Andrews v. Commissioner of Social Security et al
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER granting in part and denying in part 9 Motion for Judgment on the Pleadings; granting in part and denying in part 12 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/30/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
CHRISTINE MARIE ANDREWS,
No. 6:12-CV-6651(MAT)
DECISION AND ORDER
Plaintiff,
- vs CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
_______________________________
I.
Introduction
Christine
Marie
Andrews
(“Andrews”
or
“Plaintiff”),
represented by counsel, brings this action pursuant to Title XII of
the Social Security Act (“the Act”), seeking review of the final
decision
of
the
Commissioner
of
Social
Security
(“the
Commissioner”) denying her application for disability insurance
benefits (“DIB”). The Court has jurisdiction over this matter
pursuant to 42 U.S.C. § 405(g). Presently before the Court are the
parties’ competing motions for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c).
II.
Procedural History
Plaintiff
protectively
filed
an
application
for
DIB
on
January 15, 2010, alleging a disability onset date of May 14, 2009.
See T.10, 82, 161.1 The application was denied, T.83-87, and on
August 2, 2011, administrative law judge Brian Kane (“the ALJ”)
1
Numbers
preceded
by
“T.”
refer
to
pages from the
administrative record, submitted as a separately bound exhibit.
held a hearing at which Plaintiff and her attorney appeared.
T.27-75. A vocational expert also testified. On September 21, 2011,
the ALJ found Plaintiff not disabled, T.10-22, and this became the
Commissioner’s final decision when the Appeals Council denied
Plaintiff’s request for review on October 3, 2012. T.1-5. This
timely action followed.
III. Summary of the Administrative Record
A.
Medical Evidence
The bases for Plaintiff’s disability claim are chronic back
pain,
shoulder
pain,
migraine
headaches,
anxiety,
obsessive-compulsive disorder, right tennis elbow, and difficulty
focusing and multi-tasking. T.208. Plaintiff has a history of
injuries to her right shoulder including dislocations in January of
1999, and January of 2005, for which she was successfully treated
with physical therapy (“PT”). T.285-87, 298-301, 320.
With regard to her back pain, x-rays of her lumbar spine on
June 3, 2009, showed loss of disc space at L3-L5 and findings
consistent with degenerative spondylosis. T.328. Magnetic resonance
imaging (MRI) of her lumbar spine on June 15, 2009, revealed mild
degenerative changes most prominent at L5-S1, a posterior central
disc herniation protrusion with an associated annular tear, and
moderate spinal stenosis with mild bilateral neural foraminal
narrowing. T.327. Plaintiff treated with orthopedist Rajeev Patel,
M.D., who diagnosed a worsening displaced lumbar inverted disc.
-2-
Dr. Patel recommended PT and home exercise and instructed her to
avoid repetitive or unnecessary bending, twisting, and lifting of
heavy objects. At Dr. Patel’s recommendation, Plaintiff pursued
selective nerve root sleeve injections but declined a surgical
consultation. See T.314-15. For her back pain and shoulder pain,
Plaintiff
was
prescribed
gabapentin
and
meloxicam.
T.312-13.
Plaintiff also saw a chiropractor at various times throughout the
relevant period. E.g., T.440.
After a fall off an air mattress on September 5, 2009, that
resulted in an injury to her left shoulder, Plaintiff underwent an
MRI of that shoulder on December 4, 2009. The MRI revealed no
evidence of
a
rotator
cuff
tear,
with
only
mild
insertional
infraspinatus and supraspinatus tendinopathy, and a complex tear of
the anterior inferior labrum with extension of the tear superiorly.
T.283.
Orthopedic
surgeon
William
Ciszewski,
M.D.
scheduled
Plaintiff for surgery to repair the shoulder.
Plaintiff attended 6 appointments for PT on her left shoulder
with Sarah Lipinski (“Lipinski”) at Genesee Valley Physical Therapy
and Sports Rehab from December 22, 2009, through February 2, 2010.
See T.288-93. On February 19, 2010, Lipinski completed a medical
questionnaire at the request of the Commissioner, indicating a
diagnosis of left shoulder Bankart lesion with left shoulder pain
and limited mobility and strength. Lipinski noted that Plaintiff
was scheduled for surgery on February 11, 2010, and PT was expected
-3-
to last 4 to 5 months after the surgery with a fair to good
prognosis. Lipinski assessed that Plaintiff was capable of sitting,
standing, and/or walking for up to 6 hours each per workday, with
no pushing or pulling using the left shoulder, and no lifting or
carrying with the left arm. See T.292-94.
On February 11, 2010, Plaintiff underwent surgery on her left
shoulder.
T.304-06.
impingement
and
Dr.
Ciszewski
adhesive
found
capsulitis.
evidence
Plaintiff
of
was
shoulder
in
stable
condition after the surgery, and returned to PT from March 1, 2010,
through October 26, 2010. T.389-424. PT treatment notes indicate
improvement in Plaintiff’s range of motion and pain over time. See,
e.g., T.391, 394, 398, 408, 421.
