O'Dell v. Colvin
Filing
13
DECISION AND ORDER DENYING Plaintiff's 9 Motion for Judgment on the Pleadings; GRANTING Defendant's 11 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 9/19/2015. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FRANK PHILLIP O’DELL,
Plaintiff,
v.
DECISION AND ORDER
14-CV-592S
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Plaintiff Frank Phillip O’Dell challenges an Administrative Law Judge’s (“ALJ”)
decision dated March 6, 2013, wherein the ALJ determined that Plaintiff was not disabled
under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. He now
contends that this determination is not based upon substantial evidence, and reversal is
warranted.
2.
Plaintiff filed applications for disability insurance benefits and supplemental
security income on April 27, 2011, alleging a disability beginning on March 31, 2006. Both
claims were denied initially on July 18, 2011. Plaintiff was granted a hearing on those
denials on February 27, 2013, at which Plaintiff testified. The ALJ subsequently found that
Plaintiff was not disabled within the meaning of the Social Security Act, and the Appeals
Council denied Plaintiff’s request for review on May 27, 2014, rendering the ALJ’s
determination the final decision of the Commissioner. Plaintiff filed the instant action on
July 22, 2014.
3.
Plaintiff and the Commissioner each filed a Motion for Judgment on the
Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Judgment on
the pleadings is appropriate where material facts are undisputed and where a judgment
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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).
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 only be reversed 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,” and 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) (internal
quotation marks and citation omitted). 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), cert denied, 459 U.S. 1212
(1983).
5.
To determine 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 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 will not substitute “its own judgment for that of the [Commissioner], even if it might
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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 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, 140-42, 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.
8.
While the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on 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). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his physical ability, age, education and work
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experience. Second, the Commissioner must determine whether jobs exist in the national
economy that a person having the claimant's qualifications could perform. See 42 U.S.C.
§ 423(d)(2)(A); 20 C.F.R. § 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460-61, 103
S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.
In this case, the ALJ made the following findings with regard to the five-step
process set forth above: (1) Plaintiff had not engaged in substantial gainful activity since
March 31, 2006, his alleged onset date (R. 24);1 (2) Plaintiff had the following severe
impairments: bipolar disorder, post-traumatic stress disorder, depressive disorder,
borderline intellectual functioning, and polysubstance dependence in remission (R. 24); (3)
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled a recognized disabling impairment under the regulations (R. 25-26); (4) Plaintiff
had the residual functional capacity (“RFC”) to perform work at all exertional levels with
certain nonexertional limitations, including performing only simple, repetitive and routine
tasks with no more than occasional contact with others (R. 26-30); and (5) Plaintiff had no
past relevant work, but three were nonetheless jobs that existed in significant numbers in
the national economy that Plaintiff could perform. (R. 30-31.)
10.
Plaintiff first contends that the ALJ erred by failing to appropriately address
whether Plaintiff met the criteria for a per se intellectual disability under Listing 12.05C.
(Pl’s Mem of Law at 19-21); see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.
Specifically, Plaintiff argues that the ALJ improperly rejected a lower IQ assessment that
met the level of severity to qualify as disabled. (Pl’s Mem of Law at 15-19.)
Listing 12.05 lists the criteria for determining whether a claimant is per se disabled
1
Citations to the underlying administrative record are designated as “R.”
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due to an intellectual disability.2 “Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Subsection
12.05C provides that a claimant is disabled where he or she has “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental impairment
imposing an additional and significant work-related limitation of function.” 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.05C.
The record in the instant case contains two sets of IQ scores for Plaintiff: a July
2011 finding that Plaintiff had a full scale IQ of 80 and a January 2012 finding that he had
a full scale IQ score of 65 (R. 287, 317.) Generally, “[i]n cases where more than one IQ is
customarily derived from the test administered, e.g., where verbal, performance, and full
scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction
with 12.05.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00D(6)(c). However, because
section 12.05 refers to a “valid” IQ score, an ALJ may reject an IQ score as invalid where
it is inconsistent with the record. Baszto v. Astrue, 700 F. Supp. 2d 242, 248-49 (N.D.N.Y.
