Morrisson v. Commissioner of Social Security
Filing
20
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 17 Defendant's Motion for Judgment on the Pleadings. Clerk is ordered to close this case. Signed by Hon. Charles J. Siragusa on 2/18/20. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
DOUGLAS MORRISSON,
Plaintiff,
-vs-
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
1:18-CV-0531 (CJS)
Defendant.
________________________________________
INTRODUCTION
Plaintiff Douglas Morrisson brings this action pursuant to 42 U.S.C. § 405(g)
to review the final determination of the Commissioner of Social Security
(“Commissioner”) denying Plaintiff’s application for Disability Insurance Benefits
(“DIB”). Plaintiff claims to be disabled due to both mental and physical disorders.
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). Pla.’s Mot., May 22, 2019, ECF No. 9; Def.’s Mot., Sept. 19,
2019, ECF No. 17. For the reasons set forth below, Plaintiff’s motion [ECF No. 9] is
denied, the Commissioner’s motion is granted [ECF No. 17], and the Clerk is directed
to close the case.
PROCEDURAL HISTORY
The Court assumes the reader’s familiarity with the underlying facts and
procedural history in this case. Plaintiff worked as an attorney in the Social Security
Administration’s Office of Disability Adjudication and Review from April 2001 until
1
March 2016.
Transcript (“Tr.”) 30, Mar. 18, 2019, ECF No. 6.
In March 2016,
Plaintiff had a dispute with his supervisor regarding Plaintiff’s report that one of the
Social Security Administration’s contractors was committing fraud. See, e.g., Tr.
119–122, 848–850.
This dispute led to Plaintiff’s mental decompensation, from
which he alleges he has yet to recover.
On April 12, 2016, Plaintiff filed his DIB application alleging an onset date of
March 31, 2016.
Tr. 300.
In his initial “Disability Report” filed with his DIB
application, Plaintiff claimed that all of the following physical and mental conditions
limited his ability to work: glaucoma (right eye), refraction error (left eye), bipolar
disorder, general anxiety disorder, post-traumatic stress disorder (“PTSD”), ADHD,
hernia, severed PCL (right knee), damaged MCL (right knee), and back pain. Tr.
360. The Commissioner denied Plaintiff’s application on August 24, 2016. Tr. 225.
Thereafter, Plaintiff requested a reconsideration and submitted additional
evidence.
Tr. 232–233.
After further review, the Commissioner again denied
Plaintiff’s application on February 13, 2017. Id. On February 23, 2017, Plaintiff
submitted an appeal and requested a hearing before an Administrative Law Judge.
Tr. 235.
Plaintiff’s request was granted, and his hearing occurred in two sessions. The
first session of Plaintiff’s hearing was held via video conference on July 11, 2017. Tr.
114. The Administrative Law Judge assigned (the “ALJ”) presided over the hearing
from Buffalo, New York.
Tr. 115.
Plaintiff appeared pro se and testified from
2
Jamestown, New York. Id. The second session of Plaintiff’s hearing was held via
video conference and telephone on November 7, 2017.
Tr. 50.
The ALJ again
presided over the hearing from Buffalo, and Plaintiff again appeared pro se from
Jamestown. Id. In addition, during the second session the ALJ called a medical
expert and a vocational expert to testify by phone. Id.
In his decision on December 5, 2017, the ALJ found that Plaintiff was not
disabled. Tr. 41. On March 30, 2018, the Social Security Administration’s Appeals
Council denied Plaintiff’s request for further review of the ALJ’s decision. Tr. 1–6.
The ALJ’s decision thus became the “final decision” of the Commissioner subject to
judicial review under 42 U.S.C. § 405(g).
STANDARD OF REVIEW
42 U.S.C. § 405(g) states that a finding by the Commissioner is “conclusive” if
it is supported by substantial evidence.
However, before deciding whether the
Commissioner's determination is supported by substantial evidence, the Court must
first determine “whether the Commissioner applied the correct legal standard.”
Jackson v. Barnhart, No. 06-CV-0213, 2008 WL 1848624, at *6 (W.D.N.Y. Apr. 23,
2008) (quoting Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Failure to apply
the correct legal standards is grounds for reversal.” Id. (quoting Townley v. Heckler,
748 F.2d 109, 112 (2d Cir.1984)).
Provided the proper legal standards were applied, however, “it is not the
function of a reviewing court to decide de novo whether a claimant was disabled.”
3
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “Where the Commissioner's decision
rests on adequate findings supported by evidence having rational probative force, [the
Court] will not substitute our judgment for that of the Commissioner.”
Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
DISCUSSION
The law defines disability as the “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 Social Security Administration has outlined a “five-step, sequential evaluation
process” to determine whether a claimant of DIB is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity” assessment,
whether the claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant numbers
of jobs in the national economy that the claimant can perform given the
claimant's residual functional capacity, age, education, and work
experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537
F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. § 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v)).
