Woods v. Berryhill
Filing
13
DECISION AND ORDER denying 8 Plaintiff's Motion for Summary Judgment and affirming Commissioner's decision. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/13/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MAXIE M. WOODS,
No. 1:17-cv-00400(MAT)
DECISION AND ORDER
Plaintiff,
-vsNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
I.
Introduction
Maxie M. Woods (“Plaintiff”), represented by counsel, brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of Nancy A. Berryhill,
Acting
Commissioner
of
Social
Security
(“the
Commissioner”),1
denying her applications for Supplemental Security Income (“SSI”).
The Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c).
II.
Procedural Status
On April 18, 2013, Plaintiff protectively filed an application
for SSI, alleging disability beginning January 2, 2013, due to
major depressive disorder, bipolar disorder, anxiety disorder,
borderline
personality
disorder,
polycystic
ovarian
cysts,
seizures, asthma, and obesity. The claim was denied initially on
August 20, 2013. At Plaintiff’s request, a hearing was held on
1
Nancy A. Berryhill, is no longer serving as as Acting Commissioner. The
Clerk of Court therefore is directed to substitute “The Commissioner of Social
Security” for Nancy A. Berryhill as the defendant in this action. See 20 C.F.R.
§ 422.210(d).
June 1, 2015, before Administrative Law Judge Stephen Cordovani
(“the ALJ”) in Buffalo, New York. Plaintiff appeared with her
attorney and testified, as did impartial vocational expert David A.
Festa (“the VE”). After the hearing, the ALJ held the record open
for submission of additional evidence, which was received and
entered into the record as Exhibits 37F-42F.
On October 13, 2015, the ALJ issued an unfavorable decision.
Applying the five-step sequential evaluation, 20 C.F.R. 416.920,
the ALJ found, at step one, that Plaintiff had not engaged in
substantial gainful activity (“SGA”) since the application date.2
At step two, the ALJ determined that Plaintiff has the “severe”
impairments of major depressive disorder, bipolar disorder, anxiety
disorder,
borderline
personality
disorder,
polycystic
ovarian
cysts, seizure disorder, and the combination of asthma and obesity.
At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments. The ALJ
particularly considered Listings 3.03 (Asthma), 11.02 (Epilepsy Convulsive Epilepsy), 11.03 (Epilepsy - Nonconvulsive Epilepsy),
12.04 (Affective Disorders), 12.06 (Anxiety-Related Disorders), and
12.08 (Personality Disorders). Prior to proceeding to step four,
2
Plaintiff testified that she worked part time for about three weeks as a
customer service job from December 2013 to January 2014, which involved calling
people as part of a survey. She attested that this job ended when she started
college. While there are 2014 earnings shown on the earnings record after the
onset date, the ALJ found that they fell “well below” the amount required for
SGA. T.20.
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the ALJ assessed Plaintiff as having the residual functional
capacity (“RFC”) for a limited range of unskilled, light work. At
step four, the ALJ determined that Plaintiff had no past relevant
work. At step five, the ALJ relied on the VE’s testimony to
conclude that a person of Plaintiff’s age (18 years-old), education
(high
school
equivalency
degree),
and
RFC
could
perform
the
requirements of the following representative jobs that exist in
significant numbers in the national economy: racker (Dictionary of
Occupational Titles (“DOT”) code 524.687-018), cleaner/housekeeper
(DOT code 323.687-014), and office helper (DOT code 239.567-010).
Accordingly, the ALJ entered a finding of not disabled.
Plaintiff’s request for review by the Appeals Council was
denied, making
the
ALJ’s
decision
the
final
decision
of
the
Commissioner. Plaintiff then timely commenced this action.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Neither party has filed a reply brief. The Court adopts and
incorporates by reference herein the undisputed factual recitations
contained in the parties’ memoranda of law and will discuss the
record evidence as necessary to the resolution of the parties’
motions.
For the reasons discussed below, the Commissioner’s decision
is affirmed.
