Allen v. Commissioner of Social Security

Filing 17

ORDER denying 10 Motion for Summary Judgment and affirming the Commissioner's decision. Plaintiffs Motion for Judgment on the Pleadings is denied, and Defendants Motion for Judgment on the Pleadings is granted. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/15/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SCOTT RAY ALLEN,
Plaintiff,
DECISION and ORDER
No. 1:16-cv-00273(MAT)

-vsCOMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Scott Ray Allen (“Plaintiff”), represented by counsel, brings
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

(“Defendant”

or

“the

Commissioner”), denying his applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).
PROCEDURAL STATUS
Plaintiff filed applications for DIB and SSI on September 11,
2012 (T.154-166),1 alleging disability beginning on his date of
birth

in

1973.

(T.154,

161).

After

Plaintiff’s

claims

were

initially denied on January 11, 2013 (T.89-96), he timely filed a
written request for hearing on February 24, 2013. (Tr.97-98). On
July 10, 2014, a hearing was held via videoconference before
administrative law judge David J. Begley (“the ALJ”). (T.35-63).
Plaintiff appeared with his attorney and testified, as did an

1

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.

impartial
November

vocational
7,

2014,

expert,
the

ALJ

Stephanie
issued

Archer

an

(“the

unfavorable

VE”).

On

decision.

(T.10-29). Plaintiff requested review by the Appeals Council on
January 24, 2014. (T.7-9). The Appeals Council denied the request
on February 5, 2016, making the ALJ’s decision the final decision
of the Commissioner. (T.1-6). Plaintiff timely filed this action.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
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
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity during
the period at issue. At step two, the ALJ found that Plaintiff had
the

following

disease,

“severe

degenerative

impairments”:
joint

lumbar

disease

of

degenerative

the

left

disc

shoulder,

obstructive sleep apnea, asthma, obesity, borderline intellectual
functioning, attention deficit hyperactivity disorder, and rule-out
anxiety disorder
determined

that

and

cannabis

Plaintiff

abuse.

did

not

At

meet

step
or

three,

equal

any

the

ALJ

listed

impairment. Before proceeding to step four, the ALJ assessed

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Plaintiff as having the residual functional capacity (“RFC”) to
perform
a range of light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b) except he can occasionally
climb, balance, stoop, kneel, crouch, and crawl. He
should not reach overhead with the left upper extremity.
He should avoid concentrated exposure to humidity,
extreme heat and cold, and pulmonary irritants . . . . He
should avoid slippery and uneven surfaces, hazardous
machinery, unprotected heights, and open flames.
Secondary to mental impairments, the claimant can perform
simple, routine, repetitive tasks. He can work in a low
stress job, defined as having no fixed production quotas,
no hazardous conditions, only occasional decision making
required, and only occasional changes in the work
setting.
(T.15, 18).
At step four, the ALJ considered the VE’s testimony from the
hearing

classifying

(Dictionary

of

Plaintiff’s

Occupational

past

Titles

relevant

(“DOT”)

work:

cashier

211.462-101, light

exertion, SVP of 2); and sander (DOT 761.687-010, light exertion,
SVP of 2). (T.60-61). Currently, Plaintiff was working as a salvage
laborer (DOT 929.687-022, medium exertion, SVP of 2). (T.61).
However, the VE testified, Plaintiff was actually performing this
work at the light, not medium, exertional level. Furthermore, the
VE

was

uncertain

whether

it

could

be

considered

competitive

employment, because Plaintiff had a job coach present with him. The
ALJ then had questioned the VE regarding a hypothetical individual
with the above-quoted RFC. The VE testified that such an individual
could perform Plaintiff’s past work as a cashier, but could not
perform his past work as a sander. (T.62).

The VE also had

testified that even assuming the laborer job was competitive, the

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hypothetical

individual

could

do

the

work

as

Plaintiff

is

performing it, but not as it is generally performed in the national
economy.

