Boyer v. Colvin

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Boyer's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 3/31/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TAMMIE BOYER,
8:16-cv-41
(GLS)

Plaintiff,
v.
NANCY BERRYHILL,1
Acting Commissioner of
Social Security,

Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Mark A. Schneider
57 Court Street
Plattsburgh, NY 12901

MARK A. SCHNEIDER, ESQ.

FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

KRISTINA D. COHN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

1

The Clerk is directed to amend the caption and substitute Nancy Berryhill as the
Acting Commissioner of Social Security. See Fed. R. Civ. P. 25(d).

1

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Tammie Boyer challenges the Commissioner of Social
Security’s denial of supplemental security income (SSI), seeking judicial
review under 42 U.S.C. §§ 405(g) and 1383(c). (Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Boyer’s
arguments, the Commissioner’s decision is affirmed.
II. Background
On March 30, 2012, Boyer filed applications for DIB and SSI under
the Social Security Act (“the Act”). (Tr.2 at 165, 166, 259-69.) After her
applications were denied, (id. at 170-77), Boyer requested a hearing before
an Administrative Law Judge (ALJ), (id. at 182-87), which was held on
March 28, 2014 and continued on July 17, 2014, (id. at 27-88). At the
March 2014 hearing, Boyer amended her disability onset date to April 19,
2011 and withdrew her DIB application. (Id. at 51-55.) On July 29, 2014,
the ALJ issued an unfavorable decision finding Boyer ineligible for SSI and
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt.

No. 10.)

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denying the requested benefits, (id. at 9-26), which became the
Commissioner’s final determination upon the Appeals Council’s denial of
review, (id. at 1-6).
Boyer commenced this action by filing her complaint on January 12,
2016 wherein she sought review of the Commissioner’s determination.
(See generally Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 9, 10.) Each party,
seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 13, 14.)
III. Contentions
Boyer contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 13 at 21-35.)
Boyer asserts that the ALJ erred by not finding that her impairments met
listing 12.04 or 12.06. (Id. at 29-31.) Next, Boyer argues that the ALJ
failed to properly weigh the opinion of her treating psychiatrist. (Id. at 2129.) Additionally, Boyer contends the ALJ erred by failing to credit her
testimony. (Id. at 31-34.) Finally, Boyer submits that the ALJ erred by
presenting the vocational expert (VE) with an inaccurate hypothetical
residual functional capacity (RFC). (Id. at 34-35.) In response, the
Commissioner asserts that the ALJ’s decision is legally sound and
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supported by substantial evidence. (Dkt. No. 14 at 2-17.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 13 at 2-18; Dkt. No. 14 at 1; Tr. at 15-21.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard, the court refers the parties to its previous
decision in Christiana v. Comm’r of Soc. Sec. Admin., No. 1:05-CV-932,
2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).
VI. Discussion
A.

Listings 12.04 & 12.06
First, Boyer contends that the ALJ erred by failing to find that her

