Garner v. Colvin

Filing 27

ORDER for 25 Report and Recommendations,, 22 Motion for Judgment on the Pleadings filed by Carolyn W. Colvin, 11 Motion for Summary Judgment filed by Karissa M. Garner. Before the Court are Plaintiff's objections, (Doc. 26 ("Obj.& quot;)), to the Report and Recommendation of United States Magistrate Judge Lisa Margaret Smith, ("R&R"), (Doc. 25), recommending that Plaintiff's motion for judgment on the pleadings be denied and Defendant's motion for judgmen t on the pleadings be granted. Petitioner's objections are overruled, except as to the consideration of Dr. Harding's report which, as discussed, does not undermine the ALJ's conclusion. I have reviewed the portions of the Petition as to which no objection has been raised, and find no error, clear or otherwise. Thus, with the exception just described, the R&R is adopted as the decision of the Court. Plaintiff's motion for judgment on the pleadings is DENIED, and Defendant's is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motions, (Docs. 11, 22), and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 6/5/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------x
KARISSA M. GARNER,
Plaintiff,
-against-

ORDER

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
13-CV-5786 (CS)(LMS)
Defendant.
----------------------------------------------------------x
Seibel, J.
Before the Court are Plaintiff’s objections, (Doc. 26 (“Obj.”)), to the Report and
Recommendation of United States Magistrate Judge Lisa Margaret Smith, (“R&R”), (Doc. 25),
recommending that Plaintiff’s motion for judgment on the pleadings be denied and Defendant’s
motion for judgment on the pleadings be granted.
A District Court reviewing a report and recommendation “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C). The district court “may adopt those portions of the report to which no ‘specific,
written objection’ is made, as long as the factual and legal bases supporting the findings and
conclusions set forth in those sections are not clearly erroneous or contrary to law.” Adams v.
N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012) (quoting Fed. R. Civ. P.
72(b)) (citing Thomas v. Arn, 474 U.S. 140, 149 (1985)). “A party that objects to a report and
recommendation must point out the specific portions of the report and recommendation to which
they [sic] object.” J.P.T. Auto., Inc. v. Toyota Motor Sales, U.S.A., Inc., 659 F. Supp. 2d 350,
352 (E.D.N.Y. 2009). If a party fails to object to a particular portion of a report and
recommendation, further review thereof is generally precluded. See Mario v. P & C Food Mkts.,

Inc., 313 F.3d 758, 766 (2d Cir. 2002). The court must review de novo any portion of the report
to which a specific objection is made. See 28 U.S.C. § 636(b)(1)(C); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). “[W]hen a party makes only conclusory or general
objections, or simply reiterates the original arguments made” below, a court will review the
report only for clear error. Alaimo v. Bd. of Educ., 650 F. Supp. 2d 289, 291 (S.D.N.Y. 2009).
“Furthermore, [even] on de novo review, the Court generally does not consider arguments or
evidence which could have been, but were not, presented to the Magistrate Judge.” United
States v. Vega, 386 F. Supp. 2d 161, 163 (W.D.N.Y. 2005).
The Court presumes the reader’s familiarity with the record, the prior proceedings and
the standards governing judicial review of decisions of the Commissioner of Social Security.
Medical Evidence
Plaintiff first objects that the Administrative Law Judge (“ALJ”) failed to properly weigh
the medical opinion evidence, in that he gave only limited weight to the views of Plaintiff’s
treating psychiatrist Dr. Singh. She argues that Judge Smith erred in noting that Dr. Singh’s
views were contradicted by a consultative psychologist, because the ALJ did not give any weight
to that psychologist’s report and the Court cannot affirm based on evidence that the
Commissioner did not consider. (Obj. at 1-2.) The short response to this argument is that it is
simply not true. The ALJ specifically noted the opinions of consulting psychologist Dr.
Fujiwaki in the portion of his decision where he explained why he rejected Dr. Singh’s
conclusions in assessing Plaintiff’s residual functional capacity (“RFC”). (AR at 64-67.)1

1

“AR” refers to the administrative record, (Doc. 10).
2

Plaintiff further objects that Magistrate Judge Smith made an impermissible post hoc
rationalization when she noted that Dr. Singh’s opinions were inconsistent with the GAF scores
he assigned – an observation the ALJ did not make. (Obj. at 2.)2 The ALJ did, however, discuss
that Dr. Singh’s conclusions were belied by the details in his notes, (AR at 66), and the
Magistrate Judge merely pointed to the fact that the relatively high GAF scores were one respect
in which Dr. Singh’s notes contradicted his opinion, (R&R at 20).
Citing Daniel v. Astrue, No. 10-CV-5397, 2012 WL 3537019, at *10 (E.D.N.Y. Aug. 14,
2012), Plaintiff argues that because GAF scores do not correlate to the regulatory framework for
disability determinations, any alleged contradiction between the GAF score assigned by Dr.
Singh and his ultimate conclusions are not relevant. (Obj. at 2.) In Daniel, the Court noted that
because the GAF framework does not directly correlate to the severity requirements in Social
Security Administration (“SSA”) regulations, a GAF score of 55 did not contradict a doctor’s
ultimate finding of disability, and thus did not justify the ALJ giving no weight at all to the
doctor’s opinion. See id. at *10. But the Daniel Court found that it would have been permissible
to not give controlling weight to that doctor’s opinion, see id. at 8-9, which is what the ALJ did
here and what the Magistrate Judge found to be appropriate. Neither the ALJ nor the Magistrate
Judge found Dr. Singh to be incredible because he assigned Plaintiff a relatively high GAF
score; rather, the Magistrate Judge merely noted that the GAF scores were an example of
internal inconsistencies between Dr. Singh’s records and his opinion that led the ALJ to properly
give that opinion limited weight.