About 3 weeks after her shoulder surgery, Plaintiff was
examined
on
March
5,
2010,
by
consultative
physician
Sandra
Boehlert, M.D.. T.331-34. On examination, Plaintiff’s left shoulder
forward elevation, abduction, adduction, internal rotation, and
external rotation were limited to varying degrees. T.333. Plaintiff
experienced marked tenderness in the left shoulder with any further
range of motion. T.333. Dr. Boehlert’s diagnosis was status postsurgical repair of left shoulder impingement syndrome; history of
repetitive dislocation in the right shoulder (likely ligamentous
loosening);
history
of
high
cholesterol;
history
of
migraine
headaches; and a psychiatric disorder. T.333. Dr. Boehlert opined
that Plaintiff’s prognosis was “fair” and that she had a “moderate”
-4-
limitation in any heavy lifting or repetitive use of the left
shoulder; and an “acute marked” limitation in any use of the left
hand or left arm for any lifting or repetitive use. T.333. However,
she was expected to improve to “moderate” limitations over time.
Id.
Also on March 5, 2010, Lynn Lambert, D. Psy., performed a
consultative psychological examination of Plaintiff. See T.336-42.
Plaintiff reported no history of mental health treatment, but said
that she had discussed anxiety with her primary care physician who
had been prescribing anti-anxiety medication for at least 3 years.
Dr. Lambert noted that Plaintiff appeared “resistant, despite . .
. being bright, to obtaining any mental health treatment,” T.336.
Due
to
at
times
grandiose
and
expansive
thought
processes,
Plaintiff was likely to have problems concentrating and completing
tasks. Plaintiff reported that her mind raced at night, which woke
her up at least 3 to 4 times per night. T.338.
Plaintiff stated that she spent her days “involved in graphic
design or photography/animated gift [sic] creations for many hours
on the computer, not sleeping well so going back to bed during two
hours in the middle of the afternoon[;] doing physical therapy . .
. and trying to watch soap operas. . . .” T.340. Plaintiff reported
-5-
a good and supportive relationship with her husband and son.
T.339.2
While Plaintiff did not report any manic symptoms, these were
“very observable in the areas of occasional grandiosity, excessive
talking, pressured speech, distractibility, psychomotor agitation,
excessive involvement in pleasurable activities (such as graphic
design involvements on the computer for up to 8 to 12 hours daily,
including currently), flight of ideas, and occasional unstable mood
patterns.” Id. Dr. Lambert described Plaintiff’s thought processes
as coherent, “yet definitely not always goal directed due to very
tangential
and
even
loosely
associated
through
processes,
consistently following anxiety or mood acceleration (as opposed to
related to thought disorder).” T.337; see also T.339 (episodes of
disorganization and not finishing tasks “tend to follow accelerated
thoughts and moods”). Although Plaintiff was “above average in
intellect[,]” her recent and remote memory skills were “[i]mpaired
due
to
affective
anxiety
and
occasional
racing
thoughts
and
distractibility.” T.339. Her judgment “[f]luctuated between good
and poor” and was “overall fair.” Id.
Dr.
Lambert’s
predominantly
main
manic
manic/hypomanic.”
or
T.340.
diagnosis
was
hypomanic,
Her
findings
“[b]ipolar
most
were
I
recent
disorder,
episode
“consistent
with
2
Prior to administrative hearing, Plaintiff separated from her
husband.
-6-
moderate to at times severe psychiatric symptom patterns which
would
compromise
functioning.”
Id.
Dr.
Lambert
opined
that
Plaintiff “is likely to be moderately challenged to maintain
adequate short term memory, maintain adequate focus without high
levels of distraction, maintain a regular schedule, perform complex
tasks independently, and appropriately deal with stress. . . .” Id.
Dr. Lambert gave a prognosis of “fair, despite apparent severity of
untreated and current serious psychiatric symptom patterns. . . .”
T.341. Dr. Lambert recommended that Plaintiff should “seriously
consider formal psychiatric intervention” and “encourage[d] [her
primary care physician] to take a strong stance in referring [her]
for psychiatric treatment.” T.340-41.
On June 22, 2010, Plaintiff returned to Dr. Ciszewski and
complained of right buttock pain that had been ongoing for several
weeks, numbness that radiated into her right lower extremity, and
ongoing left shoulder pain. T.430. Dr. Ciszewski’s impressions
included right hip discomfort that could be referred pain from
Plaintiff’s spinal stenosis and spondylosis. T.430. He recommended
continued PT for the left shoulder, though he did not anticipate
complete recovery. Dr. Ciszewski opined that Plaintiff was unable
to work due to her multiple orthopedic conditions. T.430.
On August 3, 2010, Plaintiff saw Dr. Patel who performed
bilateral intramuscular trigger point injection of the trapezius
for
myofascial
pain
syndrome
and
-7-
bilateral
occipital
nerve
injections for occipital neuralgia. T.450. On August 9 and August
23,
2010,
selective
Plaintiff
nerve
underwent
root
injections
bilateral
at
the
therapeutic
S1level
for
lumbar
lumbar
radiculitis. T.448, 444.
On August 17, 2010, Plaintiff returned to see Dr. Ciszewski
and complained of continued discomfort in her left shoulder. T.427.
Upon examination, Plaintiff’s left shoulder was swollen, her grip
strength was reduced, and range of motion was reduced to 120
degrees in forward flexion, and 30 degrees in external rotation.
T.427. Dr. Ciszewski continued her PT for another 4 weeks. Id.
On November 17, 2010, Plaintiff treated with chiropractor Fred
L. SanFelipo, D.C., and complained of recurrent lower and upper
back pain
and
neck
pain.
T.436.
Dr.
