Stevenson v. Colvin

Filing 17

DECISION and ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Defendant's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 5/31/17. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAN RAY STEVENSON,
No. 1:16-cv-00379(MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented

by

counsel,

Dan

Ray

Stevenson

(“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 his
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
Plaintiff filed an application for DIB on November 20, 2012,
alleging disability beginning October 31, 2009. (T.120-26).2 After
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
2

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

-1-

this

application

was

denied

(T.78-81),

Plaintiff

requested

a

hearing, which was held in Buffalo, New York, on August 12, 2014,
by

administrative

law

judge

Timothy

J.

Trost

(“the

ALJ”)

(See T.26-65, 84-85). Plaintiff appeared with his attorney and
testified. The ALJ did not call any witnesses. On December 11,
2014, the ALJ issued an unfavorable decision. (T.9-21). The Appeals
Council denied Plaintiff’s request for review on March 21, 2016,
making the ALJ’s decision the final decision of the Commissioner.
(T.1-4). This timely action followed.
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
The ALJ followed the five-step procedure established by the
Commissioner

for

evaluating

disability

claims.

See

20

C.F.R.

§ 404.1520.
At step one, Plaintiff was found to meet the insured status
requirements of the Act through December 31, 2014. He had not
engaged in substantial gainful activity (“SGA”) since October 31,
2009, the

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alleged onset date.
At step two, the ALJ found that Plaintiff had the following
“severe” impairments: Asperger’s Syndrome, anxiety disorder, and
depressive disorder. (T.14). The ALJ also determined that Plaintiff
has the following non-severe impairments: hypertension, flat feet,
diabetes

mellitus

(type

2),

congestive

heart

failure,

hyperlipidemia, and obesity, but that these impairments fail to
produce more than a minimal effect on Plaintiff’s ability to
perform basic work activities, a finding which Plaintiff does not
contest on appeal.
At

step

three,

the

ALJ

determined

that

Plaintiff’s

impairments, considered singly or in combination, do not satisfy
the criteria of any impairment in the Listings of Impairments, set
forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. (T.15). In
particular,

the

ALJ

considered

the

following

Listings:

12.04

(Affective Disorders), 1.06 (Anxiety-related Disorders), and 12.10
(Autistic Disorder and other pervasive developmental disorders).
With

regard

to

the

“paragraph

B”

criteria

for

these

listed

impairments, the ALJ determined that Plaintiff does not have
“marked” limitations in any domains of functioning. In regards to
activities of daily living, Plaintiff has “mild” restrictions. The
ALJ noted that Plaintiff lives with his parents but he can cook,
clean, launder, manage his medications and grocery shop, dress,
bathe, and groom independently; and he has hobbies and interests

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including Dungeons and Dragons, stop-motion animation, outdoor
survival, reading, and collecting television shows on DVD. In the
area of social functioning, the ALJ found that Plaintiff has “mild”
difficulties. Although Plaintiff reported that he never really had
many friends, the ALJ noted, Plaintiff has been involved in a
Dungeons and Dragons club since 2007, he does see one of the
players outside of meetings, he describes his family relationships
as “okay”, and he can identify basic emotions of other people,
though he has difficulty noticing subtler, non-verbal feedback.
With regard to the ability to maintaint concentration, persistence
or pace, the ALJ found that Plaintiff has “moderate” difficulties
and noted that the record supports “some” of the deterioration
claimed

by

Plaintiff

decompensation,

the

in
ALJ

this

category.

concluded

that

As

for

episodes

Plaintiff

has

of
not

experienced any such episodes at all.
Prior to proceeding to step four, the ALJ assessed Plaintiff
as having the residual functional capacity

(“RFC”) to perform

“essentially the full range of all work activities” with some
“minor” non-exertional limitations due to his Asperger’s Syndrome,
depression and anxiety disorders. In particular, the ALJ determined
that Plaintiff “retains the ability to do the following on a
sustained

basis

in

a

competitive

employment

setting:

learn,

remember and carry out job functions, concentrate upon and attend
to the duties of the job, make appropriate employment-related

