Graves v. Astrue
Filing
13
DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Defendant's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/4/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TARA GRAVES,
No. 11-CV-6519(MAT)
DECISION AND ORDER
Plaintiff,
-vsMICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
I.
Introduction
Represented by counsel, plaintiff Tara Graves (“Graves” or
“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 (“the Commissioner”) denying her
application for Supplemental Security Income (“SSI”) benefits. For
the reasons that follow, the Commissioner’s decision is affirmed.
II.
Factual Background and Procedural History
Plaintiff’s
initial
application
for
benefits,
filed
on
March 6, 2009, was denied. Benefits were denied again on May 25,
2011, following an administrative hearing before an Administrative
Law Judge (“ALJ”). The relevant evidence of record is summarized
below.
A.
Plaintiff’s Testimony
In her testimony at the hearing before the ALJ, Graves stated
she graduated from high school with an Individualized Education
-1-
Program
diploma
and,
since
adolescence,
has
been
variously
diagnosed with anxiety, depression, attention deficit hyperactivity
disorder (“ADHD”), and a learning disability. Graves asserts that
she is unable to work because of her anxiety, depression, and
learning disability. Graves testified that she “can’t even read .
. . a baby book”; that she can only do basic math and most of the
time has to use a calculator. (22).1 She requires assistance in
filling out job applications and is unable to pay for things on her
own as she cannot count money. (22). Her last job was as a
childcare worker with the Wayne County Action Program which she had
to quit due to her severe anxiety. (23).
Graves testified that she requires consistent assistance from
her grandmother and her caseworker to care for herself and her two
children. (24). Her grandmother helps her read her mail. If Graves
is not feeling good and cannot leave the house, her grandmother
will go grocery shopping for her. (24-25).
Graves explained that she had been seeing Cathy Bump (“Bump”),
a licensed social worker, twice a week for mental health therapy,
but “she wasn’t really helping” anymore. (26). Graves stated that
for a while, Bump was writing to the Wayne Count Department of
Social Services (“DSS”) saying she was unable to work because of
her bad anxiety and her inability to leave the house. (26). Now,
1
Numbers in parentheses refer to pages from the administrative
record.
-2-
however, Bump said that Graves “need[s] to go back to work because
[Bump] can’t help [her].” (26). Graves said that Bump was not
listening to her problems but was “just assuming” things. (26).
Graves explained that she has suffered from anxiety since high
school and would become anxious when asked to perform an academic
task. (27). She explained, “I felt, like, I was going to fail, and
everybody was watching me. ‘Cause I can’t read. And I can’t spell
at all. So, I just, broke down, just like I couldn’t do it. And
that’s why I had real bad anxiety when I went to school.” (27). The
anxiety worsened after she had her son. (26). It is hard for her to
breathe, her mouth gets “all tingly”, and she “start[s] to . . .
break down and cry”, and she has to sit down because she feels as
if she is going to pass out. (26). Those symptoms were why she left
her daycare job. (26).
Graves stated that she “can’t stop gaining weight”. (27). She
had been speaking with her doctor about undergoing gastric banding
surgery. (27). She explained that her excess weight is causing her
to have a lot of pains in her arms and hands, and that she has
difficulty holding her eighteen-pound child for very long. (27).
Graves takes medication for high cholesterol. (28).
B.
Evidence Regarding Plaintiff’s Mental Impairments
1.
School Records
In eighth grade, Graves was classified as Multiply Disabled
with Wechsler IQ scores of 85 (full scale), 84 (verbal), and 89
-3-
(performance). Looking at her total academic achievements in terms
of grade equivalent, she was functioning at the 4.8 grade level at
age seventeen. (154). In the eleventh grade, Graves was diagnosed
with ADHD and medicated with Adderall. She was classified as having
a learning disability in the areas of math, reading comprehension,
basic reading skills, and written expression. (152).
Her overall reading ability, broad written language skills,
and mathematics skills all were in the low range of ability. (155).
Her Individualized Educational Program, completed at age nineteen,
states that her memory for verbally-presented information was
limited in all areas, as she became easily confused with multi-step
directions and word problems. In mathematics, she had difficulty
remembering and applying formulas, especially those that had been
previously taught. (148). With guidance, however, Graves would
complete assignments thoroughly, and she was “willing to try new
approaches
and
strategies,
often
resulting
in
a
better
understanding of the concepts, as well as a reminder of her
ability.” (148). At that point in time, the plan was for Graves to
continue to work at the Palmyra Community Center and apply for
part-time employment at a local childcare center. (147).
2.
Non-Physician Treating Sources
Beginning in September 2007, Graves sought treatment from the
Wayne Behavioral Health Network (“WBHN”) for treatment of her
adjustment disorder with mixed anxiety. (234-36). Graves attended
-4-
individual counseling sessions with licensed social worker Bump
until
November
2007.
(235).
Bump
noted
that
Graves
attended
counseling appointments until she signed Graves’ disability papers
for the DSS in November 2007. (235, 293). Graves cancelled her next
appointment and missed all subsequent appointments. (235). In her
notes, Bump stated that she only sent out a “three month note” for
disability benefits, as she was “having doubts about [Graves’]
credibility.” (236). Bump closed Graves’ case on January 15, 2008.
