Burnette v. Astrue
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Commissioner's Motion for Judgment on the Pleadings; denying 11 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the Plaintiff's complaint with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 7/8/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ELIZABETH ANN BURNETTE,
DECISION AND ORDER
No. 12-CV-6270T
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.
INTRODUCTION
Elizabeth
Ann
Burnette
(“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”).
Plaintiff
alleges
that
the
decision
of
Administrative Law Judge (“ALJ”) Lawrence Levey was not supported
by substantial evidence in the record and was based on erroneous
legal standards.
Presently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
For the reasons set forth below, this
Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and is in accordance with the
applicable legal standards.
Thus, the Commissioner’s motion for
judgment on the pleadings is granted, and Plaintiff’s motion is
denied.
Plaintiff’s complaint is dismissed with prejudice.
PROCEDURAL HISTORY
On June 8, 2010, Plaintiff filed an application for SSI
benefits, alleging disability since June 8, 2010.
Transcript (“Tr.”) 46, 114.
denied.
Tr. 47-49.
Administrative
On August 6, 2010, her claim was
At Plaintiff’s request, an administrative
hearing was held on August 8, 2011 before ALJ Lawrence Levey.
21-45.
attorney,
Plaintiff
Carrie
appeared
Smith,
in
and
Rochester,
the
Maryland, via videoconference.
ALJ
New
York,
presided
Tr. 21-23.
in
Tr.
with her
Baltimore,
Both Plaintiff and
Marvin Bryant, an impartial vocational expert, testified at the
hearing.
Tr. 21-45.
On August 31, 2011, the ALJ denied Plaintiff’s claim.
Tr. 9-
17. He found that Plaintiff had not been under a disability within
the
meaning
of
the
application was filed.
Social
Security
Act
since
the
date
the
Id.
On March 26, 2012, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.
Tr. 1-3.
This action followed.
FACTUAL BACKGROUND
In Plaintiff’s application for SSI benefits, she claimed that
her disability was due to a back injury, arthritis in her spine,
deafness in the left ear, and mental health issues.
Tr. 127.
At
the hearing, she argued that she met Listing 12.05 of the Social
Security Regulations (Mental Retardation).
-2-
Tr. 27.
A.
Non-Medical Evidence
Plaintiff was born on June 28, 1959, and was 50 years old at
the time of filing.
Tr. 114.
She is a high school graduate who
took normal classes and did not require special education. Tr. 28.
She attended college at Bryant and Stratton for a period of time,
but she did not complete the program because she had a child.
Tr.
29.
Plaintiff testified that she first noticed her hearing problem
“about three years ago.”
problem began in 2010.
Tr. 32.
Tr. 33.
She claimed that her back
Her doctor prescribed pain
medication, which she testified helped her “a little.”
Id.
Plaintiff testified that her mental health problems began in
2008 or 2009.
Tr. 34.
A drug and alcohol counselor advised her to
seek help for her mental health issues.
Plaintiff also testified
that she needed help because she “ha[d] a hard time adjusting,”
leaving her home, and doing daily activities and that she had
sleeping difficulties and heard voices.
Id.
Plaintiff indicated
that mental health medications gave her some drowsiness, but they
were helping her sleep well at night.
and alcohol free for one year.
Tr. 36.
She had been drug
Id.
Plaintiff testified that her daughter usually accompanied her
if she had to leave her home, but she was able to take the bus
alone and go to her appointments.
Tr. 35.
She spent most of her
days at home, but attended individual and group therapy sessions
-3-
and attended church, but not every week.
Tr. 36-38. Plaintiff was
able to feed herself, take care of her personal needs, and perform
light house cleaning, although friends helped her with household
chores.
Tr. 140-41.
At the hearing, the ALJ posed a hypothetical question to
impartial Vocational Expert (“VE”) Marvin Bryant to determine
Plaintiff’s employment capabilities. He asked Mr. Bryant to assume
a person of the same age and education as Plaintiff, with no work
experience, who was limited to light exertion, required the option
to sit or stand at will, could only occasionally climb ramps or
stairs, could occasionally balance, stoop, kneel, crouch, and
crawl, could not climb ladders, ropes, or scaffolds, and had left
ear hearing loss.
Tr. 42.
The ALJ asked Mr. Bryant to further
assume that this individual was limited to simple, routine, and
repetitive tasks, with only simple work-related decisions with few,
if any, changes in the workplace, and only occasional interaction
with co-workers, the public, and supervisors.
Tr. 43.
Mr. Bryant
opined that such a person could work as a collator operator
(Dictionary of Occupational Titles (“DOT”) No. 208.685-010).
exertional level of this job is light and unskilled.
The
Such a person
could also work as an apparel stock checker (DOT No. 299.667-014),
with the same exertional level of light and unskilled.
Such a
person could also work as a surveillance system monitor (DOT No.
379.367-101).
The exertional level of this job is sedentary and
-4-
unskilled.
Id.
Mr. Bryant also opined that if an individual were
off task as a result of his or her impairments for 20 percent of
the
workday,
that
individual
could
not
engage
competitive employment at the unskilled level.
B.
in
full-time,
Tr. 43-44.
Medical Evidence
On January 23, 2009, Plaintiff was evaluated for depression by
Felicia
Reed,
a
Licensed
Medical
Social
Worker
(“LMSW”)
at
St. Mary’s Mental Health Outpatient Clinic. Tr. 191-97. Plaintiff
reported a three year history of auditory hallucinations. Tr. 192.
