Flanagan v. Colvin
Filing
23
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 13 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings; dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/6/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY MICHAEL FLANAGAN, SR.,
Plaintiff,
-vs-
No. 1:13-CV-00499(MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented
by
counsel,
Timothy
Michael
Flanagan,
Sr.
(“plaintiff”) brings this action pursuant to Titles II and XVI of
the Social Security Act (“the Act”), seeking review of the final
decision
of
the
Commissioner
of
Social
Security
(“the
Commissioner”) denying his application for Disability Insurance
Benefits (“DIB”) and supplemental security income (“SSI”). The
Court has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g). Presently before the Court are the parties’ cross-motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. For the reasons discussed below, the
Commissioner’s decision is affirmed.
II.
Procedural History
The
record
protectively
reveals
filed
that
on
applications
August
for
DIB
2,
and
2010,
Plaintiff
SSI,
alleging
disability beginning January 1, 2007, based on coronary artery
disease, human immunodeficiency virus (“HIV”) infection, gout,
depression,
and
anxiety.
After
this
application
was
denied,
plaintiff requested a hearing, which was held before administrative
law judge William E. Straub (“the ALJ”) on February 2, 2012. The
ALJ issued an unfavorable decision on February 13, 2012. The
Appeals Council denied review of that decision. This timely action
followed.
III. Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Social Security Act (“the
Act”), the district court is limited to determining whether the
Commissioner’s
findings
were
supported
by
substantial
record
evidence and whether the Commissioner employed the proper legal
standards. Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir.
2003). The district court must accept the Commissioner’s findings
of fact, provided that such findings are supported by “substantial
evidence” in the record. See 42 U.S.C. § 405(g) (the Commissioner’s
findings “as to any fact, if supported by substantial evidence,
shall be conclusive”). The reviewing court must scrutinize the
whole record and examine evidence that supports or detracts from
both sides. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998)
(citation
omitted).
substantial
evidence
conclusions of law.”
“The
does
deferential
not
apply
standard
to
the
of
review
for
Commissioner’s
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.
1984)).
2
IV.
The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation
promulgated
by
the
Commissioner
for
adjudicating
disability claims. See 20 C.F.R. § 1520. Initially, the ALJ found
that Plaintiff met the insured status requirements of the Act
through June 30, 2010. T. 29. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since
January 1, 2007, the amended alleged onset date. Id. At step two,
the ALJ found that plaintiff had the following severe impairments:
history
of
coronary
artery
disease,
HIV
infection,
gout,
depression, and anxiety. Id.
At step three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled a listed impairment. T. 30-31. The ALJ noted that he
“particularly considered the claimant’s HIV infection under Listing
14.08 Human immunodeficiency virus (HIV) infection,” but found
that, after reviewing the medical evidence, plaintiff did not meet
this listing. The ALJ additionally found that the severity of
plaintiff’s
mental
impairments,
considered
singly
and
in
combination, also did not meet a listing. In arriving at this
conclusion, the ALJ considered plaintiff’s reports of his own
activities of daily living (“ADLs”), which plaintiff reported as
taking care of family pets, driving, preparing meals, shopping, and
managing money. T. 30 (referencing T. 160-77, 217-20).
3
The ALJ also considered the consulting psychiatric examination
of Renee Baskin, Ph.D., completed on October 5, 2010. T. 217-20. At
that exam, plaintiff reported difficulty sleeping due to anxiety,
loss of appetite, and weight loss. T. 217-18. Plaintiff stated that
he was able to perform daily activities, but due to his “physical
and
psychological
problems,”
he
had
limitations.
T.
219.
Socialization revolved around his immediate family but “[o]ther
than that, he [was] at home watching TV or listening to the radio.”
Id. Dr. Baskin concluded that the exam results were consistent with
psychiatric problems that could interfere “to some degree” with
plaintiff’s
ability
to
function
daily.
T.
220.
According
to
Dr. Baskin, plaintiff had minimal to no limitations in following
and
understanding
independently,
simple
maintaining
instructions,
attention
performing
and
tasks
concentration,
and
learning new tasks with supervision; and moderate limitations in
maintaining a regular schedule, making appropriate job-related
decisions,
relating
adequately
with others,
and
appropriately
dealing with stress. T. 219-20. Dr. Baskin diagnosed plaintiff, on
Axis I, with depressive disorder, not otherwise specified (“NOS”),
anxiety disorder, NOS, and pain disorder associated with general
medical
condition,
plaintiff’s
“lack
and
of
noted
a
involvement
guarded
in
any
prognosis,
type
of
citing
consistent
supportive counseling for symptoms of depression and anxiety.”
