Perry v. Colvin

Filing 25

DECISION AND ORDER denying 17 Plaintiff's Motion for Judgment on the Pleadings; granting 22 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/28/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BARNEY BLAIR PERRY, JR.,
Plaintiff,
-vs-

No. 1:15-cv-00265-MAT
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, Barney Blair Perry, Jr. (“Plaintiff”)

brings this action pursuant to Title II of the Social Security Act
(“the Act”), seeking review of the final decision of the Acting
Commissioner

of

Social

Security1

(“Defendant”

or

“the

Commissioner”) denying his application for disability insurance
benefits (“DIB”).

Presently before the Court are the parties’

competing

for

motions

judgment

on

the

pleadings

pursuant

Rule 12(c) of the Federal Rules of Civil Procedure.
reasons

set

forth

below,

Plaintiff’s

motion

is

to

For the

denied

and

Defendant’s motion is granted.
II.

Procedural History
On June 8, 2012, Plaintiff, a then-twenty-nine year old former

delivery truck driver and loader/unloader, filed for DIB, alleging

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

disability beginning October 21, 2011 due to mental illness,
depression,
suicidal

paranoia,

ideations2

explosive

(T.

15,

64,

anger,

bipolar

168-73,

186).

disorder

and

Plaintiff’s

application was denied on September 12, 2012 (T. 99-106), and he
timely requested a hearing before an administrative law judge
(“ALJ”).

ALJ Robert T. Harvey held a hearing on October 8, 2013

(T. 40-72).

On November 7, 2013, the ALJ issued a decision

in which he found Plaintiff was not disabled as defined in the Act
(T. 12-30). On January 30, 2015, the Appeals Council denied review
leaving the ALJ’s decision as the final agency decision (T. 1-5).
This action followed.

The Court assumes the parties’ familiarity

with the facts of this case, which appear in the record, and will
not repeat them here.
III.

The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status

requirements of the Act through September 30, 2016 (T. 17).

At

step one of the five-step sequential evaluation, see 20 C.F.R.
§ 404.1520, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since October 21, 2011 (Id.). At step
two, the ALJ found that Plaintiff had the severe impairment of
discogenic lumbar spine; lumbar radiculopathy; bipolar disorder;

2

In a previous application for DIB, an ALJ found that Plaintiff had not been
disabled from his alleged disability onset date of September 29, 2009, through
October 20, 2011, the date of the ALJ’s decision (T. 85-90). Plaintiff did not
appeal, so Plaintiff’s alleged disability onset date is the day after the
previous ALJ’s decision.

2

depression; anxiety; and drug and alcohol abuse, not material
(20 C.F.R. § 404.1520(c)) (Id.).

At step three, the ALJ found that

Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed impairment
(T. 17-19).

Before proceeding to step four, the ALJ found that

Plaintiff retained the RFC to perform light work as defined in
20 C.F.R. § 404.1567(b), except that he cannot work in an area with
unprotected

heights

or

around

heavy,

moving,

or

dangerous

machinery.

Plaintiff was also limited to occasional bending,

climbing, stooping, squatting, kneeling, balancing or crawling; and
cannot climb ropes, ladders or scaffolds (T. 19).

Additionally,

the ALJ found that Plaintiff had occasional limitations in the
ability

to

(1)

understand,

remember

and

carry

out

detailed

instructions; (2) interact with the general public; (3) perform the
basic mental demands of unskilled work, including the ability to
understand, remember and carry out simple instructions; (4) respond
appropriately

to

supervision,

co-workers,

and

usual

work

situations; and (5) deal with changes in a routine work setting
(Id.).

At step four, the ALJ found that Plaintiff could not

perform any past relevant work (T. 24).

At step five, the ALJ

found considering Plaintiff’s age, education, work experience, and
RFC, that Plaintiff could perform other work in the national
economy that exists in significant numbers in such representative
occupations as small parts assembler, mail clerk and routing clerk
(T. 25).

Accordingly, the ALJ found that Plaintiff was not
3

disabled from October 21, 2011 through the date of his decision
(T. 26).
IV.

