Zukowski v. Colvin
MEMORANDUM-DECISION AND ORDER: For the reasons stated herein, it is hereby ORDERED that plaintiff Stephen Edward Zukowski's motion for judgment on the pleadings (Dkt. No. 11 ) is DENIED. It is further ORDERED that the Commissioner's motion for judgment on the pleadings (Dkt. no. 18 ) is GRANTED. Signed by Magistrate Judge Christian F. Hummel on 3/13/2018. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Schneider & Palcsik
57 Court Street
Plattsburgh, New York 12901
Attorneys for Plaintiff
MARK A. SCHNEIDER, ESQ.
Social Security Administration
Office of Regional General Counsel,
26 Federal Plaza, Rm. 3904
New York, New York 10278
Attorneys for Defendant
HEETANO SHAMSOONDAR, ESQ.
CHRISTIAN F. HUMMEL,
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION & ORDER1
Plaintiff Stephen Zukowski brings this action pursuant to 42 U.S.C. § 405(g)
seeking review of a decision by the Commissioner of Social Security (“Commissioner”
or “defendant”) denying his applications for supplemental security income benefits
Plaintiff’s counsel sued as defendant Carolyn Colvin, Commissioner of Social Security. The
Clerk of the Court is directed to update the caption and docket to reflect the defendant as Nancy A.
Berryhill, Acting Commissioner of Social Security.
(“SSI”) and disability insurance benefits. Dkt. No. 1 (“Compl.”). Plaintiff moves for a
finding of disability, and the Commissioner cross moves for a judgment on the
pleadings. Dkt. Nos. 11, 18. For the following reasons, the determination of the
Commissioner is affirmed, the Commissioner’s motion for judgment on the pleadings is
granted, and plaintiff’s motion for judgment on the pleadings is denied.2
Plaintiff, born on June 16, 1967, graduated from high school and completed
some college credits. T 41-43.3 Plaintiff lives with his fiancée in a home owned by his
parents. Id. at 42. Plaintiff last worked in 2012 doing road construction. Id. at 43. He
was “let go” from this job. Id. Before that, plaintiff worked as a firefighter for eleven
years. Id. On June 18, 2013, plaintiff filed a Title II application for a period of disability
and disability insurance benefits and a Title XVI application for supplemental security
income. Id. at 131-32; 133-38. These applications were denied initially on October 3,
2013. Id. at 58-87. Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”) on December 13, 2013, and a hearing was held before ALJ Carl E. Stephan on
March 17, 2015. Id. at 95-96, 38-57. T he ALJ determined that plaintiff was not
disabled. Id. at 14-37. Plaintiff’s timely request for review by the Appeals Council was
Parties consented to review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt.
References to the administrative transcript will be cited as “T.” The Court will cite to the page
numbers in the bottom right-hand corner of the administrative transcript. All other citations to documents
will be to the pagination generated by the Court’s electronic filing system, CM/ECF, and will reference the
page numbers at the documents’ header, and not the pagination of the original documents.
denied, making the ALJ’s findings the final determination of the Commissioner. Id. at
12-13; 1-5. Plaintiff commenced this action on December 27, 2016. Dkt. No. 1
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner's determination will only be reversed if the correct
legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning that
in the record one can find “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations
omitted)). The substantial evidence standard is “a very deferential standard of review
. . . . [This] means once an ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm'r, 683
F.3d 443, 448 (2d Cir. 2012) (emphasis in original)(internal quotation marks omitted).
Where there is reasonable doubt as to whether the Commissioner applied the proper
legal standards, the decision should not be af firmed even though the ultimate
conclusion reached is arguably supported by substantial evidence. See Martone v.
Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987)). However, if the correct legal standards were applied and the
ALJ’s finding is supported by supported by substantial evidence, such finding must be
sustained, “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation
omitted); Venio v. Barnhart, 213 F.3d 578, 586 (2d Cir. 2002).
B. Determination of Disability4
“Every individual who is under a disability shall be entitled to a disability . . .
benefit . . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available
to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
Although the SSI program has special economic eligibility requirements, the requirements for
establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3)(SSI) and Title II, 42 U.S.C. § 423(d) (Social
Security Disability Insurance (“SSDI”)), are identical, so that “decisions under these sections are cited
interchangeably.” Donato v. Sec‘y of Health and Human Services, 721 F.2d 414, 418 n.3 (2d Cir. 1983)
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based [upon] objective medical facts, diagnoses or medical opinions inferable from
[the] facts, subjective complaints of pain or disability, and educational background, age,
and work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 W L 399458,
at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a ‘severe impairment’ which
significantly limits his [or her] physical or mental ability to do
basic work activities.
If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which is listed in Appendix 1 of the regulations.
If the claimant has such an impairment, the [Commissioner]
will consider him [or her] disabled without considering
vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who
is afflicted with a ‘listed’ impairment is unable to perform
substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity to
perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). The plaintiff bears the initial burden of proof to
establish each of the first four steps. See DeChirico v. Callahan,134 F.3d 1177, 117980 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth
step, the burden shifts to the Commissioner to prove that the plaintiff is still able to
engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).
When a claimant alleges a mental impairment, the ALJ is required to engage in a
“special technique” at step two of the sequential analysis, set forth in 20 C.F.R. §§
404.1520a(b)-(e), 416.920a(b)-(e), 416.920a(b)-(e). See Showers v. Colvin, 13-CV1147 (GLS/ESH), 2015 WL 1383819, at *4 (N.D.N.Y. Mar. 25, 2015) (citing Kohler v.
Astrue, 546 F.3d 250, 265-66 (2d Cir. 2008). T his technique “helps administrative
judges determine at Step 2 of the sequential evaluation whether claimants have
medically-determinable mental impairments and whether such impairments are severe.”
Showers, 2015 WL 1383819, at *4. Thus, under this technique, an ALJ is to assess the
“functional effects of mental impairments . . . . Administrative law judges assessing
residual functional capacity ‘cannot simply rely on the limitations articulated in the
severity analysis . . . , but must instead provide a more detailed assessment by
itemizing various functions contained in the broad categories found in paragraphs B
and C of the adult mental disorders listings in 12.00 of the Listing of Impairments.” Id.
(quoting Ladue v. Astrue, No. 12-CV-600 (GLS), 2013 W L 421508, at *3 n.2 (N.D.N.Y.
Feb. 1, 2013) (additional internal quotation marks and emphasis omitted).
An ALJ is to assess the degree of functional limitation, or the impact the
claimant's mental limitations have on his or her "ability to function independently,
appropriately, effectively, and on a sustained basis." 20 C.F.R. § 404.1520a(c). The
ALJ must assess the plaintiff's degree of functional limitation in four functional areas:
(1) "[a]ctivities of daily living," (2) "social functioning," (3) "concentration, persistence,
and pace," and (4) "episodes of decompensation." Id. §§ 404.1520a(c)(3),
416.920a(c)(3). The ALJ must "rate" the functional degree of limitation in each of these
four areas as "[n]one, mild, moderate, marked [or] extreme." Id. §§ 404.1520a(c)(4),
416.920a(c)(4). If the ALJ finds the degree of limitation in each of the first three areas
to be "mild" or better and identifies no episodes of decompensation, the ALJ "will
generally conclude" that the plaintiff's impairment is "not severe." Id. §
404.1520a(d)(1). Where the plaintiff's mental impairment is "severe," the ALJ must
"determine if it meets or is equivalent in severity to a listed mental disorder." Id. §
404.1520a(d)(2). "If yes, then the [plaintiff] is ‘disabled.'" Petrie, 412 F. App'x at 408
(quoting 20 C.F.R. § 404.1520a(d)(2)).
Where a claimant demonstrates alcohol and/or substance abuse problem s, the
ALJ must assess whether the substance abuse disorder is a “contributing factor”
material to the determination of disability. See 42 U.S.C. §§ 423(d)(2)(c), 1382(a)(3)(J);
SSR 13-2p, 2013 WL 621536. This is because the SSA provides that “[a]n individual
shall not be considered . . . disabled . . . if alcoholism or drug addition would be a
contributing factor material to the Commissioner’s determination that the individual is
disabled.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012) (citing 42
U.S.C. § 1392(c)(a)(3)(J)). Thus, if the ALJ finds that the claimant is disabled under the
standard sequential evaluation analysis, and there is medical evidence of the plaintiff's
drug or alcohol use disorder, the ALJ must then determine whether he would still find
the plaintiff disabled if he stopped using drugs or alcohol. See DiBenedetto v. Colvin,
No. 5:12-CV-1528, 2014 WL 1154093, at *2 (N.D.N.Y. Mar. 21, 2014). In so assessing,
the ALJ must determine which, if any, of the claimant's limitations would remain if the
claimant were to stop the drug or alcohol use and if any of the remaining limitations
would render the claimant disabled. See 20 C.F.R §§ 404.1535(b)(2)(i),
416.935(b)(2)(i); 404.1535(b)(2)(ii), 416.935(b)(2)(ii). As part of his burden of
demonstrating disability, the plaintiff must show that his drug addiction or alcoholism is
not material to his disability. See Cage, 692 F.3d at 123-25.
“In addition, 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.” Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y.
2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a 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
Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If supported by substantial
evidence, the Commissioner's finding must be sustained “even where substantial
evidence may support the plaintiff's position and despite that the court's independent
analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992). The Court must afford the Commissioner's
determination considerable deference, and may not substitute “its own judgment for
that of the [Commissioner], even if it might justifiably have reached a different result
upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037,
1041 (2d Cir. 1984).
C. ALJ Decision
Applying the five-step disability sequential evaluation, the ALJ determined that
plaintiff had not engaged in substantial gainful activity since August 1, 2012, the alleged
onset date. T 20. The ALJ found at step two that plaintiff had the severe impairments
of bipolar disorder, substance-induced mood disorder, and alcohol dependence. Id. At
step three, the ALJ determined that plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 22. The ALJ then
based upon all of the impairments, including the substance
use disorder, the claimant has the residual functional
capacity to perform a full range of work at all exertional
levels, but with the following non-exertional limitations: an
ability to understand and execute simple work-related
instructions occasionally; an ability to interact with the public
occasionally; an ability to interact with co-workers and
supervisors less than occasionally; and an inability to adapt
to changes in the workplace or workplace tasks.
