Graf v. Berryhill
Filing
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DECISION AND ORDER denying 10 Motion for Judgment on the Pleadings; granting 13 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close this case. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 5/31/2019. (HKG)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHANIE GRAF,
Plaintiff,
v.
17-CV-687
NANCY BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the
undersigned conduct any and all further proceedings in this case, including entry of final
judgment. Dkt. No. 15. Stephanie Graff (“Plaintiff”), who is represented by counsel,
brings this action pursuant to the Social Security Act (“the Act”) seeking review of the
final decision of the Commissioner of Social Security (“the Commissioner”), which
denied her applications for Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”). This Court has jurisdiction over the matter pursuant to
42 U.S.C. § 405(g). 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
Procedure. Dkt. Nos. 10, 13.
BACKGROUND
Plaintiff filed an application for SSI and DIB on July 2, 2013, alleging
disability commencing January 1, 2009. Tr. at 10, 64-72, 118-26.1 Plaintiff claims to be
1
Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket
No. 7.
disabled because of depression and anxiety. Tr. at 29-30. Plaintiff’s initial application
was denied and at her request, a hearing was held before Administrative Law Judge
(“ALJ”) Timothy M. McGuan on November 20, 2015. Tr. at 24-46. Plaintiff appeared
with her attorney and testified, along with a vocational expert. Tr. at 24-46. On
December 15, 2015, the ALJ issued a decision finding Plaintiff not disabled. Tr. at 7-23.
The Appeals Council denied Plaintiff’s request for review on May 25, 2017, making the
ALJ’s determination the final decision of the Commissioner. Tr. 1-3. Thereafter,
Plaintiff commenced this action seeking review of the Commissioner’s final decision.
Dkt. No. 1.
LEGAL STANDARD
Disability Determination
An ALJ must follow a five-step process to determine whether an individual
is disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At
step one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment,
or combination of impairments, that is “severe” within the meaning of the Act, meaning
that it imposes significant restrictions on the claimant’s ability to perform basic work
activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment
or combination of impairments, the analysis concludes with a finding of “not disabled.” If
the claimant does, the ALJ continues to step three.
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At step three, the ALJ examines whether a claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or
medically equals the criteria of a Listing and meets the durational requirement (20
C.F.R. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant’s
residual functional capacity (“RFC”), which is the ability to perform physical or mental
work activities on a sustained basis, notwithstanding limitations for collective
impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the
claimant’s RFC permits him or her to perform the requirements of his or her past
relevant work. 20 C.F.R. § 404.1520(f). If the claimant can perform such requirements,
then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth
and final step, wherein the burden shifts to the Commissioner to demonstrate that the
claimant “retains a residual functional capacity to perform the alternative substantial
gainful work which exists in the national economy” in light of his or her age, education,
and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks omitted); see also 20 C.F.R. § 404.1560(c).
District Court Review
42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g) (2007). The section directs that when considering such
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a claim, the Court must accept the findings of fact made by the Commissioner, provided
that such findings are supported by substantial evidence in the record.
Section 405(g) limits the scope of the Court’s review to two inquiries:
whether the Commissioner’s findings were supported by substantial evidence in the
record as a whole and whether the Commissioner’s conclusions were based upon an
erroneous legal standard. See Green-Younger v. Barnhart, 335 F.3d 99, 105–106 (2d
Cir. 2003). Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (emphasis added and citation
omitted). The substantial evidence standard of review is a very deferential standard,
even more so than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683
F.3d 443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).
When determining whether the Commissioner’s findings are supported by
substantial evidence, the Court’s task is “‘to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.’”
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983)) (per curiam). If there is substantial evidence for the ALJ’s
determination, the decision must be upheld, even if there is also substantial evidence
for the Plaintiff's position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin
ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where
the evidence is susceptible to more than one rational interpretation, the Commissioner’s
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conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
DISCUSSION AND ANALYSIS
The ALJ’s Decision
ALJ McGuan analyzed Plaintiff’s claims using the familiar five-step
process described above. See 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No.
