Barker v. Colvin

Filing 20

MEMORANDUM AND ORDER granting 15 Motion for Judgment on the Pleadings; denying 17 Motion for Judgment on the Pleadings. Barker's motion for judgment on the pleadings is DENIED and the Commissioner's motion is GRANTED. (Docket # 15, 17.) The Clerk is directed to terminate the motions and enter judgment for the defendant. (Signed by Judge P. Kevin Castel on 3/12/2015) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CYNTHIA BARKER,
Plaintiff,
-against-

13-cv-5521 (PKC)
MEMORANDUM
AND ORDER

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
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CASTEL, U.S.D.J.
Plaintiff Cynthia Barker appeals the decision of an administrative law judge
(“ALJ”) that denied her application for Supplemental Social Security Income (“SSI”). Barker
alleges that she is unable to perform work due to mental health problems, including severe
depression and bipolar disorder with paranoid features.
The ALJ issued an eight-page written decision that denied Barker’s SSI
application. He concluded that Barker had the severe impairments of bipolar disorder,
obsessive-compulsive disorder, drug and alcohol abuse in early remission, panic disorder and
personality disorder. (Record at 25.) However, he concluded that the required severity of the
relevant listings was not met, and that Barker is not disabled and is capable of performing work.
(Record at 26-30.) In reaching this conclusion, the ALJ afforded minimal weight to certain
written observations by Barker’s treating physician, and found that Barker had not testified
credibly about her work history or impairments. (Record 27-29.)
Both the plaintiff and the Acting Commissioner of Social Security have filed
motions for judgment on the pleadings, pursuant to Rule 12(c), Fed. R. Civ. P. Neither has filed

a memorandum in opposition to the other’s motion. For reasons that will be explained, the Court
concludes that the ALJ’s decision is supported by substantial evidence and is based on a correct
application of the law. Barker’s motion is therefore denied and the Commissioner’s motion is
granted.
BACKGROUND
A. Barker’s Benefits Application and the Commencement of the Hearing on June
20, 2011.
On November 27, 2009, Barker filed an application for disability benefits, which
the Social Security Administration (“SSA”) denied on April 9, 2010. (Compl’t ¶¶ 4-5; Record at
71-74.) She then filed a request for a hearing before an ALJ on August 5, 2010. (Record at 7678.)
Barker’s hearing commenced on June 20, 2011, before ALJ Robert Gonzalez.
(Record at 37-46.) Barker appeared on her own behalf, and the ALJ explained to Barker that she
had a right to legal representation. (Record at 37-38.) When the ALJ asked Barker whether she
understood her rights, she did not respond, and the ALJ stated, “You don’t understand? You’re
shaking your head no.” (Record at 38.) Barker answered, “No,” and asked the ALJ, “Should I
have somebody? . . . Because I didn’t think that my paperwork was very complete last time and
I was denied.” (Record at 39.) The ALJ replied, “Right. It’s clearly not complete, and I’ll be
frank with you. When I went over it there’s very little in the way of medical evidence, so one of
the things I was going to get through today is to find out where you’ve been treated, but that’s a
different aspect of the case, you know.” (Record at 39.) The ALJ stated that he would “give
[her] at least 20 days to get a representative.” (Record at 39.) Barker confirmed that she would
prefer not to go forward with the day’s hearing, and wished to seek legal representation. (Record
at 39-40.)
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The ALJ then asked Barker to identify the facilities where she received treatment,
explaining that this information would expedite locating her medical records. (Record at 40.)
Barker identified certain facilities and individuals that had treated her, and the ALJ asked her to
confirm her personal contact information. (Record at 40-43.) The ALJ again asked Barker to
confirm that she understood her right to legal representation. (Record at 42-45.)
The ALJ did not question Barker about her disability status during the June 20
proceedings.
B. The Hearing’s Continuation on October 11, 2011.
The hearing resumed on October 11, 2011. (Record at 47-69.) The claimant was
represented by attorney Timothy S. McAdam. (Record at 49-50.) Barker was the only witness
who testified at the hearing, and the ALJ questioned her about her illness and medical treatment.
(Record at 50-68.) She testified that she was receiving treatment on a consistent basis at Orange
County Mental Health and was taking medications including Anafranil, Vistaril, Abilify, lithium,
Ambien CR and Celexa. (Record at 52-54.) She stated that the medication “doesn’t help me
sleep or stay focused, but it minimizes my mood swings from severe depression to mania.”
(Record at 62.) Barker stated that she previously abused drugs and alcohol, and “went extremely
manic” in 2008 or 2009, including a suicide attempt through ingestion of alcohol, cocaine and
Xanax. (Record at 55.)
At that time, she began treatment at a facility identified as Occupations, and at
Orange County Mental Health, and has not been hospitalized since. (Record at 55-56, 58.) She
stated that she has not used illegal drugs since her suicide attempt. (Record at 61.) Barker also
testified that in or around 2009, she had “an incident” related to depression and drinking that led

