Fortier v. Commissioner of Social Security
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION: Accordingly, for all the foregoing reasons, I respectfully recommend that defendant's motion for judgment on the pleadings be granted, that plaintiff's motion for judgment on the pleadings be denied and that the complaint be dismissed. So Ordered (Signed by Magistrate Judge Henry B. Pitman on 3/25/2010) (js)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
T ~ D SDNY s 'DOCUMENT ELECTRONICALLY FILED
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LEON J. FORTIER, SR., Plaintiff, -vMICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. RICHARD J. SULLIVAN, District Judge: Plaintiff Leon J. Fortier, Sr. seeks review of a decision of the Commissioner of Social Security that denied Fortier's application for Disability Insurance Benefits. In the administrative proceedings below, Administrative Law Judge Brian W. Lemoine determined that, although Plaintiff suffered from severe impairments, he had sufficient residual functional capacity to perform work in the national economy. (Tr. at 16.) On March 25, 2010, the Honorable Henry B. Pitman, United States Magistrate Judge, issued a Report and Recommendation (the "Report") recommending that Defendant's motion for judgment on the pleadings be granted.' On April 6, 2010, the Court received written objections to the Report from Plaintiff. A. Standard of Review The Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.'' 28 U.S.C. No. 09 Civ. 993 (RJS) (HBP) ORDER ADOPTING REPORT AND RECOMMENDATION
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636(b)(l). The Court will review the remaining portions of the Report for plain error. See Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224,226 (S.D.N.Y. 2008).
The Report is attached as an exhibit to this Order.
Copies mailed to: Mr. Leon Fortier, Sr. 244 North Liberty Drive Tomkins Cove, New York 10986 Mr. Leon Fortier, Sr. 22 Stubbe Drive Stony Point, New York 10980 John E. Gura, Jr., Esq. Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, New York 10007
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X LEON J. FORTIER, SR., Plaintiff, -againstMICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. : -----------------------------------X PITMAN, United States Magistrate Judge: TO THE HONORABLE RICHARD J. SULLIVAN, United States District Judge, I. Introduction Plaintiff, Leon J. Fortier, Sr., brings this action, pro se, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB"). Both : : 09 Civ. 993 (RJS)(HBP) : : : REPORT AND RECOMMENDATION
plaintiff and defendant have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 8 and 12). For the reasons set forth below, I
respectfully recommend that judgment on the pleadings be granted in favor of defendant.
II.
Facts A. Procedural Background Plaintiff filed an application for DIB pursuant to 42
U.S.C. § 423(b) on January 23, 2006, alleging that he had been disabled since November 30, 2005 (Tr. 85).1 He stated that he
has depression, Post-Traumatic Stress Disorder and a substance abuse problem, all of which he alleges stem from the September 11, 2001 attacks (Tr. 100, 102-03). The Social Security Adminis-
tration denied plaintiff's application for benefits on July 19, 2006 (Tr. 13, 77). Plaintiff timely requested and was granted a
hearing before an Administrative Law Judge ("ALJ") (Tr. 13, 5456, 75). The ALJ, Brian W. Lemoine, conducted a hearing on
November 26, 2007 (Tr. 13) at which plaintiff was represented by Jack Vega, a non-attorney representative from the Legal Aid Society of Rockland County, Inc. (Tr. 13, 23-24, 51). A voca-
tional expert, Pat Green, was also present at the hearing (Tr. 13, 23-24). In a decision issued on June 11, 2008, the ALJ found
that plaintiff was not disabled from November 30, 2005 through June 11, 2008 (Tr. 13-19). Plaintiff requested review of the
decision on September 30, 2008 (Tr. 7-8), and the ALJ's determination became the final decision of the Commissioner on November
"Tr." refers to the administrative record that defendant filed as part of his answer, as required by 42 U.S.C. § 405(g). 2
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17, 2008, when the Appeals Council denied plaintiff's request for review (Tr. 3). On December 30, 2008, plaintiff commenced the instant pro se action seeking judicial review of the ALJ's decision (Compl. at 3). Plaintiff stated in the complaint that he was
entitled to DIB because of "P.T.S.D." (Post-Traumatic Stress Disorder), depression, "COPD" (presumably, chronic obstructive pulmonary disease), heart disease, "[g]allbladder," "pancreas" and hearing loss2 (Compl. ¶ 4). On June 9, 2009, plaintiff moved
for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Plaintiff's Notice of Motion, dated June 9, 2009, Docket Item 8 ("Pl.'s Notice of Mot.")). On
October 5, 2009, defendant cross-moved for judgment on the pleadings under Rule 12(c) (Defendant's Notice of Motion, dated October 5, Docket Item 12). In plaintiff's submissions in support of his motion and in opposition to defendant's cross-motion, he does not contend that the ALJ erred in any specific way, but rather emphasizes his symptoms, his difficulty working, and that he had worked hard
Although plaintiff alleges both mental and physical disabilities in his complaint, his application for DIB was for alleged mental disabilities only (Tr. 100, 102-03; see Tr. 34) and the Commissioner made no finding with regard to any physical disability (see Tr. 13-19). Because an action under Section 405 is an action to review the Commissioner's decision on plaintiff's application to the Social Security Administration, plaintiff's allegations of physical disability are immaterial here. 3
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until the onset of his mental conditions (Plaintiff's Affirmation in Support of Motion, dated June 9, 2009 ("Pl.'s Aff. in Support") at 1-3; Letter from plaintiff to the undersigned, dated October 6, 2009, included in the submission being treated as Plaintiff's Affidavit in Opposition ("10/6/09 Fortier Letter") at 1). Defendant argues in support of his motion that the ALJ's
decision should be upheld because it was supported by substantial evidence and did not contravene any applicable laws or regulations (Memorandum of Law in Support of the Commissioner's CrossMotion for Judgment on the Pleadings ("Def's. Mem. in Support") at 1; Answer ¶ 12). In his submission in support of the motion, plaintiff submitted evidence that was not part of the original administrative record (Plainttiff's Aff. in Support, attachments, all attached to Pl.'s Notice of Mot.; see Endorsed Letter from John E. Gura, Esq., to the undersigned, dated July 13, 2009 and endorsed July 16, 2009; Endorsed Letter from John E. Gura, Esq., to the undersigned, dated August 13, 2009 and endorsed August 19, 2009; Endorsed Letter from John E. Gura, Esq., to the undersigned, dated September 14, 2009 and endorsed September 18, 2009). On October 21, 2009, plaintiff submitted a document to
the Office of the Pro Se Clerk entitled "Notice of Motion to Amend the Complaint," seeking to add further evidence ("Notice of Motion to Amend the Complaint," dated October 21, 2009, Docket
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Item 19, now entitled "Affirmation in Opposition to Deft. Motion to Dismiss," Docket Item 16 ("Pl.'s Aff. in Opp."); see Order, issued November 17, 2009 ("11/17/09 Order")). Several of the