Scope of Review
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. 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.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).

Shaw v.

“The deferential

standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
Plaintiff makes the following arguments in support of his

motion for judgment on the pleadings: (1) the ALJ failed to
properly

evaluate

the

“other

source”

opinion

of

Plaintiff’s

treating mental health counselor; (2) the ALJ failed to properly
develop the record with respect to Plaintiff’s mental health; and
(3) the ALJ failed to find Plaintiff’s schizophrenia with paranoid
features to be a severe impairment.

Plaintiff does not challenge

any of the ALJ’s findings with respect to Plaintiff’s physical
limitations.
4

A.

Plaintiff’s RFC
1.

Other Opinion Evidence

Plaintiff argues that the Court should remand his case to the
ALJ because the ALJ committed legal error by ignoring and not
weighing

the

opinion

of

Plaintiff’s

Licensed

Mental

Health

Counselor (“LMHC”) Vondolyn Lane of Monsignor Carr Institute in
connection with the RFC assessment.

Plaintiff further argues that

this violated SSR 06-03p, 2006 WL 2329939 (S.S.A. 2006) (Id.). The
Commissioner contends that LMHC Lane was not Plaintiff’s treating
counselor and, even if she was, the balance of the medical record
contradicts her opinion.

Moreover, the Commissioner argues that

the ALJ’s RFC assessment was otherwise supported by substantial
evidence.
SSR 06–03p explains that opinions from “other sources” such as
a counselor are “important” and “should be evaluated on key issues
such as impairment severity and functional effects, along with the
other relevant evidence in the file.” SSR 06–03p, 2006 WL 2329939,
at *3.3

SSR 06–03p further directs ALJs to apply the same factors

used to evaluate acceptable medical sources in evaluating the
opinions of non-medical sources such as counselors. See Vishner v.
Colvin, No. 1:14-CV-00431 (MAT), 2017 WL 1433337, at *5 (W.D.N.Y.

3

SSR 06-03p was rescinded by Federal Register Notice Vol. 82, No. 57, page 15263,
effective March 27, 2017. The parties do not dispute that it applied during
Plaintiff’s 2013 hearing or ALJ Harvey’s decision of the same year.

5

Apr. 24, 2017) (citing Saxon v. Astrue, 781 F. Supp. 2d 92, 104
(N.D.N.Y. 2011)).
However,

even

if

an

ALJ

must

consider

relevant,

other

evidence, see 20 C.F.R. § 404.1545(a)(3), the ALJ is not obligated
to summarize every single piece of evidence in the administrative
transcript.

See, e.g., Barringer v. Comm’r of Soc. Sec., 358

F. Supp. 2d 67, 78-79 (N.D.N.Y. 2005) (“The ALJ was not required to
mention or discuss every single piece of evidence in the record.”
(citing Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).
Rather, where “the evidence of record permits [the court] to glean
the rationale of an ALJ’s decision, [the ALJ is not required to
explain] why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.”

Mongeur,

722 F.2d at 1040.
Here, the ALJ did not err by not specifically summarizing a
single 30-minute, walk-in appointment as part of the extensive 600page medical record in this case. At the June 4, 2012 appointment,
both LMHC Lane and Non-Physician Provider (“NPP”) Diane Page saw
Plaintiff for an individual counseling session (Id.).

They noted

that Plaintiff appeared cooperative; was oriented; spoke at a
normal rate,

rhythm,

and

volume;

was well-groomed;

was

in a

euthymic mood; had a congruent affect; had an organized and goaldirected thought process; had no perceptual distortions; had fair
insight and judgment; and had good impulse control (Id.).
6

They

also noted that Plaintiff was delusional and his psychosis and
paranoia were “increasing” (Id.).

However, neither LMHC Lane nor

NPP Page offered any explanation or rationale to support their
observations.

It is noteworthy that despite the size of the

record, this is the only session that Plaintiff cites as evidence
of LMHC Lane’s direct examination of Plaintiff (T. 358).
brief session does not evidence a treating relationship.