The

ALJ

relied

on

the

VE’s

testimony

to

find

that

Plaintiff could perform his past work as cashier. Therefore, the
ALJ did not proceed to the fifth step, and entered a finding of not
disabled.
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
correct

legal

standards.

42

U.S.C.

§

405(g).

“Where

the

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

erroneous

view

of

the

law

that

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fails

to

consider

highly

probative evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999).
DISCUSSION
I.

Failure to Properly Weigh Therapist’s Opinion
Plaintiff argues that the ALJ failed to include, in the RFC

and hypothetical posed to the VE, the limitations assigned by

his

therapist, Licensed Master Social Worker Meagan Blowers (“LMSW
Blowers”). On January 23, 2014, LMSW Blowers completed a Mental
Health Assessment sent to her by Plaintiff’s counsel in which she
diagnosed Plaintiff with ADHD and social phobia (T.479-84). She
also

assessed

Plaintiff

as

having

following

limitations:

(1) difficulty concentrating or difficulty thinking, hyperactivity,
easy

distractibility;

(2)

marked

difficulties

in

functioning

independently, appropriately and/or effectively in planning daily
activities

and

initiating

and

independent

of

supervision

and

participating
direction;

in

(3)

activities

difficulty

in

communicating clearly and effectively, getting along with friends,
displaying awareness of others’ feelings, cooperating with others,
exhibiting social maturity, responding to those in authority,
responding without fear to strangers, establishing interpersonal
relationships, avoiding altercations, and interacting and actively
participating

in

concentration

and

associated

with

group
ability

activities;
to

competitive

assume
work;

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(4)

deficiencies

increased
and

(5)

mental

in

demands

withdrawal

from

situations and superficial or inappropriate interaction with peers.
(T.480-83).2
As an initial matter, the Court notes that, as a social
worker, LMSW Blowers is not considered an “acceptable medical
source.” See 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Social
Security Ruling (“SSR”) 06-03p, 2006 WL 2329939 (S.S.A. Aug. 9,
2006). SSR 06-03p states in pertinent part that “only ‘acceptable
medical sources’ can give [the Commissioner] medical opinions.”
2006 WL 2329939, at *2 (citation omitted). Furthermore, “only
‘acceptable medical sources’ can be considered treating sources, .
. . whose medical opinions may be entitled to controlling weight.”
Id. (citations omitted). Nonetheless, opinions from individuals who
are not acceptable medical sources they must be considered by the
adjudicator, since the regulations require the Commissioner to
“consider all relevant evidence in the case record when [she]
make[s] a determination or decision about whether the individual is
disabled.” Id. at *4.
Here, the ALJ did not fail to comply with the applicable
regulations since he did consider LMSW Blowers’ report. However,
the ALJ assigned it only “limited weight” because he found it to be
“inconsistent with the objective evidence of record.” (T.25); see

2

The Court notes that check-box form did not ask the respondent to rate the
levels of deficiencies or difficulties the claimant experienced in the various
functional areas, or relate these limitations to the claimant’s ability to
perform relevant work activities. In Halloran v. Barnhart, 362 F.3d 28 (2d Cir.
2004), the Second Circuit noted the “limited value of the standardized check-box
forms, which are considered only marginally useful for purposes of creating a
reviewable factual record.” Id. at 31, n. 2.

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generally

20 C.F.R.

§§

404.1527(c)(4),

416.927(c)(4)

(medical

assessment that is consistent with the record as a whole is
generally entitled to more weight); Brown v. Comm’r of Soc. Sec.,
No. 3:15-CV-685, 2016 WL 3351021, at *7 (N.D.N.Y. June 14, 2016)
(“Plaintiff also argues that the ALJ failed to give proper weight
to plaintiff’s treating sources, [a physician’s assistant and a
licensed social worker]. . . . However, even analyzing the[se] . .
. opinions under the treating physician standard, this court agrees
with the ALJ that the questionnaires are inconsistent with the
contemporaneous treatment notes and the restrictions contained
therein are not supported by the other evidence in the record,
including the reports of the two consultative psychologist.”). The
ALJ also stated that LMSW Blowers failed to provide “longitudinal
history

