plaintiff appeared to have a
chip on her shoulder rather than appearing anxious and depressed in the social setting. Id.
According to the ALJ, while Plaintiff had told Dr. Hartman that her medications were not
helpful, that was inconsistent with her treatment notes. Id.
The ALJ considered that Dr. Hartman’s evaluation had shown that Plaintiff had proper
grooming, normal motor behavior, fluent but monotonous speech and mildly impaired attention,
concentration, and memory. Id. The ALJ noted that Plaintiff had reported that she did her own
cooking, cleaning, laundry, and money management, got along with her parents, and regularly
attended her counseling sessions. Id. The ALJ summarized that he had “afforded great weight to
Dr. Hartman’s assessment regarding attention, learning new tasks, relating adequately to others,
performing complex tasks, and performing simple tasks . . . and little weight to his assessment of
difficulties dealing appropriately with stress and maintaining a regular schedule.” Id.
The ALJ also afforded great weight to non-examining consultative State agency
32

psychologist Dr. Ferrin’s opinion that Plaintiff could understand and remember instructions,
sustain attention and concentration, and maintain appropriate relations with others. (T. at 22;
553-54.) The ALJ found that Dr. Hartman’s and Dr. Ferrin’s opinions were supported by
Plaintiff’s hearing testimony that she spent her days listening to music, working on crafts, and
watching television or movies, all of which required the ability to maintain concentration; and
her activities with the roller derby team. (T. at 22, 23.) See Baszto, 700 F. Supp. 2d at 249 (an
ALJ may rely on the medical opinions of both examining and non-examining consultants).
The ALJ summarized the rationale for Plaintiff’s RFC in the following manner:
Based upon the assessments of Dr. Hartman and Dr. Ferrin, the
claimant’s poor treatment history with “moderate” symptoms and
limitations, the claimant’s consistently normal mood, affect,
speech, and cognition in medical notes, and claimant’s own reports
of activities of daily living, I find that she can understand,
remember, and execute simple, detailed, and complex instructions,
though complex tasks under supervision; she can respond
appropriately to regular workplace changes and stressors; she can
interact with coworkers and supervisors without restriction; and
she can have no more than superficial contact with the general
public. The latter restriction is based on my consideration of the
claimant’s allegations of difficulties with crowds and strangers,
though I note that her testimony of difficulty interacting with
people in general is inconsistent with her mental status evaluations,
normal behavior in medical exams, and participation in roller derby
refereeing. As such, I have not found limitations concerning
coworkers or supervisors.
(T. at 23.)
In light of the foregoing, the Court finds that, contrary to Plaintiff’s argument, the ALJ
did not give too much weight to the opinions of Dr. Hartman and Dr. Ferrin on Plaintiff’s
functional limitations or fail to apply the treating physician’s rule. As Plaintiff appears to have
impliedly conceded in her Brief, there are no medical source statements in the record setting forth
33

Plaintiff’s treating psychiatrists’ opinions on her functional limitations, and the ALJ did consider
Plaintiff’s treatment notes in determining the RFC. (Dkt. No. 15 at 24; T. at 21.)
2.

Claim that the ALJ Erred in the RFC Because the Combination of Plaintiff’s
Mental Illness and Physical Impairments Prevented her From Doing Any Work

In Point IV of her Brief, Plaintiff argues that the ALJ erred in failing to find that her
mental illness alone, and her mental illness in combination with her non-severe physical
impairments of migraines, back pain, asthma, and ganglion cyst, prevent her from doing any
work. (Dkt. No. 15 at 31-37.) Again, the Court disagrees.
The Court finds that the evidence discussed above establishes that the ALJ’s RFC finding
with regard to Plaintiff’s mental impairments is supported by substantial evidence, including her
treatment notes, her own testimony regarding her crafting activities and refereeing roller derby,
and the opinions of Dr. Hartman and Dr. Ferrin. Furthermore, there is substantial evidence in the
record that Plaintiff’s non-severe physical impairments, whether considered separately or
together with Plaintiff’s mental impairments, had no limiting effect on Plaintiff’s RFC as
determined by the ALJ.
Plaintiff claims that the ALJ erred in failing to consider Plaintiff’s migraines, back pain,
asthma, and ganglion cyst, found to be non-severe at step-two, in determining her RFC. (Dkt.
No. 15 at 38.) “To determine RFC, the ALJ must consider all the relevant evidence, including
medical opinions and facts, physical and mental abilities, non-severe impairments, and
[p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue, No. No. 5:07-CV-0803
(LEK/VEB), 2009 WL 1940539, at * (N.D.N.Y. July 6, 2009) (citing 20 C.F.R. § 404.1545(be)), aff’d, 370 F. App’x 231 (2d Cir. 2010); see also Parker-Grose v. Astrue, 462 F. App’x 16, 18