The claimant bears the burden of proving that he or she has a disability at steps one
through four, and the burden shifts to the Commissioner at step five to show that
there is work in the national economy that claimant can perform. Id.
4
When a mental impairment is alleged, the regulations require the ALJ to apply
a “special technique” at the second and third steps of the five-step evaluation in order
to determine whether the claimant in fact has a debilitating mental impairment.
Petrie v. Astrue, 412 Fed. Appx. 401, 408 (2d Cir. 2011) (citing 20 C.F.R. §404.1520a).
If the claimant does have such an impairment, the ALJ must rate the claimant’s
functional limitations in four broad functional areas. 1 Id.
In his decision in the instant case, the ALJ followed this five-step sequential
evaluation process and found that Plaintiff was not disabled. At step one of the
analysis, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since March 31, 2016, the alleged onset date. Id. At step two of the analysis, the
ALJ determined that Plaintiff had the following severe impairments: post-traumatic
stress disorder (“PTSD”), generalized anxiety disorder, and borderline personality
disorder. Tr. 26–27.
The ALJ then applied the “special technique” for mental impairments and
found that Plaintiff had no limitation in understanding, remembering or applying
information; a marked limitation in interacting with others; a mild limitation in
concentrating, persisting, or maintaining pace; and a moderate limitation for
adapting or managing himself. Tr. 27–28. Consequently, the ALJ determined that
From June 13, 2011 to January 16, 2017, these four broad areas included: “Activities of daily
living; social functioning; concentration, persistence, or pace; and episodes of decompensation.” 20
C.F.R. § 404.1520a(c)(3) (2011). As amended in 2017, the four broad areas of § 404.1520a(c)(3) (2017)
include “Understand, remember, or apply information; interact with others; concentrate, persist, or
maintain pace; and adapt or manage oneself.”
1
5
Plaintiff’s mental impairments, either individually or together, did not meet or
medically exceed the severity of one of the Commissioner’s listed impairments. Tr.
27.
Before proceeding to step four, the ALJ considered the entire record and found
that Plaintiff has the following residual functional capacity:
to lift, carry, push and pull 20 pounds occasionally and 10 pounds
frequently. He can sit for six hours, stand for six hours and walk for six
hours in an eight-hour workday. He can frequently climb ramps and
stairs, and occasionally climb ladders, ropes, and scaffolds. He cannot
repetitively stoop, kneel, or crouch and he can never crawl. He is limited
to avoiding ordinary hazards in the workplace (i.e., boxes on the floor,
doors ajar, etc.). He can never work at unprotected heights. He can
operate a motor vehicle occasionally. The claimant can have no more
than incidental (1/6 of shift) interaction with supervisors, co-workers
and the public as necessary to perform assigned work, with visible or
audible contact permitted at all other times, but with no interaction
required. The claimant's time off task can be accommodated by normal
breaks. He would be absent once per month at two-hour intervals each
for pre-arranged behavioral health treatment appointments, including
vicinity travel to and from the worksite.
Tr. 29. At step four, the ALJ found that Plaintiff is still capable of performing his
past relevant work as a lawyer, which does not require the performance of workrelated activities precluded by Plaintiff’s residual functional capacity.
Tr. 40.
Hence, the ALJ concluded that Plaintiff is not disabled. Id.
In seeking to have the decision of the Commissioner reversed, Plaintiff claims
that the ALJ’s determination that Plaintiff is not disabled is not supported by
substantial evidence in the record and is based upon error of law. With respect to
the evidence, Plaintiff contends “the evidence of record does not contain substantial
6
evidence to support a finding that Mr. Morrisson would not decompensate if he were
to return to the workplace.” Pl. Mem. of Law, 15, May 22, 2019, ECF No. 9-1.
With respect to errors of law, Plaintiff argues the ALJ erred in his evaluation
of the evidence by (1) failing to observe the “treating physician rule,” (2) failing to
discuss the 2001 report of Dr. Burton Grodnitzky and the opinions of the state agency
psychological consultants, (3) providing the vocational expert with an incomplete
hypothetical for her testimony, and (4) failing to discuss Plaintiff’s “excellent work
and wage history.” Id. at 18–28. Plaintiff also argues that the Appeals Council
erred as a matter of law by failing to consider the finding by the Office of Personnel
Management (OPM) that Plaintiff was eligible for disability retirement from his
senior attorney position with the Social Security Administration. Id. at 27.
The Court has re-ordered the issues raised by Plaintiff’s brief for ease of
discussion in this decision and order.