of

records

of

treatment,

though

Plaintiff

reportedly

participated in monthly counseling since 2011.” (T.25).
With regard to the ALJ’s comment about the lack of supporting
notes from LMSW Blowers, Plaintiff argues that ALJ disregarded his
“affirmative obligation to develop the administrative record[,]”
Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citations omitted),
by failing to recontact LMSW Blowers and request her notes from
Plaintiff’s therapy sessions. However, the Commissioner did send a
request to LMSW Blowers’ employer, Wyoming County Mental Health
Clinic (“WCMHC”),

requesting

psychiatric

treatment

notes

from

January 1, 2011, forward. The notes that were sent (T., Ex. 2F) did
not include any notes from LMSW Blowers. Plaintiff’s attorney
subsequently sent a request dated May 16, 2014, directly to WCMHC
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asking for “any and all of [WCMHC’s] medical records[,]” which
“should include, but not necessarily be limited to” “[a]dmittance
report(s); [d]ischarge summary(ies); [r]ecords of tests; [r]ecords
of

medications;

and

[p]rogress

notes.”

(T.390).

This

exhibit

appears to duplicate the records provided by WCMHC as a result of
the Commissioner’s records request. Again, there are no notes from
LMSW

Blowers.

Although

the

Commissioner’s

records

request

referenced “psychiatric” notes, the request that was actually sent
by

Plaintiff’s

undoubtedly

counsel

would

have

was

phrased

encompassed

much

more

treatment

broadly

notes

from

and
LMSW

Blowers. The fact that no notes from LMSW Blowers provided in
response to Plaintiff’s counsel’s requests suggests this Court that
such records do not exist. Under the present circumstances, the
Court cannot find that the ALJ failed to properly develop the
record.
Turning to the ALJ’s finding that LMSW Blowers’ report was
inconsistent with the other medical records, the Court finds that
this rationale is supported by substantial evidence. For instance,
the Medical Status Review on October 12, 2012 (T.378), by Thomas E.
Gift, M.D., and Nurse Practitioner Susan Ives (“NP Ives”) at WCMHC,
indicates that Plaintiff’s appearance was neat, his eye contact
good, his mood, euphoric; and his affect, appropriate. Although he
was anxious, he did not have pressured speech; he was not confused,
forgetful or lethargic; and he was alert. (T.378). Based on the
written Progress Notes by NP Ives and Dr. Gift, Plaintiff’s main
complaint was related to his prescription for Viagra, which he said
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did not work. (Id.). Dr. Gift noted, “[Plaintiff] [r]eports doing
well or at least OK in all respects except sexual function. . . .
More composed and poised than typically, but a hint, as before, of
hypomania.

No

new

problems

identified.”

(Id.).

Plaintiff

was

continued on Wellbutrin and Viagra. (Id.).
In a Psychiatric Progress Note dated October 24, 2013 (T.40607), Plaintiff reported to Dr. Gift that his medication (Risperdal)
was “working pretty good,” and he felt it “worke[ed] well 90% of
the time.”3 Plaintiff denied any side effects from the medication.
He characterized his sleep as “fairly good” though he was only
getting about 5 to 6 hours per night. As far as his anxiety, he
tried to go to a Halloween party but “got nervous” and could not go
in, but eventually was able to go into the party once “most of the
people cleared out.” Dr. Gift noted that Plaintiff’s appearance was
“neat” and that he had “good” eye contact. Although Dr. Gift
observed that Plaintiff was “anxious” and “forgetful,” his mood was
“stable,” his affect was “appropriate,” and he was “alert.”
On April 2, 2014, Plaintiff reported to Dr. Gift that he liked
going to hockey games and was “pleased he was able to deal with
people.”

(T.408-09). He still “gets upset over personal things”

and “might cry” “but then gets over it.” He reported that his
medications

were

“working

well.”

Dr.

