Rodriguez v. Astrue
Filing
21
OPINION & ORDER re: 15 CROSS MOTION for Judgment on the Pleadings filed by Michael J. Astrue, 8 MOTION for Judgment on the Pleadings filed by Lisandro Rodriguez. For the reasons set forth above, Plaintiff's motion for judgment on the plead ings is DENIED and the Commissioner's cross-motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motions at ECF Nos. 8 and 15, and to terminate this action. (Signed by Judge Katherine B. Forrest on 10/23/2013) (mro) Modified on 10/23/2013 (mro).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NE\V YORK
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USDC SDl\Y
DOCUMENT
ELECTRONICALLY FII I
J)OC #:
)(
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DATE FILED:
OCT 232013
LISANDRO RODRIGUEZ,
11 Civ. 7354 (KBF)
Plaintiff,
-v-
OPINION & ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------------------------KATHERINE B. FORREST, District Judge:
I'
)(
Lisandro Rodriguez ("Plaintiff') seeks review of the decision by defendant
Commissioner of Social Security (the "Commissioner") to deny him Child Disability
Benefits ("CDB") and Supplemental Security Income ("SSI") based on the finding
that Plaintiff was not and is not disabled for purposes of the Social Security Act.
After a hearing on March 16, 2010, Administrative Law Judge Mark Solomon (the
"ALJ") affirmed the Commissioner's denial of benefits to Plaintiff on April 26,2010.
Thereafter, on October 18, 2011, Plaintiff filed this action pursuant to 42 U.S.C. §
405(g). (ECF No. 1.)
The parties have cross-moved for judgment on the pleadings, pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. (ECF Nos. 8, 15.) This case was
transferred to the undersigned on June 6, 2013. (ECF No. 19.) For the reasons set
forth below, Plaintiffs motion for judgment on the pleadings is DENIED, and
Defendant's cross-motion for judgment on the pleadings is GRANTED.
1.
BACKGROUND
A. Medical Background
This is a case where Plaintiff seeks benefits under the Social Security Act on
the grounds that he suffers from "undifferentiated schizophrenia, an adjustment
disorder, attention deficit hyperactive disorder, and major depressive disorder."
(CompI. ,; 4, ECF No. 1.) Plaintiff alleges that he became disabled and unable to
work on or about January 1,1987 W:L.); because Plaintiff was born on May 11, 1968
(Admin. R. CR." or "Record") at 41, ECF No. 6 1), Plaintiff would have been 18 at
that time. According to the record, however, Plaintiff began receiving treatment for
schizophrenia as an out-patient at the New York-Presbyterian Adult Psychiatric
Clinic on May 13, 1992, at which time he would have just turned 24. (R. at 215.)
As of August 8,2005, Plaintiffs condition was being treated with Zyprexa.
(R. at 214.) On October 27, 2006, Plaintiff filled out new patient paperwork at
Inwood Community Services, and on January 29,2007, he was evaluated at Inwood
by psychiatrist Dr. Mercedes Brito. 2 (R. at 239-240). Dr. Brito diagnosed Plaintiff
with schizophrenia, noting a friendly manner, normal posture, and a calm mood,
but poor eye contact, flat affect, minimal speech, and below-average cognitive
function. (R. at 239.)3 In a review on Feburary 26,2007, Dr. Brito notes Plaintiff
I The Court notes that the administrative record in this matter was filed by the Commissioner with
his answer (see Answer ~ 6, ECF No.5) but does not appear as a separate entry on the docket.
2 The ALJ mistakenly refers to Dr. Brito as a male in his opinion. (R. at 30.)
3 A Global Assessment Functioning ("GAF") score represents "the clinician's judgment of the
individual's overall level of functioning." Diagnostic and Statistic;:tl MElOual of Mental Disorders 30
(4th ed. 1994). The parties dispute whether Dr. Brito gave plaintiff a GAF score of 30 or 50 on
January 29,2007. A GAF score of 41 to 50 represents serious symptoms that present serious
difficulty in social, occupational, or school functioning. Id. at 34. A GAF score of 21 to 30 represents
behavior that is considerably influenced by delusions or hallucinations, a serious impairment in
2
was taking Zyprexa and Abilify for his condition, and determined that his treatment
regimen did not need to be modified. (R. at 285.)