The “Treating Physician Rule”
As to the “treating physician rule,” Plaintiff argues that the ALJ erred when
he did not give controlling weight to the opinions of his treating sources, all of which
Plaintiff claims were “well-supported” and “not inconsistent” with the other evidence
in the record. Pl. Mem of Law at 18. Plaintiff identifies five sources as “treating
sources” for the purposes of the “treating physician rule”: Dr. Victoria Curall, Dr.
Stefanie Gwaltney-Hausch, Dr. Janet Wilson, Dr. Randolph Frank, and Dr. Burton
Grodnitzky. Pl. Mem of Law at 19–20.
7
For claims filed before March 27, 2017, the “treating physician rule” finds its
basis in 20 C.F.R. § 404.1527. § 404.1527(c)(1) provides that, generally speaking, a
source who has examined the claimant is entitled to greater weight than one who has
not. Further, § 404.1527(c)(2) states:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's medical opinion on
the issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight. 2
“[I]t is well settled that the ALJ is not permitted to substitute his own expertise
or view of the medical proof for the treating physician's opinion or for any competent
medical opinion.” Burgess v. Astrue, 537 F.3d 117, 131 (2d Cir. 2008). Nevertheless,
the Second Circuit has cautioned that “[a] treating physician's statement that the
claimant is disabled cannot itself be determinative.” Snell v. Apfel, 177 F.3d 128,
133 (2d Cir.1999). Indeed, the regulations require that the treating source’s medical
opinion be controlling only if it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record . . . .” 20 C.F.R. § 404.1527(c)(2).
Where the treating source’s medical opinion does not meet these criteria, the
For claims filed after March 27, 2017, the rules in § 404.1520c apply to the evaluation of opinion
evidence.
2
8
ALJ is required to give “good reasons” for the weight assigned to the opinion. Id.
The ALJ must determine the weight of the opinion by analyzing such factors as the
length of the treatment relationship, frequency of examination, nature and extent of
the treatment relationship, supportability of the opinion by relevant evidence,
consistency with the record as a whole, the source’s level of specialization, and other
relevant factors. 20 C.F.R. § 404.1527(c)(2)–(6).
In his decision, the ALJ found that the “opinions rendered by the claimant’s
treating sources assume the claimant faced an atmosphere of hostility and
antagonism [at work], which apparently followed a serious disagreement between the
claimant and his supervisor.” Tr. 38. The ALJ stated that “[t]here is no evidence
to support a conclusion that the claimant would be unable to adjust to performing the
work-related activities involved in the lawyer’s job as he performed it, absent the
hostile work environment.” Id. Hence, the ALJ assigned minimal weight to the
opinions of all of Plaintiff’s treating sources as they related to the ALJ’s
determination of whether or not Plaintiff could perform any substantial gainful
activity in other work environments. Id.
For the reasons stated below, the Court finds the ALJ’s decision did not violate
the treating physician rule.
9
Victoria Currall, M.D.
The ALJ assigned “some weight” to the opinion of Victoria Currall, M.D.,
because her opinion appeared to be based largely on the subjective reports of
symptoms and limitations provided by Plaintiff, and the limitations she recorded on
her functional capacity form seemed to have no clinical correlation with Plaintiff’s
symptoms. Tr. 40.
Dr. Currall was Plaintiff’s primary care physician “for many years.” Tr. 1083.
The record includes notes from several of Plaintiff’s visits to Dr. Currall. Tr. 665–
778. With respect to his mental impairments, the record reflects that on April 1,
2016, Dr. Currall saw Plaintiff at her offices and thereafter issued a letter stating
that “he is mentally decompensated and unable to continue to carry out his normal
daily activities and work responsibilities.” Tr. 1084. During the visit, Dr. Currall
recorded that Plaintiff was “having trouble at work [after] he reported a contractor
that was committing fraud [and] his management has immediately retaliated.” Tr.
672. Dr. Currall further recorded that Plaintiff “feels ‘Broken’ – incapable of doing
anything – completely decompensated.” Id. Her assessment was that Plaintiff had
“a [m]ajor depressv [sic] disorder,” which was recurrent and severe without psychotic
features. Tr. 674.
With respect to Plaintiff’s physical impairments, Dr. Currall treated Plaintiff
for a variety of ailments from sinusitis to cellulitis to back pain and a hernia. On
May 3, 2016, Dr. Currall noted that Plaintiff had been lifting 15-pound boxes on a
10
step stool the previous night, and noticed that his back was sore the following day
after lifting three bags of groceries.
Tr. 668.
On August 9, 2016, Dr. Currall
examined Plaintiff in her office and palpated an inguinal hernia. Tr. 1109. On the
physical residual functional capacity form she filled out on that date, Dr. Currall
indicated that Plaintiff suffered from lumbago, depression, bipolar disorder, PTSD,
anxiety, and an inguinal hernia.
Tr. 1085.
