Stagnitta v. Astrue

Filing 11

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 6 Commissioner's Motion for Judgment on the Pleadings; denying 7 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/11/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DIANA E. STAGNITTA,
DECISION AND ORDER
No. 13-CV-6028(MAT)

Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION

Plaintiff, Diana E. Stagnitta (“Plaintiff” or “Stagnitta”),
brings this action pursuant to 42 U.S.C. § 405(g) of the Social
Security Act, claiming that the Commissioner of Social Security
(“Commissioner” or “Defendant”) improperly denied her application
for Disability Insurance Benefits (“DIB”).
Currently 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, I grant

the Commissioner’s motion, deny the Plaintiff’s cross-motion, and
dismiss the Complaint.
PROCEDURAL HISTORY
On January 27, 2010, Plaintiff filed an application for DIB,
alleging disability as of March 2, 1985 (which was later amended to
December 31, 2002 and then May 31, 2008), which was denied.
Administrative Transcript [T.] 37, 63-64, 98-100, 126, 129.

On

July 1, 2011, an administrative hearing was conducted before

administrative law judge (“ALJ”) Ramon E. Quinones, at which
Plaintiff, who was represented by counsel, testified.

T. 34-54.

On July 22, 2011, the ALJ issued a decision finding that Plaintiff
was not disabled from December 31, 2002 through July 22, 2011.
T.

20-33.
The Appeals Councils denied Plaintiff’s request for review,

making the ALJ’s Decision the final decision of the Commissioner.
T. 1-6.

This action followed.
FACTUAL BACKGROUND

Plaintiff’s Mental Health History
Plaintiff treated with psychiatrist Tulio R. Ortego, M.D. from
approximately 2003 to 2011.

T. 359-366, 369-380.

Treatment notes

from 2004 show that Plaintiff was taking Lithium, Seroquel, Zoloft,
Protonix, and Synthroid, and that she was mildly depressed due to
postpartum stress.

T. 369-380.

Dr. Ortego’s treatment notes from

November 2005, May 2006, and November 2007 show no evidence of
psychosis.

T. 370-374.

In September 2008, Plaintiff met with Dr. Ortego, who noted
that Plaintiff’s motor activity was decreased, her speech was
spontaneous and she was talkative, although her thought processes
remained organized, her content was goal-directed, her mood was
full range, her affect was congruent, and her insight, judgment and
concentration were fair.

T. 368.

Dr. Ortego noted that Plaintiff

was doing well and prescribed her Lithium and Zoloft.

-2-

T. 368.

In December 2008, Plaintiff met with Dr. Ortego to discuss her
concerns that her Lithium medication may be having an effect on her
physical health.
prescription

of

T.

367.

Zoloft,

prescribed Depakote.

Dr.

Ortego

decreased

her

continued
supply

of

Plaintiff’s
Lithium

and

He noted that Plaintiff was doing well and

she showed no acute signs or symptoms of mania, depression or
psychosis.

T. 367.

Plaintiff continued to see Dr. Ortego throughout 2009, and his
clinical findings remained fairly consistent and the same as prior
visits.

T. 359-366.

In May 2010, Dr. Ortega completed a treatment summary report
in which he identified Plaintiff’s treating diagnosis as bipolar
disorder, manic with psychosis.

T. 313, 356.

He noted that

Plaintiff’s symptoms included mood swings, poor impulse control,
delusional thinking, poor sleep, racing thoughts and pressured
speech, poor insight and increased aggressiveness.

T. 356.

He

noted that Plaintiff was doing well on the medications he had
prescribed for her and assessed her prognosis as fair to poor with
treatment

and

medication.

Plaintiff

was

“unable

to

T.

314.

work”

and

Dr.

Ortego

checked

boxes

opined
on

a

that
form

indicating that Plaintiff was limited in sustaining concentration
and persistence, social interaction, and adaptation.

T. 318.

Plaintiff met with Dr. Ortego in June and July 2010, and
Dr. Ortego noted that Plaintiff had no gross symptoms or signs, but
was mildly labile. T. 354-355.

Plaintiff also met with Dr. Ortego

-3-

in April 2011, at which time Plaintiff was preoccupied with the
death of a relative.

