Wilcox v. Colvin
Filing
15
DECISION AND ORDER denying plaintiff's 11 Motion for Judgment on the Pleadings and granting Commissioner's 12 Motion for Judgment on the Pleadings. Signed by Hon. Michael J. Roemer on 8/27//2018. (RAZ)-CLERK TO FOLLOW UP- Amend caption. Close case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
MICHELLE M. WILCOX,
16-CV-726-MJR
DECISION AND ORDER
Plaintiff,
-vCOMMISSIONER OF SOCIAL SECURITY, 1
Defendant.
________________________________________
Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States
Magistrate Judge conduct all proceedings in this case. (Dkt. No. 14).
Plaintiff Michelle M. Wilcox (“Wilcox” or “plaintiff”) brings this action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her Social Security Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social
Security Act (the “Act”). Both parties have moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. For the following reasons, plaintiff’s
motion (Dkt. No. 11) is denied and the Commissioner’s motion (Dkt. No. 12) is granted.
BACKGROUND
On June 5, 2012, plaintiff protectively filed an application for DIB and subsequently
filed an application for SSI on June 22, 2012.
(See Tr. 108-20, 144). 2
In both
applications, plaintiff indicated that she has been disabled since May 22, 2012 as a result
of fibromyalgia, Raynaud’s syndrome, depression, anxiety and chronic obstructive
1
2
The Clerk of Court is directed to amend the caption accordingly.
References to “Tr.” are to the administrative record in this case.
pulmonary disease (COPD). (Tr. 135). Born on April 16, 1966, plaintiff was 46 years old
at the time of the alleged disability onset date. (Tr. 429). Her benefit applications were
initially denied on October 9, 2012. (Tr. 56). Plaintiff sought review of the determination,
and a hearing was held before Administrative Law Judge (“ALJ”) William E. Straub on
April 25, 2013. (Tr. 28-45). On May 6, 2013, ALJ Straub issued a decision that plaintiff
was not disabled under the Act. (Tr. 12-24). Plaintiff sought review of the decision, and
the Appeals Council denied her request for review. (Tr. 1-4). Plaintiff then filed a civil
action in this Court. (See Wilcox v. Colvin, 13-CV-994; Tr. 471-86). On November 13,
2014, this Court remanded the case for further administrative proceedings. (Tr. 471-86).
Specifically, the Court instructed the ALJ to: (1) weigh treating counselor Doreen
Nuessle’s opinion regarding plaintiff’s depression using the factors set forth in Social
Security Ruling (“SSR”) 06-03p; (2) reevaluate the medical record as to plaintiff’s
fibromyalgia; and (4) reevaluate the opinions of Dr. Richard Bennett and his psychiatric
nurse practitioner Melissa A. Merlin as well as other medical evidence regarding plaintiff’s
depression. (Id.). On February 3, 2015, the Appeals Council issued a Remand Order
which vacated ALJ Straub’s May 6, 2013 decision and remanded the case for “further
proceedings consistent with the order of the court.” 3 (Tr. 489).
ALJ Robert Harvey conducted the second hearing as to plaintiff’s claims on June
3, 2015. (Tr. 443-70). During the hearing, he took testimony from plaintiff and from
vocational expert (VE) David Sypher. (Id.). On July 16, 2015, ALJ Harvey issued a
decision finding that plaintiff was not disabled under the Act. (Tr. 418-36). Plaintiff’s
3
At that time, the Appeals Council consolidated the remanded claim with plaintiff’s subsequently filed
SSD and SSI (both filed on September 27, 2013) claims to a create a single electronic record and allow
for a hearing and determination based upon the consolidated claims. (Tr. 489)
2
request for review of the decision was denied by the Appeals Council on July 9, 2016.
(Tr. 408-14). ALJ Harvey’s ’s July 16, 2015 denial of benefits became the Commissioner’s
final determination, and the instant lawsuit followed. (Dkt. No. 1).
DISCUSSION
I.
Scope of Judicial Review
The Court’s review of the Commissioner’s decision is deferential. Under the Act,
the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks
and citation omitted). “The substantial evidence test applies not only to findings on basic
evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.
