Millidge v. Astrue
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 13 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Government's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/14/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARCY M. MILLIDGE,
DECISION and ORDER
-vsCAROLYN W. COLVIN, Commissioner of
Represented by counsel, Marcy M. Millidge (“Plaintiff”), brings this
action pursuant to Title XVI of the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security (“the Commissioner”)1 denying her application for Supplemental
Security Income (“SSI”). The Court has jurisdiction over this matter
pursuant to 42 U.S.C. §§ 405(g), 1383(c).
Benefits based on disability on July 13, 2007, alleging that she was
disabled commencing on the date of her birth, July 31, 1989, due to
learning disability and adjustment disorder. T. 17, 88-90, 95.2 Those
applications were denied on October 3, 2007. Plaintiff then requested a
hearing before an Administrative Law Judge (“ALJ”). T. 38-39. Plaintiff,
Carolyn M. Colvin is automatically substituted for the
previously named Defendant Michael Astrue pursuant to Fed.R.Civ.P.
25(d). The Clerk of the Court is requested to amend the caption
References to “T.__” refer to the pages of the administrative
transcript, submitted as a separately bound exhibit in this action.
represented by counsel, appeared before ALJ William Pietz on October 20,
2009. T. 242-71. Plaintiff, her foster mother, her treating social
worker, and an independent Vocational Expert (“VE”) testified at the
On November 17, 2009, the ALJ issued a written decision finding that
Plaintiff was not disabled and denying her claims for SSI and Child’s
The ALJ’s decision became
decision of the Commissioner when the Appeals Council denied Plaintiff’s
request for review on February 9, 2012. T. 4-6. This action followed.
Now pending before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Commissioner’s motion is granted, and Plaintiff’s motion is denied.
III. Factual Background
Plaintiff was examined by Robyn Steinacher, D.O., at the West Seneca
Health Center on December 6, 2005, when Plaintiff was 16 years-old.
T. 175-77. Dr. Steinacher reported that Plaintiff had become more “moody”
and “flighty” since coming off Zoloft, anti-depressant, with a decreased
attention span, degradation in personal hygiene, and weight gain. T. 21,
175. Dr. Steinacher recommended that Plaintiff see a psychiatrist.
During a subsequent visit in July, 2006, Dr. Steinacher assessed
Plaintiff has having depression and attention deficit disorder (“ADD”),
but noted that Plaintiff had re-started medication and was doing well on
a combination of Zoloft and Adderall. Specifically, her moods had calmed
down, she became more focused, lost weight, and was doing better in
school. T. 21, 173. Plaintiff reported no side effects. Id.
West Seneca Health Center treatment notes from March, 2007 show that
Plaintiff had again discontinued the medications of Zoloft and Adderall.
Plaintiff “lashing out” during her menses, with no other issues. Id.
Sleep symptoms and depressive symptoms were denied by Plaintiff, and
there were no behavioral problems at home or school. Id.
In October, 2009, Plaintiff was seen by social worker William R.
Oldfield, LCSW, who provided a Clinical Diagnostic Evaluation. T. 226236. Therein, Oldfield diagnosed Plaintiff with adult attention deficit
hyperactive disorder (“ADHD”), chronic dysthymic disorder (depression),
T. 235. He stated that Plaintiff had difficulty sustaining attention and
completing tasks, displayed slow cognition and work pace, mental fatigue,
anxiety and depression, inability to make and sustain friendships, poor
personal hygiene, compulsive eating, excessive worry, and inability to
manage finances. T. 227. Oldfield opined that Plaintiff would not be able
to support herself or obtain gainful employment. T. 235.
intelligence evaluation by Thomas Ryan, Ph.D., on September 24, 2007.
T. 184-87. Plaintiff reported having normal sleep patterns, normal
appetite, and no problems with depression. Id. She acknowledged some
irritability, but reported no social withdrawal and no thoughts of selfharm,
concentration. Id. Dr. Ryan observed that Plaintiff appeared nervous and
restless, engaged in hand-wringing, but demonstrated otherwise normal
unremarkable, with the exception of exhibiting some anxiety. She could
not perform two-step problems. T. 181-82.
In connection with her intelligence evaluation, Plaintiff scored 82
on the Wide Range Achievement Test, Third Edition (“WRAT-III”), the
Intelligence Scale (“WAIS-III”), Plaintiff scored 81 (verbal IQ), 76
(performance scale IQ), and 77 (full scale IQ). Id. Plaintiff’s cognitive
functioning was in the borderline range, with general fund of information
in the low end of average range. T. 182, 186. Dr. Ryan opined that
Plaintiff could follow and understand simple directions, perform simple
tasks, maintain attention and concentration, maintain a regular schedule,
and learn new tasks at a slow rate. T. 182, 186. He further concluded
that she might have difficulty with complex tasks, that she could
generally make adequate decisions, but would have some difficulty dealing
with stress. Id. Plaintiff’s diagnosis was adjustment disorder with
anxiety and borderline intellectual functioning with a “fair” prognosis
in anxiety and “guarded” with respect to her intellectual functioning.