T. 352.

Plaintiff also met with Dr. Ortego

in May of 2011, at which time she indicated she was feeling alright
and denied
T. 350.

any

acute

signs,

symptoms, mania

or

mood

swings.

Dr. Ortego prescribed Seroquel, Zoloft, and Lithium and

noted that Plaintiff’s affect was full, that she demonstrated good
range of emotion, and had no problems expressing herself.

T. 350.

Plaintiff’s Physical Health History
In March 2008, Anthony Ragusa, M.D., internal medicine, began
treating Plaintiff at Greater Rochester Internal Medicine.

His

initial assessment was hypothyroidism, obesity, bipolar disorder,
and gastroesophageal reflux disease.

T. 212.

In April 2008, Plaintiff underwent a thyroid ultrasound which
showed a complex cyst in her left thyroid lobe and was otherwise
normal.

T. 231.

In October 2008, Dr. Ragusa referred Plaintiff to Krishnajua
Rajamani,

M.D.

for

further

assessment

of

Plaintiff’s

thyroid

abnormality and for her complaints of fatigue and voice hoarseness.
T. 242-243.

Plaintiff underwent a parathyroid scan, which was

positive for a functioning parathyroid nodule in the left lobe.
T. 235.
In November 2008, after complaining to Dr. Ragusa of low back
and right leg pain, she underwent imaging of her lumbosacral spine

-4-

and

right

leg.

The

test

of

her

spine

revealed

degeneration, and the right leg test was normal.

mild

disc

T. 236-237.

In February 2009, Dr. Rajamani confirmed a diagnosis of
primary hyperparathyroidism in a report to Dr. Ragusa based on lab
results of elevated parathyroid hormone level, mildly elevated TSH
levels, and the results of the parathyroid scan.

T. 244.

In June 2009, Dr. Rajamani ordered a neck ultrasound, which
showed that the thyroid was unremarkable.
fine

needed

aspiration,

however,

showed

An ultrasound guided
a

left-sided

nodule.

T. 239, 240. Dr. Rajamani referred Plaintiff to Nagendra Nadaraja,
M.D. for further assessment of Plaintiff’s thyroid condition.
T. 247, 303.
In September 2009, Dr. Nadaraja performed an exploration of
the neck and a parathyroidectomy and found no identifiable issues.
T.

205-207,

339-342.

otolaryngologist
hoarseness.

for

T. 249.

Dr.

Nadaraja

Plaintiff’s

referred
continued

Plaintiff

to

complaints

an
of

On October 26, 2009, Plaintiff saw Michael

Haben, M.D. who noted evidence of left-sided recurrent laryngeal
nerve neuropraxis causing voice deficits, but noted that Plaintiff
should recover.

T. 250-251.

Also in October, Plaintiff met with

Dr. Rajamani, who reported that Plaintiff’s voice had improved, she
had no difficulty breathing, her lab results were normal, and that
her hypercalcemia had resolved following the parathyroidectomy.
T. 254.

-5-

In December 2009, Plaintiff saw John U. Coniglio, M.D. at the
Head and Neck Center in Rochester, New York.

T. 255-259, 325-328.

Dr. Coniglio performed a vocal fold injection, and, at a follow-up
in January 2010, Plaintiff reported no voice complaints.

T. 259.

At a subsequent follow-up in April 2010, Dr. Coniglio reported that
Plaintiff’s voice was good and there was good compensation of the
vocal fold.

T. 344.

In May 2010, Dr. Coniglio completed a

treatment summary report, in which he reported a diagnosis for
Plaintiff of left vocal cord palsy with slight voice impairment,
and checked a box indicating that there were no other conditions
significant to Plaintiff’s recovery.
From

December

2009

to

March

T. 323.
2010,

Plaintiff

met

with

Dr. Rajamani, and reports from that period show that Plaintiff was
doing well, her voice had recovered, she was alert and oriented and
she had no signs of dizziness or emotional disturbances, and her
hypothyroidism was stable.

T. 193, 196.

During this same time

period, Plaintiff also met with Dr. Nadaraja.

T. 337-338.

By mid-

December 2010, Plaintiff reported that her voice was stronger, and
by February 2010, Plaintiff’s voice was almost back to normal.
T. 335.
In

March

2010,

upon

the

Agency’s

request,

Dr.

Nadaraja

completed a functional limitation assessment form, but was unable
to establish if Plaintiff had any limitations to perform workrelated activities.