Gift

again

noted

that

Plaintiff’s appearance was neat and he had good eye contact.
Although Dr. Gift still noted that Plaintiff was “anxious” and
3

At the hearing, when asked how he thought his psychiatric medications were
helping, Plaintiff replied, “Absolutely good. Helping a lot.” (T.54).

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“forgetful,” Plaintiff’s mood remained “stable,” his affect was
“appropriate,” and he was “alert.”
Consultative psychologist Dr. Kavitha Finnity completed a
report (T.385-88) after examining Plaintiff on December 13, 2012,
which similarly does not support LMSW Blower’s extremely limited
assessment. Dr. Kavithy noted that Plaintiff was “cooperative” and
his manner of relating was “adequate”; he was dressed appropriately
and was “well groomed”; his eye contact was “appropriate”; his
affect was of “full range” and “appropriate in speech and thought
content”; his mood was “neutral”; he had “intact” attention and
concentration and was able to perform “serial 3s” accurately; he
successfully performed all recent and remote memory tests; and he
had “fair” insight and judgment. Dr. Finnity opined that despite
cognitive functioning in the below average to borderline range,
Plaintiff “can follow and understand simple directions and perform
simple tasks” though he “has some difficulty with attention and
concentration.” Plaintiff also “can maintain a regular schedule[,]”
“can learn new tasks and perform complex tasks with supervision[,]”
“can make appropriate decisions[,]” and “can relate with others[,]”
though he “has some difficulty dealing with stress.” Dr. Finnity
commented that “[t]he results of the evaluation appear to be
consistent with psychiatric symptoms, but in itself [sic], may not
be significant enough to interfere with [Plaintiff]’s ability to
function on a daily basis.” Indeed, Dr. Finnity’s assessment is not
inconsistent with the progress notes from Plaintiff’s treating
psychiatrist Dr. Gift.

Nor was it inconsistent with the ALJ’s RFC
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assessment that Plaintiff was able to “work in a low stress job,
defined

as

having

no

fixed

production

quotas,

no

hazardous

conditions, only occasional decision making required, and only
occasional changes in the work setting.” (T.18). 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)).
The psychological evaluation and intelligence testing (T.47277) performed by Dr. Robert J. Valenti, Ph.D. on October 18, 2011,
also does not support the severe limitations assigned by LMSW
Blowers. In particular, Dr. Valenti observed that Plaintiff spoke
in “full, relevant, well-articulated sentences, and was a generally
good

personal

historian,

particularly

with

dates

and

placing

personal events in time[;]” had “polite and durable” “eye-to-eye
and eye-to-task contacts[;]” and was “pleasant, attentive and fully
cooperative.” Based on clinical testing that day, Dr. Valenti noted
that, inter alia, Plaintiff had a full scale IQ of 75, “would be to
write and address a simple letter with little to no assistance,”
competently performed basic arithmetic, and understood counting
currency

for

purposes

of

making

simple

purchases.

Although

Dr. Valenti stated that the results of the assessment supported a
DSM-IV diagnosis of Borderline Intellectual Functioning, this, in
and of itself, is not disabling. The Court notes that Plaintiff
does not make any such argument.

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In sum, the Court cannot find that the ALJ committed legal
error in declining to give LMSW Blowers’ report more than “little
weight,” and his reasons for doing so were supported by substantial
evidence in the record.
II.

Failure to Develop the Record Regarding Plaintiff’s Physical
Limitations
Plaintiff contends that the ALJ’s RFC assessment did not

adequately

reflect

his

physical

limitations

related

to

his

degenerative disc disease in the lumbar region of his back. In
evaluating

the

severity

of

Plaintiff’s

back

issues,

the

ALJ

observed that “[o]verall, there is no evidence of debilitating
physical condition(s)[,]” (T.23), and proceeded to note that while
Plaintiff
bifida,

“was
and/or

reportedly
cerebral

born

with

palsy[,]”