Colvin, 17 F. Supp. 3d 260, 264 (WDNY 2014). “Where the Commissioner’s decision
rests on adequate findings supported by evidence having rational probative force,” the
Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,
312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574
(WDNY 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).
Two related rules follow from the Act’s standard of review. The first is that “[i]t is
the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[g]enuine
3
conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d
at 588. While the applicable standard of review is deferential, this does not mean that the
Commissioner’s decision is presumptively correct. The Commissioner’s decision is, as
described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner’s factual
conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d
260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. Id.
II.
Standards for Determining “Disability” Under the Act
A “disability” is an “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §423(d)(1)(A). The Commissioner may find the
claimant disabled “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” Id. §423(d)(2)(A). The Commissioner
must make these determinations based on “objective medical facts, diagnoses or medical
opinions based on these facts, subjective evidence of pain or disability, and . . . [the
claimant’s] educational background, age, and work experience.” Dumas v. Schweiker,
712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in original) (quoting Miles v. Harris,
645 F.2d 122, 124 (2d Cir. 1981)).
4
To guide the assessment of whether a claimant is disabled, the Commissioner has
promulgated a “five-step sequential evaluation process.” 20 C.F.R. §404.1520(a)(4).
First, the Commissioner determines whether the claimant is “working” and whether that
work “is substantial gainful activity.” Id. §404.1520(b). If the claimant is engaged in
substantial gainful activity, the claimant is “not disabled regardless of [his or her] medical
condition or . . . age, education, and work experience.” Id. Second, if the claimant is not
engaged in substantial gainful activity, the Commissioner asks whether the claimant has
a “severe impairment.” Id. §404.1520(c). To make this determination, the Commissioner
asks whether the claimant has “any impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability to do basic work activities.”
Id. As with the first step, if the claimant does not have a severe impairment, he or she is
not disabled regardless of any other factors or considerations. Id. Third, if the claimant
does have a severe impairment, the Commissioner asks two additional questions: first,
whether that severe impairment meets the Act’s duration requirement, and second,
whether the severe impairment is either listed in Appendix 1 of the Commissioner’s
regulations or is “equal to” an impairment listed in Appendix 1. Id. §404.1520(d). If the
claimant satisfies both requirements of step three, the Commissioner will find that he or
she is disabled without regard to his or her age, education, and work experience. Id.
If the claimant does not have the severe impairment required by step three, the
Commissioner’s analysis proceeds to steps four and five.
Before doing so, the
Commissioner must “assess and make a finding about [the claimant’s] residual functional
capacity [“RFC”] based on all the relevant medical and other evidence” in the record. Id.
§404.1520(e). RFC “is the most [the claimant] can still do despite [his or her] limitations.”
5
Id. §404.1545(a)(1). The Commissioner’s assessment of the claimant’s RFC is then
applied at steps four and five. At step four, the Commissioner “compare[s] [the] residual
functional capacity assessment . . . with the physical and mental demands of [the
claimant’s] past relevant work.” Id. §404.1520(f). If, based on that comparison, the
claimant is able to perform his or her past relevant work, the Commissioner will find that
the claimant is not disabled within the meaning of the Act. Id. Finally, if the claimant
cannot perform his or her past relevant work or does not have any past relevant work,
then at the fifth step the Commissioner considers whether, based on the claimant’s RFC,
age, education, and work experience, the claimant “can make an adjustment to other
work.” Id. §404.1520(g)(1). If the claimant can adjust to other work, he or she is not
disabled. Id. If, however, the claimant cannot adjust to other work, he or she is disabled
within the meaning of the Act. Id.
The burden through steps one through four described above rests on the claimant.
If the claimant carries his burden through the first four steps, “the burden then shifts to
the [Commissioner] to show there is other gainful work in the national economy which the
claimant could perform.” Carroll, 705 F.2d at 642.
III.
The ALJ’s Decision
The ALJ first found that plaintiff met the insured status requirements of the Act
through September 30, 2016. (Tr. 420). The ALJ then followed the required five-step
analysis for evaluating plaintiff’s claim. Under step one, the ALJ found that plaintiff has
not engaged in substantial gainful activity since the alleged onset date of May 22, 2012.4
4
The ALJ noted that plaintiff testified that she worked at Fiddler’s Green Manor Nursing Home as an
activities aide. (Id. at 420) However, her earnings from this position, $6,669.57 in 2013 and $3,820.00 in
2014, did not rise to the level of substantial gainful activity. (Id.).