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to her hospitalization. (Record at 61.) She testified that she has not been treated for substance
abuse. (Record at 62.)
Barker testified that she has problems with depression, anxiety, bipolar disorder
and obsessive-compulsive disorder (“OCD”). (Record at 59.) When the ALJ asked her to
describe her OCD symptoms, she answered, “My mind races. Like if I leave the house, I have to
check like three/four times to see if my keys are in my pocketbook, rearranging things in the
house. It’s hard for me to sit still, like I can’t sit through a movie. I’ll notice something that
looks out of place. I have to fix it. I have to fix things.” (Record at 59.) She stated that her
counselor was helping her to manage OCD through meditation. (Record at 59.)
Barker testified that she last worked as a bartender 11 years earlier. (Record at
56.) She stated that she hadn’t worked since that time because “I can’t deal with the people.”
(Record at 57.) She testified that her most recent job was at Golden Rail Ale House in
Newburgh, but again stated that she hadn’t worked since. (Record at 57.) She stated that she
lived alone and covered expenses through alimony, food stamps, Medicaid and cash assistance.
(Record at 57.) She stated that she has received no professional training or certification, and was
not seeking employment. (Record at 66-67.)
Barker confirmed that her limitations were exclusively due to mental health
problems and not physical ailments. (Record at 58.) She stated that she spent her typical day
sleeping, watching television, listening to music and crocheting. (Record at 59-60, 62.) She
keeps in touch with friends via telephone, and has two or three social visitors every two weeks,
mostly related to visitations with her young daughter. (Record at 60.) She stated that she has
one friend, who she sees approximately once a month. (Record at 63.) Barker testified that she

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does not drive because driving frightens her, and that she relies on a neighbor for transportation
to therapy sessions. (Record at 63-64.)
The ALJ noted that the records from Orange County Mental Health were limited,
and asked Barker and her attorney to seek additional documentation from the facility. (Record at
64-65.) In comments directed to Barker’s counsel, the ALJ noted that, in regard to physician
Thomas Van Aken, the record contained “just notes” from 2009, and stated, “I need to assess a
little something more than that.” (Record at 67.) Her counsel responded, “Yes. There’s just a
few. There’s a few treatment notes, but not much.” (Record at 67.) The ALJ later stated, “All
right. So I expect to see a lot of notes. So what I’ll do is I’m going to give you two weeks, but if
you need more it won’t be a problem to give you more time . . . .” (Record at 68.)
C. The ALJ’s Written Decision.
On December 19, 2011, two months after the hearing, the ALJ issued a written
decision that denied Barker’s application for SSI, concluding that she had not been disabled
under the Social Security Act since the date that she initially filed her application. (Record at 2330.)
The ALJ’s decision explained the legal standard applied to determining SSI
eligibility. (Record at 24-25.) At step one, the ALJ determines whether the claimant is engaged
in substantial gainful activity. 20 C.F.R. §§ 404.1520(b) & 416.920(b). The ALJ concluded that
Barker had not engaged in substantial gainful activity since at least November 27, 2009. (Record
at 25.)
At step two, the ALJ must determine whether the claimant has a severe, medically
determinable impairment, or a combination of impairments that qualify as severe. 20 C.F.R. §
404.1520(c) & 416.920(c). The ALJ concluded that Barker suffered from the severe

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impairments of depression, bipolar disorder, panic disorder, personality disorder, OCD and drug
and alcohol abuse. (Record at 25-26.) The ALJ noted that hospital records indicated cocaine
and alcohol use by Barker in January 2010, despite her testimony that she had not used those
substances since 2009. (Record at 25.) The ALJ concluded that these impairments limited
Barker’s ability to perform work, and therefore were severe. (Record at 26.)
At step three, the ALJ must determine whether the impairment or combination of
impairments meet the criteria set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§ 404.1520(d). The ALJ must then evaluate the claimant’s residual function capacity, defined as
the ability to do physical and mental work activity on a sustained basis, whatever limitations
arise from those impairments. 20 C.F.R. §§ 404.1520(e) & 416.920(e). The ALJ concluded that
Barker did not have an impairment or combination of impairments that equaled the severity of a
listed impairment for listings 12.04, 12.06, 12.08 or 12.09. (Record at 26-27.) He observed that
no treating or examining physician made findings equivalent to the severity of a listed
impairment, and specifically did not establish at least two of the following: marked restriction of
activities of daily living; marked difficulties in maintaining social functions; marked difficulties
in maintaining concentration, persistence or pace; or repeated episodes of decompensation.
(Record at 26.) The ALJ concluded that Barker had only mild restrictions in daily living, mild
difficulties in social functioning and moderate difficulties in concentration, persistence or pace.
(Record at 26-27.) He also concluded that Barker’s episodes of decompensation did not rise to
the level of a marked limitation. (Record at 27.)
The ALJ next concluded that Barker had the residual functional capacity to carry
out work at all exertional levels, and could understand, remember and carry out simple, unskilled
work. (Record at 27-29.) He concluded that Barker’s testimony about her capacity to work was

