Scott v. Colvin
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner'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 6/23/14. (JMC)
62UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
JANE LOUISE SCOTT,
DECISION AND ORDER
No. 13-CV-6277(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Plaintiff, Jane Louise Scott (“Plaintiff” or “Scott”), brings
this action under Title XVI of the Social Security Act (“the Act”),
claiming that the Commissioner of Social Security (“Commissioner”
or “Defendant”) improperly denied her application for Supplemental
Security Income (“SSI”).
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 motion, and dismiss
the Complaint.
PROCEDURAL HISTORY
On March 12, 2010, Plaintiff filed an application for SSI,
alleging
disability
as
of
June
13,
2009,
Administrative Transcript [T.] 65-67, 171-181.
which
was
denied.
A hearing was held
on October 12, 2011 before administrative law judge (“ALJ”) John P.
Costello, at which Plaintiff, with a non-attorney representative,
appeared and testified, as did a vocational expert (“VE”).
63.
T. 29-
On October 26, 2011, the ALJ issued a decision finding that
Plaintiff was not disabled from March 12, 2010 to October 26, 2011.
T. 10-21.
On April 3, 2013, the Appeals Councils granted Plaintiff’s
request for review, and adopted the findings and conclusions of the
ALJ, making the decision of the Appeals Council the final decision
of the Commissioner.
T. 4-17, 166-170.
This action followed.
FACTUAL BACKGROUND
Plaintiff,
testified
that
who
was
age
she
receives
45
at
the
financial
time
of
the
assistance
hearing,
from
Services and lives with her two sons, ages 27 and 16.
Social
T. 32-33.
Plaintiff testified she is unable to work because of various
physical and mental health problems, but that her mental problem is
worse.
T. 34.
Medical Evidence Before March 12, 2010
Plaintiff received outpatient mental health treatment in 2008
and 2009 at St. Mary’s Mental Health Outpatient Clinic (“St.
Mary’s”).
T. 261-286.
diagnosed
with
bipolar
Treatment notes show that Plaintiff was
disorder,
cocaine
dependence
in
full
remission, alcohol dependence, and cannabis dependence in early
remission.
T. 262.
She was prescribed various psychotropic
medications from her primary care physician.
In
performed
May
a
2009,
mental
psychologist
consultative
-2-
Maryanne
T. 286.
G.
examination.
Hamilton,
T.
Ph.D.
296-300.
Dr. Hamilton diagnosed Plaintiff with bipolar disorder, panic
disorder, cocaine
dependence in early remission, cannabis abuse,
and alcohol dependence in remission.
T. 298-299.
She noted that
Plaintiff’s cognitive functioning was average and assessed that
Plaintiff could follow and understand simple directions, perform
simple
tasks
concentration.
independently,
and
maintain
attention
and
T. 298.
Also in May 2009, Karl Eurenius, M.D. diagnosed Plaintiff with
chronic low back pain with some neuropathic symptoms, bilateral
knee pain, substance abuse, and diet-controlled diabetes mellitus.
T. 304.
According to Dr. Eurenius, Plaintiff was “moderately
limited in walking more than [a] 1/4 of a mile, climbing more than
1 flight of stairs, bending, lifting more than ten pounds, carrying
more than ten pounds, or kneeling due to a combination of chronic
knee and back pain.”
T. 304.
In June 2009, State Agency psychologist M. Morog reviewed the
evidence in the file and concluded that, “[w]hen the record is
considered as a whole, the claimant merits a severe psychiatric
diagnosis that causes mild to moderate impairment in adaptive and
functional abilities.”
Dr. Morog predicted that with ongoing
treatment, Plaintiff’s symptoms would improve.
T. 321.
In J
une
and July 2009, Plaintiff was seen at Unity Family Medicine at
St. Mary’s, complaining of high blood pressure in June and nasal
and chest congestion in July. No significant findings were made at
either visit.
T. 440-445.
-3-
From October 2009 to February 2010, Plaintiff was seen at
Westside Health Services for, among other things, leg and back
pain. In October, she was diagnosed with hypertension, anxiety and
myalgia.
T.
358-359.
In
November,
she
was
diagnosed
with
hypertension, peripheral neuropathy, tinea corporis, and insomnia.
T. 361-362.
In February 2010, Plaintiff complained of continued
back pain and a possible kidney infection.
T. 348-349.
Upon
examination, Plaintiff was diagnosed with low back pain and was
given pain medication.
T. 348-349.
Medical Evidence from March 12, 2010 to October 26, 2011
On March 22, 2010, Plaintiff was seen at Westside for a sleep
prescription
improved.
refill,
T.
346.
reporting
that
Plaintiff
was
her
lower
back
pain
had
diagnosed
with
insomnia,
peripheral neuropathy, and hypertension and advised to follow-up in
four weeks.