6
(Id.). At step two, the ALJ found that plaintiff has severe impairments consisting of
fibromyalgia, depressive disorder and anxiety disorder. 5 (Id.). At step three, the ALJ
determined that plaintiff does not have an impairment that meets or medically equals the
severity of one of the listed impairments. (Tr. 421-22). Before proceeding to step four,
the ALJ assessed plaintiff’s RFC as follows:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) 6 except she has occasional
limitations in the ability to reach in all directions, handle, finger, and feel.
The claimant has occasional limitations in the ability to understand,
remember, and carry out instructions as well as in the ability to interact
appropriately with the general public. She also has occasional limitations
in the ability to respond appropriately to changes in the work setting, deal
with stress, and make decisions. The claimant retains the ability to perform
the basic mental demands of unskilled work including the ability to
understand, remember, and carry out simple instructions; respond
appropriately to supervision, co-workers, and usual work situations and deal
with changes in a routine work setting.
(Tr. 422-29). Proceeding to step four, the ALJ determined that plaintiff is unable to
perform her past relevant work as assistant manager of a retail store. (Tr. 429, 455-56).
During the hearing, the ALJ noted that this position constituted medium work and required
the ability to lift an average of 30 to 40 pounds. (Id.). In considering step five, the ALJ
heard testimony from VE Sypher. (Tr. 430). Based upon Sypher’s testimony, which took
into account plaintiff’s age, education, work experience and RFC, the ALJ concluded that
5
The ALJ noted that the record indicates a diagnosis of chronic obstructive pulmonary disease (“COPD”).
(Tr. 421) However, plaintiff is not being treated for COPD and takes no medication for this condition.
(Id.). Plaintiff testified to having knee surgery in 2009 or 2010 but stated that this condition was resolved.
(Id.). In addition, there are allegations in the record as to plaintiff having Raynaud’s syndrome but no
evidence that this is a severe impairment. (Id.).
6 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range or
light work, [the claimant] must have the ability to do substantially all of these activities.” 20 C.F.R.
§§404.1567(b) and 416.967(b).
7
plaintiff can perform jobs that exist in significant numbers in the national economy. (Tr.
429-30). Accordingly, the ALJ found that plaintiff has not been under a disability within
the meaning of the Act from May 22, 2012 through the date of his decision.
IV.
Wilcox’s Challenges
Wilcox first argues that the ALJ failed to properly evaluate the opinion of Doreen
Nuessle, LCSW-R. (Dkt. No. 11-1).
SSR 06-03p instructs that when evaluating relevant evidence in the record, an ALJ
must consider evidence from both “acceptable medical sources”, such as physicians, and
also “medical sources who are not acceptable medical sources”, such as nurse
practitioners and licensed clinical social workers. SSR 06-03p, 2006 SSR LEXIS 5, *4-5.
SSR 06-03p directs the ALJ to employ the same factors in evaluating opinions from other
sources as are used to evaluate the opinions of acceptable medical sources. Id. at *1112. These factors include: the frequency of treatment, consistency with other evidence
in the record, degree of supporting evidence, thoroughness of explanation, and whether
the source has an area of expertise. Id. Not every factor will apply in every case. Id.
Evidence from other sources cannot be used to establish the existence of a medically
determinable impairment, but it may provide insight into the severity and effects of
impairments on an individual. Id. at *4-5. Importantly, opinions from other sources do not
demand the same deference as those of a treating physician. Geiner v. Astrue, 298 Fed.
Appx. 105, 108 (2d Cir. 2008); Wichelns v. Comm’r of Soc. Sec., 5:12-CV-1595, 2013
U.S. Dist. LEXIS 186607, *18 (NDNY Dec. 20, 2013) (“Social workers are considered an
‘other source’ whose opinions may be considered with respect to the severity of the
claimant’s impairment and ability to work, but need not be assigned controlling weight.”)