T. 198-207.

-6-

In August 2010, Dr. Rajamani reported that Plaintiff was
feeling well, her voice had improved and there were no nodules
palpable in the neck.

T. 347.

In August and again in November

2010 and February 2011, Dr. Rajamani noted that Plaintiff’s lab
results were normal, except for elevated parathyroid hormone level,
which he opined could possibly be due to her Lithium medication.
T. 345-347.
In October 2010, Dr. Coniglio performed a videostroboscopy of
Plaintiff’s neck and concluded that no further injections were
needed since the left recurrent laryngeal nerve was reinnervating.
T. 343.
Consultative Examinations
In April 2010, Kavitha Finnity, Ph.D. performed a consultative
examination of Plaintiff.
Plaintiff

reported

having

treatment in the past.
assessed

that

T. 262-266.
been

T. 262.

Plaintiff

could

Dr. Finnity noted that

hospitalized

for

psychiatric

Upon examination, Dr. Finnity
follow

and

understand

simple

directions and instructions and perform simple tasks, and could
maintain attention, concentration and a work schedule.

T. 262.

She also opined that Plaintiff could learn new tasks and perform
complex tasks, and make appropriate decisions.

Dr. Finnity opined

that Plaintiff had some difficulty relating to others and dealing
with stress.

She assessed bipolar disorder.

T. 264.

Also in April 2010, Z. Matta, M.D. performed a consultative
review

of

the

medical

evidence
-7-

in

the

record.

T.

267-284.

Dr. Matta completed a Psychiatric Review Technique Form, and
assessed

Plaintiff’s mental status.

T. 267.

Dr. Matta assessed

that Plaintiff was mildly limited in performing activities of daily
living and maintaining concentration, persistence or pace, was
moderately limited in social functioning, and had not experienced
repeated episodes of deterioration, each of extended duration.
T. 277.

Dr. Matta found that Plaintiff was not significantly

limited in any of the mental activities related to understanding
and

memory,

sustained

concentration

interaction and adaption.

T. 281-282.

and

persistence,

social

Dr. Matta opined that

Plaintiff appeared capable of performing all tasks necessary for
vocational functioning.

T. 283.

Plaintiff’s Testimony
Plaintiff testified that she was born in 1958, and attended
two years of college.

T. 98, 129, 174, 28, 134.

She previously

worked as a part-time daycare worker and also worked “off the
books” for her husband’s cabinet-making business assisting with
bookkeeping,

bill

collecting

and

paying

bills.

T.

28-39.

Plaintiff testified that she did not have any difficulties working
outside her home, but that she liked being home more.

T. 40.

She

testified that she was a shy person, and was fine when she went
outside of her home except that she would get nervous.

T. 40.

Plaintiff testified that she currently saw Dr. Ortego for
medication management and treatment of her bipolar disorder.

She

testified that prior to seeing Dr. Ortego, she had treated with
-8-

Dr. Geral Gruma for her bipolar disorder.

T. 40-41, 49-51.

She

testified further that, at times, she would get “real hyper” and
talk to much and be on a “big high.”

T. 41.

She also testified

that her bipolar condition causes her fatigue during the daytime,
and therefore lays down daily.

T. 46-47.

She claimed that when

she lost her voice for several months in 2009, she was in a manic
state.

T. 44-45.

According to her, her bipolar symptoms subsided

when she was prescribed the medication Seroquel.

T. 43-44.

She

also stated that since she had started taking Seroquel, her moods
were stable.
experienced
remember.

T. 42.

When asked by the ALJ the last time she

depression,

Plaintiff

stated

that

she

could

not

T. 42.

Plaintiff testified that she did not believe she could work
full time because she could not balance her home life with her work
life.

T. 43.

She testified that she could do the work she did for

her husband’s business anytime during the day despite her habit of
sleeping.

T. 46-48.

Plaintiff testified that “the meds” she takes limit her
ability to work on a full-time basis.

T. 48.

She explained that

she sometimes takes a sleeping pill when she cannot sleep, and, if
she takes the sleeping pill too late, she is “out of it” in the
morning.

T. 48.

Plaintiff testified that she lived with her husband and two of
her three sons.
drives.

