Kathleen Sullivan for Danielle Joan Sullivan (deceased) v. Commissioner of Social Security
DECISION AND ORDER denying 5 Plaintiff's' Motion for Judgment on the Pleadings; granting 7 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/30/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KATHLEEN SULLIVAN, o/b/o Danielle
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Plaintiff Kathleen Sullivan (“plaintiff”) brings this action
(“claimant”), 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 claimant’s applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”). Presently before
the Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
For the reasons set forth below, plaintiff’s motion is
denied and defendant’s motion is granted.
Claimant protectively filed applications for DIB and SSI on
November 15, 2012, alleging disability beginning September 1, 2012
due to bipolar disorder, depression, anxiety, panic attacks, posttraumatic stress disorder, obsessive compulsive disorder, kidney
problems, ovarian cysts, drug rehabilitation, and uterine bleeding.
applications were initially denied, and she timely requested a
hearing before an administrative law judge (“ALJ”), which occurred
on December 18, 2014, before ALJ Robert T. Harvey.
February 5, 2015, ALJ Harvey issued a decision in which he found
claimant not disabled as defined in the Act.
timely filed a request for review with the Appeals Council.
While the matter was pending before the Appeals Council, claimant
died from a prescription drug overdose.
mother, was substituted on her behalf.
The Appeals Council denied
claimant’s request for review on August 4, 2016, rendering the
ALJ’s determination the Commissioner’s final decision.
Plaintiff subsequently commenced the instant action.
The ALJ’s Decision
Initially, the ALJ found that claimant met the insured status
requirements of the Act through December 31, 2017.
step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ found that claimant had not engaged
in substantial gainful activity since September 1, 2012, the
alleged onset date.
At step two, the ALJ found that claimant
depression, and bipolar disorder, and non-severe impairments of
asthma, hypertension, hypothyroidism, and obesity.
step three, the ALJ found that claimant did not have an impairment
or combination of impairments that met or medically equaled a
Before proceeding to step four, the ALJ
found that claimant retained the residual functional capacity
(“RFC”) to perform all exertional activities consistent with the
broad world of work, with the following non-exertional limitations:
cannot work in areas with unprotected heights; cannot work around
heavy, moving, or dangerous machinery; no climbing ropes, ladders,
or scaffolds; occasional limitations in the ability to interact
appropriately with the general public, to respond appropriately to
changes in a work setting, and in dealing with stress.
step four, the ALJ found that claimant was unable to perform any
past relevant work.
At step five, the ALJ found that,
considering claimant’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that claimant could perform.
Accordingly, the ALJ
found that claimant was not disabled as defined in the Act.
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
Here, plaintiff makes the following arguments in favor of her
motion for judgment on the pleadings: 1) the ALJ violated the
treating physician rule by giving little weight to the opinion of
claimant’s treating physician Dr. Alfred Belen; 2) the ALJ failed
to properly consider whether claimant’s substance abuse was the
cause of her disability; and 3) the ALJ failed to properly consider
whether claimant’s medical impairments met the requirements for
Medical Listings 12.04 and 12.06. For the reasons discussed below,
the Court finds these arguments without merit.
The ALJ did not Violate the Treating Physician Rule
controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
§ 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106.
may give less than controlling weight to a treating physician's
“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
The ALJ is required to consider “the length of the
treatment relationship and the 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).
In this case, Dr. Belen completed a medical source statement
dated January 7, 2014, in which he opined that plaintiff suffered
from bipolar disorder, depression, anxiety, cannabis abuse, and
Dr. Belen indicated in his medical source
statement that plaintiff’s impairments or treatments would cause
her to be absent from work less than once a month, but that she had
poor or no ability to: carry out simple instructions; maintain
attention for two hour segments; sustain an ordinary routine
without special supervision; complete a normal workday and workweek
without interruptions from psychologically based symptoms; perform
at a consistent pace without an unreasonable number and length of
rest periods; accept instructions and respond appropriately to
criticism from supervisors; get along with co-workers or peers
without exhibiting behavioral extremes; respond appropriately to
changes in a routine work setting; deal with normal work stress; be
aware of normal hazards and take precautions; set realistic goals
or make plans independently of others; interact appropriately with
moderate restriction in her activities of daily living and moderate
difficulties in maintaining social functioning, often experienced
deficiencies in maintaining concentration, persistence, or pace,
and had experienced episodes of decompensation once or twice.
