Foster v. Commissioner of Social Security
Filing
17
DECISION AND ORDER denying 13 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings. Clerk of Court directed to close the file. Signed by Hon. Leslie G. Foschio on 9/11/2019. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
LAKESSIA A. FOSTER,
Plaintiff,
v.
ANDREW M. SAUL,1 Commissioner of
Social Security,
DECISION
and
ORDER
18-CV-558F
(consent)
Defendant.
______________________________________
APPEARANCES:
LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, and
TIMOTHY HILLER, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
ANDREEA LAURA LECHLEITNER,
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
JURISDICTION
On July 9, 2019, this matter was reassigned to the undersigned before whom the
parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed in
1
Andrew M. Saul became Commissioner of the Social Security Administration on June 17, 2019, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to
continue this suit by reason of sentence one of 42 U.S.C. § 405(g).
accordance with this court’s June 29, 2018 Standing Order (Dkt. 16). The matter is
presently before the court on motions for judgment on the pleadings filed by Plaintiff on
January 30, 2019 (Dkt. 13), and by Defendant on February 6, 2019 (Dkt. 14).
BACKGROUND
Plaintiff Lakessia A. Foster (“Plaintiff”), brings this action under Titles II and XVI
of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of the Commissioner of Social Security’s final decision denying Plaintiff’s
application filed with the Social Security Administration (“SSA”), on April 7, 2015, for
Supplemental Security Income under Title XVI of the Act (“SSI” or “disability benefits”).
Plaintiff alleges she became disabled on December 1, 2011, based on mental health
problems and depression. AR2 at 15, 190, 220. Plaintiff’s application initially was
denied on August 3, 2015, AR at 70-83, and at Plaintiff’s timely request, on September
29, 2017, a hearing was held in Buffalo, New York, before administrative law judge
Mary Mattimore (“the ALJ). AR at 32-69. Appearing and testifying at the hearing were
Plaintiff, and her then attorney, Nicholas DiVirgilio, Esq. (“DiVirgilio”), and vocational
expert (“VE”) Timothy Janikowski appeared and testified by telephone.
On January 8, 2018, the ALJ issued a decision denying Plaintiff’s claim, AR at
12-31 (“the ALJ’s decision”), which Plaintiff appealed to the Appeals Council. AR at
156. On March 22, 2018, the Appeals Council issued a decision denying Plaintiff’s
request for review, rendering the ALJ’s decision the Commissioner’s final decision. AR
2
References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
October 11, 2018 (Dkt. 8).
2
at 1-6. On May 16, 2018, Plaintiff commenced the instant action seeking judicial review
of the ALJ’s decision.
On January 30, 2019, Plaintiff moved for judgment on the pleadings (Dkt. 13)
(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 13-1) (“Plaintiff’s Memorandum”). On February 6,
2019, Defendant moved for judgment on the pleadings (Dkt. 14) (“Defendant’s Motion”),
attaching Commissioner’s Brief in Support of Her Motion for Judgment on the Pleadings
and in Response to Plaintiff’s Brief (Dkt. 14-1) (“Defendant’s Memorandum”). Filed on
February 27, 2019, was Plaintiff’s Reply Brief (Dkt. 15) (“Plaintiff’s Reply”). Oral
argument was deemed unnecessary.
Based on the foregoing, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED.
FACTS3
Plaintiff Lakessia A. Foster (“Plaintiff” or “Foster”), born April 10, 1975, was 36
years old as of December 11, 2011, her alleged disability onset date (“DOD”), and 42
years old as of January 11, 2018, the date of the ALJ’s decision. AR at 15, 19, 186.
Plaintiff attended high school through 10th grade, dropping out her junior year when she
gave birth to her oldest child, AR at 40, 190, and can read, understand and
communicate in English. AR at 189. Plaintiff has previous work experience as a
cleaner, house keeper and factory worker. AR at 212-19, 267.
3
In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.
