Gray v. Astrue
Filing
18
DECISION AND ORDER granting Commissioner's motion for judgment on the pleadings; denying plaintiff's cross-motion for judgment on the pleading; and dismissing the plaintiff's complaint with prejudice. Signed by Hon. Michael A. Telesca on 6/23/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
CLARENCE L. GRAY, JR.,
Plaintiff,
09-CV-00584
DECISION
and ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.
__________________________________
Introduction
Plaintiff Clarence L. Gray, Jr. (“Plaintiff”) brings this
action pursuant to Title II of the Social Security Act (“the Act”),
claiming that the Commissioner of Social Security (“Commissioner”)
improperly denied his application for disability insurance benefits.
Specifically, Plaintiff alleges that the decision of Administrative
Law Judge Robert Harvey (“ALJ”) was erroneous and not supported by
substantial evidence in the record.
The Commissioner moves for judgment on the pleadings pursuant
to rule 12(c) of the Federal Rules of Civil Procedure, on the
grounds
that
the
ALJ’s
decision
was
supported
by
substantial
evidence and contained no error of law. Plaintiff opposes the
Commissioner’s
motion,
and
cross-moves
for
judgment
on
the
pleadings. For the reasons set forth herein, I find that the
decision of the Commissioner is supported by substantial evidence,
and is in accordance with applicable law, and therefore, I grant the
1
Commissioner’s motion for judgment on the pleadings, and deny
Plaintiff’s cross motion for judgement on the pleadings.
Background
Plaintiff received Supplemental Security Income as a minor
after a favorable decision under ALJ Nancy Battaglia on May 22,
1996.
(Tr. 27).
This income ceased in 2001, upon Plaintiff turning
age 18, when his claim was reviewed under the adult standard.
(Tr. 125-26)
A Re-determination of his case under the adult
standard for disability resulted in a denial on February 23, 2004.
(Tr. 27-44, 125-26).
On
August
10,
Plaintiff did not appeal that decision.
2004,
Plaintiff
filed
an
application
for
Supplemental Security Income alleging that he was disabled due to
bipolar disorder, a learning disorder and back impairments. (Tr. 83,
709).
The Social Security Administration denied Plaintiff’s claim
initially.
(Tr. 45, 50-53).
Plaintiff requested a hearing and in
a hearing decision dated November 20, 2006, the ALJ found that
Plaintiff was not disabled.
(Tr. 15-24, 54-55).
On April 9, 2007,
the Appeals Council denied Plaintiff’s request for review.
14).
(Tr. 6-
Plaintiff then filed civil action 07-CV-323-S, claiming that
the decision of the hearing examiner was not supported by substantial
evidence or contained errors of law.
On February 8, 2008, pursuant
to a consent order, the District Court remanded the case for further
administrative proceedings.
(Tr. 685-88).
2
On remand, the Appeals Council consolidated the claim with a
subsequent SSI application (which had been protectively filed by
Plaintiff on May 11, 2007, and directed the ALJ to issue a new
decision on the consolidated claims.
(Tr. 691-92).
On January 15, 2009, Plaintiff, his mother, and his attorney
appeared at a hearing before the ALJ.
(Tr. 885-912).
On February
4, 2009, the ALJ again found that Plaintiff was not disabled (Tr.
654-65).
Plaintiff filed a request for review of the ALJ’s decision
which the Appeals Council denied on May 16, 2009, making the ALJ’s
decision the final decision of the Commissioner.
(Tr. 650-53).
On
January 25, 2010, Plaintiff timely filed this action. (Plaintiff’s
Complaint).
Discussion
I. Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear
claims
based
on
the
denial
of
Social
Security
benefits.
Additionally, the section directs that when considering such a claim,
the Court must accept the findings of fact made by the Commissioner,
provided that such findings are supported by substantial evidence in
the record. Substantial evidence is defined as, “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217
(1938). Section 405(g) thus limits the Court’s scope of review to
determining whether or not the Commissioner’s findings were supported
3
by substantial evidence. See Mongeur v. Heckler, 722 F.2d 1033, 1038
(2d Cir. 1983) (finding that a reviewing Court does not try a
benefits case de novo). The Court is also authorized to review the
legal
standards
employed
by
the
Commissioner
in
evaluating
Plaintiff’s claim.
The Court must “scrutinize the record in its entirety to
determine the reasonableness of the decision reached.” Lynn v.
Schweiker, 565 F. Supp. 265, 267 (S.D. Tex. 1983) (citation omitted).