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“not wholly credible.” (Record at 28.) He observed that, although Barker testified that she had
not worked for 11 years, medical records from 2008 indicated that she was working as a
bartender two days a week. (Record at 28.) “This sharply contrasts with her testimony and
undermines her overall credibility as she concealed her work activity from me when I inquired
on that issue.” (Record at 28.) The ALJ stated that Barker had “a poor work history,” reflecting
“sporadic work” and “a lack of motivation to work rather than due to her impairments . . . .”
(Record at 28.) He also observed that “it may also be a product of concealing her work activity
by working and not reporting her income.” (Record at 28.) Separately, the ALJ reviewed
inconsistencies between Barker’s testimony and the treating medical notes. (Record at 28-29.)
Her treating records showed that Barker would face some difficulties with occupational
functioning, but that they did not preclude her from holding a job. (Record at 28-29.)
Her treating physician, Dr. Van Aken, noted on December 2, 2009 that Barker
could not hold a job due to her symptoms, but the ALJ concluded that the doctor’s overall
records and Barker’s history failed to support that assessment. (Record at 29.) The ALJ also
afforded minimal weight to the assessments of a nurse practitioner, Linda Mason, who had
treated Barker and concluded that she had a very limited ability to function. (Record at 29.) The
ALJ stated that Mason “is not a recognized medical source,” and that her assessment of Barker’s
limited abilities was contrary to a more recent, positive assessment that she made. (Record at
29.)
Finally, the ALJ concluded that Barker was capable of performing a job in the
national economy. (Record at 30.) He concluded that Barker’s ability to perform work at all
exertional levels had been compromised by her limitations, but “these limitations have little or
no effect on the occupational base of unskilled work at all exertional levels.” (Record at 30.)

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Barker appealed the ALJ’s decision to the Appeals Council of the Social Security
Administration, which denied her request for review. (Record at 1-4.) This action followed.
STANDARD OF REVIEW.
A motion to dismiss under Rule 12(c), Fed. R. Civ. P., may be granted only if the
movant establishes an entitlement to judgment on the pleadings as a matter of law. Burns Int’l
Sec. Servs., Inc. v. Int’l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537,
47 F.3d 14, 16 (2d Cir. 1995). “Judgment on the pleadings is appropriate where material facts
are undisputed and where a judgment on the merits is possible merely by considering the
contents of the pleadings.” Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.
1988). Under Rule 12(c), the movant bears the burden of establishing “that no material issue of
fact remains to be resolved and that [it] is entitled to judgment as a matter of law.” Juster
Assocs. v. City of Rutland, Vt., 901 F.2d 266, 269 (2d Cir. 1990) (citations omitted) (alteration
in original).
In reviewing a denial of benefits, if the Commissioner’s findings are free of legal
error and supported by substantial evidence, the court must uphold the decision. 42 U.S.C. §
405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive, and where a claim has been denied . . . the court shall
review only the question of conformity with [the] regulations . . . .”); see also Kohler v. Astrue,
546 F.3d 260, 265 (2d Cir. 2008). A court may not review the Commissioner’s decision de
novo. See Cage v. Comm’r of Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012) (citation omitted).
A court’s review thus involves two levels of inquiry. Tejada v. Apfel, 167 F.3d
770, 773 (2d Cir. 1999). First, the court must review “whether the Commissioner applied the
correct legal standard,” id., including adherence to applicable regulations, see Kohler, 546 F.3d

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at 265. Second, the court must decide whether the Commissioner’s decision is supported by
substantial evidence. Tejada, 167 F.3d at 773.
An ALJ’s “[f]ailure to apply the correct legal standards is grounds for reversal.”
Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)). An ALJ’s factual findings supported by substantial evidence are “binding”
on a district court, but “where an error of law has been made that might have affected the
disposition of the case,” the Court cannot simply defer to the ALJ’s factual findings. Id.
In a Social Security case, the phrase “substantial evidence” “means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). It is “a very deferential standard of review – even more so
than the ‘clearly erroneous’ standard.” Brault v. Comm’r of Social Sec., 683 F.3d 443, 448 (2d
Cir. 2012). It is the function of the Commissioner, not the reviewing court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including claimant.” Carroll v.
Sec’y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983). “[G]enuine conflicts in
the medical evidence are for the Commissioner to resolve.” Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008) (citation omitted). In particular, courts must show special deference to an
ALJ’s credibility determinations because the ALJ had the opportunity to observe the witnesses’
demeanor while testifying. Yellow Freight Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994); see
also Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).
Before deciding whether the Commissioner’s determination is supported by
substantial evidence, the reviewing court must first be satisfied that the claimant received “a full
hearing under the Secretary’s regulations and in accordance with the beneficent purposes of the
Act.” Echevarria v. Sec’y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)

