Jakubik v. Colvin

Filing 20

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/5/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CASSANDRA MARIE JAKUBIK,
Plaintiff,

No. 1:15-cv-00481-MAT
DECISION AND ORDER

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I. Introduction
Represented by counsel, Cassandra Marie Jakubik (“Plaintiff”)
instituted 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 Security (“the Commissioner”)1 denying her
application for Disability Insurance Benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II. Procedural Status
On June 7, 2012, Plaintiff protectively filed a Title II
application, alleging disability beginning October 1, 2011, due to
hypertension,

chronic

obstructive

pulmonary

disease

(“COPD”),

postpartum depression, posttraumatic stress disorder (“PTSD”),
arthritis, kidney stones, knee injury, and back problems. Following
denial of her claim at the initial level, administrative law judge
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
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).

Timothy M. McGuan (“the ALJ”) conducted a hearing on November 6,
2013, in Buffalo, New York. Plaintiff appeared with her attorney
and testified, and impartial vocational expert Josiah L. Pearson
(“the VE”) testified remotely by phone. On January 27, 2014, the
ALJ issued an unfavorable decision (T.7-28). The Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision
the final decision of the Commissioner. Plaintiff then timely
commenced this action.
Both parties have moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. The Court
adopts the summaries of the administrative transcript set forth by
the parties in their respective memoranda of law, and will discuss
the record evidence as necessary to the resolution of the pending
motions.
For the reasons set forth herein, the Commissioner’s decision
is affirmed.
III. The ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that
Plaintiff meets the insured status requirements of the Act through
June 30, 2016, and had not engaged in substantial gainful activity
since October 1, 2011. (T.12).
At step two, the ALJ found that Plaintiff has the “severe”
impairments of obesity, degenerative disc disease with diffuse
facet joint osteoarthritis, major depressive disorder, and panic
disorder without agoraphobia. (T.12-14).

-2-

The ALJ evaluated Plaintiff’s impairments in connection with
the Listings, and found that none of her impairments, singly or in
combination, meet or medically equal a listed impairment. The ALJ
gave particular consideration to Listings 1.04 (Disorders of the
Spine), 12.04 (Affective Disorders), and 12.06 (Anxiety Related
Disorders). (T.14). The ALJ performed the special psychiatric
review technique and found that Plaintiff has mild restrictions in
activities

of

daily

living,

moderate

limitations

in

social

functioning and maintaining concentration, persistence, or pace,
and has not experienced any episodes of decompensation of extended
duration. (T.14-15).
Prior to proceeding to step four, the ALJ assessed Plaintiff
as having the residual functional capacity (“RFC”) to sit for up to
8 hours in an 8-hour workday; stand and/or walk for up to 6 hours
in an 8-hour workday, with the option to sit or stand after
45 minutes; can lift up to 20 pounds occasionally and l0 pounds
frequently; can occasionally interact with the public; and can
occasionally

understand,

remember,

and

carry

out

complex

or

detailed tasks.
At step four, the ALJ determined that Plaintiff had past
relevant work as a cafeteria attendant, a telephone survey worker,
and

a

cashier-checker.

In

light

of

her

RFC,

the

ALJ

found,

Plaintiff cannot perform her past relevant work.
At step five, the ALJ noted that Plaintiff was 37 years-old on
the onset date, with a limited education and the ability to
communicate English. The ALJ relied on the VE’s testimony to find
-3-

that,

in

light

of

Plaintiff’s

age,

education,

vocational

background, and RFC, there are jobs that exist in significant
numbers the national economy and the Western New York region (i.e.,
Erie and Niagara counties) that she can perform, including mail
clerk (DOT 206.687-026, unskilled (SVP 2), light exertional work);
and housekeeping cleaner (DOT 373.687-014, unskilled (SVP 2), light
exertional work).

Accordingly, the ALJ entered a finding of not

disabled.
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). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “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)
(quotation

omitted).

The

reviewing

court

nevertheless

must

scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
review

for

substantial

evidence
-4-

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
A.

Errors at Steps Two and Three
Evaluation (Plaintiff’s Point I)

of

the

Sequential

Plaintiff argues the ALJ should have found that she has an
intellectual disability that qualifies as a “severe” impairment at
step two. (See Plaintiff’s Brief (“Pl.’s Br.”) at 13). Relatedly,
Plaintiff argues that the ALJ erred at step three by failing to
analyze whether she meets Listing 12.05 (Mental Retardation) due to
her alleged intellectual disability.
1.