T. 346-347.
On July 7, 2010, Plaintiff was seen at St. Mary’s by LMSW Mary
L. LoVerdi, complaining of anxiety, panic attacks, paranoia, and
mood swings.
T. 374-382.
LoVerdi noted that Plaintiff had a
history of anger management and that Plaintiff “chose jail instead
of anger management group.”
T. 381.
She reported that Plaintiff
presented with symptoms of anxiety and depression and added a
diagnosis of panic disorder with agoraphobia.
T. 381.
Plaintiff
was seen at St. Mary’s again on July 22, 2010, complaining of
anxiety
panic
irritability.
attacks,
T. 265.
paranoia,
mood
swings,
insomnia
and
LoVerdi reported Plaintiff’s mental health
-4-
symptoms as “depression, mania” and noted that Plaintiff’s response
to mental health treatment was positive.
T. 366.
At that time,
LoVerdi assessed Plaintiff a Global Assessment Functioning (“GAF”)
score of 58.
T. 364.
In July 2010, consultative psychologist Dr. Christine Ransom
performed a psychiatric examination of Plaintiff.
T. 383-386.
Dr. Ransom diagnosed Plaintiff with “bipolar disorder, currently
moderate to marked,” back and knee pain, left shoulder pain, and
high blood pressure.
T. 386.
Dr. Ransom opined that Plaintiff
could follow and understand simple directions and instructions,
perform
simple
tasks
independently,
maintain
attention
and
concentration for tasks, maintain a regular schedule and learn
simple tasks.
T. 385.
Dr. Ransom also assessed that Plaintiff
would have “moderate-to-marked” difficulty performing complex tasks
independently, relating adequately with others and appropriately
dealing
with
stress
due
to
her
bipolar
disorder.
T.
385.
Plaintiff’s prognosis was assessed as fair to good with consistent
treatment.
T. 386.
In July 2010, Harbinder Toor, M.D. performed a physical
consultative examination of Plaintiff.
T. 387-390.
Dr. Toor
diagnosed a history of knee pain, balancing problems, back pain,
left
shoulder
hypertension.
pain,
depression,
T. 389-390.
anxiety,
mood
swings,
and
Dr. Toor assessed that Plaintiff had
“moderate to severe limitation” in standing, walking, squatting, or
heavy lifting due to pain in the knees and back.
-5-
He also assessed
“mild limitation” in reaching, pushing, and pulling with the left
shoulder.
T. 390.
He recommended that Plaintiff be evaluated by
a psychologist or psychiatrist for her mental problems, but “[n]o
other medical limitations [were] suggested by [his] evaluation.”
T. 390.
In August 2010, psychologist Thomas Harding reviewed the
evidence
in
the
file
and
opined
that
Plaintiff
showed
mild
limitation in activities of daily living, moderate limitations in
social functioning and concentration, persistence or pace, and had
no episodes of decompensation. Dr. Harding summarized the evidence
in the file, noting Plaintiff’s history of multiple chemical
dependency
episodes
in
the
past.
Dr. Harding
reported that
Plaintiff was cooperative but “moderately to markedly irritable and
socially
inappropriate
during
the
evaluation.”
Dr.
Harding
reported that Plaintiff’s thought processes were “notable for lack
of coherence and goal directedness,” and that her mood and affect,
attention and concentration, and memory were moderately to markedly
impaired. T. 391.
In a Monroe County Department of Human Services Physical
Assessment for Determination of Employability form dated January 5,
2011, LMSW LoVerdi reported that she had seen Plaintiff from July
to December 2010 at St. Mary’s and opined that Plaintiff would be
unable to partake in “activities” for a 12-month period due to a
history of substance abuse, anxiety and panic disorders.
520.
-6-
T. 519,
In January 2011, Plaintiff was seen by Amanat Yosha, M.D., who
referred her to an orthopedic surgeon for possible tears in the
miniscus of her knee.
T. 482-483.
In March 2011, Plaintiff
was seen at the University of Rochester Medical Center (“URMC”).
Gregg Nicandri, M.D. reviewed an MRI of Plaintiff’s knee and
determined that Plaintiff had a lateral meniscus tear accompanied
with moderate knee joint effusion and degenerative changes.
Upon
examination, Plaintiff showed tenderness at the lateral joint line
and a positive McMurray’s sign. Dr. Nicandri referred her for knee
surgery, which she underwent on March 28, 2011.
In April 2011,
Plaintiff returned to URMC, and treatment notes show that Plaintiff
was
progressing
medication.
well
and
was
not
taking
any
narcotic
Dr. Nicandri recommended physical therapy.
pain
T. 424,
428-429.
In August and September 2011, Plaintiff returned to St. Mary’s
for mental health treatment.
T. 517.
At both times, Plaintiff’s
GAF was assessed at 53, and no other significant changes in her
mental health were reported.
