Robinson v. Colvin
Filing
21
DECISION AND ORDER denying 14 Plaintiff's Motion for Judgment on the Pleadings and 17 Commissioner's Motion is granted. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 7/26/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES EDWIN ROBINSON,
Plaintiff,
-vs-
No. 1:16-CV-00648 (MAT)
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented
by
counsel,
plaintiff
James
Edwin
Robinson
(“Plaintiff”) brings this action pursuant to Title XVI of the
Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security
(the “Commissioner” or “Defendant”) denying his application for
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, Plaintiff’s motion is
denied and the Commissioner’s motion is granted.
II.
Procedural History
Plaintiff filed an application for SSI on December 28, 2012,
alleging disability as of December 1, 2012 due to back injury, knee
injury, high blood pressure, and asthma. Administrative Transcript
(“T.”) 58.
74.
At
Plaintiff’s application was initially denied.
Plaintiff’s
request,
a
hearing
was
held
T. 71before
administrative law judge (“ALJ”) William Weir on September 22,
2015, at which Plaintiff appeared with his representative.
56.
T. 34-
On March 12, 2015, the ALJ issued an unfavorable decision.
T. 17-33. On June 16, 2016, the Appeals Council denied Plaintiff’s
request
for
review,
making
Commissioner’s final decision.
the
ALJ’s
T. 8-14.
determination
the
This action followed.
III. The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied
the
five-step
sequential
§§ 404.1520, 416.920.
evaluation
set
forth
in
20
C.F.R.
At step one of the five-step sequential
evaluation, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since December 28, 2012, the date of
his application.
T. 22.
At step two, the ALJ found that Plaintiff suffered from the
severe impairments of hypertension, major depressive disorder,
substance
abuse
in
apparent
current
remission,
obesity,
and
degenerative joint disease of the knee. Id. The ALJ further found
that Plaintiff’s claimed back problems and asthma were not severe
impairments.
Id.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled
the
severity
of
any
listed
impairment.
Id.
The
ALJ
particularly considered Listings 1.02, 4.00H1, 12.04, and 12.09 in
reaching this conclusion.
T. 22-23.
2
Before proceeding to step four, the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 416.967(b), with the
following additional limitations: must have the option to sit or
stand every half-hour; cannot work in an environment with pulmonary
irritants such as gases, dust, or fumes above OSHA standards; and
can perform the ordinary tasks associated with unskilled work.
T. 24.
At step four, the ALJ found that Plaintiff had no past
relevant work.
testimony
of
T. 29.
a
At step five, the ALJ relied on the
vocational
expert
(“VE”)
to
conclude
that,
considering Plaintiff's age, education, work experience, and RFC,
there were jobs that exist in significant numbers in the national
economy that Plaintiff could perform, including the representative
occupations of stock checker and cafeteria attendant.
T. 29-30.
Accordingly, the ALJ found that Plaintiff was not disabled as
defined in the Act. T. 30.
IV.
Discussion
A.
A
Scope of Review
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).
3
“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
omitted).
Although the reviewing court 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), “[i]f there is substantial evidence to support the
[Commissioner’s] determination, it must be upheld.” Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “The deferential standard
of
review
for
substantial
evidence
Commissioner’s conclusions of law.”
does
not
apply
to
the
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003).
In this case, Plaintiff argues that remand of this matter for
further administrative proceedings is required because (1) the
ALJ’s
mental
RFC
findings
were
not
supported
by
substantial
evidence, (2) the Appeals Council failed to properly consider an
RFC questionnaire completed by registered nurse (“RN”) Alyssa
Sullivan on May 13, 2015, and (3) the ALJ improperly assessed
Plaintiff’s credibility.
The Court has considered these arguments
and, for the reasons set forth below, finds them without merit.
B.
Mental RFC Findings
With respect to the ALJ’s mental RFC findings, Plaintiff
contends that the ALJ erroneously failed to consider the opinion of
state agency reviewing psychologist Dr. J. Echevarria and instead
4
relied on his own lay opinion in failing to limit Plaintiff to a
low stress, low contact work environment. The Court finds, for the
reasons set forth below, that Plaintiff has not shown that remand
for additional consideration of Plaintiff’s mental impairments is
required.
Dr. Echevarria reviewed the medical evidence of record on
April 10, 2013, but did not personally examine Plaintiff.
67.
Dr.