Id. at 24.
At step four, the ALJ determined that plaintiff was unable to perform past
relevant work. Id. Considering plaintiff’s RFC, age, education, and work experience,
together with the Medical-Vocational Guidelines, the ALJ further concluded that there
were “no jobs that exist in significant numbers in the national economy that plaintiff can
perform.” Id. Thus, the ALJ performed an analysis whether, “if claimant stopped the
substance abuse, the remaining limitations would cause more than a minimal impact on
the claimant’s ability to perform basic work activities.” Id. at 26.
Under this secondary analysis, the ALJ concluded that if plaintiff stopped
abusing alcohol, “the remaining limitations would not meet or medically equal the
criteria of listing 12.04.” T at 26. The ALJ next determined that if plaintiff stopped
abusing alcohol, he would
have the residual functional capacity to perform a full range
of work at all exertional levels, but with the following nonexertional limitations: the ability to understand and execute
simple routine tasks; the ability to interact with the public, coworkers and supervisors on a regular routine basis; and the
ability to accept changes to the workplace and workplace
Id. at 27. Were plaintiff to stop abusing alcohol, the ALJ determined that plaintiff “would
be able to perform past relevant work as a road construction worker” as it “does not
require the performance of work-related activities precluded by the residual functional
capacity the claimant would have if he stopped the substance use.” Id. at 41. T hus,
the ALJ concluded that plaintiff’s substance abuse was “a contributing factor material to
the determination of disability, because the claimant would not be disabled if he
stopped the substance use.” Id. As the ALJ concluded as such, he f ound that plaintiff
has not been under a disability within the meaning of the Social Security Act from the
alleged onset date to the date of the decision. Id.
Plaintiff argues that the ALJ erred in (1) failing to accord sufficient weight to
plaintiff’s treating providers in violation of the treating physician rule, (2) determining
that plaintiff’s alcohol use was material to the determination of disability, and
(3) concluding that plaintiff’s testimony was not credible. Dkt. No. 11. The
Commissioner argues that the ALJ’s determination was based on correctly-applied
standards and is supported by substantial evidence. Dkt. No. 18.
1. Did the ALJ Properly Weigh the Opinion Evidence?
Plaintiff argues that the ALJ “erroneously rejected the opinions of treating
physicians Dr. Sleszynski and Dr. Rigeuer that Mr. Zukowski was disabled by his mental
illness (and that alcohol dependence was not a material factor).” Dkt. No. 11 at 32.
Further, plaintiff contends that the ALJ did not give “sufficient weight to the findings and
conclusions of Drs. Kim, Ghaemi, and Lutinski”; “long time treating therapist David
Canton”; and “treating therapists Paul LaMora and Kathy Sajor and prescribing nurse
practitioner Elnora Mills.” Id. Plaintiff additionally argues, in a footnote, that the
Appeals Council erred “by not explaining what weight it gave to Dr. Keith’s retrospective
opinions regarding Mr. Zukowski’s mental impairments.” Id. The Commissioner
contends that the ALJ properly evaluated the medical opinion evidence. Dkt. No. 18 at
Generally, an ALJ is to give the opinion of a treating physician controlling weight
as to the nature and severity of a claimant’s impairments as long as the opinion “‘is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the claimant’s] case record.’”
Foxman v. Barnhart, 157 F. App’x 344, 346 (2d Cir. 2005) (summary order) (quoting 20
C.F.R. § 404.1527(d)(2)); SSR 96-2p, Titles II and XVI: Giving Controlling Weight to
Treating Source Medical Opinions, 1996 W L 374188, at *1-2 (SSA July 2, 1996). As
the Second Circuit has made clear:
“Although the treating physician rule generally requires
deference to the medical opinion of a claimant’s treating
physician, the opinion of the treating physician is not
afforded controlling weight where . . . the treating physician
issued opinions that are not consistent with other substantial
evidence in the record, such as the opinions of other
Kennedy v. Astrue, 343 F. App’x 719, 721 (2d Cir. 2009) (summary order) (quoting
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).
Where controlling weight is not afforded, an ALJ is to consider certain “factors” in
assessing the weight to give to the treating physician’s opinion, including: (1) “the
frequency of the examination and the length, nature and extent of the treatment
relationship”; (2) “the evidence in support of the treating physician’s opinion”; (3) “the
consistency of the opinion with the record as a whole”; (4) “whether the opinion is from
a specialist”; and (5) “other factors brought to the Social Security Administration’s
attention that tend to support or contradict the opinion.” Halloran, 362 F.3d at 32
(quoting 20 C.F.R. § 404.1527(d)(4)). However, an ALJ is not required to list and
discuss explicitly each factor or explain the weight given, and courts generally will not
remand where “‘the substance of the treating physician rule was not traversed.’”
Kennedy, 343 F. App’x at 721 (quoting Halloran, 362 F.3d at 32)); Britt v. Astrue, 486 F.
App’x 161, 164 (2d Cir. 2012)) (summary order). Although the Second Circuit “do[es]
not fail to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician’s opinion,” remand for reconsideration may be
unnecessary where “‘application of the correct legal principles to the record could lead
[only to the same] conclusion.’” Brogan-Dawley v. Astrue, 484 F. App’x 632, 633 (2d
Cir. 2012) (summary order) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.
2010)); Halloran, 362 F.3d at 33. An ALJ is to discuss not only the inconsistencies
between the treating physician and record evidence but also its consistency with other
evidence. See Foxman, 157 F. App’x at 347. The question before the district court is
not whether it would resolve the conflicting evidence in the same way as the
Commissioner, but whether the Commissioner's resolution of the conflict was supported
by “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
The opinions of non-acceptable sources, 5 or “other sources,” “may be used ‘to
show the severity of the individual’s impairments(s) and how it affects the individual’s
ability to function.’” Beckers v. Colvin, 38 F. Supp. 3d 362, 371 (W .D.N.Y. 2014)
(quoting SSR 06-3p, 2006 WL 2329939, at *3, Titles II and XVI: Considering Opinions
and Other Evidence From Sources Who Are Not “Acceptable Medical Sources” in
Disability Claims (S.S.A. Aug. 9, 2006)). “SSR 06-03p states that an ALJ should apply
the same factors to analyze the opinion of a non-acceptable medical source as would
“Medical sources who are not ‘acceptable medical sources[ ]’ [include] nurse practitioners,
physician assistants, licensed clinical social workers, chiropractors, audiologists, and therapists.” SSR 063p, 2006 WL 2329939, at *2.
be used to analyze the opinion of an acceptable medical source.” Id. (citing SSR
06-3p). Indeed, although such sources are not considered “medical opinions” under the
regulations and, thus, are not entitled to enhanced w eight, “these assessments are
nevertheless ‘important and should be evaluated on key issues such as impairment
severity and functional effects.’” Paquette v. Colvin, 7:12-CV-1470 (TJM/VEB), 2014
WL 636343, at *6 (N.D.N.Y. Feb. 18, 2014) (quoting SSR 06-03p, 2006 WL 2329939,
at *3). The Second Circuit has made clear that “the ALJ has discretion to determine the
appropriate weight to accord the [other source's] opinion based on all the ev idence
before him.” Diaz v. Shalala, 59 F.3d 307, 313-14 (2d Cir. 1995).
a. Treating Physicians
i. Dr. Slesynski
The ALJ concluded that, “[d]espite allegations of disabling symptomology,” there
exists “limited substantive support.” T 28. The ALJ reviewed reports from Dr.
Slesynski. Dr. Slesynski completed a medical source statement that appears to be
dated September 16, 2015, wherein he concluded that plaintiff had (1) moderate
limitations in carrying out simple instructions; (2) marked limitations in understanding
and remembering simple instructions and making judgments on complex work-related
decisions; and (3) extreme limitations in making judgments on simple-work related
decisions, understanding and remembering complex instructions, and carrying out
complex instructions.6 Id. at 860. Dr. Slesynski checked “no” next to the question
inquiring whether plaintiff’s “ability to interact appropriately with supervision, coworkers,
and the public, as well as respond to changes in the routine work setting” was affected
by his impairments. Id. at 861. However, Dr. Slesynski indicated that plaintiff had
extreme limitations in his abilities to interact appropriately with the public, supervisors,
and coworkers; and respond appropriately to usual work situations and to changes in a
routine work setting. Id. When asked to identify the factors that support his above
assessment, Dr. Slesynski wrote “recent valproic acid toxicity (7/17/15).”7 Id. When
asked whether “any other capabilities” were affected by the impairment, Dr. Slesynski
provided, “multiple psychiatric hospitalizations, stabilized on Lithium, Depakote, Latuda,
Seroquel, and Klonopin.” Id. He concluded that plaintif f could not manage benefits in
his best interests. Id. at 862.
In assessing Dr. Sleszynski’s opinion, the ALJ noted that, “[w]hile it is likely that
the claimant experiences considerable deficits while abusing alcohol, it does not appear
that he experiences such deficits when sober.” T at 30. The ALJ noted Dr.
Sleszynski’s April 2015 treatment note wherein he reported that plaintiff was doing well
and his “mood was euthymic and reflective,” with “relevant and coherent” thinking and
“no abnormal ideation.” Id. (citing Exh. 33F). The ALJ similarly pointed out Dr.
Dr. Slesynski did not explain why he believed plaintiff had extreme limitations in his ability to
make judgments on simple work-related decisions but marked limitations, which is defined as less severe
than extreme, in his ability to make judgments on complex work-related decisions. T 860.
Valproic Acid Toxicity appears to refer to an overdose of valproate/valproic acid, which is a
medication used to treat seizure disorders and bipolar disorder. See Valproic Acid, available at:
visited Mar. 5, 2018). One such medication is Depakote. Id.
Sleszynski’s May 2015 treatment note indicating that plaintiff was “doing well.” Id.
Thus, the ALJ concluded that there existed “no basis for the marked to extreme
restrictions identified by Dr. Sleszynski,” and reasoned that his opinion is not “of
significant probative value.” Id.
ii. Joel Rigueur, M.D.
