Brown v. Commissioner of Social Security
Filing
11
ORDER denying 7 plaintiff's Motion for Judgment on the Pleadings; granting 9 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/19/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________________
BRITTANY L. BROWN,
Plaintiff,
11-CV-6392T
DECISION
and ORDER
v.
MICHAEL ASTRUE,
Commissioner of Social Security
Defendant.
___________________________________________________
INTRODUCTION
Plaintiff, Brittany L. Brown(“Plaintiff”), brings this action
pursuant to Title XVI of the Social Security Act, seeking review of
the
final
decision
of
the
Commissioner
of
Social
Security
(“Commissioner”), denying her application for Supplemental Security
Income(“SSI”).
Specifically, Plaintiff alleges that the decision
of the Administrative Law Judge, Lawrence Levey (“ALJ”), denying
Plaintiff’s
application
for
benefits,
substantial
evidence
the
record
in
and
was
was
not
supported
contrary
to
by
the
applicable legal standards.
The Commissioner moves for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure, on the
grounds that the decision of the ALJ was supported by substantial
evidence in the record and was in accordance with the applicable
legal standards.
Plaintiff opposes the Commissioner’s motion, and
cross-moves for judgement on the pleadings. This Court finds that
1
the ALJ’s decision was supported by substantial evidence in the
record and was in accordance with the applicable legal standards.
For the reasons set forth below, the Commissioner’s motion for
judgment on the pleadings is granted, and the Plaintiff’s motion is
denied.
Plaintiff’s complaint is dismissed with prejudice.
BACKGROUND
Plaintiff
filed
an
application
for
Disability
Insurance
Benefits (“DIB”) and SSI on January 30, 2009, alleging disability
beginning on May 1, 1990 (her date of birth), under Title II and
Title XVI, respectively, of the Social Security Act. Transcript of
the Administrative
Proceedings
at 62-69
(hereinafter,
“Tr.”).
Plaintiff alleged disability due to “spina bifida, hydrocephalus,
depression,
asthma
and
migraines.”
Tr.
71.
Plaintiff’s
applications for DIB and SSI were initially denied on February 21,
2009, and May 12, 2009, respectively. Tr. 63-69. Plaintiff filed a
timely written request for a hearing on only her SSI claim, which
was held via video conference on December 13, 2010 before ALJ
Lawrence Levey. Tr. 23-61. Plaintiff appeared at the hearing, with
counsel,
and
testified.
Tr.
23-61.
Plaintiff’s
mother
also
testified. Tr. 23-61.
In a decision dated December 21, 2010, the ALJ found that the
Plaintiff
was not
Security Act.
disabled
within
the
meaning
of
the
Social
Tr. 11-19. Plaintiff sought review by the Appeals
2
Council on February 10, 2011.
Tr. 184-85.
The ALJ’s decision
became the final decision of the Commissioner on June 10, 2011,
when the Appeals Council denied review.
Tr. 1-3.
Plaintiff then
filed this action.
DISCUSSION
I.
Jurisdiction and Scope of Review
42 U.S.C. Section 405(g) grants jurisdiction to district courts
to hear claims based on the denial of Social Security benefits.
When considering these cases, this section directs the Court to
accept the findings of fact made by the Commissioner, provided that
such findings are supported by substantial evidence in the record.
Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Consolidated
Edison Co. V. NLRB, 305 U.S. 197, 229 (1938).
The Court’s scope of
review is limited to whether or not the Commissioner’s findings were
supported by substantial evidence in the record, and whether the
Commissioner employed the proper legal standards in evaluating the
Plaintiff’s claim.
See Monger v. Heckler, 722 F.2d 1033, 1038 (2d
Cir. 1983) (finding a reviewing Court does not try a benefits case
de novo).
The Court must “scrutinize the record in its entirety to
determine the reasonableness of the decision reached.” Lynn v.
Schweiker, 565 F.Supp. 265, 267 (S.D. Tex. 1983) (citation omitted).
3
The Commissioner asserts that the ALJ’s decision is supported
by substantial evidence in the record and is in accordance with the
applicable legal standards, and moves for judgment on the pleadings
pursuant to Rule 12(c). Under Rule 12(c), judgment on the pleadings
may be granted where the material facts are undisputed and where
judgment on the merits is possible merely by considering the
contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842
F.2d 639 (2d Cir. 1988).
If, after reviewing the record, the Court
is convinced that plaintiff has not set forth a plausible claim for
relief, judgment on the pleadings may be appropriate. See generally
Bell Atlantic Corp.
reviewing
the
v.
entire
Twombly, 550 U.S. 544 (2007).
record,
this
Court
finds
that
After
the
Commissioner’s decision is supported by substantial evidence in the
record, and is in accordance with the applicable legal standards.
Therefore, the Commissioner’s motion for judgment on the pleadings
is granted, and the Plaintiff’s motion is denied.
II.
The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record.
In his decision finding that the Plaintiff was not disabled
within the meaning of the Social Security Act, the ALJ adhered to
the required 5-step sequential analysis for evaluating Social
Security disability benefits claims. Tr. 11-13. The 5-step analysis
requires the ALJ to consider the following:
4
(1)
whether the claimant is currently engaged in substantial
gainful activity;
(2)
if not, whether the claimant has a severe impairment
which significantly limits his physical or mental ability
to do basic work activities;
(3)
if the claimant suffers a severe impairment, the ALJ
considers whether the claimant has an impairment which is
listed in Appendix 1, Subpart P, Regulation No. 4, if so,
the claimant is presumed disabled;
(4)
if not, the ALJ considers whether the impairment prevents
the claimant from doing past relevant work;
(5)
if the claimant’s impairments prevent her from doing past
relevant work, if other work exists in significant
numbers in the national economy that accommodate the
claimant’s residual functional capacity and vocational
factors, the claimant is not disabled.