(236). In a discharge summary completed that date, Bump assessed
that Graves’ global assessment of functioning (“GAF”) score was 54
(234),2 which signifies moderate symptoms or moderate difficulty in
social, occupational or school functioning.
On January 24, 2008, Graves, who was pregnant with a due date
of March 23, 2008, returned to the WBHN and indicated that she
wanted to re-start counseling with Bump due to continuing problems
with
depression,
anxiety,
and
panic
attacks.
(221).
Graves
explained that she had missed several appointments because her
grandmother had been unable to drive her. In her treatment notes
from February 25, 2008, Bump indicated that Graves was having
2
A person’s GAF is described as a “clinician’s judgment of the
individual's overall level of functioning” taking into account
“psychological, social and occupational functioning on a hypothetical
continuum of mental health-illness.” Diagnostic and Statistical Mental
Disorders 32, 34 (4th ed., Text Revision 2000). A GAF of between 51 and
60 indicates “[m]oderate symptoms (e.g .... occasional panic attacks) OR
moderate difficulty in social, occupational, or school functioning ( e.g.
few friends, conflicts with peers or co-workers).” Id. at 34 (capitals
in original)
-5-
feelings of anxiety and panic when in public because she thought
people were making comments about her weight and body-piercings.
(221). Graves told Bump that there were periods of time when she
would oversleep and cry a lot because she felt overwhelmed. (221).
Graves was not presently having thoughts of suicide but reported
having fears of car wrecks and other catastrophes. (221).
The
WBHN
records
indicate
that
Graves
started
cognitive
behavioral therapy with Bump on March 17, 2008, for forty-five
minutes
biweekly
with
the
goals
of
increasing
her
insight,
decreasing her symptoms, and increasing her ability to participate
in the community. (230). Psychiatric evaluation was recommended
after the birth of Graves’ baby. The next appointment was scheduled
for late April 2008. (221).
The
WBHN
records
are
rather
sparse.
Bump
completed
a
diagnostic review on July 2, 2008, stating as follows: Axis I
(Clinical Syndromes/V Codes): DSM 300.00, Anxiety D/O NOS; Axis II
(Developmental/Personality
Disorders):
DSM
799.99,
Diagnosis
Deferred; and Axis III (Physical Discords/Conditions): DSM 278.0,
Obesity.
(231).
Psychosocial
and
environmental
factors
that
affected Graves’ diagnosis were her pregnancy, social problems, and
lack of family support. (221).
The next treatment note in the WBHN records is dated October
21, 2008, and is a “Review” of Graves’ case which reads, in
pertinent part, as follows:
-6-
She now reports Panic Attacks-chest pains and trouble
breathing in large places with lots of people. Tara
reports a history of problems sleeping and crying spells.
She also reports irrational fears-car crashes and other
catastrophes. She denies leaving the house much due to
these fears. Her baby is due in about 3 weeks. . . . She
is working with DSS and the Wayne ARC-LIVES pro[gram].
They will help her find work after her baby is born. Tara
gave no indication of psychosis denied current SI or HI.
She appears to be somewhat intellectually limited, has
fair judgment and poor insight. Tara behaves socially
more like a young teenager than her stated age. Tara does
admit to worrying, having trouble getting up, becoming
angry easily and feeling overwhelmed although she appears
calm. . . . Symptoms are moderate-she avoids leaving home
but will with assistance. . . . Symptoms mild to
moderate. Symptoms once [sic] when in community. Continue
to assess cause. Initial diagnosis: Anxiety DO, NOS.
(229). Also in the October 21st note, Bump observed that Graves’
attitude was cooperative; her speech was spontaneous; her thought
form was focused; her mood was anxious though her affect was
appropriate;
her
orientation
and
memory
were
intact
though
concentration was impaired, and her insight and judgment were poor.
(228-29).
Bump
assessed
Graves’
symptoms
at
that
time
as
mild-to-moderate and diagnosed Graves with anxiety disorder, not
otherwise specified (“NOS”). (229).
The only other records from Bump or the WBHN are Psychiatric
Report (Employment) forms which were completed on Graves’ behalf
for the DSS from November 2007 to January 2011. (293-299). In
August 2008, April 2008, and October 2008, Bump indicated that
Graves was not capable of
working in any capacity due to her
anxiety disorder, not otherwise specified. (294-296).
In October
2009 and May 2010, Bump indicated that Graves was not capable of
-7-
working in any capacity due to her panic disorder with agoraphobia.
(297).
In January 2011, Bump gave diagnoses of anxiety NOS and
depression NOS. (299). However, Bump determined that Graves was
capable of returning to work full-time. (299). Five months later,
a
new
individual,
Debbie
Dinson-Moore,
LMS,
completed
the
Psychiatric Report (Employment) form for Graves, stating that she
could not work in any capacity due to her “anxiety” and “limited
cognitive abilities”. (301). It appears that these Psychiatric
Report (Employment) forms were not before the ALJ. However, they
later were filed with Graves’ appeal to the Appeals Council.
3.
State Agency Medical Consultants
a.
Dr. Jeanne A. Shapiro
Jeanne A. Shapiro, Ph.D., consulting psychologist, examined
Graves at the Commissioner’s request on April 6, 2009. Dr. Shapiro
stated that Graves
may have difficulty adequately understanding and
following simple instructions and directions; completing
some tasks given that she complains of learning
disabilities and memory problems.” She may have
difficulty interacting appropriately with others as she
does not leave home. Attending worker [sic] maintaining
a schedule may be difficult for the same reason. She does
not appropriately manage stress.
