Hennelly v. Colvin

Filing 18

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Defendant's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 6/28/17. (AFB)-CLERK TO FOLLOW UP- The Clerk of Court is directed to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ARTHUR HENNELLY,
DECISION AND ORDER
1:14-cv-00961-MAT

Plaintiff,
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

INTRODUCTION
Represented

by

counsel,

Arthur

Hennelly

(“Plaintiff”)

instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying his application for Disability Insurance Benefits (“DIB”)
and

Supplemental

Security

Income

(“SSI”).

This

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
On

January

6,

2012,

Plaintiff

protectively

filed

an

application for DIB. On January 12, 2012, Plaintiff protectively
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

-1-

filed an application for SSI. In both applications, Plaintiff
alleged disability beginning April 1, 2011, due to depression,
anxiety,

an

hyperactivity

inability

to

disorder.

concentrate,

(T.138).2

and

These

attention

claims

were

deficit
denied

initially on March 20, 2012. (T.63-74). Plaintiff filed a written
request for hearing on March 23, 2012. (T.75-76). A hearing was
held before administrative law judge David S. Lewandowski (“the
ALJ”) on April 1, 2013, in Buffalo, New York. (See T.32-58).
Plaintiff

appeared

with

his

attorney

and

testified.

Jay

Steinbrenner, an impartial vocational expert (“the VE”), also
appeared and testified.
After the hearing, upon the advice of his attorney, Plaintiff
amended the alleged onset date to June 15, 2011. Additionally,
Plaintiff’s attorney submitted a statement authored by Plaintiff’s
parents, which was added to the record as Exhibit 8E.
On April 24, 2013, the ALJ issued an unfavorable decision.
(T.16-31). Plaintiff’s request for review by the Appeals Council
was denied on September 15, 2014, making the ALJ’s decision the
final decision of the Commissioner. (T.1-6). This timely action
followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The

2

Citations to “T.” in parentheses
administrative transcript in this matter.

-2-

refer

to

pages

in

the

certified

Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation procedure
established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520, 416.920.
At step one, the ALJ found that Plaintiff meets the insured
status requirements of the Act through September 30, 2013, and has
not engaged in substantial gainful activity since June 15, 2011,
the amended alleged onset. date.
At

step

two,

the

ALJ

determined

that

Plaintiff

has

the

of

the

and

in

following severe impairments: depressive disorder and
generalized anxiety disorder.
At

step

Plaintiff’s

three,
menial

the

ALJ

found

impairments,

that

the

severity

considered

singly

combination, do not meet or medically equal the criteria of Listing
12.04 (Affective Disorders) or Listing 12.06 (Anxiety Related
Disorders).

(T.22-23).

Applying

the

special

technique

for

evaluation of mental impairments, the ALJ found that Plaintiff has
“mild

restriction”

difficulties”

in

in

activities

social

in

functioning;

-3-

daily
“mild

living;

“moderate

difficulties”

in

maintaining concentration, persistence or pace; and had experienced
no episodes of decompensation of extended duration. (T.22).
Prior to proceeding to step four, the ALJ assessed Plaintiff
as having the residual functional capacity (“RFC”) the to perform
a full range of work at all exertional levels but

with the

following nonexertional limitations: he is able to understand,
remember and carry out simple instructions and perform simple tasks
with

no

or

limited

proximity

to

co-workers

and

occasional

interaction with others; and he is able to maintain a regular,
simple schedule.
At step four, the ALJ determined that Plaintiff is capable of
performing his past relevant work as a warehouse worker, since this
work does not require the performance of work-related activities
precluded by his RFC. The ALJ noted the VE’s testimony that
Plaintiff has past relevant work experience as a design engineer
(DOT

no.

003.362-010),

which

is

skilled

(SVP5),

light

work;

structural drafter (DOT no. 005.291-014), which is skilled (SVP7),
sedentary work; warehouse worker (DOT no. 922.687-058), which
unskilled (SVP2), medium work; and pool maintenance (DOT no.
891.684-018), which is semi-skilled (SVP4), medium work. The VE
further testified that Plaintiff would be able to perfom1 his past
relevant work as a warehouse worker as it was actually performed by
him, and as it is generally performed in the economy.
The ALJ proceeded to step five, although not required to, and

-4-

made alternative findings that there are other jobs existing in the
national economy that he is able to perform. The ALJ noted that
Plaintiff was a “younger individual” (32 years-old) on the alleged
onset date, with at least a high school education and the ability
to communicate in English. Transferability of job skills was
immaterial

to

the

disability

determination

because

using

the

Medical-Vocational Rules (“the Grids”) as a framework supported a
finding that Plaintiff is not disabled, whether or not the claimant
has transferable job skills.
The ALJ alternatively found that, considering Plaintiff’s
vocational

profile

and

Vocational

Guidelines

RFC

in

(“the

conjunction

Grids”)

and

with

the

the

VE’s

Medical-

testimony,

Plaintiff would be able to perform representative occupations that
exist in significant numbers in the national and regional economy,
such

as

a

packaging

machine

operator

(DOT

no.