T. 50.

Plaintiff has a driver’s license and

T. 52.

-9-

DISCUSSION
I. Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405 (g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g)(2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)); see also Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121, 149 (1997).
When

determining whether

the

Commissioner’s

findings

are

supported by substantial evidence, the Court’s task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.”

Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)).
limits

the

scope

of

the

Court’s

-10-

review

to

Section 405 (g)
two

inquiries:

determining whether the Commissioner’s findings were supported by
substantial evidence in the record as a whole, and whether the
Commissioner’s
standard.

conclusions

are

based

upon

an

erroneous

legal

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.

2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing
court does not try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir. 1988).

A party’s motion will be dismissed if, after a

review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).
II.

The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence in the Record
The Social Security Administration has promulgated a five-step

sequential analysis that the ALJ must adhere to for evaluating
disability claims.

20 C.F.R. § 404.1520.

Pursuant to this

inquiry:
First, the Commissioner considers whether the
claimant is currently engaged in substantial
gainful
activity.
If
he
is
not,
the
Commissioner considers whether the claimant
has a “severe impairment” which significantly
limits his ability to do basic work activity.
If the claimant has such an impairment, the
Commissioner considers whether, based solely
on medical evidence, the claimant has an
-11-

impairment which is listed in Appendix 1,
Part 404, Subpart P. If the claimant does not
have a listed impairment, the Commissioner
inquires whether, despite the claimant's
impairment, he has the residual functional
capacity to perform his past work. If he is
unable
to
perform
his
past work,
the
Commissioner determines whether there is other
work which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 466-67 (2d Cir. 1982).
The

ALJ

in

this

case

used

this

sequential

procedure

to

determine Plaintiff’s eligibility for disability benefits. The ALJ
first found that Plaintiff did not engage in substantial gainful
activity since December 31, 2002, the alleged onset date.
the

ALJ

found

that

Plaintiff

had

the

medically

Next,

determinable

impairment of depressive disorder, but that Plaintiff did not have
an impairment or combination of impairments that has significantly
limited her ability to perform basic work-related activities for
12 consecutive months and therefore Plaintiff does not have a
severe

impairment

or

combination

of

impairments.

T.

25-28.

Therefore, the ALJ ended his analysis and concluded that Plaintiff
had not been disabled, as defined in the Act, during the relevant
time period.

T. 30

In the instant proceeding, Plaintiff argues that: (1) the ALJ
erred in failing to recognize or evaluate Plaintiff’s multiple
medically determinable impairments; and (2) the ALJ erred in his
assertion

that

impairment.

Plaintiff’s

mental

disorder

was

not

a

severe

Pl’s Mem. of Law (Dkt. No. 8) at Points I-II.

The

Commissioner asserts that the decision of the ALJ is not erroneous

-12-

as a matter of law and is supported by substantial evidence.

Def’s

Mem. of Law (Dkt. No. 6-1).

A.

The ALJ Properly Assessed Plaintiff’s Impairments

Plaintiff first contends that the ALJ erred in failing to
recognize

or

evaluate

her

“multiple

medically

determinable

impairments,” namely her hyperparathyroidism, her bipolar disorder,
and her degenerative disc/joint disease in her low back.

Dkt.

No. 8 at 6-9.
At step two of the sequential evaluation process, an ALJ must
determine if a claimant has a medically determinable impairment and
whether that impairment is “severe” such that it significantly
limits the claimant’s physical or mental ability to do basic work
activities.

An impairment is “not severe” when medical and other

evidence establish a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an
individual’s ability to work.

See 20 C.F.R. § 416.921(a); Social

Security Ruling (“SSR”) 96-3p, 1996 SSR LEXIS 10 at *3, 1996 WL
374181, at *1 (July 2, 1996).
In this case, the ALJ determined that Plaintiff had the
medically determinable impairment of depressive disorder.

T. 25.

Although Plaintiff did not expressly allege disability based on
such an impairment, the ALJ appears to have made this finding based
on the evidence in the record related to Plaintiff’s bipolar

-13-

condition and her related mental health treatment with Dr. Ortego
since 2003.
As Plaintiff correctly points, the ALJ made no explicit
finding

whether

Plaintiff’s

thyroid

condition,

her

bipolar

disorder, and her degenerative disc/joint disease in her low back
were medically determinable impairments in his decision before he
concluded

that

“[Plaintiff]

does

not

have

an

impairment

or

combination of impairments that has significantly limited . . . the
ability to perform basic work-related activities for 12 months;
therefore, the [Plaintiff] does not have a severe impairment or
combination of impairments.”