She also cited a series of postural
limitations cited in the ALJ’s decision, including that “patient reports he can lift 20
pounds for 1/3 of the day, and 10 pounds for 2/3 of the day.” Tr. 37.
The Court finds no error in the ALJ’s weighting of Dr. Currall’s opinion because
Dr. Currall is not a specialist in mental health treatment, and the physical
restrictions the ALJ included in his residual functional capacity assessment largely
reflect Dr. Currall’s observations. Tr. 29. The postural limitations were included
in the ALJ’s residual functional capacity assessment, except the ALJ found Plaintiff
could not repetitively stoop, kneel or crouch, rather than adopt Dr. Currall’s opinion
that he “never” could. Tr. 29. The ALJ’s departure from Dr. Currall’s assessment
was not contrary to law because Dr. Currall’s opinion was not clearly linked to her
clinical assessment, and the state medical examiners “reviewed the evidence of record
and opined that the medical evidence from claimant’s treating sources did not support
any severe (physical) impairment.” Tr. 37.
11
Dr. Stefanie Gwaltney-Hausch
The ALJ gave “little weight” to the two submitted statements of Dr. Stefanie
Gwaltney-Hausch, which were unaccompanied by any additional medical records.
Tr. 1088, 1097. On October 26, 2016, Dr. Gwaltney Hausch submitted a short letter
indicating that she was currently treating Plaintiff on a weekly basis for psychological
trauma, with associated diagnoses of PTSD, bipolar disorder, and ADD. Tr. 1088.
She opined that his symptoms result in an “inability to perform skilled or semi-skilled
work on a sustained basis of 40 hours per week . . . [and] his inability to do so will
last for a duration exceeding a year.” Id.
In a one page “treatment summary” dated January 25, 2017, Dr. GwaltneyHausch indicated she saw Plaintiff between September 2016 and December 2016,
before treatment had to be suspended due to problems with Plaintiff’s insurance. Tr.
1097. Based on her review of her treatment notes, which were not provided with the
letter, Dr. Gwaltney-Hausch identified several “manifestations” of Plaintiff’s PTSD
and bipolar diagnoses, including: unkempt appearance evidencing impairment in
daily self-care; loud, pressured speech; loosening associations and flight of ideas; and
unpredictable shifts in topic of conversation. Id. She anticipated that full recovery
would be possible, but that it would be at least one year before Plaintiff’s symptoms
would abate. Id.
12
The Court finds that the ALJ’s decision to award “little weight” to Dr.
Gwaltney-Hausch’s opinion was not contrary to law. While Dr. Gwaltney-Hausch
had seen Plaintiff on a weekly basis over the course of a few months in 2016, as the
ALJ noted, her assessment was at odds with the Mental Status Exams of Plaintiff’s
treating psychiatrist, Dr. Randolph Frank, which showed Plaintiff’s attention,
concentration and memory skills were intact. In addition, Dr. Gwaltney-Hausch did
not submit any detailed treatment or diagnostic records that would have allowed the
ALJ to assess her statements in greater depth.
Dr. Janet Wilson
The ALJ gave “little weight” to the opinion of Dr. Janet Wilson because, the
ALJ stated, her “opinion is vague and does not indicate specific limitations.” Tr. 38.
In a letter dated, June 8, 2016, Dr. Wilson indicated that she saw Plaintiff for one
evaluation session and 21 psychotherapy sessions between December 29, 2013 and
June 3, 2014.
Tr. 848. She stated that Plaintiff terminated treatment with her
prematurely “following hospitalization for a suicide attempt following an upsetting
domestic episode involving his wife.” Id. Included in the record are Dr. Wilson’s
notes of several disturbing childhood incidents that Dr. Wilson believes contributed
to Plaintiff’s disorders. Tr. 1074.
Dr. Wilson also indicated that she saw Plaintiff on April 4, 2016, at which time
he asked her to prepare a letter for his employer “supporting his need to be on ‘Leave
Without Pay’ status as a result of harassment he was experiencing at work for
13
whistleblowing.” Id. In that letter, Dr. Wilson indicated her opinion that “[f]urther
exposure to the hostile dynamics of this work environment would be seriously
detrimental to [Plaintiff]’s health and well-being.” Tr. 850. She further stated that
Plaintiff’s bipolar disorder and PTSD “render him particularly vulnerable to stress
and under the current circumstances, unable to perform in his current work setting.”
Id.
Lastly, in a letter dated July 25, 2016, Dr. Wilson stated that “even under the
best of circumstances, successful recovery would require extensive, long-term
psychotherapy.” Tr. 1065.
After providing a brief summary of her experience
treating Plaintiff, Dr. Wilson concluded, “[u]nder any circumstances, [Plaintiff] is
impaired by his mental health conditions and is not equipped to successfully handle
the rigors of the workplace . . . .” Id.