In March and April of 2007, Plaintiff met with a social worker at Inwood and
"expressed discomfort" because he was not working and had to borrow money from
his mother and sister. (R. at 281.) He discussed "possible avenue[s] to explore for
employment" with the social worker. (R. at 280.) In September 2007, he told Dr,
Brito he felt "balanced" and was doing "well." (R. at 259), In October 2007, Plaintiff
met with another social worker, who noted that Plaintiffs "interpersonal social
skills are more enhanced," (R. at 264.) In January 2008, Plaintiff spoke to a social
worker and stated that he planned to seek job placement through the Career
Services Department at his college. (R. at 262.) During the same month, Plaintiff
met with Dr, Brito again, who wrote in her notes that Plaintiff was "doing well" and
had "no insomnia." (R. at 257.) In February 2008, Plaintiff missed at least two
sessions with a social worker due to school work and exams. (R. at 260.) He
reported continuing to look for work and that he had applied for a position as a
library assistant. (R. at 260.) In September 2008, Dr. Brito noted that Plaintiff had
moved to Pennsylvania, where he was painting, "doing well," and looking for a job.
(R. at 249.) In October 2008, Plaintiff stated to Dr. Brito that he was uncomfortable
being around people. (R. at 246.) In January 2009, Plaintiff expressed interest to a
communication or judgment, or an inability to function in almost all areas. Id. The parties dispute
whether Dr. Brito's handwritten notes for this evaluation list a GAF score of 50 or 30. (See Pl.'s
Mem. at 2, ECF No.9; Def.'s Mem. at 5-6, ECF No. 16.) The Court notes that Dr. Brito's
handwritten notes appear to state a GAF score of 50, and that a score of 50 would also be more in
line with Dr. Brito's other findings on January 29, 2007, but it finds this dispute to be immaterial in
light of the fact that the ALJ did not explicitly rely on this GAF score in his opinion.
3
social worker in using Vocational Educational Services for Individuals with
Disabilities to help him find a job. (R. at 400.)
On February 19, 2009, roughly three weeks after filings his applications for
CDB and SSI benefits, Plaintiff was evaluated by consulting psychologist Dr.
Rochelle Sherman. (R. at 333.) Dr. Sherman noted that Plaintiff helped his mother
do the cooking, cleaning, and shopping, and Plaintiff reported having an adequate
network of friends and social contacts. (R. at 333.) Dr. Sherman found that
Plaintiff maintained eye contact, did not display any unusual mannerisms, and was
oriented as to time, place, and person. (R. at 333.) Dr. Sherman further noted that
Plaintiff denied having paranoid or suicidal ideations, but did report having
problems with sustained eye contact, anxiousness, and nervousness. (R. at 333.)
Dr. Sherman concluded that Plaintiff appeared capable of adequate interactions
with supervisors and coworkers in a standard work setting, and appeared capable of
performing work activities in a low-stress setting. (R. at 334.) Dr. Sherman
diagnosed Plaintiff with an anxiety disorder and ruled out a schizo affective
disorder. (R. at 334.)
On April 14, 2009, Dr. Hector Goa evaluated Plaintiff4 (R. at 370.)
According to Dr. Goa's notes, Plaintiff was referred by his therapist for a
Comprehensive Psychiatric Evaluation with special emphasis on his capacity to
work. (R. at 370.) Dr. Goa found that Plaintiff was friendly and cooperative, with
clinically normal intellectual function. (R. at 371, 374.) Dr. Goa also found that
Plaintiff was depressed and anxious, with a flat affect and poor concentration,
4
The ALJ refers to Dr. Goa as "Dr. Gao" in his opinion. (R. at 30.)
4
experienced auditory hallucinations at night, and had extreme psychosocial stress
that made him potentially dangerous to others. (R. at 372-375.) Dr. Goa diagnosed
Plaintiff with paranoid schizophrenia, major depressive disorder, and attention
deficit hyperactivity disorder, with a GAF score of 30. (R. at 370-376.) Dr. Goa
opined that Plaintiff was "definitely unable to work" and that his condition "runs a
deteriorating course over time." (R. at 376.)