SanFilipo
observed that
Plaintiff had difficulty with transfer; she walked with a slight,
forward flexed antalgic lean; and she exhibited palpable tenderness
at the lower lumbar spinaparavertebral musculature. T.436. His
diagnosis was mechanical back pain, probably emanating from the
joint of the lower lumbar spine. Id. Dr. SanFilipo prescribed
flexion/distraction
exercises
followed
by
gentle
mobilization
procedures of the lumbar spine, and myofascial release technique.
T.436.
Plaintiff was referred to Donna Ferrero, M.D. on December 6,
2010, to whom she reported worsening chronic neck pain for years.
T.477. Dr. Ferrero noted a possible diagnosis of fibromyalgia and
-8-
prescribed Lyrica, which Plaintiff declined due to concerns about
drug allergies and side effects. Plaintiff returned to Dr. Ferrero
on
March
10,
2011,
at
which
time
Dr.
Ferrero
repeated
her
impression that Plaintiff’s chronic pain was due to fibromyalgia.
T.475. Dr. Ferrero recommended aquatic therapy.
About a year after Dr. Lambert strongly recommended that
Plaintiff seek psychiatric treatment, Plaintiff began seeing Anne
K. Woods, LCSW-R (“Woods”) in 2011, for talk therapy. Plaintiff
explained that she had been dealing with multiple stressors and
losses, and reported feeling numb, nervous, and “unreal”. T.479.
Woods planned to conduct cognitive behavioral talk therapy focused
on increasing symptom management and coping with stress and loss.
Her
diagnosis
was
anxiety
disorder,
not
otherwise
specified
(“NOS”). T.480. On July 8, 2011, Woods wrote a letter indicating
that she had treated Plaintiff five times since starting talk
therapy on April 8, 2011, and that she last treated Plaintiff on
June
27,
2011.
depression,
but
Woods
she
opined
that
considered
Plaintiff
them
had
disabling
anxiety
only
“as
and
an
exacerbation of her physical issues.” T.481.
On August 12, 2011, Plaintiff’s primary care physician John
Buckley, M.D. completed a Fibromyalgia Residual Functional Capacity
Questionnaire at the Commissioner’s request. T.484-87. Dr. Buckley,
who had treated Plaintiff for 10 years, stated that she met the
American College of Rheumatology criteria for fibromyalgia. T.484.
-9-
Her symptoms
sleep,
included
chronic
subjective
multiple tender
fatigue,
swelling,
morning
frequent,
points, non-restorative
stiffness,
muscle
severe headaches,
weakness,
numbness
and
tingling, and anxiety. T.484. He noted that Plaintiff was not a
malingerer and that she had bilateral pain in the lumbosacral
spine; cervical spine; shoulders; arms; hands and fingers; hips;
legs; and knees, ankles, and feet. T.485. Plaintiff’s pain was
present on a daily basis and was exacerbated by changing weather,
movement/overuse,
and
static
positions.
Id.
According
to
Dr. Buckley, Plaintiff could walk 2 blocks at a time; sit for
30 minutes at a time; stand for 30 minutes at a time; and sit and
stand for about 4 hours each in an 8-hour workday. Id.
Plaintiff
would need to include 5-minute periods of walking around every
30 minutes during an 8-hour workday, and would need a job that
permitted shifting at will from sitting, standing, or walking. In
his opinion, Plaintiff could occasionally lift 10 pounds; and
occasionally twist, stoop, crouch/squat, climb ladders, and climb
stairs. T.487. Dr. Buckley opined that Plaintiff’s impairments
would likely produce “good days” and “bad days” and would likely
result in about 3 absences from work per month due to pain
symptoms. Id.
B.
Non-Medical Evidence
Plaintiff
completed
4
years
of
college,
T.209,
and
was
43 years old as of her alleged May 14, 2009 onset of disability
-10-
date.
T.204.
Plaintiff
had
past
relevant
work
as
a
graphic
designer, a computer operator, a teacher’s aide, and a sales clerk
at the Garden Factory. See T.20, 192-97, 210, 237-44. During 2011,
Plaintiff worked 4 hours a week teaching art to senior citizens and
2 hours as a substitute teacher in the public school system;
however, this work did not rise to the level of substantial gainful
activity (“SGA”) under 20 C.F.R. 404.1574. T.12.
C.
Vocational Evidence
Julie Andrews, Ph.D., an impartial vocational expert (“the
VE”), testified that Plaintiff had past work experience as a sales
clerk, a graphic designer, a teacher’s aide category II, and a
computer operator. The ALJ asked the VE to consider a hypothetical
individual of the same age, education, and work experience as the
Plaintiff who could lift and carry up to 20 pounds, sit for up to
6 hours, stand/walk for up to 2 hours, could infrequently reach
above shoulder level, and would need to avoid concentrated or
excessive exposure to environmental irritants and extremes in
temperature and humidity. The VE testified that such an individual
could perform work as a graphic designer or as a computer operator,
as Plaintiff had formerly performed that work. T.69-70.
The ALJ also asked the VE to consider a hypothetical with the
additional restrictions of being able to stand or walk for 1 hour
each during a workday, and being off-task about 10 percent of the
day. The VE testified that such an individual could perform
-11-
work
in the national and local economies, giving as representative
positions that of food checker and telephone solicitor. T.70-72.
Plaintiff’s attorney posed hypotheticals to the VE regarding
a person who was off-task 20 percent of the day or who would miss
2 days of work per month, and the VE testified that such a person
would not be able to return to her past relevant work or obtain any
other type of SGA. T.73.