documents plaintiff seeks to add post-date the complaint (Pl.'s Aff. in Opp., attachments; see 11/17/09 Order). The submission
also includes a letter from plaintiff to the undersigned describing some of the details of his situation and dated October 6, 2009 (10/6/09 Fortier Letter). On November 19, 2009, I entered
an order directing the Clerk of the of Court to file this "motion" as a supplement to plaintiff's opposition to defendant's motion for judgment on the pleadings (11/17/09 Order). My Order
did not express any opinion on the propriety of considering this new evidence for any purpose (11/17/09 Order). B. Plaintiff's Social Background Plaintiff was born on March 14, 1955 (Tr. 49). He
attended school through either 10th or 11th grade and does not have a GED (Tr. 35-36, 107, 122). Plaintiff has four adult
children (Tr. 33, 36) and, at the time of the ALJ's hearing on November 26, 2007, was in the process of getting a divorce (Tr. 28). On April 21, 2006, Leslie Helprin, an examining psycholo-
gist, reported that plaintiff was living with his parents (Tr. 159), but plaintiff stated on November 26, 2007 that he was living alone in a rented trailer (Tr. 33-34). 5 Plaintiff's only
sources of income are public assistance from the Department of Social Services, which he states pays his rent, and some contributions from his parents (Tr. 34, 36). Medicaid (Tr. 34). Plaintiff started working at the age of 14 (Tr. 27). Most recently, and for the fifteen years preceding his application for DIB, plaintiff worked as a construction supervisor for $2 to $3 million construction projects in Manhattan (Tr. 26-27, 31). The job involved scheduling the work on the projects, Plaintiff is covered by
tracking the work of the various trades involved and making sure the projects were completed on time (Tr. 27). Plaintiff super-
vised between ten and fifty people at various times (Tr. 104). In addition to oversight and supervision, plaintiff's job involved some physical labor (Tr. 104). In the fifteen years
before he applied for DIB, plaintiff worked for JMK Construction, Micron, and, finally, Federation Development, where he was working on September 11, 2001 (Tr. 33). Plaintiff lost his job
shortly after the 9/11 attacks, as many of the construction projects he had been assigned to were in lower Manhattan (Tr. 26). Plaintiff stated that between 2000 and 2002, he worked
sporadically as a self-employed contractor, doing carpentry work for a New York City law firm (Tr. 32-33), but also reported that he was out of work for a year after losing his job at Federation
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Development (Tr. 103).3
Plaintiff started working as a construc-
tion supervisor again in 2004, but stated that he could not attend work consistently or function properly at work (Tr. 2627). Plaintiff testified that the last day he worked was in
November 20054 (Tr. 28). C. Plaintiff's Medical Background5 1. Treating Physicians
Dr. Jay Lombard, a neurologist, began treating plaintiff at the Brain Behavior Center on either January 18, 2002 or January 18, 20036 (Tr. 150). Dr. Lombard completed a question-
In addition, plaintiff stated on his initial application for DIB and in his Disability Report that for a couple of years between 2001 and 2004 he was selling furniture on commission as a side business (Tr. 87, 103). However, in a discharge summary corresponding to plaintiff's admission for detoxification at Good Samaritan Hospital and dated July 3, 2006, Dr. Mahomed Bhana stated that one of the reasons plaintiff gave for leaving the hospital was "to return to his work" (Tr. 172). This section summarizes the evidence contained in the administrative record that was before the ALJ; the new information plaintiff submitted is addressed in subsection II.E below. Dr. Lombard's response to "date first seen" in the questionnaire looks somewhat more like "1/18/02" than "1/18/03" (see Tr. 150), but both the memorandum of law plaintiff submitted to the ALJ in advance of the hearing and defendant's memorandum of law in support of his motion report this date as 2003 (Tr. 123; Def.'s Mem. in Support at 5). 7
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naire for the New York State Office of Temporary and Disability Assistance on June 29, 2006 (Tr. 150-56). He reported a treating
diagnosis of polysubstance abuse (Tr. 150) and listed plaintiff's presenting problems as crack abuse, alcoholism and depression (Tr. 152). He indicated "poor compliance" in the section on
"treatment and response" (Tr. 151) and indicated that the expected duration of plaintiff's condition was "lifelong" (Tr. 151). Dr. Lombard commented that plaintiff's "attitude, appear-
ance [and] behavior" was "distracted" and that plaintiff had poor insight and pressured speech (Tr. 153). He indicated that
plaintiff had made a suicide attempt in the form of substance overdose on July 3, but the year is illegible7 (Tr. 154). He
also indicated that plaintiff was "currently hospitalized at Nyack Hospital" as the result of an overdose (Tr. 152); it is unclear whether these two notations refer to the same event. Dr. Lombard stated that plaintiff had no limitation in understanding and memory (Tr. 155), but that his depression limited his sustained concentration and persistence, which the form describes as the ability to "follow simple or detailed instructions, follow schedules, work with others, follow a reasonable pace, sustain ordinary routine without supervision,
The ALJ's decision states that Dr. Lombard's report notes a suicide attempt in July 2006 (Tr. 17), but it appears that Dr. Lombard was referring to a different event, as he completed the form on June 29, 2006. 8
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maintain customary attendance and punctuality, etc." (Tr. 155). Dr. Lombard also stated that plaintiff's significant substance abuse caused limitations in his social interaction, which the form describes as the ability to "interact with the public, ask simple questions, accept supervisory instructions, get along appropriately with co-workers, adhere to basic neatness and cleanliness etc." (Tr. 155). He also indicated that plaintiff
was limited in his adaption ability, which the form describes as the ability to "respond appropriately to changes in the work setting, be aware of hazards, travel/use public transportation, set realistic goals, make plans independently, etc.," but his notation as to the reason for this limitation is illegible (Tr. 155). Dr. Lombard stated that plaintiff's ability to perform the
activities of daily living was within normal limits (Tr. 154). Dr. Lombard opined that plaintiff's ability to do workrelated mental activities was affected by the "significant mental disabilities" of "polysubstance abuse [and] major depression" (Tr. 154). Dr. Lawrence Levitt, a psychiatrist, began treating plaintiff at Good Samaritan Hospital's Frawley Clinic on November 5, 2007 (Tr. 27, 30). Dr. Levitt completed a Functional Capacity
Questionnaire for Psychiatric Disorders for the Social Security Administration on April 23, 2008 (Tr. 176-81). In the question-
naire Dr. Levitt noted that he had weekly contact with plaintiff
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for psychotherapy and monthly contact for maintenance of plaintiff's medications (Tr. 176). His diagnoses included recurrent
major depression, alcohol dependence in remission and personality disorder "NOS" (i.e., not otherwise specified) (Tr. 176). Dr.