2

“GAF” is short for Global Assessment of Functioning, which tests a person’s overall
mental health functioning on a 1-100 scale. (R&R at 3 & n.5.)
3

Plaintiff further argues that the facts that Plaintiff reported “feeling good” or that her
treating social worker told her that patients with more severe mental illness did not get disability
benefits did not mean that Plaintiff would be able to function in a work environment. (Obj. at 23.) But neither the ALJ nor the Magistrate Judge said any such thing. Those comments were
simply among the factors mentioned as having been considered.
Next Plaintiff contends that the Magistrate Judge should not have cited the report from
Dr. Fujiwaki and a report from a non-examining state medical consultant Dr. Harding as
justifying the ALJ’s decision regarding Plaintiff’s RFC, because the ALJ did not do so. (Id. at 34.) As noted earlier, the ALJ specifically discussed Dr. Fujiwaki’s report, (AR at 66), but
Plaintiff is correct that the ALJ did not explicitly discuss Dr. Harding (noting only that he (the
ALJ) had considered all of the evidence, (id. at 60)). Thus, the Magistrate Judge erred to the
extent she relied on Dr. Harding’s opinion as justifying the ALJ’s conclusion. See Petersen v.
Astrue, 2 F. Supp. 3d 223, 234 (N.D.N.Y. 2012) (“[T]his Court may not create post-hoc
rationalizations to explain the Commissioner’s treatment of evidence when that treatment is not
apparent from the Commissioner’s decision itself.”) (internal quotation marks omitted) (citing
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (“Nor may [the Court] properly affirm an
administrative action on grounds different from those considered by the agency.”)).
Reviewing the matter de novo, however, without considering Dr. Harding, I find that the
ALJ’s RFC determination is supported by substantial evidence. “Substantial evidence means
more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (internal
quotation marks omitted). The ALJ pointed to Plaintiff’s own reports of her mental status, as
reflected in her providers’ records; the inconsistency between Dr. Singh’s records and his
4

opinion; the records of Plaintiff’s other providers; Dr. Fujiwaka’s opinion; Plaintiff’s ability to
volunteer at her son’s school, socialize with other mothers, and attend exercise classes; and
Plaintiff’s domestic situation, which reflected an apparent desire to withdraw from an
unsatisfactory relationship with a man on whom she depended financially while continuing to be
a stay-at-home mother and further her education. (AR at 64-67). These all pointed to Plaintiff’s
being able to work despite her mental health challenges and provided sufficient evidence for the
ALJ’s conclusions. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is
substantial evidence to support either position, the determination is one to be made by the
factfinder.”). The ALJ need not “slavish[ly] recit[e] . . . each and every factor where the ALJ’s
reasoning and adherence to the regulation are clear,” Atwater v. Astrue, 512 F. App’x 67, 70 (2d
Cir. 2013) (summary order), and need only provide “good reasons” when not affording
controlling weight to a treating physician’s opinion, Selian v. Astrue, 708 F.3d at 409, 419 (2d
Cir. 2013). The decision here meets that standard.3
Credibility
Plaintiff next argues that because the ALJ did not cite Plaintiff’s daily activities as a
reason why Plaintiff’s self-report of frequent panic attacks was not credible, the R&R should not

3

For the same reasons, there is no merit to Plaintiff’s argument that it is unclear on what
“medical evidence, or even [] persuasive non-medical evidence” the ALJ relied. (Obj. at 5.) Dr.
Singh’s records, the records of other providers, and Dr. Fujiwaki’s opinion are medical evidence,
and there is nothing about the ALJ’s discussion of the evidence that “frustrate[s] meaningful
review.” Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013). Plaintiff criticizes the ALJ for
not providing a narrative discussion describing how specific medical facts and non-medical
evidence support his conclusion, (Obj. at 5), but in his detailed discussion of how he arrived at
his RFC decision, which occupied three-and-a-half single-spaced pages, (AR at 64-67), the ALJ
did just that.

