Keys v. Colvin
DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 17 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/29/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LATOSHA M. KEYS,
No. 1:16-CV-00448 (MAT)
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
(“plaintiff”) brings this action pursuant to Titles II and XVI of
the Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security1
(the “Commissioner” or “defendant”) denying her applications for
disability insurance benefits (“DIB”) and supplemental security
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.
reasons discussed below, plaintiff’s motion is denied and the
Commissioner’s motion is granted.
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
Plaintiff protectively filed applications for DIB and SSI on
May 21, 2013, both of which were initially denied.
Transcript (“T.”) 93-114, 139-44, 199-206.
further action on these claims.
Plaintiff took no
On May 21, 2013, plaintiff
filed additional applications for DIB and SSI, alleging disability
from June 12, 2012, due to bipolar disorder, anxiety, dysthymic
T. 207-19, 237.
These applications were also initially
At plaintiff’s request, a hearing was held
before administrative law judge (“ALJ”) Bruce R. Mazzarella on
representative Betty White.
On October 15, 2015, ALJ
Mazzarella issued a decision in which he found that plaintiff was
not disabled as defined in the act.
On April 6, 2016,
This action followed.
III. The ALJ’s Decision
Initially, the ALJ determined that plaintiff met the insured
status requirements of the Act through September 30, 2018.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity from June 12, 2012, the
alleged onset date.
At step two, the ALJ found that plaintiff
suffered from the severe impairments of back strain exacerbated by
obesity and asthma.
The ALJ further found that plaintiff
At step three, the ALJ found that, through the date
last insured, plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of any
Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform medium work as defined in
additional limitations: can sit for two hours at one time; can sit
for up to eight hours in an eight hour day with normal breaks and
meal periods; can stand or walk for two hours at one time in an
eight hour work day with normal breaks and meal periods; can lift
and carry 50 pounds occasionally and 25 pounds frequently; should
not engage in constant stooping, crawling, or kneeling; should not
work in unventilated areas that contain high concentrations of
dusts, fumes, gases, or vapors.
At step four, the ALJ found that plaintiff had no past
At step five, the ALJ concluded that,
considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that plaintiff could perform.
found plaintiff not disabled.
Accordingly, the ALJ
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) (internal quotation
In this case, plaintiff makes two related arguments in support
of her motion for judgment on the pleadings.
contends that the ALJ failed to develop the record regarding her
mental health treatment. Second, the plaintiff argues that, having
failed to develop the record, it was inappropriate for the ALJ to
discount the opinion of her treating psychiatrist Dr. Arvind
For the reasons discussed below, the Court finds that the
ALJ fulfilled his duty to develop the record and appropriately
assessed Dr. Samant’s opinion.
Accordingly, plaintiff’s request
that this matter be remanded for further administrative proceedings
The ALJ Made Reasonable Efforts to Develop the Record
“It is the rule in [the Second] [C]ircuit that ‘the ALJ,
unlike a judge in a trial, must . .
affirmatively develop the
record’ in light of ‘the essentially non-adversarial nature of a
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996) ((quoting Echevarria v. Sec’y of Health & Human Servs., 685
F.2d 751, 755 (2d Cir. 1982)).
In Cruz v. Sullivan, 912 F.2d 8
(2d Cir. 1990), the Second Circuit held that, in connection with
the duty to develop the record, “when the ALJ rejects the findings
supported by specific clinical findings, he should direct a pro se
claimant to obtain a more detailed statement from the treating
Id. at 12.
In this case, plaintiff’s treating psychiatrist Dr. Samant
completed an employability assessment of plaintiff on May 20, 2015.
Dr. Samant stated that plaintiff had been diagnosed
with dysthymic disorder and bipolar disorder and was being treated
with Prozac and Lamictal.
Dr. Samant opined that
plaintiff was “very limited” in her abilities to understand and
remember instructions, carry out instructions, maintain attention
and concentration, make simple decisions, interact appropriately
exhibiting behavioral extremes, and function in a work setting at
a consistent pace.
In his decision, the ALJ afforded
“no significant weight” to Dr. Samant’s opinion, in part because
the treatment records supplied by Dr. Samant did not “support
such extensive limitations.”
Plaintiff argues that this case is analogous to Cruz, and that
remand is therefore required because the ALJ did not instruct her
to seek a more detailed opinion from Dr. Samant.
The holding in Cruz is addressed specifically to
situations in which a claimant is proceeding pro se.
however, plaintiff was represented by Ms. White, a non-attorney.
Plaintiff takes issue with Ms. White’s performance, arguing that
this was Ms. White’s first case, she appeared to be unfamiliar with
the hearing process, and she failed to cross-examine the vocational
expert on plaintiff’s behalf. However, plaintiff has not shown that
Ms. White was unqualified to act as her representative.
Doner v. Comm’r of Soc. Sec., 2017 WL 3172419 (N.D.N.Y.
July 25, 2017) is instructive.
In that case, as in this one, the
plaintiff argued that the ALJ should have treated him as a pro se
claimant because “his non-attorney representative did not provide
Id. at *6.
The Doner court explained
that a non-attorney representative is not required to have any
particular training, and that the qualifications set forth in the
regulations are minimal, requiring only that the individual “is
‘generally known to have good character and reputation,’ [is]
capable of ‘giving valuable help’ with the claim, is not suspended
prohibited by law from acting as a representative.” Id. (quoting
20 C.F.R. § 404.1705(b)). Accordingly, because the plaintiff could
representative] neglected to ask nor the information she failed to
elicit,” plaintiff failed to demonstrate that he should be treated
as a pro se litigant.
