Price v. Colvin
DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting Commissioner's motion 17 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 6/14/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 1:14-CV-00756 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Petrina Price (“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.
The record reveals that in August 2011, plaintiff filed an
application for SSI, alleging disability beginning August 1, 2010.
After her application was denied, plaintiff requested a hearing,
which was held before administrative law judge Donald McDougall
(“the ALJ”) on March 1, 2013. The ALJ issued an unfavorable
decision on March 21, 2013. The Appeals Council denied review of
that decision and this timely action followed.
III. Summary of the Evidence
The record reveals that plaintiff suffers from type one
diabetes mellitus, for which she has been prescribed insulin
treatment was ineffective; rather, plaintiff received treatment for
diabetes on an episodic basis when her condition was uncontrolled.
Specifically, plaintiff was treated by the Erie County Medical
Center (“ECMC”) emergency department or clinic on eight occasions
from October 18, 2009 through December 20, 2011. From September 29,
2012 through October 1, 2012, plaintiff was admitted to Sisters of
Charity Hospital for diabetic ketoacidosis (a complication wherein
the body produces excess blood acids) and urinary tract infection.
department on November 23, 2012, again for diabetic ketoacidosis.
medication noncompliance was the reason for her treatment for
diabetes. See, e.g., T. 241, 296, 298, 306, 308, 309, 315, 326,
including PTSD and depression, none of the records state that
plaintiff was noncompliant with diabetes treatment by reason of her
mental health conditions, with the exception of one record dated
September 1, 2011, which noted that plaintiff’s diabetes was
“uncontrolled due to multiple stressors,” with no elucidation.
The records indicate that plaintiff’s diabetic complications
were related to alcohol use and/or abuse. See, e.g., T. 241 (noting
that toxicology was positive for alcohol (ETOH)). On September 28,
2011, at a mental health visit with a counselor at Kaleida Health
System, plaintiff “admit[ted] there [was] a problem with her
alcohol use [and] state[d] she [had] attempted to cut down from
quart liquor per night to two peach schnapps drinks.” T. 328. The
counselor noted that “this [was] also problematic due to sugar
content and her diabetes” and that substance abuse was a “barrier
“ambivalent” about ceasing substance abuse. Id.
Plaintiff received mental health treatment beginning in August
2011. She reported anxiety as a result of being robbed at gunpoint
in 2009. It was noted that she actively used marijuana and alcohol
to fall asleep at night, and that her diabetes was “very much” out
of control. T. 332. Plaintiff continued treatment through December
2012. The records contain repeated references to substance abuse.
From February 2012 through December 2012, when plaintiff treated
“manageable” symptoms of depression. See T. 419-509.
In a January 27, 2011 consulting psychiatric examination
Dr. Sandra Jensen noted that a mental status examination (“MSE”)
was unremarkable except for a flat affect. Dr. Jensen opined that
plaintiff could follow and understand simple instructions, perform
simple tasks independently, maintain attention and concentration,
maintain a regular schedule, learn new tasks, perform complex tasks
independently, make appropriate decisions, relate adequately with
Also on January 27, 2011, plaintiff underwent an internal
medicine examination performed by consulting physician Dr. Donna
Miller. Based on an unremarkable physical examination, Dr. Miller
opined that plaintiff had no significant physical limitations.
Plaintiff’s treating physician from ECMC, Dr. Patta, submitted
questionnaire on October 27, 2011. Dr. Patta wrote that plaintiff’s
FSG (finger stick glucose) was “very uncontrolled.” T. 321. In
response to a question asking whether “emotional factors contribute
limitations, Dr. Patta responded yes. Id. When asked to check boxes
indicating “any psychological conditions affecting” plaintiff’s
physical condition, Dr. Patta checked anxiety and depression, and
added “social stressors.” Id. Dr. Patta responded that plaintiff’s
limitations described in the opinion only “to some extent.” T. 322.
Dr. Patta opined that plaintiff’s symptoms would interfere
with the attention and concentration needed to perform even simple
work tasks frequently, but that she was capable of low stress jobs;
plaintiff could sit for more than two hours “if sugars [were]
good”; she could stand one to two hours, sit about two hours, and
would need periods of walking around in an eight-hour workday;
plaintiff would need to take at least two to three unscheduled
breaks in a workday, depending on her sugar levels; she could lift
crouch/squat; and she must avoid concentrated exposure to all
plaintiff would be able to reach, handle, or finger only 20 percent
of the workday. Finally, Dr. Patta opined that plaintiff would have
“good days” and “bad days,” and that she would miss more than four
days per month as a result of her condition. T. 324. When asked
whether plaintiff had “any other limitations (such as psychological
limitations, . . .) that would affect [her] ability to work at a
regular job on a sustained basis,” Dr. Patta responded “sugars
being uncontrolled.” Id.