Results of the examination are partially consistent with
allegations. She has experienced panic attacks which
affect her overall daily functioning. . . .
-8-
(241). Dr. Shapiro diagnosed panic disorder with agoraphobia but
did not find that Graves’ depressive symptoms warranted a formal
diagnosis. (241). According to Dr. Shapiro, Graves “prognosis is
better with more comprehensive treatment, and it is hoped that with
more comprehensive intervention and support, she will find symptom
relief and maximize her abilities.” (241).
b.
Dr. E. Kamin
On April 10, 2009, Dr. E. Kamin reviewed Graves’ record (but
did not examine Graves) and completed a Mental Residual Functional
Capacity
Form
(“MRFC”)
and
Psychiatric
Review
Technique
Form
(“PRT”). Dr. Kamin described Graves as having panic attacks and
social
anxiety
and
stated
that
her
intellectual
functioning
appeared to be in the average range in light of her previous IQ
scores. He noted that “[v]ocationally, the clmt appears to be
capable
of
following,
understanding,
and
remembering
simple
instructions and directions. Clmt appears capable to performing
[sic] simple and complex tasks indepdentently. Not working closesly
with others would be appropriate for this clmt.” (200).
c.
Dr. Stephen Kleinman
Dr. Stephen Kleinman, a State agency psychiatric consultant,
completed a Medical Consultant’s Review of the PRT and a Medical
Consultant’s
Review
of
the
MRFC.
(243-247).
Dr.
Kleinman
essentially concurred with Dr. Kamin’s assessment as to Graves’
“Understanding
and
Memory”,
“Sustained
-9-
Concentration
and
Persistence”,
and
“Social
Interaction”.
(246).
However,
Dr.
Kleinman noted that Dr. Kamin’s narrative in the MRFC with regard
to the area of “Adaptation” was “Incomplete or Inadequate” (246),
explaining that “[o]verall, it appears that the claimant would
possess the capacity to get to and from work on her own.” (247).
Dr. Kamin had found that Graves was “moderately limited” in her
ability to get to and from work independently.
C.
Evidence Regarding Plaintiff’s Non-Mental Impairments
Dr. Zachary Freedman, an endocrinologist, examined Graves in
November 2008 regarding her complaints of obesity. (179-82). At
that point, Graves weighed 281 pounds. (179). Although morbidly
obese, Graves demonstrated normal muscle strength; her lungs were
clear to auscultation; her heart sounds were normal with a regular
rhythm; her arms and legs exhibited no clubbing, cyanosis, or
edema; and her reflexes were normal. (181). Dr. Freedman diagnosed
Graves with a metabolic syndrome. (181). Subsequent testing showed
that Graves’ obesity is not caused by an endocrine dysfunction.
(Ex. 1F at 3-4).
When Graves saw physician’s assistant John Koch (“Koch”), with
the Wayne Medical Group (“WMG”), on November 20, 2008, he commented
that “[t]hings are finally starting to come together for this
patient[.]” (206). She had been seen by Dr. Freedman, and all
providers were in consensus that she would benefit from an SSRI
-10-
type of antidepressant. At that time, Graves’ weighed 286 pounds
and had no complaints of pain.
Graves returned to see Koch on December 17, 2008. (203, 205).
At that point, Graves had been taking 20 mg of Celexa3 daily. Koch
stated that she was doing “quite well” with her depression, “OCD”,
and anxiety. (205). With input from a dietitian, she modified her
eating habits and had lost eight pounds in the past month. As a
result of the weight lost, she was feeling “so much better.” (205).
She had no complaints of pain. (205).
Dr. Freedman conducted a follow up examination on January 13,
2009, at which time Graves stated that she was taking Celexa and
that she felt better. (178). Without any attention to her meal
planning
or
exercise,
she
had
lost
ten
pounds.
(178).
They
discussed the need for physical exercise in order to achieve
continued weight loss and have more energy. (178).
On December 23, 2010, Graves expressed interest to Koch in
gastric bypass surgery or a gastric banding procedure. At her
appointment on February 9, 2011, with Koch, Graves had excellent
range
of
motion
at
the
shoulders,
elbows,
and
wrists,
notwithstanding her occasional reports of pain in her right upper
3
Celexa is an antidepressant used to treat depression, obsessive
compulsive disorders, and panic disorders. See WebMD, available at
http://www.webmd.com/drugs/drug-8603-Celexa+Oral.aspx?drugid=8603
&drugname=Celexa+Oral (last accessed Oct. 2, 2012).
-11-
arm. She had no sensory deficits, and her strength was rated at
5/5. (252).
D.
The Vocational Expert’s Testimony
The ALJ asked Silvio Reyes, an impartial vocational expert
(“VE”), to consider a hypothetical individual who is the same age,
has the same level of education, and the same work experience as
Graves. (30). The hypothetical individual was limited to performing
simple, routine and repetitive tasks; and required a low-stress job
defined as
having
only
occasional
decision-making,
occasional
changes in the work setting, and occasional direct contact with the
public,
co-workers,
and
supervisors.