At the request of Plaintiffs counsel in this action (see R. at 497), on June 29,
2009, Dr. Brito completed a Psychiatric/Psychological Impairment Questionnaire for
Plaintiff. (R. at 531.) Dr. Brito indicated on the Questionnaire that Plaintiff had a
GAF score of 50. (R. at 531.) Dr. Brito also made findings that Plaintiff suffered
from, among other issues, "illogical thinking or loosening of associations,"
"psychomotor agitation or retardation," and "difficulty thinking or concentrating."
(R. at 532.) Dr. Brito noted on the Questionnaire that Plaintiff required emergency
room treatment on two occasions for his symptoms (R. at 533),5 and indicated that
Plaintiffs mental activity was "markedly limited" in every subcategory of
"Understanding and Memory," "Sustained Concentration and Persistence," and
"Social Interactions." (R. at 533-535.) According to the Questionnaire, "markedly
limited" meant that the symptoms "effectively preclude[d] the individual from
performing the activity in a meaningful manner." (R. at 533.) Finally, Dr. Brito
also indicated on the Questionnaire that Plaintiffs "impairments [are] likely to
produce 'good days' and 'bad days'" and estimated that, should Plaintiff find
5
As noted by the ALJ
(se~
R. at 30), no evidence of emergency room treatment is found in the record.
5
employment, Plaintiff was likely to be absent from work more than three times per
month as a result. (R. at 537-538.)
In an August 4, 2009 psychiatric review, Dr. Brito noted that Plaintiff had
sold two of his paintings and was keeping himself busy by painting. (R. at 495.) On
August 25, 2009, Dr. Brito reaffirmed her diagnosis of undifferentiated
schizophrenia, and determined Plaintiff to have a GAF of 65. (R. at 521-523.) On
September 1, 2009, Plaintiff visited a social worker, who noted that Plaintiffs
sleeping pattern was normal. (R. at 492.)
On February 25, 2010, Dr. Brito again stated in a letter that Plaintiffs
condition was undifferentiated schizophrenia. (R. at 542-43.) Dr. Brito also stated
that her clinical findings included poor memory, sleep disturbance, and emotional
lability, and she reaffirmed the validity of her findings on the June 29, 2009
Questionnaire. (R. at 542-43.)
B. Personal Background and Testimony
Plaintiff began undergraduate studies in 1986 or 1987, but did not receive his
Bachelor's degree (in Fine Arts) until 2008. (R. at 41-42, 333.) He was last
employed in 2005, doing paid work-study at a college he attended. (R. at 42, 61.)
Previously, Plaintiff had been employed as a security guard from 2000 to 2001, but
was laid off because he had trouble staying awake during his shift. (R. at 43.)
Plaintiff testified schizophrenia and paranoia as the biggest barriers to his
being able to work. (R. at 47.) He stated that he has been seeing a therapist every
two weeks, and has been able to travel to and from those visits without assistance
6
by taking public transportation. (R. at 46-47.) However, he also reports auditory
hallucinations that last a "few seconds" and the need to take naps during the day
when he does not feel well. (R. at 50.) On bad days, Plaintiff states that he is not
able to travel alone and feels anxious leaving his home. (R. at 51-52.) In response
to a question from the ALJ at the hearing about the side effects of his medications,
Plaintiff reported that they "give [him] sometimes palpitations [sic] and they make
[him] a little bit anxious." (R. at 47.)
Plaintiff testified that he was able to obtain a driver's license (R. at 48), that
one of his hobbies is reading, and that he can read for one to two hours at a time.
(R. at 50.) He also draws paintings and reported that he sold his paintings "once in
a while." (R. at 43-44.)
Plaintiffs sister, Vicki Rodriguez, testified at the hearing that she has lived
in Pennsylvania for the past five years, and that Plaintiff visits her two to three
times a month. (R. at 56.) Rodriguez testified that, during those visits, Plaintiff
spends most of his time in the house, painting, and does not like to be around
people. (R. at 57.) She also testified that Plaintiff has at least one close friend in
Pennsylvania, Rodriguez's neighbor Joseph Johnson. (R. at 58-59.) Plaintiff
testified that he visited Johnson in Pennsylvania "once or twice," but was not able
to provide clear answers to the ALJ in response to questions about whether Plaintiff
visited Pennsylvania more frequently. (R. at 44.) Plaintiff stated that he was
unsure of his sister's address, and appears to confirm, in a response a question from
the ALJ, that his sister lived in New York City. (R. at 44-45.)