IV.
Legal Principles
A.
Standard of Review
The Commissioner’s decision that a claimant is not disabled
must be affirmed if it is supported by substantial evidence, and if
the ALJ applied the correct legal standards. 42 U.S.C. § 405(g);
see also, e.g., Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002). “Substantial evidence” has been defined as “‘more than a
mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). “[I]t is not the
function of a reviewing court to decide de novo whether a claimant
was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
“Where the Commissioner’s decision rests on adequate findings
supported
by
evidence
having
rational
probative
force,
[the
district court] will not substitute [its] judgment for that of the
Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
-12-
However, the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984) (“Failure to apply the correct
legal standards is grounds for reversal.”).
B.
Five-Step Sequential Evaluation
To be considered disabled within the meaning of the Act, a
claimant must establish an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore,
the claimant’s physical or mental impairments must be of such
severity as to prevent engagement in any kind of substantial
gainful
work
which
exists
in
the
national
economy.
Id.,
§ 423(d)(2)(A).
In
determining
whether
a
claimant
is
disabled,
the
Commissioner follows the five-step analysis set forth in the Social
Security Administration Regulations. 20 C.F.R. § 404.1520; see
also, e.g., Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The burden of proof lies with the claimant on steps one through
four to show that her impairment or combination of impairments
prevents a return to previous employment. Berry, 675 F.2d at 467.
If the claimant meets that burden, the Commissioner bears the
-13-
burden at step five of establishing, with specific reference to the
medical evidence, that the claimant’s impairment or combination of
impairments
is
not
of
such
severity
as
to
prevent
her
from
performing work that is available in the national economy. Id.; 42
U.S.C. § 423(d)(2)(A); see also, e.g., White v. Secretary of Health
and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). In making the
required showing at step five, the ALJ must consider the claimant’s
residual functional capacity, along with other vocational factors
such as age, education, past work experience, and transferability
of skills. 20 C.F.R. § 404.1520(f); see also, e.g., State of N.Y.
v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
IV.
The ALJ’s Decision
A.
Step One
The ALJ found at step one of the sequential evaluation that
Plaintiff had not engaged in SGA since May 14, 2009, the alleged
onset date. T.12.
B.
Step Two
At the second step, the ALJ found Plaintiff had the following
severe impairments: fibromyalgia; a history of dislocations of her
right
shoulder;
a
complex
tear
of
the
right
labrum,
status
post-surgery; and anxiety disorder, NOS. T.12 (citing 20 C.F.R. §§
404.1520(c), 404.1521 (an impairment is severe if it significantly
limits the claimant’s ability to perform work related activities)).
-14-
C.
Step Three
At the third step, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments which met or
medically equaled the criteria of an impairment contained in the
listed
impairments
in
20
C.F.R.
Part
(“Pt.”)
404,
Subpart
(“Subpt.”) P, Appendix (“App.”) 1 (“the Listings”). Specifically,
the ALJ analyzed Listings 1.02 (Major dysfunction of a joint), 1.04
(Disorders of the spine), and 12.06 (Anxiety related disorders).
See T.13-15.
Listing
1.02
requires
either
an
inability
to
ambulate
effectively (Listing 1.02A), or an inability to perform fine and
gross movements effectively (Listing 1.02B). The ALJ stated that
“[t]reating and examining physicians noted that [Plaintiff] had a
normal gait”, T.13 (citations omitted); that Plaintiff exhibited no
persistent motor, sensory, or reflex deficits, id. (citations
omitted); that clinical, laboratory, and diagnostic studies related
to
Plaintiff’s
physical
complaints
“d[id]
not
approach
any
requisite levels in the Listings,” and no “treating or examining
physician ha[d] mentioned findings equivalent in severity to the
criteria of any listed impairment.” T.21.
Listing 1.04 requires either motor loss accompanied by sensory
or reflex loss (Listing 1.04A), or spinal arachnoiditis (Listing
1.04B), or an inability to ambulate effectively (Listing 1.04C). As
noted above, the ALJ found that Plaintiff had a normal gait and
-15-
exhibited no persistent motor, sensory, or reflex deficits, and
there was no evidence of a diagnosis of spinal arachnoiditis.
To meet or medically equal Listing 12.06, Plaintiff’s anxiety
related disorder must be characterized by at least a “marked”
degree of limitation in at least two of the three “paragraph B”
criteria (restrictions in activities of daily living (“ADLs”);
difficulties in maintaining social functioning; and difficulties in
maintaining concentration, persistence, or pace); or at least a
“marked” degree of limitation in one of the “paragraph B” criteria
and
repeated
episodes
of
decompensation.
See
20
C.F.R.
§ 404.1520a(d)(2); Pt. 404, Subpt. P, App. 1, Sec. 12.06(B). In the
alternative, Plaintiff can satisfy Listing 12.06 by meeting the
requirements of paragraph C, which encompasses anxiety “[r]esulting
in complete inability to function independently outside the area of
one’s home.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 12.06(C).
The ALJ found that Plaintiff’s mental impairment did not
satisfy Listing 12.06(B). T.14-15. Specifically, considering the
“paragraph B” criteria, the ALJ found that Plaintiff was only
“moderately” restricted in her ADLs. T.14 (citing T.47-49, 227-30,
332, 371, 438). Plaintiff testified that she can cook, clean, do
laundry, garden, shop, and provide childcare for her son, but needs
some modifications or help due to her physical impairments. T.14
(citing 4E-5E, 8F, 18F-19F, and “testimony”).
