Meney v. Astrue

Filing 13

ORDER granting the Commissioner's 8 Motion for Summary Judgment; denying plaintiff's 12 Motion for Judgment on the Pleadings and dismissing the complaint. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 6/22/11. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
LISA A. MENEY,

Plaintiff,
DECISION AND ORDER
10-CV-6196L
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

Defendant.
________________________________________________
Plaintiff appeals from a denial of disability insurance benefits by the Commissioner of
Social Security (“the Commissioner”). The action is one brought pursuant to 42 U.S.C. § 405(g)
to review the final determination of the Commissioner.
On February 13, 2006, plaintiff, then thirty-two years old, filed an application for
Supplemental Security Income under Title II of the Social Security Act. Plaintiff alleged an
inability to work since January 31, 1999, due to depression and cognitive deficiencies. Her
application was initially denied on July 18, 2006. (T. 19). Plaintiff requested a hearing, which
was held on June 25, 2008 before Administrative Law Judge (“ALJ”) James E. Dombeck. The
ALJ issued a decision on September 30, 2008, concluding that plaintiff was not disabled under
the Social Security Act. (T. 58-67). Plaintiff requested review by the Appeals Council, which
remanded the matter to ALJ Dombeck for additional proceedings -- specifically, a more detailed
application of the special technique for evaluation of mental impairments. (T. 68, 76-77, 380).
A second hearing was held April 22, 2009. On May 20, 2009, the ALJ issued a second decision,
again concluding that plaintiff is not disabled. (T. 19-32). That decision became the final
decision of the Commissioner when the Appeals Council denied review on February 4, 2010. (T.

5-7). Plaintiff now appeals. The Commissioner has moved (Dkt. #8) and plaintiff has cross
moved (Dkt. #12) for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the
reasons set forth below, the Commissioner’s motion is granted, plaintiff’s motion is denied, and
the complaint is dismissed.

DISCUSSION
To determine whether a claimant is disabled within the meaning of the Social Security
Act, the ALJ proceeds through a five-step sequential evaluation. See Bowen v. City of New York,
476 U.S. 467, 470-71 (1986). At step one, the ALJ must determine whether the claimant is
engaged in substantial gainful work activity. See 20 CFR §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,” e.g., that imposes significant
restrictions on the claimant's ability to perform basic work activities. 20 CFR §404.1520(c). If
not, the analysis concludes with a finding of “not disabled.” If so, the ALJ continues to step
three.
At step three, the ALJ examines whether the claimant’s impairment meets or equals the
criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4. If the impairment
meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR
§404.1509), the claimant is disabled. If not, analysis proceeds to step four, and the ALJ
determines the claimant’s residual functional capacity (“RFC”), which is the ability to perform
physical or metal work activities on a sustained basis notwithstanding limitations for the
collective impairments. See 20 CFR §404.1520(e), (f). Where, as here, the alleged disability
implicates the plaintiff’s mental abilities, the ALJ must assess it in light of the mental demands
of work, including understanding, remembering and carrying out instructions, and responding
appropriately to supervision, co-workers and work pressures. See 20 CFR §416.945(c).