T. 511-512, 499, 503, 498.
On September 30, 2011, Plaintiff returned to Dr. Yosha for
follow-up with respect to her knee surgery.
T. 490-491.
Dr. Yosha
noted that Plaintiff reported falling down the stairs three days
prior and had gone to the hospital and was discharged with a leg
brace.
Upon examination, Plaintiff’s right knee showed joint
swelling and tenderness along the lateral joint and posterior knee.
Dr. Yosha assessed knee pain, hypertension and bipolar disorder.
-7-
For her knee pain, Dr. Yasha recommended NSAIDS and Tylenol.
T. 490.
The VE’s Testimony
At the hearing, the ALJ asked the VE whether work existed that
an individual with Plaintiff’s vocational profile could perform,
assuming the individual could perform light work with occasional
balancing and who was further limited to simple and repetitive
tasks, no interaction with the general public, and only occasional
interaction with coworkers.
T. 60.
The VE testified that there
existed jobs in the national economy that such an individual could
perform, including collator operator and laundry sorter.
T. 60.
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
-8-
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)).
Section 405 (g) limits the scope of the Court’s review to two
inquiries: determining whether the Commissioner’s findings were
supported by substantial evidence in the record as a whole, and
whether the Commissioner’s conclusions are based upon an erroneous
legal standard.
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.
applied
this
five-step
sequential
In this case, the ALJ
process
and
found
that:
Plaintiff did not engage in substantial gainful activity from
-9-
March 12, 2010 to October 26, 2011;
that Plaintiff had the severe
impairments of bipolar disorder, anxiety disorder, bilateral knee
dysfunction status post arthroscopic surgery on the right, obesity,
and
chronic
back
pain,
but
that
Plaintiff
did
not
have
an
impairment or combination of impairments that met or medically
equaled the
severity
of
one
of the
Listed
Impairments;
that
Plaintiff had no past relevant work experience, but that she had
the residual functional capacity (“RFC”) to perform light work
except that she can perform occasional balancing and should have no
interaction with the general public and occasional interaction with
co-workers; and that, considering Plaintiff’s age, education, work
experience and residual functional capacity, there were jobs that
exist in significant numbers in the national economy that Plaintiff
can perform.
Therefore, the ALJ determined that Plaintiff was not disabled
under the Act from March 12, 2010 to October 26, 2011.
The Appeals
Council modified the ALJ’s RFC finding to accurately reflect the
hypothetical posed by the ALJ to the VE by including that Plaintiff
be additionally restricted to “simple and repetitive tasks,” and
otherwise adopted the ALJ’s findings and conclusions of law. T. 56.
III. Analysis of Plaintiff’s Arguments
A.
ALJ Failed to Properly Weigh Opinion Evidence
Plaintiff argues that the ALJ failed to follow the appropriate
legal standards when evaluating the consultative opinions in the
-10-
record, and ignored the opinion of treating therapist LoVerdi.
In
addition, Plaintiff claim that “the ALJ relied upon the absence of
opinion
evidence
to
discount
Plaintiff’s
limitations
and
credibility, and the ALJ failed to meet his duty to develop the
record.”
Dkt. No. 10-1 at 14.
The Court finds these arguments
meritless for the reasons discussed below.
(1)
LMSW LoVerdi’s Opinion
Plaintiff argues that “[t]he ALJ did not cite, weigh, or
evaluate the opinion of treating therapist LoVerdi.
The ALJ was
required to evaluate the opinion, and the failure to do so is
error.”
Dkt. No. 10-1 at 15; see also Pl’s Response (Dkt. No. 14)
at 2.
Where, as here, “the evidence of record permits [the court] to
glean the rationale of an ALJ’s decision, [the ALJ is not
required
to explain] why he considered particular evidence unpersuasive or
insufficient
to
lead
him
to
a
conclusion
of
disability.”
Barringer, 358 F. Supp. 2d at 79 (citing Mongeur v. Heckler, 722
F.2d
1033,
1040
(2d
Cir.1983)).
Although
the
ALJ
did
not
explicitly discuss the opinion of LMSW Loverdi in his decision, he
did discuss and cite to the evidence pertaining to Plaintiff’s
mental health history, which includes the treatment notes from
LoVerdi’s practice at St. Mary’s Outpatient Clinic.
T. 5-6, 18,
261-286, 340-344, 374-382, 452-462, 492-493.
The Court also rejects Plaintiff’s related argument that the
ALJ should have “giv[en] weight” to Loverdi’s opinion because she
-11-
“is a specialist and has a [treating] relationship with Plaintiff.”
Dkt. No. 10-1 at 16. The Regulations provide that, social workers,
like LoVerdi, are not acceptable medical sources.
416.902, 416.927(d).
20 C.F.R. §§
“[O]nly ‘acceptable medical sources’ can be
considered treating sources . . . whose medical opinions may be
entitled to controlling weight.”