8
When an ALJ assigns little or no weight to other source opinions, such as those
provided by a social worker, those decisions should be explained. See Colon v. Astrue,
11-CV-00210, 2013 U.S. Dist. LEXIS 72311, *26 (WDNY May 21, 2013). However,
“[c]ourts conducting judicial review in social security cases do not require perfect opinions
or rigid, mechanical formulaic applications of governing legal principle.” Abdulsalam v.
Comm’r of Soc. Sec., 12-CV-1631, 2014 U.S. Dist. LEXIS 13442 (NDNY Feb. 4, 2014)
(internal citations omitted). See Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)
(Where an ALJ’s reasoning and adherence to the regulations are clear, a “slavish
recitation of each and every factor” was not required.). Indeed, SSR 06-03p instructs that
the ALJ need only “ensure[] that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning.”
2006 SSR LEXIS 5, at *15.
Nuessle, a licensed clinical social worker at Suburban Psychiatric Associates,
counseled Wilcox once a week from March 18, 2012 through July 6, 2012. (Tr. 324, 425).
In a form submitted to the New York State Office of Temporary and Disability Assistance,
Nuessle stated that she provided Wilcox “individual trauma based therapy to identify and
adhere to healthy boundaries within relationships [and cognitive behavior therapy] to
assist with developing structure to minimize the impact of negative, automatic thoughts
and flashbacks from traumatic experiences.” (Tr. 327). Nuessle opined that Wilcox had
difficulty remembering tasks, became overwhelmed easily, and was highly sensitive to
criticism from authority and peers. (Tr. 328). She found that Wilcox had a moderate
impairment in her ability to do work-related activities but no limitation in understanding or
memory. (Tr. 328-29). Nuessle further noted that Wilcox had difficulty following detailed
9
directions, poor stress management skills, was reactive to changes, had difficulty with
transitions and was limited as to social interaction. (Tr. 329). However, the ALJ gave
little weight to Nuessle’s opinion because it was not fully supported by the findings of Dr.
Susan Santarpia, a psychiatrist who conducted a consultative psychiatric evaluation of
Wilcox. (Tr. 365-69, 425). While Dr. Santarpia’s findings were not entirely inconsistent
with those of Nussle, she found Wilcox to have less impairments or restrictions with
respect to her mental functioning. For example, Dr. Santarpia opined that Wilcox had
mild impairments in learning new tasks and appropriately dealing with stress and
moderate impairments in performing complex tasks independently, making appropriate
decisions, and relating adequately with others. (Tr. 368, 426). Dr. Santarpia also found
that Wilcox was able to follow and understand simple directions and instructions, perform
simple tasks independently, maintain attention and concentration and maintain a regular
schedule within normal limits. (Tr. 368, 426).
The Court finds that the ALJ adequately considered Nuessle’s opinion in
accordance with SSR 06-03p and the case law discussed above. Further, the ALJ
sufficiently explained why little weight was given to Nuessle’s conclusions. The ALJ noted
that Nuessle was a social worker and also explained the specific type of counseling she
provided to Wilcox. The ALJ cited records which set forth the length and frequency of
Nuessle’s treatment sessions. The ALJ also provided a detailed explanation of Nuessle’s
findings. After considering these factors, the ALJ elected to give little weight to Nuessle’s
opinion because it was not fully supported by the findings of Dr. Santarpia. (Tr. 425). The
ALJ also thoroughly explained Dr. Santarpia’s findings. (Tr. 426). In electing to give Dr.
Santarpia’s findings significant weight, the ALJ noted that her opinion was based on a
10
thorough evaluation of Wilcox and that her conclusions were consistent with her findings
on the mental status examination. (Id.). See SSR 06-03P, 2006 SSR LEXIS 5, *9
(internal quotations omitted) (“The fact that a medical opinion is from an acceptable
medical source is a factor that may justify giving that opinion greater weight than an
opinion from a medical source which is not an acceptable medical source
because…acceptable medical sources are the most qualified health care professionals.”).