Dr. Joel Rigueur, M.D., a psychiatrist, began treating plaintiff in February 2015.
He treated plaintiff on two occasions prior to completing the questionnaire. T 794. One
of these two treatments occurred on the date he completed the questionnaire. Id. Dr.
Rigueur opined that plaintiff had (1) moderate limitations in his ability to carry out simple
instructions and make judgments on complex work-related decisions; and (2) marked
limitations in understanding and remembering simple instructions, making judgments on
simple work-related decisions, and understanding, remembering, and carrying out
complex instructions. Id. Dr. Rigueur did not provide “factors” – “the particular medical
signs, laboratory findings, or other factors described above – that supported his
assessment. Id. He checked a box indicating that plaintiff’s ability to interact
appropriately with coworkers and the public and respond to changes in the routine work
setting was not affected by his impairments, but also checked boxes indicating that
plaintiff had extreme limitations in his ability to interact appropriately with the public,
supervisors, and coworkers, and respond appropriately to usual work situations and
changes in a routine work setting. Id. at 796. Dr. Rigueur did not identify the “factors”
that supported his assessment. Id. Dr. Rigueur also provided that plaintiff “is a rapid
cycling Bipolar who has had multiple psychiatric hospitalizations but has been stabilized
on Lithium but he had [illegible] with Lithium in June and had kidney failure.” Id. Dr.
Rigueur did not answer a question which asked “[i]f the claimant’s impairment(s) include
alcohol and/or substance abuse, do these im pairments contribute to any of the
claimant’s limitations as set forth above? If so, please identify and explain what
changes you would make to your answers if the claimant was totally abstinent from
alcohol and/or substance abuse.” Id. Dr. Rigueur opined that plaintiff could not
manage his own benefits in his own best interests. Id. at 797.
In assessing Dr. Rigueur’s opinion, the ALJ noted that on March 26, 2015, the
same day Dr. Rigueur completed his medical source statement, plaintiff was
“spontaneous and oriented” with “organized and relevant thoughts” and “good insight
into his illness.” Id. at 30. The ALJ noted that “no documentation has been provided by
Dr. Rigueur, which would support the limitations he identified.” Id. Thus, the ALJ
concluded that his “clinical statement is grossly at odds with those of Dr. Efobi, Dr.
Hoskin and Dr. Hartman,” and assigned Dr. Rigueur’s medical source statement “no
probative value.” Id.
iii. Stanley Poreba, MD
Dr. Poreba noted on September 9, 2014 that plaintiff’s “[m]ental status is little
changed over time with the patient continuing to minimize his alcohol dependence and
in fact today exhibiting outright denial: [‘]I absolutely do not believe it is a problem in any
way . . . [’], after referring to ‘delusions and hallucinations’ he’s been having.” T 491.
Dr. Poreba observed that “[w]hat the patient is actually describing are moments of
depersonalization, previously noted, lapses in memory and/or recollections of other
relationships he was in . . . Previously referred to as jealousy ruminations.” Id.
On June 9, 2014, plaintiff reported to Dr. Poreba that he “think[s he is] entering a
depressive cycle.” T 492. Dr. Poreba observed that plaintiff had good eye contact,
good speech that was slow and spontaneous, and cooperative attitude. Id. His affect
was “rather flat,” and his mood “depressed.” Id. He denied suicidal ideation or plans or
“perceptual disturbances.” Id. His “form of thinking shows a slow to normal stream and
his associations are good” with “no pressuring or flight of ideas noted.” Id. Plaintiff did
not report major sleep or appetite disturbances. Id. As part of his plan for care, Dr.
Poreba planned to “[h]elp motivate patient to abstain from alcohol, the most probable
cause of his depressive mood.” Id.
On March 10, 2014, plaintiff was neatly groomed, had “good speech” that was
“spontaneous,” and his attitude was “cooperative.” T 493. His affect was “appropriate
to mood euthymic.” Id. Plaintiff’s form of thinking “shows a slow stream with good
associations however the patient complains of obsessive thinking during the day that
his is not able to interrupt.” Id. Plaintiff reported good sleep and appetite. Id. Plaintiff
had an identical report on a January 10, 2014 visit. Id. at 494. On November 15, 2013,
plaintiff’s initial visit with Dr. Poreba, plaintiff had good eye contact, good speech that
was spontaneous and soft spoken, and cooperative attitude. Id. at 495. Plaintiff’s
affect was “appropriate euthymic.” Id. Plaintiff denied “suicidal or homicidal ideas or
plan at [sic] this is perceptual disturbances.” Id. Dr. Poreba noted that plaintif f’s
“thinking shows a hesitant and/or deliberate stream with good associations” and he
elicited no delusions. Id. Plaintiff reported good sleep and appetite. Id.
In his decision, the ALJ noted that Dr. Poreba reported that plaintif f’s “alcoholism
was the most probable cause of the claimant’s depression” and referenced plaintiff’s
September 2014 visit with Dr. Poreba wherein he stated that he did not believe his
alcohol dependency was a problem. T at 24.
b. Consultative Examiners/Agency Experts
i. Brett Hartman, Psy.D.
Plaintiff underwent a consultative psychiatric examination on September 20,
2013 with Brett Hartman, Psy.D. T 315. Plaintiff reported “a history of abusing alcohol
as a form of self-medication.” Id. at 316. Plaintiff reported drinking “about four to five
times per week, averaging about four to six beers. “ Id. Plaintiff further reported that his
drinking was “‘not a problem.’” Id. at 317. Dr. Hartman assessed plaintiff to be “a
cooperative, rather standoffish individual.” Id.8 His speech was “fluent with a clear, yet
somewhat monotonous and pressured manner of speaking.” Id. Plaintiff’s thought
processes were coherent and goal directed, his affect restricted, his mood dysphoric,
his sensorium clear, and he was alert and oriented x3. Id. Dr. Hartman assessed
plaintiff’s attention and concentration “to be generally in tact,” and indicated that plaintiff
“could do the counting, simple calculations, and serial 3s with minimal difficulty.” Id. at
Dr. Hartman noted that plaintiff “refused to undergo the medical evaluation at this office.” T
318. Plaintiff’s recent and remote memory skills were “mildly impaired.” Id. Plaintiff
could recall four of four objects immediately, and two of four objects after five minutes.
Id. He could perform seven digits forward, and five backward. Id. Plaintiff’s insight was
fair, and his judgment was fair to poor. Id. Dr. Hartman concluded that plaintiff was
able to follow and understand simple directions and perform simple tasks; has a fair
ability to maintain attention and concentration and learn n ew tasks; has mild difficulty
performing complex tasks independently; and mild difficulty in making appropriate
decisions. Id. Dr. Hartman further concluded that plaintiff has mild difficulty in making
appropriate decisions, and moderate difficulty relating adequately well with others and
maintaining a regular schedule due to mood swings. Id. Plaintiff has “moderate
difficulty dealing appropriately with the normal stressors of life.” Id. Dr. Hartman’s
prognosis was fair to guarded “given the long-term nature of symptoms.” Id.
The ALJ accorded Dr. Hartman’s opinion “some weight.” T 29. The ALJ noted
Dr. Hartman’s conclusion that plaintiff would have moderate difficulty relating to others,
following a schedule, and tolerating stress and concluded that “this restriction is
applicable, when the claimant is abusing alcohol.” Id. However, the ALJ noted that,
when sober, the claimant exhibits no more than mild limitations in these areas. Id.
ii. Chukwuemeka Efobi, M.D., State Medical Expert
Dr. Chukwuemeka Efobi, M.D., a psychiatrist and state medical expert,
performed an assessment of plaintiff’s medical records. T 831. Dr. Efobi concluded
that plaintiff had (1) no limitations on his ability to understand and remember simple
instructions; (2) mild limitations on his abilities to carry out simple instructions and make
judgments on simple, work-related decisions; (3) mild to moderate limitations on his
abilities to understand and remember complex instructions; (4) moderate to marked
limitations on his ability to carry out complex instructions and make judgments on
complex work-related decisions; and (5) moderate limitation in his ability to make
judgments in complex work-related decisions. Id. Dr. Efobi indicated that plaintiff
suffered mood disorder and “ETOH use Disorder - severe.”9 Id. Plaintiff would not be
able to manage his benefits due to “alcohol use disorder severe.” Id. at 832. Dr. Efobi
concluded that plaintiff’s ability to interact appropriately with the public was mildly
limited. Id. at 833. His abilities to interact appropriately with supervisors and coworkers
and to respond appropriately to usual work situations and changes in a routine work
setting were moderately limited. Id. Dr. Efobi based these conclusions on plaintiff’s
“mood disorder” and “ETOH use disorder.” Id.
The ALJ noted Dr. Efobi’s opinion that plaintiff’s “alcohol abuse precipitated and
perpetuated the claimant’s mood disorder” and that “claimant minimized the severity of
his alcohol abuse.” T 29. The ALJ further noted that Dr. Efobi opined that plaintiff
could perform simple work. Id. The ALJ acknowledged Dr. Efobi’s assessment that
plaintiff would have moderate difficulty engaging in social interactions, mild limitations
interacting with the public, and moderate limitations interacting with coworkers and
supervisors. Id. at 23. The ALJ determined that Dr. Efobi’s “opinion is consistent with
ETOH is an acronym for ethyl alcohol and appears to be used here as short hand to describe
alcohol use disorder. See, e.g., Ethyl (ETOH) definition, STEDMAN’S MEDICAL DICTIONARY 675 (28th ed.
that of Dr. Hoskin, who examined the claimant during hospitalization” and “observed
that the claimant did not present as particularly depressed or manic, noting that the
possibility of secondary gain was present.” Id. at 29. The ALJ further determined that
Dr. Efobi’s opinion “is also consistent, in part, with the report of Dr. Hartman, a
consultative examiner.” Id. Concluding that Dr. Efobi’s opinion “is predicated upon a
thorough review of the record, including reports from treating and examining sources
alike,” the ALJ accorded his opinion great weight. Id.
c. Plaintiff’s Other Medical Providers
i. David Canton, LCSWR
David Canton, LCSWR, completed a Medical Source Statement dated March 23,
2015. T 791. Mr. Canton opined that plaintiff had marked limitations in his abilities to
understand and remember simple instructions, carry out simple instructions, make
judgments on simple work-related decisions, understand and remember complex
instructions, carry out complex instructions, and make judgments on complex workrelated decisions. Id. Mr. Canton indicated the “f actors” he relied on in making the
[w]hile Steve can, on occasion, present clearly, his sx often
emerge and inevitably impair his ability to function
effectively. His preoccupation with his internal wold
frequently makes him ineffective in external world. He has
regular challenges with basic reality testing and can be very
guarded, making detection of this quite challenging.