The Commissioner asserts that his decision was reasonable and is
supported by the evidence in the record, and moves for judgment on
the pleadings pursuant to Rule 12(c). Judgment on the pleadings may
be granted under Rule 12(c) where the material facts are undisputed
and where 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 (2d Cir. 1988).
II. The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record
The ALJ, in his decision, found that the Plaintiff was not
disabled within the meaning of the Act from the alleged onset date
of January 1, 1999.
(Tr. 657).
In doing so, the ALJ followed the
Social Security Administration’s five-step sequential analysis for
4
determining whether or not a clamant suffers from a disability. See
20 C.F.R. § 404.1520.1
Under step one of the process, the ALJ found that Plaintiff has not
engaged in substantial gainful activity during the relevant period.
(Tr.
659).
At
steps
two
and
three,
the
ALJ
concluded
that
Plaintiff’s bipolar disorder, personality disorder with anti-social
features, and a learning disorder were severe within the meaning of
the Social Security Regulations, but not severe enough to meet or
equal singly or in combination, any of the impairments listed in
Appendix 1, Subpart P of Regulations No. 4.
(Tr. 660).
The ALJ also
concluded that Plaintiff’s low back pain and anorexia were non-severe
impairments.
Further,
Plaintiff
(Tr. 660).
at
steps
retained
the
four
and
residual
five,
the
functional
ALJ
concluded
capacity
that
(“RFC”)
to
perform all exertional activities consistent with the broad world of
work.
(Tr. 661), See 20 C.F.R. §416.967(a,b,c,d).
1
The ALJ found
Five step analysis includes: (1) ALJ considers whether
claimant is currently engaged in substantial gainful activity;
(2) if not, ALJ considers whether claimant has a severe
impairment which significantly limits his physical or mental
ability to do basic work activities; (3) if claimant suffers such
impairment, third inquiry is whether, based solely on medical
evidence, claimant has impairment which is listed in regulations
Appendix 1, and if so claimant will be considered disabled
without considering vocational factors (4) if claimant does not
have listed impairment, fourth inquiry is whether, despite
claimant’s severe impairment, he has residual functional capacity
to perform his past work; and (5) if claimant is unable to
perform past work or does not have any past relevant work, the
ALJ determines whether claimant could perform other work. See id.
5
that while the Plaintiff had worked previously as a stock boy, as a
busboy and doing assembly work, none of these temporary jobs rose to
the level of substantial gainful activity.
(Tr. 664). The ALJ ruled
that it was not considered past relevant work.
Therefore, in the
fifth step, the ALJ considered Plaintiff’s age, education, work
experience,
RFC,
and
a
vocational
expert’s
testimony
regarding
Plaintiff’s additional limitations, to determine whether or not
Plaintiff could perform any job in the national economy.
The ALJ
determined that Plaintiff was able to perform a significant number
of unskilled jobs in the economy, and therefore was not entitled to
Supplemental Security Income benefits.
(Tr. 665)
Based on the entire record, including all relevant medical
evidence, I find there is substantial evidence in the record to
support the ALJ’s determination that the Plaintiff was not disabled
within the meaning of the Act.
A. Medical and non-medical evidence in the record supports the ALJ’s
determination that Plaintiff was not disabled
Plaintiff’s records indicate that he was examined and diagnosed
with a learning disorder in 2001.
(Tr. 208-14).
IQ testing done in
June 2006 produced scores which are consistent with low average
intelligence.
(Tr. 488).
Plaintiff has also undergone counseling
for bipolar disorder and a personality disorder with anti-social
features.
(Tr. 251).
Psychiatric consultative examiners Dr. Thomas
Ryan and Dr. Christine Ransom have confirmed these diagnoses.
(Tr.
471, Tr. 490). Both Dr. Ransom and Dr. Ryan have opined that
6
Plaintiff, despite these disabilities, can perform simple tasks and
maintain a schedule.
(Tr.471, Tr. 489).
Dr. Renee Baskin-Creel, a
psychiatric consultative examiner, opined that Plaintiff had “poor
attitude and judgement” which “did not appear to be significant
enough to interfere with [claimant’s] ability to function on a daily
basis.”
(Tr. 333).
Plaintiff alleged that his back pain prevented him from doing
work.
(Tr. 894).
A consultative examination and x-ray done by
Dr. Christine Holland, on November 3, 2004, revealed that Plaintiff
had mild scoliosis.
(Tr. 328).
Dr. Holland opined that Plaintiff
had “behavior issues” but that he had no physical limitations.
Id.
Plaintiff was treated for back pain by Dr. Bell in 2003,
(Tr. 359) and referred to Dr. Hilburger in 2004.