Levitt noted that plaintiff had demonstrated a positive response to counseling sessions but gave plaintiff a prognosis of "guarded" (Tr. 177). The symptoms reported by Dr. Levitt were a history
of alcoholism and substance abuse, sleep disturbance, severe depression, OCD (obsessive compulsive disorder) symptoms such as compulsive cleaning, an emotionally charged affect ("on occasion bursts into tears"), poor appetite and some increase in psychomotor activity (Tr. 176). Dr. Levitt reported that plain-
tiff was taking Trazodone and Paxil, and that he had tried Effexor but it had caused some side effects (Tr. 177). Dr. Levitt opined that plaintiff had a mild limitation8 in the activities of daily living, a moderate limitation in maintaining social functioning, a marked limitation in concentration, persistence or pace resulting in failure to complete tasks in a timely manner and that plaintiff has experienced one or two episodes of deterioration or decompensation that cause him to
The form defines a "mild" impairment as "one which has a slight effect on the ability to function," a "moderate" impairment as "one which affects, but does not preclude, the ability to function," a "marked" impairment as one that "seriously affects the ability to function," and an "extreme" impairment as one that "precludes the ability to function" (Tr. 179). 10
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withdraw from the situation or experience an exacerbation of signs and symptoms (Tr. 178-80). Dr. Levitt also opined that in a work setting on a regular and continuous basis, plaintiff would have a moderate limitation in his ability to understand, remember and carry out instructions; that plaintiff would have mild limitations in his abilities to respond appropriately to supervision and coworkers; that plaintiff would have a marked limitation in his ability to satisfy an employer's normal quality, production and attendance standards; that plaintiff would have a moderate limitation in his ability to respond to customary work pressures; that plaintiff would have a marked limitation in his ability to perform complex tasks on a sustained basis in a full-time work setting and that plaintiff would have a mild limitation in his ability to perform simple tasks on a continued basis in a full-time work setting (Tr. 180-81). Dr. Levitt opined that as of the time of the evaluation, plaintiff could not sustain his former work activity and noted further that his concentration was impaired, he attended Alcoholics Anonymous ("AA") meetings one or two times daily, and that he was still vulnerable to relapse (Tr. 181).
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2.
Hospital Admissions
Plaintiff states that he was admitted to Good Samaritan Hospital in Suffern, New York from December 3, 2005 through January 2, 2006 as the result of an anxiety attack, and received therapy and medication (Tr. 105-06). The record also contains documents reflecting plaintiff's admission to the Emergency Department at Good Samaritan Hospital on July 3, 2006 (Tr. 165). The documents state that
plaintiff arrived as a walk-in requesting alcohol detoxification (Tr. 168), that plaintiff had been discharged earlier that same day from six days of detox, that he drank several beers in an effort to get readmitted to detox and that (although the time period referred to was unclear) he "repeatedly went out and smoked crack cocaine, his drug of choice" (Tr. 166). The records
for this admission indicate a final diagnosis of alcohol intoxication (Tr. 165). The rest of the notes are largely illegible,
but the author appears to have determined that there were no beds available for detox and told plaintiff to call on July 5, 2006 (Tr. 166). The notes indicate that plaintiff was discharged on
July 3, 2006 (Tr. 166). A discharge summary, written by Dr. Mahomed Bhana, the attending physician, states that plaintiff was initially admitted to our detox unit with a history of drinking 18 Bacardi's a day for the last 12 months and spending a lot of money on cocaine and crack. 12
. . . After patient completed detox, he was admitted to our rehab unit. The patient reported that he had been depressed and had lost interest in his work and also had to move in at his parents home where he had to sleep in the basement and the place was a mess. The patient was started on Wellbutrin XL 150 mg a day while he was in rehab, as well as Zyprexa 5 mg a day, which he claims help his anxiety. (Tr. 171). Dr. Bhana's discharge summary also notes that plain-
tiff has "a history of using alcohol since age 12 and crack since age 47" (Tr. 171). It stated that plaintiff had been admitted to
Good Samaritan twice, first from December 2005 to January 20069 and then four months later after a relapse (Tr. 171). Dr.
Bhana's diagnoses included alcohol and cocaine dependence as well as major depression (Tr. 171). He stated that plaintiff "denies Dr. Bhana noted
any suicidal or homicidal ideations" (Tr. 171).
that plaintiff "stayed only 1 day in rehab and insisted on leaving the hospital as he had to see the dentist and to see his son who is in jail and to return to his work. . . . [Plaintiff] left the unit against clinical advice" (Tr. 172). 3. Consultative Physicians
Dr. Leslie Helprin of Industrial Medicine Associates in New City, New York performed a consultative psychiatric evaluation of plaintiff on April 21, 2006 (Tr. 159). Dr. Helprin
This appears to be the same time period during which plaintiff states he was admitted to Good Samaritan because of an anxiety attack (Tr. 105-06). 13
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reported the following findings.
Plaintiff participated in
marital counseling with a private psychologist for six or seven months around 1991 (Tr. 159) and, as of the time of the evaluation, was seeing Dr. Jay Lombard, who prescribed Zyprexa and had prescribed Zoloft in the past (Tr. 159). Plaintiff slept and ate He denied any
well but was fatigued and felt "mellow" (Tr. 159). suicidal thoughts or attempts (Tr. 159).
Plaintiff was affected
by anxiety, experienced heart palpitations and had several thoughts at once (i.e., he did not know "whether to put on [his] shoes or take a shower or brush [his] teeth or smoke or have coffee") (Tr. 159-60). Plaintiff reported difficulty in thinking
and stated that this caused things to take longer (Tr. 160). Plaintiff denied any drug or alcohol use at the time of the evaluation, but had attended AA meetings in the past and was once told by his marital counselor that he was a "weekend alcoholic" (Tr. 160). Plaintiff indicated that several other members of his
family were alcoholics as well (Tr. 160). Plaintiff told Dr. Helprin that he stopped working because of problems concentrating and the fact that his thinking was "'not right'" (Tr. 159). Dr. Helprin found plaintiff cooperative during the evaluation and described "[h]is manner of relating, social skills, and overall presentation" as "adequate" (Tr. 160). Dr.