3
It is undisputed that Plaintiff has struggled with mental health issues since 2011,
when Plaintiff’s oldest son was murdered at age 19. AR at 358, 370, 425-26, 507.
Since then, Plaintiff’s second oldest son was killed in December 2014, also at age 19,
AR at 425-26, 507, and Plaintiff’s mother passed away in September 2014. AR at 359,
507. Plaintiff also has stress in dealing with her surviving six children and the father of
her youngest children who repeatedly takes such children from Plaintiff. AR at 545.
DISCUSSION
1.
Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district court “is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
4
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,4 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.
Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI
benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable
regulations set forth a five-step analysis the Commissioner must follow in determining
eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). If the claimant meets the criteria at any of the five steps, the inquiry ceases and
the claimant is not eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.
The first step is to determine whether the applicant is engaged in substantial gainful
activity during the period for which the benefits are claimed. 20 C.F.R. §§ 404.1520(b)
and 416.920(b). The second step is whether the applicant has a severe impairment
which significantly limits the physical or mental ability to do basic work activities, as
defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Third, if
there is an impairment and the impairment, or its equivalent, is listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or “the Listings”), and
4
Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
5
meets the duration requirement of at least 12 continuous months, there is a
presumption of inability to perform substantial gainful activity, and the claimant is
deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§
423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth
step, however, if the impairment or its equivalent is not listed in Appendix 1, the
Commissioner must then consider the applicant’s “residual functional capacity” or “RFC”
which is the ability to perform physical or mental work activities on a sustained basis,
notwithstanding the limitations posed by the applicant’s collective impairments, see 20
C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant work
(“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains capable of
performing PRW, disability benefits will be denied, id., but if the applicant is unable to
perform PRW relevant work, the Commissioner, at the fifth step, must consider whether,
given the applicant’s age, education, and past work experience, the applicant “retains a
residual functional capacity to perform alternative substantial gainful work which exists
in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of
proof is on the applicant for the first four steps, with the Commissioner bearing the
burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4);
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since April 7, 2015, the filing date of her disability benefits application,
AR at 17, Plaintiff suffers from the severe impairments of depression, anxiety, insomnia,
bereavement (provisional), bereavement uncomplicated other and unspecified reactive
6
psychosis, borderline intellectual functioning, brief psychotic episode with marked
stressors, major depressive disorder, recurrent, moderate (provisional), and
disappearance and death of family member (provision), AR at 17, but that additional
impairments, including asthma, hypertension, and hyperlipidemia, do not have more
than a minimum impact on Plaintiff’s ability to perform basic work activities and, thus,
are non-severe impairments. AR at 17. The ALJ further found Plaintiff does not have
an impairment or combination of impairments meeting or medically equal to the severity
of any listed impairment in Appendix 1, AR at 18-19, and that Plaintiff retains the RFC to
perform a full range of work at all exertional levels, restricted only by nonexertional
limitations including no exposure to dust, fumes, odors, smoke, other pulmonary irritants
and poor ventilation, performing only low stress work defined as able to understand,
remember and carryout simple, routine tasks and make simple workplace decisions not
at a production rate (assembly line) pace, the ability to maintain attention and
concentration for 2-hour blocks of time, tolerating occasional changes in work
processes, settings and routines, and occasional interaction with supervisors, coworkers and the public. AR at 19-25. The ALJ further concluded Plaintiff is unable to
perform any past relevant work, AR at 25, which work was unskilled such that
transferability of skills is not an issue, id., but that Plaintiff, given her age, education,
work experience and RFC, could perform jobs existing in significant numbers in the
national economy including mail clerk, packager – machine, and laborer – stores, AR at
25-26, such that Plaintiff is not disabled as defined under the Act. Id. at 26.
