Boyce v. Commissioner of Social Security
Filing
18
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 14 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 8/25/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NICOLE BOYCE,
Plaintiff,
-vs-
No. 1:13-CV-00988 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Nicole Boyce (“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”) denying her application for
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
motion is granted.
II.
Procedural History
The
record
reveals
that
on
June
8,
2010,
plaintiff
protectively filed an application for SSI, alleging disability
beginning January 5, 2005.1 After this application was denied,
1
The Court notes that SSI cannot be paid for any period prior
to the month after that in which the application is filed. See
42 U.S.C. § 1382(c)(7); 20 C.F.R. § 416.501.
plaintiff requested a hearing, which was held before administrative
law judge William M. Weir (“the ALJ”) on November 29, 2011. The ALJ
issued an unfavorable decision on June 29, 2012. The Appeals
Council
denied
review
of
that
decision.
This
timely
action
followed.
III. Summary of the Evidence
A.
Plaintiff’s Reports
Plaintiff, who was 23 years old at the time of the hearing,
testified that she quit school at 16, having been in special
education, because she was “getting harassed.” T. 37-38. T. 40.
Plaintiff testified that she slept 16 hours a day at least 20 days
per month, and that her family took care of her children while she
slept. She agreed that if her family helped less, she would have to
“change [her] ways” and “[n]ot sleep as much.” T. 57. She also
testified that she experienced “racing thoughts” and “sometimes
[could] be up all night” as a result. T. 42. She testified that she
“just can’t get [her]self up and going,” and that she “[felt]
depressed all the time.” T. 44. She testified that she could color,
play video games, and read books with her son. She reported that
she was able to do occasional household chores such as putting
dishes in the dishwasher or cooking a meal once a week.
Plaintiff testified that she had about twice monthly “anxiety
attacks” in public settings. She testified that she quit her job at
Tim Horton’s because she felt “overwhelmed” with tasks such as
2
memorizing and counting, and because she “had a hard time with the
people.” T. 49. Plaintiff reported taking Geodon, Tompamax, and
Zoloft for bipolar disorder, and Zocor for a cholesterol problem.
She did not have side effects from these medications, and testified
that they helped “[m]ost of the time.” T. 40.
In association with her SSI application, plaintiff reported
that she was unable to work because of bipolar disorder, learning
disability, and anemia. She stated that she quit her former job in
restaurant service in May 2005 because she “was getting harassed by
some of [her] co-workers, and [her] employer wouldn’t do anything
about it.” T. 129. Plaintiff reported that she was five feet, seven
inches tall, and weighed 305 pounds.
B.
Treating Sources
Plaintiff’s
medical
records
consist
primarily
of
those
relating to mental health treatment for continuing diagnoses of
bipolar disorder and anxiety disorder. Regarding her physical
health, treatment notes from plaintiff’s primary care physician,
Dr.
Alan
Barcomb,
indicate
normal
physical
examinations
from
February 2010 through October 2011. August 2011 treatment records
from cardiologist Dr. Jagdish Mishra note normal cardiac activity.
Dr. Mishra discussed “[a]gressive lifestyle modifications” with
plaintiff, including cessation of smoking. In September 2011,
plaintiff was treated at United Memorial Medical Center for a
urinary tract infection and gallbladder dysfunction.
3
In February and March 2010, Dr. Barcomb’s treatment records
included notes of mental status examinations, and that plaintiff
exhibited depressed affect, coherent and logical thought processes,
alertness and orientation, realistic judgment, and appropriate
insight. In January 2011, plaintiff denied anxiety and depression,
however. In June 2011, plaintiff reported depression and stated
that she had been treating for that condition.
Plaintiff met with Nurse Practitioner (“NP”) Annmarie Kenny,
for mental health counseling, from approximately May
through
December 2010. A mental status exam in June 2010 reported that
plaintiff
demonstrated
normal
and
intact
thought
processes;
reality-based and organized thought content; fair to good attention
and concentration; orientation to time, place, and person; fair
insight, judgment, and memory; and fair to bad motivation and
initiative. NP Kenny noted that plaintiff suffered from bipolar
disorder and a learning disorder, and that she had been “stable on
her current medications for sometime.” T. 259. At that time,
plaintiff was two months pregnant. NP Kenny also opined that
plaintiff was “unable to work per her mental health disorder.” Id.
NP Kenny completed a report, at the request of the State
agency, on July 27, 2010. At that time, NP Kenny had seen plaintiff
on three occasions, the last being the June 24, 2010 examination.
NP Kenny reported diagnoses of bipolar and anxiety disorder, and
opined
that
plaintiff
suffered
4
from
symptoms
of
depression,
“excessive sleep,” poor concentration, and lack of focus. T. 255.
NP Kenny stated that plaintiff was “chronically ill and incapable
of pursuing any gainful employment” at that time. T. 257. Upon
evaluating plaintiff in October 2010, NP Kenny noted that her
prognosis was “fair to poor if she [was] not adherent to [NP
Kenny’s]
medication
and
treatment
regime.”
T.
329.