Severity Determination at Step Two

At the step two of the evaluation, the ALJ considers the
medical

severity

of

a

claimant’s

impairments.

20

C.F.R.

§ 404.1520(a)(4)(ii). A “severe impairment” is defined as “any
impairment or combination of impairments which significantly limits
[the claimant’s] physical or mental ability to do basic work
activities.”

Id.

at

§§

404.1520(c),

404.1521.

Thus,

“[a]n

impairment or combination of impairments is not severe if it does
not significantly limit [a claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1521 (eff. until
Mar. 27, 2017). “Basic work activities . . . mean the abilities and
aptitudes necessary to do most jobs[.]” Id. As relevant to mental
impairments,
“(3)

“[b]asic

[u]nderstanding,

work

carrying
-5-

out,

activities”
and

remembering

include
simple

instructions; (4) [u]se of judgment; (5) [r]esponding appropriately
to

supervision,

co-workers

and

usual

work

situations;

and

(6) [d]ealing with changes in a routine work setting.” 20 C.F.R.
§ 404.1521(b) (eff. until Mar. 27, 2017).
In support of her step two argument, Plaintiff points to the
report

of

consultative

psychologist

Renée

Baskin,

Ph.D.,

who

estimated her intellectual functioning as being in the “below
average to borderline range.” (T.459). Plaintiff also relies on the
Medical

Examination

for

Employability

Assessment,

Disability

Screening, and Alcoholism/Drug Addiction Determination,” completed
by her primary care physician, Paul C. Dippert, D.O., at the behest
of the New York State Office of Temporary and Disability Assistance
on March 13, 2013. (T.600-01). On that form, Dr. Dippert listed
“mild

MR”

as

one

of

Plaintiff’s

“[m]edical

[c]ondition[s].”

(T.601). However, Dr. Dippert cited no information when asked for
“[p]rognosis and [t]reatment [r]ecommendations including prescribed
medications” regarding the “mild MR,” and simply wrote “fair.”
(Id.).

In

addition,

when

asked

for

the

“[d]ate

of

original

diagnosis/diagnosis type” of “mild MR,” he wrote “3/13/13,” the
same day that he completed the report. (Id.).
As an initial matter, the Regulations define “[i]mpairments”
as “anatomical, physiological, or psychological abnormalities” that
are “demonstrable by medically acceptable clinical and laboratory
techniques.” 42 U.S.C. § 423(d)(3) (emphasis supplied). Here, as
the ALJ noted, none of the treatment providers or the examining
sources conducted any standardized intelligence testing or noted
-6-

any clinical findings to support the conclusion that Plaintiff has
“mild MR.” The only evidence of an intellectual disability are the
passing references in the record by Dr. Dippert and Dr. Baskin to
Plaintiff’s below average intelligence or borderline intellectual
functioning. Courts have found that such remarks do not, in and of
themselves,

conclusively

demonstrate

a

“severe”

impairment,

particularly where the evidence of record does not suggest a
“severe” cognitive impairment. See, e.g., Crawford v. Astrue,
No. 13-CV-6068P, 2014 WL 4829544, at *24 (W.D.N.Y. Sept. 29, 2014)
(“The record reflects that Crawford successfully completed high
school, in a special education setting, and was able to study for
and obtain her CNA certification. Further, Crawford maintained
employment in several semi-skilled positions, including as a CNA,
for several years. Crawford reported that she is able to manage her
own finances and enjoys reading as one of her hobbies. Although
Crawford testified at the hearing that she does not believe that
she is able to read at an appropriate level, she conceded that she
is able to read a newspaper. Thus, the record does not suggest that
Crawford suffers from significant cognitive impairments, and the
few references in the record were insufficient to trigger the ALJ’s
duty to order an intelligence examination.”) (citing, inter alia,
Sneed

v.

Barnhart,

88

F.

App’x

297,

301

(10th

Cir.