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(citation and quotation marks omitted). The ALJ has an affirmative duty to fully and fairly
develop an administrative record. Id. This duty arises, regardless of whether the claimant is
represented by counsel, from the fact that “a hearing on disability benefits is a non-adversarial
proceeding . . . .” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). “[W]here there are
deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant’s
medical history ‘even when the claimant is represented by counsel . . . .’” Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999) (quoting Perez, 77 F.3d at 47). Accordingly, “the reviewing court
must make a ‘searching investigation’ of the record to ensure that” the ALJ protected the
claimant’s rights. Robinson v. Sec’y of Health and Human Servs., 733 F.2d 255, 258 (2d Cir.
1984) (citation omitted). “If the reviewing court determines that a claimant did not receive a
‘fair and adequate hearing’ before the ALJ, it must remand the case to the Commissioner . . . .”
Watson v. Astrue, 2009 WL 6371622, at *5 (S.D.N.Y. Feb 4, 2009), adopted by 2010 WL
1645060 (S.D.N.Y. Apr. 22, 2010). “A finding of gaps in the record or need for further
development of the evidence is cause for remand.” Batista v. Chater, 972 F. Supp. 211, 217
(S.D.N.Y. 1997) (Sotomayor, J.) (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)).
DISCUSSION
I.

BARKER RECEIVED A FULL AND FAIR HEARING.

As a threshold matter, the Court concludes that Barker received a full and fair
hearing. See generally Echevarria, 685 F.2d at 755. As discussed, at the commencement of the
hearing on June 20, 2011, the ALJ explained to Barker her right to representation, advised her on
how to retain counsel and adjourned the hearing so that she could seek representation. At both
hearing dates, the ALJ noted the need for additional medical records, and directed Barker and her
counsel on the steps needed to supplement the record. The ALJ therefore carried out his

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obligation to make a “searching investigation” of the record and to develop Barker’s medical
history. See Rosa, 168 F.3d at 79; Robinson, 733 F.2d at 258.
II.

THE ALJ ACTED WITHIN HIS DISCRETION TO AFFORD LIMITED
WEIGHT TO THE VIEWS OF BARKER’S TREATING PHYSICIAN
AND NURSE PRACTITIONER.

Barker argues that the ALJ failed to afford proper weight to the opinions of her
treating physician, Dr. Thomas Van Aken, and to a nurse practitioner, Linda Mason. Both of
these individuals have opined that Barker is not capable of working. Barker contends that the
ALJ failed to adequately weigh medical evidence, as well as the opinions of Van Aken and
Mason, when he determined that Barker does not have a combination of impairments that equals
a listed impairment, and that she has a functional capacity to perform work and is not disabled.
(Record at 26-30.) Barker particularly emphasizes that the ALJ failed to consider the full extent
of Barker’s bipolar disorder and depression. (Pl. Mem. at 11-13.)
In reviewing Van Aken’s treatment notes, the ALJ emphasized certain positive
conclusions that he reached: “Dr. Aken’s records indicate that the claimant is generally stable
while on medication.” (Record at 28.) “Dr. Van Aken noted on December 2, 2009 that the
claimant could not hold a job due to symptoms. However, his overall records and the
longitudinal history fail to support such an assessment as many reports show normal mental
status examinations upon examination of the claimant.” (Record at 29.)
Barker contends that the ALJ “override[d]” the views of Dr. Van Aken by not
affording sufficient weight to his view that she could not hold a job. (Pl. Mem. at 12.) Barker
notes the full text of Van Aken’s notes dated December 2, 2009, which observed, “This patient
has severe depression and bipolarity. She cannot work due to poor concentration and severe
mood swings and anxiety with violent thoughts.” (Record at 375.) Barker cites other notes from

