Harris v. Colvin
Filing
22
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 18 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 10/6/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SAMUEL J. HARRIS,
Plaintiff,
-vs-
No. 1:14-CV-00810 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Samuel J. Harris (“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 his 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 in February 2010, plaintiff (d/o/b
September 27, 1963) applied for SSI, alleging disability as of
March 1, 2002 due to blindness in the right eye, depression,
anxiety, and high blood pressure. After his application was denied,
plaintiff requested a hearing, which was held before administrative
law judge Stanley A. Moskal, Jr. (“the ALJ”) on October 19, 2011.
The ALJ issued an unfavorable decision on November 14, 2011.
Plaintiff appealed that decision, and the Appeals COuncil
remanded the case for reconsideration. In its April 26, 2013 order,
the Appeals Council found various errors in the ALJ’s decision, and
directed that the ALJ (1) obtain additional evidence in order to
complete the administrative record; (2) evaluate the severity of
plaintiff’s drugs addiction and alcoholism at step two of the
sequential evaluation process; (3) “[g]ive further consideration to
[plaintiff’s] maximum [RFC] and provide appropriate rational with
specific references
to
evidence
of
record
in
support
of
the
assessed limitations”; (4) give further consideration to Dr. Renee
Baskin’s opinion, and explain the weight given to her opinion,
requesting additional evidence or clarification if necessary; and
(5) obtain vocational expert (“VE”) testimony “to clarify the
effect of the assessed limitations on [plaintiff’s] occupational
base.” T. 105-06.
On remand, the ALJ held another hearing on September 9, 2013.
The ALJ issued a second unfavorable decision on September 12, 2013.
The Appeals Council denied review of that decision. This timely
action followed.
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III. Medical Evidence
A.
Treating Sources
During the relevant time frame, plaintiff treated with Dr.
Donald Nenno, who recorded a diagnosis of moderate to severe
tricompartment
osteoarthritis
in
the
left
knee.
Plaintiff’s
condition improved with steroid injections. The ALJ requested a
medical source statement from Dr. Nenno, which Dr. Nenno declined
to provide. Plaintiff also treated with Community Health Center of
Niagara
for
primary
care,
and
physical
examinations
were
essentially normal, with the exception of pain and limited range of
motion in the left knee, as well as monocular vision due to a
retinal tear in the right eye.
Plaintiff attended counseling at Niagara County Mental Health
(“NCMH”) from approximately April 2009 through May 2013. During
much of that time period, plaintiff also treated at Horizon Health
Services (“Horizon”), as a result of a 2009 court referral for
chemical dependency. Treatment notes reflect diagnoses of mood
disorder, not otherwise specified (“NOS”), antisocial personality
disorder,
and
polysubstance
abuse
disorder
in
early
partial
remission, and document complaints of anxiety, difficulties with
anger management, and ongoing substance abuse issues. Mental status
examinations were consistently noted as essentially normal, with
the exception of anxious affect. Treatment focused on cognitive
behavioral therapies focused toward managing anger issues, and
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plaintiff generally reported abstinence from substance abuse, but
occasionally
admitted
to
relapses.
Over
the
course
of
his
treatment, his global assessment of functioning (“GAF”) score
increased from 56 (indicating serious symptoms) in 2010 to 65
(indicating
mild
symptoms)
in
2012.
See
Am.
Psych.
Ass’n,
Diagnostic and Statistical Manual of Mental Disorders-Text Revision
(“DSM-IV-TR”), at 34 (4th ed., rev. 2000).
In a consulting psychiatric evaluation dated March 2010, which
was requested by plaintiff’s counselor at NCMH, Dr. Dham Gupta
diagnosed plaintiff with mood disorder, NOS, and “poly substance
dependence disorder in partial remission.” T. 333-34. Plaintiff
reported to Dr. Gupta that he “used to abuse alcohol and crack
cocaine on a regular basis,” but “[r]ecently he [had] been only
drinking.” T. 333. Plaintiff had no significant past psychiatric
treatment, denied manic symptoms but reported a “problem with anger
management,”
and
denied
paranoia
and
hallucinations,
but
“admit[ted] that because of his treatment history he is always
paranoid about others.” Id. No past diagnosis of mental disorder
was noted, but Dr. Gupta prescribed medication “[g]iven his history
of anxiety and some depression and anger and difficulty sleeping.”
Id.
Plaintiff continued to treat with Dr. Gupta. In May 2010,
Dr. Gupta noted that plaintiff was “very pleased with how the
medications [had] been working.” T. 499. He reported that he had
4
been sober for two months and had abstained from crack cocaine “for
years,” and denied symptoms of mood swings and depression. Id. In
September 2010, Dr. Gupta noted that plaintiff had missed an August
appointment and reported running out of medications. Plaintiff
reported feeling depressed and losing sleep, and “admit[ted] to
drinking two beers recently and he knows he shouldn’t have done
that.” T. 500. In December 2010, plaintiff again reported being off
of medication, and stated that he was having problems with anger
management. In May 2011, plaintiff presented as “stable on his
current medication,” and reported “finishing up at Horizons for
cocaine and alcohol dependency,” stating that he had been able to
maintain sobriety. T. 506. In July 2011, plaintiff continued to be
“quite stable.” T. 509. Dr. Gupta noted that plaintiff “still [had]
angry
impulses but [had] been able to contain them and [was]
sleeping without difficulty.” Id.