Indeed, the record demonstrates that the ALJ did not reject Nussle’s findings
because they were from a non-medically acceptable source but instead because they
were not supported by the findings of the consultative examiner. The standard for
assessing an opinion of a licensed clinical social worker is not as stringent as the standard
for the assessing the opinion of a treating physician. Here, the ALJ was not required to
provide good reasons for assigning little weight to Nuessle’s opinion but instead was
obligated only to consider the opinion pursuant to appropriate factors and explain why it
was rejected. The ALJ’s discussion satisfies this requirement. See Monette v. Colvin,
654 Fed. Appx. 516 (2d Cir. 2016) (rejecting plaintiff’s argument that the ALJ committed
legal error by attributing more weight to the opinion of a consulting psychologist than to
the opinion of a treating nurse practitioner since the nurse practitioner was not an
acceptable medial source whose opinion was eligible for controlling weight, and the
“nurse practitioner’s opinion was nevertheless considered, not overlooked”); Atkinson v.
Comm’r of Soc. Sec., 5:16-cv-0809, 2017 U.S. Dist. LEXIS 52831 (NDNY April 6, 2017)
(Where the ALJ “specifically indicated that she found each of the two opinions were not
consistent with or supported by treatment evidence in the record, discussed pertinent
treatment evidence in her narrative, acknowledged the relationship between these
11
sources and [p]laintiff, and acknowledged their credentials and the areas and types of
treatment each provided”, the discussion satisfied the requirements for weighing opinion
evidence from other sources); c.f. Canales v. Comm’r of Soc. Sec., 698 F. Supp. 2d 335
(EDNY 2010) (remand was appropriate where the ALJ disregarded an opinion simply
because it was the opinion of a social worker, not on account of its content or whether it
conformed with the other evidence in the record).
Furthermore, the ALJ’s RFC assessment is not entirely inconsistent with
Nuessle’s findings. Nuessle found that Wilcox had difficulty following detailed instructions
but had no limitations as to understanding and memory. (Tr. 329). Similarly, the RFC
indicates that plaintiff has occasional limitations in the ability to understand, remember,
and carry out instructions but retained the ability to perform the basic demands of
unskilled work including the ability to understand, remember and carry out simple
instructions. (Tr. 422). Nuessle opined that Wilcox had moderate impairments in her
ability to work which included limitations in stress management, social interaction,
reacting to changes and responding to criticism. (Tr. 328-29). The RFC reflects that
Wilcox has occasional limitations in her ability to interact with the general public, respond
appropriately to changes in the work setting and deal with stress. (Tr. 422). Therefore,
while Nuessle may have found Wilcox to be somewhat more limited in aspects of her
mental functioning than found by the consultative psychiatrist or the ALJ, many of the
limitations found by Nuessle were incorporated in the RFC. Thus, the Court rejects
Wilcox’s argument that had the ALJ credited Nuessle’s opinion, it would necessarily have
resulted in a finding that Wilcox was disabled under the Act.
12
Wilcox also argues that the ALJ failed to properly evaluate the opinion of treating
psychiatrist Dr. Richard G. Bennett. (Dkt. No. 11-1).
Wilcox treated with psychiatric nurse practitioner Melissa A. Merlin on four
occasions at Suburban Psychiatric Associates between June 11, 2012 and October 2,
2012. (Tr. 317-19, 320-21, 322-23, 380-81). Records from those sessions indicate that
Merlin treated Wilcox for depression and anxiety and provided medication assessment
and management. (Id.). On December 11, 2012, a Mental Impairment Questionnaire
was completed on behalf of Wilcox. (Tr. 401-404). Both Merlin and Dr. Richard G.
Bennett, a psychiatrist at Suburban Psychiatric Associates, signed the Questionnaire.
(Id.).
The Court first notes that there is no evidence in the record that Dr. Bennett ever
personally examined Wilcox or had an ongoing treatment and psychiatrist-patient
relationship with her. Wilcox argues that where both a physician’s assistant or nurse
practitioner and a physician sign a report, the “opinions are those of a treating physician
as well as those of the physician’s assistant.” Viverito v. Colvin, 14-CV-7280, 2016 U.S.
