Tremblay v. Astrue
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Commissioner'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 9/23/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LORI A. TREMBLAY,
Plaintiff,
12-CV-0379(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Plaintiff Lori A. Tremblay (“Plaintiff”), who is represented
by counsel, brings this action pursuant to the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying her
application for Supplemental Security Income (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Dkt.##8, 11. Plaintiff alleges that the
decision of the Administrative Law Judge (“ALJ”) who heard her case
is erroneous because it is not supported by substantial evidence
contained in the record, or is legally deficient and therefore she
is entitled to judgment on the pleadings. Pl. Mem. (Dkt.#8-1) 8-18.
1
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 accordingly.
The Commissioner cross-moves for judgment on the pleadings on the
grounds that
the
ALJ's decision
is
correct,
is
supported
by
substantial evidence, and was made in accordance with applicable
law. Comm’r Mem. (Dkt.#11-1) 11-23.
BACKGROUND
Plaintiff applied for SSI benefits on July 11, 2008, alleging
disability on the basis of anxiety disorder. She received a Notice
of Disapproved Claim on September 4, 2008. T. 78-81, 125. She then
requested an administrative hearing, which was held on August 20,
2010, before ALJ Robert C. Harvey. T. 41.
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 at step one that Plaintiff did not engage in
substantial gainful activity since the date of her SSI application.
T. 26. At step two, he found that Plaintiff’s anxiety, depression,
and panic disorder with agoraphobia were severe impairments. Id.
Next, the ALJ found that Plaintiff’s impairments did not meet or
equal the Listings set forth at 20 C.F.R. Part 404, Subpart P,
Appx. 1. Id. 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 lift/carry/push/pull
100 pounds occasionally and 50 pounds frequently; stand and/or walk
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for six hours per workday; and sit for two hours per workday.
T. 44-45. He further found that Plaintiff could not climb ropes,
ladders, or scaffolds; work in unprotected heights; or work around
heavy,
moving,
or
dangerous
machinery.
Id.
Given
her
mental
impairments, the ALJ found that plaintiff had a moderate limitation
in the ability to understand, remember, and carry out detailed
instructions; interact appropriately with the general public; and
respond appropriately to changes in a work setting; and could only
perform work that entailed no more than a moderate amount of
stress. T. 45.
Plaintiff had no past relevant work, so the ALJ proceeded to
step five of the sequential evaluation process. T. 47-48. Relying
on the testimony of a Vocational Expert (“VE”), the ALJ found that
jobs existed in significant numbers in the national economy that
Plaintiff
could
perform,
including
cleaner
and
dining
room
attendant. T. 48-49. He concluded that Plaintiff was not disabled.
T. 49.
Following
the
ALJ’s
unfavorable
determination,
Plaintiff
requested review by the Appeals Council on December 7, 2011. On
April 2, 2012, the Appeals Council denied review, making the ALJ’s
determination the final decision of the Commissioner. T. 1-6, 20,
178-81. This timely action followed. Dkt.#1.
For the following reasons, Plaintiff’s motion is denied, and
the Commissioner’s cross-motion is granted.
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DISCUSSION
I.
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 record, including contradictory evidence and evidence
from which 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
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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).
II.
Medical Evidence
A.
Since
Treating Sources
1996,
Plaintiff
sought
counseling
for
depression,
anxiety, and other mental health issues. T. 189-210. From June,
2005, through July, 2010, Plaintiff was treated at the Buffalo
Psychiatric Center for panic attacks and anxiety. T. 245-277. On
several occasions, Plaintiff reported that her symptoms were under
control, and her providers noted that her mood was stable. T. 245,
-Page 5-
264, 267, 269, 313, 314.
Her social worker noted that she coped
well with her symptoms of agoraphobia and panic, but had difficulty
in leaving the house. T. 277. Plaintiff reported that she watched
her son and occasionally helped with her infant grandchildren,
grocery shopped (unless she had an attack), and cleaned. T. 251,
253, 262, 264.
In April, 2008, she presented with depression and anxiety, and
told the social worker that she recently was granted an order of
protection against an ex-boyfriend who had been calling her as many
as 60 times per day. T. 272. In November, 2008, Plaintiff reported
feeling depressed and requested an increase in Lexapro on the basis
that other anti-depressants did not help or had various side
effects. T. 316. One month later Plaintiff indicated that the
increased dosage did help, and had been coping well with her family
issues. She reported no side effects from her medications. T. 315.
By February, 2009, Plaintiff was still reporting anxiety
attacks and her condition essentially remained unchanged. T. 313.