The
ALJ
then
asked
the
vocational expert whether there were any light jobs available that
such an individual could perform. VE Reyes opined that such a
person could perform several such jobs, including (1) stamper
(100,000
jobs
nationally),
(2)
laundry
sorter
(600,000
jobs
nationally), and (2) ironer (500,000 jobs nationally). These jobs
are
listed
in
the
U.S.
Department
of
Labor’s
Dictionary
of
Occupational Titles (“DOT”), 4th ed. rev. 1991. (31).
E.
The ALJ’s Decision
The ALJ found that Graves was a younger individual within the
meaning of the Act and had not engaged in substantial gainful
activity since January 6, 2009. (41). Although the ALJ determined
that Graves
has
a
number of
severe
impairments
(i.e.,
panic
disorder with agorophobia, depression, ADHD, and morbid obesity),
-12-
she does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (41). In making this
determination,
the
ALJ
considered
Listings
12.04C
(Affective
Disorders) and 12.06B and 12.06C (Anxiety-Related Disorders) in the
Listing of Impairments. (42).
Listing 12.06B requires at least two of the following: marked
restriction
of
activities
of
daily
living
(“ADLs”);
marked
difficulties in maintaining social functioning; marked difficulties
in maintaining concentration, persistence or pace; or repeated
episodes of decompensation, each of extended duration. The ALJ
found that Graves has (1) mild restrictions in ADLs given her need
for assistance with managing money and reading written materials;
(2) moderate difficulties in social functioning; and (3) moderate
difficulties in persistence concentration or pace. The ALJ found no
record of episodes of decompensation. Therefore, Listing 12.06B was
not satisfied. (42).
Listings 12.04C and 12.06C were not satisfied, the ALJ found,
because the record failed to show evidence of repeated episodes of
decompensation, evidence that Graves would suffer a decompensation
episode with a minimal increase in mental or life demands, or the
inability
to
function
outside
a
highly
supportive
arrangement or outside the area of Graves’ home. (42).
-13-
living
The ALJ proceeded to evaluate Graves’ Residual Functional
Capacity (“RFC”), taking into account her obesity (she is 5'6" and
weighed 280 pounds and at the time of the hearing), anxiety with
agoraphobia, depression, ADHD, and learning disability. (43-44).
The ALJ concluded that Graves has the RFC to perform light work
except that she is limited to simple, routine, and repetitive
tasks; she requires a low stress job (i.e., one that has only
occasional decision-making and occasional changes in work setting);
and she should have only occasional direct interaction with the
public, coworkers, and supervisors. (43-47).
III. Applicable Legal Standards
A.
Standard for Eligibility for Supplemental Security Income
To establish disability under the Act, a plaintiff bears the
burden of demonstrating (1) that she was unable to engage in
substantial gainful activity by reason of a physical or mental
impairment that could have been expected to last for a continuous
period of at least twelve months, and (2) that the existence of
such impairment was demonstrated by evidence supported by medically
acceptable
clinical
and
laboratory
techniques.
42
U.S.C.
§ 1382c(a)(3); see also Barnhart v. Walton, 535 U.S. 212, 215
(2002).
To determine disability, the Commissioner uses a five step
sequential evaluation process. 20 C.F.R. § 416.920; see also
Williams v. Apfel, 204 F.3d 48, 48-49 (2d Cir. 1999). The burden of
-14-
proof is on the claimant at the first four steps of the evaluation.
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). If the claimant
establishes that she is unable to perform any of her past relevant
work, the burden shifts at the fifth step to the Commissioner, who
must then determine whether the claimant is capable of performing
other work which exists in significant numbers in the national
economy. 20 C.F.R. § 416.920; see also Bapp v. Bowen, 802 F.2d 601,
604 (2d Cir. 1986).
B.
Scope of Review
Any
individual
may
appeal
from
a
final
decision
of
the
Commissioner of Social Security to a United States District Court.
42 U.S.C. § 405(g). “[A]fter reviewing the Commissioner’s decision,
a court may ‘enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding
18 the cause for a rehearing.’” Butts v. Barnhart, 388 F.3d 19 377,
384 (2d Cir. 2004) (quoting 42 U.S.C. § 405(g)).
“It is not [the reviewing court’s] function to determine de
novo whether [a plaintiff] is disabled. . . .” Pratts v. Chater, 94
F.3d 34, 37 (2d Cir. 1996). Instead, an ALJ’s will be set aside
“only where it is based upon legal error or is not supported by
substantial evidence.” Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.
1998). Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
-15-
adequate to support a conclusion.” Pratts, 94 F.3d at 37 (quoting
Richardson
v.
Perales,
402
U.S.
389,
401
(1971))
(internal
quotation marks omitted)).
IV.
Discussion
A.
Failure to Adequately Develop the Record
Plaintiff contends that the ALJ failed to develop the evidence
of record because she did not obtain updated reports from Bump of
the WBHN, despite her offer at the hearing to obtain updated
treatment records from Koch and Bump. (17). Plaintiff specifically
notes that “[n]o request was made [to Bump or the WBHN] for a
mental RFC
report
and
no
request
was
made
for
employability
assessment reports, which were completed for the Department of
Social Services.” Dkt #8-2 at 10. Defendant responds that the ALJ
obtained updated treatment records from Koch as well as records
from several of Graves’ other medical sources. (250-92). Defendant
argues that the ALJ has the discretion to decide when the record is
complete, and the ALJ reasonably concluded that the record was
sufficient even without the missing records from the WBHN.