Dist. LEXIS 23260, at 43-44 (EDNY Feb. 25, 2016); citing Riechl v. Barnhart, 02-cv-6169,
2003 U.S. Dist. LEXIS 12610 (WDNY June 3, 2003). However, unlike the facts presented
here, in both Viverito and Riechl there was evidence in the record that the plaintiff was
examined by the physician’s assistant as well as the doctor who co-signed the report or
opinion. See Viverito, 2016 U.S. Dist. LEXIS 23260, at *19-21 (describing visits where
plaintiff saw both a doctor and a physician’s assistant at the same office); Reichl, 2003
U.S. Dist. LEXIS, at *10-11, 34 (the record indicated that plaintiff saw the doctor and the
physician’s assistant every three months over a period of eleven years and noting that
13
the plaintiff would often see the physician’s assistant, “who would call in [the doctor] when
needed”). However, even assuming that Dr. Bennett was Wilcox’s treating psychiatrist,
the Court finds that the ALJ provided good reasons for giving little weight to his findings.
The opinion of a treating physician or psychiatrist is to be given controlling weight
if it is “well-supported by medically acceptable evidence and is not inconsistent with other
substantial evidence in the record.” 20 C.F.R. §404.1527(c)(2); Snell v. Apfel, 177 F.3d
128, 132-33 (2d Cir. 1999). “When other substantial evidence in the record conflicts with
the treating physician’s opinion, however, that opinion will not be deemed
controlling…[a]nd the less consistent that opinion is with the record as a whole, the less
weight it will be given.” Snell, 177 F.3d at 133; accord 20 C.F.R. §404.1527(d)(4). In
addition, the ultimate finding as to whether a claimant is disabled and cannot work is
reserved to the Commissioner. Id. at §404.1527(d)(1). To that end, “the Social Security
Administration considers the data that physicians provide but draws its own conclusions
as to whether those data indicate disability..[and a] treating physician’s statement that the
claimant is disabled cannot itself be determinative.” Snell, 177 F.3d at 133. Indeed, the
Commissioner is required to explain the weight it gives to the opinions of a treating
physician and to provide “good reasons” for not crediting the opinion of a treating
physician. 20 C.F.R. §404.1527(c)(2).
Here, the ALJ explained how Dr. Bennett’s opinion was not supported by medically
acceptable evidence and was inconsistent with other substantial evidence in the record.
(Tr. 427). Dr. Bennett indicated, on the Mental Impairment Questionnaire, that Wilcox
had marked restrictions of daily living activities, marked difficulties in maintaining social
functioning, marked deficiencies in concentration, persistence and pace, and one or two
14
episodes of decompensation.
(Id. at 403).
A marked limitation indicates that an
individual’s ability to function in that area independently, appropriately, effectively and on
a sustained basis is seriously limited. (Id.). In giving little weight to this opinion, the ALJ
reasoned that the marked impairments were not supported by the global assessment of
functioning (“GAF”) scores assigned to Wilcox by Merlin in June of 2012 and October of
2012. (Tr. 427). GAF scores, which range from 1 to 100, reflect a clinician’s evaluation
of a patient’s level of psychological, social and occupational functioning. See American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-TR)
32, 34 (4th ed., rev. 2000). On June 11, 2012, Merlin assigned Wilcox a GAF score of 75
with a highest GAF score within the year of 85. (Tr. 319). A GAF score of 71 to 80
indicates that if symptoms are present, they are transient with no more than slight
impairments in social or occupational functioning. Id. at 34. A GAF score in the range of
81 to 90 indicates absent to minimal symptoms and good functioning in all areas. Id. On
June 25, 2012, July 9, 2012, and October 2, 2012, Merlin assigned Wilcox GAF scores
of 65. (Tr. 321, 322, 381). A GAF score in the range of 61 to 70 indicates some mild
symptoms or some difficulty in social, occupational or school functioning. See DSM-TR
at 34. Overall, the individual is considered to be generally functioning well. Id. Thus, the
GAF scores assigned to Wilcox over the course of her treatment with Merlin do not
support Dr. Bennett’s and Merlin’s opinion that she was seriously limited in both her dayto-day activities as well as her social and occupational functioning on a sustained basis.
Wilcox argues that GAF scores are not sufficient to discredit a treating
psychiatrist’s opinion, and points to case law indicating that GAF scores are not
dispositive of impairment severity. See e.g. Chapman v. Colvin, 15-CV-6523, 2017 U.S.