post-traumatic stress disorder (PTSD) and depression met the criteria of
listing 12.04 for depressive, bipolar and related disorders or of listing 12.06
for anxiety and obsessive-compulsive disorders. (Dkt. No. 13 at 29-31.)
The Commissioner counters that Boyer failed to prove she had marked
limitations in her activities of daily living, social functioning, or maintaining
concentration or experienced repeated episodes of decompensation. (Dkt.
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No. 14 at 10-13.)
At step three of the disability evaluation, the ALJ is required to
determine whether the claimant’s impairment(s) meet or equal an
impairment listed in 20 C.F.R. pt. 404, subpt. P, app.1. See 20 C.F.R.
§ 416.920(d). To qualify, the claimant’s impairments must satisfy all of the
medical criteria of the particular listing. See id. § 416.925(c)(3). If the
claimant’s impairments meet a particular listing, such impairment is “severe
enough to prevent a person from doing any gainful activity.” Id.
§ 416.925(a). To establish disability under listings 12.04 and 12.06, a
claimant must prove, among other things, that she suffers from “at least
two of the following: 1. [m]arked restriction of activities of daily living; or 2.
[m]arked difficulties in maintaining social functioning; or 3. [m]arked
difficulties in maintaining concentration, persistence, or pace; or 4.
[r]epeated episodes of decompensation, each of extended duration.” 20
C.F.R. pt. 404, app. 1 §§ 12.04(B), 12.06(B).
The ALJ found that Boyer had mild restrictions in daily living,
moderate difficulties in social functioning, moderate difficulties regarding
concentration, persistence, or pace, and no extended episodes of
decompensation. (Tr. at 15-16.) In making his finding, the ALJ partially
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relied on the medical source statement from Jane Maxwell, Boyer’s treating
psychiatrist. (Id. at 16.) There, Dr. Maxwell opined that Boyer had
moderate limitations in understanding, remembering, and carrying out
instructions, maintaining attention and concentration, and making simple
decisions. (Id. at 344.) In addition, Dr. Maxwell found that Boyer was very
limited in interacting appropriately with others, maintaining socially
appropriate behavior, and functioning in a work setting at a consistent
pace. (Id.) Boyer contends that Dr. Maxwell’s findings dictate a conclusion
that she suffered marked limitations in at least two of the required areas.
(Dkt. No. 13 at 31.) While the ALJ afforded significant weight to Dr.
Maxwell’s opinion, (Tr. at 19), he found that her notes indicate that Boyer
improved with rehabilitation and that the record did not support that Boyer
had more than a moderate limitation for social functioning, (id.). For this
same reason, the ALJ determined that Boyer had the ability to perform
simple tasks. (Id.)
Moreover, the ALJ’s determination with respect to each of the
relevant areas of functioning is supported by substantial evidence. Boyer’s
own reported activities indicate that she is able to perform light chores,
cook, and care for her personal hygiene. (Id. at 70, 72.) In addition, G.
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Kleinerman, the state psychological examiner, who the ALJ afforded
significant weight regarding Boyer’s activities of daily living, opined that
Boyer had only mild restrictions in this area. (Id. at 428.) With respect to
social functioning, although Boyer suffered difficulties, treatment notes and
Boyer’s own reported activities reveal that she had a strong relationship
with her family, was in a long term relationship with her boyfriend, attended
church weekly, volunteered at a food pantry where she knew and
interacted with other people, and related adequately during examinations.
(Id. at 65, 319, 348, 352, 355, 357, 386, 388, 499, 503, 534, 573-74, 577,
628, 631, 687.) Finally, substantial evidence supports that Boyer had only
moderate difficulties regarding her concentration, persistence, or pace.
Boyer testified that she has difficulty with her long term memory, but has
no difficulty with her short term memory. (Id. at 70.) Additionally,
treatment notes reveal that Boyer has logical and organized thoughts and
she was able to make decisions regarding her course of treatment. (Id. at
319, 321, 352, 355, 357, 363, 366, 382, 384, 386, 388, 499, 503, 574, 577,
628, 631.) Moreover, Boyer fails to present any evidence of extended
episodes of decompensation. In light of the foregoing, the ALJ’s
determination that the listing were not met is supported by substantial
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evidence and free from legal error.
B.

Treating Physician Rule
Next, Boyer contends that the ALJ erred in applying the treating