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(2d Cir. 2012) (citing 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)) (remand for ALJ’s failure to
consider mental impairment found to be non-severe at step-two in determining RFC).
Although the ALJ indicated that he had given careful consideration to the entire record in
determining Plaintiff’s RFC, he did not expressly address Plaintiff’s non-severe impairments in
his RFC analysis. (T. at 20-23.) While the ALJ may not have specifically mentioned non-severe
impairments by name in his RFC analysis, the record as a whole shows that he did evaluate those
impairments and their possible limiting effects and found those limitations to be non-existent or
de minimis, thereby rendering any legal error on his part harmless. See Sherman v. Comm’r of
Soc. Sec., No. 7:14-CV-0154 (DNH), 2015 WL 5838454, at * 5 (N.D.N.Y. Oct. 7, 2015);
Darwin v. Colvin, No. 2:14-cv-0740 AC, 2015 WL 4078233, at * 6 (E.D. Cal. July 6, 2015)
(harmless error exists when it is “clear from the record that an ALJ’s error was inconsequential to
the ultimate nondisability determination.”) (citation and internal quotation marks omitted); Reilly
v. Comm’r of Soc. Sec., No. 1:13-CV-1096 (RHB), 2015 WL 1459509, at * 9 (W.D. Mich.
March 30, 2015) (“no purpose would be served and no different outcome would result by
remanding for the ALJ to revisit the RFC only to restate its analysis in step-two.”); Campbell v.
Colvin, No. 2:13CV431 (MSD), 2014 WL 3828220, at * 5 (E.D. Vir. Aug. 4, 2014) (failure by
ALJ to discuss plaintiff’s mental impairment was harmless error where the evidence did not
support functional limitations due to the impairment).
The ALJ’s step-two analysis and the record evidence discussed herein reveal the lack of
medical evidence showing functional limitation with regard to all of the non-severe impairments
and show that there is substantial evidence establishing that the non-severe impairments were
inconsequential to the RFC determination in this case.
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E.

The ALJ’s Credibility Determination
1.

Credibility Assessments

“It is the function of the Commissioner, not the reviewing courts, to resolve evidentiary
conflicts and to appraise the credibility of witnesses, including the claimant.” Aponte v. Sec’y,
Dept. of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citation and internal
punctuation omitted). To satisfy the substantial evidence rule, the ALJ’s credibility assessment
must be based on a two-step analysis of pertinent evidence in the record. 20 C.F.R. §§ 404.1529,
416.929; Genier, 606 F.3d at 49; SSR 96-7p, 1996 WL 374186, at * 5 (SSA July 2, 1996). The
ALJ is required to consider all of the evidence of record in making his credibility assessment.
Genier, 606 F.3d at 50; 20 C.F.R. § 416.929(a)(3).
First, the ALJ must consider “whether there is an underlying medically determinable
physical or mental impairment(s) . . . that could reasonably be expected to produce the claimant’s
pain or other symptoms.” SSR 96-7p, 1996 WL 374186, at * 2. This finding does not involve a
determination as to the intensity, persistence, or functionally limiting effects of the claimant’s
pain or other symptoms. Id. If no impairment is found that could reasonably be expected to
produce pain or other symptoms, the claimant’s pain or limitations cannot be found to affect the
claimant’s ability to do basic work activities. Id. An individual’s statements about her pain or
other symptoms are not enough by themselves to establish the existence of a physical or mental
impairment, or to establish that the individual is disabled. See Grewen v. Colvin, No. 1:11-CV829 (FJS), 2014 WL 1289575, at *4 (N.D.N.Y. Mar. 27, 2014) (while a “claimant’s subjective
complaints are an important part of the RFC calculus . . . subjective symptomatology by itself
cannot be the basis for a finding of disability . . . [and] [a] claimant must present medical
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evidence or findings that the existence of an underlying condition could reasonably be expected
to produce the symptoms alleged.”); see also 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1529,
416.929; SSR 96-7p, 1996 WL 374186 (S.S.A. July 2, 1996).
Once an underlying physical or mental impairment that could reasonably be expected to
produce the claimant’s pain or other symptoms has been established, the second step of the
analysis is for the ALJ to “consider the extent to which the claimant’s symptoms can reasonably
be accepted as consistent with other objective medical evidence and other evidence.” Genier,
606 F.3d at 49 (quoting 20 C.F.R. § 404.1529(a)); see also Poupore v. Astrue, 566 F.3d 303, 307
(2d Cir. 2009) (finding that claimant’s subjective complaints of pain were insufficient to
establish disability because they were unsupported by objective medical evidence tending to
support a conclusion that he has a medically determinable impairment that could reasonably be
expected to produce the alleged symptoms); see also SSR 96-7p, 1996 WL 374186, at *5 (“One
strong indication of the credibility of [an individual’s statements is their] consistency, both
internally and with other information in the case record.”). This includes evaluation of the
intensity, persistence, and limiting effects of the pain or other symptoms to determine the extent
to which they limit the claimant’s ability to perform basic work activities. Genier, 606 F.3d at
49.
The ALJ must consider all evidence of record, including statements the claimant or others
make about her impairments, her restrictions, daily activities, efforts to work, or any other
relevant statements the claimant makes to medical sources during the course of examination or
treatment, or to the agency during interviews, on applications, in letters, and in testimony during