In November 2012, plaintiff reported a recent arrest for
driving while intoxicated, stating that he had drank two 24-ounce
beers
and
a
shot
before
driving.
He
reported
that
he
drank
“occasionally[,] [one to two] times a month, but not in excess.”
T. 649-50. In May 2013, a urine toxicology report came back
positive for cocaine metabolite.
B.
Consulting Sources
Dr. Renee Baskin, Ph.D., completed a consulting examination in
April 2010. Plaintiff reported that he had “a history of relatively
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short term jobs due to conflicts with coworkers, supervisors, and
some substance abuse problems.” T. 353. Plaintiff reported that he
experienced symptoms of anxiety, fatigue/loss of energy, and social
withdrawal.
According
to
Dr.
Baskin,
“[s]ymptoms
reported
by
[plaintiff] which may be due to alcohol dependence or withdrawal
include dysphoric mood, insomnia, irritability, fatigue/loss of
energy, [and] palpitations.” T. 354. Plaintiff’s mental status
examination was essentially normal, except that Dr. Baskin noted
his cognitive functioning to be in the borderline range. Dr. Baskin
opined that plaintiff would have “minimal to no limitations being
able to follow and understand simple directions and instructions,
perform
simple
concentration,
tasks
moderate
independently,
limitations
maintain
being
able
attention
to
and
maintain
a
regular schedule, learn new tasks, perform complex tasks, make
appropriate
decisions,
relate
adequately
with
others
and
appropriately deal with stress.” T. 356. She diagnosed plaintiff
with impulse control disorder, NOS, bipolar disorder, NOS, alcohol
dependence, and polysubstance dependence, reported in remission,
and noted a guarded prognosis, considering plaintiff’s “history and
current symptoms.” Id.
In April 2010, consulting physician Dr. Samuel Balderman
diagnosed plaintiff with polysubstance abuse, history of retinal
problem in the right eye, degenerative disease of the left knee,
and
hypertension.
He
noted
that
6
plaintiff
had
“essentially
monocular vision,” and opined that plaintiff had “mild to moderate
limitation in kneeling and climbing due to left knee pain,” that
plaintiff’s “blood pressure require[d] better control, and that
“substance abuse [was] still an active issue.” T. 361.
In June 2010, Dr. M. Marks completed a psychiatric review
technique form, in which Dr. Marks found that plaintiff had mild
restriction
difficulties
in
activities
in
of
daily
maintaining
living
social
(“ADLs”);
functioning;
moderate
moderate
difficulties in maintaining concentration, persistence, or pace;
and
no
repeated
episodes
of
decompensation.
Dr.
Marks
also
completed a mental residual functional capacity (“RFC”) assessment,
which opined that plaintiff had no significant limitations, with
the exception of moderate limitations in maintaining attention and
concentration for extended periods, completing a normal workday and
workweek without interruptions from psychologically-based symptoms
and performing at a consistent pace without an unreasonable number
and length of rest periods; and responding appropriately to changes
in the work setting.
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 never engaged in substantial gainful
activity. At step two, the ALJ found that plaintiff had the
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following severe impairments: history of retinal tear status post
surgical correction, alcohol and drug abuse disorder, impulse
control disorder, bipolar disorder, and anxiety 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.
In
assessing
the
effects
of
plaintiff’s
mental
impairments on his functioning and applying the “B” criteria of the
listings, the ALJ concluded that plaintiff had mild restrictions in
activities of daily living (“ADLs”), and moderate difficulties in
social functioning and maintaining concentration, persistence or
pace. The ALJ found that plaintiff had no prior episodes of
decompensation.
Before proceeding to step four, the ALJ determined 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
limitations:
plaintiff
was
limited
to
lifting
and
carrying ten pounds; occasionally lifting and carrying up to
20 pounds; sitting, standing, and walking for six hours in an
eight-hour
workday;
occasionally;
pushing
occasionally
and
pulling
kneeling,
up
to
balancing,
20
pounds
crawling,
crouching, and stooping, but never climbing ladders, ropes, or
scaffolds; plaintiff was limited to monocular vision; plaintiff
must
avoid
concentrated
exposure
to
hazardous
machineries;
plaintiff had moderate limitations interacting with the general
8
public, coworkers, and supervisors, learning new tasks, making
decisions for simple work-related tasks, and appropriately dealing
with stress.
At step five, the ALJ determined that, considering plaintiff’s
age, education, work experience, and RFC, no jobs existed in
significant numbers in the national economy that plaintiff could
perform. However, pursuant to the drug or alcohol abuse (“DAA”)
standards, see 42 U.S.C. § 1382c(a)(3)(J); 20 C.F.R. § 416.935, the
ALJ went on to consider the effect of plaintiff’s alcohol and drug
abuse on the finding of disability, and concluded that if plaintiff
stopped substance abuse, the remaining impairments would be severe,
but plaintiff would have the RFC to perform light work with the
same physical limitations as noted above but without the abovelisted
nonexertional
limitations.