2004)

(unpublished opn.) (stating that “[t]he isolated comments about
[claimant’s] possible limited intelligence, when viewed as part of
the entire record, do not sufficiently raise a question about his
intelligence); Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir.
-7-

1989)

(finding

that

“a

few

instances

in

the

record

noting

diminished intelligence do not require that the ALJ order an I.Q.
test in order to discharge his duty to fully and fairly develop the
record”)).
As the ALJ noted at various points in his decision, the record
lacked evidence showing that Plaintiff has limitations in cognitive
functioning that “significantly limit[ed]” her “mental ability to
do basic work activities.” 20 C.F.R. §§ 404.1520(c), 404.1521. (See
T.19, 22, 24, 25). For example, although Plaintiff stated variously
that she completed high school and that she only had an 11th grade
education, Plaintiff consistently reported that she took regular
classes in school and was not placed in special education classes.
(T.155, 457, 519). She informed Dr. Baskin that she “graduated from
high school” where she was in “regular education” classes, and
subsequently “completed vocational training as a CNA [certified
nurse’s aide].” (T.457). She reported that she wanted to return to
school

to

obtain

a

nursing

degree.

(T.519).

Plaintiff

also

successfully performed semi-skilled work as a cafeteria attendant
and

cashier-checker

inconsistent

with

(see
a

T.72-73,

finding

that

156),
she

which
has

an

likewise

was

intellectual

disability. See Lawler v. Astrue, 512 F. App’x 108, 111 (2d Cir.
2013) (unpublished opn.) (holding that claimant’s past performance
of semi-skilled work supported ALJ’s finding that claimant did not
suffer from an intellectual disability); See Talavera, 697 F.3d at
153 (concluding that substantial evidence supported Commissioner’s
finding that claimant had “not met her burden of establishing that
-8-

she suffers from qualifying deficits in adaptive functioning” where
claimant “meaningfully participate[d] in the care of her two young
children, that she completed ten years of education in regular
classes and attended a year of business training, and—up until the
onset

of

her

back

problems—she

experienced

no

difficulties

whatsoever accomplishing the tasks required during the course of
her previous periods of employment”).
Moreover, Plaintiff’s medical records, her own statements, and
the remainder of Dr. Baskin’s report provide support for the ALJ’s
finding

that

her

alleged

intellectual

disability

does

not

“significantly limit” her ability to do basic work activities. For
example, in December 2011, Plaintiff saw Dr. Timothy Rassmuson,
M.D. to establish care, at which time he “educated [Plaintiff] on
the importance of diet, exercise, and medication compliance with
[her]

understanding

noted.”

(T.479).

Plaintiff

presented

to

Dr. Rassmuson as an “alert, oriented, pleasant” patient. (Id.). In
February

2012,

complaining

of

Plaintiff
kidney

went

stones,

to
and

Mercy

Hospital

during

her

of

mental

Buffalo
status

examination, she had normal responses to verbal stimuli and normal
speech. (T.238, 262). Plaintiff was able to understand multiple
verbal instructions from her care providers regarding such topics
as modified diets, swallowing guidelines/compensatory techniques,
reporting pain using the pain management scale, and weight transfer
techniques. (T.243-44).
Consultative psychologist Dr. Baskin reported that Plaintiff
was responsive to questions, cooperative, had adequate expressive
-9-

and receptive language skills, had adequate social skills, an
adequate manner of relating, and an adequate overall presentation
(T.458-59). Plaintiff’s attention was only mildly impaired, and
that was due to her nervousness and emotional distress, not to her
cognitive functioning. Dr. Baskin noted that Plaintiff was able to
count and do simple calculations although she was unable to do
serial 3s successfully. (T.459). Plaintiff also informed Dr. Baskin
that she can manage her own money and has a driver’s license.
(Id.).

Finally,

despite

estimating

Plaintiff’s

intellectual

functioning as being in the “below average to borderline” range,
Dr. Baskin opined that Plaintiff had “minimal to no limitations
being

able

to

follow

and

understand

simple

directions

and

instructions, [and] perform simple tasks independently.” (T.460).
Dr. Baskin assigned

“moderate limitations being able to maintain

attention and concentration, maintain a regular schedule, learn new
tasks with supervision, perform complex tasks independently, make
appropriate decisions, relate adequately with others and deal
appropriately with stress.” (T.460). The ALJ gave “some weight” to
that assessment, noting that “most assessed limits are due to
[Plaintiff]’s presentation and her subjective complaints.” This
reasoning is supported by substantial evidence. With regard to
Plaintiff’s

presentation,

Dr.