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August 31 and December 2, 2009, which characterized Barker as “mind racing,” and “depressed.
Bad time of year . . . Has been manic to a mild degree. Cannot hold job 2 fear and paranoia. Cut
self last week. . . . upset + depressed . . . .” (Record at 377.) Van Aken’s notes often mentioned
Barker’s poor sleep and “mind racing,” but also observed that she was “calm” and had “no
mania.” (Record at 379-81.) Barker contends that the ALJ failed to weigh her suicidal episodes,
and that he ALJ improperly “was relying on his own credibility judgments, speculation, or his
lay opinion.” (Pl. Mem. at 12-13.)
Generally, an ALJ is required to afford extra weight to the views of a treating
physician because a treating physician has had frequent contact with a patient over a meaningful
length of time. Under SSA regulation, a treating physician is the claimant’s “own physician,
psychologist, or other acceptable medical source who provides . . . medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship” with the claimant. 20
C.F.R. § 404.1502. Treating physicians “are likely to be the medical professionals most able to
provide” a detailed understanding of an individual’s medical status, and “may bring a unique
perspective” that is not available “from the objective medical findings alone . . . .” 20 C.F.R. §
404.1527(c)(2). Therefore, “[t]he opinion of a treating physician is accorded extra weight
because the continuity of treatment he provides and the doctor/patient relationship he develops
place him in a unique position to make a complete and accurate diagnosis of his patient.”
Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983).
However, a medical opinion is entitled to significant weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §
404.1527(c)(2). SSA regulations “permit the opinions of nonexamining sources to override
treating sources’ opinions, provided they are supported by evidence in the record.” Schisler v.

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Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). “[T]he opinion of the treating physician is not afforded
controlling weight where . . . the treating physician issued opinions that are not consistent with
other substantial evidence in the record, such as the opinions of other medical experts.” Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). An ALJ “is required to provide ‘good reasons’
for the weight she gives to the treating source’s opinion.” Id. at 32-33. The SSA has listed
factors to be considered when an ALJ determines the weigh to afford the views of a treating
physician, including “(i) the frequency of examination and the length, nature and extent of the
treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the Social Security Administration's attention that tend
to support or contradict the opinion.” Id. (citing 20 C.F.R. § 404.1527(d)(2)).
To the extent that Van Aken opined that Barker was unable to work, the
determination of whether a claimant is disabled or unable to work is a legal conclusion, and his
opinion on the issue is not controlling. See Johnson v. Colvin, 2015 WL 400623, at *8
(S.D.N.Y. Jan. 30, 2015); Guzman v. Astrue, 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011);
Snell, 177 F.3d at 133 (“A treating physician’s statement that the claimant is disabled cannot
itself be determinative.”). “Administrative law judges are responsible for reviewing the evidence
and making findings of fact and conclusions of law.” 20 C.F.R. § 416.927(e)(2). Thus, the ALJ
was not required to defer to Van Aken’s legal conclusion about Barker’s ability to work.
The ALJ properly weighed Van Aken’s assessments in light of the entire record.
Van Aken’s notes stated that medication helped control Barker’s mania, that her condition was
improving and that she was able to function. (Record at 377-81.) The ALJ also afforded weight
to the conclusions of a consultative physician and a psychological expert, both of whom assessed

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Barker. (Record at 29.) Leslie Helprin and T. Harding each evaluated Barker and did not find
marked limitations in her functioning. The views of such medical consultants and advisors can
be afforded significant weight when supported by medical evidence in the record. 20 C.F.R. §
416.927(e).
Dr. Leslie Helprin, a consultative physician, noted Barker’s problems sleeping,
struggles with a “racing mind,” concentration difficulties and history of suicidal behavior.
(Record at 266.) Helprin observed that Barker had an appropriate appearance; an “[o]ften
tangential” thought process, but with no evidence of hallucinations, delusions or paranoia; mildly
impaired concentration and impaired memory skills; and below-average intellectual skills.
(Record at 267.) Barker told Helprin that she is able to care for herself and socialize with
friends. (Record at 268.) Helprin concluded that Barker had psychiatric problems, but that they
did “not significantly interfere” with her ability to function on a daily basis. (Record at 268.)
Helprin recommended that Barker continue with psychological treatment and undergo vocational
assessment and training. (Record at 269.) “Prognosis is considered to be good given above
treatments.” (Record at 269.)
In a mental assessment dated April 8, 2010, Dr. T. Harding, a psychologist,
concluded that Barker was moderately limited in her ability to understand and remember detailed
instructions; carry out detailed instructions; accept instructions and respond appropriately to
criticisms; and set realistic goals or make plans independently of others. (Record at 284-85.)
Harding did not find Barker markedly limited in any category, and found that she was not
significantly limited in 16 of the 20 designated categories. (Record at 284-85.) Harding
summarized Barker’s history of drug and alcohol abuse and her struggles with anger
management and concentration. (Record at 286.) He noted that she was well dressed and