She claimed voices commanded her to do self-harm and be violent.
She denied suicidal ideation, but she admitted suicidal thoughts in
the past and had attempted suicide one year prior.
Plaintiff had
trouble sleeping and reported racing thoughts.
On mental status examination, Plaintiff appeared neat and
appropriately attired, and her behavior was cooperative. Her motor
movements, cognition, and insight were unremarkable, and her speech
was normal.
Plaintiff’s thoughts were logical, and her thought
processes were positive for guilt, helplessness, and hopelessness.
Her perceptions included visual hallucinations and hearing voices.
Her mood was depressed and sad, her affect was congruent, she was
alert and fully oriented, and her judgment was good.
LMSW Reed
diagnosed
otherwise
Plaintiff
with
depressive
specified.
-5-
disorder
not
On February 9, 2009, Plaintiff was again seen by LMSW Reed.
Tr. 198-205.
exhibited
Plaintiff was neatly and appropriately dressed and
appropriate
behavior.
She
had
unremarkable
movements, thought processes, cognition, and insight.
was normal and her thoughts were logical.
and her affect was congruent.
motor
Her speech
Her mood was depressed
She was alert and fully oriented,
and had fair judgment.
On
June
9,
2009,
Plaintiff
saw
Dr.
Muhammad
Dawood
at
St. Mary’s Mental Health Outpatient Clinic. Tr. 207-14. Plaintiff
reported difficulty sleeping, and claimed she heard voices at night
for the past five or six years. Mental status examination revealed
that Plaintiff’s behavior, motor movements, thought,
and
insight
were
unremarkable.
Her
speech
perceptions,
was
soft
and
underproductive. Plaintiff’s mood was sad, and her affect was flat
and congruent.
She was alert and fully oriented.
good, but her memory was poor.
Her judgment was
Plaintiff exhibited numerous
symptoms in the domains of depression, anxiety and psychosis.
Dr. Dawood noted that various differential diagnoses were possible.
On August 4, 2009, Plaintiff saw Family Nurse Practitioner
(FNP) Wilfred George for an ear infection.
Tr. 250.
Her left ear
had a large amount of pus drainage and was tender to pressure.
FNP
George assessed otitis media, acute, and otitis externa, chronic.
On August 31, 2009, Plaintiff saw FNP George for a followup
appointment regarding her ear pain.
-6-
Tr. 248.
She had drainage in
the
ear
canal
that
had
decreased
from
the
previous
visit.
Antibiotics had relieved her pain and reduced the drainage.
On
September 23, 2009, at another followup appointment, Plaintiff had
some ear pain and drainage but FNP George reported that her
condition
was much
Plaintiff
was alert
improved
and
from
oriented,
previous visits.
in
no
acute
Tr. 246.
distress, and
reported no pain in the last week.
On October 13, 2009, Plaintiff saw Dr. Dawood.
Her behavior,
motor movements, thoughts, perceptions, mood, and insight were
unremarkable.
Tr. 326-27.
Plaintiff’s affect was flat, she was
alert and fully oriented, and she had good judgment.
On November 4, 2009, Plaintiff saw FNP George.
Tr. 244.
She
had drainage in the left ear canal, but it had decreased from
previous visits. She was alert and oriented, in no acute distress,
and her mood and affect were appropriate.
Plaintiff reported that
she had pain, but that it did not limit her activities.
Id.
On December 9, 2009, Plaintiff saw Dr. Samuel Rosati, her
primary care physician. Tr. 242. Plaintiff denied paresthesias in
her hands or feet, and denied increased fatigue.
She rated her
pain at 0/10, and had experienced no pain in the last week.
Plaintiff’s neurological examination was normal, and she had no
weakness in her extremities.
-7-
On
January
8,
2010,
at
an
appointment
with
LMSW
Reed,
Plaintiff’s global assessment of functioning (“GAF”) was 55.1
205-06.
Mental
behavior
was
status
examination
cooperative,
and
revealed
her
motor
that
Tr.
Plaintiff’s
movements,
speech,
thoughts, perceptions, and cognition were within normal limits.
Plaintiff’s mood was euthymic, her affect was congruent, and she
was alert and fully oriented.
Her insight and judgment were fair.
On January 15, 2010, Plaintiff was seen by Dr. Annalisa
Overstreet, an otolaryngologist. Tr. 227-28. She reported hearing
loss in her left ear since a car accident in the late 1990s in
which
she
sustained
trauma
to
her
ear.
In
2001,
underwent a mastoidectomy for chronic draining ear.
Plaintiff
She had left-
sided otitis externa, and hearing loss in the context of trauma and
mastoid surgery.
Dr. Overstreet prescribed antibiotic drops for
the infection.
On
January
29,
2010,
Plaintiff
saw
an
audiologist
and
complained of tinnitus and difficulty hearing from her left ear.
Tr. 225.
She was attending school at the time, and reported that
she did not always hear well in class. Testing revealed moderately
severe conductive hearing loss in the left ear.
hearing
was
within
normal
limits.
Her right ear
Plaintiff’s
speech
discrimination ability was excellent at very loud but comfortable
1
A GAF of 51 to 60 indicates a person with moderate symptoms or moderate difficulty in social,
occupational or school functioning. DSM-IV-TR, 34 (4th ed ., rev. 2000).
-8-
levels in the left ear, and at average conversational levels in the
right ear.
On February 1, 2010, Plaintiff saw FNP George.
Tr. 240.
Her
mood and affect were appropriate, and she reported no pain.