Helprin found that plaintiff's appearance was normal; that his
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speech was fluent and clear but "with word finding difficulties and limited receptive language skills"; that his thought processes were "[c]oherent and goal directed with no evidence of hallucinations, delusions, or paranoia"; that his affect was "[o]f full range and appropriate in speech and thought content"; that his mood was "[e]uthymic10 and smiling"; that his attention and concentration were "mildly impaired due to limited intellectual functioning"; that his memory skills were "mildly impaired due to limited intellectual functioning and nervousness"; and that his cognitive functioning was characterized by "intellectual skills in the low average range and [a] limited general fund of information" (Tr. 160-61). Dr. Helprin noted that although plaintiff was able to dress, bathe and groom himself, his parents assisted him with cooking, cleaning, laundry, shopping and money management (Tr. 161). He also stated that plaintiff was able to drive and Plaintiff reported claustropho-
attended AA meetings (Tr. 161).
bic feelings when in crowds, such as when using public transportation (Tr. 161). In terms of vocational skills, Dr. Helprin
found that plaintiff was "able to follow and understand simple directions and instructions and perform simple rote tasks, but not complex tasks due to cognitive limitations and nervousness,"
Euthymia is "[m]oderation of mood, not manic or depressed." Stedman's Medical Dictionary (27th ed. 2000). 15
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and that he was "able to maintain sufficient attention and concentration [if] provided [with] specific task instructions" (Tr. 161-62). Dr. Helprin also opined that plaintiff was "able
to make appropriate decisions, relate adequately with others, and deal appropriately with stressors with current treatment" (Tr. 162). Overall, the examination results were "consistent with
psychiatric difficulties, but with current treatment, this d[id] not appear [to Dr. Helprin] to be significant enough to interfere with [plaintiff's] ability to function on a daily basis" (Tr. 162). Dr. Helprin noted diagnoses of agoraphobia, alcohol abuse
in full sustained remission, hypertension and hypothyroidism, potential "depressive disorder, NOS [(not otherwise specified)] (currently controlled with medication)," and potential borderline intellectual functioning (Tr. 162). Dr. Helprin's recommenda-
tions were that plaintiff continue with his current psychiatric treatment and "undergo vocational retraining for a job commensurate with his skills and simple tasks with specific procedural instructions, not in a supervisory capacity" (Tr. 162). Dr. Abdul Hameed, a state agency medical consultant, completed the Psychiatric Review Technique form for the Social Security Administration on July 13, 2006 (Tr. 130-44; see Def.'s Mem. in Support at 7). He reported positive findings for the
categories of affective disorders, anxiety-related disorders and substance addiction disorders and indicated that a residual
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functional capacity assessment was necessary (Tr. 130).
Under
the section of the form corresponding to the paragraph B criteria of the listings for plaintiff's impairments, found in Section 12.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1, Dr. Hameed found that plaintiff had no restriction in activities of daily living, mild difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace (Tr. 140). He found further that plaintiff had experi-
enced one or two repeated episodes of deterioration (Tr. 140). Dr. Hameed also found that the evidence did not establish the existence of the criteria in paragraph C of the listings (Tr. 141). In conjunction with the Psychiatric Review Technique form, Dr. Hameed completed a Mental Residual Functional Capacity Assessment for plaintiff dated July 13, 2006 (Tr. 144). Dr.
Hameed found that plaintiff's only significant limitations were moderate limitations in his abilities to respond appropriately to changes in the work setting and to set realistic goals or make plans independently of others (Tr. 145). Specifically, Dr.
Hameed opined that plaintiff had no significant limitation in his ability to do any of the following: -"complete a normal workday and workweek without interruptions from psychologically based symptoms [or] to perform at
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a consistent pace without an unreasonable number and length of rest periods" ---"interact appropriately with the general public" "ask simple questions or request assistance" "accept instructions and respond appropriately to criticism from supervisors" -"get along with coworkers or peers without distracting them or exhibiting behavioral extremes" -"maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness" -"be aware of normal hazards and take appropriate precautions" -"travel in unfamiliar places or use public transportation" Dr. Hameed stated at the end of the assessment that
(Tr. 145).
"based [on] objective findings it is reasonable to believe that [plaintiff] retains the capacity to handle the stressor of a work/job in work setting on a consistent basis" (Tr. 146). 4. Medications
When plaintiff applied for DIB on January 23, 2006, he reported that he was taking Seroquel for depression, Zoloft for compulsive behavior, Lopressa for hypertension and Protonix for stomach issues (Tr. 106). Other parts of the record indicate
that plaintiff had, at different times, been on Zyprexa for
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anxiety (Tr. 159, 171), Lithium for "bipolar" (Tr. 115), Wellbutrin (Tr. 171), Effexor for depression and PTSD (Tr. 29, 121), Adderall (Tr. 27), and Trazodone and Paxil for depression (Tr. 177). D. Proceedings Before the ALJ 1. Plaintiff's Testimony
At the administrative hearing on November 26, 2007, plaintiff testified to the following facts. Plaintiff has been
diagnosed with Post-Traumatic Stress Disorder and depression (Tr. 25). He was treated by Dr. Lombard for his depression, starting
shortly after he lost his job as the result of the September 11, 2001 attacks and continuing at least through November 2005, when he stopped working for the second time (Tr. 25-27, 29). At the
time of the hearing plaintiff was no longer seeing Dr. Lombard because he did not take plaintiff's insurance, but plaintiff had started seeing Dr. Levitt at Good Samaritan Hospital on November 5, 2007 (Tr. 27, 29-30). Plaintiff had tried several anti-
depressants, including Zoloft and Adderall, but stated that nothing seemed to work for more than a short period of time (Tr. 27, 29). 29). At the time of the hearing he was taking Effexor (Tr.
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At some point after September 11, 2001, plaintiff started drinking heavily, although he was not drinking at the time he returned to work in 2004 (Tr. 25, 27). After he stopped
working again in November 2005, he would sporadically resume drinking (Tr. 29). Plaintiff entered rehabilitation for sub-
stance abuse four times, for the first time in 2005 and most recently for 17 days starting in July or August 2006 (Tr. 27, 3637). He has not used alcohol since August 1, 2006 and attends an
AA meeting every day (Tr. 27, 36-37). After losing his job in 2001, plaintiff started working again in 2004 (Tr. 26). However, he would miss days, fail to
complete his duties, and generally "could not function" at work (Tr. 26). When he attempted to return to work in 2004, his
"thinking was completely off" (Tr. 27). He felt generally unable to function normally (Tr. 3031). He had trouble getting up and would sometimes get up for The
half an hour but could not function after that (Tr. 30-31).