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groomed and used appropriate eye contact; fluent, with a tangential thought process and no
indication of hallucinations or paranoia; and able to perform simple calculations and drive.
(Record at 286.) Harding concluded that Barker “retains the ability to follow and understand
simple directions and instruction,” “can perform simple rote tasks,” “is able to maintain attention
and concentration,” “make appropriate decisions and relate with others.” (Record at 286.) He
found that the “[e]xtent of alleged limitations [was] not fully supported” by the examination.
(Record at 286.)
The ALJ also relied on Barker’s Global Assessment of Functioning (“GAF”)
score. (Record at 29.) In a 2008 examination, Dr. Joseph Cazbone concluded that “[h]er insight
and judgment are good,” and that her “[t]hought processes are logical, linear, and goal-directed.”
(Record at 339.) He gave Barker a GAF score of 55. (Record at 340.) In an examination of
May 2010, Mason assessed a GAF score of 51-60. (Record at 361.) In 2010, a social worker
gave Barker a GAF score of 60, and the highest score that Barker received in 2010 was 65.
(Record at 385-86, 400.) The ALJ noted that a GAF score in the 51-60 range is consistent with
“only moderate symptoms . . . .” (Record at 29.) The ALJ concluded that Barker’s GAF scores
were “inconsistent with someone who cannot function.” (Record at 28.)
The Court concludes that there was substantial evidence to support the ALJ’s
conclusion that Barker is able to perform work, and that it is based on a correct application of the
law. As the ALJ noted, Van Aken’s assessments about the severity of Barker’s condition varied
somewhat, including observations that supported the conclusion that she was unable to work and
other observations that her condition was stable and improving. However, the two consultative
reviews both concluded that Barker had only limited impairments, which did not preclude her
from working. The ALJ appropriately weighed Van Aken’s opinion, but concluded that it was

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not entitled to controlling weight. The ALJ based his conclusion on the evidence supporting Van
Aken’s opinion, and the consistency of his opinion with the record as a whole. 20 C.F.R. §
404.1527(d).
The ALJ also acted within his discretion in affording little weight to the opinion
of Mason, the nurse practitioner who treated Barker. Mason completed two questionnaires,
dated May 19 and September 9, 2011. (Record at 370-73.) Many of her handwritten comments
are difficult to decipher. (Record at 370-73.) She stated that Barker “is unable to work due to
Chronic Bipolar Illness.” (Record at 371.) In eight categories relating to Barker’s limitations,
Mason found her either moderately or very limited in seven categories, with no limitations noted
for maintaining basic hygiene and grooming. (Record at 371, 373.)
The ALJ was within his discretion to afford minimal weight to Mason’s opinion
about Barker’s ability to work. As previously noted, the ability to work is a legal conclusion for
the ALJ. See, e.g., Johnson, 2015 WL 400623, at *8. In addition, the relevant SSA regulation
does not list a nurse practitioner as one of the “[s]ources who can provide evidence to establish
an impairment,” which are identified as physicians, psychologists, optometrists, podiatrists and
speech-language pathologists. 20 C.F.R. § 416.913(a).
Based on the foregoing, this Court concludes that the ALJ weighed the views of
Van Aken and Mason in the context of the record as a whole, giving consideration to medical
evidence that both supported and contradicted their observations. The ALJ’s decision is
supported by substantial evidence and based on a correct application of the law.

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III.

THE ALJ ANALYZED THE COMBINED EFFECTS OF BARKER’S
IMPAIRMENTS UNDER THE CORRECT LEGAL STANDARD AND
HIS FINDINGS ARE BASED ON SUBSTANTIAL EVIDENCE.

Barker also asserts that the ALJ failed to evaluate the combined effects of all
listed impairments that the ALJ identified. (Pl. Mem. at 16-19.) He argues that the ALJ
incorrectly concluded that she does not have an impairment, or combination of impairments, that
meets or equals the severity of the listed impairments at 20 C.F.R. Part 404, Subpart P, Appendix
1, specifically as to listings 12.04 (Affective Disorders), 12.06 (Anxiety Related Disorders),
12.08 (Personality Disorders) and 12.09 (Substance Addiction Disorders). (Record at 26-27.)
As noted, the ALJ concluded that Barker’s severe impairments of bipolar disorder, OCD, drug
and alcohol abuse in early remission, panic disorder and personality disorder did not satisfy the
criteria of subpart B in Listings 12.04, 12.06 or 12.08. (Record at 26.) According to Barker, the
ALJ did not weigh the effect of Barker’s personality disorder with her other impairments or the
effects of her problems with concentration. (Pl. Mem. at 16-19.)
The ALJ followed the correct legal standard when determining that Barker did not
have the severity of listed impairments. The structures of listings 12.04, 12.06 and 12.08 are
similar. Paragraph A of each listing recites several relevant symptoms of each disorder. 1 To
meet the required severity for each disorder, the claimant’s symptoms under Paragraph A must
be accompanied by at least two criteria of paragraph B: “Marked restriction of activities of daily
living; or [m]arked difficulties in maintaining social functioning; or [m]arked difficulties in
maintaining concentration, persistence, or pace; or [r]epeated episodes of decompensation, each
of extended duration.” Listing 12.04(B)(1-4); 12.06(B)(1-4); 12.08(B)(1-4.). Section 12.09 is

By way of example, the Affective Disorders at Listing 12.04 requires medically documented symptoms for
depressive syndrome, manic syndrome and bipolar syndrome; for depressive syndrome, an applicant must have four
of nine listed symptoms; for manic syndrome, it is three of eight symptoms. Listing 12.04(A)(1)(a-i), (A)(2)(a-h).