On
February 22, 2010, LMSW Reed reported that Plaintiff was doing well
but that she had trouble sleeping.
largely unchanged.
Tr. 330.
Her mental status was
On March 15, 2010, FNP George reported that
Plaintiff had increased fatigue, but that her mood and affect were
appropriate and she showed no anxiety or agitation.
Tr. 238.
On
April 5, 2010, LMSW Reed reported that Plaintiff was doing well and
her sleep had improved.
Tr. 333.
On June 10, 2010, Plaintiff saw FNP Sophie Dickinson and
complained of back pain for two years.
Tr. 234.
Physical
examination revealed pain and decreased range of motion in her
lumbar
spine,
without
obvious
deformity.
Plaintiff’s
reflexes, muscle tone, and strength were normal.
gait,
Her deep tendon
reflexes were normal, a Romberg test was normal, and her straight
leg raising was negative.
On June 21, 2010, Plaintiff saw Dr. Christine Ransom, a
consultative examining psychologist.
Tr. 290-94.
of depression despite her current treatment.
She complained
Her medications at
that time included Seroquel (100 mg), Ciprofloxacin (500 mg),
Budeprion XL (150 mg), Hydrochlorothiazide (25 mg), and Naproxen
(500 mg).
Mental examination revealed a normal appearance and
-9-
normal
speech
and
language.
Plaintiff’s
thought
orientation, insight, and judgment were all normal.
affect
were
moderately
dysphoric.
Id.
processes,
Her mood and
Her
attention,
concentration, recent and remote memory skills, and cognitive
functioning were all moderately impaired.
Id.
Intellectual
testing revealed that Plaintiff had a verbal/comprehensive score of
61, a perceptual/reasoning score of 63, a working/memory score of
66, a processing/speed score of 62, and her full scale IQ was 57.
Id.
Dr. Ransom assessed that Plaintiff had a fourth grade reading
level,
and
that
her
overall
intellectual
capacity,
verbal
functioning, perceptual functioning, working memory, and processing
speed were in the mildly mentally retarded range.
Tr. 292.
Plaintiff’s general fund of information, ability to form abstract
concepts,
ability
to
form
visual
relationships,
attention,
concentration, short term memory, and visual processing speed were
at the borderline of intellectual functioning level.
She was
mentally deficient in her ability to form verbal abstractions,
vocabulary development, her ability to analyze and synthesize
information, arithmetic ability, and her ability to copy designs
graphically.
Dr. Ransom further assessed that Plaintiff was moderately
limited in: (1) following, understanding, and remembering simple
instructions and directions; (2) maintaining basic standards of
-10-
hygiene
Plaintiff
and
grooming;
was
very
and
(3)
using
limited
in:
(1)
public
transportation.
performing
complex
tasks
independently; (2) maintaining attention and concentration for rote
tasks; (3) regularly attending to a routine and maintaining a
schedule; and (4) maintaining low stress and completing simple
tasks.
Dr. Ransom opined that Plaintiff appeared permanently
disabled, that her condition was not expected to improve, and that
she was unable to participate in any activities.
She appeared to
have a permanent intellectual disability and moderate depressive
symptomology.
On June 24, 2010, Plaintiff saw Dr. Dawood.
Tr. 217-19.
Plaintiff reported that she was sleeping well and that she was not
hearing voices anymore.
Her behavior, motor movements, thoughts,
perceptions, mood, cognition, and insight were unremarkable.
Her
speech was soft, her affect was congruent, she was alert and fully
oriented, and her judgment was good.
On June 25, 2010, Plaintiff saw Dr. Rosati and reported a two
to three year history of low back pain.
Tr. 231-32.
Physical
examination of her extremities revealed no cyanosis, clubbing, or
edema, and she had a normal range of motion.
A musculoskeletal
examination
leg
was
unremarkable,
her
negative, and her gait was normal.
straight
Id.
raising
was
X-rays of Plaintiff’s
lumbar spine (dated June 24, 2010) revealed mild degenerative
changes.
-11-
On July, 12, 2010, Plaintiff saw LMSW Reed and reported that
she was doing well.
Tr. 222-23.
Plaintiff also reported that she
had back pain, which increased her depression.
hallucinations.
She denied any
Her behavior was appropriate, and her motor
movements, speech, thoughts, and cognition were within normal
limits.
Plaintiff’s mood was euthymic, her affect was congruent,
and she was alert and fully oriented.
Her insight was fair and her
judgment was good.
An MRI of Plaintiff’s lumbar spine (dated July 27, 2010)
showed mild degenerative changes at L3-L4 and L4-L5.
Tr. 383.
At
L3-L4, there was minimal right and mild left neural foraminal
narrowing without spinal stenosis.
At L4-L5, there was minimal
spinal stenosis with mild bilateral neural foraminal narrowing.
On August 4, 2010, Dr. Harding, a State agency reviewing
psychologist, opined that Plaintiff had an affective disorder that
did not precisely satisfy the diagnostic criteria of Listing 12.04
of the Social Security Regulations (Affective Disorders). Tr. 270.
Further, Dr. Harding assessed the “B” criteria of the listings,
which indicate the degree of functional limitations that exist as
a result of an individual’s mental disorder.
Tr. 277.
Based on
his assessment, Dr. Harding opined that Plaintiff had moderate
limitations in activities of daily living, maintaining social
functioning, and maintaining concentration, persistence, and pace.
-12-
There was insufficient evidence to document repeated episodes of
deterioration, each of extended duration.