-16-
The ALJ found that Plaintiff had only “mild” difficulties with
social functioning. T.14. As the ALJ found, Plaintiff has stated
that her social life is “normal”; that she visits with friends and
family 1 to 2 times a week in person and 3 to 4 times a week via
the computer; that she occasionally attends social events in the
community; and that she regularly performs volunteer work in
connection with her son’s activities. T.14 (citing 4E, 9F, 8F;
other citations omitted).
With regard to maintaining concentration, persistence, and
pace,
the
ALJ
found
that
Plaintiff
“has
made
inconsistent
statements[,]” but “[c]onsidering the evidence as a whole,” she has
“mild difficulties” in this area. T.14. The ALJ characterized
Plaintiff’s “[m]ental status examinations” as “reveal[ing] that her
concentration and attention were generally intact, but she was
distracted at times[.]” T.15 (citing Exs. 9F, 23F). The Court finds
that
this
is
not
an
accurate
reflection
of
the
record
of
Plaintiff’s mental status examinations, as consulting psychologist
Dr. Lambert found that Plaintiff’s recent and remote memory skills
were impaired due to affective anxiety and occasional racing
thoughts
and
distractibility.
T.339.
Dr.
Lambert
noted
that
Plaintiff could only recall 2 of 3 objects after 5 minutes, and was
only
able
to
perform
some
of
the
digit-recitation
exercises
successfully, despite being of above-average intellect. Id. Based
on Dr. Lambert’s clinical findings, a finding of only “mild”
-17-
impairment in concentration, persistence, and pace is not supported
by substantial evidence.
Based on Dr. Lambert’s detailed clinical findings, a finding
of only “mild” impairment in concentration, persistence, and pace
is not supported by substantial evidence. However, this error is
harmless, because even if Plaintiff’s impairment in concentration,
persistence,
and
pace
were
described
as
“moderate”
or
even
“marked”, it would not change the Commissioner’s determination.
That is, Plaintiff still would not be able to meeting the elements
of Listing 12.06(B) because she does not have a sufficient degree
of impairment in the remaining paragraph B criteria. See Ryan v.
Astrue, 650 F. Supp.2d 207, 217 (N.D.N.Y. 2009) (“Other courts have
found harmless error where the ALJ failed to afford weight to a
treating physician when an analysis of weight by the ALJ would not
have affected the outcome.”) (citing, inter alia, Walzer v. Chater,
No. 93 Civ. 6240 (LAK), 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26,
1995) (“[T]he ALJ’s failure to [discuss a report completed by
Plaintiff’s treating physician] was harmless error, since his
written consideration of [the] report would not have changed the
outcome of the ALJ’s decision.”)).
Finally, the ALJ found, there was no evidence of any episodes
of decompensation to satisfy Listing 12.06. Plaintiff had never
been hospitalized, and up until 2011, had never sought outpatient
mental health treatment.
-18-
The ALJ determined, in the alternative, that the requirements
of paragraph C of Listing 12.06 were not met because Plaintiff is
able to function outside of the house independently.
After determining that Plaintiff’s impairments did not singly
or in combination meet or medically equal a listed impairment, the
ALJ turned to an analysis of Plaintiff’s residual functional
capacity (“RFC”), that is, what she can still do despite the
limitations imposed by her impairments. 20 C.F.R. §§ 404.1520(e),
404.1545(a). The ALJ found that Plaintiff retained the RFC to lift
and carry up to 20 pounds, sit for up to 6 hours in an 8-hour
workday, stand and walk up to one hour each during an 8-hour
workday,3 and infrequently reach above shoulder level with either
arm, although she must avoid concentrated exposure to irritants
such as, dust, odors, fumes, and extremes of temperature and
humidity. In addition, the ALJ found, Plaintiff would be off-task
10 percent of the workday. T.15; see also T.16 (citing T.289-93,
332-33, 371, 388, 421, 425-26, 438, 478). As discussed further
below, Plaintiff contends that the ALJ erred in several respects in
3
Thus, the ALJ found that Plaintiff has the capacity to do
light work with some postural limitations. As defined by the
regulations, light work “involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to
10 pounds . . . . [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.”
Light work often involves standing on and off, for a total of
approximately
6
hours of
an
8-hour workday.
20
C.F.R.
§ 404.1567(b); see also SSR 83–10.
-19-
assessing her RFC, including failing to ascribe controlling weight
to Dr. Buckley’s fibromyalgia report.
D.
Step Four
At step four, the ALJ determined that Plaintiff is capable of
performing her past relevant work as a graphic designer (Dictionary
of Occupational Titles (“DOT”) #141.061-018), which is a skilled
(SVP of 7) sedentary job that does not require performance of workrelated activities precluded by her RFC. T.20 (citing 20 C.F.R.
§ 404.1565). The ALJ noted that the job of graphic designer
requires siting at a computer and does not require carrying more
than 20 pounds, and requires sitting for about 6 hours and walking
for about 2 hours, in combination. Id. As the ALJ observed,
Plaintiff admitted at the hearing that the job does not require
reaching above shoulder level. The VE testified that an individual
could be off-task 10 percent of the workday and still perform the
job of graphic designer. Finding the VE’s testimony consistent with
Plaintiff’s testimony and the information provided in the DOT, and
the ALJ accepted the it in accordance with SSR 00-4P. Id.
E.