Baskin

noted

that

she

“cried

throughout much of the evaluation” (T.459). However, none of the
treatment notes from her regular mental health and primary care
providers indicate that level of emotional lability. Furthermore,
when she appeared for her consultative physical examination the
-10-

same day as the appointment with Dr. Baskin, Dr. Samuel Balderman
noted that Plaintiff was “in no acute distress,” and he did not
indicate that she was tearful or crying. (T.454). With regard to
her subjective complaints, Plaintiff admitted to Dr. Baskin that
she is “capable of doing activities of daily living but does not do
[them] because she is ‘too depress (sic).’” (T.459). Instead,
Plaintiff gets help from her parents with activities such as caring
for her child. “Primarily[,]” Dr. Baskin wrote, “she is at home
doing nothing.” (Id.). Notably, although Dr. Baskin indicated that
the results of the consultative examination “appear[ed] to be
consistent with psychiatric problems,” Dr. Baskin said merely that
they “may interfere to some degree” with Plaintiff’s “ability to
function on a daily basis.” (T.460; emphases supplied). Therefore,
on the whole, Dr. Baskin’s opinion supports the ALJ’s finding that
Plaintiff’s alleged intellectual disability is not a “severe”
impairment.
2.

Step Three Equivalency Finding

Plaintiff also argues that the ALJ erred because he did not
evaluate

whether

she

met

or

equaled

Listing

12.05

(Mental

Retardation). (See Pl.’s Br. at 14-15).
“For a claimant to show that [her] impairment matches a
listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521,
530 (1990). According to Listing 12.05’s introductory paragraph,
“[i]ntellectual

disability

refers
-11-

to

significantly

subaverage

general

intellectual

functioning

with

deficits

in

adaptive

functioning initially manifested during the developmental period.”
20 C.F.R. Pt. 404, Subpt. P., App. 1, § 12.05. “If [an] impairment
satisfies the diagnostic description in the introductory paragraph
[of §

12.05]

and

any

one

of

the

four

sets of

criteria

[in

Paragraphs A through D, the ALJ] will find that [the] impairment
meets the Listing.” 20 C.F.R. Pt. 404, Subpt. P., App’x. 1, § 12.00
(emphasis supplied).
Thus, before the ALJ reaches the criteria in Paragraphs A
through D, the claimant must meet the criteria in § 12.05’s
introductory

paragraph,

i.e.,

she

must

have

(1)

cognitive

limitations and deficits in adaptive functioning, (2) initially
manifesting themselves before age 22. See, e.g., Talavera v.
Astrue, 697 F.3d 145, 153 (2d. Cir. 2012); Burnette v. Colvin, 564
F. App’x 605, 607 (2d Cir. 2014) (unpublished opn.). The criteria
in the

introductory paragraph must be shown separately from the

rest of the Listing’s criteria relating to IQ scores. See 20 C.F.R.
§ 404.1525(c)(3) (providing that a claimant’s impairment must
satisfy “all of the criteria of [a given] listing, including any
relevant criteria

in

the

introduction”).

Adaptive

functioning

refers to a claimant’s “ability to cope with the challenges of
ordinary everyday life.” Talavera, 697 F.3d at 153 (quoting Novy v.
Astrue, 497 F.3d 708, 710 (7th Cir. 2007); (internal alterations
omitted).

Courts

have

held

that

a

claimant

who

“is

able

to

satisfactorily navigate activities such as living on [her] own,
taking care of children without help sufficiently well that they
-12-

have not been adjudged neglected, paying bills, and avoiding
eviction

.

.

functioning.”

.

does

Id.

not

suffer

(internal

from

quotation

deficits
marks

in

and

adaptive

alterations

omitted). Here, there is no evidence in the record that Plaintiff
had

or

has

contemplated
intellectual

the
by

types
Listing

disability

of

deficits

12.05.
does

in

adaptive

Therefore,
not

functioning

Plaintiff’s

satisfy

the

alleged

introductory

diagnostic description. In light of that finding, there is no need
for the Court to proceed to analyze whether she meets the criteria
of Paragraphs A, B, C, or D of Listing 12.05. See, e.g., Lawler,
512 F. App’x at 111 (no need to examine ALJ’s analysis of the
Listing 12.05C factors after determining the ALJ had properly found
no “limitations in adaptive functioning”).
B.