Dr.
Harding
also
capacity assessment.
completed
a
Tr. 281-82.
mental
residual
functional
In the category “understanding
and memory,” he found that Plaintiff was not significantly limited
in the ability to remember locations and work-like procedures, or
in the ability to understand and remember very short and simple
instructions.
She
was
moderately
limited
in
the
ability
to
understand and remember detailed instructions.
In the category “sustained concentration and persistence,”
Dr. Harding found that Plaintiff was not significantly limited in
the ability to: (1) carry out very short and simple instructions;
(2)
sustain
an
ordinary
routine
without
special
supervision;
(3) make simple work-related decisions; and (4) complete a normal
workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods.
Tr. 281-82.
Plaintiff was moderately limited in the ability to: (1) carry out
detailed instructions; (2) maintain attention and concentration for
extended
periods;
(3)
perform
activities
within
a
schedule,
maintain regular attendance, and be punctual within customary
tolerances; and (4) work in coordination with or proximity to
others without being distracted by them.
-13-
In the category “social interaction,” Dr. Harding found that
Plaintiff
was
not
significantly
limited
in
the
ability
to:
(1) interact appropriately with the general public; (2) ask simple
questions
or
request
assistance;
and
(3)
maintain
socially
appropriate behavior and adhere to basic standards of neatness and
cleanliness.
Plaintiff was moderately limited in the ability to
accept instructions and respond appropriately to supervisors, and
in the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes.
In the category “adaptation,” Dr. Harding found that Plaintiff
was not significantly limited in the ability to: (1) be aware of
normal hazards and take appropriate precautions; (2) travel in
unfamiliar
places
or
use
public
transportation;
and
realistic goals or make plans independently of others.
(3)
set
She was
moderately limited in the ability to respond appropriately to
changes in the work setting.
As a result of his assessment,
Dr. Harding opined that Plaintiff “retain[ed] the ability to
perform simple work on a sustained basis.”
Tr. 283.
On August 9, 2010, Plaintiff saw Dr. Rosati.
Tr. 305.
Her
extremities showed no cyanosis, clubbing, or edema, and she had a
normal range of motion.
Plaintiff’s back was unremarkable, her
straight leg raising was negative, and her gait was normal.
On
November
29,
2010,
Plaintiff
saw
Kristin
counselor, and reported that she was doing well.
-14-
Kelly,
Tr. 341-42.
a
Her
perceptions were normal, her mood was depressed, and her affect was
congruent.
There was no apparent deficit in her cognition.
December 21, 2010, Plaintiff saw FNP George.
extremities
showed
no
cyanosis,
clubbing,
reported no pain in the last week.
or
Tr. 315.
edema,
and
On
Her
she
She showed no anxiety or
agitation, and she reported no special needs related to learning.
On December 27, 2010, Plaintiff again saw counselor Kelly and
stated that she was doing well and her depression had decreased.
Tr. 346.
On February 11, 2011, Plaintiff reported to counselor Kelly
that she was doing fairly well, but had been experiencing anxiety
and worry related to upcoming medical appointments.
Tr. 348-61.
Her thoughts were logical and coherent, but she had phobias.
Plaintiff’s cognition showed no deficit, and she was alert and
oriented.
On
March
25,
Plaintiff’s GAF was 60.
2011,
counselor
Kelly
reported that
Her mental status was largely unchanged.
On April 12, 2011, FNP George reported that Plaintiff had no
costovertebral angle tenderness and had normal extremities.
321.
Tr.
She was alert and fully oriented, her mood and affect were
appropriate, and she showed no anxiety or agitation.
day, Plaintiff also saw LMSW Crystal Keefer. Tr. 374.
reported that Plaintiff appeared mildly depressed.
That same
LMSW Keefer
Her thoughts
contained feelings of guilt, preoccupations, and worthlessness, and
-15-
she reported hearing voices.
Plaintiff’s cognition showed no
apparent deficit.
LMSW
Keefer
completed
a
psychological
assessment
form
regarding Plaintiff’s employability (dated April 12, 2011).
Tr.
296-97. Plaintiff’s chief complaint and history of present illness
were
depression
and
anxiety
in
an
outpatient
setting.
She
interacted appropriately with others, was never violent toward
herself or others, and never lost a job or failed to complete
education or training due to psychiatric episodes.
LMSW Keefer
reported that, on occasion, Plaintiff had been hospitalized for
alcohol or drug abuse.
Plaintiff had made prior attempts at
abstaining from alcohol and drugs, and she had occasional black-out
episodes.
Plaintiff’s behavior occasionally interfered with her
activities of daily living, she had attempted suicide, and she had
occasional decompensation (episodes of psychosis).
LMSW Keefer assessed that Plaintiff was very limited in:
(1) following, understanding, and remembering simple instructions
and
directions;
(2)
demonstrating
the
capacity
to
maintain
attention and concentration for rote tasks; and (3) demonstrating
the capacity to regularly attend to a routine and maintain a
schedule.
Tr.
298.
Plaintiff
was
moderately
limited
in
demonstrating the capacity to perform simple and complex tasks
independently.
She had normal functioning in demonstrating the
capacity to maintain basic standards of hygiene and grooming, and
-16-
demonstrating the capacity to perform low stress and simple tasks.
Plaintiff
was
also
capable
of
using
public
transportation
independently. LMSW Keefer assessed that Plaintiff needed to focus
solely on treatment for 90 days, and abstain from all work, due to
her depression and anxiety worsening under work conditions.