Id. Mr. Canton further opined that plaintiff had marked limitations in his abilities to
interact appropriately with the public, supervisors, and coworkers; and respond
appropriately to usual work situations and to changes in a routine work setting. Id. at
792. In support of these assessments, Mr. Canton provided that “Steve has marked
difficultly correctly interpreting communication & actions of others.” Id. He further
indicated that plaintiff “has great difficulty correctly interpreting other’s [sic] intentions,
etc.” Id. Mr. Canton opined that plaintiff, “at times, exists within moderately delusional
mental states. In these times, he has difficulty knowing whether his delusions are real
or not, i.e. believing he is a ‘big time’ gambler when he is nothing of the sort.” Id.
Finally, Mr. Canton stated that plaintiff’s “problems exist irrespective of any use of
alcohol. He does not now, nor has he ever used other recreational drugs.” Id. Finally,
he concluded that plaintiff could not manage his own benefits. Id.
Mr. Canton completed a second medical source statement dated September 25,
2015. T 860-66. In an addendum written on the statement and dated December 2,
2015, Mr. Canton provided that his assessments and notes “are reflective of Stephen’s
clinical presentation now, as well as in the past since our first meeting on December 13,
2013 as described in item (5) remain accurate.” Id. at 866. The second medical source
statement dated September 24, 2015 and the addendum dated December 2, 2015
were not before the ALJ when he issued his decision. Dkt. No. 37. These documents
were submitted to the Appeals Council and were made part of the record. Dkt. No. 5. 10
Mr. Canton concluded that plaintiff had moderate limitations in his ability to make
Plaintiff does not explicitly argue that the Appeals Council erred in failing to review the ALJ’s
decision based on Mr. Canton’s September 25, 2015 and December 2, 2015 statements. See Dkt. No.
judgments on simple work-related decisions; and marked limitations in understanding
and remembering simple instructions, making judgments on complex work-related
decisions, and understanding, remembering, carrying out, and making judgments on
complex work-related decisions. T 864. Mr. Canton attributed his answers to the fact
that plaintiff’s “mind is constantly obsessing about many other things” and that he “has
had past problems at work because specific delusional thought processes were
exploited by others severely enough that he was arrested and lost his job.” Id. at 867.
His judgment is markedly limited because “he has not adequately integrated and
organized his experience in a reality-based manner” and he “”regularly misperceives his
social experience.” Id.
Mr. Canton opined that plaintiff’s ability to interact appropriately with supervision,
coworkers, and the public, and responding to changes in the routine work setting were
affected by his impairments. T 865. In referencing these limitations, Mr. Canton relied
on plaintiff’s experience twenty years ago when he opened a deli but shortly thereafter
sold it “because he could not maintain his mental stability in any reasonable way.” Id.
He could not interact with supervisors because “[i]n a manic state he becomes arrogant
and haughty” and when depressed, “he becomes lethargic and indifferent making
effective communication challenging.” Id. Mr. Canton also referenced plaintiff’s
“problems with interpersonal boundaries.” Id. Mr. Canton also indicated that one of
plaintiff’s medications causes him to become drowsy and his manic states also cause
him to lose sleep, which would impact his ability to function in a work environment. Id.
In an attachment to his medical source statement, Mr. Canton indicated that
plaintiff’s alcohol use “is not a factor in his impairment” because “[h]e has abstained for
periods with no improvement in symptoms. A permanent and complete cessation of his
use would in no way improve his odds of being able to work.” T 869. Mr. Canton
referenced an October 2, 2013 assessment from Champlain Valley Family Services
which noted that they assessed plaintiff with “no recommendation for any level of
substance abuse/chemical dependence treatment at this time.” Id. at 879. Mr. Canton
stated that plaintiff’s “pattern of use since then has not worsened in any way” and that
plaintiff “ has never failed to fulfil his major role obligations because of his use of
alcohol.” Id. at 870.
d. Whether the ALJ’s Assessment of Opinion Evidence is
Supported by Substantial Evidence
Plaintiff argues that the ALJ “erroneously rejected the opinions of treating
psychiatrists Dr. Sleszynski and Dr. Rigueur that Mr. Zukowski was disabled by his
mental illness (and that alcohol dependence was not a material factor).” Dkt. No. 22 at
32. He also argues that the ALJ “did not give sufficient weight to the findings and
conclusions of Drs. Kim, Ghaemi, and Lutinski.” Id. Finally, he contends that the ALJ
failed to “give sufficient weight” to treating therapists Paul LaMora and Kathy Sajor and
nurse practitioner Elnora Mills. 11 More specifically, plaintiff argues12 (1) that therapists
Plaintiff also contends that the ALJ erred in giving “controlling weight” to Dr. Poreba and “nonexamining consultant Dr. Efobi.” Dkt. No. 11 at 33. However, as plaintiff’s objections to these arguments
appear to be with their assessment of plaintiff’s alcoholism and its materiality, these arguments will be
addressed, infra, within the materiality section of this Memorandum-Decision and Order.
In his argument section of his brief, plaintiff does not provide pin cites to these medical
records. See Dkt. No. 11 at 32-33.
Paul LaMora and Kathy Sajor and treating nurse practitioner Elnora Mills “opined that
Mr. Zukowski suffered from bipolar disorder and had severe symptoms,” and (2) that
“Mr. LaMora explicitly stated that he did not need further treatment for alcoholism.”
Id. at 32-33. The Court agrees with the Commissioner that the ALJ’s assessment of the
medical opinions is supported by substantial evidence. See Dkt. No. 18 at 7-14.
Addressing first Dr. Rigueur’s opinion, as the Commissioner points out, Dr.
Rigueur’s treatment notes are incongruent with the extreme limitations he opined. Dkt.
No. 18 at 7. Although Dr. Rigueur concluded that plaintiff had: (1) moderate restriction
in his ability to carry out simple instructions and make judgments on complex workrelated decisions; (2) marked limitations in understanding and remembering simple
instructions, making judgments on simple work-related decisions, understanding,
remembering, and carrying out complex instructions; (3) extreme limitations in his
abilities to interact appropriately with the public, supervisors, and coworkers; and
(4) extreme limitation in his ability to respond appropriately to usual work situations and
changes in a routine work setting, the treatment records do not support such significant
limitations. Id. at 796.
At the March 26, 2015 appointment – which, as the Commissioner points out, is
the same day Dr. Rigueur completed his medical source statement – plaintiff
demonstrated good eye contact, intact recent and remote memory, organized and
relevant thought process, spontaneous and relevant speech, fairly good judgment, good
insight, no evidence of delusions/hallucinations, and was fully oriented. T 857; Dkt. No.
18 at 8. The ALJ noted that Dr. Rigueur provided “no documentation . . . which would
supper the limitations he identified” and that his “clinical examination of the claimant is
inconsistent with the degree of functional limitation described by the medical source
statement.” T 30. This conclusion is clearly supported by the record just recounted by
Second, in considering the weight to accord to a treating physician’s opinion, an
ALJ is entitled to consider – indeed, he is directed to consider – the leng th of the
treatment relationship and frequency of examination. See 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6). The ALJ properly accounted for the fact that, at
the time he issued his medical source statement, Dr. Rigueur treated plaintiff on just
two occasions, including the day of his evaluation. Courts in this Circuit have held that
when a doctor has seen the plaintiff on only one or two occasions, the doctor’s opinion
is not entitled to the weight of a treating physician because he “did not provide plaintiff
with the type of ongoing medical treatment that would define them as a ‘treating
physician.’” Bergeron v. Astrue, 09-CV-1219 (MAD), 2011 WL 6255372, at *8 (N.D.N.Y.
Dec. 14, 2011) (citing George v. Bowen, 692 F. Supp. 215, 219 (S.D.N.Y. 1988) (noting
that the doctor’s opinion was properly accorded less weight because he saw the plaintiff
twice) and Quinones v. Barnhart, 05 Civ. 579 (PKC), 2006 WL 2136245, at *7 (S.D.N.Y.
Aug. 1, 2006) (holding that the treating doctor’s opinion was properly accorded less
weight when he saw plaintiff only once)); Balles v. Astrue, 3:11-CV-1386 (MAD), 2013
WL 252970, at *5 (N.D.N.Y. Jan. 23, 2013) (same); 20 CFR § 404.1527(c)(2)(I) (“[T]he
longer a treating source has treated you and the more times you have been seen by a
treating source, the more weight we will give to the source's medical opinion”). Thus, in
addition to discounting the opinion as unsupported by his own clinical examination, the
ALJ appropriately accounted for the fact that Dr. Rigueur had seen plaintiff on just two
occasions at the time he rendered his opinion.