The Court finds that the ALJ’s assessment of Dr. Wilson’s medical opinion as
of “little weight” is not contrary to law given the context of her opinion. Although
the childhood traumas suffered by Plaintiff listed in Dr. Wilson’s treatment notes can
be considered significant, it is notable that Dr. Wilson’s primary treatment of Plaintiff
was in the first six months of 2014, before which Plaintiff had successfully functioned
in his work environment for approximately 13 years, and after which Plaintiff
continued to successfully function for nearly two more years prior to the dispute with
his supervisor that led to his decompensation. Furthermore, Dr. Wilson’s initial
letter in April 2016, contained important language limiting her opinion to “this work
14
environment, “the current circumstances,” and “his current work setting.” Tr. 850.
While her later letter, in July 2016, was more generally applicable, Dr. Wilson did
not have a treating relationship with Plaintiff at that time. Tr. 1065.
Dr. Randolph Frank
The ALJ did not dedicate a paragraph to expressly assessing the weight he
gave to Dr. Randolph Frank’s opinion, but the ALJ did identify Dr. Frank as
Plaintiff’s “treating psychiatrist.” Tr. 39. Therefore, the Court analyzes the ALJ’s
consideration of Dr. Frank’s opinion using the ALJ’s general statement that
Plaintiff’s treating sources were given minimal weight because their opinions
“assume the claimant faced an atmosphere of hostility and antagonism [at work], and
present “no evidence to support a conclusion that the claimant would be unable to
adjust to performing the work-related activities involved in the lawyer’s job as he
performed it, absent the hostile work environment.” Id.
In a letter to the Social Security Administration dated July 26, 2016, Dr. Frank
indicated that Plaintiff had been under his care since 2008 for the treatment of
bipolar disorder, attention deficit disorder (“ADD”), and PTSD. Dr. Frank noted that
Plaintiff “did well despite significant marital stressors and other life difficulties until
March and July 2016, when he encountered significant workplace trauma.” Tr. 14.
After alluding to Plaintiff’s July 2016 decompensation and hospitalization in a
psychological facility, Dr. Frank stated, “with a high degree of medical certainty,”
that if Plaintiff were to return to “that workplace,” he may again be traumatized. Id.
15
(emphasis added).
Consequently, Dr. Frank opined that Plaintiff’s “ability to
perform his usual sustained gainful employment has been compromised.” Id.
Also in the record are Dr. Frank’s treatment notes from office visits that
Plaintiff made on July 1, 2015; August 18, 2015; October 5, 2015; December 16, 2015;
February 16, 2016; March 16, 2016; June 6, 2016; July 26, 2016; August 2, 2016;
September 22, 2016; and November 3, 2016. Tr. 895–903; 1090–1091. For nearly
all eleven of those office visits, the section of the treatment notes entitled “Mental
Status Exam” reflect that in Dr. Frank’s judgment, Plaintiff was well-groomed,
cooperative, calm, euthymic, normal speech, intact thought process, intact memory,
intact concentration, intact attention, intact judgment and insight and appropriate
abstract thinking. The primary exception is July 26, 2016, following Plaintiff’s failed
attempt to return to work at the Social Security Administration, when Dr. Frank’s
“Mental Status Exam” reflected a “worrisome” affect and “anxious” mood. Tr. 902.
Significantly, even at that traumatic time, Dr. Frank’s notes show that Plaintiff’s
memory, concentration, attention and thinking all still appeared to be “intact.” Tr.
902. While the handwritten notes on July 26, 2016, reflect stress due to Plaintiff’s
supervisor, notes from the other visits also include multiple observations to the effect
that Plaintiff is doing well.
The Court finds that the ALJ’s interpretation of Dr. Frank’s medical opinion
as exclusive to the work environment Plaintiff faced at his particular Social Security
Administration office is not unreasonable or contrary to law given Plaintiff’s ability
16
to work for eight years under Dr. Frank’s care, as well as the other evidence in the
record.
Dr. Burton H. Grodnitzky
The ALJ did not discuss Dr. Burton H. Grodnitzky at all in his decision.
Plaintiff contends this also amounts to an error of law under the “treating physician
rule.”
Based on a report submitted by Plaintiff, it appears that Plaintiff’s former
treating psychiatrist, Demetrius Georgopolis, M.D., referred Plaintiff to Dr.
Grodnitzky for a neuropsychological evaluation in October of 2001.
Tr. 15.
Dr.
Grodnitzky’s report indicates that the purpose of the evaluation “is to get a clearer
picture of [Plaintiff’s] neuropsychological functioning and to make treatment
recommendations.” Tr. 16. The report indicated that Plaintiff “functions overall in
the High Average range [and] demonstrated an ability to think flexibly . . . .” Tr. 19.