Tr.
298-99.
On
May
5,
2011,
LMSW
Keefer
reported
that
Plaintiff’s
appearance and behavior were appropriate, and her motor movements
were unremarkable.
Tr. 377.
Her speech was soft, her thought form
was logical and coherent, and she had no abnormal perceptions.
Plaintiff’s mood was depressed, her affect was within a normal
range, and her cognition showed no apparent deficit. She was alert
and fully oriented, and her insight and judgment were good.
At an
appointment on May 23, 2011, Plaintiff’s mental status was largely
unchanged. Tr. 380-407. On June 9, 2011, counselor Kelly reported
that
Plaintiff’s
concentration
was
poor,
her
insight
was
superficial, and her judgment was fair.
On June 20, 2011, Dr. Andrea Coca evaluated Plaintiff for the
possibility of lupus.
Tr. 401-02.
Plaintiff reported no joint
pain or swelling, no stiff or painful muscles, and no back pain.
She also reported no anxiety or depression, and no difficulty
sleeping.
Physical examination revealed full range of motion of
her back.
At the hearing with the ALJ, Plaintiff testified that
she did not have lupus.
Tr. 31.
-17-
On July 8, 2011, Dr. Dawood reported that Plaintiff’s GAF was
64.2
Tr. 410-16.
Plaintiff also saw counselor Kelly that day, who
reported that Plaintiff had been getting out more and had been
seeing her family. Plaintiff’s appearance was appropriate, and her
motor movements were restless.
Her thought form showed blocking,
but her thought process was unremarkable.
Her mood was depressed,
her affect was constricted, her concentration was poor, and she was
distractable.
She was sedated, but fully oriented, and exhibited
superficial insight and fair judgment.
DISCUSSION
I.
Jurisdiction and Scope of Review
Title
42
U.S.C.,
Section
405(g)
grants
jurisdiction
to
district courts to hear claims based on the denial of Social
Security benefits.
Mathews v. Eldridge, 424 U.S. 319, 320 (1976).
When considering such a claim, the 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.
See Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); see also
Williams v. Comm’r of Soc. Sec., No. 06-CV-2019, 2007 U.S. App.
LEXIS 9396, at *3 (2d Cir. Apr. 24, 2007).
Substantial
evidence
is
“such
relevant
evidence
as
a
reasonable mind might accept as adequate to support a conclusion.”
2
A GAF of 61-70 indicates a person with some mild symptoms or some difficulty in social,
occupational or school functioning, but who is generally functioning pretty well and has
some meaningful interpersonal relationships. DSM-IV-TR, 34 (4th ed., rev 2000).
-18-
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938).
The
Court’s scope of review is thus limited to determining whether the
Commissioner’s findings were supported by substantial evidence in
the record, and whether the Commissioner employed the proper legal
standards in evaluating Plaintiff’s claim. Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983)(finding that a reviewing Court does
not try a Social Security benefits case de novo).
The Court must
“scrutinize
determine
the
record
in
its
entirety
to
the
reasonableness of the decision reached.” Lynn v. Schweiker, 565 F.
Supp. 265, 267 (S.D. Tex. 1983).
Judgment on the pleadings pursuant to Rule 12(c) 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 Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
II.
The Commissioner’s Decision to Deny Benefits is Supported by
Substantial Evidence in the Record.
In
his
decision
denying
benefits,
the
ALJ
followed
the
required five-step analysis established by the Social Security
-19-
Administration for evaluating disability claims.3
Tr. 9-17.
At
step one of the analysis, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since the application date.
Tr. 11.
At steps two and three, the ALJ concluded that Plaintiff had
the
following
anxiety,
substance
left
severe
ear
abuse
in
combination
hearing
loss,
remission
by
borderline intellectual functioning.
of
impairments:
degenerative
self-report,
depression,
disc
disease,
and
possible
He found, however, that none
of Plaintiff’s severe impairments, alone or in combination, met or
medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d),
416.925 and 416.926).
At steps four and five, the ALJ concluded that Plaintiff had
the residual functional capacity (“RFC”) to perform light work4
3
The five-step analysis requires the ALJ to consider the following: (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 or her 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 him or 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. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v).
4
20 C.F.R. 416.967(b): Light work. Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of time.
-20-
except she required the option of alternating between sitting and
standing, could only occasionally climb ramps or stairs, could only
occasionally engage in balancing, stooping, kneeling, crouching, or
crawling, was precluded from climbing ladders, ropes, or scaffolds,
and had a moderately severe left ear hearing loss.
Tr. 13.
Additionally, she was limited to performing simple, routine, and
repetitive
tasks,
in
a
production
requirements,
work
environment
involving
only
free
of
simple
fast
work
paced
related
decisions, with few, if any, changes in the work place, and she
should have no more than occasional interpersonal interaction with
the public, coworkers, and supervisors.
The ALJ found that, given
the Plaintiff’s age, education, work experience, and RFC, there
were jobs that existed in significant numbers in the national
economy
that
416.969(a)).
Plaintiff
Tr. 16.
could
perform
(20
C.F.R.
416.969
and
Thus, the ALJ concluded that Plaintiff was
not disabled within the meaning of the Social Security Act.
This
Court finds that the ALJ’s decision is supported by substantial
evidence in the record and is based on the appropriate legal
standards.
A.
The ALJ Did Not Err in Finding that Plaintiff’s
Impairments Were Not of the Severity to Meet the Listings
of the Social Security Regulations.