Plaintiff does not contest the ALJ’s determination with regard to the first three of
the five sequential steps, but maintains the ALJ erred at the fourth step in finding
7
Plaintiff retained the RFC for work that exists in significant numbers in the national
economy such that Plaintiff is not disabled under the Act. In support of her motion,
Plaintiff argues the matter should be reversed or remanded because the ALJ’s
determination that Plaintiff’s subjective complaints are not fully credible solely because
they are not supported by objective clinical observations “defeats the purpose of
permitting a claimant to pursue disability based on subjective allegations . . . ,” Plaintiff’s
Memorandum at 16-19, and the ALJ violated the so-called treating physicians rule by
assigning “little weight” to the opinion of Plaintiff’s long-time treating physician. Id. at
19-23. Defendant argues the ALJ’s analysis of Plaintiff’s subjective complaints
complied with the Commissioner’s regulations and rulings that provide for evaluating the
credibility of subjective complaints based on the objective evidence in the record,
Defendant’s Memorandum at 18-21, and that in making her RFC determination, that
ALJ properly reconciled the conflicting opinions of the treating and consultative mental
health examiners in accordance with the treating physician’s rule. Id. at 12-18. In reply,
Plaintiff argues the Commissioner’s reference to portions of the Administrative Record
does not establish the Commissioner actually relied on such evidence, Plaintiff’s Reply
at 1-2, the Commissioner’s post hoc argument regarding Plaintiff’s “rather mundane
activities” does not undermine Plaintiff’s credibility, id. at 2, and with regard to the
treating physician’s rule, the Commissioner did not “meaningfully response to Plaintiff’s
specific challenges to the ALJ’s assignment of weight.” Id. at 2-3.
1.
Credibility Determination
Plaintiff maintains the ALJ’s determination that Plaintiff’s asserted subjective
complaints are “at odds with the objective findings and medical opinions” in the
8
Administrative Record is inconsistent with and “defeats the purpose of permitting a
claimant to pursue disability based on subjective allegations. . . .” Plaintiff’s
Memorandum at 16-19. In support of her novel argument that subjective allegations
need not be supported by objective clinical observations, Plaintiff particularly objects to
the ALJ’s referencing Plaintiff’s activities of daily living in determining Plaintiff was less
than fully credible regarding the limitations posed by her mental health impairments.
Plaintiff’s Memorandum at 16-19; Plaintiff’s Reply at 1-1. The ALJ’s credibility
determination, however, is supported by substantial evidence in the record and
comports with the relevant regulations.
In particular, the relevant regulations provide a two-step process for evaluating
subjective complaints, including,
First, the ALJ must determine whether the medical signs or laboratory findings
show that a claimant has a medically determinable impairment that could
reasonably be 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 the symptoms limit the claimant's capacity for
work.
Cichocki v. Astrue, 534 Fed.Appx. 71, 75 (2d Cir. Sept. 5, 2013) (quoting 20 C.F.R. §
416.929(c)(1)).
The ALJ is required to consider all available evidence, and although “objective medical
evidence is useful,” the ALJ is not permitted to reject the claimant’s statements
regarding the intensity and persistence of subjective symptoms solely because such
statements are not supported by the objective medical evidence. Id. (citing §
416.929(c)(2)). Nevertheless, “the ALJ ‘is not required to accept the claimant’s
subjective complaints without question; he may exercise discretion in weighing the
credibility of the claimant’s testimony in light of the other evidence in the record.’”
9
Barnaby v. Berryhill, 773 Fed.Appx. 642, 643 (2d Cir. May 17, 2019) (quoting Genier v.
Astrue, 606 F.3d 46, 49 (2d Cir. 2010)). If a claimant’s statements are not supported by
the objective medical evidence in the record, then “the ALJ must consider the other
evidence and make a finding on the credibility of the individual's statements.” Cichocki
534 Fed.Appx. at 76 (citing See SSR 96–7p, 1996 WL 374186, at *4 (July 2, 1996)5).
Toward this end, the ALJ considers: (1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of alleged subjective complaints; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medication; (5) treatment, other than medication, the claimant uses; (6) any other
measures used to relieve subjective symptoms; and (7) any other factors concerning
the alleged functional limitations and restrictions due to the subjective symptoms. 20
C.F.R. § 416.929(c). Nor is the ALJ required to discuss each of these seven factors so
long as the ALJ sufficiently explains the rationale for accepting or rejecting the
subjective symptoms “and the record evidence permits us to glean the rationale of the
ALJ's decision.” Cichocki, 534 Fed.Appx. at 76. In the instant case, substantial
evidence in the record supports the ALJ’s determination that the intensity, persistence
and limiting effects of Plaintiff’s subjective symptoms as Plaintiff alleges are not
consistent with the objective medical and other evidence in the record.