7
C. Procedural History
On January 29, 2009, Plaintiff applied for CDB and SSI benefits for an
alleged disability beginning on January 1, 1987. (CompI. at
~r
6.) His applications
were rejected by the Commissioner on March 31,2009. (R. at 71-74.) Plaintiff
subsequently requested an administrative hearing. (CompI. at
~
7.) On March 16,
2010, the ALJ conducted a hearing at which Plaintiff appeared (with a non-attorney
representative) and testified, along with a Vocational Expert eVE"). (R. at 24,37.)
In an April 26, 2010 decision, the ALJ found that Plaintiff was not disabled and
affirmed the denial of CDB and SSI benefits by the Commissioner. (R. at 31.)
II.
DISCUSSION
A. Standard of Review
In reviewing a decision of the Commissioner, a court may "enter, upon the
pleadings and transcript of the record, a judgment affirming, modifYing, or
reversing the decision of the [Commissioner], with or without remanding the cause
for a rehearing." 42 U.S.C. § 405(g). A determination of the ALJ may be set aside
only if it is based upon legal error or is not supported by substantial evidence. Rosa
v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); §ee also Tejada v. Apfel, 167 F.3d 770,
773 (2d Cir. 1999). "Substantial evidence, however, is more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Rosa, 168 F.3d at 77 (quoting Pratts v. Chatel', 94 F.3d 34,
37 (2d. Cir. 1996».
8
If the findings of the Commissioner as to any fact are supported by
substantial evidence, those findings are conclusive. 42 U.S.C. § 405(g); Diaz v.
Shalala, 59 F.3d 307, 312 (2d Cir. 1995). The Court's role is not to make a de novo
determination of disability. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002)
("[w]here 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"). The Court should uphold the Commissioner's decision
upon a finding of substantial evidence, even when contrary evidence exists. See
Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (,,[w]here there is substantial
evidence to support either position, the determination is one to be made by the
factfinder"); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998)
(affirming ALJ decision where substantial evidence supported both sides).
B. Analysis
Plaintiffs SSI claim requires a showing that he is disabled within the
meaning of the Social Security Act, which means an "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or that has lasted or
can be expected to last for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(1)(A). Plaintiffs impairments must be "of such severity that he is
not only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy." Id. § 423(d)(2)(A). Additionally, for his CDB claim,
9
Plaintiff must show that he was under a disability before he attained 22 years of
age. G Id-, § 402(d)(1)(B)(ii).
The Commissioner undertakes a five-step process in making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920; DeChirico, 134 F.3d at 1179
80. The Second Circuit has described the process as follows:
First, the Commissionel' considers whether the claimant is currently
engaged in substantial gainful activity. Where the claimant is not, the
Commissioner next considers whether the claimant has a "severe
impairment" that significantly limits 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 that is listed in 20 C.F.R. pt. 404, subpt.
P, app. 1. If the claimant has a listed impairment, the Commissioner
will consider the claimant 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, she has the residual
functional capacity to perform her past work. Finally, if the claimant
is unable to perform her past work, the burden then shifts to the
Commissioner to determine whether there is other work which the
claimant could perform.
Tejada, 167 F.3d at 774. A claimant bears the burden of proof as to the first four
steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel,
134 F.3d 496, 501 (2d Cir. 1998).
Plaintiff challenges the ALJ's finding that Plaintiff was and is not disabled on
four grounds: (1) that the ALJ's finding that Plaintiff had no listed impairment
under 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.03 was unsupported by
G As noted in Part I.A, supra, Plaintiff was first treated for schizophrenia when he was
approximately 24 years old. Though Plaintiff argues that he was 18 years old at the onset of his
impairment (P1.'s Mem. at 1), there is no evidence in the record to substantiate a diagnosis of
schizophrenia prior to age 24.