T. 182-83, 187.
In October, 1998, when Plaintiff entered the Lancaster school
educational evaluation of Plaintiff and determined that her overall
cognitive abilities were in the upper limits of the “mildly retarded”
range. T. 151-54. Daley recommended an Individualized Education Program
(“IEP”) and daily resource room services.
A triennial review was conducted in the academic year 2001-2001.
Plaintiff had been placed in a special education “modified inclusion”
program. T. 149. Her overall cognitive abilities fell within the “mildly
mentally retarded” range. Id. Plaintiff needed guidance to understand
materials she read, as well as additional time to complete tasks. Id.
Daley reported that Plaintiff possessed a good attention span and was
able to remain on task most of the time.
completed a teacher questionnaire. T. 113-120. Plaintiff was in the 12th
grade, was at a middle school reading level and a high school math level,
and had achieved a score of 67% on her Regents examination for English.
T. 113. Plaintiff struggled with attention issues, but was well-organized
and completed work independently. T. 114. She would ask for assistance
when needed, so long as she was comfortable with the teacher. Id.
“understanding and participating in class discussion” and “providing
organized oral explanations and adequate descriptions.” T. 114.
An IEP from the 2007-08 school year reveals that Plaintiff was
participating in all 12th grade core classes, received support from a
consultant teacher, and required testing accommodations. T. 137. Though
her cognitive scores were in the low range, she compensated well and was
achieving passing grades in all of her classes. T. 138. Plaintiff was
described as a hard worker that typically turned in work on time and
delivering newspapers during the school year. Id. The IEP included an
observation that Plaintiff could be talkative with adults and peers once
comfortable, and had friends with whom she enjoyed interacting. T. 138.
A Psychological Evaluation completed in February, 2008, revealed
mostly low-average scores with regard to her intellectual evaluation and
a full-scale IQ score of 81 on the WAIS-III test. T. 144-45. Based on
this and other scores, the school psychologist noted that Plaintiff’s
overall cognitive ability was at the bottom of the low-average range, and
verbal abilities were below average. T. 148. Despite Plaintiff’s low
cognitive scores, she could follow three-part instructions, and possessed
domestic living skills, such as washing clothes and preparing food, in
the average range. T. 147.
Plaintiff testified that she graduated from high school in a special
education program, and was enrolled at Erie Community College, majoring
in early childhood education. T. 247. Though she had completed a yearand-a-half of college, her first year consisted of remedial classes. Id.
She told the ALJ that she was doing clinical work with children at a day
care center. T. 248. She was also working part-time, two days a week, as
a dishwasher in a restaurant. T. 248-49. Plaintiff testified to getting
along well with others at school and work, and to having no disciplinary
issues. T. 250-51. She also stated that had not taken any medication
since stopping Adderall in 2006. T. 251.
Plaintiff’s foster mother testified that Plaintiff had been working
as a dishwasher for the past year, and that Plaintiff generally worked
Plaintiff’s poor hygiene habits, difficulty with social interactions, and
difficulty making independent judgments. T. 256-58.
Mr. Oldfield, Plaintiff’s therapist, told the ALJ about an occasion
during which he brought Plaintiff to his office to help his secretary
with clerical work. T. 260-61. He described Plaintiff’s struggle with
misplacing things, even with guidance. Id. He stated that she required
constant repetitive instructions in order to complete basic clerical
tasks. Id. Based on his observations of Plaintiff, Oldfield opined that
Plaintiff could perform a simple, repetitive job as a dishwasher on a
part-time basis, but would not be able to work at any job every day for
more than a few hours per day. T. 260-61. He testified that Plaintiff
would experience mental fatigue, and that she would require a “very nice
boss who would be very understanding and very patient,” otherwise she
could be fired “quite easily.” T. 261.
Finally, VE Jay Steinbrenner testified at Plaintiff’s hearing. The
ALJ posed a hypothetical involving an individual who was Plaintiff’s age
with the same education and past work experience, who was limited to jobs
involving simple instructions, not dealing with the public, and only
occasionally dealing with supervisors and coworkers. T. 266. The VE
responded that the hypothetical individual could perform the jobs of
dishwasher/kitchen porter (the same job that Plaintiff was already
performing part-time), and laundry worker, both of which were repetitive
and routine. T. 266-67.