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III. Scope of Review
A
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.
Commissioner’s
findings
“as
42 U.S.C. § 405(g) (stating the
to
any
fact,
if
supported
by
substantial evidence, shall be conclusive”). “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)
(quotation
omitted).
The
reviewing
court
nevertheless 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). “The deferential
standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citation omitted).
IV.
Discussion
A.
Plaintiff’s First Argument: The ALJ Erred in Weighing
Treatment Providers’ Reports and Opinions
1.
Plaintiff
Dr. Bellamkonda S.V. Raghu
argues
that
the
ALJ
erred
by
assigning
non-controlling weight to a treatment note dated September 25,
2013, by Dr. Raghu at BryLin Behavioral Health Center, where
Plaintiff
sought
follow-up
treatment
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after
an
in-patient
psychiatric stay. T.350-52.3 The Commissioner argues that the ALJ
correctly weighed Dr. Raghu’s report and found that it was nonprobative of Plaintiff’s functional limitations.
When
Plaintiff
presented
to
Dr.
Raghu
for
an
“Initial
Psychiatric Evaluation,” the doctor described her as having a
disheveled
appearance,
a
disinterested
mood
with
psychomotor
retardation, and slow and inaudible speech. T.350-51. Dr. Raghu
noted Plaintiff was positive for depression and anxiety and also
checked boxes indicating the following symptoms were present: poor
concentration, poor insight, poor judgment, poor appetite, and poor
sleep. T.351. However, Plaintiff had no cognitive deficits and
displayed no bipolar or psychotic symptoms; her perceptions were
normal; she was not delusional; and she denied suicidal ideation or
thoughts of harming others. Dr. Raghu assessed a Global Assessment
of Function (“GAF”) score of 35.4 Dr. Raghu provided a diagnosis of
major
depressive
disorder
and
noted
a
history
of
borderline
personality disorder traits. T.350, 352.
The ALJ assigned “[l]ittle weight” to this GAF assessment
because it was “inconsistent with the claimant’s own statement in
this report that she was doing okay and feeling a little bit
3
Citations
transcript.
to
“T.”
refer
to
pages
in
the
certified
administrative
4
The GAF is a rating of overall psychological functioning on a scale of 0
to 100. A rating of 31-40 means some impairment in reality testing or
communication or major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood. See Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed., text revision, 2000) (“DSM-TR-IV”).
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depressed.” T.33. The regulations applicable to weighing medical
opinions state that consistency between the opinion and the record
is an important factor in determining the weight to be assigned to
such opinions. See 20 C.F.R. 416.927(c)(4) (“Generally, the more
consistent a medical opinion is with the record as a whole, the
more weight we will give to that medical opinion.”). The ALJ did
not
mischaracterize
the
record
and
properly
considered
the
inconsistency between Plaintiff’s own statements to Dr. Raghu,
which indicated no acute psychiatric symptoms or complaints, and
the GAF score assigned by Dr. Raghu.
The ALJ also gave Dr. Raghu’s check-box ratings “little weight
because there [was] no rationale for such ratings/conclusions” or
“objective evidence” cited, and therefore it had “little probative
value[.]” (T.33). Again, the ALJ considered a proper regulatory
factor, namely, the quantity and quality of evidentiary support for
the provider’s opinion. See 20 C.F.R. 416.927(c)(3) (“The more a
medical source presents relevant evidence to support a medical
opinion, particularly medical signs and laboratory findings, the
more weight we will give that medical opinion. The better an
explanation a source provides for a medical opinion, the more
weight we will give that medical opinion.”).
2.
Therapists James Lusk and Michael Cammarata
Plaintiff argues that the ALJ erred by assigning “little
weight” to the mental RFC questionnaires completed by therapist
James Rusk, T.546-50, and therapist Michael Cammarata, T.643-47,
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“without explanation as to how their opinions factored into the
[RFC].” Plaintiff’s Memorandum of Law (“Pl.’s Mem.”) at 25-26.