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After the plaintiff’s RFC has been determined, the ALJ turns to whether the claimant’s
RFC permits her to perform the requirements of her past relevant work. If so, the claimant is not
disabled. If not, analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled, by presenting evidence demonstrating
that the claimant “retains a residual functional capacity to perform alternative substantial gainful
work which exists in the national economy” in light of her age, education, and work experience.
See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604
(2d Cir.1986)). See 20 CFR §404.1560(c).
The Commissioner’s decision that plaintiff is not disabled must be affirmed if it is
supported by substantial evidence, and if the ALJ applied the correct legal standards. See 42
U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). 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). Still, “it is not the function of a reviewing court to decide de novo whether a claimant
was disabled.” 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, [this
Court] will not substitute our judgment for that of the Commissioner.” Veino v. Barnhart, 312
F.3d 578, 586 (2d Cir.2002).
This deferential standard does not extend to the Commissioner’s conclusions of law. See
Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984). This Court must independently determine
if the Commissioner's decision applied the correct legal standards in determining that the plaintiff
was not disabled. “Failure to apply the correct legal standards is grounds for reversal.” Townley,
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748 F.2d at 112. Therefore, this Court is to first review the legal standards applied, and then, if
the standards were correctly applied, consider the substantiality of the evidence. Johnson v.
Bowen, 817 F.2d 983, 985 (2d Cir.1987) (“[w]here there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard to
uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal principles”).
See also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.1998).
The ALJ issued a decision of some thirteen pages in length considering plaintiff's claim
of disability, and supported each of his conclusions with detailed factual findings. Upon a full
and thoughtful review of the record, including plaintiff’s medical and educational records, I
believe that the ALJ applied the correct legal standards, and that his finding that plaintiff is not
totally disabled is supported by is substantial evidence.
The ALJ discussed the record in detail. I believe the evidence supports the ALJ’s
conclusion that plaintiff, then a thirty-two year old woman with a general equivalency diploma
(“GED”) and some college course work and with no appreciable work history, was not totally
disabled, due to the ALJ’s finding at step five that several positions existed in the economy that
plaintiff could perform, including but not limited the unskilled positions of assembler
(production), general assembler, lens matcher, addresser and table worker.
In determining plaintiff’s RFC, the ALJ considered, inter alia, plaintiff’s activities of
daily living. The record, including plaintiff’s testimony at the hearing, indicates that in addition
to attending Monroe Community College (“MCC”) part-time, plaintiff shops, takes care of her
personal needs and those of at least two of her children who reside with her, prepares meals, does
dishes and laundry, pays bills, attends church services, goes to the library and community center,
and generally accomplishes all of the tasks necessary to manage her household with little
assistance. (T. 28, 115-123). Although plaintiff claimed at her hearing that she had discontinued
a prior job attempt due to her “disabilities,” contemporaneous Social Security and psychiatric
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examination records quote plaintiff as telling a claims representative and a consultative examiner
that she left work, partly or solely, to care for her children. (T. 28, 107, 207). In light of
plaintiff’s self-reports of her daily activities and her academic history, I find that the ALJ’s
determination that her subjective and largely non-specific complaints of total and continued
disability were “not credible” was proper and supported by substantial evidence.
The ALJ also examined plaintiff’s educational records and the reports of her treating,
examining and consulting physicians. His conclusion that plaintiff’s claimed mental disabilities
do not render her disabled for purposes of the Act is largely consistent with those reports, as
described below.
In determining the plaintiff’s RFC, the ALJ notably rejected the opinions of plaintiff’s
longtime treating psychologist, Dr. Keri Barnett (“Dr. Barnett”) and her treating psychiatrist, Dr.
Patricia Pielnik (“Dr. Pielnik”), declining to afford them controlling weight. It is well-settled that
“the medical opinion of a claimant’s treating physician is given controlling weight if it is well
supported by medical findings and not inconsistent with other substantial record evidence.”
Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)(emphasis added). See 20 C.F.R. §
404.1527(d)(2). In determining the weight owed to a treating physician’s opinion, the
Commissioner must consider: (1) the length, nature and extent of the treatment relationship; (2)
the frequency of examination; (3) the evidence presented to support the treating physician’s
opinion; (4) whether the opinion is consistent with the record as whole; and (5) whether the
opinion is offered by a specialist. 20 C.F.R. §404.1527(d). The ALJ must then articulate his
reasons for assigning the weight that he does to both treating and nontreating physicians’
opinions. See 20 C.F.R. §404.1527(d)(2); §404.1527(f)(2)(ii); Snell v. Apfel, 177 F.3d 128, 133
(2d Cir. 1999).
In declining to give controlling weigh to the reports of Drs. Barnett and Pielnik, the ALJ
noted that their joint report’s description of plaintiff’s mental impairments appeared to be
internally inconsistent, as well as inconsistent with other evidence of record. He also found that
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although the record establishes that plaintiff is impaired in the areas of social functioning and
maintaining concentration, persistence and pace, the joint report described a higher level of
impairment in those areas than that reflected by Dr. Pielnik’s treatment notes, other medical
evidence, plaintiff’s educational records, and the opinions of all of the consultative examiners.
(T. 29, 30).
For example, despite stating that plaintiff had a “marked” inability to maintain social
functioning and/or concentration, the joint report assigned plaintiff a Global Assessment of
Functioning (“GAF”) score of 60 out of a possible 100, which indicates only mild to moderate
symptoms. The ALJ also found the characterization of plaintiff’s cognitive impairments as
“marked” was at odds with the fact of plaintiff’s completion of her GED and five years of
additional course work at Monroe Community College (“MCC”), test results from ARC of
Monroe County finding that plaintiff functioned in the borderline range and was capable of a
range of tasks and skills, and repeated IQ tests showing borderline intellectual functioning
(T.146-149, 162, 171, 172, 177, 184-185). In dismissing the joint report as internally
inconsistent and not credible, the ALJ also observed that the report had opined that even a
minimal increase in mental demands would cause plaintiff to decompensate, an opinion which
was apparently without basis, since the report went on to acknowledge that plaintiff had not
experienced any prior episodes of decompensation. (T. 287).
Individual reports by the physicians contained some similar inconsistencies, such as Dr.
Pielnik’s separate assessment completed January 30, 2009, which stated that although plaintiff’s
concentration is “poor” and her ability to follow, understand and remember simple instructions
and directions was “markedly” limited, plaintiff’s memory, insight and judgment were “fair” and
she was fully “capable of low stress of simple tasks” and of regularly attending to a routine and
schedule. (T. 326-327). Dr. Pielnik appeared to concede that plaintiff was capable of working in
some capacity, noting that her emotional and cognitive disabilities would limit her success “in
most work environments,” but identifying the avoidance of “high paced” and “complex” work as
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reasonable accommodations for plaintiff’s impairments. Dr. Pielnik also found that plaintiff was
capable of attending college for up to 20 hours per week, and recommended that plaintiff should
“be encouraged to continue pursuing her education” at MCC. (T. 328-329). While the opinions
of non-treating physicians are not entitled to controlling weight, I also note that the assessment of
plaintiff’s limitations in social functioning and maintaining concentration by her treating
physicians expresses a level of limitation more dramatic than that found by agency examining or
consulting physicians who evaluated plaintiff or her records prior to the hearing. Plaintiff’s
limitations in these areas were described by consulting physician M. Cheryl Butensky (T. 211227) and examining physician Melvin Zax (T. 205-208) only as “moderate.” Moreover, to the
extent that plaintiff’s ability to “maintain concentration” or maintain social functioning are
addressed in Dr. Pielnik’s treatment notes, they consistently and uniformly describe her
attentiveness as “average” or better, state that plaintiff is both alert and oriented, and rate her
thought processes as coherent and logical, with average insight and judgment. (T. 244-282).
Given the inconsistencies between some of the conclusions reached by Drs. Pielnik and
Barnett and the rest of the record as a whole, including but not limited to treatment notes from
Dr. Pielnik and others showing plaintiff to be consistently alert, with normal or average
concentration, insight and judgment, and plaintiff’s borderline intellectual functioning and
demonstrated ability to complete college coursework and manage her household with little
assistance, I find that their opinions that plaintiff is totally disabled are not entitled to controlling
weight, and were properly rejected by the ALJ.
With respect to the determination of plaintiff’s RFC, the ALJ determined that plaintiff
retained the RFC to perform work at all exertional levels, with nonexertional limitations
consisting of borderline intellectual functioning, variously described as a “learning disability,”
and “moderate symptoms” consisting of a flat effect and occasional panic attacks, and moderate