In his decision, the ALJ gave little weight to Dr. Belen’s
contradictory and unsupported by the medical evidence of record.
The Court agrees with the ALJ, and finds that he adequately
explained his determination that Dr. Belen’s opinion was entitled
to less than controlling weight.
“A [treating] physician’s opinions are given less weight when
his opinions are internally inconsistent.”
F. App’x 26, 28 (2d Cir. 2012).
Micheli v. Astrue, 501
Here, on its face, Dr. Belen’s
opinion contained several internal inconsistencies.
in response to one question, Dr. Belen indicated that claimant had
poor or no ability to understand and remember very short and simple
However, in response to another question,
he indicated that claimant had a fair ability to understand and
remember detailed instructions.
These two opinions are
understand and remember detailed instructions would be unable to
understand and remember very short and simple instructions.
Additionally, Dr. Belen indicated that claimant had a fair
ability to maintain socially appropriate behavior and only moderate
difficulties in maintaining social functioning, yet also opined
that she had no ability to interact with the general public or get
inconsistencies in these opinions are apparent, and Dr. Belen made
no attempt to reconcile them.
Dr. Belen’s medical source statement was also inconsistent
with his own treatment records.
At appointments on October 10,
2013, November 7, 2013, and December 6, 2013, Dr. Belen’s treatment
records indicate that claimant was fully oriented, her thought
content was normal, her mood was stable, her memory was intact, her
attention, concentration, and affect were full and appropriate, and
her thought processes were linear and goal-directed.
T. 442, 445,
In January 2014, plaintiff saw Dr. Belen and reported that
she was “in a really good place mood wise,” that her energy and
concentration were stable, and that her anxiety was under control.
In other words, Dr. Belen’s treatment records simply are
not consistent with the extremely severe restrictions he noted in
his medical source statement.
Under these circumstances, it was
appropriate for the ALJ to afford Dr. Belen’s opinion limited
See, e.g., Domm v. Colvin, 579 F. App’x 27, 28 (2d Cir.
2014) (ALJ properly afforded less than controlling weight to
treating physician’s opinion where his “restrictive assessment was
inconsistent with his own treatment notes”); Shaffer v. Colvin,
2015 WL 9307349, at *3 (W.D.N.Y. Dec. 21, 2015) (treating physician
rule not violated where ALJ afforded little weight to opinion that
inconsistent with doctor’s own treatment notes).
Moreover, there is no merit to plaintiff’s argument that the
ALJ was required to recontact Dr. Belen for additional information.
“The mere fact that medical evidence is conflicting or internally
inconsistent does not mean that an ALJ is required to re-contact a
Rather . . ., it is the sole responsibility of
the ALJ to weigh all medical evidence and resolve any material
conflicts in the record where the record provides sufficient
evidence for such a resolution.”
Micheli, 501 F. App’x 26 at 29-
30. In this case, there was ample evidence in the record regarding
claimant’s condition, including Dr. Belen’s own treatment notes.
The ALJ properly assessed claimant’s RFC based on that information,
and the Court accordingly finds that he was not required to
recontact Dr. Belen.
The ALJ Properly
Plaintiff’s second argument is that the ALJ failed to properly
assess whether claimant’s substance abuse was the cause of her
Plaintiff’s argument misapprehends the ALJ’s legal
Advancement Act . . .which amended the Act by providing that [a]n
individual shall not be considered ... disabled ... if alcoholism
or drug addiction would ... be a contributing factor material to
the Commissioner’s determination that the individual is disabled.”
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012)
(internal quotations omitted).
Accordingly, where a claimant
suffers from alcoholism or drug addiction and an ALJ finds that she
is disabled, the ALJ must then consider whether, if the claimant
stopped her substance abuse, the remaining limitations would cause
more than a minimal impact on her ability to perform basic work
“The critical question is whether [the
Commissioner] would still find [the claimant] disabled if [she]
stopped using drugs or alcohol.” Id. (internal quotation omitted).
In this case, the ALJ determined at step two that claimant had
a severe impairment of opioid dependence.
found at step three that she was not disabled even factoring in the
impacts of her substance abuse.
Accordingly, the ALJ
stated that it was “unnecessary to determine if substance abuse is
a contributing factor material to the determination of disability.”
This is a correct statement of the law.
By definition, if a
claimant is not disabled even when the affects of her substance
abuse are taken into account, she would not be disabled if she were
to cease her substance abuse.