At step three, after reviewing the medical evidence of the
record in its entirety, the ALJ found that Plaintiff’s impairments
-21-
did not meet or medically equal a listed impairment of the Social
Security Regulations. Tr. 11. The ALJ noted that Plaintiff “d[id]
not
allege
that
she
ha[d]
any
impairments
of
listing
level
severity, nor ha[d] she met her burden of presenting medical
evidence that support[ed] such a finding.”
Id.
In her brief,
however, Plaintiff argues that her impairments are of the severity
to meet Listing 12.05(B) and/or (C) (Mental Retardation).5
This
Court finds that the ALJ did not err in finding that Plaintiff’s
impairments were not of the severity to meet or medically equal
Listing 12.05.
In assessing the paragraph “B” and “C” criteria of Listing
12.05, the ALJ concluded that they were not met because Plaintiff
did not have a valid verbal, performance, or full scale IQ of 59 or
less, and she did not have a valid verbal performance, or full
scale IQ of 60 through 70 and a physical or other mental impairment
imposing an additional and significant work-related limitation of
function.
5
Although Dr. Ransom, a consultative examiner, assessed
12.05 Mental Retardation: Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied...
B.
A valid verbal, performance, or full scale IQ of 59 or less; OR
C.
A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment
imposing an additional and significant work-related limitation of function; OR
-22-
that Plaintiff had a full scale IQ of 57, the ALJ rightly rejected
this test as invalid.
In rejecting this test as invalid, the ALJ explained that “Dr.
Ransom’s test score is the only evidence that [Plaintiff] exhibits
any intellectual deficit, and is inconsistent with a host of
evidence from [Plaintiff]’s treating sources.”
Id.
For example,
Dr. Dawood routinely noted that Plaintiff had normal cognition, and
her therapists and counselors repeatedly reported that Plaintiff
had “no apparent cognitive deficit.”
See e.g., Tr. 195, 203, 206,
212, 218-19, 223, 327, 331, 333-34, 342, 349, 355, 361, 377, 380.
The “ALJ is not required to accept a claimant’s IQ scores when they
are inconsistent with the record.”
Vasquez-Ortiz v. Apfel, 48
F.Supp.2d 250, 257 (W.D.N.Y. 1999).
The ALJ also discounted Dr. Ransom’s assessment based on its
nature as a form report.
Tr. 15.
Form reports, in which a
source’s only obligation is to fill in a blank or check off a box,
are entitled to little weight in the adjudicative process.
See,
e.g., Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (terming
form reports “weak evidence at best”); Crane v. Shalala, 76 F.3d
251, 253
(9th
Cir.
1996)
(holding
that the
ALJ
“permissibly
rejected” three psychological evaluations “because they were checkoff reports that did not contain any explanation of the bases of
their conclusions”); O’Leary v. Schweiker, 710 F.2d 1334, 1341
(8th Cir. 1983) (“[W]hile these forms are admissible, they are
-23-
entitled to little weight and do not constitute ‘substantial
evidence’ on the record as a whole”).
Moreover,
Plaintiff
failed
to
show
that
intellectual deficits manifested before age 22.
any
possible
On the contrary,
Plaintiff testified that she graduated high school and was not in
special education classes.
Tr. 28.
She also reported that she
attended college for a period of time.
Tr. 29.
Furthermore, she
alleged that she became disabled in 2008, 27 years after she turned
22.
Tr. 46, 114.
She alleged disability based on pain, deafness,
and mental health issues, not disability due to intellectual
deficits.
Tr. 127.
It is within the province of the ALJ to weigh conflicting
evidence in the record and credit that which is more persuasive and
consistent with the record as a whole.
See, e.g., Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in
the medical evidence are for the Commissioner to resolve.”) (citing
Richardson v. Perales, 402 U.S. 389, 399 (1971)); Schaal v. Apfel,
134 F.2d 496, 504 (2d Cir. 1998) (“It is for the SSA, and not this
court, to weigh the conflicting evidence in the record.”).
determination
that
Dr.
Ransom’s
full
scale
IQ
assessment
The
of
Plaintiff was unreliable, as it is the only mention in the record
that
Plaintiff
substantial
had
intellectual
evidence.
Thus,
limitations,
this
Court
is
finds
supported
that
the
by
ALJ
correctly determined that Plaintiff did not meet the paragraph “B”
-24-
or “C” criteria of Listing 12.05.
B.
The ALJ’s Residual Functional Capacity
Supported by Substantial Evidence.
Finding
is
In assessing a claimant’s RFC, the ALJ must consider all of
the relevant medical and other evidence in the case record to
assess
the
sensory,
claimant’s
and
other
ability
to
requirements
meet
of
the
physical,
work.
20
mental,
C.F.R.
§ 404.1545(a)(3)-(4); see also SSR 96-8p, SSR LEXIS 5, 1996 WL
374184 (S.S.A. July 2, 1996).
Here, the ALJ determined that
Plaintiff had the RFC to perform light work as defined in 20 C.F.R.
416.967(b) except she required the option of alternating between
sitting and standing, could only occasionally climb ramps or
stairs, could only occasionally engage in balancing, stooping,
kneeling, crouching, or crawling, was precluded from climbing
ladders, ropes, or scaffolds, and had moderately severe left ear
hearing loss.
Tr. 13.
She was also limited to performing simple,
routine, and repetitive tasks, in a work environment free of fast
paced production requirements, involving only simple work-related
decisions, with few, if any, changes in the work place, and she
should have no more than occasional interpersonal interaction with
the public, coworkers, and supervisors.