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judgments, respond to supervision and co-workers in usual job
settings, deal appropriately with routine changes in the work
setting in a work environment free of unexpected loud noises.”
(T.18).
At step four, the ALJ determined that Plaintiff has past
relevant work

as

a metal

finisher

(performed at

the

“heavy”

exertional level) and a kitchen helper (performed at the “medium”
exertional level). The ALJ noted that Plaintiff worked as a metal
finisher from September 2000, to October 2009; his employment ended
not due to his impairments but because the company he worked for
went out of business following the recession. The ALJ found that
Plaintiff also could perform his past relevant work as a kitchen
helper, which he performed on a part-time basis, but at SGA levels,
from January 1991, to January 2000. (T.20-21).
Because the ALJ found that Plaintiff could perform his past
relevant work, the ALJ did not proceed to step five. Accordingly,
the ALJ 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.

See

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

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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). 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).
DISCUSSION
I.

Failure to Discuss Opinion
(Plaintiff’s First Point)

of

State

Agency

Consultant

Plaintiff asserts that the ALJ committed legal error in
failing to discuss the medical opinion offered by Dr. Totin, a
State agency psychological review consultant, who completed a
psychiatric review technique (“PRT”) and a mental RFC assessment on
April

17,

2013.

404.1527(e)(2)(ii)

(See

T.70-71,

(“State

73-75).

agency

medical

See
and

20

C.F.R.

§

psychological

consultants and other program physicians, psychologists, and other
medical specialists are highly qualified physicians, psychologists,
and other medical specialists who are also experts in Social
Security

disability

evaluation.

Therefore,

administrative

law

judges must consider findings and other opinions of State agency
medical and psychological consultants and other program physicians,
psychologists, and other medical specialists as opinion evidence,
-6-

except

for

the

ultimate

determination

about

whether

you

are

disabled[.]”) (version eff. Aug. 24, 2012 to Mar. 26, 2017).
The Commissioner concedes that neither of these forms by Dr.
Totin were explicitly referenced by the ALJ in his decision.
Nevertheless, the Commissioner argues, this does not mean they were
not considered. See, e.g., Durakovic v. Colvin, No. 3:12–CV–6(FJS),
2014 WL 1293427, at *8 (N.D.N.Y. Mar. 31, 2014) (“[I]t is not
‘require[d] that [the ALJ] have mentioned every item of testimony
presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion
of disability.’”) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040
(2d Cir. 1983) (per curiam) (citation omitted in original); citing
Barringer v. Comm’r of Soc. Sec., 358 F. Supp.2d 67, 79 (N.D.N.Y.
2005) (stating that “‘an ALJ is not required to discuss all the
evidence submitted, and [his] failure to cite specific evidence
does not indicate that it was not considered’”) (quoting Craig v.
Apfel, 212 F.3d 433, 436 (8th Cir. 2000)); other citation omitted).
Here, although the ALJ did not discuss Dr. Totin’s opinion,
the ALJ indicated in his decision that he considered “all of the
evidence” and the “entire record” in making his findings regarding
Plaintiff’s DIB claim. (T.12, 18). See, e.g., Miles v. Harris, 645
F.2d

122,

124

(2d

Cir.

1981)

(“Notwithstanding

the

apparent

inconsistency between the reports of Dr. Delahanty and that of Dr.
Elstein, we are unwilling to require an ALJ explicitly to reconcile

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every

conflicting

shred

of

medical

testimony.

.

.

.

It

is

sufficient that the ALJ noted that he carefully considered the
exhibits presented in evidence in reaching his decision.”).
Even assuming there was legal error, any such error was
harmless insofar as the ALJ’s omission could have had no effect on
the ultimate RFC assessment. As an initial matter, the Court notes
that Dr. Totin was a consultant who only reviewed Plaintiff’s
mental health care records. Since he did not personally examine
Plaintiff, the ALJ presumptively was entitled to accord Dr. Totin’s
entitled to less weight than the opinions issued by the providers
who examined or treated Plaintiff personally. Indeed, the ALJ
assigned significant weight to the opinions of two examining
providers, Dr. Michael Santa Maria and Dr. Greg Fabiano. Dr. Santa
Maria, who evaluated Plaintiff on August 9, 2010 (T.198-05), noted
that

while

Plaintiff

reported

social

anxiety

symptoms,

he

participated in a role playing game group every other Saturday
since 2007. (T.198). He enjoyed reading but was bothered by loud,
unexpected sounds. (T.199). Plaintiff reported to Dr. Santa Maria
that he had a good relationship with his parents. (T.199). He paid
his cable bill by money order and independently bathed, dressed,
cooked, washed laundry, cleaned, managed his medication, and went
grocery shopping, although he did not drive. On examination,
Plaintiff was fully oriented, but made inconsistent eye contact.
(T.200).