20 C.F.R. §416.920(a)(4)(i)-(v).
In this case, the ALJ found that: (1) the Plaintiff has not
engaged in substantial gainful activity since January 30, 2009 (the
date of her application); (2) the Plaintiff has the following severe
combination
of
impairments:
spina
bifida
with
hydrocephalus,
hydronephrosis, headaches, asthma, depressive disorder, attention
deficit disorder (“ADD”), generalized anxiety disorder, a Chiari II
malformation, and obesity; (3) the Plaintiff’s
combination of
impairments does not meet or medically equal the listed impairments
in Section 404, Subpart P, Appendix 1; (4) although she had no work
history, the Plaintiff has the residual functional capacity (“RFC”)
to perform light or sedentary work which requires lifting 20 pounds
occasionally and/or 10 pounds frequently, sitting, standing and/or
walking for about 6 hours in an 8-hour workday, unlimited pushing
5
and/or pulling machinery controls, but which does not include upward
pulling of over 10 pounds, or concentrated exposure to extreme heat
or
cold,
wetness,
humidity,
fumes,
odors,
dusts,
gases,
poor
ventilation, or other irritants. (5) there are a significant number
of jobs in the national economy that the Plaintiff, considering her
age, education, work experience, and residual functional capacity,
can perform. Tr. 13-19. The ALJ concluded that the Plaintiff was not
disabled within the meaning of the Social Security Act. which this
Court finds was supported by substantial evidence in the record.
Medical History
Plaintiff was born with spina bifida, a congenital condition
that has affected her in various ways since birth. As an infant,
Plaintiff underwent surgical correction of the defect caused by
spina bifida and a shunt placement to treat hydrocephalus and drain
excess fluid from the area around her brain. Tr. 31, 202, 299. In
May of 2006 a computed tomography (CT) scan showed there was no
longer evidence of hydrocephalus. Tr. 188. In 2007, the findings of
an MRI revealed a Chiari II malformation. Tr. 196.
As a result of the spina bifida, Plaintiff has a neurogenic
bladder and diminished bowel control. Tr. 204. This requires her to
catheterize herself multiple times daily although she reported to
treating physician Dr. Stephen B. Sulkes in 2007 that she only
catheterizes herself twice a day and was experiencing frequent
6
daytime wetness. Tr. 186. She also reported she was generally dry
overnight. Tr. 186. Plaintiff testified that she urinates or soils
herself about three times a week. Tr. 35. In May of 2008, Nurse
Practitioner Cheryl Kline of the Pediatric Urology center of Strong
Memorial Hospital (“Strong”) reported that Plaintiff felt she was
“catheterizing more consistently” and that Plaintiff “seems to be
taking
more
responsibility
for
maintaining
herself
in
a
more
socially appropriate continence situation.” Tr. 275. In May of 2006,
2007 and 2008 an ultrasound of Plaintiff’s kidneys revealed normal
functioning. Tr. 195.
Plaintiff also complains of severe headaches for which she was
hospitalized on several occasions. Tr. 192, 209, 291. In September
of
2007,
Plaintiff
left
school
and
went
to
Strong
emergency
Department for a headache evaluation. Tr. 192, 272. A shunt series
revealed a kink in her shunt near her lower ribs and a possible
disconnection above the right clavicle. Tr. 192. Plaintiff’s mother
decided
to
postpone
the
shunt
revision
due
to
potential
complications. Tr. 43, 192. In May 2007, at a yearly follow up,
Plaintiff reported to Dr. Sulkes an episode of transient pain at her
spina bifida surgical scar, manifesting itself as a headache.
Tr. 186. She stated there had been no pain before or after this
isolated episode. Tr. 186. As a result of her complaints of severe
headaches, Plaintiff had a follow-up appointment in the Pediatric
Neurosurgery Department at Strong on May 13, 2008 by Dr. Howard J.
7
Silberstein who reported that Plaintiff denied “further headaches
or any other symptoms of increased intracranial pressure.” Tr. 272.
On
May
15,
2008
Plaintiff
had
a
follow-up
appointment
with
Dr. Sulkes, who reported no further headache episodes and stable low
level myelomeningocele and shunted hydrocephalus. Tr. 273.
Dr. Harbinder Toor conducted a consultative internal medical
examination
on
April
9,
2009.
Tr.
209-14.
He
reported
that
Plaintiff’s “migraine headaches and accompanying dizziness from the
shunt placement and hydrocephalus can interfere with her daily
physical routine.” Tr. 211-12. He further opined that she should
avoid irritants or other factors which can precipitate asthma
symptoms.
Tr.
212.
During
the
visit,
Plaintiff
reported
no
difficulties showering or dressing, she reported that she did
laundry three times a week and shopped once a week. Tr. 210. His
examination revealed a mild limitation in range of motion of the
cervical and lumbar spine and numbness in the back of her legs.
Dr. Toor opined that her prognosis was fair. Tr. 212.