The ALJ’s Decision
In applying the familiar five-step sequential analysis, as contained
in the administrative regulations promulgated by the SSA, see 20 C.F.R.
§§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899,
at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found
Plaintiff suffered from the severe impairment of borderline intellectual
functioning, and that it did not meet or equal the Listings set forth at
20 C.F.R. 404, Subpart P, Appendix 1. T. 19-20. Because Plaintiff could
not be found disabled at the third step, the ALJ proceeded to determine
that Plaintiff retained the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels but with the
following nonexertional limitations: simple instructions, not dealing
with the public and only occasionally dealing with supervisors and coworkers. T. 21. Relying on vocational expert testimony, the ALJ concluded
that Plaintiff was not disabled as she was capable of performing work
existing in significant numbers in the national economy, such as laundry
worker or kitchen porter.3 T. 25.
For purposes of the Act, disability is the “inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to hear
claims based on the denial of Social Security benefits. Section 405(g)
provides that the District Court “shall have the power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with
or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g)
(2007). 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 “‘more than a mere scintilla. It 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)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see
also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).
When determining whether the Commissioner's findings are supported
by substantial evidence, the Court's task is “to examine the entire
conflicting inferences can be drawn.” Brown v. Apfel, 174 F.3d 59, 62
(2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983) (per curiam)). Section 405(g) limits the scope of the Court's
review to two inquiries: determining whether the Commissioner's findings
were supported by substantial evidence in the record as a whole, and
whether the Commissioner's conclusions are based upon an erroneous legal
standard. Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003);
see also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not
try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted 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, 642 (2d Cir. 1988). A party's
motion will be dismissed if, after a review of the pleadings, the Court
is convinced that the party does not set out factual allegations that are
“enough to raise a right to relief beyond the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plaintiff first contends that the ALJ committed reversible error in
failing to consider the effect of Plaintiff’s combined impairments on her
ability to sustain work on a regular and continuing basis as required by
Social Security Ruling (“SSR”) 96-8p. Pl. Mem. (Dkt. #14) at 20-22.
“To determine RFC, the ALJ must consider all the relevant evidence,
including medical opinions and facts, physical and mental abilities,
symptoms.” Stanton v. Astrue, 2009 WL 1940539, *9 (N.D.N.Y. 2009), aff'd,
380 F. App'x 231 (2d Cir. 2010); see also SSR 96–8p, 1996 WL 374184 (SSA
impairments, even those that are not ‘severe.’”).
Plaintiff cites to Burgos v. Astrue, No. 09-cv-1216, 2010 WL 3829108
(D. Conn. Sept. 22, 2010), for the proposition that an ALJ’s failure to
make specific findings as to the severity and combined effect of all of
decision where the ALJ made no mention at all of several of plaintiff’s
alleged impairments, and the court was unable to determine whether or not
the ALJ evaluated the combined effect of the plaintiff’s impairments as
a whole on her ability to work. Here, while the ALJ found Plaintiff’s
borderline intellectual functioning to be her only severe impairment, his
decision makes clear that he considered all of her non-severe impairments
in determining her RFC.
The ALJ first considered the treatment notes from West Seneca Health
Center and noted Plaintiff’s symptoms of depression, mood changes, and
past diagnosis of ADD/ADHD. T. 21. Those notes indicate that Plaintiff
combination of Zoloft and Adderall, and later responded well after
discontinuing medication altogether in 2007. T. 21-22. He then considered
Plaintiff’s school records, which addressed her social and emotional
impediments (“she is able to focus during classes and almost always has
her homework complete and turned in on time.”). T. 22.
The ALJ went on
Plaintiff’s motor behavior (“mildly restless”), as well as her attention
and concentration skills (“good”). T. 22. He noted Dr. Ryan’s additional
diagnosis of adjustment disorder with anxiety. Id.
Finally, the ALJ
incorporated these findings into his hypothetical posed to the VE, which
involved limitations of simple instructions, dealing with supervisors and
co-workers only occasionally, and not dealing with the public at all.
It is therefore apparent from the record that the ALJ properly
depression, and anxiety, in determining Plaintiff’s RFC.
Lay Witness Testimony
Plaintiff next contends that the ALJ failed to properly evaluate the
testimony of Plaintiff’s foster mother and treating licensed social
worker, Mr. Oldfield. Pl. Mem. at 22-25. Both individuals testified,
somewhat anecdotally, that Plaintiff would be unable to work in excess
of 12 hours per week. T. 253-54, 260-62. According to Plaintiff, the ALJ
did not acknowledge this testimony or weigh its probative value in his
written decision. Pl. Mem. at 22.