(Tr. 399).
Dr. Bell stated that he did not believe back pain was causing a
disability
for
Plaintiff.
(Tr.
359).
In
a
2005
evaluation,
Dr. Hilburger stated that “It appears [plaintiff’s] complaints are
well out of proportion to his physical finding and radiographic
findings.”
(Tr. 398).
Additionally, Dr. Hilburger stated in a 2005
report “It is quite obvious that the patient has another agenda here.
He is young and able bodied.
some type of work.”
I believe that he could to [sic] do
(Tr. 392).
Plaintiff alleged anorexia.
(Tr. 897).
On September 8, 2008
Dr. Rahman, one of Plaintiff’s treating psychiatrists, noted that
7
plaintiff suffered no problems with regard to “sleep, appetite or
weight gain” and that he appeared “well nourished” (Tr. 852).
Plaintiff’s
treating
psychiatrist,
Dr.
Skiffington,
along
with
psychological consultative examiners Drs. Baskin-Creel, Ryan, and
Ransom, did not make any mention Anorexia in their opinions.
Plaintiff testified that he was six feet tall, and weighed 117 pounds
but did not suffer Anorexia. (Tr. 894).
Considering Plaintiff’s testimony and medical records, the ALJ
correctly
determined
that
Plaintiff
had
bipolar
disorder,
personality disorder with anti-social features, low back pain,
anorexia and a learning disorder.
(Tr. 660).
i. The ALJ correctly assessed that Plaintiff’s mental impairments
were not severe enough to establish disability
The ALJ determined that Plaintiff’s mental impairments did not
standing alone or in combination with his other impairments, meet or
exceed the Act’s definition of disability. To establish that mental
impairments are disabling, a Plaintiff must demonstrate that his
mental impairments caused at least two of the following: (1) marked
restrictions of activities of daily living; (2) marked difficulties
in
maintaining
social
functioning;
(3)
marked
difficulties
in
maintaining concentration, persistence, or pace; or (4) repeated
episodes of decompensation, each of extended
duration. See 20
C.F.R., Pt. 404, Subpt. P, App. 1, § 12.04B.
The ALJ found that Plaintiff had only a mild restriction in his
daily activities.
Plaintiff stated that he did his own laundry,
8
drove his car approximately 200 miles per week, shopped, showered,
dressed
himself
and
occasionally
vacuumed
(Tr. 139, 141, 143, 729, 733, 631, 730).
or
washed
dishes.
The ALJ determined that
Plaintiff had moderate difficulties in social functioning, had mild
difficulties
in
concentration,
persistence,
or
pace,
and
had
experienced one to two episodes of extended duration. (Tr. 660).
In light of the objective medical and non-medical evidence, and
Plaintiff’s subjective complaints, I find that there is substantial
evidence
on
which
the
ALJ
could
correctly
conclude
that
the
Plaintiff does not suffer from a disabling mental impairment.
1. The ALJ properly applied the “Treating Physician Rule”
Plaintiff argues that the ALJ did not give proper weight to
treating psychiatrist, Dr. Skiffington’s opinion concerning the
severity of Plaintiff’s mental health impairments, as detailed in an
August 24, 2005 report. (Plaintiff’s Memorandum of Law
10).
“Pl. Mem.”
Dr. Skiffington’s report diagnosed Plaintiff with bipolar
disorder and a personality disorder.
(Tr. 419).
Additionally the
report stated that Plaintiff was “unemployable” and was “unable to
work at this time due to psychological factors.”
(Tr. 413, 419).
The ALJ found the report inconsistent with other medical evidence
and assigned it little weight.
Social Security Act Regulations outline the treating physician
rule with the following text:
Generally, we give more weight to opinions from your
treating sources ... If we find that a treating source's
opinion on the issue(s) of the nature and severity of
your impairment(s) is well-supported by medically
9
acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling
weight. When we do not give the treating source's opinion
controlling weight, we apply [various factors] in
determining the weight to give the opinion.
20 C.F.R. § 404.1527(d)(2).
Further, the ALJ must establish “good
reasons” for the weight assigned to a treating physician’s opinion.
Id.
The factors that an ALJ must apply when determining whether a
treating physician's opinion is given controlling weight include:
“(i) the frequency of examination and the length, nature, and extent
of the treatment relationship; (ii) the evidence in support of the
opinion; (iii) the opinion's consistency with the record as a whole;
(iv) whether the opinion is from a specialist; and (v) other
relevant factors."
Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.