Later examinations in May 2008, May 2010 and December 2010 by
treating physician Dr. Corrie Harris of Genesis Pediatrics did not
reveal
any
back
problems,
such
as
tenderness,
swelling
or
instability. Tr. 262-69. Dr. Harris reported Plaintiff to have a
full range of motion and full strength. Tr. 262-69. Plaintiff also
saw Dr. Harris regarding an injured knee, and Dr. Harris referred
her to a physical therapist. Tr. 256-59.
8
Plaintiff also suffers from mental impairments. Plaintiff’s
primary care physician, Dr. Catherine Goodfellow diagnosed Plaintiff
with
Depression
and
ADD
and
prescribed
her
antidepressants
(Fluoxetine 60 mg) and stimulants for her ADD (Concerta 54 mg and
Strattera 80 mg). Tr. 203. Plaintiff admitted that the Concerta was
helpful with some of her ADD symptoms. Tr. 188.
Consultative physician Dr. Christine Ransom examined Plaintiff
on April 4, 2009. Dr. Ransom agreed with Dr. Goodfellow’s previous
diagnoses and treatment for moderate Major Depressive Disorder and
ADD, and also identified probable borderline intellectual capacity.
Tr. 215-18. Dr. Ransom recommended that she seek a psychiatric
evaluation. Her prognosis was fair to good. Tr. 218. Ultimately,
Dr. Ransom opined that Plaintiff would have moderate difficulty
performing complex tasks, relating adequately with others and
appropriately dealing with stress. Tr. 218.
Plaintiff also alleges an anxiety disorder. In May of 2006, she
reported to Dr. Sulkes that she felt anxious “much of the time” and
that she was prescribed Zoloft which was not helping. Tr. 188. A
year later in May 2007, Plaintiff again reported to Dr. Sulkes that
she experienced anxiety. Tr. 186. Plaintiff also reported anxiety
and frequent panic attacks, at least three times per week, to
Dr. Harris and that her previous Prozac prescription did not help
her. Tr. 257. Plaintiff testified that she is extremely anxious and
9
stressed and experiences panic attacks multiple times per week. Tr. 37.
Plaintiff also struggled somewhat in school. Plaintiff took
special education classes and received testing accommodations such
as extended time and at a location with minimal distractions.
Plaintiff’s test scores in 2003 through 2005 were below state
standards in one or more academic subjects and below average on
certain sub-tests of standardized tests. Tr. 160-74. However, her
tests from the 9th through 12th grades, years 2006-2009 satisfied
state standards and reached at least average levels, some even above
average. Tr. 160-74. Plaintiff had an Individualized Education Plan
(“IEP”) for the 2008-2009 academic year which provided for testing
accommodations
and
also
acknowledged
her
ability
to
fully
participate in the general education setting for normal elective
classes. She also participated in adapted physical education.
Tr. 161. The IEP described her as a “very capable student” who
processed information at a slower rate in Social Studies but not
noticeably in other subjects. Tr. 163. Her IEP attributed her
academic under-performance to inconsistent work and study habits.
The IEP stated Plaintiff had no social or emotional needs. Tr. 163.
It also stated that she required bathroom privileges as needed.
Tr. 163.
On May 5, 2009 state agency medical consultant in psychology,
A. Hochberg, found plaintiff’s mental impairments did not meet any
listing, particularly listings 12.02 (organic mental disorders),
10
12.04 (affective disorders) and 12.06 (anxiety-related disorders).
Tr. 232. Dr. Hochberg also found that, based on his review of the
record, Plaintiff had only mild limitations in activities of daily
living, moderate difficulties in maintaining social functioning and
moderate difficulties in maintaining concentration, persistence, or
pace. Tr. 242. According to Dr. Hochberg, there was insufficient
evidence of any episodes of decompensation. Tr. 242.
On the same day, Dr. Hochberg performed a Mental Functional
Capacity Assessment and found Plaintiff’s IQ tests to fall in the
average range. Tr. 248. Dr. Hochberg also found that the evidence
on file was consistent with Dr. Ransom’s opinion that Plaintiff
could perform simple tasks independently. Tr. 248. Based on this
history, Dr. Hochberg found that Plaintiff could perform simple
tasks independently, could sustain a normal workday/week, and could
maintain a consistent pace to do at least unskilled work. Tr. 248.
Dr. Hochberg did indicate that Plaintiff might need a position with
limited interpersonal demands and contact. Tr. 248.
On November 29 and December 7, 2010, Plaintiff saw Katherine
Pawlaczyk, LCSW-R, for therapy. Tr. 301-07. Plaintiff indicated
environmental stressors at home and Ms. Pawlaczyk opined that
Plaintiff had a decreased ability to be independent as a result of
emotional symptoms. Tr. 306.
On a form dated February 26, 2009 for the New York State Office
of Temporary and Disability Assistance, Dr. Catherine Goodfellow
11
indicated that Plaintiff had no limitation in her ability to lift
and carry, stand or walk, sit, push and/or pull or any other
potential limitation on work-related physical activity. Tr. 205.
However, on February 7, 2011, Dr. Goodfellow sent a letter to
the
Social
Security
Administration
rescinding
her
previous
evaluation. She stated that Plaintiff suffers from “depression,
anxiety and ADD which cause significant limitations in her ability
to concentrate for even short periods of time.” Tr. 308. She also
noted Plaintiff’s frequent panic attacks and the unpredictable
nature of her emotional state, which, she reported, are “difficult
for her to control.” Tr. 308. She concluded that Plaintiff’s
problems could “reasonably be expected to prevent her from being
able to successfully maintain employment” and that Plaintiff “would
not be able to sustain full-time competitive employment.” Tr. 308.