T. 25.

Despite the ALJ’s failure to

expressly make such a “threshold” finding, he did engage in a
lengthy, detailed discussion of Plaintiff’s mental and physical
health history –- including Plaintiff’s thyroid condition and her
bipolar disorder -- and compared same to Plaintiff’s symptoms.
T. 25-28.
With

respect

to

Plaintiff’s

thyroid

condition,

the

ALJ

acknowledged that Plaintiff had suffered from hyperparathyroidism
since 2008, and that she underwent thyroid surgery in 2009.

T. 27-

28. However, the ALJ also noted that the surgery she received with
respect

thereto

symptoms.

was

“generally

successful”

in

relieving

her

He pointed out that progress notes from Dr. Nadajara

post-thyroid surgery show that Plaintiff was feeling well and
looked well, her voice was stronger, and that her hypothyroidism
stabilized. T. 27-28, 335-338. Further, the ALJ pointed out that,

-14-

on a standard assessment form dated March 2010, Dr. Nadajara
indicated that she could not provide a medical opinion regarding
Plaintiff’s ability to do work-related activities.
The

ALJ

also

took

into

account

that

Dr.

John

T. 28, 203.
Coniglio,

who

evaluated Plaintiff post-surgery in April 2010 and completed a
Medical Source Statement in May 2010, reported no complications or
limitations from the thyroid surgery except for “some mild/slight
dysphonia.”

T. 28, 230-232, 344.

Further, the ALJ noted that

Plaintiff’s primary care physician, Dr. Anthony Ragusa, could not
establish any limitation in regard to Plaintiff’s ability to
perform work.

T. 28, 208-261.

Thus, the ALJ properly evaluated

Plaintiff’s thyroid condition, and determined that it was not
severe.
Similarly, the ALJ also discussed Plaintiff’s mental health,
including her bipolar disorder, and acknowledged that Plaintiff
received mental health treatment from Dr. Ortego since 2003.
Because the ALJ determined that Plaintiff suffered from a medically
determinable mental impairment, he properly employed the “special
technique,” pursuant to 20 C.F.R. § 404.1520a, to evaluate the
severity of Plaintiff’s mental impairment.
Pursuant to the “special technique,” once an ALJ identifies a
mental impairment, the ALJ must then “rate the degree of functional
limitation resulting from the impairment(s)” according to four
broad functional areas: (1) activities of daily living; (2) social
functioning;

(3)

concentration,

-15-

persistence,

or

pace;

and

(4) episodes of decompensation. Id. at § 404.1520a(c)(3); see also
Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir. 2008).

If the ALJ

finds the degree of limitation in each of the first three areas as
“mild” or better, and the hearing officer is unable to identify any
episodes of decompensation, then the hearing officer generally
should conclude that the claimant’s mental impairment is not
severe. 20 C.F.R. § 404.1520a(d)(1).
Here, the ALJ complied with the “special technique” and
assessed Plaintiff’s mental impairment in the four functional
areas.

With respect to the first area of activities of daily

living, the ALJ noted that Plaintiff reported being able to cook,
clean, do laundry and go shopping, and that she was able to take
care of her own personal hygiene, listen to music and to read.
T. 29, 163-173, 264.
With

respect

to

social

functioning,

the

ALJ

noted

that

Plaintiff reported being to able to drive, go to the store alone,
that she had friends, and enjoyed socializing.

T. 29, 264.

The

ALJ also pointed out that Plaintiff had “no difficulty relating to
the medical examiners,” (T. 29) as evidenced by the opinion of
consultative psychiatric examiner Dr. Finnity who reported that
Plaintiff’s “manner of relating was adequate.”