15
Dist. LEXIS 12085, at *17-18 (WDNY Jan. 27, 2017) (“[T]he literature regarding the GAF
scale indicates a general lack of reliability.”); Beck v. Colvin, 13-CV-6014, 2014 U.S. Dist.
LEXIS 63751 (WDNY May 8, 2014) (internal quotation marks omitted) (“To the extent the
ALJ rejected [a treating physician’s opinion] as incompatible with [a] GAF score,” the ALJ
“failed to explain why a single GAF score, which is a generalized assessment,
superseded [the treating physician’s] more precise opinion.”). However, the Court does
not find these opinions to be analogous to the matter at hand. Here, the ALJ was not
relying on a single GAF score but rather on a series of GAF scores assigned over the
course of Wilcox’s treatment. See Zokaitis v. Astrue, 465 Fed. Appx. 17 (2d Cir. 2012)
(finding no errors in the Commissioner’s decision to give little weight to statements by a
social worker that plaintiff had extreme difficulties in social functioning and marked
difficulties in maintaining concentration, persistence and pace where the social worker
consistently assigned plaintiff a GAF score of 55, which would indicate only moderate
difficulties in those functions). In addition, the ALJ was not relying on the GAF scores as
proof of Wilcox’s ability to work or dispositive of whether she qualified for benefits.
Instead, the ALJ referenced the GAF scores as evidence that Dr. Bennett’s ultimate
opinion as to Wilcox’s limitations was inconsistent with and unsupported by the medical
evidence in Merlin’s own treatment notes. To that end, the ALJ referenced not only the
GAF scores but also Merlin’s observation, in October of 2012, of “improvement in
[Wilcox’s] mood since the last visit with affect appropriate to mood, and less anxiety,
depression and lability.” (Tr. 380-381, 427). Likewise, the ALJ noted that Merlin found
Wilcox’s speech was not over productive or pressured and that her memory was intact,
16
her attention and concentration were fair, and her judgment and insight were adequate.
(Id.).
In addition, the ALJ cited other substantial evidence in the record that was
inconsistent with the marked limitations assigned by Dr. Bennett. The ALJ explained that
the severity of the limitations were not supported by the findings of Dr. Santarpia, who
conducted a thorough evaluation of Wilcox and whose opinion was consistent with the
examination findings. (Tr. 365-69, 427). The ALJ gave some weight to the opinion of Dr.
H. Tzetzo, a State Agency psychiatrist, who performed a Mental Residual Functional
Capacity Assessment on Wilcox in October of 2012. (Id.). Dr. Tzetzo opined, in October
of 2012, that Wilcox was able to understand and follow work directions in a work setting,
maintain attention for such tasks, relate adequately to a work supervisor, and use
judgment to make work-related decisions in a work setting. (Tr. 382-95, 427). Indeed,
these findings are inconsistent with Dr. Bennett’s opinion that Wilcox had marked
difficulties in concentration, persistence and pace. The ALJ cited Wilcox’s statements
and testimony indicating that she is able to care for her own personal needs and
grooming, cook, do light cleaning, do laundry, shower and manage her own money. (Tr.
147-54, 367, 421). Wilcox also indicated that is able to drive, shop, socialize, watch
television and read. (Id.). She stated that she is able to go outside every day and that
she does not have a problem getting along with others. (Id.). The ALJ noted that Wilcox
works part-time as an activities aide at a nursing home. (Tr. 420, 429, 448-49). Her
duties include escorting residents outside and for activities and dining, leading them in
activities and arranging games, arts and crafts. (Id.). Thus, Wilcox’s own statements as
to her capabilities as well as her employment record belie Dr. Bennett’s findings that she
17
had marked difficulties in carrying out daily living activities and social functioning. See
Micheli v. Astrue, 501 F. App’x 26, 28-29 (2d Cir. 2012) (holding that it was not error for
the ALJ to decline to afford controlling weight to a treating physician when the opinion
was internally inconsistent as well as inconsistent with other substantial evidence in the
record); Manning v. Colvin, 13-CV-497, 2014 U.S. Dist. LEXIS 147546 (WDNY Oct. 16,
2014) (finding that the ALJ properly gave little weight to the treating physician’s opinion
and “great weight” to the consultative examiner’s prognosis where the latter was more
consistent with the evidence in the record).