920.685-078,

unskilled (SVP2), medium); commercial laundry worker (DOT no.
361.685-018, unskilled (SVP2), medium); and hand picker (DOT no.
920.587-018, unskilled (SVP2), medium, but often performed as light
work).
Accordingly, the ALJ found that Plaintiff has not been under
a disability as defined in the Act from April 1, 2011, through the
date of decision.
SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if

-5-

it is supported by substantial evidence, and if the ALJ applied the
correct legal

standards.

See

42

U.S.C.

§ 405(g).

“Where

the

Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
DISCUSSION
Plaintiff’s

contentions

on

appeal

pertain

to

the

ALJ’s

evaluation of the mental RFC assessment provided by his treating
psychiatrist, Dr. Horacio Capote. Plaintiff argues that the ALJ
erroneously

rejected

Dr.

Capote’s

opinion

“based

on

the

raw

evidence of mental status examinations from non-acceptable other
sources. . . .” (Pl’s Mem. at 12).
Pursuant to the Commissioner’s regulations in effect at the
time of the ALJ’s decision, a treating source’s opinion will

-6-

accorded “controlling weight” when it is “well[ ] supported by
medically acceptable clinical and laboratory techniques and is not
inconsistent with the other substantial [record] evidence.” 20
C.F.R.

§§

404.1527(d)(2),

416.927(d)(2).

Nevertheless,

“[a]

treating physician’s statement that the claimant is disabled cannot
itself be determinative.” Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999). Rather, the Commissioner is “responsible for making the
determination or decision about whether [the claimant] meet[s] the
statutory definition of disability.” 20 C.F.R. §§ 404.1527(e)(1),
416.927(e)(1).
Here, Dr. Capote issued a mental RFC assessment on February
27, 2012. (T.200-01). Dr. Capote indicated that since July 7, 2011,
due

to

depression

and

anxiety,

Plaintiff

has

had

“moderate”

limitations in the ability to perform the following work-related
activities:
maintain

understand,

attention

and

remember,

and

carry

concentration;

make

out

instructions;

simple

decisions;

interact appropriately with others; maintain basic hygiene; and
function in a work setting at a consistent pace. Dr. Capote further
opined that commencing July 7, 2011, Plaintiff was “very limited”
in his ability to maintain socially appropriate behavior without
exhibiting behavioral extremes. (T.201). Dr. Capote indicated that
these limitations were expected to last for 12 months or more.
(T.201).
The ALJ found that “the objective record does not support” Dr.

-7-

Capote’s opinion. (T.25). Where the ALJ does not accord controlling
weight to a treating source’s opinion, the ALJ must consider a
number of factors, including the length and nature of the treating
source’s relationship with the claimant, the extent to which the
medical evidence supports the treating source’s opinion, whether
the treating source is a specialist in the area on which he or she
is opining, the consistency of the treating source’s opinion with
the rest of the record, and any other factors “which tend to
support

or

contradict

404.1527(d)(2)(i)–(ii)

&

the

opinion.”

(d)(3)–(6),

20

C.F.R.

416.927(d)(2)(i)-(ii)

§§
&

(d)(3)-(5); see also, e.g., Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004) (“Although the treating physician rule generally
requires deference to the medical opinion of a claimant’s treating
physician, the opinion of the treating physician is not afforded
controlling weight where . . . the treating physician issued
opinions that are not consistent with other substantial evidence in
the record, such as the opinions of other medical experts.”)
(internal citation omitted). Although Dr. Capote had a treating
relationship with Plaintiff and was a specialist in the area of
psychiatry

well

qualified

to

opine

on

Plaintiff’s

mental

impairments, the Court finds, as discussed below, that the ALJ did
not misapply the treating physician rule in weighing Dr. Capote’s
opinion and declining to give it controlling weight.
The ALJ at the outset noted that “objective record” did not