T. 220.
4
At step four, the ALJ undertook a thorough review of the
record
evidence,
including
treatment
records,
consulting
examinations, and plaintiff’s own reports. The ALJ found that
plaintiff’s reports regarding his ADLs were “inconsistent with
allegations of disabling symptoms and functional limitations,”
noting that plaintiff testified that he mowed the lawn with a push
mower; walked along the Thruway to his mother’s house in three to
four
block
increments,
with
brief
rest
stops
(although
he
separately reported that he had to take two to three hour breaks
after
walking
this
distance
[T.
166]);
and
reported
to
Dr. Balderman that he had not consumed alcohol in years, but told
Dr. Baskin that he drinks a six-pack of beer in a week and
treatment
notes
continually
refer
to
alcohol
use.
T.
36
(referencing T. 62-63).
The ALJ noted that in November 2009, plaintiff began treating
at Erie County Medical Center (“ECMC”), primarily with Dr. Chi-Biu
Hsiao, for an HIV infection. T. 264. Plaintiff reported fatigue and
nausea, and stated that his anxiety prevented him from “doing
roofing work like he used to do.” Id. Plaintiff’s physical exam was
essentially normal, but surrogate marker1 results showed an HIV-RNA
1
“HIV RNA (viral load) and CD4 T lymphocyte (CD4) cell count
are the two surrogate markers of antiretroviral treatment (ART)
responses and HIV disease progression that have been used for
decades to manage and monitor HIV infection.” National Institutes
of Health, Guidelines for the Use of Antiretroviral Agents in
HIV-1-Infected
Adults
and
Adolescents,
available
at
https://aidsinfo.nih.gov/guidelines/html/1/adult-and-adolescent-a
5
count2 of 46,952 and CD4 count3 of 370. T. 264-65, 270. It was noted
that plaintiff “decline[d] mental health provider help, but kn[ew]
why
he need[ed] [it],” and that he felt “guilty about it.” T. 269.
Treatment notes from that November exam through July 2010 reflect
essentially normal physical examinations, with plaintiff’s chief
complaints revolving around fatigue and anxiety, but also including
night sweats, stomach pain, foot pain, and diarrhea. T. 264-72.
As the ALJ pointed out, treatment notes from the time period
February through August 2011, again from Dr. Hsiao, show that
plaintiff’s surrogate marker results improved dramatically with
medication, as did his reports of symptoms. In November 2010,
plaintiff’s HIV-RNA count was less than 48 and his CD4 count was
476. T. 346. In July 2011, his HIV-RNA count was undetectable and
his CD4 count was 550. T. 337. In October 2011, plaintiff’s HIV-RNA
count was 29 and his CD4 count was 882. T. 335-37. During this time
period,
plaintiff’s
physical
examinations
continued
to
be
rv-guidelines/458/plasma-hiv-1-rna--viral-load--and-cd4-count-mon
itoring.
2
Viral load tests measure the amount of HIV in the blood. For
most patients, the goal of HIV treatment is an HIV viral low that
is "undetectable," meaning that the HIV RNA is below the detection
limit of the test. High levels (from 30,000 [in women] to 60,000
[in men] and above) are linked to faster disease progression. See
Univ. of Calif., San Francisco, Understanding Laboratory Tests,
available at http://hivinsite.ucsf.edu/insite?page=pb-diag-02-00.
3
Generally, a normal range for CD4 cells is between 600 and
1,500. Usually, when a person with low CD4 cells starts HIV
medicines, the CD4 cell count increases as the HIV virus is
controlled. See id.
6
essentially normal and his weight increased. T. 329, 337-38, 346.
Additionally, as the ALJ noted, plaintiff’s complaints of ankle
swelling and skin lesions resolved over time. Id.
Dr. Hsiao completed a “medical statement regarding HIV and
AIDS for Social Security disability claim” on February 14, 2011.