To explain her change in opinion, Dr. Goodfellow stated that to
determine if a claimant is entitled to social security benefits
requires a “much more thorough evaluation than we had ever had in
our office” and that “there are significant issues that have since
come forward.” Tr. 308. However, she did not state what those new
issues were.
The Hearing Before the ALJ
Plaintiff
testified
that
she
is
20
years
old
and
has
successfully completed the 12th grade except for a senior project,
on which she received a failing grade. Tr. 31. At the time of the
12
hearing she was working on completion of the project in order to
graduate. Tr. 31. Plaintiff testified that she needs to use a
catheter throughout the day as a result of her hydronephrosis.
Tr. 32. She reported that she suffered from migraine headaches one
to three times a week which required her to take medication and lay
down. Tr. 32. She also testified that she suffers from asthma which
prevents her from doing “physical things like running” and these
sorts of activities, if performed, cause her asthma attacks. Tr. 3233. Plaintiff testified that her feet are slightly turned in, for
which she saw a podiatrist as a child. This condition contributed
to a fall in 2006 and caused her knee to become inflamed. She stated
it has been “messed up ever since.” Tr. 33-34. Plaintiff also
testified that she can walk about half a mile or less before she has
to stop, a numerical equivalent of about 10 or 15 minutes. Tr. 34.
Plaintiff testified that she urinates or soils herself around three
times a week because she “does not feel it coming on” and she is
only able to sleep for 4 hours at a time.
Plaintiff testified that she has about ten panic attacks per
month and has suicidal thoughts. Tr. 37. She also testified that she
takes Celexa for her depression but did not take medication for her
anxiety. Tr. 38. She testified that she has crying spells almost
every night and she finds herself taking naps or lying down during
the day nearly every day. Tr. 38. Plaintiff reported that she does
not read because she is not very good at it and that she is not able
13
to handle money herself because she is not very good at math.
Tr. 40.
Plaintiff’s mother testified that Plaintiff fights a lot with
family members and “flies off the handle.” Plaintiff’s mother also
testified that she stays in her room all the time. Tr. 48. She also
stated that Plaintiff does not have, and never has had, many
friends. Tr. 52. She also testified that Plaintiff’s hygiene is not
exceptional, explaining that Plaintiff will soil herself and leave
the soiled clothes on the floor only to later put them back on.
Tr. 49. Plaintiff’s mother testified that she “could not see her
holding a job because she does not listen to authority.” Tr. 51.
Vocational Expert Mr. George Storasta (“VE”) also testified at
the hearing by telephone. Tr. 55-60. The ALJ asked the VE to assume
a
hypothetical
individual
with
the
same
age,
education,
work
experience, and RFC as the Plaintiff. The limitations from the RFC,
which the ALJ used in the hypothetical, were those of an individual
who is capable of performing sedentary work but:
“can only occasionally utilize her right lower extremity for
pushing, pulling or operation of foot controls; the individual
can only occasionally climb ramps or stairs and could only
occasionally
engage
in
balancing,
stooping,
kneeling,
crouching and crawling; the individual is precluded from
climbing ladders, ropes or scaffolds and is required to avoid
concentrated exposure to temperature extremes, wetness and
humidity. The individual is additionally required to avoid all
exposure to excessive noise and to environmental irritants,
and
requires
work
in
close
proximity
to
lavatory
facilities...this individual is limited to performing only
simple, routine and repetitive tasks with only occasional
changes in the work setting and any changes being gradually
introduced; the individual requires a job that does not
14
involve interaction with the general public, and should only
occasionally or no more than occasionally have interaction
with coworkers and supervisors”
In an alternate hypothetical, the ALJ asked the VE to assume an
individual with the same limitations and is capable of no more than
sedentary exertional work. Tr. 56-60. The VE testified that jobs
such as addresser/mail sorter, surveillance system monitor and
assembler would be possible for the Plaintiff to perform of which
there existed about 400,000 jobs in the national economy. Tr. 58.
A.
The ALJ properly developed the record.
Plaintiff claims that the ALJ erred in failing to obtain a
consultative intelligence examination because there was evidence in
the record indicating the existence of a cognitive impairment.
Because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record. Perez v. Chater, 77 F.3d 41, 47
(2d Cir. 1996); See also Echevarria v. Secretary of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir.1982). This duty exists even when
the Plaintiff is represented by counsel. See Baker v. Bowen, 886
F.2d 289, 292 n. 1 (10th Cir.1989).
Where
the
record
does
not
contain
sufficient
clinical
findings, laboratory tests, or a diagnosis or prognosis necessary
for a decision to be made, a consultative examination may be
warranted
at the discretion of the ALJ. 20 C.F.R. §416.919a. See
15
Hughes v. Apfel, 992 F.Supp. 243, 248 (W.D.N.Y.1997) (citing 20
C.F.R. §404.1517 (the SSDI equivalent to §416.917)). However,
consultative examination is unnecessary if the record contains
sufficient information on which to base the decision. See Serianni
v. Astrue, No. 6:07-CV-250, 2010 WL 786305, at *5, 2010 U.S. Dist.
LEXIS 17758, at *13 (N.D.N.Y Mar. 1, 2010); See also Beal v.