10
substantial evidence; (2) that the ALJ failed to follow the "treating physician rule";
(3) that the ALJ failed to properly evaluate Plaintiffs credibility; and (4) that the
ALJ relied on "flawed" VE testimony. (Pl.'s Mem. at i, ECF No.9.) For the reasons
set forth below, Plaintiff fails on each of these grounds-the ALJ's findings and
conclusions were supported by substantial evidence.
1. Listed Impairment
A disability due to schizophrenia, paranoia, or other psychotic disorder is
governed by 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.03, which contains
three sub-paragraphs-Paragraphs A, B, and C. 20 C.F.R. Part 404, Subpart P,
App. 1, § 12.03. In order to qualify as disabled under § 12.03, a claimant must fulfill
the conditions set forth in either Paragraphs A and B, or Paragraph C alone. Id.
The ALJ made no findings with respect to Paragraph A, but determined that
Plaintiff did not satisfy the requirements of either Paragraph B or C. (R. at 28.)
Plaintiff challenges the ALJ's determination regarding Paragraph B, but does not
challenge his determination regarding Paragraph C. (Pl.'s Mem. at 9-10.)
Paragraph B requires that Plaintiffs condition result in at least two of the
following: (1) "marked7 restriction of activities of daily living"; (2) "marked
difficulties in maintaining social functioning"; (3) "marked difficulties in
maintaining concentration, persistence, or pace"; and (4) "repeated episodes of
decompensation, each of extended duration." 20 C.F.R. Part 404, Subpart P, App. 1
A marked restriction must be "more than moderate, but less than extreme." 20 C.F.R. Part 404,
Subpart P, App. 1 § 12.00(C).
7
11
§ 12.03(B). Plaintiff bears the burden of proving that he has a listed impairment
under, inter alia, Paragraph B. See Schaal, 134 F.3d at 501.
The ALJ's finding that Plaintiff did not meet his burden of showing that his
impairment satisfies Paragraph B was supported by substantial evidence. The ALJ
determined that Plaintiff has mild restrictions in activities of daily living, moderate
restrictions in social functioning, moderate difficulties in concentration, persistence,
or pace, and no extended episodes of decompensation. (R. at 28.) The ALJ cites
extensively to the record in support of these findings. (R. at 28.) In addition, the
ALJ noted that Plaintiff could travel by himself by train to visit his sister, was alert
and oriented as to time, place, and person, and his speech was coherent and goal
oriented. (R. at 27.) He further noted that Plaintiff had been actively seeking
employment, which "belies his assertion of inability to function in the workplace."
(R. at 27.) \Vhile the ALJ acknowledges that Plaintiff mentioned being
uncomfortable around people to his doctors, the record includes notes from
Plaintiffs therapy sessions which indicated that his social skills were improving. (R
at 27.) The ALJ also cited to Plaintiffs testimony in which he stated that he was
able to read for stretches of one to two hours at a time without losing concentration.
(R. at 27.) In sum, the Court finds that the ALJ's determination that Plaintiff did
not meet the criteria set forth in Paragraph B, and thus is not disabled under §
12.03, is supported by substantial evidence.
12
2. The "Treating Physician Rule"
Plaintiff next argues that the ALJ failed to give proper weight to the opinions
of Dr. Brito and Dr. Goa as required by the "treating physician rule." (Pl.'s Mem. at
10-14.) Under this rule, "the opinion of a claimant's treating physician as to the
nature and severity of the impairment is given controlling weight so long as it is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the case
record." Burgess v. Astrue, 537 F.3d 117,128 (2d Cir. 2008) (internal citations and
quotations omitted); see also 20 C.F.R. § 404.1527(d)(2).
If an ALJ determines that a treating physician's opinion is not to be given
controlling weight, he must consider several factors in determining how much
weight to give the opinion, including: the "length of the treatment relationship and
the frequency of examination," the "nature and extent of the treatment
relationship," the "relevant evidence ... , particularly medical signs and laboratory
findings supporting the opinion," "the consistency of the opinion with the record as a
whole," "whether the physician is a specialist in the area covering the particular
medical issues," and other factors "which tend to support or contradict the opinion."