5

have done so. (Obj. at 65.) But it is clear that the Magistrate Judge mentioned Plaintiff’s daily
activities because the applicable regulation lists that factor as one to be evaluated in assessing
credibility. (R&R at 24.) Further, in any event, the ALJ did mention Plaintiff’s daily activities
and the extent to which they were inconsistent with her testimony about disabling anxiety. (AR at
63-66.)
Nor did the ALJ conclude that Plaintiff was not disabled because she could manage
activities of daily living. (Obj. at 6-7.) Rather, he found that her testimony grossly overstated the
severity of her condition as documented in medical records that showed her panic attacks to be far
less frequent than she represented and that she enjoyed substantial periods of no anxiety; that her
claim of severe agoraphobia was inconsistent with her volunteering at her son’s school,
socializing with other mothers, and attending exercise class; and that her apparent motive for
seeking disability payments was to remain at home with her son while extricating herself from an
unhappy relationship. (AR at 63-67.) The ALJ did not conclude that Plaintiff did not suffer from
anxiety, but rather concluded that the condition was not as severe as Plaintiff said. Further, while
Plaintiff criticizes the ALJ for focusing on the panic attacks, they and the fear of leaving home
were the only specific manifestations Dr. Singh described, and it was reasonable for the ALJ to
question Plaintiff’s credibility on the former when Dr. Singh’s records showed the attacks to be
far less frequent than Plaintiff said, and on the latter when she apparently regularly went out for
volunteering, exercise and other things – activities inconsistent with the inability to report to a
workplace.
New Evidence
Finally, Plaintiff argues that remand is required because the Appeals Council failed to
consider the report from examining psychiatrist Dr. Eshkenazi. (Obj. at 7-8.) Where, as here, the
6

Appeals Council denies consideration of new evidence, the reviewing Court looks at the entire
record, including the new evidence, in determining whether substantial evidence supports the
administrative decision. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). A Court can order
remand to consider new evidence where there is good cause for the failure to proffer it earlier, it
is not cumulative, and it is material. Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988).
Evidence is material if it relates to the period for which benefits have been denied (as opposed to
concerning a later-acquired condition or subsequent deterioration of a previously non-disabling
condition) and if it gives rise to a reasonable possibility that it would have led to a different
decision. Id.; Cassera v. Sec’y of Health & Human Servs., 104 F.3d 355 (2d Cir. 1996) (summary
order).
Here the Eshkenazi report does not undermine the conclusion that the ALJ’s decision was
supported by substantial evidence. It was based on a review of unspecified records provided to
the doctor, so it is unclear if that was all the available information or just selected records
provided by Plaintiff’s counsel, but I will assume it was the former. The report provides
remarkably little information. It is mostly a short summary of records, followed by a summary of
a mental status examination, a diagnosis of “generalized anxiety with panic attacks,” a “fair to
good” prognosis, and a form questionnaire. (AR at 37-47.) To the extent this evaluation – which
took place after Plaintiff’s hearing before the ALJ – was based on Plaintiff’s statements, the
reasoning undermining Plaintiff’s credibility at the hearing would apply equally to her credibility
in providing information to Dr. Eshkanazi. And to the extent it was based on records, they were
(presumably) the same ones already before the ALJ. I am mindful of my obligation to consider
the evidence from both sides, see Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988) (reviewing court considers whole record, examining evidence from both sides,
7

because “analysis of the substantiality of the evidence must also include that which detracts from
its weight”), but find that – given the ALJ’s reasonable reliance on Dr. Singh’s inconsistencies,
the other medical records, Dr. Fujiwaki and the other factors cited above in rejecting Dr. Singh’s
conclusion – adding Dr. Eshkenazi’s opinion to the mix would not make the ALJ’s conclusion
one lacking substantial evidence.4 In other words, notwithstanding Dr. Eshkanazi’s contrary
opinion, there remains substantial evidence underlying the ALJ’s decision. See Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010) (“Even where the administrative record may also adequately
support contrary findings on particular issues, the ALJ’s factual findings must be given
conclusive effect so long as they are supported by substantial evidence.”) (internal quotation
marks omitted).
For the same reasons that Dr. Eshkanazi’s opinion adds too little to undermine the
conclusion that substantial evidence supports the ALJ’s decision, no purpose would be served by
remand. Given the limitations of the report, there is no reasonable possibility that, if it were
before the agency, the result would have been different.
Thus, for the reasons stated above, Petitioner’s objections are overruled, except as to the
consideration of Dr. Harding’s report which, as discussed, does not undermine the ALJ’s
conclusion. I have reviewed the portions of the Petition as to which no objection has been raised,
and find no error, clear or otherwise. Thus, with the exception just described, the R&R is adopted
as the decision of the Court. Plaintiff’s motion for judgment on the pleadings is DENIED, and

4

Indeed, Dr. Eshkanazi’s report does not say Plaintiff is disabled and provides a
significantly rosier picture than Dr. Singh’s, assigning Plaintiff a GAF score of 60-65. (AR at
40.) A GAF score of 61-70 denotes that the person experiences some mild symptoms or
difficulties but overall “function[s] pretty well.” (R&R at 8 n.11.)
8

Defendant’s is GRANTED. The Clerk of Court is respectfully directed to terminate the pending
motions, (Docs. 11, 22), and close the case.
SO ORDERED.
Dated: June 5, 2017
White Plains, New York
__________________________
CATHY SEIBEL, U.S.D.J.

9