An ALJ's determination that a “[lay] witness is not credible must
... be set forth with sufficient specificity to permit intelligible
plenary review of the record.” Williams v. Bowen, 859 F.2d 255, 260–61
(2d Cir. 1988). The ALJ's failure to discuss such evidence can rise to
the level of plain error where the lay testimony is consistent with the
record evidence. McArthur v. Comm’r of Soc. Sec., No. 06-CV-860, 2008 WL
4866049, at *10 (N.D.N.Y. Nov. 7, 2008).
Such error is harmless,
however, where “application of the correct legal principles to the record
could lead to only one conclusion.” Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987).
impairments, should would be unlikely to maintain the pace required to
support herself with full-time work. T. 227, 236. The only additional
information she provided was that Plaintiff “gets very tired” at her
current job, which was corroborated by Mr. Oldfield’s hearing testimony.
T. 254, 260.
Plaintiff’s foster mother was unable to state whether
Plaintiff would be more fatigued than any other able-bodied employee
performing the same job. T. 254.
in his written
Though the ALJ did not acknowledge the
testimony was not warranted. Because the testimony added little to the
record and would not have changed the outcome of the case, the error is
deemed harmless. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)
(failure to address evidence is harmless error if consideration of the
evidence would not have changed the ALJ's ultimate conclusion); accord,
McKinstry v. Astrue, No. 05–10–cv–319, 2012 WL 619112, at *6 (D. Vt.
limitations during relevant period, was inconsistent with other evidence,
and was otherwise not more favorable to claimant).
To the extent Plaintiff contends that the ALJ erred in discounting
the opinion of Mr. Oldfield because he is a social worker, Pl. Mem. At
24, such an argument is also unavailing.
While an ALJ is free to conclude that the opinion of a licensed
social worker is not entitled to any weight, he has a duty to explain
that decision in light of the Commissioner’s rulings at SSR 06-03p. That
directive provides that an ALJ “may use evidence from ‘other sources’ ...
to show the severity of the individual's impairment(s) and how it affects
the individual's ability to function. These sources include, but are not
limited to ... licensed clinical social workers[.]” Further,
[M]edical sources ... such as ... licensed clinical
social workers [ ] have increasingly assumed a
greater percentage of the treatment and evaluation
physicians and psychologists. Opinions from these
medical sources ... are important and should be
evaluated on key issues such as impairment severity
and functional effects, along with the other
relevant evidence in the file.
SSR 06–03p, 2006 WL 2329939, at *2, *3 (SSA Aug. 9, 2006). SSR 06–03p
directs ALJs to use the same factors for the evaluation of the opinions
of “acceptable medical sources” to evaluate the opinions of “medical
sources who are not ‘acceptable medical sources,’” such as licensed
(Commissioner's regulations on the weighing of the medical opinions of
The ALJ evaluated Mr. Oldfield’s opinion properly, applying the
factors set forth in 20 C.F.R. § 404.1527(d) in making his determination
that the social worker’s opinion should be afforded little weight. In his
contradictory to the bulk of the medical evidence of record,” and
“without substantial report from the other evidence of record.” T. 25.
The ALJ evaluated Oldfield’s opinion and did not simply discount it for
the sole reason that Oldfield is a social worker. Rather, he noted
contradictions between Oldfield’s conclusions and the facts set forth in
assessments, including the fact that aside from Oldfield’s assessment,
there was no diagnosis of Asperger’s Syndrome elsewhere in the record.
The ALJ’s analysis therefore conforms with the dictates of 20
C.F.R. § 404.1527(d). Compare Canales v. Comm’r of Soc. Sec., 698
F.Supp.2d 335 (E.D.N.Y. 2010) (remanding where ALJ disregarded opinion
simply because it was the opinion of a social worker, not on account of
its content or whether it conformed with the other evidence in the
record), with Figueroa v. Astrue, No. 04–CV–7805, 2009 WL 4496048, at *12
(S.D.N.Y. Dec. 3, 2009) (concluding SSR 06–03p satisfied where ALJ
explicitly considered report from treating non-physician and rejected it
as “contradicted by the opinion of the consultative physician, who is an
acceptable medical source [and] by the claimant's conservative course of
treatment, by the objective medical findings of record, and by the
claimant's wide range of daily activities”).
Mr. Oldfield’s opinion and that his findings are supported by substantial
For the foregoing reasons, Plaintiff's motion for judgment on the
pleadings (Dkt. #13) is denied, and the Commissioner's cross-motion for
judgment on the pleadings (Dkt. #15) is granted. The Complaint is
dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
August 14, 2014
Rochester, New York
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