Chater, 1995 WL 819041, at *4 (W.D.N.Y.1995). An ALJ is not
obligated to order a consultative examination if the facts do not
warrant or suggest the need for such an examination. Cruz v.
Shalala, 1995 WL 441967, at *5 (S.D.N.Y.1995) . Where a plaintiff
suggests a possible mental impairment, the ALJ must assess whether
there
is
any
evidence
of
work-related
functional
limitations
resulting from the possible mental impairment which have not been
adequately addressed in the record. See Haskins v. Comm'r of Soc.
Sec., 2008 WL 5113781, at *7, n. 5 (N.D.N.Y.2008).
Here,
the
record
contains
sufficient
evidence
regarding
Plaintiff’s cognitive abilities. The record contains Plaintiff’s
IEP which lists three sets of IQ tests from 2001, 2004 and 2007.
Tr. 162-63, 169-74. Plaintiff’s school psychologist, Dr. Elizabeth
Perelli,
who
administered
the
tests,
stated
that
Plaintiff’s
“overall cognitive ability fell within the average range.” Tr. 172.
The results of these comprehensive tests are consistent with the
opinion of Dr. Ransom, who classified Plaintiff as having “probable
borderline intellectual capacity.” Dr. Ransom found her prognosis
16
was
fair.
Tr.
218.
Because
these
sources
provide
sufficient
evidence regarding the cognitive abilities of the Plaintiff from
which the ALJ could base his decision, this Court finds that the
ALJ did not err by failing to request an additional consultative
intelligence exam.
B.
The ALJ’s Residual Functional Capacity finding is
supported by substantial evidence.
Plaintiff claims that the ALJ’s RFC finding is not supported
by substantial evidence. After considering the medical evidence in
the record the ALJ found that Plaintiff retained the RFC for
sedentary work as defined by 20 C.F.R. 416.967(a), except that
“such work must be limited to simple, routine and repetitive tasks;
have only occasional changes in the work setting with any changes
being gradually introduced; require no interaction with the public
and
no
more
than
occasional
interaction
with
co-workers
or
supervisors; require no more than occasional use of the right lower
extremity for pushing, pulling, or operation of foot controls;
involve no climbing of ladders, ropes or scaffolds, no more than
occasional
climbing
of
ramps
or
stairs,
balancing,
stooping,
kneeling, crouching, or crawling, no concentrated exposure to
temperature extremes, wetness, or humidity, and no exposure to
excessive noise and environmental irritants; and allow for close
proximity to a restroom facility.” Tr. 14-15. The ALJ relied on
17
evaluations from consultative physicians Dr. Toor and Dr. Ransom,
and treating physician Dr. Goodfellow, all of whom addressed the
Plaintiff’s symptoms and functional limitations.
Dr. Toor, whom the ALJ afforded significant weight, opined
that Plaintiff’s physical limitations would “interfere with her
daily physical routine” and may limit her ability to engage in
prolonged running or walking, in balancing, and in her ability to
tolerate environmental irritants. Tr. 212-13. The ALJ took the
limitations outlined by Dr. Toor into consideration in his RFC.
Tr. 15. See 20 C.F.R. §416.967(a); SSR 83-10. Dr. Goodfellow, whom
the ALJ gave limited weight, opined that the Plaintiff had no
impairment-related functional limitations at all. Tr. 205. The ALJ
decided to give limited weight to Dr. Goodfellow in order to afford
the benefit of the doubt to the Plaintiff. Tr. 18. Dr. Ransom
opined that Plaintiff would have moderate difficulty performing
complex tasks, relating adequately with others and appropriately
dealing with stress, which is also reflected in the ALJ’s RFC.
Tr. 14-15. Based on this evidence, and for the reasons set forth
below, this Court finds that the ALJ’s RFC was supported by
substantial evidence in the record.
18
1.
Plaintiff
The ALJ adequately considered limitations stemming
from Plaintiff’s bladder and bowel incontinence.
specifically
argues
that
the
ALJ
failed
to
adequately consider limitations stemming from her bladder and bowel
incontinence in his RFC determination. However, the RFC provides
that Plaintiff must be allowed “close proximity to a restroom
facility.” Tr. 15. Although Plaintiff testified that she soils
herself multiple times a week, Dr. Sulkes noted that she only
catheterizes herself twice a day which could be contributing to her
daytime
wetness.
Urology
specialist
Cheryl
Kline
encouraged
Plaintiff to catheterize more frequently. Tr. 186-87. There is no
evidence
in
the
record
suggesting
that
Plaintiff’s
self-
catheterization cannot be done in public facilities and Plaintiff
had no physical or medical limitations or accommodations at school
as a result of her bladder and bowel issues, other than restroom
privileges as needed. Tr. 163, 283. Furthermore, ultrasounds of
Plaintiff’s kidneys and bladder from May 2006, 2007 and 2008 were
consistently normal. Tr. 16, 195, 200-01. Lastly, Dr. Goodfellow
noted that Plaintiff’s hydronephrosis, though a lifelong diagnosis,
was stable and caused no physical limitations. Tr. 203-05.
Therefore, this Court finds that the ALJ adequately considered
Plaintiff’s bowel and incontinence issues in the RFC.
19
2.
The ALJ correctly considered the opinion of Dr.
Goodfellow.
Plaintiff next contends that the ALJ erred in evaluating the
opinion of her primary care physician Dr. Goodfellow by failing to
contact her to clarify or update her medical statement. An ALJ is
required to “recontact” a claimant’s physician for additional
information regarding plaintiff’s impairments when the evidence
from a claimant’s treating physician is inadequate for the ALJ to
determine
whether
the
claimant
is
disabled.