NP
Kenny
completed a medical source statement in December 2010, and reported
that plaintiff had fair-to-poor ability to understand and remember
very short and simple instructions and maintain attention for
extended periods of two-hour segments, but good or fair ability in
all remaining areas of mental functioning.
Treatment notes from licensed master social workers (“LMSW”)
Laurie Ripton and Danielle Figura at Genesee County Mental Health
(“GCMH”) indicate that throughout treatment in 2010 and 2011,
plaintiff reported inadequate coping skills, and recounted having
arguments
with
her
conducted
from
mother-in-law.
April
2010
through
Mental
status
September
2011
examinations
found
that
plaintiff was alert and oriented, with logical and coherent speech,
good eye contact, normal memory, normal psychomotor activity, no
conceptual disorganization, fair judgment and insight, linear and
goal-directed
attitude,
thought
bland
processes,
affect,
fair
cooperative
impulse
control,
and
interested
possibly
below
average intellect, and good attention/concentration. Plaintiff
5
denied
suicidal
ideation.
Plaintiff
was
a
no-show
for
five
appointments with GCMH from July through October 2011.
C.
Consulting Sources
In a September 2010 consulting psychiatric exam, Dr. Renee
Baskin noted that plaintiff reported sleeping “all the time,”
weight loss despite pregnancy, mood swings, short term memory
deficits, and concentration difficulties. Plaintiff also reported
that she was able to dress, bathe, and groom herself, but “often
lack[ed] the energy or motivation to even get out of bed.” T. 272.
On mental status examination, plaintiff exhibited fluent and clear
speech;
coherent
and
goal-directed
thought
processes
with
no
evidence of hallucinations or delusions; anxious and tense affect;
dysthymic mood; clear sensorium; orientation to time, place, and
person;
“relatively
intact”
recent
and
remote
memory
skills;
“borderline” cognitive functioning with a somewhat limited general
fund of information; limited insight; and fair judgment. Dr. Baskin
opined that, with regard to work limitations, plaintiff would have
minimal to no limitations in handling simple instructions and
performing simple tasks independently, but moderate limitations in
maintaining attention and concentration, maintaining a regular
schedule, learning new tasks, performing complex tasks, making
appropriate job-related decisions, relating adequately with others,
and appropriately dealing with stress. Dr. Baskin also noted that
6
plaintiff “appear[ed] to be compromised by ineffective coping
skills despite what she reports as years in counseling.” T. 273.
In
a
September
2010
psychiatric
review
technique
form,
Dr. J. Alpert diagnosed plaintiff with affective disorder, not
otherwise specified (“NOS”), anxiety disorder, NOS, and personality
disorder, NOS. Under the “B” criteria of the listings, Dr. Alpert
found that plaintiff had no restriction in activities of daily
living (“ADLs”) and no repeated episodes of deterioration, but
moderate
difficulties
in
maintaining
social
functioning
and
maintaining concentration, persistence, or pace. Dr. Alpert noted
no evidence of “C” criteria.
Dr.
Alpert
also
completed
a
mental
residual
functional
capacity (“RFC”) assessment, in which he found that plaintiff was
moderately
limited
in
understanding
and
remembering
detailed
instructions; carrying out detailed instructions; completing a
normal workday or week without interruptions from psychologicallybased symptoms and performing at a consistent pace without an
unreasonable
number
instructions
and
and
length
responding
of
rest
appropriately
periods;
to
accepting
criticism
from
supervisors; and responding appropriately to changes in the work
setting. Dr. Alpert found no significant limitation in any of the
other listed areas. Plaintiff reported that she quit her job in
food service because of “personal reasons,” and stated that despite
symptoms of anxiety and depression, she last saw her counselor on
7
June 15, 2010. Dr. Alpert concluded that although plaintiff’s file
indicated “significant psychiatric limits,” she retained the mental
RFC to “carry out work procedures with a consistent pace, interact
adequately with coworkers and supervisors, adapt to changes and
handle stress in the workplace.” T. 293.
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. § 404.1520. At step one, the ALJ
determined that Plaintiff had not engaged in substantial gainful
activity since June 8, 2010, the application date. At step two, the
ALJ found that plaintiff had the following severe impairments:
obesity, mood disorder, and learning disorder. 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.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to perform a full
range of work at a sustained basis at all exertional levels
“provided
occasional
it
is
simple,
contact
with
repetitive
the
general
work,
with
public,
no
more
co-workers,
than
and
supervisors.” T. 22. In assessing plaintiff’s RFC, the ALJ noted
that although he did not find the “B” criteria of the listings to
be satisfied with regard to plaintiff’s mental impairments, he did
consider plaintiff’s nonexertional limitations (which consisted of
8
moderate difficulties in social functioning and in concentration,
persistence, or pace) in his overall RFC assessment.
At step four, the ALJ found that plaintiff was unable to
perform her past relevant work as a food server. At step five, the
ALJ determined that, considering plaintiff’s age, education, work
experience, and RFC, jobs existed in significant numbers in the
national economy that plaintiff could perform. Accordingly, the ALJ
found that plaintiff was not disabled.
V.