Step Five
The ALJ determined at step five that, considering Plaintiff’s
age, education, work experience, and RFC, she has acquired work
skills from her past relevant work that are transferable to other
occupations with positions existing in significant numbers in the
national economy. T.21 (citations omitted). The ALJ relied on the
-20-
VE’s testimony about several representative occupations Plaintiff
could
perform
(food
checker,
semi-skilled
and
sedentary;
and
telephone solicitor, semi-skilled and sedentary) with positions
nationally and in the Finger Lakes region of New York. T.21.
Although Plaintiff cannot perform the full range of light work, due
to the limitations imposed by her impairments, the ALJ found that
a finding of “not disabled” was appropriate in light of her age,
education, and transferable work skills. T.22 (citing MedicalVocational Rule 202.22).
V.
Plaintiff’s Contentions
Plaintiff contends that (1) the ALJ’s RFC assessment is
unsupported by substantial evidence because he erred in evaluating
the opinion of treating physician Dr. Buckley; (2) the ALJ’s
credibility determination is unsupported by substantial evidence
because he erred in analyzing the required factors; and (3) the ALJ
erred at step four by posing an incomplete hypothetical question to
the VE. The Court sua sponte finds that the ALJ committed an
additional
error
at
step
two
by
accepting
the
diagnosis and
treatment notes of a social worker over those of the consultative
psychologist.
A.
Error in Determining Under Which Listing to Analyze
Plaintiff’s Mental Impairments
The
ALJ
ignored
the
diagnosis
given
by
consultative
psychologist Dr. Lambert of “[b]ipolar I disorder, predominantly
manic or hypomanic, most recent episode manic/hypomanic.” T.340.
-21-
Instead, the ALJ elected to use the diagnosis of “anxiety disorder,
NOS” provided by Plaintiff’s therapist, Woods, a licensed clinical
social
worker.
Under
the
applicable
regulations,
a
licensed
clinical social worker’s opinion is not considered a “medical
opinion”. Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995) (the
regulations provide that “[m]edical opinions are statements from
physicians and psychologists or other acceptable medical sources
that
reflect
claimant’s
judgments
impairments)
about
the
(citing
20
nature
C.F.R.
and
§
severity”
of
a
404.1527(a)(2)).
Section 404.1513(a) lists five categories of “acceptable medical
sources,” none of which mentions therapists or social workers.
Rather, therapists are expressly listed in a separate section,
under “other sources” whose “[i]nformation . . . may . . . help
[the Commissioner] to understand how [the] impairment affects [the
claimant’s] ability to work.” Id. (citing 20 C.F.R. § 404.1513(e)).
Dr. Lambert’s diagnosis was supported by detailed clinical
findings, and is consistent with observations made by Plaintiff’s
other treating sources and her own reported symptoms. Woods’
diagnosis, in contrast, was conclusory. The ALJ therefore erred in
rejecting
the
well-supported
diagnosis
from
Dr.
Lambert,
an
acceptable medical source, and opting to use the diagnosis given by
Woods. Had the ALJ properly accepted Dr. Lambert’s diagnosis, the
-22-
appropriate listed impairment to use was Listing 12.04 (Affective
disorders).4
After reviewing the entire record, the Court must conclude
that this error nevertheless was harmless because Plaintiff cannot
meet the “paragraph B” criteria of Listing 12.04. In addition to a
diagnosis
of
bipolar
disorder,
Plaintiff
would
have
had
to
demonstrate at least two of the following: marked restriction of
ADLS; marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace; or
repeated episodes of decompensation, each of extended duration. See
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(B)(1)-(4). As noted
above, the ALJ found that Plaintiff had “mild” difficulties in
social functioning and “moderate” difficulties in ADLs. These
findings are supported by substantial evidence; indeed, the record
does not support a finding of “marked” difficulties in either of
these areas.
With regard to concentration, persistence, and pace, the ALJ
found that she has “mild difficulties” in this area. T.14. As
discussed above, this finding is not supported by substantial
4
Listing 12.04 deals with “affective disorders” which are
“[c]haracterized by a disturbance of mood, accompanied by a full or
partial manic or depressive syndrome. . . .” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.04. “Bipolar syndrome with a history of
episodic periods manifested by the full symptomatic picture of both
manic and depressive syndromes (and currently characterized by
either or both syndromes)” can fulfill the first component
(“paragraph A criteria”) of Listing 12.04. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.04(A)(3).
-23-
evidence, in light of consultative psychologist Dr. Lambert’s
report. As with the ALJ’s error in the analysis under Listing
12.06, the Court must conclude that this error is harmless, because
even if Plaintiff’s impairment in concentration, persistence, and
pace were described as “moderate” or even “marked”, Plaintiff still
would not be able to meeting the elements of Listing 12.04(B)
because she does not have a sufficient degree of impairment in the
remaining paragraph B criteria. See, e.g., Ryan v. Astrue, 650 F.
Supp.2d at 217.
B.
Error in Applying the Treating Physician Rule
The
ALJ
did
not
afford
“any
significant
weight,”
T.18
(emphasis in original) to Dr. Buckley’s opinion” that Plaintiff
would miss about 3 days per month from work due to her impairments
or
treatment
for
those
impairments,
finding
it
“not
fully
consistent with the medical evidence of record” and Plaintiff’s own
testimony.
T.18
(citing
Ex.
1F
(T.274-81)).
Dr.