only thing he wanted to do every day was attend his AA meeting (Tr. 30). There had been some change (although he did not
specifically say whether negative or positive) in his condition since he started seeing Dr. Levitt, but his symptoms fluctuated (Tr. 38). Plaintiff did not have any physical conditions that
interfered with his ability to work; his symptoms were completely mental (Tr. 34). Plaintiff was able to drive and sometimes drove
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himself to his AA meetings, though his mother helped him with grocery shopping (Tr. 34-36). meals (Tr. 36). 2. Expert Testimony He also went to her house for
The Commissioner called Pat Green to testify as a vocational expert. Green stated that, according to the
Dictionary of Occupational Titles, the job of construction project manager is skilled work (Tr. 39). She testified that a
hypothetical person of plaintiff's age, education and work history, with no exertional limits, but limited to the performance of simple routine, repetitive tasks, would not be able to do any of plaintiff's past relevant work (Tr. 41). She
stated, however, that there were other jobs in the regional and national economies that such a person could perform, giving as examples the positions of garment sorter (unskilled at a light level), industrial cleaner (unskilled at a medium level) and kitchen helper (unskilled at a medium level) (Tr. 41). She
testified that the additional limitation of being unable to interact with the public or co-workers more than occasionally would preclude the kitchen helper position, but the garment sorter and industrial cleaner positions would still be possible (Tr. 42). She also testified that if the hypothetical person
experienced frequent lapses in concentration that would put them
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off-task, they would not be able to sustain work in these positions (Tr. 42). E. New Evidence All of the evidence discussed above was contained in the administrative record used by the Commissioner in his determination on plaintiff's application for DIB. submits new evidence which was not contained in the administrative record. Attached to plaintiff's affidavit in support of his motion are: (1) two documents entitled "Medical Examination for Plaintiff also
Employability Assessment, Disability Screening, and Alcoholism/Drug Addiction Determination," completed by Dr. Lawrence Levitt and dated September 17, 2008 and March 11, 2009, respectively, (2) several medical records that pertain only or primarily to plaintiff's physical health, (3) several "patient information records," none of which contain any substantive information, (4) documents corresponding to an admission to Nyack Hospital Addiction Services on July 10, 2006, (5) documents corresponding to an admission to Nyack Hospital Addiction Services on August 2, 2006, (6) the Social Security Administration form plaintiff completed regarding his medications, and (7) the Social Security Administration form plaintiff completed regarding his work background.
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Attached to plaintiff's "motion to amend the complaint," which I treated as a supplement to his opposition to defendant's cross-motion, are two letters from Dr. Levitt, copies of 9/11 Mental Health Benefit Program cards for plaintiff and his family and an Attending Doctor's Report and Carrier/Employer Billing Form completed by Dr. Harold H. Fogelman for the New York Workers' Compensation Board. III. Analysis A. Applicable Legal Principles 1. Standard of Review
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C.
§ 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998). The term "substantial evidence" has been defined It means such relevant evidence
as "'more than a mere scintilla.
as a reasonable mind might accept as adequate to support a conclusion.'" Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996),
quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); accord 23
Burgess v. Astrue, supra, 537 F.3d at 127-28; Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004); Veino v. Barnhart, supra, 312 F.3d at 586; Tejada v. Apfel, supra, 167 F.3d at 77374; Quinones ex rel. Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997). The reviewing court does not conduct a de novo review as to whether the claimant is disabled, Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980), nor may it substitute its own judgment for that of the Commissioner. Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984). When the Commissioner's decision is not supported by substantial evidence, a reviewing court must reverse the administrative decision because "the entire thrust of judicial review under the disability benefits law is to insure a just and rational result between the government and a claimant . . . ." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). Lee v. Apfel, CV 99-2930 (LDW), 2000 WL 356411 at *2 (E.D.N.Y. Apr. 3, 2000); see Veino v. Barnhart, supra, 312 F.3d at 586 ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."). Moreover, the Commissioner's decision must be affirmed if it is supported by substantial evidence, even if there is also substantial evidence supporting plaintiff's position. Persico v.
Barnhart, 420 F. Supp. 2d 62, 71 (E.D.N.Y. 2006), citing Jones v. Sullivan, 949 F.2d 57, 59-60 (2d Cir. 1991). "Reversal and entry of judgment for the claimant is appropriate only 'when the record provides persuasive proof of 24
disability and a remand for further evidentiary proceedings would serve no purpose.'" Cruz ex rel. Vega v. Barnhart, 04 Civ. 9794
(DLC), 2005 WL 2010152 at *8 (S.D.N.Y. Aug. 23, 2005) (Cote, D.J.), modified on other grounds on reconsideration, 2006 WL 547681 (S.D.N.Y. Mar. 7, 2006), quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); accord Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991); Babcock v. Barnhart, 412 F. Supp. 2d 274, 284 (W.D.N.Y. 2006); Buonviaggio v. Barnhart, 04 Civ. 357 (JG), 2005 WL 3388606 at *5 (E.D.N.Y. Dec. 2, 2005); Rivera v. Barnhart, 379 F. Supp. 2d 599, 604 (S.D.N.Y. 2005) (Marrero, D.J.); see 42 U.S.C. § 405(g) ("The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."). 2. Determination of Disability
Under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., a claimant is entitled to disability benefits if he or she can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. 25
Walton, 535 U.S. 212, 217-22 (2002) (both impairment and inability to work must last twelve months). The impairment must
be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), and it must be of such severity that [the claimant] is not only unable to do his previous work but cannot, considering [the claimant's] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [the claimant] lives, or whether a specific job vacancy exists for [the claimant], or whether [the claimant] would be hired if [the claimant] applied for work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). In addition, to
obtain disability benefits, the claimant's disability must have commenced prior to the expiration of his or her insured status. 20 C.F.R. §§ 404.130, 404.315. The Commissioner must consider both objective and subjective factors when assessing a disability claim, including: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of pain and disability to which the claimant and family or others testify; and (4) the claimant's educational background, age and work experience. Brown v. Apfel, 174 F.3d 59, 62 (2d
Cir. 1999); Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983). "In evaluating disability claims, the [Commissioner] is required to use a five-step sequence, promulgated in 20 C.F.R.
26
§§ 404.1520, 416.920." 1996).
Bush v. Shalala, 94 F.3d 40, 44 (2d Cir.
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where . . . the claimant is not so engaged, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits his physical or mental ability to do basic work activities. . . . Where the claimant does suffer a severe impairment, the third inquiry is whether, based solely on medical evidence, he has an impairment listed in Appendix 1 of the regulations or equal to an impairment listed there. . . . If a claimant has a listed impairment, the Commissioner considers him disabled. Where a claimant does not have a listed impairment, the fourth inquiry is whether, despite his severe impairment, the claimant has the residual functional capacity to perform his past work. . . . Finally, where the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform. Balsamo v. Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); see also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds on rehearing, 416 F.3d 101 (2d Cir. 2005); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Shaw v. Chater, supra, 221 F.3d at 132; Brown v. Apfel, supra, 174 F.3d at 62; Tejada v. Apfel, supra, 167 F.3d at 774; Rivera v. Schweiker, supra, 717 F.2d at 722. Step four requires that the ALJ make a determination as to the claimant's residual functional capacity ("RFC"). Sobolewski v. Apfel, 985 F. Supp. 300, 309 (E.D.N.Y. 1997). is defined in the applicable regulations as "the most [the RFC
27
claimant] can still do despite [his] limitations." §§ 404.1545(a)(1), 416.945(a)(1).
20 C.F.R.
The claimant bears the initial burden of proving disability with respect to the first four steps. Burgess v.