Id.
In making this
determination, the ALJ considered all symptoms and the extent to
which these symptoms could reasonably be accepted as consistent
with the objective medical evidence and other evidence (based on
the requirements of 20 C.F.R. 416.929 and SSRs 96-4p and 96-7p),
-25-
and
he
considered
opinion
evidence
in
accordance
with
the
requirements of 20 C.F.R. 416.927 and SSRs 96-2p, 96-5p, 96-6p, and
06-3p.
Id.
Plaintiff
contends
that
the
ALJ’s
RFC
determination
was
against the weight of the evidence because he failed to properly
evaluate treating and examining medical source opinions.
Mem. at 12.
affording
Pl.’s
Specifically, Plaintiff argues that the ALJ erred in
Dr.
“considerable
Harding,
weight,”
and
a
state
affording
psychological
LMSW
consultant,
Keefer,
a
treating
therapist, and Dr. Ransom, an examining psychologist, “little
weight.”
Id. at 11.
As discussed previously, this Court finds
that the ALJ did not err in determining that Dr. Ransom’s full
scale IQ assessment of Plaintiff was unreliable, and, thus, he
rightfully afforded Dr. Ransom’s opinion little weight.
Dr. Harding opined that Plaintiff retained the ability to
perform simple work on a sustained basis.
Tr. 283.
In concluding
that Dr. Harding’s opinion should be given considerable weight, the
ALJ noted that “State agency psychological consultants are deemed
by regulation to be highly qualified experts in Social Security
disability determinations (20 C.F.R. 416.927(f)(2)(i)), and his
opinion is consistent with the record as a whole and based upon a
comprehensive review of the record[].”
Tr. 15.
The opinions of
state agency medical consultants constitute expert opinion evidence
that can be given weight if supported by medical evidence of the
-26-
record, as in this case.
See Diaz v. Shalala, 59 F.3d 307, 315 (2d
Cir. 1995); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983).
LMSW Keefer opined (on a psychological assessment form) that
Plaintiff was very limited in her ability to follow, understand,
and
remember
simple
instructions,
maintain
attention
and
concentration for rote tasks, and regularly attend to a routine and
maintain a schedule.
Tr. 298-99.
She also opined that Plaintiff
was moderately limited in her capacity to perform simple and
complex tasks independently.
LMSW Keefer concluded that Plaintiff
would not be able to work for 90 days.
The ALJ gave her opinion
little weight because of its nature as a form report, and because
LMSW
Keefer
is
not
an
acceptable
medical
source
(20
C.F.R.
416.913(a) and 416.913(d)) and her “assessed limitations were
inconsistent with the contemporaneously prepared treatment notes,
[Plaintiff]’s actual activities of daily living, and [Plaintiff]’s
level of social activity.”
Tr. 16.
According to SSR 06-3p, “only ‘acceptable medical sources’ can
be considered treating sources... whose medical opinions may be
entitled to controlling weight.”
SSR 06-3p.
“Acceptable medical
sources” are further defined by regulation as licensed physicians,
psychologists, optometrists, podiatrists, and qualified speechlanguage
pathologists.
20
C.F.R.
416.913(a).
In
contrast,
therapists are defined as “other sources” whose opinions may be
considered
with
respect
to
the
-27-
severity
of
the
claimant’s
impairment
and
ability
controlling weight.
to
work,
but
need
20 C.F.R. 416.913(d)(1).
not
be
assigned
The ALJ “has the
discretion to determine the appropriate weight to accord the [other
source]’s opinion based on the all evidence before him.”
Diaz v.
Shalala, 59 F.3d 307, 314 (2d Cir. 1995); see also Genier v.
Astrue, 298 F. App’x 105, 108-09 (2d Cir. 2008) (“[M]any of the key
medical opinions cited during the benefits period at issue were
those of a physician’s assistant and a nurse practitioner - and not
a physician.
As such, the ALJ was free to discount the assessments
accordingly in favor of the objective findings of other medical
doctors.
There was no treating physician error.”); see also
Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983).
LMSW Keefer was an “other source” rather than an acceptable
medical source under the Regulations and, thus, she could not be a
“treating source” for purposes of the treating physician rule.
Thus, this Court finds that the ALJ did not err in declining to
afford LMSW Keefer’s opinion greater weight.
Further, after
reviewing the treatment notes of LMSW Keefer, this Court finds that
the ALJ correctly determined that they were inconsistent with the
form report showing greater limitations.
Accordingly, this Court
finds that the ALJ properly assessed LMSW Keefer’s opinion.
-28-
C.
The ALJ Applied the Appropriate Legal Standards Regarding
Plaintiff’s Credibility and his Assessment is Supported
by the Record.
Plaintiff argues that the ALJ failed to apply the appropriate
legal standards for assessing her credibility.
When assessing a
claimant’s credibility, an ALJ may not simply state in a conclusory
manner that he finds the claimant to be not credible.
Rather, the
ALJ’s decision must contain specific reasons for his finding that
are supported by evidence in the record.
374186, *4 (S.S.A.).
See SSR 96-7p, 1996 WL
The decision must explain to the individual
and a reviewing court the weight given to the testimony and the
reasons for the determination.
The
ALJ
found
that
See id.
Plaintiff’s
medically
determinable
impairments could reasonably be expected to cause some of the
alleged symptoms; however, Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of these symptoms were
“not credible to the extent they are inconsistent with the...
residual functional capacity assessment.”