Burgess, 537 F.3d at 129 (internal quotations omitted); § 404.1527(d)(2)(i)-(ii), (3)
(6). After considering these factors, the ALJ must "comprehensively set forth his
reasons for the weight assigned to a treating physician's opinion." Burgess, 537
F.3d at 129; 20 C.F.R. § 404.1527(d)(2).
13
In this case, the ALJ acknowledged that Dr. Brito was Plaintiffs treating
physician, but determined that her opinion should be given "some weight" rather
than controlling weight because her "assessment was overly restrictive in light of
the evidence in the record." (R. at 30.) The Court finds that the ALJ's
determination as to Dr. Brito was supported by substantial evidence. In support of
this finding, the ALJ noted inconsistencies between Dr. Brito's notes (which
indicated that Plaintiff had been hospitalized twice for his condition and had a
loosening of associations) and the rest of the record. (R. at 30.) The ALJ noted that
there were no hospital records reflecting that Plaintiff had ever been hospitalized
for his condition and no evidence to support the conclusion that Plaintiff had a
loosening of associations. (R. at 30.) To the contrary, the ALJ notes that, according
to Dr. Sherman, Plaintiff "was oriented to time, place, and person. He was able to
identify many prominent political figures and was able to repeat an adequate
number of digits in precise forward and backward order." (R. at 27.) Further, in
response to Dr. Brito's conclusion that Plaintiff would be absent from work at least
three days per month because of his impairment, the ALJ noted that the record
shows that Plaintiff "functions well"-Plaintiffs speech was coherent, he was able
to read for one to two hours at a time, he was actively looking for employment, and
he was able to travel by himself to Pennsylvania. (R. 27, 30, 56.)
The ALJ determined that Dr. Goa's opinions would receive "little weight"
because they were "overly extreme" in light of the other evidence in the record. (R.
at 30.) The Court finds that the ALJ's determination as to Dr. Goa was also
14
supported by substantial evidence. As the ALJ noted, Dr. Goa concluded that
Plaintiff was potentially a danger to others and had the "most severe psychiatric
condition." (R. at 30). To the contrary, the ALJ cited record evidence concerning
Plaintiffs ability to go to school (and graduate), to perform household chores, and to
paint on a regular basis. (R. at 30.) The record also demonstrates that Plaintiff
visited his sister on several occasions and interacted with a friend while he was
there. (R. at 44-45, 56-59.)
Plaintiff relies on Bauer v. Astrue, 532 F.3d 606 (7th Cir. 2008), to support
his argument that his ability to function in daily living activities is insufficient to
overcome the treating physician rule. (Pl.'s Reply at 1-2.) In Bauer, the Seventh
Circuit found that evidence that an applicant could perform chores, take care of her
personal hygiene, prepare meals, shop for food, and care for a 13-year-old child did
not overcome the opinions of her treating mental health professionals regarding
disability. Bauer, 532 F.3d at 608-09. Bauer is inapposite, however, because of the
internal inconsistencies in Dr. Brito's own findings and the inconsistencies with her
findings, Plaintiffs testimony, and the rest of the record. Additionally, Dr. Goa is
not a "treating physician" at all-he evaluated Plaintiff on one occasion. The Court
finds that the ALJ followed the factors set forth in 20 C.F.R. § 404.1527(c)(2) and in
cases like Burgess, and sufficiently explained the appropriate weight to be given to
the various medical opinions in the record.
In so finding, the Court is not suggesting that Plaintiff does not suffer from
some impairment for which he has received treatment over the years, particularly
15
from Dr. Brito. The standard for disability set forth in 42 U.S.C. § 423(d)(1)(A),
however, is quite clear-it requires proof of an "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or that has lasted or
can be expected to last for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(1)(A) (emphasis added). Particularly in light of this standard, the
ALJ's determination as to the appropriate weight to give the conclusions of Dr.
Brito and Dr. Goa was supported by substantial evidence.
3. Plaintiffs Credibility
Plaintiff next argues that the ALJ failed to apply the proper legal standard in
determining Plaintiffs credibility, to properly support his credibility determination,
and to give sufficient weight to Plaintiffs statements regarding his subjective level
of impairment. (Pl.'s Mem. at 16-17.)