In particular, in contrast to the Plaintiff’s assertion, Plaintiff’s Reply at 1, that the
ALJ merely recites in passing portions of the Administrative Record without commenting
5
In 2016, the Commissioner rescinded SSR 96-7p, replacing it with SSR 16-3p which eliminated the term
“credibility” from “sub-regulatory policy” and clarified that “subjective symptom evaluation is not an
examination of an individual’s character.” SSR 16-3P, 2017 WL 5180304, at *2 (Oct. 25, 2017).
Nevertheless, “‘[t]he standard for evaluating subjective symptoms has not changed in the regulations.
Rather, the term ‘credibility’ is no longer used.’” Robert R. v. Saul, 2019 WL 4183569, at * 11 n. 3
(W.D.N.Y. Sept. 4, 2019) (quoting Debra N. v. Comm’r of Soc. Sec., 2019 WL 1369358 at *7, n. 9
(N.D.N.Y. Mar. 26, 2019)).
10
on how they impact Plaintiff’s credibility, a fair reading of the ALJ’s Decision establishes
the ALJ makes such references to draw a critical contrast between Plaintiff’s subjective
complaints and the objective medical evidence that would be expected to support such
complaints if the complaints were of the asserted intensity, persistence and limiting
effects. The ALJ specifically observed, AR at 20, that although on her disability benefits
application Plaintiff reported she cannot concentrate because her “mind is racing,” AR at
204, and being unable to finish projects she starts, id., Plaintiff also admitted being able
to follow spoken and written instructions. AR at 205. Similarly, the ALJ contrasted
Plaintiff’s administrative hearing testimony that she is unable to focus after 20 minutes,
cannot remember a lot of things, which Plaintiff attributed to her medications, and
sometimes experiences panic when in a crowd, and there are weeks when she is
unable to leave the house, with Plaintiff’s also admitting she was able to care for herself
and her children, including getting the children up and ready for school, walking them to
and from the bus stop, helping with homework, and cleaning the house. AR at 20.
Rather than simply rejecting Plaintiff’s subjective complaints, the ALJ references
medical reports and records from Plaintiff’s mental health providers, as well as
consultative examinations conducted in connection with Plaintiff’s disability benefits
application that are also inconsistent with Plaintiff’s subjective complaints. AR at 20-23.
Such evidence includes, inter alia, Plaintiff’ mental health treatment notes from Niagara
County Department of Health (“NCDH”) where Plaintiff saw counselors for therapy as
well as psychiatrist Hany Shehata, M.D. (“Dr. Shehata”), from February 4, 2014 till
November 27, 2017. AR 467-711, 720-993. The ALJ noted Plaintiff’s initial assessment
at NCDH was upon “self-referral,” and despite such positive findings on mental status
11
examination as flat affect, apathetic mood, tangential speech, a negligible degree of
conceptual disorganization, preoccupation with external stressors, and fair judgment,
Plaintiff’s recent and remote memory were not impaired, and attention and
concentration indicated Plaintiff was able to attend and maintain focus. AR at 20-21
(citing AR at 470).