07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five steps).
Preliminarily, the ALJ determined that Plaintiff met the insured status requirements of
the Act through September 30, 2015. Tr. at 12. At step one, the ALJ found that Plaintiff
had not engaged in substantial gainful activity since January 1, 2009, her alleged onset
date. Tr. at 12. At step two, he found that Plaintiff had the following severe
impairments: depressive disorder and anxiety disorder. Tr. at 13. At step three, the
ALJ concluded that Plaintiff’s impairments did not, either individually or in combination,
meet or equal the listings set forth at 20 C.F.R. § 404, Subpt. P, Appx. 1. Tr. at 13-14.
Next, the ALJ found that Plaintiff retained the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels, but with the following nonexertional limitations: she retains the ability to occasionally interact with the public and
can occasionally understand, remember, and carry out complex detailed tasks. Tr. at
14. The ALJ opined that the “longitudinal medical evidence is not necessarily consistent
with the claimant’s allegations of disability.” Tr. at 15. Although Plaintiff complained of
suffocating feelings, a racing heart, dizziness, mood swings and crying spells, the ALJ
observed that “the medical record overall shows that [she] retained normal psychiatric
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exams, normal mood and affect[.]” Tr. at 15. In fact, the ALJ noted, shortly before her
hearing, Plaintiff “reported that her anxiety was moderate and felt under control” and
that she was “only taking one Xanax a day.” Tr. at 15.
Continuing to the fourth step, the ALJ relied on the vocational expert,
Michelle Erbacher, in concluding that Plaintiff was unable to perform her past work as a
personal care aide. Tr. at 17. At step five, considering Plaintiff’s status as a younger
person with a high school education, ability to speak English, with past work experience
as an aide and a hairdresser and the aforementioned RFC, the ALJ relied on the
vocational expert’s testimony in finding that Plaintiff could perform work that exists in the
national economy. Tr. at 18. Specifically, the vocational expert opined that Plaintiff
could work as a cleaner/housekeeper or a routing clerk. Tr. at 18. Accordingly, the ALJ
concluded that Plaintiff was not disabled from January 1, 2009, her alleged onset date,
through December 15, 2015, the date of his decision.
Judgment on the Pleadings
The parties have cross-moved for judgment on the pleadings. Dkt. Nos.
10, 13. Plaintiff raises one argument in support of her motion, that is, that the ALJ failed
to properly weigh the opinion of Licensed Clinical Social Worker Tracy E. Pay (“LCSW
Pay”), a treating source, in determining her RFC. Dkt. No. 10-1, pp. 9-13. As a result,
Plaintiff argues, the Commissioner’s determination that she is not disabled is not
supported by substantial evidence. Dkt. No. 10-1, pp. 9-13. The Commissioner argues
that the ALJ provided legitimate reasons for assigning “little weight” to Ms. Pay’s
opinion, and that his decision is free of legal error and his conclusion is supported by
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substantial evidence. Dkt. No. 13-1, pp. 17-24. For the reasons that follow, this Court
denies Plaintiff’s motion for judgment on the pleadings and grants the Commissioner’s
motion seeking the same.
The ALJ’s Consideration of LCSW Pay’s Opinion
On November 12, 2015, LCSW Pay wrote a letter to the Law Offices of
Kenneth Hiller regarding Plaintiff’s “eligibility” for “disability.” Tr. at 410. Therein, LCSW
Pay reported that at that time, Plaintiff was “a 28-year-old married female with one
three-year-old son” who was “approximately eight and a half months pregnant” and “not
taking any psychotropic medications due to pregnancy but previously has been on
Zoloft and Burspar through her primary care physician.” Tr. at 410. According to LCSW
Pay, Plaintiff attended outpatient mental health treatment “from 6/20/2015 through the
present time” under a dual diagnosis of “Generalized Anxiety Disorder with Panic” and
“Depressive Disorder, Unspecified.” Tr. at 410. LCSW Pay noted that Plaintiff’s
“symptoms include chronic anxiety, panic and depression, which she has struggled with
since 2008/2009 as per her report,” and that she had “severe panic attacks on a daily
basis.” Tr. at 409. “Mrs. Graf has reported that past attempts at working were
unsuccessful due to the severity of her panic,” LCSW Pay wrote. Tr. at 409. “In my
clinical opinion,” LCSW Pay stated, “Mrs. Graf’s work capability is presently
compromised and therefore, it would be detrimental to her mental well being to be in a
work environment.” Tr. at 410.