On December 20, 2011, psychologist Dr. Renee Baskin completed
a second consulting psychiatric evaluation at the request of the
state agency. On MSE, Dr. Baskin noted that plaintiff was “somewhat
anxious and tense”; mood was dysthymic; attention, concentration,
and recent and remote memory skills were “mildly impaired due to
some anxiety or nervousness”; and intellectual functioning was in
the low average range. T. 359. Dr. Baskin opined that plaintiff
“would have minimal to no limitations being able to follow and
understand simple directions and instructions, perform simple tasks
independently, maintain attention and concentration, [and] learn
new tasks with supervision.” T. 360. “She would have moderate
appropriately deal with stress.” Id.
internal medicine consulting examination, which was performed by
unremarkable, but Dr. Arora stated that plaintiff had “moderate
diabetes.” T. 355.
The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. § 416.920, the ALJ found that plaintiff had not engaged
suffered from the severe impairments of diabetes mellitus and
posttraumatic stress disorder (“PTSD”). 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 light
work as defined in 20 C.F.R. §§ 416.967(b), with the following
nonexertional limitations: she would need to be “able to take a
minute or so to check her blood sugar levels about four times a
day”; she could not have interaction with the general public and no
more than occasional [contact] with co-workers or supervisors; and
she was limited to a job involving simple, routine work, with no
requirement to make decisions, and no more than occasional changes
in the work setting. T. 14. At step four, the ALJ found that
plaintiff had no past relevant work. At step five, the ALJ found
that considering plaintiff’s age, education, work experience, and
RFC, jobs existed in the national economy which she could perform.
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. Barnhart, 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).
Noncompliance with Treatment
Plaintiff contends that the ALJ failed to adequately assess
the effect of her mental health conditions on her noncompliance
with treatment for type one diabetes mellitus. Plaintiff argues
that, pursuant to SSR 82-59, the ALJ was obligated to consider
whether plaintiff was justified in failing to follow prescribed
diabetes treatment. Plaintiff claims that her noncompliance was
Commissioner contends that the ALJ did not have an obligation to
follow the requirements of SSR 82-59 under the circumstances of
this case. For the reasons set forth below, the Court agrees with
Initially, the Court notes that Dr. Patta’s opinion does not
symptoms to be the underlying reason for plaintiff’s noncompliance
with diabetes treatment. As discussed above, Dr. Patta responded
“yes” to a question asking whether “emotional factors contribute to
the severity” of plaintiff’s symptoms and functional limitations.
T. 321 (emphasis added). When asked to check boxes indicating “any
psychological conditions affecting” plaintiff’s physical condition,
depression, and social stressors caused plaintiff to fail to comply
with diabetes treatment. To the extent that Dr. Patta’s opinion did
intend this meaning, however, the Court finds that, as discussed
below, such a conclusion was not supported by substantial evidence
in the record.
§ 416.930, provides that the “SSA may make a determination that an
individual has failed to follow prescribed treatment only where”
certain conditions are met.
SSR 82-59, 1982 WL 31384, *1 (Jan. 1,
1982) (emphasis added). The first requirement is that the evidence
engaging in any substantial gainful activity (SGA).” Id. “Where SSA
makes a determination of ‘failure,’ a determination must also be
made as to whether or not failure to follow prescribed treatment is
justifiable.” Id. Thus, “SSR 82–59 normally applies to a claimant’s
eligibility for benefits after a finding of disability has been
made.” Grubb v. Apfel, 2003 WL 23009266, *5 (S .D.N.Y. Dec. 22,
2003) (emphasis added).
In certain cases, however, courts have remanded where the
plaintiff’s [medical condition] to be a remediable impairment that
plaintiff failed to remedy without justifiable cause or whether the
ALJ simply believed the [medical condition] was not severe enough
to be considered disabling.” Bolden v. Comm’r of Soc. Sec., 556
F. Supp. 2d 152, 166 (E.D.N.Y. 2007) (emphasis added); see Belen v.
Astrue, 2011 WL 2748687, *13 (S.D.N.Y. July 12, 2011) (remanding
where the ALJ’s decision “[did] not make clear what role [the
plaintiff’s] failure to take her prescribed medication played in
the ALJ’s decision, nor [did] it address the three-part test
inherent in SSR 82–59”).