Here, like in Doner, plaintiff has failed to demonstrate that
Ms. White was unqualified to act as her representative or that she
failed to elicit necessary information at the hearing.
contrary, the ALJ specifically asked plaintiff if there was any
information that Ms. White had failed to cover and plaintiff said
Plaintiff did express a desire for Ms. White to
testify on her behalf, but the ALJ explained that was the function
of a witness, not a representative.
T. 84-85. Having reviewed the
record, the Court finds that plaintiff has failed to demonstrate
that Ms. White did not have the minimal qualifications necessary to
serve as plaintiff’s non-attorney representative. Accordingly, the
standard set forth in Cruz for pro se parties does not apply here.
substantial efforts to obtain medical records from Dr. Samant. The
ALJ sent requests for evidence to Mid-Erie Counseling and Treatment
(the practice with which Dr. Samant is associated) (“Mid-Erie”) on
both December 4, 2012 and December 5, 2012.
T. 98, 108.
responding by providing medical records, including a letter from
social worker Kim Jones and a treatment plan and medication list
from Dr. Samant.
The ALJ followed up, requesting
additional evidence from Mid-Erie on July 2, 2013 and July 12,
2013. T. 120, 409-428. Mid-Erie did not respond to these requests
with any additional medical records.
The Court finds that the ALJ’s efforts to obtain medical
records from Mid-Erie/Dr. Samant were plainly reasonable.
e.g., Drake v. Astrue, 443 F. App’x 653, 656 (2d Cir. 2011)
(holding that the record demonstrated that the ALJ made reasonable
efforts to develop the record where he sent letters to plaintiff’s
physicians requesting updated medical records and received “several
pages of medical records” in response).
In this case, like in
response to the ALJ’s request, and plaintiff has failed to provide
incomplete. Moreover, the ALJ then took the additional affirmative
Having received no response to these
requests, it was reasonable and appropriate for the ALJ to conclude
that Mid-Erie had provided all the information it had available.
Plaintiff also suggests that she may have received mental
health treatment in the emergency room for which no records were
However, and as the Commissioner notes, there is scant
evidence that such treatment in fact occurred.
Dr. Samant made no
mention of any hospitalization in his employability assessment (see
T. 406-407) and plaintiff gave inconsistent reasons for having
allegedly gone to the emergency room (see T. 274, 291).
hearing, plaintiff made no mention whatsoever of having been seen
in the emergency room for mental health issues, despite extensive
questioning by the ALJ about her treatment.
See T. 57-73.
contrary, the only time plaintiff mentioned being seen in the
emergency room was related to her asthma.
plaintiff has not shown that she was in fact treated in the
emergency room for mental health issues, or that the ALJ should
have been on notice that records regarding such treatment were
Significantly, plaintiff has not presented
any evidence to the Court that such records exist.
For the foregoing reasons, the Court finds that the ALJ
Assessment of Dr. Samant’s Opinion
Plaintiff has also argued that the ALJ erred in affording no
significant weight to Dr. Samant’s opinion.
Again, the Court
Accordingly, and pursuant to the treating physician rule, the ALJ
was required to give controlling weight to his opinion if it was
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2);
see also Green-Younger, 335 F.3d at 106.
An ALJ may give less than
controlling weight to a treating physician's opinion if it does not
meet this standard, but must “comprehensively set forth [his or
her] reasons for the weight assigned to a treating physician’s
opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004);
20 C.F.R. § 404.1527(c)(2) (“We will always give good reasons in
our notice of determination or decision for the weight we give [the
claimant's] treating source's opinion.”).
The ALJ is required to
frequency of examination; the nature and extent of the treatment
relationship; the relevant evidence, particularly medical signs and
laboratory findings, supporting the opinion; the consistency of the
opinion with the record as a whole; and whether the physician is a
specialist in the area covering the particular medical issues” in
determining how much weight to afford a treating physician’s
opinion. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(quotation marks, alterations, and citations omitted); see also
20 C.F.R. §§ 404.1527(c)(1)-(6).
Here, the ALJ gave no significant weight to Dr. Samant’s
opinion because (1) it was inconsistent with the consultative
examinations of record, (2) it was completed in May 2015, but
plaintiff had last been seen by Dr. Samant in October 2014, and
(3) plaintiff’s medical records did not support the extensive
appropriately articulated “good reasons” for the weight afforded to
Dr. Samant’s opinion.
First, with respect to the opinions of the consultative
examiners, “[i]t is well settled that an ALJ is entitled to rely
upon the opinions of consultative examiners, and such written
reports can constitute substantial evidence.”
Cichocki v. Astrue,
2012 WL 3096428, at *6 (W.D.N.Y. July 30, 2012), aff’d, 729 F.3d
172 (2d Cir. 2013).
Here, the ALJ noted that the opinions of the
consultative examiners were supported by documentation of a mental
status examinations and personal observations of plaintiff, and
that the opinions were consistent with the evaluation results.
The ALJ did not err in relying on this evidence.
The ALJ also appropriately took into account the gap between
the date plaintiff last treated with Dr. Samant and the date Dr.
instructed by the regulations to take into account the “frequency
of examination” by the treating physician in assessing his opinion.
Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008); see also
Hemmer v. Colvin, 2016 WL 7425906, at *4 (W.D.N.Y. Dec. 22, 2016)
treatment of plaintiff in assessing his opinion).
the ALJ has the discretion to reject a treating physician’s opinion
where it is “not supported by [his] own treatment notes or other
substantial record evidence.”
Gray v. Colvin, 2015 WL 5005755, at
*5 (W.D.N.Y. Aug. 20, 2015).
Dr. Samant’s opinion, nor is it otherwise persuaded that the ALJ’s
decision was not based on substantial evidence.
plaintiff has again failed to demonstrate that remand is required.
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings motion (Docket No. 11) is denied. The Commissioner’s
motion for judgment on the pleadings (Docket No. 17) 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
September 29, 2017
Rochester, New York.
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