This
See

Patterson v. Astrue, 11–CV–1143, 2013 WL 638617, at *8 (N.D.N.Y.
Jan. 24, 2013) (“three examinations by [a physician] over the
course of four months . . . does not constitute the type of
‘ongoing relationship’ that is required for finding that s/he is
plaintiff’s treating physician under the relevant regulations”
(citing 20 C.F.R. § 404.1502)), report and recommendation adopted,
2013 WL 592123 (N.D.N.Y. Feb. 14, 2013).
NPP Page listed

Connie

James,

Moreover, in May 2010,

not LMHC Lane,

as

Plaintiff’s

therapist while completing an Initial Psychiatric Evaluation for
Plaintiff (T. 374).

Indeed, a vast majority of the Monsignor Carr

Institute treatment notes indicate that other counselors conducted
the nearly thirty evaluations of Plaintiff from April 17, 2010,
through May 6, 2013 (T. 358-78, 383-88, 603, 609, 614, 640-43).
Additionally, other evidence in the medical record shows,
consistent with Plaintiff’s own admission, that LMHC Lane’s role
was really more of a supervisory one.

On October 20, 2010, one

year before Plaintiff’s onset date, LMHC Lane, along with an
unidentified psychiatrist with an illegible signature, completed a
7

“Treatment Plan” form for Plaintiff’s problems of anxiety and
depression (T. 382).

Unlike Monsignor Carr Institute’s Progress

Notes, which include a date of visit, the Treatment Plan form does
not indicate any date that LMHC Lane examined or treated Plaintiff
as a part of formulating the Treatment Plan.

The form also

included a diagnosis of “generalized anxiety” and depression, but,
again, it was not clear that the diagnosis was based on an
examination.

On January 20, 2011, nine months before Plaintiff’s

onset date, LMHC Lane completed a similar Treatment Plan form for
Plaintiff, but this time the form listed Plaintiff as having a
diagnosis of schizophrenia and paranoia (T. 381).

Nevertheless,

it was not clear that the diagnosis was based on LMHC Lane’s
examination or the examination of other Monsignor Carr Institute
personnel.
LMHC Lane also wrote three letters on behalf of Monsignor Carr
Institute

and

its

personnel,

but

none

of

them

clarify

her

individual relationship to Plaintiff but instead appear to be
written to address Plaintiff’s relationship with Monsignor Carr
Institute

as

unidentified

a

whole.

recipient

For
dated

example,
October

7,

in

one

2011,

letter
just

to

an

prior

to

Plaintiff’s onset date, LMHC Lane explained that “we have diagnosed
[Plaintiff]” with schizophrenia and paranoia, and Plaintiff “sees
Monsignor

Carr

Nurse

Practitioner

(T. 843-45 (emphasis added)).

Diana

Page

for

medication”

LMHC Lane repeated this statement,

word for word, in letters dated November 17, 2011 and February 22,
8

2013, also to unidentified recipients (Id.).

On February 22, 2013

she also stated that “in MCI[‘s] opinion Mr. Perry is unable to
work

or

attend

any

(emphasis added)).

training

programs

at

this

time”

(T.

845

As Plaintiff recognizes in the Reply, such an

opinion receives no special significance because it is a conclusion
on the ultimate issue vested to the Commissioner.

See 20 C.F.R.

§ 404.1527 (statement that claimant is “unable to work” is an
opinion “on [an] issue[] reserved to the Commissioner”); Snell v.
Apfel,

177

F.3d

128,

133

(2d

Cir.

1999)

(citing

20

C.F.R.

§ 404.1527).
Finally, LMHC Lane’s opinion is not consistent with other
evidence, including other treatment notes from Monsignor Carr
Institute. Other treatment notes completed by NPP Page showed that
Plaintiff’s mental status was normal stating that Plaintiff had
cooperative behavior; was oriented; spoke at a normal rate, rhythm
and volume; had an intact memory; had good concentration; was in a
euthymic mood; had a congruent effect; was organized and had a
goal-directed thought process; had no perceptual distortions; had
fair

insight

(T. 359-73).

and

judgment;

and

had

good

impulse

control

Moreover, while LMHC Lane repeatedly stated that

Plaintiff was compliant with his medication (T. 843, 844, 855), NPP
Page cited numerous instances where Plaintiff was not compliant
with taking his medication as directed (T. 360, 361, 367, 371,
603).