Plaintiff argues that the ALJ used plaintiff’s noncompliance
with diabetes treatment to deny her disability benefits to which
she was otherwise entitled. In support of this argument, plaintiff
points out the ALJ’s statement that Dr. Patta’s opinion “would
allow for no work.” T. 16. Thus, plaintiff’s argument supposes
that the ALJ agreed with Dr. Patta that plaintiff suffered the
limitations delineated in Dr. Patta’s opinion, but found that
plaintiff’s noncompliance with treatment was not justified by any
good reason. Plaintiff cites Bolden and Belen in support of her
Here, however, in contrast to Bolden and Belen, the ALJ made
clear that he found the diabetes not to be a disabling impairment
in the first place. In rejecting Dr. Patta’s opinion, the ALJ noted
that: (1) Dr. Patta’s restrictive opinion was not supported by the
(2) plaintiff’s poor control of diabetes was due to her noncompliance with treatment; (3) the record did not support chronic
complications associated with diabetes;1 (4) there was no evidence
to support that plaintiff would need unscheduled breaks, suffered
environment restrictions, or that she would be absent more than
four days per month; and (5) Dr. Patta’s opinion was primarily
based on plaintiff’s subjective complaints.
In this case, therefore, the ALJ did not find that plaintiff
had a disabling impairment based on the substantial evidence of
record. Thus, this case is not analogous to Borden and Bellen, in
As to this finding, the Court notes that the record indicates that when
plaintiff complied with treatment, her condition improved. See, e.g., T. 530
(noting that plaintiff left hospital without waiting for discharge, her “sugars
[had] improved,” and plaintiff “[felt] like she [was] keeping good control of
which the courts specifically noted that it was unclear whether the
ALJ considered the plaintiffs’ conditions to be disabling in the
absence of compliance with treatment. Accordingly, the Court finds
that the ALJ was not obligated to undertake analysis set forth in
SSR 82-59 because the first requirement was not met: the “evidence
[did not] establish that [plaintiff’s] impairment preclude[d]
engaging in any substantial gainful activity.” SSR 82-59, 1982 WL
31384, at *1; see also Lindner ex rel. N.M.R. v. Colvin, 2015 WL
5156877, *5 (W.D.N.Y. Sept. 2, 2015) (“[SSR 82-59] addresses a
impairment, fails to follow a prescribed treatment regimen that
would restore his or her ability to work. SSR 82–59 is not
applicable to the analysis of this case, because the ALJ’s finding
that N.M.R. did not suffer from disabling impairments was supported
by substantial evidence.”) (emphasis in original).
In other words, although the ALJ recognized that Dr. Patta’s
opinion would result in a finding of disabled if fully credited,
the ALJ made clear that he did not agree that the restrictive
limitations opined by Dr. Patta were supported by the record. The
evidence. First, as the ALJ found, the restrictive limitations
found by Dr. Patta are not supported by substantial evidence of
record, including records from ECMC. Those records reveal that
plaintiff was treated for diabetes on an episodic basis, when her
diabetes was uncontrolled, and do not state any findings which
would translate into the limitations opined by Dr. Patta’s opinion.
Second, the treatment notes repeatedly state that plaintiff’s
poorly controlled diabetes was a result of noncompliance with
treatment, but the bulk of the records do not support a conclusion
that the noncompliance was a result of symptoms stemming from PTSD
or depression. Rather, and as the ALJ noted, plaintiff’s mental
health treatment notes indicated that, on a majority of occasions,
manageable. Additionally, the record indicates that when plaintiff
complied with diabetes treatment, her condition improved. The ALJ
also gave weight to the consulting opinions, which provided further
substantial evidence supporting his decision to reject Dr. Patta’s
more restrictive opinion.2
considered plaintiff’s noncompliance with diabetes treatment in
evaluating plaintiff’s credibility, he did
so properly. Although SSR 96-7p provides that in evaluating
credibility an ALJ must consider whether a plaintiff had “good
reason” for failing to comply with treatment, as discussed above,
this record did not indicate that plaintiff failed to comply with
The Court notes plaintiff’s argument that the ALJ failed to follow the
treating physician rule with respect to Dr. Patta’s opinion. For the reasons just
summarized, the Court concludes that the ALJ provided good reasons, consistent
with the factors set forth in the regulations, for rejecting Dr. Patta’s opinion.