1

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satisfied if the claimant shows “[b]ehavioral changes or physical changes associated with the
regular use of substances that affect the central nervous system,” combined with, among other
provisions, the requirements of Listings 12.04, 12.06 and 12.08.
In addition to satisfying the combined criteria of paragraphs A and B, a claimant
may, alternatively, establish a listed impairment under paragraph C of Listings 12.04 and 12.06.
Under Listing 12.04(C), a claimant has a listed impairment if she has a medically documented
history of affective disorder lasting at least two years, which has caused “more than a minimal
limitation” to do basic work activities. Under Listing 12.06(C), a claimant has a listed
impairment for an anxiety related disorder if she has a “complete inability to function
independently outside the area of one’s home.”
The ALJ’s written decision concluded that although the medical evidence
substantiated the factors under paragraph A of the listings, Barker did not satisfy the criteria of
paragraph B. (Record at 26-27.) The ALJ noted that Barker had only mild restriction in the
activities of daily living, and told a consultative examiner on March 4, 2010, that she is able to
care for her own personal needs, cook, clean, launder, shop, manager her money and drive
locally. (Record at 26.) As to social functioning, the ALJ noted Barker’s testimony that she has
friends visit two or three times every two weeks, and that she was deemed cooperative and able
to relate with others in her consultative examinations. (Record at 26.) The ALJ found that
Barker had moderate difficulties with concentration, persistence or pace, but was able to
complete simple calculations and counting exercises, and that she had no extended episodes of
decompensation. (Record at 26-27.) He noted that to qualify as a severe disorder, a claimant
needed three episodes of decompensation within one year, each lasting at least two weeks.
(Record at 27.) The ALJ reviewed Barker’s three hospitalizations in 2008 and 2009, and

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concluded that the hospitalization of January 15, 2009 “was the direct result of alcohol and drug
abuse and not an episode of decompensation for purposes of this assessment.” (Record at 27.)
The ALJ therefore found that Barker did not satisfy the criteria of any paragraph
B provision of Listings 12.04, 12.06 and 12.08, and thus, implicitly, failed to also satisfy Listing
12.09. (Record at 27.) He also found that the evidence did not establish the paragraph C criteria.
(Record at 27.)
Barker contends that the ALJ failed to consider the role that Barker’s personality
disorder played in her suicidal conduct, and to consider the combined effects of her panic
disorder and agoraphobia. (Pl. Mem. at 16-19.) True, the ALJ did not recite all potential
combined effects of Barker’s disorders, but he noted her evidence concerning her “moderate
difficulties” with concentration and discussed the effect of her prior suicidal behavior when
reviewing her decompensation episodes. (Record at 26-27.) The ALJ did not overlook the
evidence cited by Barker, but instead concluded that it was insufficient to support the conclusion
that she suffered from a combination of impairments to meet a listed impairment. This finding
was supported by substantial evidence, and the Court will not disturb it.
IV.

THIS COURT DEFERS TO THE ALJ’S FINDINGS ON BARKER’S
CREDIBILITY.

Barker contends that the ALJ’s decision to afford limited weight to her testimony
was based on “a serious misunderstanding of the facts,” specifically as to the factors for
weighing credibility detailed at Social Security Ruling (“SSR”) 96-7p, 1996 WL 374186 (July 2,
1996). (See Pl. Mem. at 19-23.)
SSR 96-7p lists certain factors to be applied when determining the credibility of
an individual’s descriptions of symptoms of a physical or mental impairment. See 1996 WL
374186 at *1-2. It requires an applicant’s testimony concerning symptoms to be weighed in the
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context of medically determinable evidence, as well as the entire case record. Id. “The
determination or decision must contain specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be 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.” Id. at *2. “The reasons for the credibility finding
must be grounded in the evidence and articulated in the determination or decision.” Id. at *4.
“One strong indication of the credibility of an individual’s statements is their consistency, both
internally and with other information in the case record.” Id. at *5.
As noted, the ALJ, and not the reviewing court, has the responsibility “to appraise
the credibility of witnesses, including the claimant.” Carroll, 705 F.2d at 642. Courts “must
show special deference” to “explicit credibility findings . . . .” Yellow Freight Sys., 38 F.3d at
81; see also Snell, 177 F.3d at 135 (“After all, the ALJ is in a better position to decide issues of
credibility.”).
The ALJ concluded that Barker was not credible when she testified that she
lacked the capacity to perform work. (Record at 27-29.) He cited 20 C.F.R. § 404.1529(c)(3)
and § 416.929(c)(3), which establish criteria for weighing non-objective evidence of medical
symptoms, as well as SSR 96-7p, and stated that “there are several reasons why I find the
claimant’s allegations not wholly credible.” (Record at 28.) First, the ALJ noted that, although
Barker claimed that she had not worked in 11 years, her testimony was contradicted by the
medical records. (Record at 28.) Specifically, an August 25, 2008 discharge summary from St.
Luke’s Cornwall Hospital stated that Barker “no longer intends to bar tend as she realizes that it
is just not appropriate given her tendency towards addiction.” (Record at 339.) It also stated,
“She is working as a bartender but has not enough money. . . . She works as a bartender 2 times