Plaintiff’s mood was again observed as stable. Id. Treatment notes
from March and April reveal similar statements, with minor changes
in her medication. T. 310. Though Plaintiff still had anxiety and
agoraphobia, she was not significantly depressed. T. 310-12. On
June 3, 2009, Plaintiff reported that the medication Buspar had
helped with her anxiety and had no side effects. T. 307.
October,
2009,
Plaintiff’s
mood
was
-Page 6-
pleasant
and
affect
In
was
brighter. She was given coping mechanisms to help with her family
issues. T. 301.
In December, 2009 and January, 2010, Plaintiff continued to
describe panic, anxiety, difficulty sleeping, and struggling to
raise her young child. Coping mechanisms were discussed, and
support counseling was provided. T. 357-59, 363.
In March, 2010,
she reported high levels of anxiety, but did not report any
impairment and did not appear to be in distress. T. 360.
B.
Consultative Examinations
A consultative examination performed by Susan Santarpia, Ph.D.
on June 14, 2010, indicates that Plaintiff had panic disorder with
agoraphobia and anxiety disorder, not otherwise specified. T. 327.
Dr. Santarpia noted that Plaintiff could follow and understand
simple
directions
and
instructions,
perform
simple
tasks
independently, maintain attention and concentration, maintain a
regular schedule, and learn new tasks within normal limits, with
mild impairments in performing complex tasks independently, making
appropriate
decisions,
appropriately
dealing
relating
with
adequately
stress.
T.
with
others,
326-27.
and
Plaintiff
demonstrated fair insight and judgment, with an overall prognosis
of fair. Id. Dr. Santarpia opined that the evaluation results were
consistent
significant
with
psychiatric
enough
to
problems,
interfere
functioning. T. 327.
-Page 7-
but
with
which
were
Plaintiff’s
not
daily
III. Non-Medical Evidence
At the time of her hearing, Plaintiff was 43 years-old, had
two children, and had obtained a GED education. T. 57.
Plaintiff testified that she had problems with depression,
anxiety, and panic attacks with agoraphobia, and told the ALJ that
she had panic attacks three times a week, sometimes brought on by
stress and sometimes for no reason at all. T. 58-59. She testified
that her symptoms included feeling unable to breathe and like she
would pass out or die if she did not leave the place in which she
was located. Id. With regard to her depression, Plaintiff stated
that
she
felt
constant
sadness.
Id.
She
described
being
uncomfortable, “panicky,” easily stressed, and having difficulty
with her concentration and memory. T. 61-62.
Plaintiff’s medications included Trazadone for sleep, Buspar
for
anxiety,
Wellbutrin
and
were
Wellbutrin.
racing
T.
thoughts
63.
and
The
side
dizziness
effects
and
that
from
they
occurred daily. T. 63-64. Although she could perform a number of
household chores, Plaintiff could not do yard work, engage in
hobbies, go to church, visit friends, or drive a car. T. 64-65.
Plaintiff testified that her doctor told her that she could not
work. T. 69.
The ALJ also heard testimony from VE Timothy Janikowski, Ph.D.
T. 70-75. He posed to the VE a hypothetical involving an individual
with no past relevant work that could lift or carry, push or pull
-Page 8-
100 pounds occasionally and 50 pounds frequently; could sit for
2 hours in an 8-hour work day, and stand or walk 6 hours in an 8hour
day.
The
hypothetical
individual
would
have
moderate
limitations in the ability to understand, remember, and carry out
detailed instructions; interact with the general public; respond to
changes in a job setting; and could only perform jobs involving a
moderate amount of stress. T. 72-73. The VE responded that such an
individual could perform unskilled work, such as industrial cleaner
and dining room attendant. T. 73. The ALJ then asked the VE to
assume that Plaintiff’s testimony that she had panic attacks with
agoraphobia three times per week was given full credibility. T. 74.
The VE responded that such an individual could not perform any jobs
that exist in significant numbers in the national economy. T. 75.
IV.
The Decision of the Commissioner that Plaintiff was not
disabled is supported by substantial evidence.
A.
Mental RFC Finding
Plaintiff first contends that the ALJ improperly substituted
his own medical opinion in finding that Plaintiff only had mild
mental
impairments
that
were
controlled
with
medication.
Pl.
Mem. 8-14.
It is well-settled that, in analyzing a treating physician's
report, “the ALJ cannot arbitrarily substitute his own judgment for
competent medical opinion.” McBrayer v. Sec’y of Health and Human
Servs., 712 F.2d 795, 799 (2d Cir. 1983); see also Balsamo v.
Chater, 142 F.3d 75, 80–81 (2d Cir. 1998) (citing McBrayer, supra).