In addition to evaluating the medical evidence in support of Dr. Bennett’s findings
as well as its consistency with the other substantial evidence in the record, the ALJ also
considered the nature, extent and frequency of the treating relationship. See 20 C.F.R.
§416.927(c). He correctly noted that there is no evidence of longitudal treatment by Dr.
Bennett. (Tr. 427). While Wilcox contends that Merlin’s opinions are the same as Dr.
Bennett’s for purposes of the treating physician rule, Wilcox only treated with Merlin on
four occasions.
For all of these reasons, the Court finds that the ALJ sufficiently
considered the opinion of Dr. Bennett and provided good reasons for assigning it little
weight.
Finally, Wilcox contends that the Commissioner erred by failing to fully develop the
record by obtaining treatment notes from Ms. Nuessle. (Dkt. No. 11-1).
Where deficiencies exist in the record, an ALJ is under an affirmative obligation to
develop a claimant’s medical history. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
This duty includes “assembling the claimant’s complete medical history and recontacting
the claimant’s treating physician if the information received from the treating physician or
18
other medical source is inadequate to determine whether the claimant is disabled.”
Batista v. Barnhart, 326 F. Supp. 2d 345, 353 (EDNY 2004) (internal citations omitted).
However, “where there are no obvious gaps in the administrative record, and where the
ALJ already possesses a complete medical history, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.” Petrie v. Astrue, 412 F.
App’x 401, 406 (2d Cir. 2011) (internal citations omitted).
Here, the administrative record is over 650 pages long and includes reports,
treatment notes and test results from numerous medical providers and consultative
examiners. The ALJ had a comprehensive record as to Wilcox’s mental health condition
and treatment. The record included records and treatment notes from her primary care
doctor and rheumatologist, both of which referenced her mental health condition. It also
included medical source evidence from agency consultants, including psychiatric
evaluations and examinations, and testimonial evidence.
Moreover, the ALJ had
treatment notes from Wilcox’s sessions at Suburban Psychiatric Associates with Merlin
during the same time frame she was counseled by Nuessle. He had a detailed form
completed by Nuessle for the New York State Office or Temporary and Disability
Assistance which explained the nature and frequency of the counseling she provided,
details of Wilcox’s symptoms and Nuessle’s observations and diagnosis.
This
information, combined with the other extensive evidence in the record, was sufficient for
the ALJ to both evaluate Nussele’s opinion and assess Wilcox’s RFC. For these reasons,
the Court finds that ALJ possessed a complete medical history as to Wilcox’s physical
and mental health condition, and there were no obvious gaps in the record.
19
For these reasons, the ALJ was not obligated to secure Nuessle’s treatment notes
before denying the benefits claim. 7
CONCLUSION
For the foregoing reasons, plaintiff Michelle M. Wilcox’s motion for judgment on
the pleadings (Dkt. No. 11) is denied and defendant Commissioner of Social Security’s
motion for judgment on the pleadings (Dkt. No. 12) is granted.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated:
August 27, 2018
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge
7
The Court also notes that the State Agency attempted to obtain treatment notes from Ms. Nussle. (Tr.
174). Nuessle responded with only her form report. (Tr. 174, 324-30). Plaintiff’s attorney did not object to
the completeness of the marked exhibits in the record during the April 2013 hearing and during the June
2015 hearing and also indicated that the record was complete. (Tr. 32, 446, 467). In addition, plaintiff was
asked to provide any additional medical evidence not already in the record that would support her claim.
(Tr. 566-67). In light of this information, the Court concludes that not only was the record complete, but that
the ALJ made every reasonable effort to complete the record as required by Section 423(d)(5)(B) of Title
42 of the United States Code. See Desane v. Colvin, 3:15-CV-50, 2015 U.S. Dist. LEXIS 159919 (NDNY
Nov. 30, 2015) (concluding that where plaintiff’s attorney initially indicated that the record was complete at
the beginning of the hearing and the ALJ agreed to hold the record open for two weeks to allow plaintiff’s
counsel to submit additional information, the ALJ made every reasonable effort to complete the record).
20
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