Plaintiff is correct that the ALJ has an affirmative duty to
assist the unrepresented claimant in developing the medical record.
E.g., Cruz v. Sullivan, 912 F.2d 8 (2d Cir. 1990). Although an ALJ
must attempt to fill any “clear gaps” in the administrative record,
“where there are no obvious gaps . . . and where the ALJ already
possesses
a ‘complete
medical history,’
-16-
the
ALJ is
under no
obligation to seek additional information in advance of rejecting
a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n. 5 (2d Cir.
1999) (quoting Perez, 77 F.3d at 48).
Contrary to Plaintiff’s assertion, it appears that the ALJ had
before her all of the available treatment notes from the WBHN.
Although the ALJ noted that the record did not reveal much about
how often Plaintiff saw Bump for counseling, it was not because the
ALJ was missing records. Rather, the records themselves are very
sparse and do not contain any progress notes from Bump or any other
therapist at the WBHN.
The Court agrees with Plaintiff that the ALJ failed to obtain
the Psychiatric Report (Employment) forms completed by the WBHN on
Graves’ behalf for the DSS from November 2007 to January 2011.
(293-299). As noted above, in August 2008, April 2008, and October
2008, Bump indicated that Graves was not capable of working in any
capacity due to her anxiety disorder, not otherwise specified.
(294-296). In October 2009 and May 2010, Bump indicated that Graves
could not work due to panic disorder with agoraphobia. (297). In
January 2011, Bump indicated that Graves could return to work fulltime.
However,
another
individual,
Debbie
Dinson-Moore,
LMS,
completed the Psychiatric Report (Employment) form for Graves on
May 19, 2011, stating that she could not work in any capacity due
to her anxiety and depressive disorder. (301). These reports
ultimately were submitted to the Appeals Council, which considered
-17-
them as part of the record and found that the ALJ’s decision was
not contrary to the weight of the evidence. (5). See 20 C.F.R.
§§ 416.1470(b), 416.1476(b).
The Court finds that although the ALJ erred in ensuring that
she had these records prior to issuing the decision, such error was
harmless. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir.
1996)
(harmless
disability
error
benefits).
rule
The
applies
omitted
to
review
documents
are
of
denial
simply
of
forms
containing the treating social worker’s diagnosis and opinion,
issued by checking the applicable box, that Graves is disabled from
working. The disability forms completed by Bump do not contain any
specific information about Graves’ mental impairments and resultant
limitations that would have been helpful to the ALJ in making her
disability determination. Although the form completed by Moore does
state that Graves cannot work because of her cognitive limitations
and social anxiety symptoms, it is cumulative to the information
already contained in the record. Furthermore, the regulations
provide
that
the
Commissioner
“will
not
give
any
special
significance to the source of an opinion on issues reserved to the
Commissioner,” including a statement by a medical source that the
claimant
is
“disabled”
or
“unable
to
work[.]”
20
C.F.R.
§ 404.1527(d)(1), (3). The Court agrees with Defendant that the
disability reports submitted by Bump and Moore from the WBHN would
not have changed the ALJ’s decision, and therefore the error in
-18-
obtaining these records prior to the hearing was harmless. See
Seltzer v. Comm’r of Social Sec., No. 07-CV-0235 (CBA), 2007 WL
4561120, at *10 (E.D.N.Y. Dec. 18, 2007)(“Nevertheless, to the
extent that an ALJ fails in her duty to affirmatively develop the
record and/or consider all of the relevant evidence, the court can
still affirm her decision if this error is deemed to be harmless.”)
(citing, inter alia, Walzer v. Chater, 93 Civ. 6240, 1995 WL
791963, at *9 (S.D.N.Y. Sept. 26, 1995) (“While the ALJ should have
discussed Dr. Leahy’s report in his decision (even though her
report was received after the close of the hearing), the ALJ's
failure
to
do
so
was
harmless
error,
since
his
written
consideration of Dr. Leahy’s report would not have changed the
outcome of the ALJ’s decision.”).
B.
Failure to Determine that Plaintiff’s Learning Disorder
Was a Severe Impairment
To be “disabled” within the meaning of the Social Security
Act,
a
claimant
must
have
an
impairment
or
combination
of
impairments that are “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c).
An impairment is severe if it “significantly limits the claimant's
ability to do basic work activities.” 20 C.F.R. § 404.1520(c).
“Basic work activities” is defined to “mean the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). The
“severity regulation,” however, “is valid only if applied to screen
out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030
(2d Cir. 1995).
-19-
Plaintiff argues that the ALJ erroneously failed to find that
her learning disability was a severe impairment and erroneously
failed to include any limitations pertaining to her intellectual
deficits in the RFC determination. Defendant argues that this
argument is moot because the ALJ, after finding that Plaintiff had
several severe impairments, considered her non-severe impairments
in conjunction with the severe impairments throughout the remainder
of the sequential evaluation. See 20 C.F.R. § 416.923 (stating that
whenever a claimant has a severe impairment, the ALJ considers the
combined effect of all of the claimant’s impairments, severe and
non-severe, throughout the sequential evaluation). Defendant notes
that the ALJ accounted for Graves’ learning disability by limiting
her RFC to performing simple, routine, and repetitive tasks with
only occasional decision-making. (43).