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administrative proceedings. Id. (citation omitted).
A claimant’s “symptoms can sometimes suggest a greater level of severity than can be
shown by the objective medical evidence alone.” SSR 96-7p, 1996 WL 374186, at *3. When the
objective evidence alone does not substantiate the intensity, persistence, or limiting effects of the
claimant’s symptoms, the ALJ must assess the credibility of the claimant’s subjective complaints
by considering the record in light of the following symptom-related factors: (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 pain or symptoms; and (7) any other factors concerning
claimant’s functional limitations and restrictions due to pain symptoms. 20 C.F.R. §§
404.1529(c)(3)(i)-(iii), 416.929(c)(3)(i)-(vii).
2.

ALJ’s Assessment of Plaintiff’s Credibility

Plaintiff argues that the ALJ erred in determining that her statements concerning the
intensity, persistence, and limiting effects of her symptoms were not entirely credible. (Dkt. No.
15 at 38-43; T. at 20.) The Court disagrees, finding that the ALJ considered the relevant factors
and provided specific reasons which were supported by the record in his credibility finding.
Plaintiff testified that she suffers from flashbacks and nightmares and does not sleep well;
her anxiety and depression keep her from going out and doing things; and that her problems with
dissociation cause her to lose large chunks of time, sometimes whole days. (T. at 37.) Plaintiff
also testified that she was having migraines that lasted four or five hours twice a week, and that

38

she has trouble lifting things or holding her arms up because of back pain. (T. at 38-39.)
According to Plaintiff, she had to leave her last employment at Sam’s Club because she was
having anxiety attacks all the time at work and could not perform her duties. (T. at 40.) Her
anxiety is brought on by talking to new people and being around too many people; she gets
anxious riding in cars with people she does not know well, and her mother has to take her
shopping because she has full blown panic attacks in stores.12 (T. at 40, 43, 49.)
In assessing Plaintiff’s credibility, the ALJ considered Plaintiff’s testimony that her
medications were helpful. (T. at 21, 39-40, 750, 752-53, 756-58.) The ALJ also considered the
medical evidence suggesting that Plaintiff was overstating her limitations. (T. at 21-22.) In
addition, he considered Plaintiff’s activities of daily life, which included knitting, crocheting,
journaling and story writing, and helping her mother with her day care business. (T. at 19, 37,
462, 502, 750, 754, 756.) The ALJ noted that Plaintiff cared for her own personal needs and did
her own cooking, cleaning, laundry, and money management; got along well with her parents;
spent time with a close friend; and refereed roller derby. (T. at 18-19, 21-22, 38, 368, 462, 502,
752-54, 756-57.) In addition, in his step-two analysis discussed above, the ALJ considered the
medical evidence that suggested Plaintiff was overstating the severity of her back pain and
migraines in her testimony. (T. at 17-18.) The foregoing establishes that the ALJ did not err in
his credibility assessment, and that his findings are supported by substantial evidence.
WHEREFORE, it is hereby
12

The ALJ gave consideration to Plaintiff’s testimony regarding her difficulties with
crowds and strangers and with interacting with people by including in her RFC that she can have
no more than superficial contact with the general public, even though he found her testimony to
be inconsistent with her mental status evaluations, normal behavior in medical exams, and
participation in roller derby. (T. at 23.)
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ORDERED that the Commissioner’s decision is affirmed and Defendant’s motion for
judgment on the pleadings is GRANTED and the complaint (Dkt. No. 1) is DISMISSED.

Dated: September 27, 2016
Syracuse, New York

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