The ALJ also concluded that Dr. Rigueur’s opinion is “grossly at odds with those
of Dr. Efobi, Dr. Hoskin,13 and Dr. Hartman.” T 30. This conclusion is well supported by
the record. As stated, where a consultative examiner or non-examining expert’s opinion
is well supported by the record, it can be entitled to controlling weight. See, e.g., Netter
v. Astrue, 272 F. App'x 54, 55-56 (2d Cir. 2008) (summary order) (concluding that
reports of consultative and/or non-examining physicians may override opinions of
treating physicians, provided they are supported by substantial evidence in the record);
20 C.F.R. § 404.1527(e)(2) (ALJs must consider the findings of state agency medical
consultants and other program physicians because they are highly qualified and are
also experts in Social Security disability evaluations). The ALJ noted Dr. Hartman’s
conclusion that plaintiff “retained the ability to understand and execute simple tasks” but
would have “moderate difficulty relating to others, following a scheduled [sic] and
tolerating stress.” T at 29. In reviewing Dr. Rigueur’s opinions, the ALJ concluded that
“this restriction is applicable, when the claimant is abusing alcohol,” but “when sober,
the claimant exhibits no more than mild limitations in these areas.” Id. These
conclusions supported by substantial evidence in the record. Insofar as plaintiff argues
Mark Hoskin, MD, examined plaintiff in February 2011, after he was psychiatrically
hospitalized. T 20. As the ALJ noted, Dr. Hoskin observed that plaintiff did not present as “particularly
depressed or manic,” had fair mood and subdued affect, and no signs of suicidal ideation. Id. Dr. Hoskin
“[r]aised the possibility of secondary gain from a diagnoses of bipolar affective disorder.” Id. The ALJ also
noted that plaintiff’s GAF score at discharge was 65, which indicates mild symptoms. Id.
that the ALJ erred in according greater weight to the opinions of consultative examiner
and non-examining expert than to Dr. Rigueur, because these opinions are supported
by substantial evidence, his reliance is proper. See 20 C.F.R. § 404.1527(e)(2); see
Halloran, 362 F.3d at 32 (“Although the treating physician rule generally requires
deference to the medical opinion of a claimant’s treating physician, the opinion of a
treating physician is not afforded controlling weight where . . . the treating physician
issued opinions that are not consistent with other substantial evidence in the record,
such as the opinions of other medical experts.”) (citing Venio, 312 F.3d at 588).
Similarly, Dr. Sleszynski concluded in a medical source statement that plaintiff
had extreme limitations in his ability to interact with the public, coworkers, and
supervisors, and marked to extreme limitations in his ability to remember instructions
and make judgments on work-related decisions. T 860. However, as the ALJ noted,
like Dr. Rigueur, many of Dr. Sleszynski’s medical treatment notes indicate less severe
symptoms. Id. at 30. The ALJ referenced that in May 2015, plaintiff reported that he
was “doing well,”and that Dr. Slyszynski described plaintiff’s mood as euthymic and
reflective, and described plaintiff’s thinking relevant and coherent with no abnormal
ideation. Id. (citing T at 854) . Also on this visit, plaintiff reported his sleep to be
normal, and Dr. Sleszynski noted that his affect was only “mildly constricted.” Id. at
855. Dr. Sleszynski discontinued plaintiff’s Depakote. Id. Although it is the case that
plaintiff sometimes reported more severe symptoms to other doctors at Behavioral
Health Services North (T 851, “not doing particularly well”), plaintiff has produced no
records from either Dr. Sleszynski or any other BHSN doctors to substantiate the
marked to extreme limitations Dr. Sleszynski opined. See Cichocki v. Astrue, 534 F.
App’x 71, 75 (2d Cir. 2013) (holding that an ALJ may afford less than controlling weight
to a treating physician's medical source statement where the “medical source statement
conflict[s] with his own treatment notes[.]”). Accordingly, the ALJ articulated “good
reasons” for failing to afford the opinion greater weight, and did not err in concluding
that Dr. Sleszynski’s medical source statement was entitled to no probative value. Id. at
30; see Schaal, 134 F.3d 505.
Insofar as plaintiff contends that the ALJ erred in failing to give “sufficient weight”
to S. Nassir Ghaemi, M.D.’s opinion, Dkt. No. 11 at 32, as the Commissioner notes, Dr.
Ghaemi did not “provide a medical opinion as to Plaintiff’s abilities.” Dkt. No. 18 at 11.
Further, the ALJ discussed Dr. Ghaemi’’s records. T 20-21. The ALJ noted the
February 2012 report, wherein plaintiff reported to Dr. Ghaemi that he developed
“severe melancholia, resulting in a change in medication.” T at 20. As the
Commissioner notes, plaintiff ceased treatment with Dr. Ghaemi six months before his
alleged onset date. Dkt. No. 18 at 12 (citing T at 403).
Regardless, the ALJ explicitly discussed that in July 2012, Dr. Ghamei diagnosed
plaintiff with alcohol dependence and adjustment disorder and noted that plaintiff had
suicidal plans but no intent, and that in January 2012, Dr. Ghamei observed that plaintiff
was “mildly depressed,” but that his thoughts were logical, and he had no suicidal
ideation. T 20. Thus, the ALJ appropriately considered these pre-onset date treatment
records, and plaintiff does not explain, nor does the record support, a conclusion that
Dr. Ghaemi’s treatment records suggest more significant limitations.
Plaintiff also contends that the ALJ failed to give sufficient weight to Dr. Kim’s
opinion. Dkt. No. 11 at 32. However, plaintiff’s argument is without force. Although the
ALJ did not assign a specific weight to Dr. Kim’s opinions, it is noted that Dr. Kim does
not provide a medical source statement or assessment of plaintiff’s limitations; however,
the ALJ did review Dr. Kim’s treatment records in detail from July 2012 through May
2013. T 21. The ALJ observed that during an August 2012 examination, plaintiff
“identified only minor difficulties with functioning.” Id. In December 2012, Dr. Kim noted
that plaintiff was “very calm and exhibited good eye contact” and his “[m]ood was stable
and neutral.” id. By plaintiff’s April 2013 appointment, the ALJ noted that Dr. Kim
observed plaintiff to be “well-rested and relaxed,” and that his affect was “bright” and
“full” in range. Id. In May 2013, plaintiff reported to Dr. Kim that the “absence of
anxiety, agitation, blunting or constriction.” Id. Even if the ALJ erred in failing to
explicitly assign a weight to Dr. Kim’s medical records, it would amount to harmless
error, as the ALJ notes, and review of Dr. Kim’s treatment records confirms, that Dr.
Kim’s treatment notes do not document significant symptoms or limitations. See T at
21, 283 (“Despite what the patient’s fiancé said, I believe that the patient is relatively
stable regarding his mood symptoms and is more or less at his baseline.”), 285 (noting
medications were working, plaintiff doing well, reports that he sleeps too much and
lacks motivation, appeared neatly groomed, “looked very well rested and appeared
relaxed with good eye contact,” mood flat, affect “bright and full in range”, thought
processes “organized and relevant, free of suicidal thoughts, free of
hallucinations/delusions, speech “spontaneous but very under productive because
fiancé doing most of talking”), 286 (plaintiff was alert, clear headed, had good eye
contact, demonstrated spontaneous speech, productive, mood better, affect better,
calmer, at ease, fuller range, organized and relevant though process, no
hallucinations/obsessions), 288 (plaintiff was well groomed, calm, good eye contact,
speech normal, mood better, organized and relevant thought processes). Thus, the
ALJ properly considered Dr. Kim’s treatment records and his failure to explicitly assign
his review of Dr. Kim’s records a certain level of weight is, at most, harmless error.
Plaintiff next contends that the ALJ failed to give “sufficient weight” to the
“findings and conclusions” of Dr. Lutinski. Dkt. No. 11 at 32. However, Dr. Lutinski’s
treatment notes are almost entirely illegible and appear largely to be blood and/or urine
test results and copies of reports from other practitioners. See T 369-386, 629-60.
There is nothing in his records that suggests that he formed an opinion about plaintiff’s
psychiatric symptoms or his alcohol use problems or an assessment of plaintiffs abilities
or limitations. See id. As plaintiff points to no specific evidence from Dr. Lutinski that
supports specific or greater limitations then those reached by the ALJ’s RFC, and the
undersigned cannot locate any such evidence in the record, the ALJ did not err in
declining to explicitly discuss Dr. Lutinski’s records or accord them “controlling weight.”
Plaintiff also argues that the ALJ failed to grant “sufficient weight” to several
treating providers who are not acceptable medical sources. Dkt. No. 11 at 32. The
Court will first address plaintiff’s argument that the ALJ erred in declining to accord
“sufficient weight” to treating therapist David Canton. Dkt. No. 11 at 32. The ALJ
reviewed Mr. Canton’s medical notes and opinion in detail. T 21. The ALJ further
explained why he rejected Mr. Canton’s opinion. As the ALJ noted, Mr. Canton
concluded that plaintiff “‘exists within moderately delusional mental states[,]’” but the
ALJ found “no evidence that the claimant had a history of delusional behavior” and that
“[t]he only time questionable thought processes were observed was during
hospitalization in the setting of alcohol abuse. No other treating source has found that
the claimant suffers from delusions or psychosis.” Id. at 30. Moreover, the ALJ
determined that, because Mr. Canton “is not an appropriate m edical source pursuant to
Social Security Ruling 06-03p” his opinion was not “of significant probative value.” Id.
The ALJ noted that plaintiff repeatedly reported use of alcohol throughout his treatment
with Mr. Canton. Id. at 21. He further noted in a December 2013 clinical examination,
plaintiff’s mood was reported as neutral, and his affect constricted. Id.
The ALJ’s assessment of Mr. Canton’s opinion and records is supported by
substantial evidence. Indeed, contrary to Mr. Canton’s comments about delusions,
other treating sources who are acceptable medical sources – Dr. Poreba and Dr. Kim –
noted that, although plaintiff referred to having delusions or hallucinations, such
thoughts were more properly called “ruminations, “moments of depersonalization,”” or
“obsessive thoughts” and not “psychotic symptoms.” T 286 (Dr. Kim), 491 (Dr. Poreba).
Further, despite Mr. Canton’s opinion that plaintiff’s mental health issues were not
connected to his alcohol abuse, Mr. Canton’s treatm ent notes repeatedly document that
plaintiff was still using alcohol throughout treatment, as do other medical providers who
treated plaintiff at or around the same time.14 The ALJ references these records. T at
21, 28. Finally, although Mr. Canton was plaintiff’s treating therapist, Mr. Canton is not
an acceptable medical source. See SSR 06-03p, 2006 W L 2329939, at *2-3. As the
ALJ considered his opinions in detail, and explained his rationale for declining to accord
these opinions weight, the ALJ’s decision is based on substantial evidence.
Insofar as plaintiff contends that the ALJ erred in declining to accord significant
weight to the opinions of Paul LaMora, Kathy Sajor, and Elnora Mills because “[a]ll of
these sources opined that Mr. Zukowski suffered from bipolar disorder and had severe
symptoms,” Dkt. No. 11 at 32-33, the record does not contain any assessment of
plaintiff’s limitations from these providers. Further, these sources, therapists and a
nurse, are not acceptable medical sources. SSR 06-03p, 2006 W L 2329939, at *2-3.