Astrue, supra, 537 F.3d at 128; Green-Younger v. Barnhart, supra, 335 F.3d at 106; Balsamo v. Chater, supra, 142 F.3d at 80. Once
the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step -- that the claimant's RFC allows the claimant to perform some work other than the claimant's past work. Balsamo v. Chater, supra, 142 F.3d at 80;
Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). In meeting [his] burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid." The Grid takes into account the claimant's RFC in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Gray v. Chater, 903 F. Supp. 293, 297-98 (N.D.N.Y. 1995) (Koeltl, D.J.). When a claimant retains the RFC to perform at least one
of the categories of work listed on the Grid, and when the claimant's educational background and other characteristics are also captured by the Grid, the ALJ may rely exclusively on the Grid in order to determine whether the claimant retains the RFC to perform some work other than his or her past work. Butts v.
28
Barnhart, supra, 388 F.3d at 383 ("In the ordinary case, the Commissioner meets his burden at the fifth step by resorting to the applicable medical vocational guidelines (the [Grid])."). However, "exclusive reliance on the [Grid] is inappropriate" where non-exertional limitations significantly limit a claimant's ability to work. Butts v. Barnhart, supra,
388 F.3d at 383, quoting Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999); Bapp v. Bowen, supra, 802 F.2d at 603. When a
claimant suffers from a non-exertional limitation such that he is "unable to perform the full range of employment indicated by the [Grid]," Bapp v. Bowen, supra, 802 F.2d at 603, the Commissioner must introduce the testimony of a vocational expert in order to prove "that jobs exist in the economy which the claimant can obtain and perform." Butts v. Barnhart, supra, 388 F.3d at 383;
see 20 C.F.R. § 404.1569a(d), pt. 404, subpt. P, app. 2, § 200.00(e); see also Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983) ("If an individual's capabilities are not described accurately by a rule, the regulations make clear that the individual's particular limitations must be considered."). When considering the evidence in the record, the ALJ is required to give deference to the opinions of treating physicians. Under the regulations' "treating physician rule," a
treating physician's opinion will be given controlling weight if it is "well-supported by medically acceptable clinical and
29
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in . . . [the] record." 20 C.F.R.
§ 404.1527(d)(2); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Dias v. Shalala, 59 F.3d 307, 313 n.6 (2d Cir. 1995); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). Before
giving a treating physician's opinion less than controlling weight, the ALJ must apply various factors to determine the amount of weight the opinion should be given. include: These factors
(1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the treatment relationship; (3) the medical support for of the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) the physician's level of specialization in the area and (6) other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(d)(2)-
(6); Schisler v. Sullivan, supra, 3 F.3d at 567; Mitchell v. Astrue, 07 Civ. 285 (JSR), 2009 WL 3096717 at *16 (S.D.N.Y. Sept. 28, 2009) (Rakoff, D.J.) (adopting Report and Recommendation of Freeman, M.J.); Matovic v. Chater, 94 Civ. 2296 (LMM), 1996 WL 11791 at *4 (S.D.N.Y. Jan 12. 1996) (McKenna, D.J.). A "good
reason" must be given for declining to afford a treating physician's opinion controlling weight. 20 C.F.R.
§ 404.1527(d)(2); Schisler v. Sullivan, supra, 3 F.3d at 570;
30
Burris v. Chater, 94 Civ. 8049 (SHS), 1996 WL 148345 at *6 n.3 (S.D.N.Y. Apr. 2, 1996) (Stein, D.J.). "If the ALJ finds that a claimant is disabled under the Act, but the record contains evidence of substance abuse, the ALJ must determine whether the claimant's drug addiction and/or alcoholism is a contributing factor material to the determination of disability." Mitchell v. Astrue, supra, 2009 WL 3096717 at This analysis turns on whether
*15; see 20 C.F.R. § 404.1535.
the claimant would still be found disabled were he to stop using drugs and alcohol. 20 C.F.R. § 404.1535(b)(1); Mitchell v. "When the record reflects
Astrue, supra, 2009 WL 3096717 at *15.
drug or alcohol abuse, the claimant bears the burden of proving that substance abuse is not a contributing factor material to the disability determination." Eltayyeb v. Barnhart, 02 Civ. 925
(MBM), 2003 WL 22888801 at *4 (S.D.N.Y. Dec. 8, 2003) (Mukasey, D.J.). B. Evaluation of the ALJ's Decision11 In his decision, the ALJ first noted that plaintiff met the Social Security Act's insured status requirements through December 31, 2009 (Tr. 15). The ALJ then applied the five-step
Because plaintiff does not indicate in his submission that he objects to any specific aspects of the ALJ's decision, I will consider each of the steps in the ALJ's analysis that supported the conclusion that plaintiff was not disabled. 31
11
analysis and determined that, based on the medical evidence and plaintiff's testimony: (1) plaintiff had not engaged in
substantial gainful activity since November 30, 2005, (2) plaintiff had two severe impairments, depression and alcoholism12 and (3) although plaintiff suffered from severe impairments, they did not, either singly or in combination, meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 14-16). The ALJ found that plaintiff's severe impairments did not rise to the level of an impairment listed in or medically equivalent to the listed impairments because plaintiff's condition did not meet the criteria of paragraphs B or C of the listings for plaintiff's impairments, found in Section 12.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 15-16). Section
12.04 addresses affective disorders, including depressive syndrome, and contains criteria divided into paragraphs A, B and
As noted above, a claimant is not entitled to DIB if alcoholism or drug addiction is a material contributing factor to what would otherwise be a qualifying disability, 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535, i.e., the claimant is not entitled to DIB if he would no longer be disabled if he stopped using drugs or alcohol, 20 C.F.R. § 404.1535(b)(1)-(2). Because the ALJ found plaintiff was not disabled, he did not reach this inquiry. In any event, plaintiff's substance addiction was apparently in remission as of both the ALJ's hearing (November 26, 2007) and Dr. Levitt's evaluation (April 23, 2008) and plaintiff claimed not to have used drugs or alcohol since August 2006 (Tr. 27, 37, 176). 32
12
C.13
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04(A).
"The
required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied." app. 1, § 12.04. Paragraph A is met when there is "medically documented persistence" of either depressive syndrome or manic syndrome characterized by certain symptoms or conditions defined in the paragraph. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04(A). To satisfy paragraph B, a claimant must show that his condition results in at least two of: "(1) [m]arked restriction 20 C.F.R. pt. 404, subpt. P,
of activities of daily living; or (2) [m]arked difficulties in maintaining social functioning; or (3) [m]arked difficulties in maintaining concentration, persistence, or pace; or (4) [r]epeated episodes of decompensation, each of extended duration." C.F.R. pt. 404, subpt. P, app. 1, § 12.04 (B). 20
The regulations
state that "marked" means "more than moderate but less than extreme." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C). An
episode of decompensation is an "exacerbation[] or temporary increase[] in symptoms or signs accompanied by a loss of adaptive
"Section 12.09 provides that the required severity for a substance addiction disorder is met when, inter alia, the requirements of section 12.04 are satisfied." Mitchell v. Astrue, supra, 2009 WL 3096717 at *12; see 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.09. 33
13
functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace." 404, subpt. P, app. 1, § 12.00(C)(4). 20 C.F.R. pt.