Nevertheless,
Plaintiff
also
demonstrated
“rather
severely
impaired
attention/concentration difficulties” and “[t]here were indications of some memory
impairment . . . .” Id. Dr. Grodnitzky concluded that Plaintiff would likely “have
difficulty handling a high demand type of position and is probably well-suited to
continue in his current position.” Tr. 20.
Under the regulations, a “treating source” is defined as an “acceptable medical
source who provides you, or has provided you, with medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with you.” 20 C.F.R. §
17
404.1527(a)(2).
It does not appear from the record, nor does Plaintiff otherwise
allege, that he had an ongoing treatment relationship with Dr. Grodnitzky. Though
the evaluation appears to have occurred over three sessions, there is no indication
that the relationship with Dr. Grodnitzky was anything other than a one-time
neuropsychological
evaluation
conducted
fifteen
years
prior
to
Plaintiff’s
decompensation. Tr. 16. Accordingly, the Court finds that Dr. Grodnitzky was not
a treating source, and hence that the ALJ’s failure to attribute weight to Dr.
Grodnitzky’s evaluation results from 2001 was not contrary to law.
Failure to Consider Medical Evidence
Plaintiff observes that the ALJ failed to discuss Dr. Grodnitzky’s report and
the “unanimous opinions of the State Agency Psychological Consultants” that
Plaintiff needs accommodation with respect to workplace supervision. Plaintiff
contends that this constitutes an error of law in violation of 20 C.F.R. § 404.1527(c),
which requires the ALJ to “evaluate every medical opinion [he] receives.”
The
Court disagrees.
Although § 404.1527 requires the Commissioner to consider every medical
opinion that he receives, he is “not required to explicitly . . . reconcile every conflicting
shred of medical testimony . . .” Dean v. Comm'r of Soc. Sec., No. 18-CV-6323 HBS,
2019 WL 3450971, at *3 (W.D.N.Y. July 31, 2019) (citing, inter alia, Miles v. Harris,
645 F.2d 122, 124 (2d Cir. 1981)). Indeed, the Second Circuit has consistently held
that “failure to cite specific evidence does not indicate that such evidence was not
18
considered.” Banyai v. Berryhill, 767 F. App'x 176, 177 (2d Cir. 2019), as amended
(Apr. 30, 2019).
After a careful review of the record and of the ALJ’s decision, the Court finds
that the ALJ did not err with respect to the opinions of the state agency psychological
consultants.
As noted above, the ALJ’s residual functional capacity finding
specifically limited Plaintiff to “no more than incidental contact” with his supervisors,
and the ALJ expressly stated that he “placed limitations on [Plaintiff’s] exposure to
supervision . . . to minimize the demands of social interaction.”
Tr. 29, 40.
Moreover, at multiple points throughout his decision, the ALJ discusses the opinions
of the state psychologists and assesses their merit in relation to an ultimate
determination of Plaintiff’s status. See, e.g., Tr. 34 (discussing the opinions of Dr.
Leizer and Dr. Milan); Tr. 39 (discussing the opinions of Dr. Milan and Dr. Sampson).
The ALJ did not err by failing to expressly reconcile his residual functional capacity
finding with the opinions of each of the state psychological consultants. Dean, 2019
WL 3450971, at *3.
With respect to Dr. Grodnitzky’s opinion, the Court notes that “[w]hen, as here,
the evidence of record permits us to glean the rationale of an ALJ's decision, we do
not require that he have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or insufficient to lead
him to a conclusion of disability.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.
1983).
As the medical expert stated in his testimony, Dr. Grodnitzky evaluated
19
Plaintiff and issued his report in 2001. Tr. 84. Plaintiff himself reports that in the
fifteen years after Dr. Grodnitsky’s report, Plaintiff “distinguished [him]self right
away and had a highly successful career . . . [and] courageously pressed on with [his]
work.” Tr. 374. This is consistent with the ALJ’s conclusion that “[t]here is no
objective evidence to support an inference that, absent the hostile work environment
. . . [Plaintiff] would have been unable to adjust to perform this work as he had done
successfully for many years.” Tr. 41. The Court therefore finds the ALJ’s failure to
mention Dr. Grodnitzky’s report was not reversible error.
The Vocational Expert
Plaintiff argues that the ALJ erred as a matter of law by presenting the
vocational expert at the administrative hearing with a hypothetical that was at odds
with Plaintiff’s actual work capacity. Pla. Mem. of Law at 25. Specifically, Plaintiff
observes that the hypothetical presented to the vocational expert involved a claimant
who was “able to deal with ordinary levels of supervision in the customary work
setting.”
Tr. 96.