2010) (collecting cases); see generally Burnette v. Colvin, 564 Fed. App’x 605, 608 (2d Cir.
2014) (ALJ’s rejection of IQ assessment as inconsistent with the record supported by
substantial evidence where objective medical findings were relatively benign).
Here, contrary to Plaintiff’s argument, the ALJ sufficiently explained his reasons for
not crediting the lower IQ test results. In discussing whether Plaintiff met any Listing, the
ALJ stated that:
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At the time the ALJ’s decision was released, this impairment was referred to as mental
retardation. Although this terminology has changed, the relevant criteria has not.
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The claimant’s borderline intellectual functioning does not meet the criteria
of Listing 12.05. As discussed below [in connection with the RFC
determination], I do not find the Claimant’s January 2012 WAIS-III scores,
which were in the [intellectually disabled] range, to be a valid indicator of his
intellectual functioning, given his obviously higher adaptive functioning and,
particularly in light of his scores on an earlier WAIS-IV administered in July
2011, on which he performed in the low average range.
(R. 26 (emphasis added).) The ALJ further addressed this issue in resolving Plaintiff’s
RFC, where he concluded that Dr. Maiden’s January 2012 assessment warranted little
weight because it was “unsupported and contradicted by the remainder of the evidence.”
(R. 30.) In support of this conclusion, the ALJ noted that the claimed intensity, persistence
and limiting effects of Plaintiff’s alleged mental limitations were “based largely on his
reported history and subjective statements.” (R. 28.)
[T]here is little in the way of objective medical evidence to support [Plaintiff’s]
testimony that he is so functionally limited that he is unable to perform work
on a sustained basis – and no evidence of any mental limitations prior to
April 2011. Despite numerous symptom complaints, the claimant routinely
has essentially normal mental status examination findings, including normal
memory, attention, and simple calculations. There is no objective evidence
of vegetative signs of depression, significant or frequent anxiety or panic
attacks, uncontrolled or uncontrollable mood swings, or psychosis.
(R. 28-29.) With respect to objective medical findings, the ALJ noted that “not one of the
progress notes, reports or letters in the record indicates significant objective findings,
except for the January 2012 IQ test, which is contradicted by the earlier 2011 IQ test.
[Plaintiff] does not allege and there is no evidence of an injury that would account for this
decline in intellectual functioning.” (R. 29.) Instead, examination findings revealed normal
attention, concentration, and memory, as well as conservative treatment. (R. 26-30; see
300, 323, 325, 335-36, 338.)
The ALJ did not err in highlighting the lack of objective medical findings when
concluding that Plaintiff’s mental impairment was not as severe as alleged or in rejecting
certain medical opinions as conclusory. (Pl’s Mem of Law at 25-27.) In his decision, the
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ALJ acknowledged that a claimant’s symptoms may suggest a greater severity of
impairment than could be shown by objective medical evidence. (R. 29.) However, the
ALJ found that the credibility of Plaintiff’s more recently reported severe symptoms was
also undermined by Plaintiff’s conservative treatment and his self-described activities. (R.
29.) Accordingly, this Court finds no error in the ALJ’s decision to reject as inconsistent with
the evidence in the record the conclusory assertions that Plaintiff could not work. (See e.g.
R. 290-91 (Plaintiff was “fearful” about obtaining employment and “does not believe that
he is capable”), 356 (conclusory statement that “the clinic doctor” determined Plaintiff was
ineligible for work for “90 days”).)