Echevarria
opined
that
Plaintiff
suffered
affective disorder, anxiety, and substance addiction.
indicated
that
Plaintiff
had
moderate
T. 61from
an
T. 62.
He
restrictions
in
his
activities of daily living, moderate difficulties in maintaining
social
functioning,
and
moderate
concentration, persistence, or pace.
difficulties
Id.
in
maintaining
Dr. Echevarria went on
to specifically opine that Plaintiff was not significantly limited
in his ability to remember locations and-work like procedures or to
understand and remember very short and simple instructions, but was
moderately limited in his ability to understand and remember
detailed
instructions.
T.
65.
Dr.
Echevarria
stated
that
“[o]verall, there are moderate limitations in the MRFC,” but that
“[t]he evidence in the file supports the ability to function in a
low stress and low contact environment.”
T. 67.
The Commissioner acknowledges that the ALJ failed to expressly
discuss Dr. Echevarria’s opinion in his decision, but contends that
the error was harmless.
The Court agrees.
5
As a threshold matter, the Court notes that Dr. Echevarria
merely reviewed Plaintiff’s medical record and did not treat or
even
examine
him.
Particularly
with
regard
to
psychiatric
conditions, the opinion of a non-treating, non-examining physician
is of limited value, because “the inherent subjectivity of a
psychiatric
diagnosis
diagnosis
to
requires
personally
the
observe
physician
the
rendering
patient.”
the
Velazquez
Barnhart, 518 F. Supp. 2d 520, 524 (W.D.N.Y. 2007).
v.
Accordingly,
the ALJ was not required to afford any particular deference or
weight to Dr. Echevarria’s opinion.
Moreover, the ALJ’s RFC finding was largely consistent with
Dr. Echevarria’s opinion.
In particular, Dr. Echevarria’s opinion
that Plaintiff was limited to low stress work and had moderate
limitations in maintaining concentration, persistence, or pace is
accounted for in the ALJ’s limitation to unskilled work. See
Tatelman v. Colvin, 296 F. Supp. 3d 608, 613 (W.D.N.Y. 2017) (“it
is
well-settled
that
a
limitation
sufficiently
accounts
for
production
pace”);
see
to
limitations
also
unskilled
relating
work
to
Colon-Torres
.
stress
v.
.
.
and
Colvin,
No. 6:12-CV-1591 GLS, 2014 WL 296845, at *4 (N.D.N.Y. Jan. 27,
2014) (“district courts in this Circuit have held that limiting a
claimant to low stress environments would not prevent them from
performing
unskilled
work”).
There
is
simply
no
basis
for
Plaintiff’s assertion that the ALJ relied on his lay opinion to
reject
Dr.
Echevarria’s
(or
consultative
6
examiner
Dr.
Rachel
Hill’s) opinion that Plaintiff had limitations in dealing with
stress, or Dr. Echevarria’s opinion that Plaintiff had moderate
limitations in concentration, persistence, and pace.
To the
contrary, the ALJ expressly found that Plaintiff that moderate
difficulties with concentration, persistence, and pace, but was
nevertheless
capable
of
performing
unskilled
work.
T.
23.
Similarly, the ALJ expressly noted that Dr. Hill had indicated
Plaintiff had “difficulties dealing with stress,” and found that
her opinion was consistent with Plaintiff’s ability to perform
unskilled tasks.
he
did
not
T. 27.
ignore
or
It is clear from the ALJ’s decision that
reject
the
medical
evidence
regarding
Plaintiff’s stress tolerance and ability to maintain concentration,
persistence and pace, but instead considered it, and accounted for
Plaintiff’s limitations by limiting him to unskilled work.
The only aspect of Dr. Echevarria’s opinion that the ALJ
arguably failed to include in his RFC finding is the limitation to
a “low contact” environment.
However, the inclusion of such a
limitation would not have changed the outcome in this matter.
The
representative occupations identified by the VE in this case
(namely, stock checker and cafeteria attendant) do not require more
than occasional, brief contact with others.
See, e.g., Seamon v.
Astrue, 364 F. App’x 243, 249 (7th Cir. 2010) (the position of
cafeteria attendant requires only “brief contact with others”);
Carrozza v. Comm’r of The Soc. Sec. Admin., No. CV 15-4737, 2016 WL
3901010,
at
attendant’
*3
(E.D.
position
in
Pa.
the
July
DOT
7
19,
2016)
does
not
(“[T]he
‘cafeteria
require
more
than
occasional
interaction
with
people.”);
Lester
v.