T. 292-96. Dr. Hsiao reported that plaintiff had experienced
repeated episodes of severe malaise, repeated episodes of severe
pain, repeated episodes of severe night sweats, and “[o]ther
repeated severe episodes caused by HIV-AIDs.” Id. Dr. Hsiao also
reported that plaintiff was moderately impaired in understanding,
remembering,
and
carrying
out
simple
instructions;
moderately
impaired in understanding and carrying out detailed instructions;
markedly impaired
in
maintaining
attention
and concentration;
markedly impaired in working with others, interacting with the
general public, and accepting supervision; and extremely impaired
in getting along with coworkers. T. 295. According to Dr. Hsiao,
plaintiff was limited to standing 15 minutes at a time, sitting
30 minutes at a time, lifting 20 pounds occasionally, and lifting
10 pounds frequently. T. 294-95. The ALJ gave this assessment of
plaintiff’s limitations little weight, finding that it was not
supported by other substantial record evidence, including the
consulting
psychiatric
examination
of
Dr.
Baskin.
T.
36.
Additionally, the ALJ noted that the physical limitations ascribed
by Dr. Hsiao were “consistent with the performance of light work,”
7
although there was “no indication as to how [Dr. Hsiao] arrived at
this conclusion.” T. 36-37. The ALJ, in turn, gave significant
weight to Dr. Baskin’s opinion, finding that this assessment of
plaintiff’s
mental
limitations
was
consistent
with
treatment
records from ECMC and Dr. Hsiao, and with the record as a whole.
T. 37.
Dr.
Samuel
Balderman
completed
an
internal
medicine
examination on October 5, 2010. T. 221-24. Plaintiff’s physical
examination
was
normal.
T.
222-23.
Dr.
Balderman
diagnosed
plaintiff with status post myocardial infarction, questionable
history of gout, history of alcohol abuses, and HIV positive
status, and noted a stable prognosis. T. 223. Dr. Balderman opined
that
plaintiff
had
“mild
physical
limitations,”
without
elucidating. Id. The ALJ gave “some” weight to this opinion,
finding that although Dr. Balderman’s assessment of mild physical
limitations was consistent with treatment records, the ALJ “[gave]
the claimant the benefit of every doubht, by providing that he is
limited to performing light exertional work.” T. 36.
Dr. Hillary Tzetzo completed a psychiatric review technique
form on October 15, 2010. T. 225-38. Dr. Tzetzo assessed plaintiff
as suffering from a medically determinable impairment that did not
precisely satisfy the diagnostic criteria of an affective disorder
or an anxiety-related disorder. T. 228, 230. Under the “B” criteria
of
the
listings,
Dr.
Tzetzo
found
8
that
plaintiff
had
no
restrictions of ADLs and no repeated episodes of deterioration, and
mild difficulties in maintaining social functioning and maintaining
concentration, persistence, or pace. T. 235. Dr. Tzetzo found no
evidence of the presence of “C” criteria, and ultimately found that
plaintiff’s mental impairments were non-severe. T. 236-37.
A physical residual functional capacity (“RFC”) assessment was
completed by single decision maker B. Jaffe on October 18, 2010.
T.
239-44.
That
assessment
found
that
plaintiff’s
mental
impairments were not severe, and that plaintiff could occasionally
lift
and/or
carry
20
pounds;
frequently
lift
and/or
carry
10 pounds; stand and/or walk about six hours in an eight-hour
workday; and push and/or pull to an unlimited extent. T. 240. The
assessment
also
found
no
postural,
manipulative,
visual,
communicative, or environmental limitations. T. 241-42. Regarding
plaintiff’s mental limitations, the ALJ gave “less weight” to this
opinion,
finding
plaintiff’s
mental
that
the
record
impairments
were
supported
severe.
a
T.
finding
37.
that
Regarding
plaintiff’s physical limitations, the ALJ “place[d] some, but less
weight,” on the opinion, noting that “[w]hile these functional
limitations are generally consistent with the evidence as well,
[the ALJ] recognize[d] that they were rendered by a non-medical
source, which warrants granting it less weight.” T. 36.
Upon reviewing the evidence, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to perform light
9
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except
that he was limited to work that required him to remember and
implement
simple
interaction
with
instructions,
coworkers
with
and
the
no
more
public.
than
T.
occasional
31-37.