The ALJ stated that since neither Rusk nor Cammarata were
treating physicians, he was considering their opinions under Social
Security Ruling (“SSR”) 06-03p, 2006 WL 2329939 (S.S.A. Aug. 9,
2006).
(T.36).
As
the
ALJ
noted,
SSR
06–03p
provides
that
information from “other sources,” such as therapists and social
workers, cannot establish the existence of a medically determinable
impairment. SSR 06-03p, 2006 WL 2329939, at *2. However,
evidence
from such other sources may be used to demonstrate the severity of
a claimant’s impairment and how it affects his or her ability to
work. 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). Although opinions
from “other
sources”
are
not
entitled
to
the
presumption
of
deference applicable to opinions from treating, “acceptable medical
sources,” they must be considered because the adjudicator is
required to evaluate all evidence that comes before it. The factors
required for analysis of a treating physician’s opinion can also be
applied to opinion evidence from other sources. SSR 06–03p, 2006 WL
2329939, at *4. These factors include how long the source has known
and
how
frequently
the
source
has
seen
the
individual;
how
consistent the opinion is with other evidence; whether the source
has a specialty or area of expertise related to the individual’s
impairment(s); and any other factors that tend to support or refute
the opinion. Id. at *4-*5.
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Here, the ALJ determined that “[o]nly partial weight” should
be given to Rusk’s and Cammarata’s opinions because they were “not
from an
acceptable
questionnaires
fail
source”
to
and
were
adequately
“somewhat
define
vague,
what
as
‘less
the
than
satisfactory’ represents in vocational terms.” (Id.). The ALJ is
correct. One of the ratings on the form is “[s]eriously limited,
but not precluded.” (T.548). The form defines this redundantly as
meaning that the patient’s “ability to function in this area is
seriously limited and less than satisfactory, but not precluded[,]”
(id.),
or
“a
substantial
loss
of
ability
to
perform
the
work-related activity.” (Id.). Under SSR 06-03p, “the degree to
which the source presents relevant evidence to support an opinion”
and “how well the source explains the opinion” are appropriate
factors to consider when weighing an opinion from an “other source”
such as Rusk. See SSR 06-03p, 2006 WL 2329939, at *4.
The
ALJ
also
found
that
the
therapists’
opinions
that
Plaintiff “would miss four days of work per month are clearly not
supported by these reports.”
T.36. As the ALJ noted, neither Rusk
nor Cammarata provided any explanation as to why they believed
Plaintiff would have that level of absenteeism. When weighing the
therapists’ opinions, the ALJ was entitled to consider “the degree
to which the source present[ed] relevant evidence to support an
opinion” and “how well the source explain[ed] the opinion,” SSR 0603p, 2006 WL 2329939, at *4.
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Finally, the ALJ found, “the functions that claimant is
described as being able to perform satisfactorily or very good or
without limitation, are largely not inconsistent with” his RFC
formulation. T.36. This is an accurate characterization of the
record. For instance, Rusk found that Plaintiff had “[u]nlimited or
[v]ery
[g]ood”
ability
to
“[r]emember
work-like
procedures,”
“[u]nderstand and remember very short and simple instructions,”
“[c]arry out very short and simple instructions,” and “[b]e aware
of normal hazards and take appropriate precautions.” T.548. In
addition,
Rusk
satisfactory”
segment,”
opined
that
ability
to
“[s]ustain
an
Plaintiff
“[m]aintain
ordinary
had
“[l]imited
attention
routine
for
without
two
but
hour
special
supervision,” “[m]ake simple work-related decisions,” “[p]erform at
a consistent pace without an unreasonable number and length of rest
periods,” “[a]sk simple questions or request assistance;” and
“[r]espond appropriately to changes in a routine work setting.”