SSR 06-3p, 2006 SSR LEXIS 5.
In any event, to the extent LoVerdi’s January 5, 2011 opinion
that Plaintiff “is unable to participate in activities except
treatment or rehabilitation” for 12 months can be construed as a
statement that Plaintiff is disabled, such a statement is on an
issue that is reserved for the Commissioner.
See 20 C.F.R. §§
404.1527(e), 416.927(e).
(2)
The Opinions of the Consultative Physicians
Plaintiff argues that the ALJ failed to evaluate the opinions
of the consultative physicians pursuant to the factors required
under 20
C.F.R.
§
416.927, and
failed
to
rationale for the weight afforded to them.
To
determine
the
weight
given
to
provide sufficient
Dkt. No. 10-1 at 17.
a
physician’s
opinion, the ALJ must consider the following factors:
medical
(1) whether
there was a treatment relationship; (2) the length, frequency,
nature, and extent of the treatment relationship; (3) whether the
relationship is supported by medical and laboratory findings; (4)
the consistency of the opinion with the record as a whole; (5)
whether the physician is specialized; and (6) any other relevant
factors.
See 20 C.F.R. §§ 416.927 (d)(3)-(6), 416.1527(d)(3)-(6).
-12-
In
this
case,
the
ALJ
afforded
“limited
weight”
to
the
opinions of Drs. Hamilton and Harding and “significant weight” to
the opinions of Drs. Morog, Ransom, Eurenius and Toor.
T. 18-20.
The Court finds that the ALJ properly evaluated their opinions and
that his findings are supported by substantial evidence.
With
respect to the opinions of Drs. Hamilton and Harding (related to
Plaintiff’s mental health), the ALJ properly afforded them “limited
weight” as they were internally inconsistent in various respects
and also inconsistent with the record as a whole.
T. 18.
For
instance, as the ALJ noted, Dr. Hamilton reported that Plaintiff
“drinks a six pack of beer a week,” but also reported that
Plaintiff’s
alcohol
dependence
was
in
remission.
T.
18.
Similarly, Dr. Harding opined that Plaintiff had “moderate to
marked limitations” in various areas of functioning as a result of
her bipolar disorder and anxiety.
Yet, Dr. Harding also reported
that Plaintiff was prescribed medications from her primary care
physician and that these medications were effective in helping to
manage her condition.
T. 409.
Further, the ALJ properly discounted the opinions of Drs.
Hamilton and Harding to the extent they were inconsistent with the
record as a whole, which showed overall that while Plaintiff’s
bipolar disorder and her anxiety interfered with her ability to
perform certain work activities, her impairments did not prevent
her from performing all types of work.
See generally Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (when an opinion is
-13-
inconsistent with other substantial evidence, the Commissioner is
not required to afford deference to that opinion, and may use
discretion in weighing the medical evidence as a whole).
With respect to State Agency Medical consultant Dr. Morog and
consultative examiner Dr. Ransom, the ALJ reasonably afforded these
opinions “significant weight” as they were consistent with other
evidence in the record.
Specifically, Dr. Morog opined that
Plaintiff’s mental issues “mildly to moderately” impaired her, and
that her symptoms responded to treatment in the past.
Likewise,
Dr. Ransom opined that Plaintiff could follow, understand and
perform simple tasks, maintain attention and concentration for
tasks, maintain a regular schedule and learn simple tasks. T. 385.
These
opinions
were
supported
by
and
consistent
with
the
longitudinal evidence related to Plaintiff’s mental health history,
including her treatment history, which showed that her bipolar
disorder and anxiety were sufficiently managed with properlyattended therapy and appropriate medications and did not prevent
her from working altogether.
T. 19, 262-295, 339-344, 363-382,
452-472, 498-518.
Finally, the Court finds no merit to Plaintiff’s argument that
the ALJ erred in evaluating the opinions of consultative examiners
Eurenius and Toor with respect to Plaintiff’s physical impairments.
Plaintiff argues that the ALJ erred in relying on these opinions
because they were issued prior to Plaintiff’s March 2011 knee
surgery.
However, the ALJ specifically noted this in his decision
-14-
(T. 20), and modified Plaintiff’s RFC accordingly to include an
exception
for
“occasional
balancing”
to
reflect
Plaintiff’s
improved physical condition following her knee surgery.
(3)
T. 17.
The ALJ’s Duty to Request Clarification from Drs. Toor,
Eurenius and Hamilton
Plaintiff argues that the ALJ has an affirmative obligation to
develop the administrative record, Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal quotation
marks and citations omitted);
limit.
however, this duty is not without
See Guile v. Barnhart, No. 5:07-cv-259, 2010 U.S. Dist.
LEXIS 58423, 2010 WL 2516586, at *3 (N.D.N.Y. June 14, 2010).