Tr. 14.
The ALJ’s
decision contained specific reasons supported by the evidence for
discounting Plaintiff’s credibility, and he correctly evaluated
Plaintiff’s statements in making his RFC determination. Tr. 14-15;
see also SSR 96-3p and 96-7p.
The ALJ concluded that Plaintiff was “partially credible”
regarding her hearing impairment.
-29-
Tr. 14.
As such, he included
her moderately
severe
left ear
residual functional capacity.
hearing
loss in
the
assessed
Id.
The ALJ also concluded, however, that Plaintiff was “less than
fully credible” regarding the limitations imposed by her back
impairment.
Id. In support of this conclusion, the ALJ noted that
X-rays showed that Plaintiff had only mild degenerative changes,
and that MRI testing showed mild degenerative changes, specifically
mild foraminal narrowing without significant stenosis at L3-L4 and
minimal
spinal
stenosis
with
mild
bilateral
neural
foraminal
narrowing at L4-L5. Tr. 231, 383. Despite these mild degenerative
changes, Dr. Rosati found that Plaintiff was in no acute distress,
had a normal range of motion and a normal gait, had a negative
sitting straight leg-raising test, and that her musculoskeletal
exam was unremarkable.
Tr. 232.
Furthermore, Plaintiff often
reported to her treating providers that she received relief from
pain medication and was doing well.
Tr. 330, 333, 341, 346, 348,
379.
The ALJ also concluded that Plaintiff was “less than fully
credible” regarding her mental health limitations.
Tr. 14.
He
noted that Plaintiff reported to her treating providers that her
depression improved since she stopped using mood altering drugs,
and that she had been doing well.
Tr. 330, 333, 341, 346, 348,
379. Furthermore, Plaintiff’s therapists reported that she had GAF
scores that indicated only moderate impairment-related limitations,
-30-
and that her most recent mental health reports noted a GAF of 64,
which indicates no more than mild impairment-related limitations.
Tr. 205, 360, 410.
the
ALJ
noted
To further support his credibility conclusion,
that
“[Plaintiff]’s
ability
to
use
public
transportation, attend church, and shop for food is inconsistent
with the degree of social isolation she alleges, and her ability to
manage her own money is inconsistent with the degree of cognitive
impairment alleged.”
Tr. 15, 139-49.
“It is the Secretary’s function not the district court’s to
appraise the credibility of witnesses, including the plaintiff.”
Serra v. Sullivan, 762 F. Supp. 1030, 1034-35 (W.D.N.Y. 1991).
Thus, for the stated reasons, this Court finds that the ALJ’s
credibility determination is supported by substantial evidence.
D.
The ALJ Appropriately Relied Upon the Vocational Expert’s
Testimony in Making his RFC Determination.
Plaintiff contends that because the ALJ erred in evaluating
the
medical
findings
and
making
his
RFC
determination,
the
vocational expert’s testimony cannot be relied upon to provide
substantial evidence for supporting a denial of disability.
Mem. at
15.
Plaintiff argues that
because
the
Pl.’s
hypothetical
questions posed to the vocational expert were based upon an RFC
determination that did not accurately and completely describe
Plaintiff’s
unreliable.
limitations,
Id.
the vocational
expert’s
testimony
is
Thus, it is Plaintiff’s position that the
Commissioner did not meet his burden at step five of the analysis,
-31-
which requires a showing that work exists in significant numbers in
the
national
economy
vocational factors.
that
accommodates
Plaintiff’s
RFC
and
As discussed previously, however, this Court
finds that the ALJ’s RFC determination was proper.
Based on his RFC determination, the ALJ correctly posed a
hypothetical
question
to
the
vocational
expert,
Mr.
Bryant.
Mr. Bryant was told to assume an individual with the same age and
education as well as lack of relevant work experience as Plaintiff,
with
the
following
series
of
abilities
and
limitations:
the
individual was limited to the light exertional category as defined
in the regulations, required the option of alternating between
sitting and standing, could only occasionally climb ramps or stairs
and
could
only
occasionally
engage
in
balancing,
stooping,
kneeling, crouching, and crawling, was precluded from climbing
ladders, ropes, or scaffolds, and had moderate use of the left ear
due to hearing loss.
Tr. 42.
Additionally, Mr. Bryant was to
assume that this individual was limited to performing simple,
routine, and repetitive tasks in a work environment via fast-paced
production requirements and one that involved only simple workrelated decisions with few, if any, changes in the workplace, and
that
the
individual
interpersonal
supervisors.
should
interaction
have
with
Tr. 42-43.
-32-
no
more
co-workers,
than
the
occasional
public,
and
Based on this hypothetical scenario, Mr. Bryant testified that
such an
individual
could
perform
the function
of
a
collator
operator, an apparel stock checker, and a surveillance system
monitor.
Tr. 43.
Thus, based on his proper RFC determination and
the testimony of the vocational expert, this Court finds that the
ALJ correctly concluded that Plaintiff could perform other work in
the national economy.
CONCLUSION
For
the
reasons
stated,
this
Court
finds
that
the
Commissioner’s denial of SSI benefits to Plaintiff was based on
substantial evidence in the record and was not erroneous as a
matter
of
affirmed.
law.
Accordingly,
the
Commissioner’s
decision
is
This Court grants Commissioner’s motion for judgment on
the pleadings. Plaintiff’s motion for judgment on the pleadings is
denied, and Plaintiff’s complaint is dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 8, 2013
Rochester, New York
-33-
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