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a week.” (Record at 341.) Second, the ALJ stated that Barker’s testimony about her psychiatric
limitations on working was inconsistent with her treatment notes. Specifically, records showed a
current Global Assessment of Functioning (“GAF”) score of 65, when a GAF score between 6170 reflected only mild symptoms or some difficulty in workplace functioning. (Record at 2829.) Third, Barker testified that she had not abused cocaine or alcohol since 2009, but that when
she was admitted to the hospital on January 15, 2010, admissions records indicated recent
alcohol and cocaine use. (Record at 29.) “Due to all of the above-discussed reasons, the
claimant’s subjection complaints concerning her functioning and overall testimony are found not
to be fully credible.” (Record at 29.)
The ALJ’s credibility findings were directed toward Barker’s testimony about her
inability to work. In particular, the ALJ emphasized that hospital records contradicted Barker’s
testimony that she had not worked in eleven years. (Record at 28.) At the hearing, the ALJ
closely questioned Barker about her assertion, and she repeatedly denied any recent work
history:
Q. Okay. Have you worked at all in any capacity since November of 2009?
A. No.
Q. And by that I mean any on or off the books?
A. No.
Q. Okay. What kind of work have you done in the past?
A. I’ve done bartending.
Q. When was the last time you bartended?
A. That was about 11 years ago.
Q. Okay. Have you done it since then at all?
A. No. I can’t.
Q. You know, even a night here, a night there?
A. I can’t deal with the people.
***
Q. What was that you said how many years ago?
A. About 11 years ago.
Q. Okay. And you never went back to work as a bartender there or anywhere else—
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A. No.
Q. –for a couple of days a week since then?
A. (No verbal response.)
Q. I know that you’re shaking your head no, but—
A. Oh, I’m sorry. No.
(Record at 56-57.) Barker’s unambiguous and repeated assertions were contradicted by hospital
records from August 2008, which stated that “[s]he is working as a bartender” but “no longer
intends to bar tend . . . .” 2 (Record at 339, 341.) The ALJ’s finding that Barker lacked
credibility concerning her work history was therefore consistent with the correct application of
SSR 96-7p: he considered her testimony in the context of the entire case record and articulated
“specific reasons for the finding on credibility,” which were “grounded in the evidence and
articulated in the determination or decision.” 1996 WL 374186 at *1-2, 4. “One strong
indication of the credibility of an individual’s statements is their consistency, both internally and
with other information in the case record.” Id. at *5.
After explaining the inconsistency between Barker’s testimony and the evidence
concerning her work history, the ALJ noted other inconsistencies between her testimony and the
evidence going to her ability to function and history of drug and alcohol use. (Record at 28-29.)
However, the ALJ’s finding that Barker gave non-credible testimony concerning her work
history is particularly notable, since the ALJ made that finding as part of his analysis concerning
her residual capacity to perform a full range of work. The ALJ was best-positioned “to appraise
the credibility of” Barker, and he made “explicit credibility findings” that were consistent with
evidence in the record. Carroll, 705 F.2d at 642; Yellow Freight Sys., 38 F.3d at 81.

Although not noted by the ALJ, Barker also appears to have told Dr. Helprin that in or around December 2009, she
worked as a cashier for more than one month, but stopped due to her psychiatric problems and inability to
understand the cash register. (Record at 265.) She also told Dr. Harding that she had last worked as a cashier, but
no employment date is provided in his notes. (Record at 286.)
2

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This Court therefore concludes that the ALJ correctly applied the law as to his
findings of witness credibility, and defers to the ALJ’s conclusions as a factfinder on his
credibility determinations.
CONCLUSION
For the foregoing reasons, Barker’s motion for judgment on the pleadings is
DENIED and the Commissioner’s motion is GRANTED. (Docket # 15, 17.) The Clerk is
directed to terminate the motions and enter judgment for the defendant.
SO ORDERED.

Dated: New York, New York
March 12, 2015

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