1998) (citing §§ 404.1527(d)(2) and 416.927(d)(2)).
An ALJ’s omission of the treating physician rule’s factor
analysis on the face of an opinion, however, is not always grounds
for a remand for further proceedings. See Halloran v. Barnhart, 362
F.3d 28, 31-32 (2d Cir. 2004).
the
treating
physician’s
This is particularly the case when
opinion
substantial evidence in the record.
is
inconsistent
with
other
See Id.
The ALJ found Dr. Skiffington’s report inconsistent with the
record as a whole. Dr. Skiffington’s report stated that Plaintiff had
a problem with anger, was quite hostile, had substantial social skill
deficits, was bipolar, anti-social and was “unemployable ... due to
his substantial mental health problems” (Tr. 419).
10
Dr. Skiffington
also reported that Plaintiff’s current Global Assessment of Function2
(“GAF”) score is 32. (Tr. 419).2
The ALJ was required to give “good reasons” when granting little
weight to Dr. Skiffington’s opinion. Dr. Skiffington’s assessment was
based on one examination of the plaintiff.
This assessment was
contrary to the opinions of three other psychologists, Drs. Ransom,
Ryan and Baskin-Creel.
§§
404.1527(d)
sufficiently
and
While the ALJ did not address all of the
416.927(d)
explained
that
factors,
Dr.
I
find
Skiffington’s
that
the
opinion
ALJ
was
inconsistent with the overall record and lacked a longitudinal
history of treatment.
(Tr. 664).
Plaintiff argues that the ALJ erred in giving little weight to
the opinion of Dr. Thomas Madejski.
(Pl. Mem. 10).
Dr. Madejski
completed two reports, each report was titled “Medical Examination
for Employability Assessment, Disability Screening, Alcoholism/Drug
Addiction Determination.”
In each form, Dr. Madejski checked off
that Plaintiff was very limited in his ability to stand, lift/carry,
push/pull/bend, and in his ability to function in a work setting at
a consistent pace. (Tr. 846). The reports completed by Dr. Madejski
were
form
reports
composed
of
checklists
2
and
fill-in-the-blank
See American Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders, 34 (4th ed, 2000). A GAF between 31
to 40 means some impairment in reality testing or
communication.(e.g., speech is at times illogical, obscure or
irrelevant) or major impairment in several areas, such as work or
school, family relations, judgement, thinking or mood. Id.
11
statements.
Id.
“Form reports in which a physician’s obligation is
only to check a box or fill in a blank are weak evidence at best.”
Mason v. Shalala, 994 F.2d 1058, 1067 (3d. Cir. 1993). Additionally,
Dr. Madejski supplied only the two forms, which contained checks and
only a few written words.
(Tr. 846).
As such, I find that ALJ
properly gave little weight to Dr. Madejski’s opinion, as it was not
supported by objective clinical evidence and was contradicted by the
assessments of Dr. Holland, Dr. Hilburger and Dr. Bell.
Plaintiff argues that the ALJ erred in assigning great weight
to consultative examiners, Drs. Ransom, Ryan and Baskin-Creel,
because these doctors were non-treating sources. (Pl. Mem. 10). A
written report of a consultative examiner can constitute substantial
evidence.
Richardson
v.
Perales,
402
U.S.
389,
402
(1971).
A
consulting examiner’s opinion can be given substantial weight when
it is consistent with other evidence in the record. Id. See also
Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Monquer v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983). Here, the consultative
examiners reports were found to be more consistent with other
evidence in the record.
I find that the ALJ’s decision was supported by substantial
evidence and the treating physician’s rule was not violated.
2. The ALJ was not required to further develop the record.
Plaintiff argues that the ALJ erred by failing to recontact
Dr. Hilburger, Dr. Rahman and nurse practitioner Gilsinan.
12
Plaintiff argues that the ALJ erred by not assessing treating
physician Dr. Rahman’s June 28, 2006 report.
(Pl. Mem. 6).
This
report stated that the Plaintiff had marked limitations with the
ability to make judgments on simple work-related decisions, respond
appropriately to work pressures in a usual work setting, and respond
appropriately to changes in a routine work setting.
(Tr. 494-95).
Plaintiff argues that the ALJ failed to recontact Dr. Rahman for the
purpose of getting more specific information. (Pl. Mem. 7).
The ALJ is required to obtain additional evidence only if the
ALJ cannot decide whether a claimant is disabled based on the
existing evidence. 20 C.F.R. § 404.1527(c). “Where there are no
obvious gaps in the administrative record and the ALJ already
possesses
a
‘complete
medical
history,’”
obligation to recontact a physician.
the
ALJ
is
under
no
Rosa v. Callahan, 168 F.3d 72,
79, n. 5 (2d Cir. 1999).