T.548. As the ALJ found, these ratings are not inconsistent with
his RFC limiting Plaintiff to, e.g., working in a low stress work
environment in a job that requires her to understand, remember and
carry
out
simple
instructions
and
tasks;
does
not
have
any
supervisory duties or strict production quotas; does not require
independent decision-making; has only minimal changes in work
routine and processes; and requires only occasional interaction
with co-workers and the general public. T.24. Therefore, contrary
to Plaintiff’s argument, the ALJ explained how he considered these
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two assessments within the parameters of the regulations and SSR
06-03p and incorporated the therapists’ opinions on her functional
limitations into his RFC formulation.
B.
Plaintiff’s Second Argument: The ALJ Erred in Assessing
Plaintiff’s Credibility
Plaintiff argues the ALJ inappropriately relied on some of her
activities to discredit her subjective complaints. See Pl.’s Mem.
at 28-29. The Commissioner responds that the ALJ considered the
proper regulatory factors, and that his credibility assessment is
supported by substantial evidence.
The Commissioner’s regulations set forth a two-step process
for
evaluating
symptoms
such
as
pain,
fatigue,
weakness,
depression, and nervousness. See 20 C.F.R. § 416.929(c). First, the
ALJ
must
determine
determinable
whether
impairment
that
the
could
claimant
has
reasonably
be
a
medically
expected
to
produce the claimant’s symptoms; if so, the ALJ must then evaluate
the
intensity
and
persistence
of
the
claimant’s
symptoms
to
determine the extent to which they limit the claimant’s capacity
for work. 20 C.F.R. § 416.929(c)(1). Although an ALJ is required to
consider a claimant’s reports about her symptoms and limitations,
see 20 C.F.R. §§ 404.1529(a), 416.929(a), an ALJ is “not required
to accept the claimant’s subjective complaints without question; he
may
exercise
claimant’s
discretion
testimony
in
in
weighing
light
of
the
the
credibility
other
evidence
of
the
in
the
record[.]” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “If
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the
[Commissioner’s]
findings
are
supported
by
substantial
evidence, the court must uphold the ALJ’s decision to discount a
claimant's subjective complaints.” Aponte v. Sec’y, Dep’t of Health
&
Human
Servs.,
728
F.2d
588,
591
(2d
Cir.
1984)
(internal
citations omitted)
Here, the ALJ “note[d] that the record contains several
inconsistencies which adversely affects the credibility of some of
the allegations” by Plaintiff concerning her impairments. For
example, the ALJ found that contrary to her assertion that she is
“unable
to
work
at
all
because
of
her
impairments,”
she
nevertheless was able to work part time from December 2014, to
January 2015, doing telephone survey work, and “only left this job
because she was starting college, not because she could not do the
job.” T.37. The ALJ also noted that Plaintiff took out student
loans to attend college, “where she enrolled full time with an
additional extracurricular activity involving concert band[,]” and
“lived on campus with a roommate.” Id. The ALJ concluded that
“[s]uch
efforts
are
clearly
inconsistent
with
the
degree
of
severity” Plaintiff assigned to her subjective complaints. Id.
Under the regulations, the ALJ was permitted to consider
Plaintiff’s daily activities when determining the credibility of
her
subjective
complaints.
See
20
C.F.R.
§
416.929(c)(3)(i)
(“Factors relevant to your symptoms, such as pain, which we will
consider include . . . (i) Your daily activities. . . .”); see also
SSR 96-7p, 1996 WL 374186, at *5 (S.S.A. July 2, 1996) (“Assessment
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of the credibility of an individual’s statements about pain or
other symptoms and about the effect the symptoms have on his or her
ability to function must be based on a consideration of all of the
evidence in the case record. This includes . . . the individual’s
. . . prior work record and efforts to work, daily activities. . .
.”).5 Thus, the ALJ was well within his discretion in considering
Plaintiff’s part-time work and efforts to attend college as being
indicative of a greater ability to function. It is true, as
Plaintiff points out, that she ultimately withdrew from classes and
took a medical leave. Nevertheless, the ALJ was permitted to, and
properly did consider, the fact that Plaintiff was able to work a
part-time job that she did not leave due to any problems caused by
her impairments, but rather because she wanted to pursue her
education.