On April 6, 2015, Dr. Shehata completed an “Employability Assessment” of
Plaintiff, reporting Plaintiff’s medical condition as “Brief Psychotic Disorder” for which
Plaintiff was undergoing psychotherapy and pharmacological management with a fair
prognosis, and an expected duration of 7 to 11 months, AR at 346, assessing Plaintiff’s
mental functioning as moderately limited in understanding, remembering, and carrying
out instructions, interacting appropriately with others, and maintaining socially
appropriate behavior without exhibiting behavior extremes, very limited as to
maintaining attention/concentration, making simple decisions, and functioning in a work
setting at a consistent pace, and not limited with regard to maintaining basic standards
of personal hygiene and grooming.6 AR at 347. Dr. Shehata’s assessment is largely
consistent with the consultative psychiatric examination performed by Susan Santarpia,
Ph.D. (“Dr. Santarpia”), less than two months later on May 14, 2015. AR at 425-30. As
relevant, Dr. Santarpia found Plaintiff oriented in all three spheres, with intact attention
and concentration, intact recent and remote memory, average cognitive functioning, fair
insight and judgment, able to tend to personal hygiene and grooming, and had a valid
driver’s license. Id. Plaintiff presented as able to follow and understand simple
6
The ALJ refers to Dr. Shehata’s Employability Assessment as Dr. Shehata’s March 2015 opinion, AR at
24, presumably because the form authorizing the release of such medical information is signed by
Plaintiff and dated March 25, 2015. AR at 346.
12
directions and instructions, perform simple tasks independently, maintain attention,
concentration, and a regular schedule, learn new tasks, make appropriate decisions,
relate adequately with others and appropriately deal with stress within normal limits,
although Plaintiff demonstrated moderate impairment in performing complex tasks
independently and Plaintiff’s difficulties were attributed to grief. Id. Dr. Santarpia’s
diagnosis was adjustment disorder with mixed anxiety and depressed mood, with
psychotic features, controlled. Id. On June 29, 2015, state agency psychological
consultant L. Hoffman (“Hoffman”), reviewed the Administrative Record and concluded
Plaintiff, despite some cognitive/psychological difficulties, and a severe affective
disorder and anxiety disorder, AR at 76, nevertheless remained capable of performing
simple tasks, making appropriate decisions, relating adequately with others,
appropriately dealing with stress, carrying out very short and simple instructions,
sustaining an ordinary routine without special supervision, and making simple workrelated decisions. AR at 79-81.
On August 21, 2015, Dr. Shehata produced a handwritten note indicating that
because of depression, anxiety and trauma related to the recent death of Plaintiff’s
second son, Plaintiff “will have difficulty maintaining a job at least of the time being.” AR
at 438. The ALJ, however, observed that Plaintiff’s Global Assessment of Functioning
Scale (“GAF”) scores7 for that same time reflected Plaintiff had only moderate
7
The GAF Scale was “promulgated by the American Psychiatric Association to assist ‘in tracking the
clinical progress of individuals [with psychiatric problems] in global terms.’” Kohler v. Astrue, 546 F.3d
260, 262 n. 1 (2d Cir. 2006) (alterations in original) (quoting Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders (“DSM”), 32 (4th ed. 2000)). Although GAF scores are intended
only to make treatment decisions, rather then disability determinations, and may be relevant to the ALJ’s
RFC determination, Gonzalez v. Colvin, 2016 WL 4009532, at * 5 (W.D.N.Y. July 27, 2016), the GAF
scale is “no longer in use,” Kaczowski v. Colvin, 2016 WL 5922768, at *12 n. 5 (S.D.N.Y. Oct. 11, 2016)
(citing DSM (5th ed. 2013)), yet “the Commissioner may still consider GAF scores as one factor among
13
symptoms of functional limitation. AR at 23. Following the administrative hearing,
Plaintiff underwent a further consultative psychiatric evaluation by Gregory Fabiano,
Ph.D. (“Dr. Fabiano”), who diagnosed Plaintiff with adjustment disorder with depression
and anxiety, chronic, but opined the results of his examination were not consistent with
psychiatric problems sufficiently significant as to interfere with Plaintiff’s ability to
function on a daily basis. AR at 23 (citing AR at 712-720).