Accordingly, the Court finds that
the ALJ did not commit any legal error in considering the impact of
claimant’s substance abuse on the disability determination.
The ALJ Appropriately Considered the Medical Listings
Plaintiff’s third and final argument is that the ALJ failed
to properly consider whether claimant’s impairments met or equaled
Medical Listings 12.04 and 12.06.
However, a review of the ALJ’s
decision demonstrates that he did in fact conduct a thorough
assessment with respect to these Medical Listings.
“The Social Security regulations list certain impairments, any
of which is sufficient, at step three, to create an irrebuttable
presumption of disability.”
DeChirico v. Callahan, 134 F.3d 1177,
1180 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)).
“The regulations also provide for a finding of such a disability
per se if an individual has an impairment that is ‘equal to’ a
Id. (citing 20 C.F.R. 404.1520(d) (“If you
have an impairment(s) which ... is listed in appendix 1 or is equal
to a listed impairment(s), we will find you disabled without
considering your age, education, and work experience.”)).
claimant’s symptoms appear to match those described in a listing,
the ALJ must explain a finding of ineligibility based on the
Cardillo v. Colvin, 2017 WL 1274181, at *4 (N.D.N.Y.
Mar. 24, 2017).
“While the ALJ may ultimately find that [a
considered listing] do[es] not apply to Plaintiff, he must still
provide some analysis of Plaintiff’s symptoms and medical evidence
in the context of the Listing criteria.”
Peach v. Colvin, 2016 WL
2956230, at *4 (W.D.N.Y. May 23, 2016).
At the time the ALJ issued his decision, Medical Listing 12.04
covered “Affective Disorders” and Medical Listing 12.06 covered
The ALJ expressly considered these Medical
Listings in determining that claimant was not disabled. The ALJ
specifically considered the requirements of these listings and
found that claimant’s impairments did not meet or equal them in
severity because she did not have two of the following, as required
by paragraph B of those listings: marked restriction of activities
functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each
of extended duration.
The ALJ further found that claimant did not
suffer from a residual disease process that had resulted in such
marginal adjustment that even a minimal increase in mental demands
or change in the environment would be predicted to cause the
individual to decompensate, nor was there a current history of one
or more years’ inability to function outside a highly supportive
living arrangement with an indication of continued need for such an
arrangement, as required by paragraph C of the relevant listings.
Contrary to plaintiff’s argument, the ALJ’s consideration of
Medical Listings 12.04 and 12.06 was appropriate and supported by
With respect to the paragraph B criteria,
activities of daily living, a conclusion that was amply supported
by claimant’s own hearing testimony and the evidence of record.
limitations in social functioning.
Again, the evidence of record,
including Dr. Belen’s medical source statement, supports this
treatment records show that she was cooperative, aware of her own
problems, and able to interact appropriately with her medical
Moreover, claimant herself testified that she had no
authority figures, nor had she ever lost a job due to an inability
to interact appropriately.
The ALJ’s conclusion that claimant had mild limitations in
concentration, persistence, or pace was also amply supported by the
Dr. Belen’s treatment notes indicated that claimant’s
attention and concentration were stable, that she was able to
follow Dr. Belen’s interview without any difficulty, and that her
memory was intact.
Claimant also testified that she could pay
attention, finish what she started, and follow both written and
appropriately concluded that there was no evidence of repeated
episodes of decompensation of an extended duration.
“repeated episodes of decompensation” as used in the relevant
regulations means “three episodes withing one year or an average of
one episode every four months, each lasting at least two weeks.”
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00(C)(4).
contends that claimant’s three hospital admissions during the
relevant time period satisfy these criteria. However, as defendant
admissions lasted no more than a week and did occur within one
year, and therefore were neither long enough nor frequent enough to
satisfy the listing criteria.
Finally, the Court agrees with defendant that there is no
evidence that claimant was unable to function independently outside
of her home.
To the contrary, claimant testified that she was able
to shop in stores, attend church weekly, spend time outdoors on
walks, and socialize with others. According, there is no basis for
the Court to disturb the ALJ’s finding in this regard.
In short, the ALJ’s consideration of Medical Listings 12.04
and 12.06 was legally adequate and his conclusions are supported by
Under these circumstances, plaintiff has
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Docket No. 5) is denied and the Commissioner’s
dismissed in its entirety with prejudice.
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
November 30, 2017
Rochester, New York.
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