If
all of the evidence in the record is consistent and sufficient to
determine whether a claimant is disabled, further development of
the record is unnecessary, and the ALJ may make his determination
based upon that evidence. See 20 C.F.R. § 416.920b(a). Consistent
with that notion, where, as here, there are no “obvious gaps” in
the record, the ALJ is not required to seek additional information.
Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).
In this case, the ALJ had before him Plaintiff’s medical
records, including treatment records from prior to and during the
relevant time period.
The ALJ also had before him the opinions of
numerous consultative physicians, all of whom addressed either
Plaintiff’s mental or physical limitations. Nonetheless, Plaintiff
faults the ALJ for failing to request updated opinions from Drs.
Eurenius and Toor since their respective opinions were issued prior
-15-
to Plaintiff’s 2011 knee surgery.
The Court finds no merit to this
argument because, in determining Plaintiff’s RFC, the ALJ also had
before him the treatment notes from Plaintiff’s orthopedic surgeon
post-dating Plaintiff’s knee surgery, which showed improvement in
her condition. Notably, Dr. Nicandri did not assess any additional
physical restrictions.
critical
gaps
with
Moreover, the record fails to disclose any
respect
to
Plaintiff’s
knee
impairment
sufficient to trigger the ALJ’s duty to further develop or clarify
the record.
Plaintiff also argues that the ALJ was duty-bound to recontact consultative examiner Dr. Hamilton to explain the “alleged
internal inconsistency” (discussed above) in her opinion.
No. 10-1 at 21-22;
see also Dkt. No. 14 at 3.
Dkt.
There is, however,
no requirement that ALJs recontact consultative examiners. Rather,
the Regulations address recontacting a claimant’s treating sources.
See 20 C.F.R. §§ 404.1512(e), 416.912(e).
Moreover, “[g]enuine
conflicts in the medical evidence are for the Commissioner to
resolve,” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002), and
the ALJ acted within his discretion by affording Dr. Hamilton’s
opinion “little weight” based on all of the evidence before him at
the time of his decision.
B.
ALJ’s RFC Finding is Flawed
Plaintiff claims that the ALJ’s RFC finding is flawed because
the ALJ failed to state with specificity how the medical evidence
supports his RFC finding, and because the ALJ was duty-bound to
-16-
request a more detailed medical opinion with respect to Plaintiff’s
physical RFC.
What
an
Dkt. No. 10-1 at 22.
individual
“can
still
do
despite
his
or
her
limitations” is the RFC and is, ordinarily, the “individual’s
maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis, and the
RFC assessment must include a discussion of the individual’s
abilities on that basis.
A ‘regular and continuing basis’ means
8 hours a day, for 5 days a week, or an equivalent work schedule.”
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR
96-8p, 1996 SSR LEXIS 5, *1, 1996 WL 374184, at *2 (SSA July 2,
1996)).
In making an RFC determination, the ALJ must “consider[ ] all
relevant evidence, consisting of, inter alia, physical abilities,
symptoms including pain, and descriptions, including that of the
claimant, of limitations which go beyond symptoms.”
Martone v.
Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999) (citing 20 C.F.R.
§§
404.1545,
determined
by
416.945).
evaluating
A
claimant’s
his
physical
exertional
and
abilities
are
nonexertional
limitations in performing a certain category of work activity on a
regular and continuing basis. Id. (citing 20 C.F.R. §§ 404.1545,
416.945, 404.1567, 404.1569a, 416.967, 416.969a).
However, as discussed above, in arriving at his disability
determination,
an
administrative
-17-
judge
is
not
required
to
explicitly name and discuss every piece of evidence in the record.
See Berry, 675 F.2d at 469;
Miles v. Harris, 645 F.2d 122, 124 (2d
Cir. 1981); Barringer v. Commissioner of Social Sec., 358 F.Supp.2d
67, 78-79 (N.D.N.Y. 2005).
Here, the Commissioner determined that Plaintiff has the RFC
to perform light work, “except [that] she can perform occasional
balancing, [is] limited to simple repetitive tasks, no interaction
with
the
general
workers.”
public
T.
6.
17,
and
occasional
This
interaction
determination
is
with
supported
coby
substantial evidence in the record.
Specifically, Plaintiff’s mental RFC is supported by the
opinions of consultative physicians Drs. Ransom and Morog. T. 5-6,
18-19.
Indeed, the opinions of consultative and State Agency
physicians can constitute substantial evidence where, as here, the
opinions are consistent with the other evidence in the record. See
Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995);
F.2d at 1039 (2d Cir. 1983) (citations omitted).
Mongeur, 722
Here, Dr. Ransom
performed a consultative examination of Plaintiff on July 23, 2010
and reported that Plaintiff was “moderately to markedly irritable
and socially inappropriate during the evaluation setting frequently
becoming argumentative.” T. 384. Dr. Ransom reported further that
Plaintiff’s speech was intelligible and fluent, her train of
thought was difficult to follow, and lacked coherence and goal
direction.