RFC Unsupported by Substantial Evidence due to ALJ’s
Erroneous Weighing of Medical Opinions and Failure to
Adequately
Account
for
Stress-Related
Limitations
(Plaintiff’s Point II)

Plaintiff argues that the ALJ failed to properly weigh, and
explain the weight given to, the opinions of “every examining
source of record, and one of the two review psychologists[,]” who
“opined that [Plaintiff] had limitations related to her inability
to handle stress.” (Pl’s Br. at 16). Plaintiff further contends
that

the

ALJ’s

psychologist

Dr.

rejection
Baskin;

of

the

treating

opinions
primary

of

consultative

care

physician

Dr. Dippert; treating therapist Christina Benz, M.S. (“Therapist
Benz”); and Nurse Practitioner Gerald Turk (“N.P. Turk”) are not
supported by substantial evidence. The Commissioner counters that,
-13-

in assessing Plaintiff’s RFC, the ALJ properly weighed the medical
opinion evidence and sufficiently explained the weight he assigned
to

the

various

opinions,

and

that

the

RFC

is

supported

by

substantial evidence in the record.
1.

Treating Physician Dr. Dippert

A treating physician’s opinion on the issues of the nature
and severity of a claimant’s impairments is accorded controlling
weight when it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques, and is not inconsistent with
the other

substantial

evidence in

the

record.

See

20

C.F.R.

§ 404.1527(c)(2); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004). When an ALJ declines to accord a treating physician’s
opinion controlling weight, he must consider several factors,
including

the

length,

nature

and

extent

of

the

treatment

relationship; the frequency of examination; the supportability of
the opinion; the consistency of the opinion; and whether the
treating source is a specialist. See 20 C.F.R. § 404.1527(c)(1)(6); § 416.927(c)(1)-(6). These factors are also to be considered
with regard to non-treating acceptable medical sources, such as
consultative

physicians

and

psychiatrists.

See

20

C.F.R.

§ 404.1527(a)(1), (c), (e); 20 C.F.R. § 404.1513(a)(1), (2) (eff.
until

Mar.

26,

2017).

Ultimately,

however,

it

is

the

ALJ’s

responsibility to formulate an RFC assessment based on the record
as a whole. See 20 C.F.R. § 404.1527(c)(2) (“Although we consider
opinions from medical sources on issues such as . . . your residual

-14-

functional capacity . . . the final responsibility for deciding
these issues is reserved to the Commissioner.”).
In March 2013, Dr. Dippert noted that Plaintiff “present[ed]
for discussion of Social Security disability . . . . Mostly what
she is interested in is seeing whether [he] will support her in a
social security disability claim. This [he] will do as she is not
capable of working for various reasons but the primary one is that
she is cognitively challenged.” (T.655). Dr. Dippert then stated
that although Plaintiff has anxiety and depression, she has been
better on medication. (T.656). Dr. Dippert opined that Plaintiff
could not handle job stress or deal with many people at one time.
(Id.). On examination, Dr. Dippert noted that Plaintiff had a
normal affect and an improved mood on medication. (T.657). In
another form, Dr. Dippert listed Plaintiff’s medical condition as
“mild MR [mental retardation]” and opined that she was very limited
in all areas of mental functioning. (T.600-01). As the basis of his
opinion,

Dr.

Dippert

indicated

that

Plaintiff

“[r]eports

generalized anxiety that effects [sic] her ability to focus,
perform tasks and to work well with others.” (Tr. 601).
The ALJ assigned Dr. Dippert’s March 2013 opinion (T.600-01)
“little weight” because it was inconsistent with the evidence as a
whole and Dr. Dippert’s own notes.

On March 12, 2013, the day

before he issued the opinion, Dr. Dippert stated, “I don’t see she
could be an effective worker . . . without some training in the
right position.” (T.656; emphasis supplied). This statement is at
odds

with

his

opinion

that

she
-15-

is

completely

incapable

of

functioning in a work environment. Cf. Poupore v. Astrue, 566 F.3d
303, 305-06 (2d Cir. 2009) (ALJ's determination that claimant was
not disabled was supported by substantial evidence, including
report of claimant’s treating physician stating that claimant would
be an excellent candidate for vocational rehabilitation).
The ALJ also found that Dr. Dippert’s opinion appeared to be
heavily based on Plaintiff’s subjective complaints, which the ALJ
elsewhere determined to be less than fully credible. (See T.24). In
providing his rationale, the ALJ cited proper regulatory factors
(e.g., the consistency and supportability of the opinion), and he
did not misstate or selectively cite the evidence. In particular,
as discussed in the previous section of this Decision, the alleged
deficits in Plaintiff’s cognitive functioning, which Dr. Dippert
stated were the basis for his opinion, are not supported by
substantial evidence in the record. The ALJ correctly noted that
Dr. Dippert’s clinical examination of Plaintiff on the date he
issued the opinion, and his observation that she had improved on
medication, were inconsistent with his extreme limitations on her
ability to handle stress. This stress-related restriction was also
inconsistent with other substantial evidence in the record. In
February