Significantly, the court’s review of this evidence establishes it is as the ALJ
presented, i.e., a review of Plaintiff’s treatment notes from NCDH establishing that
Plaintiff’s mental health generally improved throughout her treatment. Compare, e.g.,
AR at 467-92 (earlier progress notes from February 4, 2014 through December 5, 2014,
diagnosing Plaintiff with episodic depression and continuous stress, describing Plaintiff’s
mental status as including flat affect, apathetic mood, wishing to be dead although
without suicidal ideation, and thought content preoccupied with stressors including
death of Plaintiff’s mother and sons, and assessing Plaintiff as a moderate risk), with AR
at 967-993 (later progress notes from September 21 through November 27, 2017
indicating Plaintiff continued to be treated for chronic grief, depression and anxiety, but
with Plaintiff describing her stressors as problems dealing with her middle daughter as
well as harassment from her children’s father). Accordingly, the ALJ did not simply
recite those subjective assertions of Plaintiff the ALJ found to be inconsistent with the
medical evidence but, rather, the ALJ sufficiently specified the reasons she rejected
Plaintiff’s statements regarding the intensity, persistence, and limiting effects of such
symptoms. Cichocki, 534 Fed.Appx. at 76.
others.” Pena Lebron v. Comm’r of Soc. Sec., 2019 WL 1429558, at *3 n. 3 (S.D.N.Y. Mar. 29, 2019)
(citation and quotation marks omitted).
14
Judgment on the pleadings is thus DENIED as to Plaintiff and GRANTED as to
Defendant on this argument.
2.
Treating Physician Rule
Plaintiff argues the ALJ violated the treating physician rule by assigning “little
weight” to the opinion of Plaintiff’s long-time treating psychiatrist, Dr. Shehata, because
such opinion was inconsistent with Plaintiff’s GAF scores, Plaintiff’s Memorandum at 1921, finding Dr. Shehata’s opinion was not supported by any abnormal mental status
findings with regard to maintaining attention and concentration, id. at 21-22, and failing
to reference any records supporting the ALJ’s determination that Plaintiff’s functioning
dramatically improved. Id. at 23. In opposition, Defendant maintains the ALJ
sufficiently explained her reasons for giving more weight to the opinions of consultative
examiners Drs. Fabiano, Santarpia, and Hoffman, than to Dr. Shehata’s more restrictive
opinion, Defendant’s Memorandum at 13-16, did not give “undue weight” to Plaintiff’s
GAF scores, id. at 16-18, and properly considered that Dr. Shehata opined Plaintiff’s
limitations posed by Plaintiff’s mental health issues were not expected to last more than
11 months, which was consistent with Plaintiff’s own statements that her treatment was
effective and helped her. Id. at 18. In reply, Plaintiff maintains Defendant failed to
“meaningfully respond to Plaintiff’s specific challenges to the ALJ’s assignment of
weight.” Plaintiff’s Reply at 2-3. Plaintiff’s argument on this point is without merit.
Generally, the opinion of a treating physician is entitled to significant weight, but
is not outcome determinative and only entitled to significant weight when “’wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record.’” Crowell v. Comm’r
15
of Soc. Sec. Admin., 705 Fed.Appx. 34, 35 (2d Cir. Dec. 1, 2017) (quoting Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008), and 20 C.F.R. § 404.1527(d)(2)). Where,
however, the ALJ discounts a treating physician’s opinion, the ALJ must set forth “good
reasons” for doing so. Burgess, 537 F.3d at 129 (citing Halloran v. Barnhart, 362 F.3d
28, 33 (2d Cir. 2004)). Here, substantial evidence in the record establishes the ALJ did
not violate the treating physician rule.
As noted, Discussion, supra, at 13 n. 7, although with the Fifth Edition of the
DSM, the GAF scale is no longer used, the Commissioner is permitted to consider GAF
scores as one factor among others in assessing the impact of Plaintiff’s mental
impairments on her ability to perform substantial, gainful activity. A plain review of the
ALJ’s Decision establishes that is what the ALJ did here. In particular, the ALJ found
Plaintiff’s relatively stable GAF scores of 55 or higher, which equates to at most
moderate limitations, were consistent with Plaintiff’s mental status examinations which
“remained relatively unimpressive . . .,” with Plaintiff exhibiting “cheerful” mood,
appropriate affect, and with attention and concentration within normal limits. AR at 23.