Addressing first Mr. LaMora, plaintiff reports that Mr. LaMora stated that he did not need
treatment for alcoholism; however, the record includes a letter dated October 2, 2013
from Mr. LaMora, Champlain Valley Family Center Outpatient Clinic Director to plaintiff’s
probation officer, wherein he indicated that plaintiff attended a psychoactive substance
use assessment in March through June 2013 and the “primary result of this assessment
was no recommendation for any level of substance use disorder treatment at this time.”
T 772, 873. 15 Review of the Champlain Valley records from that time period indicate
that plaintiff reported drinking only one to two glasses of wine on one to two occasions
Assessment of the materiality of plaintiff’s alcohol use disorder is be addressed in the following
section, and, thus, will not be recounted here.
Mr. LaMora sent plaintiff’s counsel a nearly identical letter regarding the same assessment,
though it is dated December 17, 2015. T 873.
per week. Id. at 774. Thus, as plaintiff does not appear to have accurately reported his
alcohol use, any conclusion Mr. LaMora made regarding plaintiff’s need for alcohol
abuse treatment would appear to have been based solely on plaintiff’s self reporting.
Thus, the ALJ did not err in declining to accord weight to this assessment.
Insofar as plaintiff argues that the ALJ erred in failing to accord significant weight
to the opinion of Elnora Mills, NPP, there is no medical source statement from Ms. Mills,
nor do her treatment notes suggest significant limitations. On August 15, 2013, plaintiff
reported to Ms. Mills a lack of energy and motivation, and problems with concentration
and focus. T at 497. On September 20, 2013, Ms. Mills observed that plaintiff was
“pleasant and cooperative” and that he reported that Adderall was “helpful” and that he
“can focus and concentrate better and has more energy.” Id. Plaintiff reported being
able to sleep at night. Id. Thus, the ALJ did not err in failing to accord “significant
weight” to these records, as they do not support a finding of greater limitations.16
Further, as a non-acceptable source, Ms. Mills’ opinion is not entitled to heig htened
weight. See SSR 06-03p, 2006 W L 2329939, at *2-3.
Plaintiff next argues that the ALJ erred in declining to accord “significant weight”
to Ms. Sajor, a treating mental health counselor. Dkt. No. 11 at 32. T he record
contains a form completed by Kathy Sajor for the New York State Office of Temporary
and Disability assistance, dated May 17, 2013. T 304-13. Ms. Sajor indicated that
plaintiff has significant impairment in judgment during manic phases. Id. at 304. As for
It does not appear that there are any additional records from Ms. Mills in the administrative
prognosis, Ms. Sajor indicated that plaintiff “will always struggle with bipolar disorder
with significant dysfunction.” Id. at 305. It appears Ms. Sajor saw plaintiff on a weekly
basis from January 2011 through February 2012, bi-weekly/weekly basis from March
2012 through November 2012, and on a monthly basis from November 2012 through
May 2013 for “couples therapy with partner dealing with his bipolar d/o sx & effect on
relationship.” Id. at 307-308. Ms. Sajor described plaintif f as “desperately wanting help,
anxiety losing relationship, ashamed and embarrassed, get obsessive and [illegible]
sometimes speech & thoughts were hesitant and delayed.” Id. at 307. Ms. Sajor
indicates that plaintiff’s attention and concentration was “at times poor due to
medication and sedation” and that he has “poor insig ht and judgment in worst
moments.” Id. at 309. As for his activities of daily living, Ms. Sajor reported that he is
“at times barely functional, some difficulty with ADL’s [sic].” Id. She indicated that his
ability to function in a work setting is “not good - poor judgment impulsivity, anxiety rule
the day when struggling.” Id. She provided further that his sustained
concentration/persistence is limited due to “poor concentration with depression or
mania.” Id. at 311. Ms. Sajor further provided that plaintiff “may have difficulty with
authority.” Id. She indicated, in response to plaintif f’s ability to respond to changes in
the work setting, that plaintiff “can work well independently when given free reign to do
tasks on days when able to function.” Id.
The ALJ does not address explicitly Ms. Sajor’s opinion. The Court concludes
that the ALJ’s failure to address this opinion or accord it a specific degree of weight
does not amount to reversible error. As Ms. Sajor is not an acceptable medical source,
she is not entitled to the presumption of controlling weight. See SSR 06-03p, 2006 W L
2329939, at *2-3. Although Ms. Sajor opines as to plaintiff’s bipolar disorder, she
clearly states that she provides couples counseling to help plaintiff and his partner cope
with plaintiff’s mental health symptoms; however, it does not appear that her primary
treatment is for plaintiff’s bipolar disorder. T 308. Further, although the record includes
Ms. Sajor’s assessment, there does not appear to be any of Ms. Sajor’s treatment
records in the administrative transcript. Indeed, Ms. Sajor did not provide what medical
treatment or clinical evidence she relied on in making her conclusions beyond her
general reference to his diagnosis of bipolar disorder. Further, Ms. Sajor appears to
indicate that plaintiff’s opined limitations are present only “when struggling,” when he is
in a depressive or manic state, or during his “worst moments.” Id. at 309-311. Indeed,
she qualified several of her statements regarding plaintiff’s work abilities with words
such as “at times,” “sometimes,” and “may,” which also suggests that her opinions as to
these limitations are specific to when plaintiff is in temporary manic or depressed states.
Id. It is not clear whether Ms. Sajor opines that these symptoms would interfere with
plaintiff’s ability to do work on a regular and continuing basis, as they appear qualified
based on whether plaintiff is in a manic or depressive state. Finally, Ms. Sajor is one of
many therapists with whom plaintiff has treated regularly. Thus, unlike in cases where
the Court has remanded where the ALJ failed to consider explicitly the opinion of the
plaintiff’s sole therapist, the ALJ considered in detail records f rom several of plaintiff’s
other mental health professionals, including Mr. Canton, Dr. Slesynski, Dr. Ghaemi, Dr.
Rigueur, Dr. Poreba, and Dr. Kim. See generally Pickett v. Colvin, No. 3:13-CV-0776
(LEK), 2015 WL 5749911, at *8 (N.D.N.Y. Sept. 30, 2015). Accordingly, the ALJ did not
commit reversible error in declining to accord
Plaintiff contends, in a footnote, that the Appeals Council erred by “not explaining
what weight it gave to Dr. Keith’s retrospective opinions regarding Mr. Zukowski’s
mental impairments.” Dkt. No. 11 at 33, n.7. The Appeals Council provided that it
“looked at the medical source statement from Robert L. Keith, Ph.D., dated December
18, 2015. The Administrative Law Judge decided your case through September 25,
2015. This information is about a later time. Therefore, it does not affect the decision
about whether you were disabled beginning on or before September 25, 2015.” T 2.
Courts in this Circuit have noted that a “retrospective medical diagnosis by a
subsequent treating physician is entitled to controlling weight when no medical opinion
in evidence contradicts a doctor's retrospective diagnosis finding a disability.” See, e.g.,
Campbell v. Astrue, 596 F. Supp. 2d 446, 452 (D. Conn. 2009); Dousecw icz v. Harris,
646 F.2d 771, 774 (2d Cir. 1981) (“[A] diagnosis of a claimant’s condition may properly
be made even several years after the actual onset of the impairment.”). Although
plaintiff’s counsel indicates that Dr. Keith’s opinion is a retrospective one, there is no
evidence supporting a conclusion that Dr. Keith’s opinion is retrospective. T at 6. The
medical source statement form provided the following instruction: “[t]he limitations are
assumed to be your opinion regarding current limitations only. However, if you have
sufficient information to form an opinion within a reasonable degree of medical or
psychological probability as to past limitations, on what date were the limitations you
found above first present.” Id. at 8. In response to this question, Dr. Keith answered,
“NA,” which the Court reasonably understands to mean “not applicable.” Id. Further,
Dr. Keith indicated that his responses were based on “clinical interview” and
“observations” made based on plaintiff’s “statement of current abstinence from alcohol,”
further suggesting that his opinion is current, rather than retrospective. Id. at 7-8
(emphasis added). Accordingly, the Appeals Council did not commit error in concluding
that Dr. Keith’s opinion was about the time period following September 25, 2015. T at
In summary, to the extent that plaintiff points to evidence in the transcript that
reasonably might support a different conclusion in his favor, “whether there is
substantial evidence supporting the appellant's view is not the question” on appeal.
Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013). Accordingly, for the
reasons stated above, the ALJ did not err in declining to accord significant weight to the
opinions of treating physicians Dr. Sleszynski, Dr. Rigueur, Dr. Ghamei, Dr. Kim, and
Dr. Lutinski; therapists Mr. Canton, Mr. LaMora, and Ms. Sajor; or nurse Ms. Mills, and
the Appeals Council did not err in its assessment of Dr. Keith’s opinion.17
2. Did the ALJ Properly Determine that Plaintiff’s Substance Abuse was a
Contributing Material Factor?
Plaintiff argues that “the record does not conclusively establish that Mr.
Zukowski’s bipolar disorder would improve to the point of nondisability in absence of
As indicated, the undersigned assesses the ALJ’s review of Dr. Poreba and consultative
examiner Dr. Efobi in the following section as plaintiff challenges these opinions as they relate to the
alcohol dependence” and contends that the “record show s a long history of bipolar
disorder, with great lability, not related to alcohol.” Dkt. No. 11 at 35. Relatedly, plaintiff
argues that the ALJ erred in giving “controlling weight”18 to treating physician Dr. Poreba
“who saw Mr. Zukowski for medication management a total of four times19 at BHSN”
insofar as Dr. Poreba concluded that his “alcohol abuse was the most probable cause
of his depressive cycle.” Dkt. No. 11 at 33. Plaintiff also argues that the ALJ erred in
giving “controlling weight” to non-examining state agency consultant Dr. Efobi, “the only
source who opined that Mr. Zukowski would be able to work if he stopped drinking.”