Buckley
is
Plaintiff’s primary care physician, and had been treating Plaintiff
for 10 years at the time he completed his fibromyalgia report
(T.484-87).
Under the “treating physician’s rule,” the ALJ must give
controlling weight to the treating physician’s opinion when the
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other
substantial
evidence
in
-24-
[the]
record.”
20
C.F.R.
§ 404.1527(d)(2). “Although the treating physician rule generally
requires deference to the medical opinion of a claimant’s treating
physician,” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(citation omitted), “the opinion of the treating physician is not
afforded controlling weight where . . . the treating physician
issued opinions that are not consistent with other substantial
evidence in the record. . . .” Id. (citing Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002); 20 C.F.R. § 404.1527(d)(2)).
“An ALJ who refuses to accord controlling weight to the
medical opinion of a treating physician must consider various
‘factors’ to determine how much weight to give to the opinion.”
Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)). These
factors include the evidence in support of the treating physician’s
opinion and the consistency of the opinion with the record as a
whole. Id. The regulations also specify that the Commissioner “will
always give good reasons” for the weight given to the treating
source’s opinion.” Id.
Applying these regulations and principles, the Court concludes
that the ALJ adequately considered Dr. Buckley’s opinion that
Plaintiff
would
impairments
inconsistency
or
miss
3
medical
“with
the
days
of
work
per
appointments,
record
as
month
and
a
due
to
explained
whole.”
20
her
its
C.F.R.
§ 404.1527(d)(4). The ALJ’s finding that there was “nothing in the
record to suggest” that Plaintiff would miss that many days of work
-25-
is not clearly erroneous as Plaintiff reported “that she has never
missed time from work due to her impairments[,]” T.18 (citing
Ex. 1F), and she was presently “working at a part-time, sedentary
job
[i.e., teaching a seniors’ art class and substitute teaching]
with no reported problems[,]” id., in attendance.
However, the ALJ erroneously rejected Dr. Buckley’s estimation
regarding the appropriate lifting restrictions for Plaintiff. The
ALJ cited a statement Plaintiff allegedly made to her orthopedic
surgeon in September 2010, that she “can lift heavy weight but it
gives extra pain”. T.15 (citing Ex. 15F (T.371-87)). This statement
was simply a pre-printed answer checked off on the Oswestry Low
Back Disability Questionnaire; it was not Plaintiff’s description
of her abilities in her own words. In November 2010, she completed
the Oswestry Low Back Disability Questionnaire again and indicated
that pain prevented her from lifting heavy weights. The ALJ deemed
these statements inconsistent, but they both convey essentially the
same thing–that lifting heavy weights is contraindicated because
doing so causes Plaintiff to suffer increased pain. Furthermore,
the
ALJ
neglected
to
mention
that
on
September
20,
2010,
Plaintiff’s orthopedist, Dr. Patel, advised her to avoid lifting
heavy
weights.
T.447.
In
addition,
consultative
physician
Dr. Boehlert stated that even after Plaintiff’s left shoulder
healed from her surgery, she would have moderate limitations in
repetitive use of her left shoulder and in heavy lifting. The ALJ
-26-
declined to give this aspect Dr. Boehlert’s opinion “great weight”
because she was “estimating the claimant’s future limitations
without any evidence to support it.” However, Dr. Boehlert was not
engaging in impermissible speculation but was making a prognosis,
i.e., a physician’s forecast of the probable course and outcome of
a patient’s disorder. See, e.g., Dorland’s Medical Dictionary for
Health
Consumers
(2007).
Indeed,
the
reports
filled
out
by
consultative examiners for the Administration always contain a
section headed, “Prognosis”.
To the extent that the ALJ determined that Plaintiff could
lift and carry up to 20 pounds during the workday, the Court finds
that this is a product of a legal error in that it reflects a
failure to properly apply the treating physician rule, and it is
likewise unsupported by substantial evidence. Dr. Buckley’s opinion
regarding
Plaintiff’s
limitations
in
her
ability
to
lift
is
consistent with the substantial medical and testimonial evidence of
record,
which
indicate
that
Plaintiff
only
can
lift
up
to
10 pounds. This aspect of the ALJ’s RFC cannot stand.
C.
Erroneous Credibility Determination
Plaintiff contends that the ALJ’s credibility determination is
unsupported by substantial evidence because the ALJ erred in
analyzing the required factors when assessing her credibility. As
Plaintiff notes, objective medical evidence is used to establish
the existence of an impairment which “could reasonably be expected
-27-
to
produce
the
pain
or
other
symptoms
alleged.”
42
U.S.C.
§ 423(d)(5)(A). Once the ALJ has found such an underlying medically
determinable impairment, he is required to evaluate the intensity
and
persistence
of
the
claimant’s
symptoms.
See
20
C.F.R.
§§ 404.1529(c)(1). In doing so, several factors must be considered,
including
the
claimant’s
daily
activities
and
the
location,
duration, frequency, and intensity of pain or other symptoms.
20 C.F.R. §§ 404.1529(c)(1)-(3); see also Social Security Ruling
(“SSR”) 96-7p.
First, in regards to Plaintiff’s activities of daily living,
the ALJ stated that Plaintiff “cooks, cleans, washes, [does]
laundry, shops and does some gardening.” T.17. Plaintiff asserts
that the ALJ failed to consider Plaintiff’s testimony that she only
dusted her home once every month; that her father helps her out
around the house a great deal because he has a background in
carpentry; and that when she went shopping, she modified her trips
so that she would not have to carry much weight all at once. T.48.