Astrue,
No. 6:10-CV-00182-SI, 2011 WL 6013842, at *9 (D. Or. Dec. 2, 2011)
(“The DOT . . . describes the personal interaction required for
[the]
job
[of
stock
checker]
as
‘not
significant,’
and
its
narrative of job duties does not specify any direct contact with
customers.”).
in
Dr. Echevarria’s assessment of moderate limitations
Plaintiff’s
ability
to
interact
with
the
general
public
therefore would not prohibit Plaintiff from engaging in these
occupations.
Remand is accordingly not warranted on this basis.
See Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)(“Remand is
unnecessary . . . [w]here application of the correct legal standard
could lead to only one conclusion.”) (internal quotation omitted
and alteration in original).
C.
Consideration of RN Sullivan’s Opinion
Plaintiff next contends that the Appeals Council failed to
properly
consider
RN
Sullivan’s
opinion,
which
was
completed
approximately two months after the ALJ issued his decision and
submitted to the Appeals Council on July 17, 2015.
RN Sullivan, an employee of Horizon Health Services, completed
a Mental Residual Functional Capacity Questionnaire related to
Plaintiff on May 13, 2015 .
T. 373-78.
RN Sullivan indicated that
Plaintiff had been “successfully discharged from the program” in
February 2015, but had subsequently returned in March 2015, because
he was having trouble coping with his depression and life stresses.
T. 373.
Plaintiff was not taking any psychotropic medication at
the time RN Sullivan completed the questionnaire.
8
Id. When asked
to describe the “clinical findings including results of mental
status examination that demonstrate the severity of your patient’s
mental impairment and symptoms,” RN Sullivan noted only that
Plaintiff “reports suffering from moderate/severe depression” with
“some auditory and visual hallucinations during times of distress.”
Id.
RN Sullivan indicated that Plaintiff might be able to manage
his symptoms “through the use of increased coping skills and
medication.” Id.
provide
Throughout the questionnaire, when asked to
“medical/clinical
findings”
to
support
her
assessed
limitations, RN Sullivan provided only Plaintiff’s own report of
his symptoms.
T. 375-77.
RN Sullivan ultimately opined that
Plaintiff was unable to engage in full-time competitive employment
on a sustained basis.
T. 381.
In its decision denying Plaintiff’s request for review, the
Appeals Council stated that it had considered RN Sullivan’s opinion
and concluded that it did not “provide a basis for changing the
Administrative Law Judge’s opinion.”
T. 9.
Plaintiff contends
that the Appeals Council was required to explicitly consider RN
Sullivan’s
opinion
rejected it.
and
to
provide
“good
reasons”
for
having
The Court disagrees.
As a threshold matter, it is not clear from the face of RN
Sullivan’s opinion that it is related to Plaintiff’s functioning
during the time period considered by the ALJ.
decision on March 12, 2015.
The ALJ entered his
RN Sullivan did not complete the
questionnaire until May 13, 2015, two months later.
Sullivan
indicated
that
Plaintiff
9
had
been
Moreover, RN
“successfully
discharged” from Horizon Health Services’ program in February 2015,
but had
returned
in March
2015,
due
to
increased
difficulty
handling his depression. T. 373. It thus appears that Plaintiff’s
mental health began deteriorating in March 2015, the same month the
ALJ issue his decision.
Moreover, the actual opinion itself sets
forth Plaintiff’s capacity as of May 2015, with no indication that
Plaintiff’s condition had remained static over time.
existence
of
a
pre-existing
disability
can
be
“While the
proven
by
a
retrospective opinion, such an opinion must refer clearly to the
relevant period of disability and not simply express an opinion as
to the claimant’s current status.” Vitale v. Apfel, 49 F. Supp.2d
137, 142 (E.D.N.Y. 1999).
Here, RN Sullivan’s opinion does not
“clearly” indicate that it is related to Plaintiff’s condition
prior to March 12, 2015, and so the Appeals Council did not err in
concluding that it would not have changed the ALJ’s decision.
Moreover, even assuming that RN Sullivan’s opinion was meant
to apply retrospectively, Plaintiff has failed to show that the ALJ
erred in its assessment. A claimant may submit new evidence to the
Appeals Council following an adverse ALJ disability determination
without any
showing
of
good
cause. 20
C.F.R.