While
the
ALJ
did
discuss
multiple
records
provided
Dr. Rahman, he did not discuss the June 29, 2006 report.
64).
by
(Tr 663-
The ALJ is not required to explicitly analyze every piece of
conflicting evidence in the record.
See Mongeur v. Heckler, 722
F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124
(2d Cir. 1981).
The majority of Dr. Ramhan’s June 29, 2006 was
consistent with the ALJ’s mental RFC finding, except those marked
restrictions noted. The ALJ properly relied on substantial evidence
which consisted of other medical sources that provided assessments
compatible with the ALJ’s assessment of Plaintiff’s mental RFC.
13
Plaintiff argues that the ALJ erred by failing to recontact
Hilburger regarding ambiguity in his medical opinion. (Pl. Mem. 9).
The ALJ noted Dr. Hilburger signed a prescription slip on December
16,
2004
stating
(Tr. 370).
“Patient
unable
to
work
due
to
back
pain.”
However, Dr. Hilburger’s subsequent records indicate an
entirely different assessment.
On June 20, 2005, Dr. Hilburger
stated “It is quite obvious that the patient has another agenda
here.
He is young and able bodied.
(sic) do some type of work.”
I believe that he could to
(Tr. 392).
The ALJ properly decided
that Dr. Hilburger’s opinions were not ambiguous.
(Tr. 663).
Therefore it was not necessary to recontact Dr. Hilburger to clarify
his opinion.
Plaintiff argues that the ALJ erred by failing to discuss or
recontact Patricia Gilsinan, a nurse practitioner, regarding her
opinion. (Pl. Mem. 6).
that
plaintiff
(Tr. 860).
was
In a May 2007 opinion, Ms. Gilsinan noted
“totally
disabled
from
psychiatric
sx.”
However, less than a year later, in an April 2008
opinion, Ms. Gilsinan noted “no medical probs that I can see except
for some acid relux.”
(Tr. 862).
The ALJ properly disregarded the
opinion of Ms. Gilsinan.
In
light
impairments
and
of
the
ALJ’s
credibility,
assessment
I
find
of
that
Plaintiff’s
there
is
medical
substantial
evidence in the record to support the ALJ’s finding that Plaintiff
could perform simple, unskilled work at all exertional levels. Based
14
on these limitations, the ALJ properly determined that there were
jobs available for the Plaintiff in the national economy. (Tr. 665).
I find that there is substantial evidence in the record to
support the ALJ’s conclusion that Plaintiff was not disabled within
the meaning of the Act at any time on or after Plaintiff’s alleged
onset date.
B. The ALJ properly found that Plaintiff retained the ability to
perform work with some limitations
The ALJ determined that Plaintiff’s mother’s testimony and other
subjective evidence was inconsistent with the record.
(Tr. 661-62).
The ALJ properly concluded that Plaintiff’s subjective complaints
were
inconsistent
with
his
activities
of
daily
living,
which
included: cooking, doing dishes and laundry, vacuuming, and driving
200 miles a week.
(Tr. 662).
Plaintiff argues that because of his inability to hold a job,
a finding of disability is warranted.
(Pl. Mem. 12).
The ALJ
properly considered Plaintiff’s prior short-term employment and found
that it did not constitute past relevant work.
(Tr. 664).
Dr. Ransom, Dr. Baskin-Creel, Dr. Ryan and Dr. Holland all
determined that Plaintiff could perform physical and/or mental
physical work-related activities compatible with unskilled work at
all exertional levels.
opinions.
(Tr. 662-64).
The ALJ relied on these
The ALJ considered the claimant’s age, education, work
experience and residual functional capacity.
The ALJ properly
found, considering these factors, that plaintiff could perform work
15
which existed in significant numbers in the national economy.
The
ALJ also properly considered Rule 204 of the Medical-Vocational
Guidelines, which address nonexertional limitations, and found that
Plaintiff was not disabled.
(Tr. 665).
I find that there was substantial evidence in both Plaintiff’s
medical records and in Plaintiff’s testimony to support the ALJ’s
assessment that Plaintiff could perform work.
CONCLUSION
For the reasons set forth above, I grant the Commissioner’s
motion for judgment on the pleadings.
Plaintiff’s cross-motion for
judgment on the pleadings is denied, and Plaintiff’s complaint is
dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
DATED: June 23, 2011
Rochester, New York
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