Plaintiff’s
attention
-18-
and
concentration
and
her
immediate memory skills were “moderately to markedly impaired.”
Dr. Ransom also reported that Plaintiff had a clear sensorium, was
fully
oriented,
her
intellectual
functioning
appeared
to
be
average, her judgment and insight were good, and her general fund
of
information
was
appropriate
to
her
experience.
T.
385.
Dr. Ransom diagnosed “bipolar disorder, currently moderate to
marked,” and assessed that Plaintiff faced moderate to marked
difficulties with performing complex tasks independently, relating
adequately with others, and appropriately dealing with stress.
T. 385.
Dr. Ransom also opined that Plaintiff could follow and
understand simple directions and instructions, perform simple tasks
independently, maintain attention and concentration for tasks,
maintain a regular schedule and learn simple tasks.
T. 385.
Additionally, on June 5, 2009, State Agency medical consultant
Dr. Morog reviewed the evidence in the file and assessed that
Plaintiff showed mild restriction in activities of daily living,
moderate
difficulties
in
maintaining
social
functioning,
no
difficulties with concentration, persistence or pace, and had
experienced no episodes of decompensation.
326.
T. 319, 207-318, 319-
Dr. Morog assessed that Plaintiff showed mild to moderate
impairment in adaptive and functional abilities, and would respond
favorably to ongoing treatment and sobriety.
T. 321.
The opinions of Drs. Ransom and Morog were consistent with and
supported by the other evidence in the record, which showed that
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Plaintiff suffered from bipolar disorder and anxiety, but also had
repeated mental examinations revealing few functional limitations.
Additionally, the evidence in the record showed that Plaintiff’s
mental health treatment was generally conservative, was managed
with medication and therapy, and that she was repeatedly assessed
GAF scores ranging from 53-58.1
T. 494-495, 498, 506, 516-517.
Similarly, the ALJ’s physical RFC finding is supported by
substantial evidence.
“[L]ight work” is work that “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.”
20 C.F.R. § 416.967©.
In
arriving
at
his
determination that Plaintiff maintained the physical RFC to perform
light work “except that she can perform occasional balancing,” the
ALJ discussed the objective evidence in the record related to
Plaintiff’s knee and back impairments and her obesity.
First, the
ALJ pointed out that an X-ray of the knees taken in July 2009 was
within normal limits, although an MRI of the right knee taken in
December 2010 revealed moderate size knee joint effusion, a septet
1
A GAF of 51 to 60 signifies some moderate symptoms or moderate difficulty
in social, occupational or school functioning. See Diagnostic and Statistical
Manual of Mental Disorders-IV-TR, Front Matter, Multiaxial Assessment (2000 ed.).
-20-
Baker’s cyst, a meniscus tear and degenerative changes.
The ALJ
noted, however, that athroscropic surgery was performed on the
right knee on March 28, 2011, which resulted in improvement.
respect to her lower back pain, the ALJ
With
pointed out that said pain
appeared sporadic since her treatment notes reflect “numerous
occasions on which the claimant did not specify any particular
complaint.”
T. 19.
The ALJ also addressed Plaintiff’s obesity,
and its effect on her knee impairment.
He noted that although
Plaintiff alleged knee pain and testified that she used a cane for
balance at home, the record showed that Plaintiff had significant
improvement in her right knee since her surgery.
that
treatment
notes
from
Plaintiff’s
He pointed out
treating
orthopedist
following her March 2011 surgery showed that she was progressing
well and did not need narcotic pain medication.
T. 19.
In arriving at Plaintiff’s physical RFC, the ALJ also took
into
consideration
examiners
Drs.
the
Eurenius
findings
and
and
Toor.
opinions
As
of
noted
consultative
by
the
ALJ,
Dr. Eurenius examined Plaintiff in May 2009 and assessed that:
Plaintiff appeared in no acute distress and showed a normal gait
and stance; she walked on her heels and toes without difficulty;
could not squat for more than a quarter of the way down; used no
assistive devices; needed no help changing for the examination or
getting on and off the exam table; rose from a chair without
difficulty; she had full range of motion (“ROM”) in her cervical
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spine, a slightly limited ROM in her lumbar spine and positive
straight leg raising; full ROM in her shoulders, elbows, forearms,
wrists, hips, knees and ankles with some pain in the knees; and
showed no motor or sensory deficits and had no abnormalities in her
extremities outside of tenderness in her knees.