physician rule because she failed to credit her treating psychiatrist’s
opinion. (Dkt. No. 13 at 21-29.) The Commissioner disagrees and submits
that the ALJ properly evaluated the medical opinion evidence. (Dkt. No. 14
at 5-10.)
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 416.927(c). Controlling
weight will be given to a treating physician’s opinion that is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Id. § 416.927(c)(2);
see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Unless
controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length and nature of a treatment relationship; the
frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. See 20 C.F.R. §
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416.927(c). The ALJ must provide “‘good reasons’ for the weight given to
the treating source’s opinion.” Petrie v. Astrue, 412 F. App’x 401, 407 (2d
Cir. 2011) (citations omitted). “Nevertheless, where ‘the evidence of record
permits [the court] to glean the rationale of an ALJ’s decision,’” it is not
necessary that the ALJ “‘have mentioned every item of testimony
presented to him or have explained why he considered particular evidence
unpersuasive or insufficient to lead him to a conclusion of disability.’” Id. at
407 (citation omitted).
Here, the ALJ afforded significant weight to treating psychiatrist Dr.
Maxwell’s opinion that Boyer was moderately limited in her ability to
maintain attention and concentration. (Tr. at 19.) However, the ALJ
assigned little weight to Dr. Maxwell’s opinion that Boyer was very limited in
social functioning because treatment records indicate that she improved
with rehabilitation. (Id. at 19.) Boyer asserts the ALJ erred because Dr.
Maxwell’s medical source statement actually indicate that she is severely
limited in these functional areas. (Dkt. No. 13 at 28.) While this may be so
with respect to Boyer’s social functioning, the ALJ gave little weight to that
opinion because it was inconsistent with Dr. Maxwell’s own treatment
notes. (Tr. at 19, 575, 578-79, 583, 588); see Halloran, 362 F.3d at 32. As
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for Boyer’s attention and concentration, Dr. Maxwell expressly indicated in
her medical source statement that Boyer was only moderately limited in
this area. (Tr. at 344.) Thus, the ALJ did not err in his evaluation of Dr.
Maxwell’s medical opinion.
Moreover, the ALJ’s RFC determination is supported by substantial
evidence. See 20 C.F.R. § 416.945(a)(1) (A claimant’s RFC “is the most
[he] can do despite [his] limitations.”) The ALJ found that Boyer had the
ability to perform light work with limitations for standing and walking for
intervals of one hour, occasionally reaching overhead with her left upper
extremity, occasionally completing some complex tasks, working in a small
group environment where she can have superficial transaction contact with
co-workers and the public, and she must avoid heights, vibrations, driving,
and operating moving mechanical parts. (Tr. at 16-17.) In making this
finding, the ALJ relied on Boyer’s testimony, which he partially credited.
See infra Part VI.C; (Tr. at 17.) Additionally, the ALJ gave great weight to
the opinion of Barry Kilbourne, the state internal medical consultant, who
examined Boyer and found minimal arthritis in her left knee and that her
seizure disorder would limit her driving. (Id. at 17-18, 438-39.) Treatment
notes also reveal that Boyer’s seizure disorder was medically managed.
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(Id. at 18, 630.) Regarding Boyer’s mental impairments, the ALJ gave
partial weight to Dr. Maxwell’s opinion, see supra Part VI.B, and also
relied in part on Dr. Kleinerman’s opinion that Boyer had moderate
limitations for realistic goal setting but otherwise presented with no other
significant work-related limitations. (Id. at 19, 432-35.) Accordingly, the
ALJ’s RFC determination is supported by substantial evidence.
Boyer also contends the ALJ erred by failing to consider her low
Global Assessment of Functioning (GAF) scores provided by Dr. Maxwell.
(Dkt. No. 13 at 28.) Dr. Maxwell found that Boyer’s GAF scores ranged
from forty-six to fifty-three. (Tr. at 574, 578, 589, 593, 597, 601.) While it
is true that GAF scores are relevant to an ALJ’s RFC determination, see
Parker-Grose, 462 F. App’x 16, 17-18 (2d Cir. 2012); Ortiz Torres v. Colvin,
939 F. Supp. 2d 172, 184 (N.D.N.Y. 2013), the ALJ need not explicitly
mention the GAF score, see Ortiz Torres, 939 F. Supp. 2d at 184 (“This
[c]ourt rules that the [ALJ’s] failure to discuss the [GAF] scores does not
constitute an error worthy of remand.”); Dwyer v. Astrue, 800 F. Supp. 2d
542, 548 (S.D.N.Y. 2011) (explaining that “the ALJ’s failure to mention [the
claimant’s] GAF of [fifty] is insufficient to conclude that she failed to
consider it”). Here, the court is satisfied that the ALJ properly considered
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all of the evidence available to him. The ALJ thoroughly discussed the
opinion and progress notes of Dr. Maxwell, which reflect Boyer’s lowest
score. As such, the ALJ’s failure to state Boyer’s scores does not amount
to reversible legal error.
Finally, Boyer submits that the ALJ erred by failing to supplement the
record with an additional consultative psychological examination. (Dkt. No.
13 at 29.) However, the choice to order a consultative examiner is
discretionary, see 20 C.F.R. § 416.919a, and, here, the ALJ found that
treatment notes and opinions from numerous mental health practitioners
regarding Boyer’s mental impairments sufficed to make a finding, (Tr. at
343-50, 446-77, 565-625, 682-719). Again, the ALJ did not commit legal
error.
C.