One such comment by NPP Page, on August 22, 2011 (T. 361)

was only two months before LMHC Lane’s October 2011 statement that
9

Plaintiff was compliant with his medications (T. 844).

Therefore,

the ALJ did not err by not specifically summarizing LMHC Lane’s
treatment of Plaintiff while formulating the RFC. See Mongeur, 722
F.2d at 1040.
2.

Failure to Develop the Record

Plaintiff also argues that the ALJ’s RFC finding is not
supported by substantial evidence because the ALJ failed to develop
the record.

Specifically, Plaintiff contends that the ALJ left a

gap in the record by according only some or little weight to the
opinions of consulting physician Susan Santarpia, Ph.D. (T. 22),
State Agency review psychologist Dr. Juan Echevarria (Id.) and
State Agency review psychologist Dr. Brady Dalton (T. 23).
On August 14, 2012, Dr. Santarpia conducted a psychiatric
examination per the request of the Social Security Administration
(T. 488-91). Plaintiff reported he was currently taking medications
for his mental illness, stating that they stabilized his suicidal
thoughts (T. 488). He further reported no anxiety-related symptoms
or manic episodes (T. 488-89).

Plaintiff was talkative throughout

the examination, but with pressured speech and some distractibility
and flight of ideas (T. 489).

Plaintiff had appropriate eye

contact and coherent thought process during the examination (Id.).
Dr. Santarpia noted that Plaintiff’s attention and concentration
were

mildly

impaired,

but

she

suspected

malingering

(Id.).

Dr. Santarpia opined the following mental abilities: able to follow
and understand simple directions and instructions; perform simple
10

tasks independently; maintain attention and concentration; maintain
a regular schedule; learn new tasks; make appropriate decisions;
and appropriately deal with stress within normal limits (T. 490).
Additionally, Plaintiff had a mild impairment in performing complex
tasks independently and relating adequately with others (Id.).
Plaintiff also had difficulties caused by distractibility (Id.).
Dr. Santarpia noted that Plaintiff’s psychiatric impairments did
not appear to be significant enough to interfere with his ability
to function on a daily basis (T. 491).
Plaintiff

with

bipolar

disorder;

Dr. Santarpia diagnosed

alcohol

dependence/abuse,

sustained; and cannabis dependence/abuse, sustained (Id.).
On

September

10,

2012,

State

Agency

psychologist

Dr. Echevarria reviewed Plaintiff’s medical records and concluded
that Plaintiff had an affective (bipolar) disorder and a substance
abuse disorder, but that these impairments were non-severe (T. 503,
506, 515).
On November 27, 2012, State Agency psychologist Dr. Dalton
reviewed Plaintiff’s records and agreed with Dr. Echevarria’s
assessment that Plaintiff’s psychiatric impairments were non-severe
(T. 518).

Dr. Dalton also addressed Plaintiff’s credibility,

noting possible malingering during a mental status evaluation and
noting

Plaintiff’s

recent

use

of

illicit

substances

contradicted his denial of such use since 2008 (T. 518).

11

directly

Plaintiff’s contention that the ALJ rejected the opinions of
doctors Santarpia, Echeverria and Dalton is not supported by the
decision.

Indeed, the ALJ reviewed and weighed each of the

opinions in turn.

He gave “some weight” to Dr. Santarpia’s

findings, but not to the prognosis “as guarded” because it was
inconsistent with Dr. Santarpia’s examination findings (T. 22).
The ALJ accorded little weight to Dr. Echevarria’s findings because
they were not supported by the treatment notes of Monsignor Carr
Institute or Dr. Santarpia’s findings (T. 22).

Specifically, the

ALJ noted that contrary to Dr. Echevarria’s findings, Plaintiff had
a difficult time socially, with both family and friends, and, as he
explained

to

Dr.

