Lange v. Colvin
DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 8 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/25/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BETHANY A. LANGE,
No. 1:16-CV-00002 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Bethany A. Lange (“plaintiff”) brings
this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying her
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
The record reveals that in September 2012, plaintiff (d/o/b
January 18, 1975) applied for DIB and SSI, alleging disability as
of December 1, 2011. After her applications were denied, plaintiff
requested a hearing, which was held before administrative law judge
Bruce Mazzarella (“the ALJ”) on May 21, 2014. The ALJ issued an
unfavorable decision on October 8, 2014. The Appeals Council denied
review of that decision and this timely action followed.
III. Summary of the Record
The relatively sparse record reveals that plaintiff treated
with Dr. Leeland Jones since approximately May 28, 2010. Dr. Jones
diagnosed plaintiff with major depressive disorder, panic disorder,
Dr. Jones’ treatment records reveal complaints of panic attacks,
depression, and trouble sleeping. Dr. Jones’ notes do not reveal
condition fluctuated. For example, in September 2011 it was noted
that plaintiff was “doing better” but had gained 15 pounds in two
months, whereas a July 3, 2012 treatment note indicated that
(Dr. Jones prescribed her a different antidepressant).
Dr. Jones submitted two medical assessments of plaintiff’s
functioning. In the first, dated July 18, 2011, he reported that
plaintiff was making “good progress” in her psychiatric treatment,
but she was “unable to work [at that] time.” T. 217. Dr. Jones
opined that plaintiff was moderately limited in her ability to
appropriate behavior without exhibiting behavioral extremes. He
opined that she was very limited in functioning in a work setting
January 16, 2012, he opined that plaintiff was limited as described
above, but was additionally very limited in that she experienced
examination at the request of the state agency on November 21,
2012. Plaintiff reported that she was attending beauty school. She
indicated that due to a domestic violence incident, she suffered
from panic attacks associated with PTSD. On MSE, plaintiff’s affect
was flat and her recent and remote memory skills were mildly
impaired, but otherwise the results were unremarkable. Dr. Fabiano
directions and instructions, perform simple tasks independently,
maintain attention and concentration, maintain a regular schedule,
psychiatric problems, in themselves, did not appear significant
enough to interfere with plaintiff’s functioning on a daily basis.
On December 7, 2012, state agency psychologist Dr. Daniel
Mangold reviewed plaintiff’s record and opined that plaintiff
competitive work,” and her “ability to deal with co-workers and the
public would be somewhat reduced, but adequate to handle brief and
appropriately to supervision would be reduced, but adequate to
setting.” T. 93.
assessments indicate that plaintiff continued to treat at his
office, with nurse practitioner (“NP”) Sarah Conboy, through March
unremarkable. In September 2013, NP Conboy noted that plaintiff was
“doing well” and had “made a salon in her house” T. 257. In
relationships were good and that she was considering working toward
a state board exam in cosmetics. Through the latest treatment note
in March 2014, plaintiff reported that she was doing well and
working toward her board exam.
On May 8, 2014, NP Conboy completed two reports on plaintiff’s
ability to perform work-related activities which were cosigned by
Dr. Jumaid Hashim. The reports indicated that NP Conboy had treated
plaintiff monthly since December 2012. NP Conboy opined that
plaintiff was “[s]eriously limited, but not precluded,”1 from
remembering work-like procedures, maintaining attention for a two-
The form defines this term as “seriously limited and less than
satisfactory, but not precluded,” with a “substantial loss of ability to perform
the work-related activity.” T. 266. The term “[u]nable to meet competitive
standards” is defined as inability to “satisfactorily perform this activity
independently, appropriately, effectively and on a sustained basis in a regular
work setting.” Id.
customary within customary tolerances. T. 266. She opined that she
was “[u]nable to meet competitive standards” in completing a normal
workday or week without interruptions from psychologically-based
satisfactory” in various other areas of functioning. Id. In a
handwritten comment, it was noted that plaintiff’s “condition [was]
improving but very possible for decline [with] change in stress,”
and “[a]t [that] time [working] [was] not deemed best for her
mental health.” T. 267.
NP Conboy noted that plaintiff was prescribed Adderall and
Trazodone and was responding well to the Aderall. She noted that
plaintiff did not “do well under pressure.” T. 268. In NP Conboy’s
opinion, plaintiff was moderately limited in maintaining social
functioning; markedly limited in concentration, persistence, or
decompensation within a 12-month period.
The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. § 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since December 1, 2011, the alleged
onset date. At step two, the ALJ found that plaintiff had the
following medically determinable impairments: post-traumatic stress
disorder (“PTSD”) and attention deficit hyperactivity disorder
(“ADHD”). At step three, the ALJ found that plaintiff’s impairments
did not meet or medically equal a listed impairment.
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels but that she
was limited to “simple repetitive routine tasks” and could have
“only occasional contact with the general public and co-workers.”
T. 24. At step four, the ALJ found that plaintiff was unable to
perform any past relevant work. At step five, the ALJ determined
that considering plaintiff’s age, education, work experience, and
plaintiff could perform. Accordingly, he found her not disabled.
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.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Development of the Record
Plaintiff contends that the record is not fully developed,
arguing that treatment notes from Dr. Hashim are missing. As noted
above, NP Conboy indicated in a May 8, 2014 report that plaintiff
plaintiff’s assertion, however, these notes appear in the record.
See T. 247-265. In fact, NP Conboy’s treatment notes constitute a
large part of the relatively scant substantive medical evidence in
the administrative record. Plaintiff herself testified that she had
never treated with Dr. Hashim, but treated with NP Conboy first at
Dr. Jones’ office and then at Dr. Hashim’s office. See T. 52-53.
prescribing her medication. It is clear from a review of the record
that it is complete, with no obvious gaps, and therefore the ALJ
did not err in failing to develop the record as plaintiff argues.
See Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[W]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.”) (internal quotation marks omitted).
Plaintiff argues that the ALJ impermissibly substituted his
own judgment for medical opinion evidence and that therefore the
RFC finding was unsupported by substantial evidence. Specifically,
plaintiff contends that the only opinion to which the ALJ gave
significant weight, the consulting examining opinion Dr. Gregory
discussed below, however, the Court finds that the RFC finding was
based on substantial evidence in the record.
The ALJ gave “significant” weight to Dr. Fabiano’s consulting
examining opinion, which, as noted above, opined that plaintiff had
no limitations whatsoever related to mental functioning. The ALJ
noted that he gave the opinion significant weight because it was
“consistent to what [plaintiff] told her treating sources” and
generally consistent with Dr. Fabiano’s examination of plaintiff.
T. 26.2 The ALJ stated that he did not give “controlling” weight to
the opinions of plaintiff’s treating sources or Dr. Mangold,
because he found the opinions were “inconsistent with treatment
notes of [plaintiff] in cosmetology school and improvement.” T. 25.
The ALJ also found these opinions “inconsistent with admitted
ADL’s[,] [her] ability to care for [her] boyfriend who was disabled
by back surgery and grandmother in nursing home[,] no psychiatric
symptoms found and a Global Assessment of Functioning (GAF) score
Notably, the ALJ did not say that he rejected these opinions
entirely, but merely that he gave them less than controlling
Although the ALJ should have stated with more specificity the
weight given to the opinions of plaintiff’s treating physicians and
Dr. Mangold, his RFC is nevertheless supported by substantial
evidence in the record. This evidence includes Dr. Fabiano’s
opinion containing no restrictions, as well as the opinions of the
treating sources and Dr. Mangold that plaintiff had limitations in
handling routine tasks and contact with others – limitations which
Although in weighing the opinion the ALJ stated that Dr. Fabiano “opined
that [plaintiff’s psychiatric symptoms] would significantly interfere with her
ability to function” (emphasis added), elsewhere in the ALJ’s decision he noted
that Dr. Fabiano in fact opined the opposite, and based on the outcome of the
decision, it appears that the above quoted text was a typographical error. T. 26.
the ALJ included in the RFC. See Petrie v. Astrue, 412 F. App’x
401, 405 (2d Cir. 2011) (“The report of a consultative physician
may constitute . . . substantial evidence.”) (citing Mongeur v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (per curiam)); Younes
(“Consultative opinions can be afforded even greater weight than
treating-source opinions when there is good reason to reject
treating source opinion, and substantial evidence supports them.”)
(citing SSR 96-6p (“In appropriate circumstances, opinions from
program physicians and psychologists may be entitled to greater
weight than the opinions of treating or examining sources.”)).
While the “ALJ cannot arbitrarily substitute his own judgment
for a competent medical opinion,” Rosa, 168 F.3d at 79, “the ALJ’s
RFC finding need not track any one medical opinion.” Id.; see
O’Neil v. Colvin, 2014 WL 5500662, *6 (W.D.N.Y. Oct. 30, 2014)
(citing Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)
(“Although [an] ALJ’s conclusion may not perfectly correspond with
any of the opinions of medical sources cited in his decision, he
[is] entitled to weigh all of the evidence available to make an RFC
finding that [is] consistent with the record as a whole.”)).
Accordingly, the Court finds that the RFC finding was based on
substantial evidence in the record.
Failure to Account for Limitations Related to Stress
limitations related to stress in the RFC finding. “Because stress
is highly individualized, mentally impaired individuals may have
difficulty meeting the requirements of even so-called low-stress
jobs, and the Commissioner must therefore make specific findings
about the nature of a claimant’s stress, the circumstances that
trigger it, and how those factors affect his ability to work.”
Stadler v. Barnhart, 464 F. Supp. 2d 183, 189 (W.D.N.Y. 2006)
(internal quotation marks omitted) (citing SSR 85–15); see also
Welch v. Chater, 923 F. Supp. 17, 21 (W.D.N.Y. 1996) (“Although a
particular job may appear to involve little stress, it may, in
fact, be stressful and beyond the capabilities of an individual
with particular mental impairments”).
The opinions given by plaintiff’s treating sources indicate
that, in their estimation, plaintiff had problems dealing with
stress. However, the consulting examiner opined that plaintiff
could adequately deal with stress in the workplace. Moreover, as
the ALJ reasoned, plaintiff’s treatment notes were inconsistent
with the restrictive opinions given by Dr. Jones and NP Conboy. As
the ALJ noted, treatment notes indicated that plaintiff attended
and graduated from cosmetology school and worked inside and outside
of her home at points during the relevant time period, including
part-time work at a grocery store. Moreover, treatment notes
examinations were recorded. The Court thus finds that on the facts
of this particular record, the ALJ did not commit reversible error
in failing to specifically address plaintiff’s stress in the RFC
finding. See, e.g., Kotasek v. Comm’r of Soc. Sec., 2009 WL
1584658, *13 (June 3, 2009) (ALJ’s RFC finding, which limited
evidence where medical opinions indicated that plaintiff had stress
stemming from social phobias); see also Steffens v. Colvin, 2015 WL
9217058, *4 (W.D.N.Y. Dec. 16, 2015).
For the foregoing reasons, the ALJ’s finding that plaintiff is
not disabled is supported by substantial evidence in the record.
Plaintiff’s motion for judgment on the pleadings (Doc. 7) is
therefore denied and the Commissioner’s motion (Doc. 8) is granted.
The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
April 25, 2017
Rochester, New York.
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