-8-

support the extreme limitations assigned by Dr. Capote because,
“except for diminished concentration on one occasion, (Exhibit 1F,
page 5 [(T.191)]), and tenseness on another (Exhibit 4D,3 page 2),
the mental status examinations have been within normal limits
(Exhibits 2F, page 2; 8F, page 10; 9F, page 4; and 11F, pages 3, 6
and 9).” (T.25). Notably, at Plaintiff’s initial visit in July of
2011, which coincides with the date, on which Dr. Capote opined
that the restrictive limitations he placed on Plaintiff began, Dr.
Capote

assessed

depression

and

only

“mild”

anxiety.

symptoms

(T.191-92).

relating
On

that

to

Plaintiff’s

date,

Plaintiff

reported that he was “actually doing fairly well and [was] stable
ever since beginning treatment with Deplin.”4 (T.190). Although
Plaintiff “state[d] he [was] probably not exactly at remission yet,
but doing pretty well.” (Id.). At Plaintiff’s next appointment with
Dr. Capote’s office, DENT Neurologic Institute, on January 12,
2012, Physician’s Assistant Andrea Laudisio (“PA Laudisio”) noted
that Plaintiff was “doing well overall,” though he had “trouble
with his concentration and energy[,]” and “question[ed] [her about]
the possibility of disability.” (T.230). PA Laudisio indicated that
Plaintiff had not had any of the laboratory tests done as requested
3

This is an incorrect citation by the ALJ. Exhibit 4D is not a
treatment record from Dr. Capote. Page 2 of Exhibit 4F is part of the
consultative psychologist’s report, and does include a note that Plaintiff’s
affect was “[t]ense, but appropriate to speech and thought content.” (T.203).
4

Deplin (generic name: L-methylfolate) “is a medical food. It works by
providing the body with folate.” https://www.drugs.com/cdi/deplin.html (last
accessed June 27, 2017).

-9-

at his initial visit, since “[h]e did go back to work at one point.
. . .” (T.230). Plaintiff’s medications and dosage were not changed
at the conclusion of that appointment. The ALJ appropriately
considered

the

inconsistency

of

Dr.

Capote’s

opinion

with

Plaintiff’s own statements during treatment and treatment notes
from Dr. Capote and his physician’s assistant.
The ALJ also reasonably found that Dr. Capote’s opinion was
inconsistent with the rest of the record. For instance, the ALJ
noted

that

“[t]he

objective

record

shows

that

[Plaintiff]

consistently reported doing well with Deplin.” (T.24 (citing Ex.
1F, pp. 1 & 4; Ex. 8F, pp. 3, 6 & 9; Ex. 11F, pp. 2, 5 & 8; Ex.
12F, p. 2)).
Plaintiff claims that contrary to the ALJ’s finding, the
record did not show Plaintiff’s sustained improvement with regard
to his mental impairments. (Pl’s Mem. at 13). However, review of
the record does indicate improvement over time. In July of 2011,
Plaintiff informed Dr. Capote that he was doing fairly well and was
stable since beginning Deplin. (T.190). After Dr. Capote slightly
increased Deplin dosage (T.192), he noted on February 27, 2012—the
same day he issued his restrictive RFC assessment—that Plaintiff
had experienced “some improvement” although “a lot still needs to
be

done.”

(T.234).

On

April

29, 2012,

Plaintiff

reported

to

Physician’s Assistant Gregory Groth (“PA Groth”) of DENT Neurologic
Institute, that “[f]ortunately, he continues to benefit from Deplin

-10-

any [sic] cognitive and mood aspect. Gabapentin 100 mg, 4 at h.s.
[in the evening] is decreasing anxiety though he still has a
baseline which uncomfortable.” (T.237). Plaintiff said he “look[ed]
forward to returning to work in the next month[,]” had a good
appetite, his weight was stable, he had no difficulty with sleep,
and woke up “feeling restored.” (Id.). On January 24, 2013, at a 4month follow-up appointment with PA Groth, Plaintiff had “relaxed”
body language, made eye contact, spoke “spontaneously with free
flowing expressions.” (T.257). Plaintiff’s concentration was “good”
and his affect was “appropriate.” (Id.). Plaintiff reported that he
was looking for gainful employment, and “trie[d] to get out with
friends, though he doesn’t always feel comfortable.” (T.256).
Significantly, Plaintiff “indicate[d] virtually no significant
elements of depression and [was] only a little anxious when trying
to concentrate, or around large crowds of people.” (Id.).
The ALJ also appropriately noted that Dr. Capote’s opinion was
at odds with the opinion of consultative examiner Susan Jensen,
Ph.D., rendered on March 7, 2012. (T.202-05). During her clinical
examination,

Dr.

Jensen

observed

that

Plaintiff’s

manner

of

relating, social skills, and overall presentation were adequate,
and

this

thought

processes

were

coherent

and

goal-directed.

