Rodriguez v. Commissioner of Social Security

Filing 20

DECISION AND ORDER GRANTING Defendant's 10 Motion for Judgment on the Pleadings; DENYING Plaintiff's 17 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 2/23/2013. (CLERK TO FOLLOW UP.) (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LUIS E. RODRIGUEZ,
Plaintiff,
v.

DECISION AND ORDER
12-CV-142S

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff, Luis Rodriguez, challenges an Administrative Law Judge’s (“ALJ”)

determination that he is not disabled within the meaning of the Social Security Act (“the
Act”). Rodriguez alleges that he has been disabled since June 5, 2009. Specifically, he
alleges that the effects of major depressive disorder (“MDD”), post-traumatic stress
disorder (“PTSD”), fibromyalgia, and neuropathy render him unable to work. He therefore
asserts that he is entitled to benefits under the Act.
2.

Rodriguez filed an application for disability and supplemental security benefits

under Title II of the Act on September 3, 2008. The Commissioner of Social Security
(“Commissioner”) denied his application, and as result, he requested an administrative
hearing. He received that hearing before ALJ Marilyn Zahm on March 3, 2011. The ALJ
considered the case de novo, and on March 23, 2011, she issued a decision denying
Rodriguez’s application for benefits. Rodriguez filed a request for review with the Appeals
Council, but the Council denied that request, prompting him to file the current civil action
on February 16, 2012, challenging Defendant’s final decision.1

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The ALJ’s March 23, 2011 decision becam e the Com m issioner’s final decision in this case when
the Appeals Council denied Plaintiff’s request for review.

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3.

On July 30, 2012, the Commissioner filed a motion for judgment on the

pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. Rodriguez followed suit
on November 28, 2012. Briefing on the motions concluded January 2, 2013, at which time
this Court took the motions under advisement without oral argument. For the reasons set
forth below, the Commissioner’s motion is granted and Rodriguez’s motion is denied.
4.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla”; it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
5.

“To determine on appeal whether the ALJ's findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams on Behalf of Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's
finding must be sustained “even where substantial evidence may support the plaintiff's

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position and despite that the court's independent analysis of the evidence may differ from
the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other
words, this Court must afford the Commissioner's determination considerable deference,
and may not substitute “its own judgment for that of the [Commissioner], even if it might
justifiably have reached a different result upon a de novo review.” Valente v. Sec’y of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6.

The Commissioner has established a five-step sequential evaluation process

to determine whether an individual is disabled as defined under the Social Security Act.
See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291,
96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a
claimant is disabled.
7.

This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe impairment" which significantly
limits his 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 which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him 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, he has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520. The claimant has the
burden of proof as to the first four steps, but the Commissioner has the burden of proof on
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the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d
582, 584 (2d Cir. 1984).
8.

In this case, the ALJ made the following findings with regard to the five-step

process set forth above: (1) Rodriguez has not engaged in substantial gainful activity since
his alleged onset date (R. 21);2 (2) he suffers from four severe impairments, including
MDD, PTSD, fibromyalgia, and neuropathy (id.); (3) he does not have an impairment or
combination of impairments that meets or medically equals the criteria necessary for
finding a disabling impairment under the regulations (id.); (4) he has the residual functional
capacity (“RFC”) to perform “light work,” with the modification that he avoid extended
contact with others (id., 22); and (5) there are jobs in the national economy that Rodriguez
can perform (id., 29). Ultimately, the ALJ concluded that Rodriguez was not under a
disability as defined by the Act from his onset date through the date of her decision. (Id.,
30–31.)
9.

Rodriguez raises two challenges to the ALJ's decision: First, he argues that

the ALJ did not properly consider the opinion of his treating psychiatrists. Second, he
contends that the ALJ failed to properly evaluate his credibility. Each argument is
discussed, and rejected, below.
10.

Under the “treating physician’s rule,”3 the ALJ must give controlling weight to

a treating physician’s opinion when that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other

2

Citations to the underlying adm inistrative record are designated “R.”