Santarpia,

he

was

taking

stabilized his suicidal thoughts (T. 22).

medication

that

Thus, although the ALJ

assigned no weight to Dr. Echevarria’s opinion, this was because he
credited Dr. Santarpia’s opinion as to Plaintiff’s ability to be
around others and his use of medication.

The ALJ next gave “some,

but not great weight” to Dr. Dalton’s decision, explaining that
Dr. Dalton found Plaintiff’s condition non-severe and somewhat
stable, but found Plaintiff not credible because of his illicit
drug use (T. 23).
Notably, Plaintiff offers no other gaps in the medical record.
In fact, Plaintiff’s medical record is quite extensive containing
sufficient

medical

evidence

of

routine

treatment,

including

evaluations and opinions from several physicians, mental health
counselors, and state agency medical experts.
12

Where, as here,

“there are no obvious gaps in the administrative record, and where
the ALJ already possesses a complete medical history, the ALJ is
under no obligation to seek additional information in advance of
rejecting a benefits claim.”

Rosa v. Callahan, 168 F.3d 72, 79 n.5

(2d Cir. 1999); see also Perez v. Chater, 77 F.3d 41, 48 (2d Cir.
1996) (ALJ need not obtain information from treating physician
where ALJ already had a complete medical history and evidence
received

from

treating

physicians

was

adequate

to

determine

disability).
Moreover, the ALJ’s RFC assessment is consistent with the
opinions of doctors Santarpia and Dalton concerning Plaintiff’s
mental abilities which negates any impression that their opinions
were rejected.

See, e.g., Pellam v. Astrue, 508 F. App’x 87, 90

(2d Cir. 2013) (concluding that although ALJ formally rejected
consulting examiner’s opinion because he only saw plaintiff once
and findings were “inconsistent with nearly contemporaneous medical
records,” ALJ’s RFC was nevertheless consistent in “all relevant
ways” with consulting examiner’s opinion); see also, e.g., Crawford
v. Astrue, No. 13-CV-6068P, 2014 WL 4829544, at *20 (W.D.N.Y.
Sept. 29, 2014) (citing Pellam).

For example, Dr. Santarpia found

that Plaintiff was able to follow and understand simple directions
and instructions; perform simple tasks independently; maintain a
regular schedule; and appropriately deal with stress within normal
limits (T. 490). He also found that Plaintiff had a mild impairment
in performing complex tasks independently, relating adequately with
13

others and was distractable (Id.).

The fact that the ALJ’s RFC

assessment did not perfectly match their opinions is not grounds
for remand because the ALJ’s role is to weight all the evidence and
ensure that the entire medical record supported his RFC finding.
See Matta v. Astrue, 508 F. App’x. 53, 56 (2d Cir. 2013) (“Although
the ALJ’s conclusion may not perfectly correspond with any of the
opinions of medical sources cited in his decision, he was entitled
to weigh all of the evidence available to make an RFC finding that
was consistent with the record as a whole.” (citing Richardson v.
Perales, 402 U.S. 389, 399 (1971))).
Furthermore, Plaintiff’s argument that the ALJ should have
requested a medical opinion from a treating source depends on the
assumption that a treating source from Monsignor Carr Institute
would have found more restrictive limitations than those found by
doctors Santarpia, Echevarria and Dalton.

To the contrary, the

opinions of doctors Santarpia, Echevarria and Dalton were also
consistent with the findings of personnel that treated Plaintiff at
Monsignor Carr Institute, which the ALJ referenced in support of
his

decision.

Specifically,

NPP

Page

completed

an

Initial

Psychiatric Evaluation for Plaintiff in May 2010 which found, among
other

things,

that

Plaintiff

had

difficulty

socializing,

was

untrusting of others, had a difficult time in high school and
currently had limited contact with his family who mistreated him as
a child (T. 21, 376).

Given the similarities between the Initial

Psychiatric Evaluation and the opinions of doctors Santarpia,
14

Echevarria and Dalton, it is “doubtful that a medical source
statement from [a treating source at Monsignor Carr Institute]
would have altered the ALJ’s assessment of Plaintiff’s RFC.” Hogan
v. Colvin, No. 12-CV-1093, 2015 WL 667906, at *6 (W.D.N.Y. Feb. 17,
2015).