With respect to the legal standard, Plaintiff argues that the ALJ erred by
evaluating the consistency of Plaintiffs statements against the ALJ's own
assessment of Plaintiffs functionality, rather than against the evidence in the
record. (Id. at 16.) To the contrary, the ALJ applied the relevant criteria and cites
several sources of evidence, including medical notes and testimony given by
Plaintiff and Plaintiffs sister (which were inconsistent). (R. at 29.) An ALJ, "after
weighing objective medical evidence, the claimant's demeanor, and other indicia of
credibility ... may decide to discredit the claimant's subjective estimation of the
degree of impairment." Tejada, 167 F.3d at 776 (citation omitted). If the ALJ finds
16
that a claimant is not credible, he must present "specific reasons for the finding on
credibility, supported by the evidence in the case record" which are "sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual's statements and the reasons for that weight."
Social Security Ruling 96-7p, 61 Fed. Reg. 34,484,1996 WL 374186. The ALJ's
determination is entitled to deference unless it is not set forth "with sufficient
specificity" to enable the Court to decide whether it is supported by substantial
evidence. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Here, the ALJ's determination as to Plaintiffs credibility was set forth with
sufficient specificity and is supported by substantial evidence. In his written
opinion, the ALJ carefully explains his concerns with the credibility of several
aspects of Plaintiffs testimony. (R. at 27, 29.) The ALJ clearly reviewed the
medical evidence in the record and noted that the mental health professionals who
treated Plaintiff did not document such extensive memory lapses as would explain
Plaintiffs inability to recall the many visits to Pennsylvania reported by the mental
health professionals and Plaintiffs sister. (R. at 29.) The ALJ goes on to cite
evidence in the record which shows that Plaintiff functions in a way that is
inconsistent with extensive memory loss, including maintaining concentration while
reading, using public transportation independently, and dependably performing
household chores. (R. at 29.) Contrary to Plaintiffs allegations (Pl.'s Mem. at 19),
the ALJ both considered and addressed the testimony of Plaintiffs sister in
connection with both Plaintiffs level of functioning (reflected by his trips to visit his
17
sister) and Plaintiffs own credibility. (R. at 29.) As the ALJ's findings as to
Plaintiffs testimony were supported by substantial evidence, this Court defers to
the credibility determinations he made while presiding over the hearing.
4. VE Testimony
Finally, Plaintiff argues that the VE's testimony concerning the kinds of work
Plaintiff would be able to perform constituted an impermissible lay assessment that
should not have been considered by the ALJ. (Pl.'s Mem. at 19-20.) For VE
testimony to be "useful" to an ALJ, it must address "whether the particular
claimant, with his limitations and capabilities, can realistically perform a particular
job." Aubeufv. Schweiker, 649 F.2d 107,114 (2d. Cir. 1981).
Because the Court has previously found that the ALJ's other determinations
are supported by substantial evidence, the Court finds that the hypothetical put to
the VE at the hearing concerning Plaintiff was appropriate. During the hearing,
the ALJ stated that the hypothetical claimant had "no exertionallimitations other
than he has to avoid exposure to concentrated respiratory irritants," is able to
"perform simple low stress work limited to occasional interpersonal contact with co
workers and the general public," and "can maintain attention and concentration for
extended two hour segments." (R. at 64-65.) The VE then testified, after having
reviewed Plaintiffs work history, that while Plaintiff could no longer perform the
"past relevant work" which he had previously performed, a hypothetical person of
Plaintiffs age and with his education, work experience, and limitations could
perform the jobs of a kitchen helper, photocopying machine operator, or cafeteria
18
attendant. (R. at 64-65.) The ALJ's characterization of the record was consistent
with the findings the Court has previous reviewed and found to be supported by
substantial evidence. The ALJ's consideration of the VE testimony is thus also not
a basis for declining to defer to the ALJ's findings and conclusions.
III.
CONCLUSION
For the reasons set forth above, Plaintiffs motion for judgment on the
pleadings is DENIED and the Commissioner's cross-motion for judgment on the
pleadings is GRANTED.
The Clerk of Court is directed to close the motions at ECF Nos. 8 and 15, and
to terminate this action.
SO ORDERED.
Dated:
New York, New York
October t. ~ , 2013
KATHERINE B. FORREST
United States District Judge
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