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Plaintiff contends that the ALJ erred in assigning “little weight” to this
opinion, and that the error warrants a remand. This Court does not agree. As an initial
matter, a social worker, even a licensed clinical social worker, is not classified as an
“acceptable medical source,” but rather, as an “other source” under the regulations.
See 20 C.F.R. § 416.913(a); 20 C.F.R. § 416.913(d)(1). Opinions from other sources
regarding a claimant’s ability to work may be considered but are not entitled to
controlling weight. Genier v. Astrue, 298 F. App'x 105, 108 (2d Cir. 2008) (citing Social
Security Ruling 06-3p); see also Bliss v. Comm’r Soc. Sec., 406 F. App’x 541 (2d Cir.
Jan. 19, 2011) (holding that the social worker’s assessment was ineligible to receive
controlling weight because social workers do not qualify as “acceptable medical
source[s]”).
Moreover, as the ALJ noted, LCSW Pay did not assess Plaintiff’s mental
abilities on a function-by-function basis but merely opined that her “work capability” was
“presently compromised.” Tr. at 16, 410. The ultimate issue of whether a claimant is
capable of working is reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(e);
416.927(e)(1). Thirdly, although LCSW Pay shared a treating relationship with plaintiff,
the ALJ recognized that the “relation was for a short period at the time of the
assessment,” approximately five months long. Tr. at 16. The length of a treating
relationship is an appropriate factor for an ALJ to consider in deciding what weight to
afford to treating source. Ecklund v. Comm’r, 349 F. Supp. 3d 235, 242 (W.D.N.Y.
2018) (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).
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Plaintiff complains that the ALJ erred in giving LCSW Pay’s opinion little
weight under the length-of-treating-relationship reasoning while giving “significant
weight” to the opinion of Dr. Gregory Fabiano (“Dr. Fabiano”), who examined Plaintiff
only once. Dkt. No. 10-1, pp. 10-11. This argument is flawed for several reasons. As
the ALJ noted, Dr. Fabiano’s opinion that Plaintiff was not restricted by her mental
impairments was consistent with the objective medical evidence in the record. Tr. at 16,
371-75. Moreover, it is clear from his report that Dr. Fabiano predicated his opinion on
his direct physical examination of Plaintiff (revealing that Plaintiff was cooperative and
well groomed; had appropriate eye contact and fluent speech; demonstrated adequate
expressive and receptive language skills; and exhibited coherent and goal directed
thought processes, euthymic mood, intact attention, concentration and memory skills,
average cognitive functioning, and good insight and judgment) and the objective
medical and other evidence (revealing that Plaintiff had never been hospitalized for
psychiatric reasons and had no family history; that she was married with no legal
problems, and was able to groom herself, look after her young child, take care of her
house, and manage money). Tr. at 372-74.