After
determining that plaintiff was unable to perform past relevant work
as
a
roofer
determined
or
construction
that,
considering
laborer,
at
plaintiff’s
step
age,
five,
the
education,
ALJ
work
experience, and RFC, jobs existed in significant numbers in the
national economy that plaintiff could perform. T. 37-38. The ALJ
applied the Medical-Vocational Guideline 202.21 (“the Grids”) and
SSR 96-9p in determining that plaintiff could perform this work.
V.
Discussion
A.
Failure to Properly Weigh the Medical Opinions of Record
1.
Plaintiff
Application of the Treating Physician Rule
contends
that
the
ALJ
erred
in
not
giving
controlling weight to the functional assessment of plaintiff’s
treating physician, Dr. Hsiao. The treating physician rule provides
that an ALJ must give controlling weight to a treating physician’s
opinion if that opinion is well-supported by medically acceptable
clinical and diagnostic techniques and not inconsistent with other
substantial evidence in the record. See Halloran v. Barnhart, 362
F.3d 28, 32 (2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2). The Court
agrees with the ALJ, however, that Dr. Hsiao’s assessment of
plaintiff’s mental limitations was not supported by substantial
10
record evidence. Dr. Hsiao’s own treatment notes do not reflect the
degree of limitation reported by the assessment. For instance,
Dr. Hsiao
opined
that plaintiff’s
ability
to
get
along
with
coworkers was “extremely impaired”; however, as the ALJ noted,
although plaintiff reported social anxiety, there is no record
evidence that he was unable to get along with others. Moreover,
there are no psychiatric treatment notes in the record, and in
fact,
the
record
reveals
that
plaintiff
refused
psychiatric
treatment. T. 269. Regarding plaintiff’s physical limitations,
Dr. Hsiao
indicated
that
plaintiff
was
limited to
standing
15 minutes at a time, sitting 30 minutes at a time, lifting
20
pounds
occasionally,
and
lifting
10
pounds
frequently.
Dr. Hsiao’s own treatment notes, however, do not support such
restrictive sitting and standing capabilities: Dr. Hsiao’s physical
examinations of plaintiff yielded consistently normal results.
T. 264-72, 329, 337-38, 346.
Plaintiff argues that the ALJ failed to consider the required
factors in
deciding
to
give
less than
controlling
weight
to
Dr. Hsiao’s opinion. See 20 C.F.R. § 404.1527(d)(2)-(d)(6) (the
factors are: (1) the length, nature and extent of the treatment
relationship;
(2)
the
evidence
in
support
of
the
treating
physician's opinion; (3) the consistency of the opinion with the
entirety of the record; (4) whether the treating physician is a
specialist; and (5) other factors that are brought to the attention
11
of
the
Commissioner
that
tend
to
support
or
contradict
the
opinion). The ALJ need not explicitly discuss each of the factors,
but he must apply “the substance of the treating physician rule.”
Halloran, 362 F.3d 28, 32 (2d Cir. 2004); see Atwater v. Astrue,
2013 WL 628072, *2 (2d Cir. 2013) (“[S]lavish recitation of each
and every factor [is not required] where the ALJ's reasoning and
adherence to the regulation are clear.”). In this case, the ALJ
fully reviewed the record evidence (including Dr. Hsiao’s own
treatment notes which did not substantially support the opinion)
and evaluated Dr. Hsiao’s opinion in light of its consistency with
the rest of the record evidence. Moreover, Dr. Hsiao was not a
specialist in psychiatry or psychology, and the ALJ’s review of
Dr. Hsiao’s notes indicates that the ALJ was aware of the nature
and extent of the treatment relationship, which stemmed from
treatment for an HIV infection. It is thus clear from the ALJ’s
decision that he followed the substance of the treating physician
rule, and his decision, which does not accord controlling weight to
Dr. Hsiao’s opinion, will not be disturbed.
2.