Plaintiff

completed

four

-8-

or

five

“serial

seven”

subtractions

from

100

and

five

out

of

five

“serial

three”

subtractions from 50; recalled two of three words after a brief
delay;

and

accurately

completed

three

steps

in

a

three-step

command. He could not spell “world” backward, but could spell it
forward. His speech was normal and there was no evidence of
self-harm or threat of harm to others, or any manic, paranoid, or
delusional

symptoms.

Dr.

Santa

Maria

noted

that

Plaintiff’s

responses were prompt and careful, and Plaintiff was polite and
cooperative. (T.200). Dr. Santa Maria opined that Plaintiff met the
diagnostic criteria for Asperger’s Disorder, and, as a result,
experienced

some

difficulties

with

both

verbal

and

nonverbal

aspects of communication. (T.204). Nonetheless, Plaintiff’s overall
intellectual abilities were in the average range; he demonstrated
strength in verbal aspects of intellect with relative weakness in
some

aspects

Plaintiff

was

of

attention

stronger

in

and

processing

verbal

versus

speed.
nonverbal

In

general,

abilities.

(T.204). In Dr. Santa Maria’s opinion, Plaintiff had the cognitive
capacity to handle certain types of work, including his past work
in metal finishing and kitchen help. (T.205).
Gregory Fabiano, Ph.D., evaluated Plaintiff on February 5,
2013, at the request of the State Agency. Again, Plaintiff reported
that he stopped working because he was let go for budget reasons
and not his work performance or disability. On examination, Dr.
Fabiano noted that Plaintiff was well groomed but had poor eye

-9-

contact. His speech was adequate and his thought process was
coherent; he was able to count, perform simple calculations and do
serial three’s. Plaintiff was able to cook, shop and manage money,
but did not do general cleaning, laundry, drive or use public
transportation.3

Dr.

Fabiano

observed

that

“some

of

his

difficulties were caused by motivation issues as well as some of
his social pragmatic [sic] issues.” Dr. Fabiano was of the opinion
that, notwithstanding his Asperger’s Syndrome and anxiety symptoms,
Plaintiff

could

concentration,

perform

maintain

simple
a

work,

schedule,

maintain

learn

new

attention
tasks,

and

perform

complex tasks, make appropriate decisions, relate adequately with
others and appropriately deal with stress.
Plaintiff

urges

the

Court

to

essentially

disregard

the

foregoing opinions issued by examining physicians Dr. Santa Maria
and Dr. Fabiano, which are not inconsistent with the ALJ’s RFC
assessment, in favor of a select few findings by non-examining
consultant Dr. Totin. In particular, Plaintiff cites Dr. Totin’s
findings in section I of the mental RFC assessment that Plaintiff
has

“moderate”

limitations

in

certain

areas

of

maintaining

concentration and persistence, social interaction, and adaptation.

3

The Court notes that
be relevant to Plaintiff’s
and panic attacks), since
preclude him from cleaning

only the failure to use public transportation could
symptoms from his mental impairments (e.g., anxiety
he has no severe physical impairments which would
and doing laundry at home.

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(T.73-75).4 Here, rather than provide a narrative as contemplated
by POMS DI 24510.060(B)(4), Dr. Totin simply wrote, “see ptrf
[sic]”. (See T. 74-75, referring to T.71). This circular direction
by

Dr.

Totin

back

to

his

PRT

findings

was

not

particularly

illuminating. In any event, it does assist Plaintiff’s argument,
since these findings were not binding on the ALJ.