3

“The ‘treating physician’s rule’ is a series of regulations set forth by the Com m issioner in 20
C.F.R. § 404.1527 detailing the weight to be accorded a treating physician’s opinion.” de Rom an v.
Barnhart, No. 03-Civ.0075(RCC)(AJP), 2003 W L 21511160, at *9 (S.D.N.Y. July 2, 2003).

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substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); see also Green-Younger
v. Barnhart, 335 F.3d 99 (2d Cir. 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
11.

Rodriguez points to the opinions of Dr. Ramon O. Martinez, who, in April of

2009 diagnosed Rodriguez with MDD and assigned him a Global Assessment Functioning
(“GAF”) score of 50, and Dr. Alfonso Tan, who treated Rodriguez on a monthly basis and
who diagnosed him with PSTD.4 Dr. Martinez, in particular, found Rodriguez unable to
work. (R. 422.) As such, Rodriguez argues that the ALJ should have adopted these
opinions under the treating physician’s rule and concluded that his psychiatric ailments
precluded gainful activity.
12.

The ALJ, however, committed no error in declining to adopt these opinions.

Contrary to Rodriguez’s argument that ALJ Zahm “fail[ed] to evaluate the opinion[s] of the
claimant’s treating specialists[,] Drs. Martinez and Tan” (Pl.’s Br. At 12; Docket No. 17-1),
ALJ Zahm fully explained her rationale for according them little weight:
I give little weight to Dr. Martinez's June 2009 report that the
claimant is permanently incapable of work because this
evaluation was rendered at a time when the claimant's
condition was the worst, and it is not borne out by later
treatment notes. Dr. Martinez's own treatment notes in July
and August 2009 reflect an improvement in the claimant's
condition. Dr. Tan, who has treated the claimant in 2010 and
2011, assigned him a GAF of 60 for almost all of that period,
reflecting that, in his opinion, the claimant's symptoms are
mild.
4

“The GAF is a scale prom ulgated by the Am erican Psychiatric Association to assist ‘in tracking
the clinical progress of individuals [with psychological problem s] in global term s.’” Kohler v. Astrue, 546
F.3d 260, 262 n. 1 (2d Cir. 2008) (quoting Am . Psychiatric Ass'n, Diagnostic and Statistical Manual of
Mental Disorders (“DSM–IV”), at 32 (4th ed. 2000)). Category “41–50” indicates “[s]erious sym ptom s (e.g.
suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious im pairm ent in social,
occupation, or school functioning (e.g., no friends, unable to keep a job).” DSM–IV-TR, at 34.

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(R. 29.)
13.

Whether an individual is “disabled” under the Act is not a medical issue but

is an administrative finding. See SSR 96-5P, 1996 WL 374183, at *2 (S.S.A. 1996). The
final determination, is, in other words, the ALJ’s prerogative. Indeed, “[t]reating source
opinions on issues that are reserved to the Commissioner are never entitled to controlling
weight or special significance.” Id. While the treating physicians’ opinions on this matter
should not be disregarded, there is no indication that they were. Instead, ALJ Zahm
considered these opinions—according them “little weight”—in conjunction with the
collective evidence and the progress Rodriguez demonstrated in later visits with his
physicians. ALJ Zahm made a well reasoned determination that Rodriguez was not
disabled – a decision which she was free and required to make under the Act as the
presiding judge. See Taylor v. Barnhart, 83 Fed. App'x 347, 349 (2d Cir. 2003) (summary
order) (treating physician's belief that a plaintiff is “totally disabled” is not entitled to any
weight since that determination is reserved for the Commissioner).
14.