Plaintiff contends that the ALJ’s hypothetical was an
overstatement of Plaintiff’s actual capacity, and that this discrepancy led the
vocational expert to the erroneous conclusion that Plaintiff was able to do his past
relevant work as actually performed.
The Court finds that the hypothetical presented to the vocational expert does
not constitute a reversible error of law in this case. 20 C.F.R. § 404.1560(a) provides
that where the Commissioner cannot decide whether a claimant is disabled at one of
20
the first three steps of the sequential evaluation process, the Commissioner “will
consider the claimant’s residual functional capacity together with [claimant’s]
vocational background.” Then, the Commissioner compares the residual functional
capacity finding with the “physical and mental demands of [claimant’s] past relevant
work” to determine if the claimant can perform that work.
§ 404.1560(b).
The
Commissioner has the authority to elicit the testimony of a vocational expert to assist
with this task. Id.
It is true that the vocational expert’s testimony that “Plaintiff could perform
the past work as actually performed but not as generally performed” was based on
the hypothetical of an individual dealing with “ordinary levels of supervision.” Tr.
96.
Yet the ALJ did not rely upon the vocational expert’s opinion alone.
Considering the vocational expert’s opinion, Plaintiff’s fifteen year work history and
earnings record prior to his dispute with his supervisor, and the absence of evidence
that Plaintiff could not function in non-hostile work environments, the ALJ found “no
objective evidence to support an inference that, absent the hostile work environment
. . . [Plaintiff] would have been unable to adjust to perform this work as he had done
successfully for many years.” Tr. 41. Moreover, Plaintiff also had the opportunity
to examine the vocational expert more completely on this point in order to satisfy his
burden of proof, yet Plaintiff failed to do so.
Hence, where the ALJ presented an incomplete hypothetical that the
vocational expert answered in the context of assisting the ALJ in his step four
21
determination of residual functional capacity, in which the burden was on the
Plaintiff to establish evidence of a disability, the Court finds there was no error of
law.
Plaintiff’s Work and Wage History
Plaintiff argues that the ALJ failed to discuss Plaintiff’s strong earnings
history, which Plaintiff believes should entitle him as a matter of law to “substantial
credibility” when claiming an inability to work due to disability. Pla. Mem. of Law
at 28.
In the Second Circuit, “[a] claimant with a good work record is entitled to
substantial credibility when claiming an inability to work because of a disability.”
Hughes v. Colvin, No. 15-CV-181S, 2017 WL 1088259, at *6 (W.D.N.Y. Mar. 23, 2017)
(citing Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)). This is because a
claimant with an established history of employment is unlikely to be “feigning
disability.” Patterson v. Chater, 978 F. Supp. 514, 519 (S.D.N.Y. 1997).
Still, a
petitioner's work history “is just one of many factors that the ALJ is instructed to
consider in weighing the credibility of claimant testimony.” Montaldo v. Astrue, No.
10 CIV. 6163 SHS, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15, 2012) (quoting Schaal
v. Apfel, 134 F.3d 496, 502 (2d Cir.1998)) (internal quotation marks omitted). “While
a plaintiff with a good work history is entitled to substantial credibility when
claiming they are no longer able to work, . . . [a solid work history] cannot be a
substitute for evidence of a medically supported disability.” Johnson v. Astrue, No.
22
07-CV-0322C, 2009 WL 3491300, at *7 (W.D.N.Y. Oct. 23, 2009).
In this case, it is clear that the ALJ did not ignore or overlook Plaintiff’s work
history. As the ALJ noted in his decision, “the claimant’s employment and earnings
record shows he performed the job [with the Social Security Administration]
successfully over many years before the disagreement” with his supervisor that led
to his alleged decompensation. Tr. 38. Having considered Plaintiff’s work history
alongside the other evidence in the record, the Court finds it was not contrary to law
for the ALJ to decline to accord Plaintiff’s testimony “substantial credibility.”
The OPM Records and the Appeals Council
Lastly, Plaintiff observes that 20 C.F.R. § 404.970(b) required the Appeals
Council to consider all new and material evidence that relates to the period on or
before the date of the ALJ hearing decision, and argues that the Appeals Council’s
rejection of Plaintiff’s evidence of his eligibility for disability retirement through the
Office of Personnel Management (“OPM”) was an error of law requiring remand.
The Court finds that even if the Appeals Council’s rejection was error, it is
harmless error that does not require a remand. “[T]he final question of disability is
. . . expressly reserved to the Commissioner.” Snell v. Apfel, 177 F.3d 128, 133–34
(2d Cir. 1999).
Although the Commissioner is required to consider all medical
evidence submitted by a claimant, the document from the OPM is not medical
evidence.
Rather, it makes a conclusory statement of Plaintiff’s entitlement to
benefits through the OPM, and neither cites nor provides detail or evidence upon
23
which the statement was based.