See 20 C.F.R. §

404.1527(e)(2)(I) (“Administrative law judges are not bound by any
findings made by State agency medical or psychological consultants,
or other program physicians or psychologists.”) (version eff. Aug.
24, 2012 to Mar. 26, 2017). Dr. Totin’s ultimate conclusion, based
on

the

PRT

findings,

was

that

Plaintiff

had

a

“moderate”

psychiatric impairment that would not preclude him from working, a
conclusion which is not at odds with the ALJ’s RFC assessment.
(T.71). Significantly, Dr. Totin found that Plaintiff had no
significant limitations in the following areas: carrying out very
short and simple instructions, carrying out detailed instructions,
maintaining
activities

concentration
within

a

for

schedule,

extended

periods,

performing

maintaining

regular

attendance,

4

The Commissioner explains that this section of the form to which Plaintiff
refers is used to initially rate an individual’s abilities to perform sustained
work activities and, according to Program Operations Manual System (POMS) DI
24510.060(B)(2), is “merely a worksheet to aid in deciding the presence and
degree of functional limitations and the adequacy of documentation and does not
constitute the RFC assessment.” Id. (emphasis omitted). Section III (“Functional
Capacity Assessment”) is where “the actual mental RFC assessment is recorded.”
Id. (emphasis omitted). Section III is a narrative that explains the “conclusions
indicated in Section I, in terms of the extent to which these mental capacities
or functions could or could not be performed in work settings.” POMS DI
24510.060(B)(4).

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making simple-work related decisions, and being punctual within
customary

tolerances,

and

had

only

moderate

limitations

in

sustaining an ordinary routine and working with or in proximity to
others without being distracted by them. (T.74).Dr. Totin then
stated that a low-stress, low-contact setting “would be optimal[.]”
(T.71;

emphasis

argument,

supplied).

Dr. Totin’s

However,

use of

the

contrary

conditional

to

Plaintiff’s

“would

be”

and

description of such a setting “optimal” indicates that this was not
meant to be a mandatory, non-exertional limitation, but rather
would be the most favorable work setting for Plaintiff. In any
event, as noted above, the ALJ was not required to adopt Dr.
Totin’s

recommendation

about

what

would

be

the

ideal

work

environment for Plaintiff.
II.

Erroneous Credibility Assessment (Plaintiff’s Second Point)
Plaintiff contends that the ALJ’s credibility assessment was

the product of legal error and unsupported by substantial evidence.
The ALJ noted Plaintiff’s testimony that he would be unable to
sustain full-time work activity, 8 hours a day, 5 days a week or an
equivalent schedule because (1) he suffers from anxiety and has
panic attacks, (2) has memory problems, (3) he forgets to take his
medications, and (4) his Asperger’s disorder has worsened as he has
gotten older. The ALJ then recited the factors set forth in the
Commissioner’s Regulations to be used when evaluating the intensity
and persistence of a claimant’s subjective complaints and symptoms,

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including

his

frequency,

“daily

and

activities”;

intensity

of

[his]

“[t]he
pain

location,
or

other

duration,
symptoms”;

“[p]recipitating and aggravating factors”; “[t]he type, dosage,
effectiveness, and side effects of any medication . . . taken to
alleviate [his] pain or other symptoms”; “[t]reatment, other than
medication, . . . received for relief of . . . pain or other
symptoms”; “[a]ny measures . . . used to relieve . . . pain or
other symptoms”; and “[o]ther factors concerning [his] functional
limitations and restrictions due to pain or other symptoms.” 20
C.F.R.

§

404.1529(c)(3).

The

ALJ

stated

that

Plaintiff’s

“allegation of total disability is not credible to the extent
alleged[,]” and then proceeded to discuss various items of evidence
in

the

record.

Plaintiff

contends

that

the

ALJ

failed

to

specifically refer to these credibility factors when assessing
Plaintiff’s testimony and failed to provide sufficiently specific
reasons for rejecting the Plaintiff’s subjective complaints.
“[W]hile it is ‘not sufficient for the [ALJ] to make a single,
conclusory statement that’ the claimant is not credible or simply
to recite the relevant factors, [Social Security Ruling 96–7p, 1996
WL 374186, at *2 (S.S.A. July 2, 1996]], remand is not required
where ‘the evidence of record permits [the court] to glean the
rationale of an ALJ’s decision[.]’” Cichocki v. Astrue, 534 F.
App’x 71, 76 (2d Cir. 2013) (unpublished opn.) (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). Here, the ALJ’s