Accordingly, the record establishes the ALJ did not give undue weight to Plaintiff’s GAF
scores but, rather, considered such scores as one factor that was consistent with other
substantial evidence in the record.
The record also establishes the ALJ sufficiently explained her reasons for giving
more weight to the opinions of consultative examiners Drs. Fabiano, Santarpia, and
Hoffman, than to Dr. Shehata’s more restrictive opinion. The ALJ is permitted to rely on
a consultative examiner’s opinion that is based on a physical examination and is
consistent with other evidence in the record. See Tankisi v. Comm'r of Soc. Sec., 521
16
Fed.Appx. 29, 32 (2d Cir. Apr. 2, 2013) (“A consultative examination is used to ‘try to
resolve an inconsistency in the evidence, or when the evidence as a whole is
insufficient to allow [the ALJ] to make a determination or decision’ on the claim.”)
(quoting 20 C.F.R. §§ 404.1519a(b), 416.919a(b)). Here, the ALJ found the opinions of
Drs. Fabiano, Santarpia, and Hoffman were largely consistent with Dr. Shehata’s April
6, 2015 Employability Assessment, insofar as Dr. Shehata reported Plaintiff had
moderate limitations with understanding, remembering, and carrying out instructions,
interacting appropriately with others, and maintaining socially appropriate behavior
without exhibiting behavior extremes, very limited as to maintaining attention/
concentration, making simple decisions, and functioning in a work setting at a consistent
pace, and not limited with regard to maintaining basic standards of personal hygiene
and grooming. AR at 24. As discussed, Discussion, supra, at 12-14, in their respective
opinions, Drs. Fabiano, Sartapia, and Hoffman found Plaintiff with similar restrictions,
and none of these medical sources indicated Plaintiff was unable to work except for Dr.
Shehata’s assessment that Plaintiff’s mental health limitations were expected to last
from 7 to 11 months. AR at 346. Not only does this period of time fall short of the
minimum 12 continuous months durational requirement to establish disability under the
Act, 42 U.S.C. §§ 423(d)(1)(A) and 1382(c)(3)(A), but Dr. Shehata does not indicate that
Plaintiff is unable to work during that period of time based on such impairments.
Accordingly, there is no merit to Plaintiff’s argument that the ALJ erred in assigning this
portion of Dr. Shehata’s opinion little weight.
Similarly, the ALJ did not err in declining to afford controlling weight to Dr.
Shehata’s August 21, 2015 handwritten note summarily advising that Plaintiff has “been
17
on multiple psychiatric meds for depression and anxiety as well as post traumatic
disorder” attributed to the death of Plaintiff’s second son during the previous Christmas
season, as well as to stress caused by Plaintiff’s bronchial asthma and caring for her
son who has severe asthma, such that “Plaintiff will have difficulty maintaining a job at
least for the time being.” AR at 438. Not only is Dr. Shehata’s reference to the “time
being” too vague to permit the ALJ to assess the amount of time for which Dr. Shehata
anticipated Plaintiff would be unable to work but, as the ALJ found, AR at 24, the
handwritten note does not include any “function-by-function” analysis of Plaintiff’s workrelated capacity and, moreover, does not specifically state that Plaintiff is unable to
work, only that she would “have difficulty maintaining a job.” The ALJ thus did not err in
refusing to grant the note controlling weight.
Accordingly, the ALJ decision to give more weight to the consultative opinions of
Drs. Fabiano, Santarpia, and Hoffman than to the more restrictive opinion of Dr.
Shehata is supported by substantial evidence in the record and did not violate the
treating physician rule.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 13) is DENIED; Defendant’s
Motion (Dkt. 14) is GRANTED. The Clerk of Court is directed to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
September 11, 2019
Buffalo, New York
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?