Although his affect was tense, it was appropriate relative to his
speech and thought content. Plaintiff’s mood was neutral, his
sensorium was clear,

and he was oriented in all three spheres. Dr.

-11-

Jensen also noted that Plaintiff’s attention and concentration were
intact, as were his memory skills; she opined that his insight and
judgment appeared to be good. Based on the results of her clinical
examination, Dr. Jensen opined that Plaintiff “can follow and
understand simple directions and instructions, perform simple tasks
independently, maintain concentration and attention, learn new
simple

tasks,

perform

complex

tasks

independently,

and

make

appropriate decisions within normal limits.” (T.204) Dr. Jensen
noted that Plaintiff’s ability to maintain a regular schedule,
relate adequately with others, and appropriately deal with stress
“may be mildly impaired at this point because of ongoing symptoms
of his depression.” (Id.) Dr. Jensen stated that “[t]he results of
the present evaluation appear[ed] to be consistent with psychiatric
issues that in themselves do not significantly interfere with
[Plaintiff]’s ability to function on a daily basis.” (T.205). She
opined that Plaintiff’s prognosis was “[g]ood, given [his] current
level of functioning.” (Id.).
The

ALJ

psychologist

assigned
Dr.

“significant

Jensen’s

opinion,

weight”
“given

to

consultative

her

programmatic

expertise and consistency with her evaluation of [Plaintiff] and
with the record.” (T.25). “[A]n ALJ may give greater weight to a
consultative examiner’s opinion than a treating physician’s opinion
if the consultative examiner’s conclusions are more consistent with
the underlying medical evidence.” Suarez v. Colvin, 102 F. Supp.3d

-12-

552, 577–78 (S.D.N.Y. 2015) (citing Rosier v. Colvin, 586 Fed.
Appx. 756, 758 (2d Cir. 2014) (summary order) (ALJ properly relied
on evaluations by a consultative examiner to reject treating
physician’s opinion where other substantial evidence in the record
was inconsistent with treating physician’s opinion); Manning v.
Colvin, No. 13–CV–497-JTC, 2014 WL 5308189, at *8–9 (W.D.N.Y. Oct.
16,

2014)

(ALJ

physician’s

properly

opinion

and

gave

little

“‘great

weight

weight’”

to

to
the

the

treating

consultative

examiner’s prognosis because the consultative examiner’s opinion
was more consistent with the medical evidence of record); other
citations omitted). The ALJ’s according of significant weight to
Dr. Jensen’s opinion is supported by substantial evidence, which
includes, as discussed above, much of the same evidence relied on
to

discount

the

probative

value

of

Dr.

Capote’s

opinion.

See Frawley v. Colvin, No. 5:13–CV–1567 (LEK/CFH), 2014 WL 6810661
at *5–7, *9–10 (N.D.N.Y. Dec. 2, 2014) (ALJ’s decision to give
great

weight

to

the

opinion

of

a

consultative

psychological

examiner was supported by substantial evidence because the opinion
was consistent with the same medical evidence relied on by the ALJ
to reject the treating psychologist’s opinion; stating that “[t]he
ALJ’s decision to give great weight to Dr. Shapiro’s medical
opinion is supported by substantial evidence. . . . Frawley had
noted

improvements

with

consistent

counseling

and

medication

compliance. Frawley also had consistent GAF scores of 65 from 2009

-13-

through 2012. The opinions of consultative examiners like Dr.
Shapiro may constitute substantial evidence where, as here, it is
supported by the medical evidence in the record”).
Plaintiff also argues that the ALJ should have assigned
controlling weight to Dr. Capote’s opinion because Dr. John Sauret,
his primary care physician, did not question it. Plaintiff is
apparently referring to the fact that when he presented to Dr.
Sauret with mild depressive symptoms, Dr. Sauret sent him to a
mental health specialist—Dr. Capote. This argument is not based on
any legal authority. Indeed, the Court can find none to support the
proposition

that

a

specialist,

without

physician’s
more,

referral

constitutes

an

of

a

patient

endorsement

to

of

a

any

subsequent opinion issued by that specialist regarding the patient.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is supported by substantial evidence and is
not the product of legal error. Therefore, the Court affirms the
Commissioner’s decision denying benefits, grants Defendant’s motion
for judgment on the pleadings, and denies Plaintiff’s motion for
judgment on the pleadings. The Clerk of Court is directed to close
this case.
SO ORDERED.

S/ Michael A. Telesca
__________________________
HON. MICHAEL A. TELESCA
United States District Judge

Dated:

June 28, 2017
Rochester, New York.
-14-