-13-

analysis and organization was not a model of clarity, and the Court
agrees that the ALJ made an ill-advised editorial comment about
Plaintiff’s life trajectory, the Court finds the ALJ’s credibility
discussion was sufficiently specific to meet the requirements
adopted by courts in this Circuit.
As noted above, the ALJ noted that Plaintiff believed he was
disabled from performing full-time work due to his anxiety and
panic attacks, memory problems (e.g., forgetting to take his
medications), and increased symptoms from his Asperger’s Syndrome
as he has aged. The ALJ discussed the opinion of Dr. Drew Messer,
which largely echoed Plaintiff’s subjective complaints regarding
his Asperger’s Syndrome, and found that it was contradicted by
Plaintiff’s “lengthy and steady work record,” which reveals he held
employment as a kitchen helper for 10 years and then a job as a
metal finisher for 9 years, and only stopped working because he was
laid off due to the economic downturn in 2009, not due to any
performance-related

issues on

Plaintiff’s

part.

This evidence

implicates the credibility factor that pertains to the nature and
extent of Plaintiff’s daily activities as well as the “catch all”
category in 20 C.F.R. § 404.1529(c)(3). The ALJ also noted, when
discussing Dr. Messer’s opinion, that he had “infrequent contact”
with Plaintiff. This is an accurate characterization, given Dr.
Messer’s statement that he treated Plaintiff monthly for three
months in 2010, and had then had single sessions with Plaintiff in

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2013 and 2014. (T.316, 313-14, 335). The nature of Plaintiff’s
treatment with Dr. Messer is relevant to the credibility factors
pertaining to the pharmaceutical and other treatment modalities
utilized by Plaintiff in an attempt to alleviate the symptoms of
his mental impairments. Plaintiff’s reported list of medications
does

not

include

any

prescription

drugs

or

non-prescription

remedies for Asperger’s Syndrome or anxiety disorder. In an undated
disability report, Plaintiff stated that he takes the following
medications: amlodipine (a calcium channel blocker), fish oil,
glipizide

(an

anti-diabetic

medication),

hydralazine

(a

vasodilator), iron, lovastatin (a statin), metoprolol (a betablocker),

triamterene

diuretic),

and

vitamin

(a
D.

diuretic),
(T.148).

hydrocholorthiazide
Plaintiff’s

sporadic

(a
and

infrequent appointments with Dr. Messer suggest that the symptoms
from his mental impairments are not as debilitating as he alleges.
See F.S. v. Astrue, No. 1:10-CV-444 MAD, 2012 WL 514944, at *20
(N.D.N.Y.

Feb.

15,

2012)

(“The

Commissioner

may

discount

a

[claimant]’s testimony to the extent that it is inconsistent with
medical evidence, the lack of medical treatment, and activities
during the relevant period.”) (citing Howe-Andrews v. Astrue, No.
CV-05-4539(NG), 2007 WL 1839891, at *10 (E.D.N.Y. June 27, 2007)
(“[T]he Commissioner discounted [the claimant]’s testimony and
affidavit to the extent that they were inconsistent with medical
evidence, the lack of medical treatment, and her own activities

-15-

during

the

relevant

period.

This

conclusion

was

based

on

substantial evidence. . . .As a result, the Commissioner was not in
error in considering but ultimately rejecting [the claimant]’s
complaints and allegations of limitations.”)).
Furthermore, there is substantial support in the record for
the ALJ’s decision to discredit Plaintiff’s subjective statements
that his symptoms were so severe as to be disabling within the
meaning of the Act. In particular, the Court notes that Plaintiff’s
allegations

of

severe

difficulties

in

the

context

of

social

interaction are inconsistent with treatment records from various
providers such as Dr. Santa Maria and Dr. Fabiano, who both stated
that Plaintiff was a good candidate for vocational training, thus
indicating a greater degree of work-related functional ability than
contemplated by Plaintiff’s testimony. See 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).
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is supported by substantial evidence and,
to the extent there is any legal error in the decision, it is
harmless. Therefore, the Court affirms the Commissioner’s decision
denying benefits, grants Defendant’s motion for judgment on the

-16-

pleadings, and denies Plaintiff’s motion for judgment on the
pleadings.

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:

May 31, 2017
Rochester, New York.

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