§§
404.970(b),
416.1470(b). The regulations provide that the Appeals Council
“shall” consider “new” and “material” evidence that relates to the
period on or before the date of the ALJ hearing decision. 20 C.F.R.
§§ 404.970(b), 416.1470(b). A claimant must show that the proffered
evidence is (1) “‘new’ and not merely cumulative of what is already
in the record,” and that it is (2) “material, that is, both
10
relevant to the claimant’s condition during the time period for
which benefits were denied and probative.” Lisa v. Sec’y of Health
& Human Servs., 940 F.2d 40, 43 (2d Cir. 1991) (internal citations
omitted). “The concept of materiality requires, in addition, a
reasonable possibility that the new evidence would have influenced
the [Commissioner] to decide claimant’s application differently.”
Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (citing Tirado
v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).
In this case, the Appeals Council properly found that RN
Sullivan’s opinion was not material, inasmuch as there was no
reasonable possibility that it would have changed the outcome of
the ALJ’s decision.
First, RN Sullivan is not an acceptable
medical source under the Commissioner’s regulations, but is an
“other source,” whose opinion is entitled to no particular weight
or deference.
Second, RN Sullivan’s opinion appears to be based
entirely on Plaintiff’s self-report and not on any medical or
clinical findings. A claimant’s subjective complaints are not
transformed into relevant medical opinion simply because they are
recorded by a treatment provider.
App'x 28, 31 (2d Cir. 2014).
See Polynice v. Colvin, 576 F.
This is particularly true where, as
in this case, the ALJ has appropriately found that the claimant is
not credible.
See Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir.
2012); see also Harris v. Astrue, No. 10 CIV. 6837 GBD THK, 2012 WL
995269, at *3 (S.D.N.Y. Mar. 26, 2012) (treatment provider’s
opinion
properly
discounted
where
it
is
“based
Plaintiff’s unreliable self-reported symptoms”).
11
primarily
on
Third, RN Sullivan’s opinion is unsupported by the treatment
records and medical evidence from the relevant time period. To the
contrary, Plaintiff’s records from Horizon Health Services indicate
that a mental status examination performed on April 4, 2013, showed
that Plaintiff’s behavior was appropriate, his speech was normal in
amount and clarity, his thought processes were goal-directed, he
had no delusions, his judgment, concentration, and insight were
fair, his orientation was normal, and his memory was intact.
T. 267.
Similarly, on April 20, 2013, Plaintiff’s behavior and
affect were appropriate, his speech was normal in rate, tone,
amount, and clarity, his thought processes were logical and goaldirected, he had no delusions and normal perceptions, his judgment,
concentration, and insight were fair, his orientation was normal,
and his memory was intact.
T. 273.
Similar observations were made
on May 29, 2013 (T. 279), July 23, 2013 (T. 288), and September 17,
2013 (T. 291-92). These largely normal findings are not consistent
with the severe restrictions set forth in RN Sullivan’s opinion,
nor did RN Sullivan identify any medical evidence to support her
conclusions.
Under these circumstances, the Appeals Council did
not err in concluding that RN Sullivan’s opinion was not material.
Accordingly, it was not required to expressly weigh the opinion or
to articulate “good reasons” for its assessment thereof.
D.
Assessment of Plaintiff’s Credibility
Plaintiff’s final argument is that the ALJ failed to properly
assess his credibility.
Again, the Court finds this argument
without merit.
12
In assessing a claimant’s credibility, an ALJ is instructed to
consider whether his subjective claims of pain are “consistent with
the medical and other objective evidence.” Wells v. Colvin, 87 F.
Supp. 3d 421, 431 (W.D.N.Y. 2015). “The ALJ’s decision must contain
specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the [ALJ] gave to the individual’s statements and the
reasons for that weight.” Cichocki v. Astrue, 534 F. App’x 71, 76
(2d Cir. 2013) (internal quotation omitted). An ALJ is entitled to
great deference when making credibility findings and can only be
reversed if those findings are patently unreasonable. Andrisani v.
Colvin, No. 1:16-CV-00196 (MAT), 2017 WL 2274239, at *3 (W.D.N.Y.
May 24, 2017). “Because the ALJ has the benefit of directly
observing a claimant’s demeanor and other indicia of credibility,
his decision to discredit subjective testimony is entitled to
deference and may not be disturbed on review if his disability
determination is supported by substantial evidence.” Hargrave v.
