Hennelly v. Colvin
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
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
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”)
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
application for DIB. On January 12, 2012, Plaintiff protectively
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).
filed an application for SSI. In both applications, Plaintiff
alleged disability beginning April 1, 2011, due to depression,
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).
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
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Citations to “T.” in parentheses
administrative transcript in this matter.
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.
following severe impairments: depressive disorder and
generalized anxiety disorder.
combination, do not meet or medically equal the criteria of Listing
12.04 (Affective Disorders) or Listing 12.06 (Anxiety Related
evaluation of mental impairments, the ALJ found that Plaintiff has
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
following nonexertional limitations: he is able to understand,
remember and carry out simple instructions and perform simple tasks
interaction with others; and he is able to maintain a regular,
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
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
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
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
Plaintiff would be able to perform representative occupations that
exist in significant numbers in the national and regional economy,
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
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
it is supported by substantial evidence, and if the ALJ applied 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).
evaluation of the mental RFC assessment provided by his treating
psychiatrist, Dr. Horacio Capote. Plaintiff argues that the ALJ
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
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
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),
Here, Dr. Capote issued a mental RFC assessment on February
27, 2012. (T.200-01). Dr. Capote indicated that since July 7, 2011,
limitations in the ability to perform the following work-related
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.
The ALJ found that “the objective record does not support” Dr.
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
(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
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
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.
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
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).
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).
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
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
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
Physician’s Assistant Gregory Groth (“PA Groth”) of DENT Neurologic
Institute, that “[f]ortunately, he continues to benefit from Deplin
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
relating, social skills, and overall presentation were adequate,
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.
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
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.).
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
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.
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
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
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
compliance. Frawley also had consistent GAF scores of 65 from 2009
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
subsequent opinion issued by that specialist regarding the patient.
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
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 28, 2017
Rochester, New York.
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