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difficulty in social functioning and dealing with coworkers and/or the general public.1 (T. 405,
409, 411-413). Faced with this RFC as a hypothetical, vocational expert Peter Manzi testified
that plaintiff could perform a range of “unskilled, simple, assembly-type work, where the person
works independently.” (T. 412). He identified a number of such jobs at the light or sedentary
unskilled level which are found in significant numbers in the local economy, including assembler
(production), general assembler, lens matcher, addresser and table worker. (T. 412-415).
Plaintiff alleges that the ALJ’s hypothetical failed to adequately account for plaintiff’s
symptoms, to the extent that his RFC determination failed to account for certain limitations (or
described a lesser degree of limitation) identified by Drs. Pielnik and Barnett in certain portions
of their reports, and/or failed to credit plaintiff’s subjective claims of total disability. However,
as the Court has concluded above, the ALJ’s determination of plaintiff’s RFC is supported by
substantial evidence of record and his decision not to grant controlling weight to the opinions of
Dr. Pielnik and Dr. Barnett was not error.
I have considered the remainder of plaintiff’s contentions, and find them to be without
merit. Based on the foregoing, I believe the ALJ applied the proper procedure and that his
decision is supported by substantial evidence. I find no reason to modify that decision.

CONCLUSION
The Commissioner’s motion for judgment on the pleadings (Dkt. #8) is granted, and
plaintiff’s cross motion for judgment on the pleadings (Dkt. #12) is denied. The Commissioner’s

1

I note that although Dr. Pielnik’s opinion was appropriately rejected by the ALJ, the
plaintiff’s RFC, as defined by the ALJ and considered by the vocational expert, is consistent with
Dr. Pielnik’s opinion that plaintiff’s disabilities would best be accommodated through the
avoidance of fast-paced or complex work environments. (T. 328-329).
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decision that plaintiff, Lisa Meney, was not disabled is in all respects affirmed, and the
complaint is dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
June 22, 2011.

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