-Page 9-
In support of his RFC finding, the ALJ relied in part on the
opinion of Plaintiff’s treating psychiatrist Dr. Cruz-Barrios and
her assessment that Plaintiff possessed a Global Assessment of
Functioning (“GAF”) score of 65. T. 293, 322, 340, 335. The GAF
scale indicates the clinician's overall judgment of a person's
level of psychological, social, and occupational functioning. The
GAF scale ranges from 1 to 100, with a score of 1 being the lowest
and 100 being the highest. A score of 61–70 indicates: “Some mild
symptoms
(e.g.,
depressed
mood
and
mild
insomnia),
OR
some
difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally
functioning
pretty
well,
has
some
meaningful
interpersonal
relationships.” Am. Psychiatric Ass'n Diagnostic & Statistical
Manual of Mental Disorders (“DSM”) at 34 (Text Revision 4th ed.
2000).2 The ALJ further noted that Plaintiff’s records from the
Buffalo
Psychiatric
Center
revealed
mild
mental
impairments/symptoms, citing treatment notes indicating that more
often than not, Plaintiff was doing well and that her depression
and anxiety were under control. T. 46-47, 307, 321, 323, 355, 358,
361.
2
Plaintiff argues that the ALJ improperly relied on Plaintiff’s
GAF score, which is no longer used by Volume V of the Diagnostic &
Statistical Manual (“DSM”). Pl. Reply Mem. 1-3. Volume IV of the DSM
was, however, in effect at the time of Plaintiff’s treatment. See
Vanterpool v. Colvin, No. 12–CV–8789, 2014 WL 1979925, at *2 n. 2
(S.D.N.Y. May 15, 2014) (citation omitted).
-Page 10-
The
ALJ
also
relied
upon
the
findings
and
opinion
of
consultative examiner Dr. Santarpia, who opined that Plaintiff was
able to follow and understand simple directions and instructions,
perform
simple
tasks
independently,
maintain
attention
and
concentration, maintain a regular schedule, and learn new tasks
within
normal
limitation
in
limits.
She
performing
noted
complex
that
tasks
Plaintiff
had
independently,
a
mild
making
appropriate decisions; relating adequately with others, and dealing
appropriately with stress. T. 30, 326. Dr. Santarpia’s opinion is
supported by the results of Plaintiff’s mental status examination,
which was largely unremarkable. T. 325-26. It is also consistent
with Dr. Cruz-Barrios’ mental status findings that Plaintiff was
fully oriented with unimpaired memory, was of average intelligence,
and had fair insight and judgment. T. 221, 323, 334.
Contrary to Plaintiff’s contention, the ALJ did not substitute
his own expertise for that of a physician. See Balsamo, 142 F.3d at
81. Rather, he properly relied upon evidence from Plaintiff’s
treating providers and the state consultative examiner in his
decision-making process. The RFC finding is therefore supported by
substantial evidence in the record.
Further,
Plaintiff’s
argument
that
the
ALJ
“failed
to
acknowledge or discuss any symptoms of agoraphobia,” is belied by
the written opinion. Pl. Reply Mem. (Dkt.#12) 3. The ALJ found that
Plaintiff’s anxiety with agoraphobia was a severe impairment, cited
-Page 11-
treatment
notes
consultative
indicating
examiner’s
agoraphobic
diagnosis
symptoms,
of
panic
cited
disorder
the
with
agoraphobia, and included those symptoms in his second hypothetical
to the VE. T. 43, 46, 47, 74.
Plaintiff also contends that the ALJ failed to follow Social
Security Ruling (“SSR”) 85–15 when he determined that Plaintiff
could only work in a moderate-stress environment. Pl. Mem. 14-15.
SSR 85–15 states in pertinent part that “[t]he reaction to the
demands
of
work
(stress)
is
highly
individualized
.
.
.
impairment-related limitations created by an individual's response
to demands of work . . . must be reflected in the RFC assessment.”
SSR
85–15,
1985
WL
56857,
at
*6
(S.S.A.
1985).
This
Ruling
“emphasizes the need to carefully evaluate a claimant's ability to
deal
with
stress
in
the
workplace.”
Sheffield
v.
Astrue,
No. 11–CV–1176, 2012 WL 5966610, at *2 (N.D.N.Y. Nov.28, 2012)
(citing SSR 85–15, 1985 WL 56857, at * 5–6 (1985)).
At
the
hearing,
the
ALJ
explained
that
by
“moderate”
limitation he meant that the limitation was more than slight, but
that the individual could still function satisfactorily in a given
area.
T.
72.