There is “general support in the case law” for the proposition
that
the
impairment
ALJ’s
is
severity
harmless
assessment
because
the
with
ALJ
regard
to
continued
a
given
with
the
sequential evaluation. Zenzel v. Astrue, No. 11–CV–259 (TJM/VEB),
2012 WL 3929895, at *5 (N.D.N.Y. July 6, 2012) (citing McCartney v.
Comm’r of Social Sec., No. 07–1572, 2009 WL 1323578, at *16 (W.D.
Pa. May 8, 2009) (“Even if the Court was to find that the ALJ did
err in excluding headaches from the list of severe impairments, any
such
error
was
harmless
because
the
ALJ
found
other
severe
impairments at step two and proceeded through the sequential
-20-
evaluation on the basis of Plaintiff’s severe and non-severe
impairments.”)). However, this type of “harmless error” finding “is
appropriate only when it is clear that the ALJ considered the
claimant’s [impairments] and their effect on his or her ability to
work during the balance of the sequential evaluation process.” Id.
(citing McCartney, 2009 WL 1323578, at *15).
Plaintiff is correct that a diagnosis of a learning disability
can serve as an additional and significant impairment. See Williams
v. Astrue, No. 07CIV4134JGK, 2008 WL 4755348, *10 (S.D.N.Y. Oct.
27, 2008) (“[A} learning disorder is a separate impairment from
borderline intellectual functioning and it was necessary for the
ALJ to have determined whether the learning disorder was correctly
evaluated and whether it resulted in additional and significant
limitations
which
were
in
fact
different
from
borderline
intellectual functioning.”). Even assuming that Graves’ learning
disability constitutes a severe impairment, the Court agrees with
Defendant that any error was harmless, since the ALJ included
Graves’ learning disability in her RFC analysis and analyzed the
extent to which the resultant symptoms limited her functioning. The
ALJ found that although the school records indicated that Graves
“has limitation with regard to learning[,] and that her reading,
writing, and mathematics skills are significantly lower that [sic]
an average person her age, these [sic] evidence without more do not
prove that she cannot perform simple work requiring minimal or no
-21-
writing, reading, and mathematics skills.” (45). The ALJ also
included the symptoms caused by Graves’ learning disability in her
questions to the VE by limiting the hypothetical claimant to
performing “simple, routine and repetitive tasks” in a work setting
requiring
only
changes.
(43).
“occasional”
decision-making
and
Because
ALJ
Graves’
the
considered
“occasional”
learning
disability and its effect on her ability to work during the balance
of the sequential evaluation process, the Court finds that any
error in step two’s severity determination was harmless.
C.
Failure to Properly Weigh the Opinions of the Medical
Sources
Plaintiff argues that the ALJ took an inconsistent approach to
the report issued by consulting psychologist Dr. Shapiro. According
to Plaintiff, the ALJ relied upon Dr. Shapiro’s report to discount
Plaintiff’s allegations of anxiety and her inability to function
socially, but then rejected Dr. Shapiro’s opinions on Plaintiff’s
limitations, finding that they were not supported by the doctor’s
own findings and were based only on Plaintiff’s statements. See
Dkt. #8-2 at 12; (46).
The Court has reviewed Dr. Shapiro’s note and finds that the
ALJ did not take an inconsistent approach in connection with the
doctor’s medical source statement. To the contrary, Dr. Shapiro’s
medical source statement, to the extent that it is based on
Plaintiff’s own subjective complaints, appears to be inconsistent
with Dr. Shaprio’s independent assessment of Plaintiff’s cognitive
-22-
functioning.
Dr.
Shapiro
stated
in
relevant
part
that
“[v]ocationally,” Graves “may have difficulty understanding and
following some instructions and directions as well as completing
some tasks given that she complains of learning disabilities and
memory problems.” (241) (emphases supplied). However, Dr. Shapiro
stated that Graves’ “intellectual function is estimated to be in
the average range” and her “general fund of information appears to
be appropriate to experience.” (240). Dr. Shapiro further found
that Graves’ attention and concentration were “intact” and she was
“able to do counting, simple addition and subtraction, and serial
3s.” (240). Finally, Dr. Shapiro assessed Plaintiff’s insight and
judgment both as “fair”. (240).
Plaintiff argues that the ALJ “is in no position to determine
that Dr. Shapiro based her opinions solely upon the plaintiff’s
subjective complaints.” Dkt #8-2 at 12 (citation omitted). However,
the excerpts quoted above from Dr. Shapiro’s note, reasonably read,
indicate that her tentative conclusions (i.e., that Graves may have
difficulties) about Graves’ cognitive and social functioning were
based on Graves’ own statements about her learning disability. See
(241).
Dr. Shapiro also stated in her medical source statement that
Plaintiff
“may have
difficulty
interacting
appropriately with
others because she does not leave home. Attending worker [sic]
maintaining [sic] a schedule may be difficult for the same reason.”
-23-
(241) (emphases supplied).4 This statement does not say anything
about the effect of Plaintiff’s anxiety disorder on her social
functioning.