of

2013,

for

instance,

just

one

month

prior

to

Dr. Dippert’s report, Plaintiff reported that her son underwent
emergency surgery but “she feels she handled it fairly well.”
(T.631). Later in February, Plaintiff reported “things were better”
within her family, and that she was staying at her sister’s house
with her son and “expresse[d] taking a lot of enjoyment out of
-16-

[it].” (T.629). By spending more time with her sister, Plaintiff
was removing herself from her current stressful living situation,
and she reported that helped to decrease her anxiety levels.
(T.627). Although she had been experiencing sadness about the
untimely death

of

her

brother,

she

had

“been

more

social[,]

spending more time with friends and family members.” (T.625). In
April 2013, Plaintiff “report[ed] that things are going well,
[despite] continued ongoing stressors at home.” (T.620). In May
2013,

Plaintiff

was

“doing

pretty

well”

despite

experiencing

several recent stressors, including a custody dispute. (T.618).
While Dr. Dippert also filled out a form in November 2012,
stating that Plaintiff was restricted from doing all mental and
physical work activity and working in all working environments,
Dr. Dippert did not provide a medical basis for his opinion or
offer any specific limitations. (T.547). Furthermore, at or around
the same time, Dr. Dippert completed a form for Erie County
Department of Social Services stating “[Plaintiff] states cannot
work

because

of

psychiatric

condition

(death

of

brother)[.]”

(T.548). The next day, however, Plaintiff’s mother called and
canceled Plaintiff’s appointment because Plaintiff was attending a
job fair. (T.552).
Although it is improper to reject a treating source’s opinion
solely

because

it

is

informed

by

the

claimant’s

subjective

complaints, here, Dr. Dippert explicitly stated that the basis of
his

opinion

(T.601).

was

Plaintiff’s

Elsewhere

in

his

“[r]eports”

decision,
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the

about
ALJ

her
found

symptoms.
that

her

subjective complaints were not entirely credible. See Gates v.
Astrue, 338 F. App’x 46, 49 (2d Cir. 2009) (unpublished opn.) (ALJ
properly discounted doctor’s opinion when findings were based on
the

“unreliable

foundation”

of

claimant’s

unsupported

allegations).2
2.

Consultative Psychologist Dr. Baskin

For the reasons discussed above in Section V.A.1, the Court
finds

that

the

ALJ

did

not

commit

legal

error

in

weighing

Dr. Baskin’s opinion, and that his analysis was supported by
substantial evidence.
3.

Therapist Benz and N.P. Turk

On October 25, 2013, Therapist Benz and N.P. Turk offered
opinions regarding the limitations caused by Plaintiff’s mental
impairments. Plaintiff argues that the ALJ erred in giving these
opinions only “some weight.” (T.25).
Nurse practitioners and therapists are defined as “other
sources” under the Regulations; they do not constitute “acceptable
medical sources” entitled to the presumption of deference under the
treating physician rule. E.g., Genier v. Astrue, 298 F. App’x 105,
108 (2d Cir. 2008) (unpublished opn.); SSR 06–3p, 2006 WL 2329939
(S.S.A. Aug. 9, 2006). Thus, as a general rule, opinions from
“other sources” are not entitled to controlling weight. See Mongeur
v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir. 1983) (“Inasmuch as
Nurse Laro did treat Mongeur on a regular basis, her opinion is
2

Plaintiff has not challenged the ALJ’s credibility analysis on appeal.

-18-

entitled to some extra consideration, but the diagnosis of a nurse
practitioner should not be given the extra weight accorded a
treating physician.”). Nevertheless, SSR 06-3p recognizes that
“other source” opinions “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 06-3p,
2006 WL 2329939, at *3.