The
ALJ
also
noted
that
Plaintiff
apparently
failed
to
continue neurological care for her seizures, and he cited to a
treatment note dated October 31, 2013, that she stopped seeing her
neurologist because she did not like him. T.20 (citing T.490). The
ALJ opined that this was “not consistent with severe neurologic
difficulties.” T.20. The ALJ certainly was permitted to consider
Plaintiff’s treatment history for her seizures, including her
non-compliance
with
treatment
recommendations.
See
20
C.F.R.
5
The Court notes that SSR 96-7p was superceded by SSR 16-3p, which became
effective on March 28, 2016. SSR 96-7p, however, remains the relevant guidance
for the purposes of Plaintiff’s claim, which was filed on April 13, 2013.
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§ 416.929(c)(3)(v) (ALJ may consider “[t]reatment, other than
medication, [the claimant] receive[s] or have received for relief
of [her] pain or other symptoms”); see also SSR 96-7p, 1996 WL
374186, at *4. It is true that “the [ALJ] must not draw any
inferences about an individual’s symptoms and their functional
effects from a failure to seek or pursue regular medical treatment
without first considering any explanations that the individual may
provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical
treatment.” SSR 96-7p, 1996 WL 374186, at *7. However, the record
indicates that when Plaintiff told her physician, Dr. Jamela Khan,
that she had stopped seeing her neurologist, it was because she
“did not like him.” T.490. Notably, at that appointment, Plaintiff
did not report any symptoms or anxiety, depression, or mood changes
to Dr. Khan. Id. Thus, there is no indication that Plaintiff’s
mental impairments were the cause of her discontinuing treatment
with the neurologist.
Plaintiff further contends that the ALJ erred in stating that
her “credibility is significantly diminished by statements about
the severity of her condition which are not substantiated by the
medical evidence” such as her shortness of breath, tremors, and
problems with lifting. Plaintiff suggests that because she “is
suffering
with
mental
illness
that
certainly
interferes
with
decision making, behavior, and causes emotional lability[,]” Pl.’s
Mem. at 30 (citation to record omitted), it was improper for the
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ALJ to hold these inconsistencies against her. As an initial
matter, this conclusion appears to be Plaintiff’s attorney’s lay
opinion. Moreover, the crux of a credibility assessment is weighing
a claimant’s subjective complaints against the record as a whole,
including the objective evidence. See 20 C.F.R. § 416.929(a) (“In
determining
whether
you
are
disabled,
we
consider
all
your
symptoms, including pain, and the extent to which your symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence.”).
Ultimately, “[i]t is the function of the [Commissioner], not
[the reviewing 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) (citations omitted). Where, as here, there is
substantial evidence to support the ALJ’s determination, “‘it would
be improper for a reviewing court to parse the cold record for a
different result.’” Pascariello v. Heckler, 621 F. Supp. 1032, 1036
(S.D.N.Y. 1985) (quoting Deyo v. Weinberger, 406 F. Supp. 968, 974
(S.D.N.Y. 1975)).
The Court finds that the ALJ did not misapply the proper
regulatory factors or misstate the record. Furthermore, “such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion[,]” Richardson v. Perales, 402 U.S. 389, 401
(1971), supports the ALJ’s decision that Plaintiff’s testimony,
“taken as a whole, did not preclude the possibility that she could
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perform gainful activity,” Rivera v. Harris, 623 F.2d 212, 216
(2d Cir. 1980), at the unskilled, light exertional level.
V.
Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision was not legally erroneous and is supported
by substantial evidence. It therefore is affirmed. Accordingly,
Defendant’s motion for judgment on the pleadings is granted, and
Plaintiff’s motion for judgment on the pleadings is denied. The
Clerk of Court is directed to close this case.
ALL OF ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
September 13, 2018
Rochester, New York.
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