"The term repeated
episodes of decompensation, each of extended duration . . . means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks." subpt. P, app. 1, § 12.00(C)(4). To satisfy paragraph C, a claimant must show "[m]edically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support" as well as at least one of: "(1) [r]epeated episodes of 20 C.F.R. pt. 404,
decompensation, each of extended duration; or (2) [a] residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or (3) [c]urrent history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04(C).
The ALJ did not explicitly address the criteria of paragraph A, apparently finding that plaintiff satisfied the
34
paragraph A requirements.
See Mitchell v. Astrue, supra, 2009 WL
3096717 at *12 n.6; Rivas v. Barnhart, 01 Civ. 3672 (RWS), 2005 WL 183139 at *21 (S.D.N.Y. Jan. 27, 2005) (Sweet, D.J.).
However, the ALJ found that plaintiff failed to meet either the paragraph B criteria or the paragraph C criteria (Tr. 15-16). reaching his determination that plaintiff did not satisfy paragraph B, the ALJ stated: In activities of daily living, the claimant has a mild restriction. In social functioning, the claimant has moderate difficulties. With regard to concentration, persistence or pace, the claimant has moderate difficulties. As for episodes of decompensation, the claimant has experienced 1 or 2 episodes of decompensation. Because the claimant's mental impairments do not cause at least two "marked" limitations or one "marked" limitation and "repeated" episodes of decompensation, the "paragraph B" criteria are not satisfied. (Tr. 15-16). The ALJ also stated that "the evidence fails to In
establish the presence of the 'paragraph C' criteria" (Tr. 16). He elaborated on the limitations set forth in paragraphs B and C in his analysis of plaintiff's RFC, which, he stated, "requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C" (Tr. 16). Thus, the substance of the ALJ's reasoning behind his determination regarding the paragraph B and C criteria is found in his discussion of plaintiff's RFC. The ALJ drew on substantial evidence in the record to support his conclusion that plaintiff's condition failed to meet
35
the requirements of paragraph B.
His finding that plaintiff has
a mild restriction in daily living activities is supported by the finding of Dr. Levitt,14 plaintiff's treating physician15 (Tr. 178). It is also supported by other evidence in the record that
was noted by the ALJ (Tr. 17), namely Dr. Lombard's statement that plaintiff's ability to perform daily living activities was within normal limits (Tr. 154) and Dr. Helprin's statements that plaintiff was able to groom himself, drive and attend meetings (Tr. 161). Further, although the ALJ did not mention this
portion of Dr. Helprin's report in his decision, the ALJ's finding of a mild restriction in plaintiff's daily living activities is consistent with Dr. Helprin's statement that plaintiff's "psychiatric difficulties" are "not significant enough to interfere with [plaintiff's] ability to function on a daily basis" (Tr. 162). Although the ALJ's finding that
plaintiff has a mild limitation in daily living activities differs from Dr. Hameed's finding that plaintiff has no restriction in his daily living activities (Tr. 140), it is
Although the ALJ states in his decision that Dr. Levitt found no limitations in plaintiff's daily living activities (Tr. 17), Dr. Levitt in fact opined in his report that plaintiff had a mild limitation in daily living activities (Tr. 178). As explained above, the ALJ must afford the opinion of a treating physician special deference. See 20 C.F.R. § 404.1527(d)(2); Shaw v. Chater, supra, 221 F.3d at 134; Dias v. Shalala, supra, 59 F.3d at 313 n.6; Schisler v. Sullivan, supra, 3 F.3d at 567. 36
15
14
supported by substantial evidence, including the opinion of plaintiff's treating physician. In any event, the difference
between a finding of no limitation and a finding of mild limitation does not affect whether plaintiff is disabled under paragraph B. The ALJ's finding that plaintiff has moderate difficulties in social functioning is also supported by the finding of Dr. Levitt (Tr. 179) and is consistent with other evidence cited in the ALJ's decision (Tr. 17), namely Dr. Lombard's report that plaintiff had some limitation in social interaction (Tr. 155). To the extent that the ALJ did not find a
more extreme limitation in social interaction, his finding on this element is supported by Dr. Helprin's findings that plaintiff's social skills and ability to relate to others were adequate (Tr. 160, 162). Although the ALJ did not mention this
in his opinion, his conclusion is also supported by Dr. Hameed's findings that plaintiff had no significant limitations in his abilities to "interact appropriately with the general public[,] . . . get along with coworkers or peers without distracting them or exhibiting behavioral extremes . . . [or] maintain socially appropriate behavior" (Tr. 145). In finding that plaintiff has moderate difficulties in concentration, persistence or pace, the ALJ rejected the opinion of Dr. Levitt, plaintiff's treating physician, that plaintiff has
37
a marked limitation in this area (Tr. 179; see Tr. 15-16). However, the ALJ's conclusion was supported by other substantial evidence in the record that was inconsistent with Dr. Levitt's opinion: Dr. Lombard's finding that plaintiff's depression
limited his concentration and persistence to an unspecified degree (Tr. 155) and Dr. Helprin's statement that plaintiff was "able to maintain sufficient attention and concentration [if] provided [with] specific task instructions" (Tr. 161-62). See 20
C.F.R. § 404.1527(d)(2) ("a treating source's opinion on the issue(s) of the nature and severity of your impairment(s)" is to be given controlling weight when it "is not inconsistent with the other substantial evidence in [the] case record" and is supported by mecially acceptable techniques). Although the ALJ did not
cite this evidence in his opinion, his rejection of Dr. Levitt's assessment is also supported by Dr. Helprin's conclusion that plaintiff's attention and concentration are only mildly impaired (Tr. 161) and Dr. Hameed's findings that plaintiff had moderate difficulties in maintaining concentration, persistence or pace (Tr. 140) and no significant limitations in his ability "to perform at a consistent pace" (Tr. 145). Although the ALJ's failure to adopt the treating physician's conclusion was supported by substantial evidence inconsistent with that conclusion, see 20 C.F.R. § 404.1527(d)(2), the ALJ is still required to apply a series of
38
specific factors in order to determine what weight to give Dr. Levitt's opinion. These factors include: (1) the length of the
treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the medical support for of the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) the physician's level of specialization in the area and (6) other factors that tend to support or contradict the opinion. 20
C.F.R. § 404.1527(d)(2)-(6); Schisler v. Sullivan, supra, 3 F.3d at 567; Mitchell v. Astrue, supra, 2009 WL 3096717 at *16; Matovic v. Chater, supra, 1996 WL 11791 at *4. The ALJ's opinion contains no indication that he considered any of these factors other than the fourth and perhaps the sixth (see Tr. 17) in deciding not to give controlling weight to Dr. Levitt's opinion on plaintiff's limitation in concentration, persistence or pace. Violation of the treating Halloran v. Barnhart,
physician rule can be a basis for remand.