Colvin, No. 13–CV–6308(MAT), 2014 WL 3572427, at *5 (W.D.N.Y.
July 21, 2014) (internal quotation omitted).
In this case, the ALJ found that Plaintiff’s subjective
complaints were less than fully credible because (1) Plaintiff had
been inconsistent in his statements to his treatment providers
regarding his education, variously claiming to have finished only
the fifth, sixth, ninth, and tenth grades, and had claimed that his
last drug use was in December 1995 when he had previously admitted
13
to using Ecstasy in 2012 and had gone through chemical dependence
treatment that same year, (2) Plaintiff’s claim that he suffered
from knee and back problems was unsupported by the medical record,
inasmuch as “diagnostic testing” was “negative in every instance”
(T. 26), (3) Plaintiff’s treatment had been conservative, and his
providers had recommended that he engage in extensive workouts
several times per week, (4) Plaintiff continued to smoke cigarettes
in spite of his claimed lung problems, and (4) Plaintiff’s vague
claims of auditory hallucinations were not consistent with the
medical record.
The Court finds no basis for remand in the ALJ’s assessment of
Plaintiff’s credibility.
First, the ALJ appropriately relied on
inconsistent statements by Plaintiff to determine that he was less
than fully credible.
See, e.g., Rock v. Colvin, 628 F. App’x 1, 3
(2d Cir. 2015) (inconsistencies between claimant’s allegations at
hearing
and
prior
statements
supported
adverse
credibility
finding); Harris, 2012 WL 995269 at *2 (inconsistencies in a
claimant’s testimony “provide substantial evidence supporting the
ALJ’s credibility determination”).
Moreover, conflicts between a claimant’s testimony and the
objective medical evidence of record are properly considered in
assessing credibility.
See Rock, 628 F. App’x at 3.
In this case,
the ALJ correctly observed that although Plaintiff claimed to
suffer from knee and back injuries, there was no diagnostic or
other objective evidence that supported those claims. To the
14
contrary, x-rays performed on May 12, 2013 showed a “normal lumbar
spine” and a “normal right knee.”
T 256.
The ALJ also did not err in noting that Plaintiff’s treatment
was
conservative.
A
conservative
pattern
of
treatment
is
an
appropriate factor to consider in assessing credibility. See, e.g.,
Rivera v. Colvin, No. 1:14-CV-00816 MAT, 2015 WL 6142860, at *6
(W.D.N.Y. Oct. 19, 2015) (“[T]he ALJ was entitled to consider
evidence that [the claimant] pursued a conservative treatment as
one
factor
in
determining
credibility[.]”)(citation
omitted);
Amoroso v. Colvin, No. 13-CV-5115 SJF, 2015 WL 5794226, at *10
(E.D.N.Y. Sept. 30, 2015) (ALJ “properly considered [claimant’s]
daily activities ... and her ‘conservative’ treatment ... which
both suggest that she is capable of performing sedentary work”).
In this case, not only did Plaintiff’s treating physicians provide
only conservative treatment, they also affirmatively encouraged him
to
engage
in
extensive
exercise,
a
recommendation
that
is
incompatible with Plaintiff’s claims of disabling knee and back
conditions.
The
ALJ
See T. 341.
also
appropriately
found
that
Plaintiff’s
allegations of auditory hallucinations were not credible.
vague
As the
ALJ noted, Plaintiff’s own mental health counselor observed that
she suspected Plaintiff was potentially “malingering or . . .
trying to garner sympathy.”
T. 217.
Finally, the Court acknowledges that the addictive nature of
nicotine may cause an individual to keep smoking even against a
doctor’s advice.
However, even if it was error for the ALJ to
15
consider
Plaintiff’s
failure
to
cease
smoking
in
considering
Plaintiff’s credibility, such error was harmless in light of the
numerous other well-supported reasons (set forth in detail above)
that the ALJ articulated for finding Plaintiff less than fully
credible.
In sum, the Court finds that the ALJ adequately identified and
explained
credible.
his
reasons
for
finding
Plaintiff
less
than
fully
The Court therefore finds no basis to disturb the
Commissioner’s denial of Plaintiff’s claim.
V.
Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 14) 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
Dated:
July 26, 2018
Rochester, New York.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?