See, e.g., Smith v. Colvin, 2013 WL 6504789, *11 (E.D.N.Y. Dec. 11, 2013) (noting
that the district court must consider “whether the ALJ provided “good reasons”
for discounting [a treating physician’s] opinions based on the factors set forth
in the regulations”) Additionally, even Dr. Patta noted that plaintiff’s
impairments were consistent with the limitations Dr. Patta opined only to “some
extent.” T. 322.
treatment as a result of her severe mental health impairments.
Plaintiff argues that “[d]ue to [her] depression and PTSD, she
lacked the ability to think and act rationally in making decisions
about maintaining her diabetes.” Doc. 11-1 at 19 (citing Sharp v.
Bowen, 705 F. Supp. 1111, 1124 (W.D. Pa. 1989), which noted that
“[a]n individual with a severe mental impairment quite likely lacks
the capacity to be ‘reasonable,’” and “that individual may not have
the same capacity to assess the risks and benefits of prescribed
treatment as someone who is not affected by such an impairment”).
However, as noted above, at most of plaintiff’s mental health
treatment sessions — which did not commence until September 2011
although plaintiff’s PTSD stemmed from an event which occurred 2009
conditions were manageable. Moreover, although Dr. Patta responded
that plaintiff’s mental health conditions affected the severity of
her physical conditions, Dr. Patta did not clearly state that
plaintiff’s symptoms stemming from PTSD or depression resulted in
her diabetes treatment noncompliance. Thus, the Court finds that
the ALJ did not err in assessing plaintiff’s credibility when he
considered her noncompliance with treatment. See, e.g., Taylor v.
Astrue, 2010 WL 7865031, *11 (D. Conn. Aug. 31, 2010)(holding that
a claimant’s failure to adhere to prescribed treatment, as well as
gaps in treatment, are relevant considerations in the assessment of
Findings at Steps Four and Five
adequately account for Dr. Baskin’s opinion that plaintiff had
moderate limitations in maintaining a regular schedule and dealing
with stress. Significantly, however, Dr. Baskin also opined that
plaintiff “would have minimal to no limitations being able to
follow and understand simple directions and instructions, perform
simple tasks independently, maintain attention and concentration,
[and] learn new tasks with supervision.” T. 360.
The ALJ gave weight to Dr. Baskin’s opinion, finding that it
was consistent with substantial evidence of record. The RFC finding
interaction with the public, coworkers, and supervisors. The RFC
finding also limited plaintiff to simple, routine work with no more
than occasional requirement to make decisions and no more than
occasional changes in the work setting. The Court finds that, based
on the record in this case, these limitations adequately accounted
for plaintiff’s difficulty handling stress. See, e.g., Tatum v.
Comm’r of Soc. Sec., 2016 WL 770206, *6 (N.D.N.Y. Feb. 2, 2016),
report and recommendation adopted sub nom. Tatum v. Colvin, 2016 WL
796068 (N.D.N.Y. Feb. 23, 2016) (holding that “the ALJ did not err
in failing to specifically account for [p]laintiff's difficulty in
dealing with stress because the ALJ relied on [the consulting
examiner’s] opinion that [p]laintiff could perform simple work
despite this difficulty”) (citing Patterson v. Astrue, 2013 WL
638617, *9–11 (N.D.N.Y. Jan. 24, 2013) report and recommendation
adopted, 2013 WL 592123 (N.D.N.Y. Feb. 14, 2013) (finding the ALJ
did not err in limiting plaintiff to simple, routine, repetitive
tasks where the consultative examiner determined that plaintiff's
undertaking such tasks)).
It is well-established that “the ALJ’s RFC finding need not
5500662,*6 (W.D.N.Y. Oct. 30, 2014) (citing Matta v. Astrue, 508 F.
App’x 53, 56 (2d Cir. 2013) (finding that although the ALJ’s
conclusion did not perfectly correspond with any of the opinions of
medical sources, the ALJ was entitled to weigh all of the evidence
available to make an RFC finding that was consistent with the
record as a whole)). Upon a review of the ALJ’s decision in
conjunction with the administrative record, the Court finds that
the RFC finding was supported by substantial evidence, which
included not only Dr. Baskin’s opinion, but the consulting opinion
of Dr. Jensen (to which the ALJ also accorded weight) which opined
that plaintiff had no limitations in maintaining a regular schedule
or dealing with stress. Because the Court has concluded that the
ALJ’s RFC finding was supported by substantial evidence, the Court
need not address plaintiff’s further argument that the ALJ’s
questions to the vocational expert were unsupported by substantial
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (doc. 11) is denied and the Commissioner’s motion
(doc. 17) 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
The Clerk of the Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 14, 2017
Rochester, New York.
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