‘scoliosis
there

was

[sic],’
“no

spina

record

of

significant treatment or overt concern regarding these conditions.”
(Id.) (citation to record omitted). Plaintiff “was evaluated for
lower back pain around 1996 and he declined lumbar surgery[,]” and
“[s]ubsequently, he did not seek routine medical care for 12 years
until October 2011[.]” (Id.) (citation to record omitted). The ALJ
noted

that

while

a

recent

lumbar

MRI

revealed

lumbar

disc

desiccation, there was no evidence of significant central canal
stenosis, and Plaintiff’s physical examinations generally revealed
that he had a normal gait and station. (Id.) (citation to record
omitted). Relatedly, the ALJ observed, Plaintiff’s health care
providers expressed “no overt concern regarding his pain symptoms

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and he was referred to pain management and physical therapy.”
(Id.).
Plaintiff argues that the ALJ disregarded his duty to develop
the

record

because

he

did

not

question

Plaintiff

about

his

participation in pain management or physical therapy, and failed to
seek records from the appropriate providers. This argument is
without merit.
As an initial matter, the Court notes there were and are no
obvious gaps in the record. At the commencement of the hearing, the
ALJ asked Plaintiff’s attorney if he had an opportunity to review
the record and if so, was it complete. The attorney testified that
he had submitted some information the day prior to the hearing, and
the ALJ confirmed that he had received everything the attorney had
sent. (T.36-37). Furthermore, the Commissioner’s regulations, in
effect at the time of the hearing, provided that when a claimant
has legal representation, the attorney is “obligat[ed] to assist
the

claimant

in

bringing

to

[the

Commissioner’s]

everything that shows that the claimant is

attention

disabled[.]” 20 C.F.R.

§ 404.1740(b)(1) (eff. until Apr. 20, 2015); see also Turby v.
Barnhart, 54 F. App’x 118, 122–23 (3d Cir. 2002). In keeping with
this principle, “[a]lthough the ALJ has the duty to develop the
record, such a duty does not permit a claimant, through counsel, to
rest on the record—indeed, to exhort the ALJ that the case is ready
for decision—and later fault the ALJ for not performing a more
exhaustive investigation.” Maes v. Astrue, 522 F.3d 1093, 1097
(10th Cir. 2008) (citation omitted).
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Here, Plaintiff’s counsel was responsible for ensuring that
the ALJ was aware of any facts favorable to Plaintiff’s claim for
benefits, such as his alleged participation in physical therapy or
pain

management

treatment.

Nevertheless,

Plaintiff’s

counsel

affirmatively represented that the record was complete despite the
fact it did not contain any purported physical therapy or pain
management record. In addition, the attorney had the opportunity to
question Plaintiff after the ALJ completed his questioning, but he
did not ask Plaintiff about what, if any, adjunctive treatments, he
had sought for his back pain. On the present record, the Court
discerns no failure on the part of the ALJ to develop the record.
See Harrison v. Colvin, No. 2:14-CV-00719-TFM, 2014 WL 5148156, at
*5 (W.D. Pa. Oct. 14, 2014) (“If there was something missing from
the record, Plaintiff’s counsel had a duty to bring it to the ALJ’s
attention.

The

Court

will

not

permit

Plaintiff,

through

her

counsel, to ‘rest on the record’ only to ‘later fault the ALJ for
not performing a more exhaustive investigation. . . .’”) (citing
Maes, 522 F.3d at 1098). Furthermore, the Court is satisfied that
substantial

evidence,

including

the

report

by

consultative

physician Dr. Samuel Balderman (T.380-83), supports the ALJ’s RFC
assessment concerning Plaintiff’s physical capabilities.
CONCLUSION
For

the

Commissioner’s

foregoing
decision

reasons,
does

not

the

Court

contain

finds

legal

that

error

and

the
is

supported by substantial evidence. Accordingly, the Commissioner’s
decision is affirmed. Plaintiff’s Motion for Judgment on the
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Pleadings is denied, and Defendant’s Motion for Judgment on the
Pleadings is granted. 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:

February 15, 2017
Rochester, New York.

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