Furthermore, aside from Dr. Martinez’s determination that Rodriguez is

disabled, Rodriguez appears to place a great deal of emphasis on his GAF score as
assigned by Drs. Martinez and Tan. Though his argument is not explicit or entirely clear,
he appears to argue that this score should result in a finding of disabled. But this Court, like
its sister court in Vermont, “is aware of no [authority] holding that a GAF score—in and of
itself—demonstrates that an impairment significantly interferes with a claimant's ability to
work.” Parker v. Comm'r of Soc. Sec. Admin., No. 2:10-CV-195, 2011 WL 1838981, at *
6 (D. Vt. May 13, 2011); see also Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 511
(6th Cir. 2006) (“[W]e are not aware of any statutory, regulatory, or other authority requiring
the ALJ to put stock in a GAF score.”). Considered instead as one factor among many, it
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still fails to buttress his claim. As noted by the ALJ, Rodriguez’s GAF was most frequently
rated at 60 (R. 594–609), which is at the high-end of a range that indicates only “moderate
symptoms” or “moderate difficult[ies]” in occupational, social, or school settings.
DSM–IV–TR at 34. One point higher would put in him at the low-end of a range where the
claimant would be doing “pretty well.” Id. This further supports the ALJ’s determination that
Rodriguez had recovered from his nadir of psychological functioning in the middle of 2009.
15.

Finally, the ALJ properly accounted for these difficulties in assessing

Rodriguez’s RFC. She found that he has the capacity to perform simple, routine work, and,
accounting for his social difficulties as reflected in his GAF score, she found that he could
have only occasional contact with others. Then, upon questioning by the ALJ under a
hypothetical that took into account these limitations, the vocational expert testified that
various jobs exist in the national economy that claimant could perform. Accordingly, this
Court finds no error in the ALJ’s assessment that Rodriguez is not disabled.
16.

In making this determination, the ALJ also found Rodriguez to be less than

entirely credible. This Court finds no error in that determination. When considering a
plaintiff's symptoms, the ALJ must follow a two-step process. First, she must determine if
there is an underlying medically determinable physical or mental impairment that could
reasonably be expected to produce the plaintiff's pain or other symptoms. SSR 96-7p.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of those
symptoms to determine the extent to which they limit the plaintiff's functioning. Id. In
making that evaluation, an ALJ must assess a plaintiff's credibility when such statements
cannot be verified by objective medical evidence. Id.
The ALJ alone decides issues of credibility and this Court must give great deference
to those decisions, as the ALJ was able to observe the witness's testimony and demeanor
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at the hearing. Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995); Serra
v. Sullivan, 762 F. Supp. 1030, 1034 (W.D.N.Y. 1991).
17.

Contrary to Rodriguez’s argument that the ALJ provided “little if any basis for

h[er] finding” (Pl.’s Br. at 14), the ALJ adequately explained her reasoning, finding that his
complaints of pain were out of proportion to the treatment notes and medical reports in the
record. (R. 28.) She went on to explain:
Further, the claimant was not a reliable witness. His complaints
are not reflected in the treatment notes to the extent alleged
and his testimony was inconsistent on several points. His
presentation to the consultative examiners reflects his attempts
to appear more limited than he actually is. The claimant has
not received any significant treatment for alleged back and leg
pain. The pain is generally described as mild in the treatment
notes. While on occasion the claimant's diabetes mellitus is not
well controlled, it appears that the reason is that he does not
take medication consistently; if he were having the problems
he testified to, he would take his medications regularly.
(R. 28.)
Aside from general, garden-variety arguments that ALJ Zahm did not properly
evaluate his credibility, Rodriguez’s only specific complaint is lodged against the ALJ’s
assessment that he did not take his medication regularly. (See Pl.’s Br. at 14.) But this
determination is supported by substantial evidence. Consultive examiner Dr. Nikita Dave’s
examination notes reflect that Rodriguez himself admitted that his medications had been
depleted two months before his examination. (R. 471.) What is more, progress notes from
Dr. Vasquez at Urban Family Practice on January 6, 2010 reveal that Rodriguez’s diabetes
and hypertension were poorly controlled at that time because he was “not taking [his]
prescribed medication.” (R. 543.) This flatly controverts Rodriguez’s argument that “the
medical evidence of record does not recite issues of non-compliance with suggested
medical treatment.” (Pl.’s Br. at 14.)

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18.

In sum, it is clear that the ALJ committed no reversible error and her findings

are based on substantial evidence. This Court will therefore grant Defendant's motion for
judgment on the pleadings, and deny Plaintiff's motion for the same relief.
****
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 10) is GRANTED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 17)
is DENIED.
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
Dated: February_23, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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