Substantial Evidence
Having established that the Commissioner applied the proper legal standards,
the Court turns now to Plaintiff’s contention that “the evidence of record does not
contain substantial evidence to support a finding that [Plaintiff] would not
decompensate if he were to return to the workplace.”
Pl. Mem. of Law at 15.
Plaintiff believes that the ALJ’s finding that Plaintiff did not satisfy the “Paragraph
C” criteria for a mental impairment was not supported by substantial evidence.
Substantial evidence is defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). “The Court carefully considers the
whole record, examining evidence from both sides ‘because an analysis of the
substantiality of the evidence must also include that which detracts from its weight.’”
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (quoting Quinones v. Chater, 117
F.3d 29, 33 (2d Cir. 1997)).
The Court must afford the Commissioner's
determination considerable deference, and will not substitute “its own judgment for
that of the [Commissioner], even if it might justifiably have reached a different result
upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037,
1041 (2d Cir. 1984).
24
To satisfy the “paragraph C” criteria for a mental disorder, the disorder must
be “serious and persistent.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00A. A mental
disorder is serious and persistent if there is “a medically documented history of the
existence of the disorder over a period of at least 2 years, and evidence that satisfies
the criteria in C1 and C2” listed in 12.00G. Id. “The criterion in C1 is satisfied
when the evidence shows that [the claimant relies], on an ongoing basis, upon medical
treatment, mental health therapy, psychosocial support(s), or a highly structured
setting(s), to diminish the symptoms and signs of [his] mental disorder.”
Id. at
12.00G(2)(b). The Court finds for purposes of this decision that Plaintiff documented
the existence of the disorder for over two years, and his treatment history satisfies
the criterion of C1.
However, the Court finds that the ALJ’s decision that Plaintiff did not satisfy
the criterion of C2 is supported by substantial evidence. Under the regulations:
The criterion in C2 is satisfied when the evidence shows that, despite
your diminished symptoms and signs, you have achieved only marginal
adjustment. “Marginal adjustment” means that . . . you have minimal
capacity to adapt to changes in your environment or to demands that
are not already part of your daily life.
Id. at 12.00(G)(2)(b).
The ALJ made an detailed review of the record prior to reaching his conclusion,
noting the following evidence favorable to Plaintiff’s claim that he had minimal
capacity to adapt to changes in his environment: Plaintiff’s Function Report with his
initial DIB application (Tr. 30); Plaintiff’s 2013 hospital admittance due to depression
25
and suicide risk (Tr. 31); records of a suicide attempt from Fairfax Hospital in 2014
(Tr. 31); Dr. Wilson’s medical opinion based on her treatment of Plaintiff in 2013-14
(Tr. 32); records from Loudon Hospital in 2016 about another self-referral to the
emergency room for suicide risk (Tr. 32); Dr. Gwaltney-Hausch’s letters (Tr. 34–35);
and Plaintiff’s own testimony about the emotional toll of his childhood traumas and
bullying by his supervisor at the Social Security Administration (Tr. 30).
On the other hand, the ALJ also noted the evidence that did not support
Plaintiff’s claim. In addition to the proof noted above, the evidence that contradicted
Plaintiff’s claim that he had minimal capacity to adapt to changes included: Plaintiff’s
courtship of a new spouse, and a successful move from Virginia to Scio, New York (Tr.
30); the testimony of non-examining medical expert Dr. Richard Anderson, who
opined that the evidence of record did not support a diagnosis of bipolar disorder, or
any impairment that met or equaled listings 12.04, 12.08 and 12.15 (Tr. 30);
Plaintiff’s stabilization of GAF scores in 2016 following medical treatment at Loudon
Hospital (Tr. 33); the opinion of 2016 consultative examiner Sharla White, who gave
plaintiff a good prognosis and opined that he is stabilized on medication (Tr. 35, 1104);
and the opinions of state agency psychiatric consultants Leizer, Milan and Sampson
from 2016 and 2017, respectively (Tr. 34, 36). The evidence unfavorable to Plaintiff’s
claim of physical disability included: records from Dr. Sameer Nagda, Dr. George
Branche III, and Dr. Christopher Annunziata (Tr. 36), and reviews by state agency
medical consultants Dr. Lewis Singer and Dr. Robert McGuffin (Tr. 37).
26
Despite Plaintiff's contentions, the Court finds that the record in this case
contains “relevant evidence that a reasonable mind [would] accept as adequate to
support” the ALJ's determination that Plaintiff did not have a severe mental
impairment. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
CONCLUSION
For the reasons discussed above, Plaintiff’s motion for judgment on the
pleadings [ECF No. 9] is denied, and Commissioner’s motion [ECF No. 17] is granted.
The Clerk is ordered to close the case.
So Ordered.
DATED:
February 18, 2019
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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