T. 302-304.
He
opined that Plaintiff was moderately limited in walking more than
a quarter of a mile, climbing more than one flight of stairs,
bending,
lifting
more
ten pounds, and kneeling.
than
10
pounds,
carrying
more
than
T. 5-6, 20, 304.
Meanwhile, Dr. Toor examined Plaintiff in July 2010, and
assessed that: Plaintiff appeared in no acute distress and had a
limping gait due to right knee pain;
she refused to walk on heels
and toes or squat due to the pain; had difficulty getting on and
off the exam table and rising from a chair; her stance was normal
and she used no assistive device and required no help for changing
with the exam; she had full ROM in her cervical spine, limited ROM
in her thoracolumbar sine and right knee; single leg raise was
positive and she had pain her left shoulder;
ROM in her left knee with slight pain;
she exhibited full
she had no evidence of
subluxations, contractures, ankylosis or thickeing and her joints
were stable and nontender with no swelling or effusion. Dr. Toor
assessed knee pain more severe in the right knee, a history of
balancing difficulties, back pain, left shoulder pain, depression,
anxiety, mood swings, and hypertension.
-22-
He therefore opined that
Plaintiff had moderate to severe limitation in standing, walking,
squatting, or heavy lifting, and mild limitation in reaching,
pushing, and pulling with the left shoulder. T. 20.
The ALJ acknowledged that the opinions of Drs. Eurenius and
Toor were rendered prior to Plaintiff’s March 2011 knee surgery,
after which Plaintiff showed significant improvement.
T. 20.
Accordingly, the ALJ took into account Plaintiff’s knee surgery in
determining that she was capable of performing light work, with the
exception that she can perform occasional balancing.
In
sum,
the
Court
finds
that
the
ALJ’s
RFC
finding
is
supported by substantial evidence in the record and is proper as a
matter of law.
C.
The ALJ’s Credibility Assessment is Flawed
Plaintiff argues that the ALJ failed to apply the appropriate
legal standards in finding Plaintiff not fully credible with
respect to her complaints of pain and related symptoms.
No. 10-1 at 27.
Dkt.
Specifically, she claims that: (1) the ALJ’s
comparison to his own RFC finding was inappropriate under the law;
(2) the ALJ failed to evaluate Plaintiff’s subjective statements
pursuant to 20 C.F.R. § 404.1529; (3) the ALJ inaccurately cited
Plaintiff’s testimony and the medical records; and (4) the ALJ
failed to account for Plaintiff’s testimony of her functional
limitations, which were more limiting than the ALJ’s RFC finding.
-23-
Dkt. No. 10-1 at 28-30.
The Court finds no merit to Plaintiff’s
arguments for the reasons set forth below.
In
determining
Commissioner
must
whether
consider
a
claimant
subjective
is
disabled,
evidence
of
the
pain
or
disability to which the claimant testifies, but “may exercise
discretion in weighing the credibility of the claimant’s testimony
in light of the other evidence in the record.”
Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citations omitted).
The Social Security regulations set forth a two-step process for
evaluating a claimant’s assertions of pain and other limitations.
First, the ALJ must determine, based upon the claimant’s objective
medical evidence, whether the medical impairments “could reasonably
be expected to produce the pain or other symptoms alleged . . . .”
20 C.F.R. § 404.1529(a).
Second, if the medical evidence alone
establishes the existence of such symptoms, then the ALJ need only
evaluate the intensity, persistence, and limiting effects of a
claimant’s symptoms to determine the extent to which they limit the
claimant's capacity to work.
20 C.F.R. § 404.1529©.
“[T]o the extent that the claimant’s [symptom] contentions are
not substantiated by the objective medical evidence, the ALJ must
engage in a credibility inquiry.”
179,
§
183
(2d
Cir.
404.1529(c)(3)(i)-(vii).
consideration
of
seven
Meadors v. Astrue, 370 F. App’x
2010)
That
factors:
-24-
(citing
credibility
(1)
the
20
inquiry
C.F.R.
involves
claimant’s
daily
activities; (2) the location, duration, frequency, and intensity of
the symptoms; (3) precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medications
taken to alleviate the symptoms; (5) any treatment, other than
medication, that the claimant has received; (6) any other measures
that the claimant employs to relieve the symptoms; and (7) other
factors
concerning
restrictions
as
a
the
claimant’s
result
of
the
functional
symptoms.
limitations
See
20
and
C.F.R.
§ 404.1529(c)(3)(i)-(vii).
In
his
decision,
the
ALJ
stated
that
while
Plaintiff’s
“medically determinable impairments could reasonably be expected to
cause
the
alleged
symptoms,”
her
statements
concerning
the
intensity, persistence and limiting effects of her symptoms “are
not credible to the extent they are inconsistent with the above
residual functional capacity assessment.”
T. 18.
In particular,
the ALJ pointed out that none of Plaintiff’s treating physicians
recommended restrictions with respect to her functional abilities,
and that her treatments were generally conservative/routine in
nature.
T. 20.
Plaintiff argues that the ALJ’s RFC finding is flawed because
the ALJ improperly engaged in a credibility assessment calculated
to conform to his own RFC determination.