In
his
written
decision,
the
ALJ
noted
that
Dr. Santarpia found that Plaintiff only had a mild impairment in
appropriately dealing with stress, and specifically referenced
progress reports from Plaintiff’s treating psychiatrist, who noted
that Plaintiff’s anxiety and panic were under control, and assessed
-Page 12-
her GAF
score
at
65.
T.46-47.
Further,
the
opinions
already
discussed support the ALJ's determination that Plaintiff retained
the
mental
capacity
for
unskilled
work.
In
particular,
Dr. Santarpia’s opinion noted that Plaintiff could follow and
understand
simple
directions,
perform
simple
tasks,
maintain
attention and concentration, maintain a regular schedule, make
adequate decisions, and learn new tasks. T. 326. That opinion
assessed Plaintiff’s prognosis as “fair, given current level of
treatment.”
T.
unrestricted
327.
Given
activities
Plaintiff's
of
daily
documented
living,
and
abilities,
considering
Plaintiff’s symptoms of depression and anxiety, the ALJ properly
ascribed a moderate-stress limitation.
In light of this evidence, the Court is unpersuaded that
remand is necessary for a more extensive discussion of Plaintiff's
ability to perform moderate-stress work. Compare Payne v. Astrue,
No. 10–cv–1565, 2011 WL 2471288, at *3 (D. Conn. June 21, 2011)
(upholding ALJ's finding of “supervised, low stress environment”
limitation
where
evidence
did
not
support
more
significant
cognitive or psychological impairment), with Smith v. Astrue,
No. 09–CV–470, 2011 WL 6739509, at *7 (N.D.N.Y. Nov.4, 2011) (ALJ
did
not
make
sufficient
findings
concerning
Plaintiff's
particularized ability to deal with stress, where the plaintiff was
diagnosed with post-traumatic stress disorder, and the consultative
examiner opined that she was not likely to maintain a regular
-Page 13-
schedule, make appropriate decisions, or appropriately deal with
stress).
The ALJ's step four RFC determination is therefore supported
by careful consideration of the full administrative record. See
Dumas v. Schweiker, 712 F.2d 1545, 1551, 1553 (2d Cir. 1983) (an
ALJ determination was supported by substantial evidence where the
decision contained “a complete and detailed recitation of the
medical records and reports”).
B.
Development of the Record
Plaintiff avers that the ALJ failed to develop the record when
he did not issue a subpoena deces tecum to the VE for production of
the materials the VE intended to use to substantiate the number of
jobs that existed in a particular vocational area. Pl. Mem. 15-18.
It appears that Plaintiff challenges the ALJ's reliance on the
VE's testimony regarding the number of jobs available in the local
and national economies on the basis that the VE's testimony lacked
foundation and did not satisfy the standard for expert testimony
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). This argument must fail as the Second Circuit has
recently noted that the Daubert rule governing admission of expert
testimony
does
not
apply
in
Social
Security
administrative
proceedings, holding that a VE's experience and expertise provide
the necessary foundation for his or her testimony. Brault v. Soc.
Sec. Admin., Comm'r, 683 F.3d 443, 446 n.2, 448-50 (2d Cir. 2012).
-Page 14-
Likewise, Plaintiff’s reliance on Donahue v. Barnhart, 279
F.3d 441, 446 (7th. Cir 2002) for the proposition that a VE must
supply
documentation
cross-examination,
is
supporting
misplaced.
The
his
conclusion
Brault
court
during
explicitly
rejected the Donahue approach and reiterated the validity of the
“flexible” substantial evidence standard applicable to disability
proceedings. Id. at 449.
Plaintiff’s
counsel
not
only
stipulated
to
the
VE’s
qualifications, but also cross-examined him on the sources he
relied upon. T. 19, 71. In response, the VE stated that he relied
upon the information contained in the Occupational Employment
Quarterly
(“OEQ”)3
from
the
second
quarter
of
2010.
T.
75.
Significantly, Plaintiff’s counsel did not object to the VE’s
testimony. T. 75-76.
Here, the documents requested were unnecessary to the ALJ's
ultimate finding the VE's testimony reliable, and his decision to
deny the
subpoena
request
prior
to
the
hearing
is
therefore
supported by substantial evidence.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on
the
pleadings
(Dkt.#9)
is
denied,
3
and
the
Commissioner's
Also worth noting is that the Brault court affirmed the
district court's holding that it was appropriate for the VE to
consult the OEQ in rendering his testimony. 683 F.3d at 447.
-Page 15-
cross-motion for judgment on the pleadings (Dkt.#11) is granted.
The Complaint is dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
September 23, 2014
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