Dkt. No. 11 at 33. In response, the Commissioner argues that plaintiff “bears the
burden of proving that his alcohol abuse was not material to his disability” and that he
“erroneously contends that there must be conclusive evidence establishing the ALJ’s
finding that alcohol abuse was a material factor.” Dkt. No. 18 at 14. The Court
concludes that substantial evidence supports the ALJ’s conclusion that plaintif f’s
limitations would be mild absent his alcohol use.
As set forth above, the ALJ determined that plaintiff’s severe impairments did not
meet or medically equal a listing, but at step five found that plaintiff’s ability to perform
work at all exertional levels had been “compromised by non-exertional limitations from
all of the impairments, including the substance abuse disorder.” T 25. The ALJ
determined that plaintiff’s “inability to understand and execute simple instructions on no
The Court notes that the ALJ did not state the weight he accorded to Dr. Poreba’s opinion.
See T 24.
It appears that Dr. Poreba treated plaintiff on five occasions. T 419, 492, 493, 494, 495.
more than an occasionally [sic] basis represents a marked erosion of the occupational
base at any exertional level,” and that if plaintiff ceased alcohol use, he would still
“experience deficits in concentration and attention.” Id. at 25-26. As the ALJ
determined that plaintiff would not be able to perform work at any level, he then
determined whether his alcoholism was a contributing factor material to the
determination of disability. See 20 C.F.R. § 404.1535. The ALJ determined that if
plaintiff stopped substance abuse, his remaining impairments still would not meet or
medically equal a listing. T 26. The ALJ concluded that, as to activities of daily living,
plaintiff would have no restrictions if substance abuse ceased as, “even when abusing
alcohol, the claimant engages in a wide array of daily activities.” Id. He concluded that
plaintiff would have “mild difficulties” with social functioning if alcohol use were stopped,
noting that Dr. Efobi concluded that plaintiff would have mild difficulties in this area
when sober. Id. The ALJ next determined that plaintiff would have “moderate
difficulties” in concentration, persistence, and pace, observing that during his
examination with Dr. Hartman, plaintiff was “able to do serial counting, simple
calculations and serial threes with minimal difficulty,” and that Dr. Hartman concluded
that plaintiff “has a fair ability to maintain attention and concentration.” Id. Further, the
ALJ noted Dr. Efobi’s conclusion that plaintiff “would have no more than mild difficulty in
this area.” Id. The ALJ also noted Dr. Hartman’s assessment that plaintiff would have
“moderate difficulty relating to others and tolerating stress,” but that such “restriction is
applicable when the claimant is abusing alcohol” and “when sober, the claimant exhibits
no more than mild limitations in these areas.” Id. Similarly, the ALJ noted Dr.
Slesynski’s opinion that plaintiff had “marked to extreme problems understanding and
carrying out even simple instructions” and that plaintiff’s “ability to interact appropriately
is extremely limited.” Id. Finally, the ALJ referenced plaintiff’s testimony regarding lack
of focus, confusion, and difficulty sustaining concentration,” along with his testimony
that he “now drinks minimally[.]” Id. at 26, 29. The ALJ also assessed whether the
paragraph C criteria would be satisfied were plaintiff to abstain from alcohol and
concluded that they would not. Id. at 27. The ALJ indicated that the record
demonstrates “no evidence” that plaintiff ever demonstrated the paragraph C criteria.
Id. at 23, 27.
Primarily at issue is plaintiff’s ability to “understand and execute simple
instructions on no more than an occasionally [sic] basis,” as it is this limitation the ALJ
claimed would prevent plaintiff from engaging in work at any exertional level, and
plaintiff’s attention and concentration, as the ALJ concluded that plaintif f would still
experience “deficits” in absence of alcohol abuse. T 25-26. Contrary to plaintiff’s
suggestion otherwise, Dkt. No. 11 at 35, it is plaintiff’s burden to prove that his alcohol
use disorder is not material to his disability. See Cage, 692 F.3d at 120, 122-24; SSR
13-2p, 2013 WL 621536, at *4 (“When we apply the steps of the sequential evaluation a
second time to determine whether the claimant would be disabled if he or she were not
using drugs or alcohol, it is our longstanding policy that the claimant continues to have
the burden of proving disability throughout the DAA materiality analysis.”). In
contending that plaintiff’s alcohol use disorder is not material to his disability, plaintiff
cites only to his “long history of bipolar disorder, with great lability,” that no provider has
“ever noted that he appeared to be inebriated w hen they treated him,” and that upon his
admission to the emergency room in February 2012, plaintiff’s blood alcohol content
was .023, which plaintiff indicates “is much less than the .08 level for DWI.” Dkt. No. 11
at 35 (citing T 266); Dkt. No. 33 at 35, n.9.
As the Commissioner notes, during plaintiff’s hospital admissions – presumably a
time during which he abstained from alcohol – plaintiff was released with improved
functioning. Similarly, it was during plaintiff’s hospitalization in 2011 when the treating
physician doubted plaintiff’s bipolar diagnosis and questioned his allegations of mania.
T 384-85. Indeed, as the ALJ noted, plaintif f voiced suicidal ideations while under the
influence of alcohol. T 28.20 As this Court has noted, although an ALJ need not point to
periods of abstinence, “‘[t]he Second Circuit has held that a com parison of medical
opinions during a period when a claimant was using alcohol to ‘periods of sobriety,’
even brief ones such as during hospitalization, constitutes substantial evidence to
support a determination that a claimant would not be disabled were she to stop using
drugs or alcohol.” Rowe v. Colvin, 8:15-CV-652 (TWD), 2016 WL 5477760, at *8
(N.D.N.Y. Sept. 26, 2016) (quoting Cage, 962 F. 3d at 127, DiBenedetto, 2014 W L
1154093, at *3); see also SSR 13-2p, SSR 13-2p, 2013 W L 621536, at *4.
Further, acceptable medical sources have the existence of plaintiff’s continued
The ALJ cites exhibit 8F, which is plaintiff’s outpatient discharge plan from Conifer Park from
2007. However, this appears to be a typographical error, as the following exhibit, exhibit 9F, is plaintiff’s
admission records from Champlain Valley Physicians Hospital Medical Center wherein plaintiff was
psychiatrically hospitalized in 2007 after he made a suicidal statement. T 321-27. It is within this record
that it was noted that plaintiff’s suicidal ideation occurred while under the influence of alcohol. Id. at 329.
It is also noted that this hospitalization occurred before plaintiff’s alleged onset date. However, an ALJ
may consider records from outside of the alleged onset date. 20 C.F.R. § 416.920(a)(3) (“We will
consider all evidence in your case record . . . .”).
alcohol abuse, and one treating provider and one medical expert concluded that
plaintiff’s symptoms would not be severe in absence of his alcohol use. First, treating
provider Dr. Poreba noted on September 9, 2014 that plaintiff’s “[m]ental status is little
changed over time with the patient continuing to minimize his alcohol dependence and
in fact today exhibiting outright denial: [‘]I absolutely do not believe it is a problem in any
way . . . [’], after referring to ‘delusions and hallucinations’ he’s been having.” T 491.
Dr. Poreba observed that “[w]hat the patient is actually describing are moments of
depersonalization, previously noted, lapses in memory and/or recollections of other
relationships he was in . . . Previously referred to as jealousy ruminations.” Id.
The ALJ noted that Dr. Poreba reported that plaintif f’s “alcoholism was the most
probable cause of the claimant’s depression” and noted plaintiff’s September 2014 visit
wherein he stated that he did not believe alcohol dependency was a problem. T at 24.
Similarly, nonexamining agency expert Dr. Efobi, who reviewed the medical records,
concluded that plaintiff’s alcohol use disorder “precipitates and perpetuates” plaintif f’s
“mood disorder symptoms” and if plaintiff were to fully abstain from alcohol, Dr. Efobi’s
opined limitations for plaintiff – discussed above – would be mild. T 833. The ALJ was
entitled to rely on Dr. Poreba and Dr. Efobi’s opinions. Cf. Wettlaufer v. Colvin, 204 F.
Supp. 3d 266 (W.D.N.Y. 2016) (noting that “an ALJ may find that drug or alcohol abuse
is a contributing factor, even where the record does not contain a medical opinion
predicting the claimant's impairment in the absence of the substance abuse[.]”); see
Herb v. Colvin, No. 14-CV-156, 2015 WL 2194513, at *5 (W.D.N.Y. May 11, 2015) (“It is
well-established that the report of a consultative examiner may serve as substantial
evidence upon which the ALJ may base his decision.”) (citation omitted).
The only medical evidence plaintiff offers that arguably directly counters the
opinions of Dr. Poreba and Dr. Efobi are those of Mr. Canton and Mr. LaMora.
However, despite plaintiff’s claims to Mr. Canton and Mr. LaMora that he had abstained
from drinking or did not have a “problem with alcohol,” the ALJ observed that the record
demonstrated otherwise. Dkt. No. 11 at 33. Substantial evidence supports the ALJ’s
conclusion. The ALJ noted that in October 2013, Mr. LaMora, Cham plain Valley Family
Center Outpatient Clinic Director, in a letter to plaintiff’s probation officer indicated that
plaintiff attended a psychoactive substance use assessment in March through June
2013 and the “primary result of this assessment was no recommendation for any level
of substance use disorder treatment at this time.” T 28, 772, 873. 21 However, as the
ALJ observed, id. at 28, review of the Champlain Valley records from that time period
indicate that plaintiff reported drinking only one to two glasses of wine on one to two
occasions per week, in contrast with his reports to other medical providers at around
that same time. Id. at 774. The ALJ specifically noted that, two weeks later, plaintiff
reported to consultative examiner Dr. Hartman that he drinks four to six beers a day,
four to five times per week. Id. at 28. The ALJ also noted that in June 2014, plaintif f
reported drinking four to eight beers per night. Id.
Similarly, in plaintiff’s intake records from Champlain Valley, plaintiff reported that
drinking has “no affect” on his relationship with his significant other, that he does not
Mr. LaMora sent plaintiff’s counsel a nearly identical letter regarding the same assessment,
though it is dated December 17, 2015. T 873.
feel he needs to cut down on drinking, that there has never been anyone in his life who
has criticized him for his drinking, that he has never felt guilty about drinking. T 777-78.