supra, 362 F.3d at 33 ("We do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physician[']s opinion and we will continue remanding when we encounter opinions from ALJ[]s that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."); accord Rivas v. Barnhart, supra, 2005 WL 183139 at *27. In this case, however, the point on which
39
the ALJ apparently contravened the treating physician rule is not dispositive; even if Dr. Levitt's conclusion that plaintiff had a marked limitation in concentration, persistence or pace were deemed controlling, plaintiff's condition would not qualify as a disability by satisfying the requirements of paragraph B because he does not have any other marked limitations and, as discussed below, has not experienced repeated episodes of decompensation. The ALJ's conclusion that plaintiff had not experienced repeated episodes of decompensation is also consistent with substantial evidence. Both Dr. Levitt and Dr. Hameed found that
plaintiff had experienced only one or two episodes of decompensation or deterioration (Tr. 140, 179-80). Beyond this,
the record before the ALJ contained no evidence of any episodes of decompensation, defined as "exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace." 404, subpt. P, app. 1, § 12.00(C)(4). 20 C.F.R. pt.
Even if plaintiff's
instances of extreme substance abuse, leading to his hospitalizations for detoxification and rehabilitation, were to be interpreted as episodes of decompensation, the evidence does not suggest that these events lasted at least two weeks each and happened three times within a year or an average of once every
40
four months, as the Commsissioner's regulations require.16 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(4).
See
The ALJ's conclusion that plaintiff's condition failed to meet the requirements of paragraph C is also supported by substantial evidence. As discussed above, there was no evidence
of repeated episodes of decompensation as defined in the Act. Nor was there evidence that plaintiff experienced "a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or a change in the environment would be predicted to cause the individual to decompensate." § 12.04(C)(2). 20 C.F.R. pt. 404, subpt. P, app. 1, In fact, as the ALJ noted in his decision, Dr.
Helprin opined that plaintiff had the ability to "deal appropriately with stressors with current treatment" (Tr. 162). Further, there was no evidence in the record suggesting that plaintiff had lacked the ability "to function outside a highly supportive living environment" for more than a year (or for any substantial length of time). 1, § 12.04(C)(3). 20 C.F.R. pt. 404, subpt. P, app.
The evidence regarding plaintiff's living
environment shows that he lives alone (Tr. 33-34) and that, although he receives some assistance from his parents with
Furthermore, a finding of disability would be precluded if the ALJ found that such episodes of decompensation would not have occured but for plaintiff's use of drugs or alcohol, a conclusion that would be nearly inevitable. See 20 C.F.R. §§ 404.1535(b)(1). 41
16
cleaning, cooking and grocery shopping, he is able to dress, bathe and groom himself as well as drive himself to meetings (Tr. 161). In determining plaintiff's RFC at step four, the ALJ concluded that plaintiff has no exertional limitations, but has a non-exertional limitation17 which limits his work potential to "simple, routine and repetitive tasks" (Tr. 16). The ALJ
rejected plaintiff's contentions regarding his inability to work at all, finding that his statements regarding "the intensity, persistence and limiting effects of [his] symptoms [we]re not credible to the extent they are inconsistent with the residual functional capacity assessment"18 (Tr. 16).
A non-exertional limitation is a limitation which affects a claimant's ability to fulfill job functions that are unrelated to strength. 20 C.F.R. § 404.1569a(c)(1). Examples include difficulty functioning because of depression and difficulty maintaining attention or concentration. 20 C.F.R. § 404.1569a(c)(1)(i)-(ii). This conclusion is somewhat problematic, because plaintiff's statements are one of the factors the ALJ is to consider in making the RFC assessment. 20 C.F.R. § 404.1545(a)(3) (In determining your RFC, "[w]e will . . . consider descriptions and observations of your limitations from your impairment(s), including limitations that result from your symptoms . . . provided by you . . . ."). Based on the context -- a portion of the opinion in which the ALJ relies on other evidence in the record to discredit plaintiff's contentions regarding his ability to work -- I interpret the ALJ's statement as an attempt to explain that the ALJ's RFC determination rejects plaintiff's statements that his condition prevents him from working because they are is inconsistent with other evidence in the record. 42
18
17
The ALJ's RFC determination was supported by substantial evidence. As the ALJ noted (Tr. 17), Dr. Levitt
opined that plaintiff had only a mild limitation in his ability to perform simple tasks on a continued basis in a full-time work setting (Tr. 181) and Dr. Helprin opined that plaintiff was able to perform simple rote tasks (Tr. 161). More generally, the ALJ
emphasized that the only marked limitation Dr. Levitt found with regard to the paragraph B criteria was in the area of concentration and that Dr. Helprin found no significant limitations (Tr. 17, see Tr. 159-62, 178-81). The ALJ's RFC
determination is also consistent with Dr. Levitt's opinion that plaintiff had a marked limitation in his ability to perform complex tasks on a sustained basis in a full-time setting (Tr. 181) (emphasis added) and Dr. Helprin's recommendation that plaintiff seek a job involving "simple tasks with specific procedural instructions, not in a supervisory capacity" (Tr. 162). To the extent the ALJ's RFC finding rested on a determination of plaintiff's credibility, it was "within the discretion of the [Commissioner] to evaluate the credibility of plaintiff's complaints and render an independent judgment in light of the medical findings and other evidence regarding the true extent of such symptomatology." Gernavage v. Shalala, 882
F. Supp. 1413, 1419 (S.D.N.Y. 1995) (Leisure, D.J.); accord Mimms
43
v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984); Richardson v. Astrue, 09 Civ. 1841 (SAS), 2009 WL 4793994 at *6 n.97 (S.D.N.Y. Dec. 14, 2009) (Scheindlin, D.J.); see Aponte v. Sec'y, Dep't. of Health & Human Servs. of U.S., 728 F.2d 588, 591 (2d Cir. 1984); Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) ("It is the function of the [Commissioner], not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant."). Concluding step four, the ALJ found, based on the testimony of the vocational expert, that someone of plaintiff's age, education, work history and RFC would not be able to do any of his past relevant work,19 which required the performance of complex tasks (Tr. 18). This determination was supported by
substantial evidence, as the vocational expert testified that the job of construction project manager was skilled work and that someone limited to the performance of simple, routine, repetitive tasks would not be able to perform it (Tr. 39, 41). At step five, the ALJ relied on the Medical-Vocational Guidelines20 and the testimony of the vocational expert to find
A claimant's past relevant work is normally the work he or she performed in the last fifteen years. See 20
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