Her
stated
refusal
to
leave
the
house
may make
interacting with others impossible or unlikely, but it is not, in
and of itself, a reason for her to have difficulty interacting with
others once he or she is outside the home. Indeed, Dr. Shapiro’s
observations support the opposite conclusion. She stated that
Graves’
demeanor
and
responsiveness
to
questions
were
“cooperative”; her manner of relating, social skills, and overall
presentation were “adequate”; her affect was “congruent” with her
thoughts and speech, and was of “full range”; she appeared “relaxed
and comfortable”, with a “calm” mood; and her thought processes
were “coherent and goal directed with no evidence of delusions,
hallucinations, or disordered thinking.” (240).
Plaintiff
is
correct
that
an
ALJ
may
not
arbitrarily
substitute her own judgment for competent medical opinion. Rosa v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999). In the present case, the
Court finds that the ALJ did not substitute her judgment as a
layperson for Dr. Shapiro’s opinion. Dr. Shapiro stated that Graves
may have difficulties interacting with others; the ALJ limited
Graves’ RFC to having only occasional contact with co-workers and
4
Dr. Shapiro’s medical source statement would have been more
meaningful if she had identified specific psychological or mental
impediments to Graves interacting in a socially appropriate manner and
maintaining a work schedule.
-24-
the public. Dr. Shapiro stated that Graves “may have difficulty
understanding and following some instructions and directions as
well as completing some tasks”; the ALJ restricted Graves’ RFC to
performing simple, routine, and repetitive tasks. Although the ALJ
stated that she gave Dr. Shapiro’s report “little weight,” the
ALJ’s RFC assessment is essentially consistent with Dr. Shapiro’s
conclusions.
D.
Erroneous RFC Determination
Plaintiff argues that the ALJ’s RFC assessment did not include
a
number
consultant
of
Dr.
the
limitations
Kamin
in
his
found
reports
by
non-examining
(the
Psychiatric
Agency
Review
Technique (“PRT”) and Mental Residual Functional Capacity (“MRFC”)
(184-201)). See Dkt. #8-2 at 13. In particular, Plaintiff asserts
that the ALJ failed to include in her RFC determination areas in
which Dr. Kamin found Graves be “moderately limited”–namely, the
ability to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; and her
ability to work in coordination with others or work closely with
others. Dkt #8-2 at 13; see also (198).
Dr. Kamin found several
other “moderate” areas of limitation, but the ALJ included those in
her RFC assessment and hypothetical to the VE.
Contrary to Plaintiff’s assertion, the ALJ did include the
“moderate” limitation found by Dr. Kamin in regards to Graves’
ability to work closely with others by finding that Graves should
-25-
be limited to having only occasional contact with co-workers and
members of the public. Thus, the only “moderate” area of limitation
that the ALJ did not include was Graves’ ability to perform
activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances.
There is, however, “nothing in the commissioner’s regulations
or rulings that requires an ALJ to make findings concerning each of
the limitations listed [in Section I] on the ‘Summary Conclusions'
portion of the [MRFC] forms utilized by the [State Agency Medical
Consultants] in assessing a claimant’s mental residual functional
capacity.” Huber v. Astrue, No. 4:07–CV–477–A, 2008 WL 4694753, at
*7 (N.D. Tex. Oct. 22, 2008) (citing 20 C.F.R. §§ 404.1513(c),
416.913(c); Social Security Ruling 96-6p) & id. n. 5 (“[T]he
‘Summary
Conclusions’
consultants
[SAMCs]
reported
in
section
by
I
the
state
of the
agency
approved
medical
mental
RFC
assessment form are chiefly intended to serve as a worksheet for
the SAMC’s
use,
and
it
is the
narrative
functional
capacity
assessment written by the psychiatrist or psychologist in section
III
(‘Functional
Capacity
Assessment’)
of
the
form
that
adjudicators must consider in terms of the claimant’s ability to
meet the mental demands of past work or other work.”) (citing
Social Security Administration, Program Operations Manual System
§ DI 25020.010).
-26-
Taken as a whole, the record does not indicate that the ALJ
failed
to
consider
the
nonexertional
limitations
noted
by
Dr. Kamin. The ALJ did not ignore Dr. Kamin’s opinion, and, in
fact, the ALJ adopted Dr. Kamin’s opinion almost in its entirety.5
See Hickey v. Astrue, No. 4:09-CV-280-Y, 2010 WL 3835113, at *14
(N.D. Tex. Aug. 2, 2010) (finding no error where the record, taken
as a whole, did not indicate that the ALJ failed to consider the
nonexertional limitations noted by the SAMCs; ALJ’s “‘explanation
of the weight assigned those opinions [was] consistent with the
purposes of the regulations and rulings that govern the assessment
of medical source opinions’”) (quoting Huber, 2008 WL 4694753, at
*8 (“The ALJ adhered to the internal administrative requirement in
Huber’s case by addressing and generally endorsing the narrative
assessment that [SAMC] Lankford provided on the mental residual
functional capacity form.”)).
E.
Improper Reliance on VE’s Testimony
Plaintiff argues that the ALJ failed to identify conflicts
between the testimony of the VE and the jobs in the DOT that the VE
identified in relation to the limitations contained in the ALJ’s
hypothetical. See SSR 00-4p, 2000 WL 1898704 (SSA Dec. 4, 2000)
(“When a VE . . . provides evidence about the requirements of a job
5
The ALJ rejected the portion of Dr. Kamin’s opinion that was least
helpful to Graves, that is, his conclusion that Graves could perform
complex tasks independently. (200). The ALJ credited the reports of
Graves’ learning disability and limited Graves’ RFC to the ability to
perform simple tasks.