20
C.F.R.
§416.912(e)(1).1 Where, however, “there are no obvious gaps in the
administrative record, and where the ALJ already possesses a
complete medical history, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.”
Crawley-Nunez
v.
Astrue,
08-CV-0295-A,
2009
WL
5171880,
*6
(W.D.N.Y. Dec. 22, 2009) (citing Rosa v. Callahan, 168 F.3d 72, 79,
n. 5 (2d Cir.1999)). See Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002) (“While the opinions of a treating physician deserve
special respect, they need not be given controlling weight where
they
are
contradicted
by
other
1
substantial
evidence
in
the
Effective March 26, 2012, the Commissioner amended 20
C.F.R. §416.912 to remove the duty imposed on ALJs in former
paragraph (d) to re-contact a disability claimant’s treating
physician under certain circumstances. The commissioner’s
directives as to how an ALJ will consider evidence are now found
at 20 C.F.R. §416.920b. Here, however, the Court will apply the
version in effect when the ALJ adjudicated Plaintiff’s disability
claim, §416.912(e).
20
record.”); Rebull v. Massanari, 240 F. Supp. 2d 265, 272 (S.D.N.Y.
2002) (medical record that does not support a treating physician's
opinion does not necessarily contain gaps or deficiencies in the
evidence which require recontact).
In this case, the record is replete with treatment notes from
treating physicians Dr. Sulkes, Dr. Harris and Dr. Silberstein and
consultative physicians Dr. Toor and Dr. Ransom, all opining on
Plaintiff’s
impairments
and
her
functional
limitations.
The
evidence from Plaintiff’s treating sources and the consultative
physicians is substantial evidence to support the ALJ’s decision on
Plaintiff’s claim without needing to recontact Dr. Goodfellow. See
Rebull, 240 F. Supp. 2d at 272; See also Veino, 312 F.3d at 588. To
account for Dr. Goodfellow’s opinion that Plaintiff was entirely
without impairment-related functional limitations from the other
physician’s evaluations, the ALJ afforded Dr. Goodfellow limited
weight in an attempt to afford the Plaintiff the benefit of any
reasonable doubt. Tr. 18, 205. Accordingly, this Court finds that
the ALJ did not err by failing to recontact Dr. Goodfellow.
3.
The Appeals Council did not err by failing to
remand the case.
Plaintiff further argues that the Appeals Council erred in
failing to remand in light of receiving “new and material” evidence
from Dr. Goodfellow. “If new and material evidence is submitted to
21
the Appeals Council, the Council will consider it ‘only if it
relates to the period on or before the date of the administrative
law judge hearing decision.’” Soto v. Astrue, 09 CIV. 9862 HB, 2011
WL
1097392,
*3
(S.D.N.Y.
Mar.
23,
2011);
20
C.F.R.
§ 416.1476(b)(1). See also Richardson v. Apfel, 44 F. Supp. 2d 556,
562
(S.D.N.Y.
additional
1999).
evidence,
To
the
obtain
a
claimant
review
must
of
a
submission
establish
that
of
“the
proffered evidence is (1) new and not merely cumulative of what is
already in the record, and that it is (2) material, that is, both
relevant to the claimant's condition during the time period for
which benefits were denied and probative.” Sergenton v. Barnhart,
470 F.Supp.2d 194, 204 (E.D.N.Y.2007) (citing Lisa v. Sec'y of
Health & Human Servs., 940 F.2d 40, 43 (2d Cir.1991)).
Evidence is considered “material” if it is “relevant to the
claimant's condition for the time period for which benefits were
denied.” Bergmann v. Apfel, 207 F.3d 1065, 1069-70 (8th Cir.1999)
(also finding that evidence must discuss more than conditions or
deterioration which was present before the ALJ’s decision); See
also Hangartner v. Shalala, 865 F.Supp. 755, 759 (D.Utah 1994). In
addition, there “must be a ‘reasonable possibility that the new
evidence would have changed the outcome of” the ALJ's decision “had
it been before him.” Gamer v. Secretary of Health and Human
Services, 815 F.2d 1275, 1280 (9th Cir. 1987).
22
As the Commissioner notes, Dr. Goodfellow’s February 2011
opinion
was
based,
by
her
own
admission,
on
her
review
of
Plaintiff’s self-reporting her symptoms and not on a more recent
examination of Plaintiff and her impairments. Tr. 308. The letter
contained no specific additional impairments or any account of
major increases in frequency or severity of symptoms. In the
letter,
Dr.
Goodfellow
also
draws
conclusions
on
Plaintiff’s
employability which are left to the Commissioner to decide. See 20
C.F.R. §416.920 and §416.945. Not only is Dr. Goodfellow’s letter
unsupported by specific evidence that is not already in the record,
it is also inconsistent with the rest of the record. Commissioner’s
Brief, at 19; Tr. 308. Accordingly, the Court finds the additional
submission is not “material” and the AC did not err in finding that
the information did not provide a basis for changing the ALJ’s
decision. Tr. 2.
4.
The ALJ properly applied the Psychiatric Review
Technique
Lastly, the Plaintiff argues the ALJ improperly evaluated her
mental impairments by failing to apply the proper evaluation
standard in his RFC. This claim is two-fold: first, Plaintiff
argues that the ALJ failed to properly evaluate the “paragraph B”
criteria by failing to adequately support his evaluation; and
second, that the paragraph B analysis was improperly applied to
23
Steps 3, 4 and 5 of the sequential evaluation. Plaintiff’s Brief,
at 17; See 20 C.F.R. §416.920.