Accordingly, based on the medical record, remand is not

required based

on

the

ALJ’s

failure to

fully

credit

doctors

Santarpia, Echevarria and Dalton or because of his alleged failure
to request a medical source statement from one of Plaintiff’s
treating physicians.

Id.

Instead, the record as a whole was

“adequate to permit an informed finding by the ALJ.”

Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x. 29, 34 (2d Cir. 2013).
B.

Failure to Find Schizophrenia to be a Severe Impairment
at Step Two

Plaintiff

also

argues

that

the

ALJ

failed

to

include

schizophrenia (with paranoid features) as a severe impairment
despite “strong evidence” that Plaintiff suffered from the mental
condition.
A

medically

determinable

impairment

is

an

“anatomical,

physiological, or psychological abnormalities that can be shown by
medically
techniques.”

acceptable

clinical

and

20 C.F.R. § 404.1521.

laboratory

diagnostic

An impairment is not severe if

it does not significantly limit your physical or mental ability to
do basic work activities.
85–28,

1985

WL

‘significantly

See, e.g., 20 C.F.R. § 404.1522(a); SSR

56856,

at

*3–4

limits’

is

not
15

(S.S.A.

1985).

synonymous

with

“The

phrase

‘disability.’

Rather, it serves to ‘screen out de minimis claims.’”

Showers v.

Colvin, No. 3:13-CV-1147(GLS), 2015 WL 1383819, at *4 (N.D.N.Y.
Mar. 25, 2015) (quoting Dixon v. Shalala, 54 F.3d 1019, 1030
(2d Cir. 1995)).

Basic work activities include, for example, the

ability to understand, carry out, and remember simple instructions;
respond appropriately to supervision, co-workers, and usual work
situations; and deal with changes in a routine work setting.
§ 404.1522(b).
be

made

if

Consequently, “[a] finding of ‘not severe’ should

the

medical

evidence

establishes

only

a

‘slight

abnormality’ . . . [with] . . . ‘no more than a minimal effect on
an individual’s ability to work.’”

Rosario v. Apfel, No. 97 CV

5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen
v. Yuckert, 482 U.S. 137, 154, n.12 (1987)).
Here, the ALJ did not err by finding that Plaintiff’s alleged
schizophrenia was not a medically determinable impairment (T. 17).
Indeed, there are only sporadic references to schizophrenia in the
record and no diagnosis of schizophrenia included any related
nonexertional limitations.

For example, the majority of Monsignor

Carr Institute treatment notes diagnosed anxiety (T. 382, 396,
643), depression

(T.

379,

382,

393,

641),

gave

no

diagnosis

(T. 359, 365, 368, 370, 371) or otherwise ambiguously characterized
Plaintiff’s diagnosis as “no change” (T. 363, 366, 367, 369, 372,
373).

Notably, the ALJ diagnosed both anxiety and depression as

severe impairments (T. 17).
Page

did

diagnose

It is true that on May 3, 2010, NPP

Plaintiff

with
16

bipolar

disorder

versus

schizoaffective disorder (T. 377).

Yet, LMHC Lane’s most recent

“treatment plan” for Plaintiff, on October 21, 2012, included a
diagnosis of anxiety and depression — not schizophrenia (T. 382).
Other records also support the ALJ’s finding.
2012,

Plaintiff

admitted

himself

for

in-patient

On July 31,
treatment

at

Buffalo General Hospital, for suicide ideation and hallucinations
(T. 591-96).

The treating physician diagnosed him with bipolar

disorder and personality disorder — not schizophrenia (T. 596). At
discharge on August 6, Plaintiff’s diagnosis was limited to bipolar
disorder (T. 837).
Moreover,

Dr.

Santarpia

considered

Plaintiff’s

diagnosis

history of depression, anxiety, schizophrenia and bipolar disorder
(T. 488), but limited her diagnosis to bipolar disorder after
performing a mental examination (T. 491).

Additionally, Plaintiff

never raised schizophrenia as an issue at the hearing.