By contrast, LCSW Pay’s much more restrictive opinion appears to be
based solely Plaintiff’s subjective complaints. Tr. at 410. There are no treatment notes
from LCSW Pay that support her opinion that Plaintiff could not work or was otherwise
compromised. Tr. at 212-410. Plaintiff, who bears the burden of proving that she is
disabled, told the ALJ that the record was complete. Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008); Tr. at 26. The ALJ also reasoned that Plaintiff’s treatment was
generally routine and conservative in nature, belying LCSW Pay’s opinion that Plaintiff
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could not work. Tr. at 15. For example, in February and March of 2009, after her
alleged onset date, Plaintiff went to the emergency room, but her psychiatric exams
showed that her mood was appropriate and her cognitive function, behavior,
appearance, insight, and thought content were all within normal limits, and she was
discharged home. Tr. at 218-19, 228. Plaintiff did not seek any mental health treatment
between her emergency room visit in March 2009 and August 2011, approximately 27
months. This indicates that Plaintiff’s symptoms were not as severe as LCSW Pay
concluded. Diaz-Sanchez v. Berryhill, 295 F. Supp. 3d 302, 306 (W.D.N.Y. 2018)
(holding that where a claimant “has sought little-to-no treatment for an allegedly
disabling condition, his inaction may appropriately be construed as evidence that the
condition did not pose serious limitations”).
Even during her emergency room visits, Plaintiff’s thought processes were
relevant, her speech fluent, her mood appropriate and her affect normal. Tr. at 15, 275.
At a mental exam a year later in June 2012, Plaintiff demonstrated fluent speech,
appropriate mood, and normal affect. Tr. at 15, 263. She showed no acute distress at
exams in August and October 2012, or in January and March 2013. Tr. at 15, 250, 254,
258. In March 2015, Plaintiff reported that her anxiety was moderate but “under
control.” Tr. at 15, 391.
This objective medical evidence was consistent with Plaintiff’s hearing
testimony and her reported activities of daily living, which did not support a restrictive
RFC. By way of example, Plaintiff testified that before her pregnancy, her medication
was helping control her anxiety although “not 100%.” Tr. at 37. Plaintiff reported that
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she hung out with her neighbors and took care of her son, doing basically “everything
you do for a kid,” like feeding, bathing and clothing him. Tr. at 164. She testified that
when she experienced anxiety while watching her son, she focused on him to ease her
mind. Tr. at 36. Plaintiff also testified that she took care of her house, cooking for her
family and cleaning. Tr. at 37. These activities are inconsistent with Plaintiff’s claims
that she is disabled by depression and anxiety. Poupore v. Astrue, 566 F.3d 303, 307
(2d Cir. 2009) (holding that the ALJ properly discounted Plaintiff’s claim that he was
disabled where he took care his one-year-old child, changed diapers, and sometimes
vacuumed and washed dishes).
Under the circumstances, the ALJ did not err in declining to give
controlling weight to LCSW Pay’s opinion which, on its face, was based solely on
Plaintiff’s subjective reports. Fagner v. Berryhill. No. 14-CV-6569, 2017 WL 2334889, at
*8 (W.D.N.Y. May 30, 2017). It is, in fact, the role of the ALJ to compare specific
medical opinions against the record as a whole, and to reject those opinions that are
inconsistent with the evidence. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); see also
Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 7-8 (2d Cir. 2017) (holding that the ALJ
did not violate the “treating physician” rule, where ALJ determined that the treating
doctor’s treatment notes often stated that the claimant’s mood was “stable” or “good,”
contradicting the doctor’s restrictive RFC assessment). Given that Plaintiff’s mental
examinations were largely unremarkable and her treatment history conservative, this
Court finds that the ALJ did not err in giving little weight to LCSW Pay’s opinion that
Plaintiff could not work. Overstreet v. Berryhill, 335 F. Supp. 3d 500, 504 (W.D.N.Y.
2018) (holding that Plaintiff's largely unremarkable physical and mental examination
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findings and conservative treatment history were relevant factors in determining whether
she was disabled).
CONCLUSION
For the reasons stated herein, Plaintiff’s motion for judgment on the
pleadings (Dkt. No. 10) is hereby DENIED, and the Commissioner’s motion for
judgment on the pleadings (Dkt. No. 13) is hereby GRANTED. The Clerk of the Court is
directed to close this case.
SO ORDERED.
DATED:
Buffalo, New York
May 31, 2019
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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