Accordingly,
the
ALJ
found
plaintiff 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).
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Plaintiff contends that the ALJ’s decision should be reversed
and remanded for calculation of benefits, contending (1) the ALJ
misrepresented
the
severity
of
plaintiff’s
substance
abuse
disorder; and (2) the ALJ’s physical RFC findings are not supported
by substantial evidence.
A.
Plaintiff’s Substance Abuse Disorder
Plaintiff contends that this case should be reversed and
remanded solely for the calculation of benefits, arguing that
plaintiff’s mental impairments rendered him disabled regardless of
the status of his substance abuse, which he contends was in
remission. The issue is whether substantial evidence supports the
ALJ’s conclusion that, but for his substance abuse disorder,
plaintiff would have had no nonexertional impairments. Plaintiff
had the burden of proving that his substance abuse was not a
contributing factor material to the disability determination. See
Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012).
The ALJ’s decision is supported by substantial evidence.
First, Dr. Baskin’s opinion, to which the ALJ gave great weight,
concluded that plaintiff would have “minimal to no limitations
being
able
to
instructions,
follow
perform
and
understand
simple
tasks
simple
directions
independently,
and
maintain
attention and concentration, moderate limitations being able to
maintain a regular schedule, learn new tasks, perform complex
tasks, make appropriate decisions, relate adequately with others
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and appropriately deal with stress.” T. 356. The ALJ incorporated
all of these limitations into his RFC assessment. Dr. Baskin’s
opinion also noted that nearly all of plaintiff’s reported symptoms
“may be due to alcohol dependence or withdrawal.” T. 353. Contrary
to plaintiff’s contention, Dr. Baskin did not find that plaintiff
was “clean and sober” (Doc. 12-1 at 14) and in remission from
substance abuse; she diagnosed him with active alcohol dependence,
and polysubstance dependence, “reported in remission.” T. 356.
Dr. Baskin’s opinion alone was enough to provide substantial
evidence for the ALJ’s opinion (see Monguer v. Heckler, 722 F.2d
1033, 1039 (2d Cir. 1983)), and the ALJ was entitled to draw the
conclusion that plaintiff’s nonexertional impairments would not be
present but for plaintiff’s substance abuse disorder. See Cage, 692
F.3d at 126-27 (finding that the “lack of a consultive opinion
predicting [a plaintiff’s] impairments in the absence of drug or
alcohol abuse” is not necessary in order for the ALJ to render a
finding consistent with DAA).
Other substantial evidence in the record supported the ALJ’s
determination and indicated that plaintiff was not in remission, as
plaintiff argues. Plaintiff’s treatment notes from Horizon and NCMH
indicate that, when he abstained from alcohol and followed through
with treatment, his mental status generally improved. His GAF score
improved over time, to the point where it reflected only mild
symptoms at the time of his successful completion of the Horizons
11
substance abuse program. Plaintiff’s mental status examinations
were repeatedly noted as essentially normal, and he reported to
Dr. Gupta that his mental condition improved with medication.
However, plaintiff demonstrated repeated relapses, receiving a DWI
in November 2012 and testing positive for cocaine in May 2013,
evidencing the fact that he was not in remission from substance
abuse or chemical dependency. The record evidence that plaintiff
improved while abstaining from substance abuse also substantially
supported the ALJ’s determination. See Cage, 692 F.3d at 126-27
(describing findings of improvement during periods of abstinence,
and holding that these findings constituted substantial evidence
supporting
the
ALJ’s
determination).
Considering
the
record
evidence, plaintiff did not meet his burden of establishing that
his substance abuse was not a contributing factor material to the
disability determination. See Cage, 692 F.3d at 123.
B.
Physical RFC
Plaintiff contends that Dr. Balderman’s opinion, to which the
ALJ gave great weight, was vague and did not provide substantial
evidence for the conclusion that plaintiff could perform light
work. As noted above, Dr. Balderman found that plaintiff had
monocular vision and that he would be mildly to moderately limited
in kneeling and climbing due to left knee pain. Dr. Balderman did
not state any findings with regard to plaintiff’s ability to sit,
stand, or walk.
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The ALJ’s physical RFC finding is supported by substantial
evidence.
Dr.
Balderman’s
opinion,
which
noted
left
knee
limitations, is fully consistent with plaintiff’s medical treatment
notes. There is no indication from the record that plaintiff had
any physical limitations in sitting, standing, walking, or in any
work-related function other than those noted by Dr. Balderman in
his opinion. It is clear from the ALJ’s decision that he based his
physical RFC finding on all of the relevant evidence, and as he did
not have a treating physician’s opinion from which to draw, he was
entitled to rely on Dr. Balderman’s conclusions. See 20 C.F.R.
§§ 416.927(c), 416.927(d)(2), 416.945, 416.946.
VI.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 12) is denied and the Commissioner’s crossmotion (Doc. 18) 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.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
October 6, 2015
Rochester, New York.
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