T. 264.

In

conducting her mental status examination, Dr. Finnity also noted
that Plaintiff’s “eye contact was normal,” her “speech was fluent,”
her thought processes were “coherent and goal directed,” her affect
was “of full range and appropriate to speech and thought content,”

-16-

her

mood

was

“neutral,”

her

sensorium

was

“clear,”

she

was

oriented, her attention was intact, her recent and remote memory
skills were intact, her cognitive functioning was “average,” and
her insight and judgment were fair. T. 29, 263-264. Additionally,
the ALJ noted that Plaintiff had no difficulty relating to him
during the Administrative hearing.
Accordingly,

the

ALJ

T. 29.

determined

that

Plaintiff

had

“no

limitation” with respect to the first two areas of functioning.
With respect to concentration, persistence or pace, the ALJ
noted the multiple activities of daily living that Plaintiff stated
she was able to do.

T. 163-173, 264.

The ALJ pointed out that,

although Plaintiff alleged having some difficulties, she “followed
well

and

meaningfully

hearing.”
provider

T. 29.
of

participated

in

the

[administrative]

The ALJ also pointed out that she was the sole

information

at

her

consultative

followed all the instructions given to her.

evaluations

and

T. 29, 263-264, 277.

Additionally, he noted Plaintiff’s ability to do crossword puzzles
and play scrabble, two activities that require “great memory
skills.”

T. 29, 264.

Accordingly, he found “mild limitations” in

this areas.
With respect to the fourth area of functioning, the Social
Security regulations define an episode of “decompensation” as an
“exacerbation[]

or

temporary

increase[]

in

symptoms

accompanied by a loss of adaptive functioning.”

-17-

or

signs

20 C.F.R. Pt.

§ 404.1520a, App. at § 12.00C(4).

“The term repeated episodes of

decompensation, each of extended duration,” as evaluated for the
fourth functional area of the “special technique,” means three
episodes of decompensation within one year, “each lasting for at
least [two] weeks.”

Id.

As noted by the ALJ, the record was

devoid of evidence showing significant alteration in Plaintiff’s
medication or the need for a more structured psychological support
system.

T. 29.

Plaintiff now claims that the ALJ failed to take

into consideration her “history of psychiatric hospitalizations” in
arriving at his determination in this area.

Dkt. No. 8 at 14.

However, the record reflects that, during the relevant time period,
Plaintiff was only hospitalized once in 2003 for 11 days for her
bipolar disorder.

T. 386-392.

Moreover, it was noted at that time

that Plaintiff “functioned quite well,” and that it was “on rare
occasion” that Plaintiff became “hypomaniac and medication noncompliant.” T. 387. Further, the attending physician at Rochester
General Hospital at that time, noted that “soon into her hospital
stay, [Plaintiff] re-equilibrated in a reasonably rapid time” and
“appeared to have returned to her baseline status.”

T. 387.

Further, the attending physician noted that Plaintiff “left the
hospital in significantly improved status on a regimen of” various
medications.

T. 388.

And, for the time period relevant to this

action, the record contains no additional hospitalizations and/or
reports of suddenly increased symptoms.

-18-

T. 388.

Accordingly, the

ALJ

correctly

determined

that

Plaintiff

had

experienced

“no

episodes of decompensation, which have been of extended duration”
within the meaning of the Regulations.
Because the ALJ assessed the degree of limitation in each of
the first three areas as “mild” or better, and he was unable to
identify

any

episodes

of

decompensation,

which

have

been

of

extended duration, he properly concluded that Plaintiff’s mental
impairment was not severe. 20 C.F.R. § 404.1520a(d)(1).
Finally, with respect to Plaintiff’s degenerative disc/joint
disease in her low back, Plaintiff faults the ALJ for failing to
address this impairment altogether in his decision.

Indeed, the

ALJ made not mention of this alleged impairment whatsoever in his
decision.

However, a review of the record reflects that this

alleged impairment is only present in the form of one diagnostic
test performed in 2008 on Plaintiff’s spine, which resulted in some
mild

findings

but

was

otherwise

unremarkable.

T.

236-237.

Further, the record is devoid of evidence suggesting any limitation
resulted from an impairment related to Plaintiff’s low back. Thus,
the ALJ properly evaluated the evidence in the record with respect
to this particular alleged impairment.
Accordingly, the Court finds that the ALJ’s assessment of the
impairments in the record and his related severity determination at
Step 2 of the analysis is supported by substantial evidence in the
record.

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B.

The ALJ Properly Weighed the Opinions in the Record

Next, Plaintiff argues that, in arriving at his determination
that her mental impairment was not severe, the ALJ failed to give
controlling

evidentiary

weight

to

treating

psychiatrist

Dr. Ortego’s medical opinion, or to explain why he did not do so.
Dkt. No. 8 at 11-13.
Indeed, as Plaintiff points out, the law gives “special
evidentiary weight” to the opinion of a treating physician.