The ALJ relies heavily on the evidence in the record provided
by consultative and non-examining physicians. The regulations state
that state agency physicians are “highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.” 20 C.F.R. §416.927(e)(2); See SSR 96-6p. Case law has
expanded the regulations to say that “[s]tate agency physicians are
as qualified [as] experts in the evaluation of medical issues in
disability
claims.
As
such
their
opinions
may
constitute
substantial evidence if they are consistent with the record as a
whole.” Barringer v. Commissioner of Social Sec., 358 F.Supp.2d 67,
79 (citing Leach ex rel. Murray v. Barnhart, 2004 WL 99935, at *9
(S.D.N.Y. Jan. 22, 2004)).
The regulations provide that in order to evaluate the severity
of a mental impairment, “we must follow a special technique at each
level in the administrative review process.” 20 C.F.R. §416.920a
(emphasis added). As required in “paragraph B” of listings, there
are four functional areas in which the ALJ should rate the degree
of functional limitation of a claimant: (1) activities of daily
living, (2) social functioning, (3) concentration, persistence, or
pace,
and
(4)
episodes
of
decompensation.
20
C.F.R.
§416.920a(c)(2); See 20 C.F.R. §404, Subpt. P, App. 1, 12.00C. The
regulations
direct
that
the
first
24
three
functional
areas
be
evaluated using a five-point scale: None, mild, moderate, marked,
or extreme. The regulations require that the last area, episodes of
decompensation, be evaluated using a four-point scale: none, one or
two, three, four or more. 20 C.F.R. § 416.920a (c)(3). The findings
from the “paragraph B” evaluation are then applied to Step 3 of the
sequential evaluation to determine if a claimant is able to work.
See 20 C.F.R. §416.920; See also SSR 96-8P, at *2.
The
ALJ
found
that
Plaintiff
had
no
more
than moderate
restrictions in activities of daily living. In his discussion of
this
area,
he
referenced
Plaintiff’s
testimony
that
she
is
independent in all aspects of self-care and that she is able to
catheterize herself. Tr. 14, 32, 40. He also referenced Dr. Toor
and Dr. Ransom’s opinions which included Plaintiff’s statements she
watched television, shopped with her mother and socialized with
friends. Tr. 14, 210, 216-17.
Next, the ALJ found that Plaintiff had moderate difficulty
with social functioning. He first referenced Plaintiff’s mother’s
testimony that Plaintiff spends a great deal of time in isolation
and frequently fights with family members. Tr. 14, 48. The ALJ also
referenced the evidence in the record that Plaintiff socializes
normally. The ALJ references Plaintiff’s statements to her doctors
that
she
socializes
with
friends
as
well
as
evidence
from
Plaintiff’s IEP, which stated in relevant part that Plaintiff has
developed a peer group and that Plaintiff herself told the school
25
psychiatrist it was the aspect of school she liked best. Tr. 14,
163, 210, 216.
The ALJ next found the Plaintiff to have moderate difficulty
in the area of concentration, persistence or pace. Tr. 14. The ALJ
acknowledged
difficulty
Plaintiff’s
paying
testimony
attention
or
that
she
“sometimes”
concentrating,
as
well
has
as
Plaintiff’s IEP which noted that Plaintiff had difficulty following
through and completing tasks. Tr. 14, 39, 162. The ALJ also
referenced the findings of consultative physician Dr. Ransom, who
found
that
Plaintiff
was
able
to
maintain
attention
and
concentration for simple tasks and classified her attention deficit
as moderate. Tr. 14, 218. He also referenced state agency medical
consultant Dr. Hochber who determined that claimant could sustain
a normal workday and workweek and maintain a consistent pace to do
at least unskilled work. Tr. 14, 248.
Lastly, the ALJ found the record to show no episodes of
decompensation. He stated that he found no evidence in the record
to establish a single episode in which claimant suffered increased
symptoms with loss of adaptive functioning that lasted two weeks or
more. Tr. 14.
After going through the steps of the Special Technique as
required by the regulations to evaluate “paragraph B” criteria, the
ALJ determined that “[b]ecause the Plaintiff’s mental impairments
do not cause at least two ‘marked’ limitations or one ‘marked
26
limitation
and
‘repeated’
episodes
of
decompensation,
the
‘paragraph B’ criteria are not satisfied.” Tr. 14. See 20 C.F.R Pt.
404, Subpt. P, App. 1, 12.00B. After reviewing the record, this
Court finds that the ALJ’s evaluation of each area of “paragraph B”
criteria was substantially supported by the record.
The Plaintiff also argues that the ALJ did not supply a
finding as to Plaintiff’s mental limitations. Plaintiff’s Brief, at
16-18. The results of the ALJ’s “paragraph B” evaluation, however,
provide the basis for the ALJ’s RFC determination that Plaintiff
was limited to “simple, routine, and repetitive tasks” and that she
could “have only occasional changes in the work setting with any
changes being gradually introduced.” Further, the job could require
“no interaction
with
the
public
and
no
more
than
occasional
interaction with co-workers or supervisors...” Tr. 15. Contrary to
the
Plaintiff’s
functional
argument,
limitations
this
contained
RFC
in
determination
the
areas
of
includes
activities
considered to be essential to the ability to work and as such is
sufficient and substantially supported by the record.