Plaintiff also denied several mental health symptoms during this assessment, indicating
that he has not felt depressed or sad for most of the past two weeks or two years, and
reporting that he has not had a time in his life “when you were feeling up, hyper or so
full of energy or full of yourself that you got into trouble or other people thought you
were not your usual self.” Id. at 779. However, plaintiff reported to medical providers at
the time that he experienced manic episodes and that he became involved in his legal
problems after/during manic episodes, experienced obsessive thoughts, and anxiety –
all symptoms that he denied during the Champlain Valley assessment.22 Thus, the ALJ
was entitled to discount Mr. LaMora’s letter as the conclusion that plaintif f did not need
substance abuse treatment was based on plaintiff’s own self reporting, which does not
appear to have been forthcoming as records from around the time period of plaintiff’s
assessment demonstrate that plaintiff was drinking on a more significant and frequent
basis. See, e.g., id. at 851 (dated July 25, 2015, concluding that plaintiff suffers from
alcohol dependence, was told not to drink, reports that he “sporadically drinks beer”).
Thus, insofar as plaintiff reports that the ALJ should have relied on Mr. LaMora’s
conclusion that plaintiff did not need treatment for alcoholism, the Court disagrees. Dkt.
No. 11 at 33.
The page is partially cut off in the administrative transcript, but in the number of “yes”
responses section,” it is clear that plaintiff denied several mental health symptoms, such as feeling
intensely anxious, worrying excessively, being bothered by thoughts he “couldn’t get rid of” that were
“unwanted,” “intrusive,” “distressing.” T 780-82.
Similarly, although Mr. Canton provided in March 2015 and again in December
2015 that plaintiff’s symptoms are not precipitated by his alcohol use, substantial
evidence in the record rebuts this conclusion. At a Septem ber 10, 2015 visit, plaintiff
reported to Dr. Slezyneski “that he has not had anything to drink this calendar year,”
and his girlfriend confirmed. Id. at 850. However, in February 2015, plaintiff reported
drinking eight to nine beers per day. Id. at 764. On May 19, 2015, plaintiff reported that
he “has reduced his alcohol intake further,” suggesting he was still consuming alcohol to
some degree, and Dr. Slezyneski “had a long discussion about the need to abstain f rom
alcohol in view of the fact that the Depakote is also metabolized by the liver.” T 854.
Also, a July 6, 2015 report from Dr. Stephen Williams at BHSN notes that although
plaintiff “has been instructed not to use alcohol,” “he continues sporadically to drink
beer” concludes that plaintiff “clearly” suffers from bipolar disorder and alcohol
dependence, and “encouraged [plaintiff] in the strongest possible terms to cease all use
of alcohol.” Id. at 851-52.
Collectively, the ALJ presented “relevant evidence [that] a reasonable mind might
accept as adequate to support [the] conclusion” that plaintif f’s difficulties with
understanding and executing simple instructions and attention and concentration would
be no more than mild if plaintiff were to abstain from alcohol use. See Cage, 692 F.3d
at 127 (quoting Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010). Plaintif f did not
meet his burden of demonstrating that his alcohol use was not a material factor.
Accordingly, the ALJ committed no error in concluding that plaintiff’s substance use
disorder was a contributing material factor to the determination of disability, and that
plaintiff would be able to perform his past relevant work in absence of his alcohol use.
Plaintiff argues that the ALJ erred “in not crediting Mr. Zukowski’s testimony
regarding his use of alcohol.” Dkt. No. 11 at 35. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii)
and 416.929(c)(3)(i)-(vii) provide that if the claimant’s allegations of pain and limitations
are not supported by objective medical evidence, the ALJ must consider the following
factors in assessing the claimant’s credibility:
(i) [Claimant’s] daily activities;
(ii) The location, duration, frequency and intensity of
[Claimant’s] pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication [Claimant’s] take[s] or ha[s] taken to alleviate . . .
pain or other symptoms;
(v) Treatment, other than medication [Claimant] receive[s] or
ha[s] received for relief of ... pain or other symptoms;
(vi) Any measure [Claimant] use[s] or ha[s] used to relieve
. . . pain or other symptoms;
(vii) Other factors concerning [Claimant’s] functional
limitations and restrictions due to pain or other symptoms.
20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii).
After considering the objective medical evidence, the claimant's demeanor and
activities, subjective complaints, as well as any inconsistencies between the medical
evidence and the claimant's subjective complaints, an ALJ may accept or disregard the
claimant's subjective testimony as to the degree of impairment. See Saxon v. Astrue,
781 F. Supp.2d 92, 105 (N.D.N.Y. 2011) (citations omitted); see also Howe-Andrews v.
Astrue, No. CV-05-4539, 2007 W L 1839891, *10 (E.D.N.Y. June 27, 2007) (citation
omitted); Martone, 70 F.Supp.2d at 151 (citation om itted). If the ALJ finds that the
claimant’s pain contentions are not credible, however, he or she must state his or her
reasons “explicitly and with sufficient specificity to enable the Court to decide whether
there are legitimate reasons for the ALJ's disbelief.” Young v. Astrue, 05-CV-1027,
2008 WL 4518992, at *11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v. Bowen, 666
F.Supp. 604, 608 (S.D.N.Y.1987)). An ALJ who rejects the subjective testimony of a
claimant “‘must do so explicitly and with sufficient specificity to enable the Court to
decide whether there are legitimate reasons for the ALJ's disbelief and whether his
decision is supported by substantial evidence.’” Melchior v. Apfel, 15 F. Supp.2d 215,
219 (N.D.N.Y.1998) (quotation and other citation omitted). Failure to follow this
standard constitutes legal error. See Horan v. Astrue, 350 F. App’x 483, 484 (2d Cir.
2009) (summary order).
Here, the ALJ concluded that plaintiff was “credible concerning the following
symptoms and limitations: difficulties with focus and concentration and an inability to get
along well with others.” T 24. Further, the ALJ concluded that plaintif f’s testimony at
the hearing was not credible. Id. at 29. The ALJ noted that plaintiff testified that “he
now drinks minimally,” but observed that “subsequent reports document continued
alcohol use.” Id. Further, the ALJ noted that, “[a]lthoug h claimant reports that he
suffers from disabling symptoms, he reported to treating sources in February 2013 that
he continues to do construction jobs on the side.” Id.
The Court finds no error in the ALJ's credibility assessment. As detailed in the
above section, plaintiff’s reports to medical providers varied greatly. To some providers,
he indicated that he had abstained f rom alcohol and did not feel that his use of alcohol
was a problem or that it impacted his life. However, he reported high and/or daily use of
alcohol to other providers. Further, plaintiff’s claims of extreme limitations often are
inconsistent with his clinical examinations. As Commissioner points out, in contrast to
plaintiff’s argument that no examiner has doubted his symptoms, the treating
emergency room physician Dr. Hoskin noted that plaintiff did not appear particularly
manic or depressed, and opined that plaintiff may have a secondary gain from a
diagnosis of bipolar disorder in an effort to assist him with legal troubles. T 384-85. It is
also noted that recent treatment notes from the University of Vermont Medical Center,
dated February 24, 2015, call into question plaintiff’s bipolar diagnosis and the severity
of his symptoms. Id. at 767 (“[D]iagnostically, it is not clear that the patient has bipolar
mood disorder. His symptomology is most prominent for mood dysregulation,
depressed mood, alcohol use disorder (precontemplative), social anxiety and anger
issues. Though he does endorse elements of many disorders such as Bipolar, OCD,
PTSD, it is not clear that he meets diagnostic criteria for any of these” and noting that
plaintiff described experiencing manic episodes immediately before 2011 arrest, but
was not observed to be manic or depressed in hospital and hospital admission noted
that plaintiff reported no manic symptoms in a few months). Similarly, as discussed
supra, plaintiff’s reports with his treating providers also did not often reflect the extreme
limitations he opined. For example, although Dr. Rigeur noted marked and extreme
limitations, he observed that plaintiff was “spontaneous and oriented” that his thoughts
were “organized and relevant,” and that plaintiff had “good insight” into his illness. Id. at
30. Similarly, Dr Sleszynski reported that plaintiff was “doing well” and that his affect
was only “mildly constricted.” Id. at 854, 55. Dr. Kim observed that plaintiff was
“stable,” “calm,” had good eye contact, had a “bright” and “full” affect, and a absence of
anxiety, agitation, blunting, and constriction. Id. at 283, 286-66. Dr. Ghaem i reported
plaintiff as being mildly depressed, with logical thoughts and no suicidal ideation. Id. at
The ALJ committed no error in concluding that plaintiff’s statements about his
limitations beyond his difficulties with concentration, focus, and getting along with others
were not credible. T 24. “It is the function of the [Commissioner], not [reviewing courts],
to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.
1983) (citations omitted). If there is substantial evidence in the record to support the
Commissioner's findings, “the court must uphold the ALJ's decision to discount a
claimant's subjective complaints of pain.” Aponte v. Sec’y, Dep't of Health & Human
Servs. of U.S., 728 F.2d 588, 591 (2d Cir. 1984) (citations om itted). The ALJ has the
benefit of directly observing a claimant's demeanor and other indicia of credibility which
entitles the ALJ's assessment to considerable deference. See Tejada v. Apfel, 167
F.3d 770, 776 (2d Cir. 1999) (citing Pascariello v. Heckler, 621 F.Supp. 1032, 1036
(S.D.N.Y. 1985)); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999). Furthermore,
“[w]here, as here, the Commissioner's decision ‘rests on adequate findings supported
by evidence having rational probative force, [the Court] will not substitute [its] judgment
for that of the Commissioner.’” Schlichting v. Astrue, 11 F. Supp. 3d 190, 204 (N.D.N.Y.
2012) (quoting White v. Comm'r, 06-CV-0564, 2008 WL 3884355, at *11 (N.D.N.Y. Aug.
WHEREFORE, for the reasons stated above, it is hereby:
ORDERED, that plaintiff Stephen Edward Zukowski’s motion for judgment on the
pleadings (Dkt. No. 11) is DENIED; and it is further
ORDERED, that the Commissioner’s motion for judgment on the pleadings (Dkt.
No. 18) is GRANTED; and it is further
ORDERED, that the Clerk of the Court serve copies of this MemorandumDecision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
March 13, 2018
Albany, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?