Instead,

Plaintiff stated that he suffered from bipolar disorder, anxiety
and depression and his attorney only questioned him about his
substance abuse, mood disorder, depression and anxiety (T. 45, 5862).
Plaintiff cites several other isolated facts in the record in
support of his contention that the ALJ erred by not finding
schizophrenia

a

severe

impairment.

Plaintiff

contends

that

treating psychiatrist Dr. Jeffrey Kashin diagnosed Plaintiff upon
admission on April 21, 2010 with schizophrenia, paranoid, chronic
17

and

then

reiterated

that

diagnosis

on

September

16,

2010.

According to Plaintiff, if the ALJ had considered Dr. Kashin’s
diagnosis he might have concluded that he was disabled.
misstates the record.
records

in

support

Plaintiff

Plaintiff cites Monsignor Carr Institute
of

his

diagnosis (T. 383. 388).

arguments

regarding

Dr.

Kashin’s

However, Dr. Kashin was employed by

Kaleida Health not Monsignor Carr Institute, and nothing in the
cited Monsignor Carr Institute notes suggest that Dr. Kashin signed
any Monsignor Carr Institute documents.

Each of the referenced

Monsignor Carr Institute reports include a signature, but it is
illegible and the signator is not otherwise identified on the
document.
Plaintiff further argues that the ALJ erred by only limiting
Plaintiff in social interaction with the general public, arguing
that the ALJ should have also limited Plaintiff from dealing with
co-workers and supervisors.
treatment

notes

However, the Monsignor Carr Institute

consistently

recorded

that

Plaintiff

was

cooperative, with a euthymic mood and congruent effect — indicating
the ability to respond appropriately in a normal work setting
(T. 359-73).

The ALJ also noted that Plaintiff’s own statements

acknowledged that he engaged in socializing with friends and
family, and was twice hospitalized for injuries from playing
football — an activity requiring interaction, cooperation and team
work (T. 347, 407, 465).

These incidents suggest that Plaintiff

was not as limited socially as he alleged.
18

Plaintiff also claims that his schizophrenia was severe based
on his April 21, 2010 statement that “voices tell him to take all
of his pills at once” (T. 386).

However, Plaintiff worked with his

alleged schizophrenia at the substantial gainful activity level
until July 2011, when he either was fired or quit work due to a
back injury (T. 182, 206, 362).

The fact that he worked with this

impairment contradicts Plaintiff’s claim.

In fact, as the record

reveals, most of his mental evaluations after he stopped working
indicate that Plaintiff suffered from depression and anxiety, and
not schizophrenia.

Thus, Plaintiff does not demonstrate that his

schizophrenia prevented him from working.
Finally, Plaintiff argues that a different ALJ, based on a
previous application for benefits, found that Plaintiff had severe
schizophrenia. However, that ALJ decided that case on October 20,
2011 – the day before Plaintiff’s alleged onset date - and found
Plaintiff was not disabled even without the benefit which the ALJ
had here of three prior examining opinions as to Plaintiff’s mental
health and limitations (T. 86, 90-91).
Ultimately, even if the ALJ erred at Step 2 by failing to find
Plaintiff had schizophrenia, the record contains no nonexertional
limitations in connection with Plaintiff’s alleged schizophrenia,
and nothing in the record suggests that any such limitations would
go beyond the nonexertional limitations set forth by the ALJ for
Plaintiff’s anxiety and depression, which are supported by the
medical record.

Thus, any alleged error in failing to find
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schizophrenia was a severe impairment would be harmless.

See

Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (holding where
application of correct legal principles to record could lead only
to same conclusion, no need to require agency consideration).

In

sum, and for the reasons set forth above, Plaintiff has not shown
that the ALJ erred by failing to find that he had the severe
impairment of schizophrenia.

The ALJ’s decision finding Plaintiff

not disabled is supported by substantial evidence in the record.
VI.

Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings (Docket No. 17) is denied. The Commissioner’s motion
for judgment on the pleadings (Docket No. 22) is granted.
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:

November 28, 2017
Rochester, New York.

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The