Weight Given to State Agency Reviewer’s Opinion
Plaintiff contends that the ALJ erred in giving any weight to
the opinion of the state agency reviewer. As noted above, the ALJ
stated that he gave “less weight” to the opinion as to mental
limitations, and “some, but less weight” to the opinion as to
physical
limitations,
merely
noting
12
that
the
assessment
was
generally consistent with the record evidence. Although plaintiff
correctly states that the opinion of a state agency reviewer who is
not a medical professional is not entitled to any weight, plaintiff
"has not demonstrated that he was prejudiced by the minimal weight
afforded this opinion." Martin v. Astrue, 2012 WL 4107818, *16
(N.D.N.Y. Sept. 19, 2012); see Tankisi v. Comm'r of Soc. Sec., 521
F. App'x 29, 35 (2d Cir. 2013) (finding no reversible error where
ALJ
assigned
“substantial
weight”
to
state
agency
reviewer’s
opinion, where it was “supported by the remainder of the record”);
Zabala
v.
Astrue,
595
F.3d
402,
409
(2d
Cir.
2010)
(remand
unnecessary where “application of the correct legal principles ...
could lead only to the same conclusion”).
3.
Weight Given to Consulting Psychologist’s Opinion
Plaintiff contends that the ALJ erred in giving significant
weight to the opinion of consulting psychologist Dr. Baskin.
However, “[c]onsultative opinions can be afforded even greater
weight than treating-source opinions when there is good reason to
reject treating source opinion, and substantial evidence supports
them.” Younes v. Colvin, 2015 WL 1524417, *5 (N.D.N.Y. Apr. 2,
2015) (citing SSR 96-6p (“In appropriate circumstances, opinions
from State agency medical and psychological consultants and other
program physicians and psychologists may be entitled to greater
weight than the opinions of treating or examining sources.”)). The
record evidence substantially supports Dr. Baskin’s conclusions
13
regarding plaintiff’s limitations. Therefore, the Court will not
disturb the ALJ’s decision.
B.
The ALJ’s Duty to Re-Contact the Treating Physician
Plaintiff contends that the ALJ was required to re-contact
Dr. Hsiao for additional information, arguing that because the ALJ
stated that there was “no indication” of how Dr. Hsiao came to
assess plaintiff’s physical limitations (T. 37), the ALJ had an
affirmative duty to “develop the record to clarify the basis of
[the]
opinion.”
Doc.
13-1
at
18.
Although,
in
certain
circumstances, an ALJ has an affirmative duty to develop the record
where the
basis
of
a
treating
physician’s
opinion
cannot
be
discerned (see, e.g., Jackson v. Barnhart, 2008 WL 1848624, *8
(W.D.N.Y. Apr. 23, 2008)), such circumstances did not exist here.
The
record
contains
apparently
complete
treatment
notes
from
Dr. Hsiao’s own treatment of plaintiff, and, as discussed above,
these treatment notes do not provide support for Dr. Hsiao’s
opinion, nor does other substantial evidence in the record. As the
Second Circuit has explained, “where there are no obvious gaps in
the administrative record, and where the ALJ already possesses a
complete medical history, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.”
Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.1999) (internal
quotation marks omitted).
14
C.
Credibility
Plaintiff
credibility.
contends
that
the
ALJ
erred
in
assessing
his
In the context of his discussion of the record, the
ALJ cited, among other sources, 20 C.F.R. § 416.929 and SSR 96-7p.
The subsequent discussion, which incorporates a review of the
testimony, indicates that the ALJ used the proper standard in
assessing credibility, especially in light of the fact that the ALJ
cited relevant authorities in that regard. See Britt v. Astrue, 486
F. App'x 161, 164 (2d Cir. 2012) (finding explicit mention of
20 C.F.R. § 404.1529 and SSR 96–7p as evidence that the ALJ used
the proper legal standard in assessing the claimant's credibility);
Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y. June 25, 2012)
(“Failure to expressly consider every factor set forth in the
regulations is not grounds for remand where the reasons for the
ALJ's determination of credibility are sufficiently specific to
conclude that he considered the entire evidentiary record.”). The
ALJ’s conclusion that plaintiffs reports were not credible because
they
were
inconsistent
with
substantial
record
evidence,
and
because plaintiffs’ reports themselves were inconsistent with each
other, was based on a proper application of the law and is
supported by the record.
VI.
Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 14) is granted, and plaintiff’s
15
cross-motion (Doc. 13) is denied. The ALJ’s finding that plaintiff
was not disabled is supported by substantial evidence in the
record, and accordingly, the Complaint is dismissed in its entirety
with prejudice. The Clerk of the Court is directed to close this
case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
August 6, 2015
Rochester, New York.
16
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