However, the ALJ is not required to reconcile every piece of
conflicting
evidence
in
the
record.
In
addition,
there
are
statements by Plaintiff in the record that support the ALJ’s
finding. On September 20, 2010, Plaintiff was seen by Dr. Patel in
follow-up, see T.371-74, and reported she could take care of
herself normally, could stand as long as she wanted, could travel
anywhere, and could perform most of her homemaking/job duties,
-28-
although these activities increased her pain. On November 15, 2010,
Plaintiff returned to Chiropractic Orthopedics and reported her
“pain comes and goes and is moderate” and that she “can only do
[her] usual work but no more.” T.438.
Plaintiff also argues that the ALJ erred is discounting her
credibility based on an alleged inconsistency in her testimony
regarding the injury to her left shoulder. According to the ALJ,
Plaintiff testified at the hearing that “she injured her shoulder
in April 2009 while working in the garden shop” but she “told her
treating physical therapist that her injury occurred on September
5, 2009, when she fell off an air mattress.” T.17. This is an
incorrect summary of the record. At the hearing, Plaintiff actually
testified that she had not done any long term substitute teaching
since she hurt her back at the Garden Factory in April of 2009.
See T.41. The ALJ’s recitation of the facts contained in the
credibility assessment must be accurate and contain an explanation
why they undermine the credibility of the witness. E.g., Horan v.
Astrue, 350 F. App’x 483, 484, 2009 WL 3161379, at *1 (2d Cir.
Oct. 2, 2009). However, because there is substantial evidence
supporting the remainder of the credibility analysis, the ALJ’s
misstatement as to when Plaintiff recalled injuring her shoulder is
harmless and does not affect the outcome of the case. See Barringer
v. Commissioner of Soc. Sec., 358 F. Supp.2d 67, 83 n. 26 (N.D.N.Y.
2005) (noting that an ALJ’s incorrect rendition of facts in the
-29-
record is nothing more than harmless error where his credibility
assessment is amply supported by other substantial evidence); see
also Campbell v. Astrue, 713 F. Supp.2d 129, 141 (N.D.N.Y. 2010)
(similar).
D.
Erroneous Reliance on an Incomplete Hypothetical
Plaintiff argues that the ALJ erred at step four by relying on
testimony
elicited from
the
VE
in
response to
an incomplete
hypothetical question. Plaintiff contends that due to errors in
determining her RFC and assessing her credibility, the ALJ’s
“hypothetical question was an incomplete and inaccurate portrayal
of [her] limitations. . . .” Plaintiff’s Memorandum of Law at 23
(citing DeLeon v. Secretary of Health and Human Servs., 734 F.2d
930, 936 (2d Cir. 1984). However, Plaintiff does not indicate what
additional
limitations
the
ALJ
should
have
included
in
the
hypothetical. The Court interprets Plaintiff’s brief as suggesting
that the ALJ erred in declining to accept the VE’s testimony, in
response to a hypothetical posed by her attorney, that a person
would not be able to perform any work if, in addition to the
limitations contained in the ALJ’s RFC determination, she would
miss 2 days of work per month or were off-task 20 percent of the
workday.
Plaintiff
T.74.
would
Plaintiff
miss
3
notes
days
that
of
Dr.
work
Buckley
per
month
opined
due
to
that
her
impairments, and that her pain would be severe enough to constantly
-30-
interfere
with
her
ability
to
maintain
the
attention
and
concentration necessary to perform even simple work tasks. T.485.
As noted above, the ALJ determined that Dr. Buckley’s opinion
regarding Plaintiff’s missed work days was unsupported by the
record and Plaintiff’s own statements about her activities. After
reviewing the record, the Court cannot say that this finding is
unsupported by substantial evidence for the reasons discussed
above. Likewise, Dr. Buckley’s opinion that her attention and
concentration
contradicted
would
by
be
constantly
Plaintiff’s
own
interrupted
statements.
In
by
pain
is
particular,
Plaintiff told consultative psychologist Dr. Lambert that she
routinely spends 8 to 12 hours on the computer doing graphic design
activities, T.338, which is essentially her past relevant work.
Accordingly, the Court cannot find that the Commissioner committed
legal error at step four.
VI.
Conclusion
For the foregoing reasons, the Commissioner’s finding that
Plaintiff can regularly lift up to 20 pounds is reversed because it
is not based on substantial evidence and is the product of legal
error. Notwithstanding this conclusion, the Court finds that there
is substantial evidence in the record to support the Commissioner’s
findings that Plaintiff’s impairments or combination of impairments
do not meet or medically equal a listed impairment. In addition,
there is substantial evidence in the record to support a finding
-31-
that Plaintiff has the RFC to perform sedentary work as defined in
the regulations, and that there are jobs in the national and
regional economies, including Plaintiff’s past relevant work of
graphic designer, that she can perform. Accordingly, the Court
concurs with the Commissioner’s ultimate conclusion that Plaintiff
is not disabled within the meaning of the Act, and the remainder of
the Commissioner’s decision (apart from the lifting restriction) is
affirmed.
Plaintiff’s motion for judgment on the pleadings (Dkt #12)
therefore is granted in part and denied in part. Defendant’s motion
for judgment on the pleadings (Dkt #9) likewise is granted in part
and denied in part. The Clerk of the Court is requested to close
this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
October 30, 2013
Rochester, New York
-32-
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