Discussion
A
district
court
may
set
aside
the Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff contends that the ALJ’s RFC assessment was erroneous
and that the ALJ should have called a vocational expert (“VE”)
rather
than
rely
on
the
Medical-Vocational
Guidelines
(“the
grids”).
A.
RFC Assessment
Plaintiff contends that the ALJ’s RFC assessment does not take
into account her nonexertional limitations, specifically moderate
9
limitations in the ability to maintain a regular schedule and
maintain attention and concentration. As noted above, based on
Dr. Baskin’s consulting examination, the ALJ found that plaintiff
was moderately limited in social functioning and in concentration,
persistence, or pace. The ALJ then explained that he considered
this limitation when assessing plaintiff’s overall RFC.
The Court notes that additional medical evidence, other than
Dr. Baskin’s evaluation upon which the ALJ explicitly relied,
indicated lesser degrees of limitations than Dr. Baskin found.
Although Dr. Alpert found that plaintiff was moderately limited in
the
ability
to
complete
a
normal
workday
or
week
without
interruptions from psychologically-based symptoms and perform at a
consistent pace without an unreasonable number and length of rest
periods, he also found that she had no significant limitations in
other areas of concentration. Those areas included carrying out
short
and
“extended
simple
periods,”
maintaining
ordinary
instructions,
regular
routine
performing
maintaining
attendance,
activities
without
being
special
concentration
within
punctual,
supervision,
a
for
schedule,
sustaining an
and
working
in
coordination with others without being distracted.
Plaintiff’s
psychiatric
treatment
notes,
spanning
a
time
period from April 2010 through September 2011 , also indicate that
upon mental status examination plaintiff regularly presented with
good eye contact, normal memory, no conceptual disorganization,
10
linear and goal-directed thought processes, a cooperative and
interested attitude, and good attention and concentration.
The
ALJ’s
RFC
assessment
is
substantially
supported by
Dr. Baskin’s consulting examination, Dr. Alpert’s findings, and
plaintiff’s record of treatment. Although the ALJ found that
plaintiff could perform work “on a sustained basis,” he found that
this work would have to be simple, repetitive work, with no more
than
occasional
adequately
contact
incorporated
with
other
plaintiff’s
people.
This
moderate
RFC
finding
nonexertional
limitations. See, e.g., Kotasek v. Comm’r of Soc. Sec., 2009 WL
1584658, *13 (June 3, 2009) (ALJ’s RFC finding, which limited
contact
with
other
individuals,
was
supported
by
substantial
evidence where medical opinions indicated that plaintiff had stress
stemming from social phobias).
B.
Failure to Call Vocational Expert
The ALJ relied on the grids in determining plaintiff’s ability
to perform work considering her RFC, age, education, and past work
experience. Plaintiff contends that the ALJ committed reversible
error in failing to call a VE in order to ascertain plaintiff’s
ability to do work considering her nonexertional limitations.
Where a claimant's nonexertional impairments significantly
diminish her ability to work beyond any incapacity caused solely
from exertional limitations, and she is unable to perform the full
range of employment under the grids, a VE must be consulted. See
11
Bapp v. Bowen, 802 F.3d 601, 603 (2d Cir. 1986). However, “the mere
existence of a nonexertional impairment does not automatically
require the production of a vocational expert nor preclude reliance
on the guidelines.” Id. at 602. To establish that reference to the
grids is inadequate and that the use of a vocational expert is
mandatory, nonexertional impairments must “so narrow[] a claimant's
possible
range
of
work
as
to
deprive
[her]
of
a
meaningful
employment opportunity.” Id.
Plaintiff
impairments
has
had
not
such
a
established
restrictive
that
her
effect
on
nonexertional
her
employment
prospects. As noted above, the evidence, both from plaintiff’s
psychiatric
treatment
records
and
from
consulting
sources,
established that, at most, plaintiff had moderate limitations in
social functioning and in maintaining concentration, persistence,
or
pace.
Dr.
Alpert
actually
found
that
plaintiff
had
no
significant limitation in maintaining concentration for “extended
periods” and in maintaining a regular schedule, and plaintiff’s
treatment
notes
consistently
reported
good
attention
and
concentration, good eye contact, and cooperative and interested
attitude.
The
ALJ
properly
found
that
plaintiff’s
nonexertional
limitations had “little or no effect on the occupational base of
unskilled work at all exertional levels.” T. 26. The ALJ then
applied guideline 204.00 as a framework for determining that
12
plaintiff was not disabled. This analysis reflected application of
the proper legal rules. See Medley v. Colvin, 2015 WL 4112477, at
*5 (W.D.N.Y. July 8, 2015) (“[S]ince Plaintiff's non-exertional
limitations did not significantly erode her occupational base for
work at all exertional levels, the ALJ properly applied Grid Rule
204.00 as a framework for determining that Plaintiff was not
disabled within the meaning of the Act.”). The ALJ’s decision to
rely on the grids was thus supported by substantial evidence in the
record, and VE testimony was not necessary in this case.
VI.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 9) is denied and the Commissioner’s crossmotion (Doc. 14) is granted. 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 25, 2015
Rochester, New York.
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