Dkt. No. 10-1 at 28.
Indeed, the Court has found no support in the regulations or the
caselaw from this Circuit supporting the propriety of basing a
-25-
credibility determination solely upon whether the ALJ deems the
claimant’s allegations to be congruent with the ALJ’s own RFC
finding.
See, e.g., Smollins v. Astrue, No. 11-CV-424, 2011 U.S.
Dist. LEXIS 98257, 2011 WL 3857123, at *11 (E.D.N.Y. Sept. 1, 2011)
(“[the ALJ’s] analysis of Smollins’s credibility is flawed not only
in its brevity, but also in its acceptance as a foregone conclusion
of Smollins’s capacity to perform sedentary work. Instead of
comparing Smollins’s symptoms, as described by Smollins herself and
her doctors, to the objective medical and other evidence of record
as required by the Social Security regulations, [the ALJ] merely
compared Smollins’s statements regarding her symptoms to his own
RFC assessment.”); see also Ubiles v. Astrue, 11-CV-6340TMAT, 2012
U.S. Dist. LEXIS 100826, 2012 WL 2572772 (W.D.N.Y. July 2, 2012);
Mantovani v. Astrue, No. 09-CV-3957, 2011 U.S. Dist. LEXIS 35001,
2011 WL 1304148, at *5 (E.D.N.Y. Mar. 31, 2011).
Here, however,
the ALJ properly went on to analyze Plaintiff’s credibility by
comparing aspects of her testimony to the record evidence.
First, the ALJ compared Plaintiff’s complaints of disabling
mental health issues with the evidence related to her mental health
history, including her treatment.
complaint
that
she
suffered
from
He noted that Plaintiff’s
a
disabling
mood
disorder
throughout her life was contradicted by the evidence in the record
which showed that she did not seek treatment until she was an
adult.
The ALJ also pointed out that Plaintiff’s allegation that
-26-
she had
stopped
using
illicit
drugs
was
contradicted
by
the
evidence in the record showing that Plaintiff had a long history of
substance abuse and had been in multiple chemical dependency
treatment programs.
Additionally, the ALJ acknowledged that while
Plaintiff claimed she was unable to use public transportation
because she had anger management issues and was afraid she would
hurt someone if provoked, the record evidence showed that she
maintained
relationships
with her
children
and grandchildren,
occasionally went to church, and was able to control her anger in
all of these situations.
Additionally, the ALJ pointed out that
Plaintiff testified that she also maintained a 27-year relationship
with her girlfriend.
T. 18.
The ALJ also compared Plaintiff’s complaints of disabling
bilateral knee pain with the related evidence in the record and
pointed out that while Plaintiff alleged her knee pain was a
“12 out of 10” in intensity, she also testified that the pain was
temporarily relieved with pain medication.
The ALJ acknowledged
that although the diagnostic testing performed on Plaintiff’s right
knee in December 2010 revealed moderate size knee joint effusion,
a septet Baker’s cyst, a meniscus tear and degenerative changes,
Plaintiff underwent surgery in March 2011, which resulted in noted
improvement.
The ALJ also pointed out that Plaintiff herself
testified at the hearing that she was essentially pain free in her
right knee.
T. 18, 50-51.
-27-
With respect to Plaintiff’s low back pain, the ALJ compared
Plaintiff’s complaints of ongoing, disabling symptoms with the
relevant evidence in the record. Specifically, he pointed out that
while Plaintiff alleged a persistent and debilitating condition,
treatment notes from her office visits reflected numerous occasions
on
which
she
complaints.
did
not
specify
any
particular
back-related
He also noted that while Plaintiff reported increased
back pain in October 2009, she also reported being out of her pain
medication at that time.
February
2010
that
He noted further that it was not until
Plaintiff
reported
back
pain
again,
but
acknowledged that she believed said pain was related to a kidney
infection.
T. 19.
Finally, the ALJ discussed Plaintiff’s statements with respect
to her obesity.
T. 19.
The ALJ acknowledged the evidence showing
that Plaintiff is obese, and that Plaintiff testified to using a
cane for balancing at home.
T. 19.
However, as the ALJ pointed
out, the evidence post-dating Plaintiff’s March 2011 surgery showed
that Plaintiff had significant improvement in her right knee, and
she reported only having moderate pain in her left knee.
Accordingly,
given
these
inconsistencies
in
T. 19.
Plaintiff’s
statements, the ALJ found that Plaintiff “has not been entirely
candid”
(T.
20),
and
reasonably
determined
that
Plaintiff’s
statements were not fully credible. The Court therefore finds that
-28-
the ALJ’s credibility assessment is proper as a matter of law and
is supported by substantial evidence.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted (Dkt. No. 13), the Plaintiff’s motion is denied (Dkt.
No. 10), 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:
June 23, 2014
Rochester, New York
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