-27-
or occupation, the adjudicator has an affirmative responsibility to
ask about any possible conflict between that VE . . . evidence and
information provided in the DOT.”). When such conflicts arise, the
ALJ must “[e]xplain in the determination or decision how any
conflict that has been identified was resolved.” SSR 00–4p, 2000 WL
1898703, at *2.
The ALJ limited Graves to “simple, routine and repetitive
tasks” in “a low stress job . . . only having occasional decision
making and occasional changes in the work setting. . . .” (30). The
jobs identified by the VE were stamper (DOT 920.687-126), laundry
sorter (DOT 361.687-014), and ironer (DOT 590.685-042). These have
a general education/development reasoning level of “2”. The DOT
defines reasoning level two as having the ability to “[a]pply
common sense understanding to carry out detailed but uninvolved
written or oral instructions [and] [d]eal with problems involving
a few concrete variables in or from standardized situations.”
Dictionary of Occupational Titles, U.S. Dept. of Labor, Office of
Admin. Law Judges, App. C (4th ed. 1991). District courts in this
Circuit
have
differed
as
to
whether
a
reasoning
level
of
2 conflicts with a hypothetical limiting the claimant to simple,
routine, and repetitive tasks. Contrast Santos v. Astrue, 709 F.
Supp.2d 207, 212 (S.D.N.Y. 2010) (VE’s testimony that the jobs
described were not in conflict with DOT standards was not accurate
where hypothetical individual was limited to “simple one or two
-28-
step
tasks”
but
and
“simple
instructions”,
a
description
commensurate with a DOT reasoning development level of one, and VE
described
level
development
two
level
of
jobs;
two
jobs
described
require
the
under
capacity
a
reasoning
to
“[a]pply
commonsense understanding to carry out detailed but uninvolved
written or oral instructions”); with Edwards v. Astrue, 07–CV–898,
2010 WL 3701776, at *15 (N.D.N.Y. Sept. 16, 2010) (“Working at
reasoning level 2 does not contradict the mandate that work be
simple, routine and repetitive.”) (citing Money v. Barnhart, 91 F.
App’x 210, 215 (3d Cir. 2004) (unpublished opn.)).
Here, Plaintiff did not graduate high school with a normal
diploma, and at age seventeen, was intellectually functioning at a
grade level of 4.8. The ALJ found that Graves could not perform
complex
tasks
independently,
given
her
documented
learning
disabilities. (46). However, Graves did have past relevant work as
a childcare aide (semi-skilled, medium exertional, SVP 3) and a
machine operator/packaging (unskilled, medium exertional, SVP 2).
SVP stands for “specific vocational preparation”, which refers to
the amount of time it takes an individual to learn to do a given
job. Rodriguez v. Astrue, No. 07 Civ. 534(WHP)(MHD), 2009 WL
637154, at *10 n.23 (S.D.N.Y. Mar. 9, 2009) (citation omitted). The
ALJ credited the VE’s testimony that Graves could not perform her
past relevant work, but this appears to have been largely based
-29-
upon the limitations caused by Plaintiff’s obesity and social
anxiety rather than her intellectual functioning. (46).
Given that Graves did hold a job in the past that had an SVP
of 2, and the three jobs identified by the VE all had SVPs of 2,
there does not appear to be a clear conflict or discrepancy between
the hypothetical individual described by the ALJ and the VE’s
testimony. In other words, I cannot say that the ALJ clearly erred
in this regard.
F.
Erroneous Determination of Plaintiff’s Credibility
Finally, Plaintiff argues that the ALJ erred in determining
her credibility. Plaintiff’s credibility arguably was undermined by
the observation Bump that Graves attended counseling appointments
only until Bump signed her disability papers in November 2007.
(235, 293).
The ALJ, however, noted that to Graves’ credit, she
soon returned to the WBHN for additional mental health counseling
and offered a reason for not making her appointments. Thus, it does
not appear that the ALJ held this incident against Graves in
assessing her credibility.
The ALJ also asserted that Plaintiff did not take her antianxiety medication (Celexa) regularly. However, the treatment note
upon which the ALJ relied, when read in context, indicates that
Plaintiff
was
to
refrain
from
taking
her
Celexa
until
her
endrocrine work-up was complete. (180, 206). The Court agrees with
Plaintiff that the ALJ mischaracterized the record in this regard.
-30-
However, “because the ALJ's credibility analysis is otherwise
supported by substantial evidence, this misstatement is nothing
more than harmless error.” Rockwood v. Astrue, 614 F. Supp.2d 252,
272 n. 34 (N.D.N.Y. 2009) (citing Barringer v. Comm’r of Soc. Sec.,
358 F. Supp.2d 67, 83 n. 26 (N.D.N.Y. 2005)).
V.
Conclusion
After careful review of the entire record, and for the reasons
stated, this Court finds that the Commissioner’s denial of benefits
was based on substantial evidence and was not erroneous as a matter
of law. Accordingly, the ALJ’s decision is affirmed. Defendant’s
motion for judgment on the pleadings (Dkt #10) is granted, and
Plaintiff’s motion for judgment on the pleadings (Dkt #8) is
denied.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
October 4, 2012
Rochester, New York.
-31-
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