Credibility Finding
Boyer also objects to the credibility finding because ALJ did not make

a finding that her testimony was inconsistent with the record. (Dkt. No. 13
at 31-34.) The Commissioner counters that the ALJ properly found that
Boyer’s subjective complaints were not credible. (Dkt. No. 14 at 14-15.)
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
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the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotations marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 1996 WL
374186, at *4 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No.
1:10CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20
C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi)).
Boyer contends that the ALJ did not make a finding that her
testimony was inconsistent with other record evidence. (Dkt. No. 13 at 34.)
That is simply not the case. The ALJ found Boyer’s allegations regarding
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her mental impairments to be partially credible because she had a
documented history of treatment for depression, anxiety, and substance
abuse. (Tr. at 20.) However, the ALJ discredited some of Boyer’s
testimony because it was inconsistent with Dr. Maxwell’s treatment records
demonstrating improvement after rehabilitation and medication. (Id.)
Similarly, the ALJ determined that Boyer’s allegations of physical
impairments were partially credible because she had pain which eventually
required surgery. (Id.) Again, the ALJ discredited some of Boyer’s
testimony about the severity of her physical impairments because there
were no significant treatments following her surgery and she was not
prescribed medication for the alleged pain. (Id.) Boyer also testified that
she could walk and stand for one hour at a time for up to six hours in an
eight-hour work day. (Id.) Accordingly, the ALJ did not err in his credibility
findings.
D.

Step Five Determination
Finally, Boyer argues that the ALJ erred by presenting an inaccurate

hypothetical RFC to the VE. (Dkt. No. 13 at 34-35.) The Commissioner
responds that the ALJ’s step five determination was supported by
substantial evidence. (Dkt. No. 14 at 15-16.)
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At step five, a “limited burden” shifts to the Commissioner to “show
that there is work in the national economy that the claimant can do.”
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). ALJs may rely on the
testimony of VEs to support their findings. See McIntyre v. Colvin, 758
F.3d 146, 151 (2d Cir. 2014). When utilizing a VE, the ALJ poses
hypothetical questions which must reflect the full extent of the claimant's
capabilities and impairments to provide a sound basis for the VE’s
testimony. See De Leon v. Sec’y of Health & Human Servs., 734 F.2d
930, 936 (2d Cir. 1984). When a hypothetical question meets that
requirement, and is supported by substantial evidence, VE testimony
suffices as substantial evidence to support a step five finding. See
Mancuso v. Astrue, 361 F. App’x 176, 179 (2d Cir. 2010); see also Salmini,
371 F. App’x 109, 114 (2d Cir. 2010); Butts v. Barnhart, 388 F.3d 377, 384
(2d Cir. 2004). Conversely, VE testimony given in response to a
hypothetical question that does not present the full extent of a claimant’s
impairments, limitations, and restrictions, or is otherwise inadequate,
cannot constitute substantial evidence to support a conclusion of no
disability. See Pardee v. Astrue, 631 F. Supp. 2d 200, 211-12 (N.D.N.Y.
2009); McAuliffe v. Barnhart, 571 F. Supp. 2d 400, 407 (W.D.N.Y. 2008).
15

Boyer contends that the ALJ should have accepted the VE’s
testimony that an individual who missed more than two days of work per
month and was off task more than ten percent of the time would have
limited employment options. (Dkt. No. 13 at 35; Tr. at 40.) The VE’s
statement was in response to a question posed by Boyer’s attorney. (Tr. at
40.) This question, however, did not reflect the RFC determination of the
ALJ, which found that Boyer could perform light work with certain nonexertional limitations. (Id. at 16-17.) As noted above, see supra Part VI.BC, the court found that the RFC determination is supported by substantial
evidence, thus, it necessarily rejects Boyer’s VE challenge. See Wavercak
v. Astrue, 420 F. App’x 91, 95 (2d Cir. 2011); Salmini, 371 F. App’x at 114
(“Because we find no error in the ALJ’s RFC assessment, we likewise
conclude that the ALJ did not err in posing a hypothetical question to the
[VE] that was based on that assessment”). Rather, the ALJ’s hypothetical
questions directed to an RFC of light work with limitations for asthma was
not defective or deficient as it accounted for Boyer’s limitations. (Tr. at 3237); see Walker v. Colvin, No. 5:12-cv-483, 2013 WL 5434065, at *12
(N.D.N.Y. Sept. 27, 2013) (finding “[a] valid hypothetical question need only
incorporate limitations that an [ALJ] finds credible and which are supported
16

by substantial evidence”). Accordingly, the ALJ properly relied on the VE
testimony relevant to his RFC determination and his finding of no disability
at step five is supported by substantial evidence.
E.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence and free from
legal error.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Boyer’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 31, 2017
Albany, New York

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