SSR 06–03p further directs ALJs to use the

same factors used in evaluating the opinions of “acceptable medical
sources” when evaluating the opinions of “medical sources who are
not ‘acceptable medical sources,’” such as therapists and nurse
practitioners. Id. at *4.
Therapist Benz opined that Plaintiff had “extreme” limitations
in responding to usual work situations and to changes in a routine
work setting. (T.681). As her basis for this opinion, Therapist
Benz relied on Plaintiff’s reactions “in [counseling] session” to
“becom[ing] overwhelmed or experienc[ing] significant stress.”
(T.681). However, the limitations described by Therapist Benz
(“irritability,

confusion

concentrating/interacting”)

are

not

and

difficulty

“extreme”

reactions

to

“significant” stress and, moreover, Therapist Benz stated merely
that Plaintiff “can exhibit” them, not that she always exhibits
them. (T.681). Furthermore, Therapist Benz only assigned “moderate”
limitations

with

regard

to

Plaintiff’s

abilities

to

interact

appropriately with the public, supervisors, and co-workers, and
responded “no” as to whether there were “any other capabilities
affected by the impairment.” (Id.). Therapist Benz noted that her
-19-

opinions were based on Plaintiff’s own subjective statements about
her “difficulty making decisions without guidance from others.”
(T.680). Again,

as

was

the

case

with

Dr.

Dippert’s opinion,

Therapist Benz’s opinion relied heavily on Plaintiff’s subjective
complaints, which the ALJ found were less than fully credible. And,
as noted above, Plaintiff has not challenged the ALJ’s credibility
analysis on appeal.
N.P. Turk completed a check-the-box form in which he was asked
to

rate

Plaintiff’s

symptoms

and

functional

limitations

as

“intermittent” or “continuous,” and further rate whether they are
“mild,”

“moderate,” or “severe.”

functions

in

which

N.P. Turk indicated two work

Plaintiff

has

“severe”

restrictions—communicating clearly and effectively and initiating
social contacts. (T.686). The ALJ noted that despite N.P. Turk’s
opinion that Plaintiff had severe limitations initiating social
contact (T.686), Plaintiff reported she was increasing her time
spent socializing with friends and family. (T.25, 625). Notably,
N.P. Turk assessed only “mild” limitations in getting along with
strangers, cooperating with others, and exhibiting social maturity;
and only “moderate” limitations in getting along with friends and
family, responding to authority and supervision, responding without
fear toward strangers, and interacting and actively participating
in group activities.
N.P.

Turk

further

opined

that

Plaintiff

experienced

a

deterioration in functioning and was unable to adapt to changing
work demands in response to being exposed to stressful situations,
-20-

and has repeatedly had episodes of decompensation “when feeling
overwhelmed or increase in stress.” (T.687). However, as the ALJ
correctly noted, there is no evidence in the record that Plaintiff
has had any “episodes of decompensation.” To the contrary, as
discussed above, the record indicates that Plaintiff has exhibited
fairly good coping skills when faced with increases in stress, such
as the occasion on which her son underwent emergency surgery.
Here, the ALJ did not entirely disregard N.P. Turk’s and
Therapist Benz’s opinions. Rather, as noted above, he assigned them
“some weight” but declined to adopt the extremely restrictive
portions of the opinions on the basis that they were inconsistent
with the treatment notes and Plaintiff’s activities and statements
about

her

symptoms.

Overall,

the

opinions

of

N.P.

Turk

and

Therapist Benz are not fundamentally inconsistent with the ALJ’s
RFC assessment, which limited Plaintiff to unskilled work that
requires only occasional interactions with the public. SSR 85–15
states that unskilled jobs at all exertion levels “ordinarily
involve dealing primarily with objects, rather than with data or
people,” such that “they generally provide substantial vocational
opportunity for persons with solely mental impairments who retain
the capacity to meet the intellectual and emotional demands of such
jobs on a sustained basis.” SSR 85-15, 1985 WL 56857 at *4; see
also, e.g., Brown v. Colvin, No. 14-cv-1784, 2016 WL 2944151 at *5
(D. Conn. May 20, 2016) (“A limitation to occasional interaction
with others does not significantly limit the range of unskilled
work . . . .”).
-21-

VI.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision was not legally erroneous and is supported
by substantial evidence. It therefore is affirmed. Accordingly,
Defendant’s motion for judgment on the pleadings is granted, and
Plaintiff’s motion for judgment on the pleadings is denied. 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:

December 5, 2017
Rochester, New York.

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