Accordingly, this Court finds that the ALJ’s RFC determination
was properly decided and supported by substantial evidence in the
record and the Plaintiff’s contentions are without merit.
27
C.
The ALJ correctly evaluated the Plaintiff’s credibility.
Plaintiff
argues
that
the
ALJ
erred
in
his
credibility
determination. Once an ALJ has determined that an applicant suffers
from a medically determinable impairment that could reasonably be
expected to produce a Plaintiff’s pain and other symptoms, he is
required to evaluate the intensity of these symptoms by considering
the following factors: (i) daily activities; (ii) the location,
duration, frequency, and intensity of your pain or other symptoms;
(iii) precipitating and aggravating factors; (iv) the type, dosage,
effectiveness,
and
side
effects
of
any
medications
taken
to
alleviate this pain or these symptoms; (v) other treatment used for
relief of these symptoms; (vi) any other measures used to relieve
the
pain
or
symptoms;
(vii)
other
factors
regarding
restrictions or limitations due to pain or symptoms.
§ 416.929(c)(3); SSR 96-7p.
your
20 C.F.R.
If the ALJ finds the Plaintiff’s
testimony not to be credible based on these factors, then the ALJ
must give a detailed explanation explaining the ALJ’s reasoning
behind his conclusion.
See Marshall v. Heckler, 731 F.2d 555
(8th Cir. 1984).
In his decision, the ALJ discussed the Plaintiff’s testimony
regarding her ability to physically handle work, including her back
pain and stiffness and how they limit her ability to walk or stand
for prolonged periods, her bladder and bowel control problems,
headaches, knee problems and asthma. Tr. 15-18. The ALJ determined
28
that Plaintiff’s “statements are not credible to the extent that
they are inconsistent with the . . . residual functional capacity
assessment,” which was based on the consultative examination by
Dr. Toor as well as the entire medical record provided by the
Plaintiff, including that of her primary care physician.
Tr. 15-
18.
On several occasions, the Plaintiff’s testimony conflicts with
what she reported to physicians and on her claim of disability. As
the ALJ cited, she reported to Dr. Toor and Dr. Ransom that she is
independent in all aspects of personal care, including doing her
own laundry and shopping and socializing with others. Tr. 17, 210,
217.
The
ALJ
also
notes
that
as
recently
as
December
2010,
Plaintiff expressed a desire to pursue a college education but her
only obstacle is the lack of financial resources. Tr. 17, 262.
These contradictory reports, as well as others, provided the basis
for the ALJ’s credibility determination.
The Plaintiff also argues that the ALJ failed to discuss her
medications and special education classes in his opinion. An
administrative judge is not required to explicitly name and discuss
every piece of evidence in the record. See Berry v. Schweiker, 675
F.2d 464, 469 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124
(2d Cir. 1981); Barringer v. Commissioner of Social Sec., 358
F.Supp.2d 67, 78-79 (N.D.N.Y. 2005). Where “the evidence of record
permits [the court] to glean the rationale of an ALJ's decision,
29
[the ALJ is not required to explain] why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion
of disability.” Barringer, 358 F. Supp. 2d at 79 (citing Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir.1983), 722 F.2d at 1040.
Moreover, “[a]lthough required to develop the record fully and
fairly,
an
ALJ
is
not
required
to
discuss
all
the
evidence
submitted, and [his] failure to cite specific evidence does not
indicate that it was not considered.” Id. (citing Craig v. Apfel,
212 F.3d 433, 436 (8th Cir. 2000)). The ALJ's decision contains
myriad references to the medical sources from the record. Thus, a
conclusion that the ALJ did not consider all of the relevant
evidence is unwarranted.
The ALJ did not completely discount Plaintiff’s testimony,
only that which conflicted with the RFC. Ultimately, this Court
finds that
the
ALJ
properly
considered the testimony
of
the
Plaintiff in his finding that the Plaintiff is not disabled under
the Act.
D.
The testimony of the Vocational Expert was supported by
substantial evidence in the record.
Plaintiff
argues
that
the
ALJ
provided
the
VE
with
an
incomplete hypothetical that omitted all of Plaintiff’s alleged
limitations. In questioning a vocational expert, a hypothetical
must precisely and comprehensively set out every physical and
mental impairment of the Plaintiff that the ALJ accepts as true and
30
significant.
Varley v. Sec’y of Health & Human Services, 820 F.2d
777, 779 (6th Cir. 1987). Plaintiff contends the hypothetical was
incomplete because the ALJ erred in assessing her RFC and her
credibility. Plaintiff’s Brief, at 21. However, the hypothetical
included Plaintiff’s physical and mental impairments, and the
limitations that result from those impairments. Tr. 57. Because the
hypothetical was consistent with the ALJ’s RFC finding, and the
RFC, as discussed above, was supported by substantial evidence in
the record, this Court finds that the ALJ properly relied on the
opinion of the VE.
CONCLUSION
For the reasons set forth above, this Court finds that
the Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record.2
Therefore, I
grant the Commissioner’s motion for judgment on the pleadings. The
Plaintiff’s complaint is dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
2
The
arguments
addressed
Plaintiff
Rochester, New York
July 19, 2012
Court notes that while several of Plaintiff's
were meritless and merely cumulative, the Court
each argument separately to adequately explain to the
the reasons for its decision.
31
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