Clark

v.

1998)

Comm’r

of

(discussing

Soc.
20

Sec.,

C.F.R.

143
§§

F.3d

115,

118

(2d

404.1527(d)(2),

Cir.

416.927(d)(2)).

Specifically, if the ALJ finds that “a treating source’s opinion on
the

issue(s)

of

the

nature

and

severity

of

[Plaintiff’s]

impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record,” the opinion
has

controlling

weight.

20

C.F.R.

§§

404.1527(d)(2),

416.927(d)(2). If a treating physician’s opinion is not given
controlling weight, the ALJ must apply the following factors:
“(i) the frequency of examination and the length, nature, and
extent of the treatment relationship; (ii) the evidence in support
of the opinion; (iii) the opinion’s consistency with the record as
a whole; (iv) whether the opinion is from a specialist; and
(v) other relevant factors.”

Schaal v. Apfel, 134 F.3d 496, 503

(2d Cir. 1998); 20 C.F.R. § 404.1527(d).

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Here, contrary to Plaintiff’s contentions, the ALJ complied
with these principles and properly afforded Dr. Ortego’s statements
“little weight” because they were inconsistent in certain respects
with his own progress notes.
out

that

Dr.

Ortego’s

T. 28.

report

of

Specifically, the ALJ pointed
May

18,

2010

assessed

that

Plaintiff suffered from a bipolar disorder, accompanied by poor
impulse control, poor sleep, mood swings, racing thoughts and
increased aggressiveness.

T. 28, 313.

However, on page 3 of this

same report, Dr. Ortego stated that Plaintiff was doing very well
with treatment in that her affect, mood, attention, memory and
ability to perform calculations were good.

T. 316.

Further, the

ALJ noted that while Dr. Ortego indicated that Plaintiff had the
capacity

to

handle

her

own

funds,

he

also

indicated

that

Plaintiff’s ability to function in a work setting was “poor, unable
to work.”

T. 28, 317.

Accordingly, the Court finds that the ALJ

properly evaluated the opinion of treating psychiatrist Dr. Ortego.
Plaintiff also asserts that the ALJ failed to give proper
weight to the consultative examinations of Drs. Finnity and Mata.
Dkt. No. 8 at 14-15.

However, as set forth above, the ALJ properly

took into consideration the opinions of Drs. Finnity and Mata -- to
the extent their opinions were persuasive and consistent with the
record

as

limitation

a

whole

areas

of

–-

when

his

considering

severity

Plaintiff’s mental impairment.

the

analysis

four
with

functional
respect

to

See, e.g., Veino v. Barnhart, 312

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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, 134 F.3d at 504

(“It is for the SSA, and not this court, to weigh the conflicting
evidence in the record.”).
Moreover, there is no merit to Plaintiff’s particular argument
that the ALJ failed to give proper consideration to the opinion of
Dr. Mata who opined that Plaintiff’s mental impairment caused
moderate limitations in social functioning and mild limitations in
performing

activities

of

daily

concentration, persistence or pace.
case,

the

ALJ

properly

living,

and

maintaining

Dkt. No. 8 at 14-15.

discounted

Dr.

Mata’s

In this

assessment

of

Plaintiff’s functional mental limitations based on its nature as a
form report (i.e., a form with checked boxes) unaccompanied by any
explanation or detail regarding her conclusion.

T. 277.

See,

e.g., Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (terming
form reports “weak evidence at best”);
251, 253

(9th

rejected”

three

Cir.

1996)

(holding

psychological

Crane v. Shalala, 76 F.3d
that the

evaluations

ALJ

“permissibly

“because

they

were

check-off 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
entitled to little weight and do not constitute ‘substantial
evidence’ on the record as a whole.”).

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Therefore, I find that the ALJ appropriately considered the
medical opinions in the record and his decision in which he finds
the Plaintiff was not disabled from December 31, 2010 to July 22,
2011 is supported by substantial evidence in the record.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted, the Plaintiff’s cross-motion is denied, and the Complaint
is dismissed in its entirety with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 11, 2014
Rochester, New York

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