These same activities were also relied on by the ALJ in his conclusion that Plaintiff
had a higher adaptive functioning than would be expected from someone intellectually
disabled within the meaning of the Listings. “A person suffers from a deficit in adaptive
functioning if []he is unable to satisfactorily cope with the challenges of ordinary everyday
life, including living on one's own, taking care of children without help sufficiently well that
they have not been adjudged neglected, paying bills, and avoiding eviction.” Burnette, 564
Fed. App’x at 607 (internal quotation marks removed) (quoting Talavera v. Astrue, 697
F.3d 145, 153 (2d Cir. 2012)). Here, the ALJ noted Plaintiff’s ability to live alone and
perform the activities of daily living, including cleaning, preparing simple meals, shopping,
using public transportation, and handling his own finances. (R. 29.) Further highlighted
was Plaintiff’s ability to maintain a social circle, although small, as well as his ability to
draw, read poetry, and write. (R. 29.) The ALJ particularly noted that the “clarity and
expressiveness” of Plaintiff’s writing was inconsistent with the lower IQ score. (R. 29, 32732.) The determination that Plaintiff did not meet the criteria for a per se finding of disabled
pursuant to section 12.05 is therefore sufficiently explained in the decision and supported
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by substantial evidence.
11.
Contrary to Plaintiff’s next contention, the ALJ’s RFC finding is consistent with
the opinion of Dr. Zuckerman. (Pl’s Mem of Law at 21-24.) The ALJ determined that
Plaintiff could perform a full range of work at all exertional levels, but was limited to simple,
repetitve, and routine tasks which did not involve more than occasional contact with others.
(R. 26.) In June 2011, Dr. Zuckerman opined that Plaintiff “likely would be not impaired as
far [as] being able to recall simple work related instructions, but mild to moderately
impaired in attempting to follow more complex instructions and/or work directions.” (R.
239.) Plaintiff would also be moderately impaired with respect to stress management and
working cooperatively with others. (R. 239.)
Plaintiff highlights Dr. Zuckerman’s
subsequent statement in July 2011 that the evaluation would “certainly confirm that this
individual would exhibit moderate impairment mastering both simple and complex tasks;
specifically those that would require sustained effort and any numerical operations.” (R.
288.) However, by limiting Plaintiff to “simple, repetitive tasks” with only occasional contact
with others, the RFC determination is not inconsistent with Dr. Zuckerman’s findings such
that it can be concluded that the ALJ’s determination is not supported by substantial
evidence.
Further, the ALJ expressly considered whether use of the Medical-Vocational
Guidelines to determine Plaintiff’s disability status was appropriate in light of Plaintiff’s nonexertional limitations. (R. 31); see Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (use of
guidelines appropriate, but not controlling, where a claimant’s work capacity is not
“significantly diminished” by non-exertional limitations). Specifically, the ALJ found that
Plaintiff’s mental limitations would have little to no effect on Plaintiff’s ability to perform
unskilled work, which “ordinarily involve[s] dealing primarily with objects, rather than with
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data or people,” a description of work consistent with the ALJ’s RFC determination as well
as Dr. Zuckerman’s assessment of Plaintiff’s abilities. (R. 31 (citing SSR 85-15, 1983-1991
Soc. Sec. Rep. Serv. 343, 1985 WL 56857, *4 (S.S.A. 1985)).
12.
Finally, Plaintiff contends that the ALJ failed to sufficiently develop the record
by eliciting information from Plaintiff during the hearing that would inform a decision on
Plaintiff’s adaptive functioning. However, there is no indication that there was any gap in
the record on this issue, inasmuch as the record contains, and the ALJ discussed,
Plaintiff’s own reports regarding his abilities in addition to the medical evaluations. (R. 29,
139-43, 145-48, 236-38, 300, 335, 338); Amrock v. Colvin, No. 3:12-cv-55 (FJS), 2014 WL
1293452, *4 (N.D.N.Y. Mar. 31, 2014) (no error in developing the record despite alleged
failure to elicit daily activity testimony where the record otherwise contained this
information, including reports from the claimant himself).
13.
Having considered Plaintiff’s challenges, this Court is satisfied that the ALJ
committed no reversible error, and that his decision is based on substantial evidence.
Defendant's Motion for Judgment on the Pleadings is therefore granted and Plaintiff's
motion seeking the same relief is denied.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 9) is DENIED;
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No. 11)
is GRANTED;
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FURTHER, that the Clerk of the Court is directed to take the necessary steps to
close this case.
SO ORDERED.
Dated: September 19, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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