Jones v. Colvin
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Commissioner's Motion for Judgment on the Pleadings; denying 12 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 6/6/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
FADREA JONES,
DECISION AND ORDER
No. 13-CV-06443(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Plaintiff Fadrea Jones (“Plaintiff” or “Jones”), filed this
action, pursuant to the Social Security Act (“the Act”), codified
at 42 U.S.C. §§ 405(g) and 1383(c), seeking review of a final
decision of the Commissioner of Social Security (“Commissioner” or
“Defendant”), denying her application for Supplemental Security
Insurance (“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 August 17, 2010, Fatiha Jones filed an application for SSI
on behalf of her then-17 year old daughter Fadrea Jones, alleging
disability as of August 11, 2010 due to optic atrophy, headaches,
and Brown’s Syndrome.
The application was denied.
Administrative
Transcript [T.] 58, 192-194.
A hearing was held on January 17,
2012 before administrative law judge (“ALJ”) Stanley K. Chin.
Plaintiff, her mother, and a vocational expert (“VE”) testified at
the hearing.
T. 21-57.
On January 27, 2012, the ALJ issued a
decision finding that Plaintiff was not disabled from August 17,
2010, the date of her SSI application, to January 27, 2012, the
date of the ALJ’s decision.
T. 59-82.
On June 21, 2013, the Appeals Councils denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.
T. 1-5.
This action followed.
FACTUAL BACKGROUND
Plaintiff was born in 1993 and was 18 years old at the time of
the administrative hearing.
T. 28.
Plaintiff testified that her
vision problems, asthma and depression prevent her from working
full time.
T. 29-30.
Also at the hearing, Plaintiff’s mother
testified, as did a vocational expert.
T. 49-53.
Evidence Prior to the Relevant Time Period
School records from 2002 show that Plaintiff was “functioning
with the average range of cognitive ability.”
T. 317.
In 2005, Patricia Markus (“Markus”), Special Education and TBI
Consultant for MATCH Team for the Rochester City School District,
completed an Assistive Technology Assessment Report in which she
indicated that Plaintiff “does not appear to be a good candidate
for assistive technology.”
Markus noted that Plaintiff was non-
compliant “ with any strategy or tool that makes her look different
-2-
from her peers.”
Markus made a recommendation to help Plaintiff
with keyboarding skills, and also suggested that the school “look
at possibly giving her some curricular and testing modifications.”
T. 316.
In
September
2006,
Plaintiff
met
with
her
primary
care
physician Andre Jacobs-Perkins, M.D., who provided her with a note
for school indicating that she had mild asthma and exotropia of the
eye, but that she was physically qualified to participate in sports
or use the playground.
From
October
T. 257.
2009
to
January
2010,
Plaintiff
treatment at Rochester Mental Health Center (“RMHC”).
underwent
On October
5, 2009, Plaintiff reported to Kelly Schmidt (“Schmidt”), LMSW,
that she cried frequently and was sad when thinking about her
father with whom she had no contact.
mood
disorder,
functioning
and
(“GAF”)
assessed
at
65.
Plaintiff had “no disability.”
T. 345.
Plaintiff’s
T.
346.
T. 347.
Schmidt diagnosed
global
Schmidt
assessment
reported
of
that
At subsequent follow-up
visits, Plaintiff’s GAF score remained 65.
T. 358, 362, 364.
Plaintiff was discharged from treatment on January 19, 2010 because
her
mother
did
appointments.
not
believe
that
Plaintiff
needed
consistent
T. 362-363.
Evidence from August 17, 2010 to January 27, 2012
On November 30, 2010, Plaintiff saw Gary D. Markowitz, M.D.,
and reported that Plaintiff was “seeing well,” that she was wearing
-3-
her glasses full time, and that her vision was 20/70 in one eye and
20/125 in the other eye.
T. 334.
On December 14, 2010, Dr. Markowitz diagnosed Plaintiff with
optic atrophy, extropia, myopia, and astigmatism. T. 307. At that
time, Dr. Markowitz indicated that he was unable to provide a
medical opinion regarding Plaintiff’s ability to do work-related
activities.
T. 309.
On December 20, 2010, Plaintiff also saw Elizabeth Harvey, OD,
who assessed that Plaintiff had a moderate impairment in her right
eye and a severe impairment in her left eye.
T. 312.
Dr. Harvey
prescribed a monocular telescope to be used by Plaintiff on the
right eye for seeing at a distance, and advised her to continue to
use a hand-held magnifier for fine print in the classroom and to
enlarge the font size of her computer.
T. 313.
In January 2011, state agency pediatrician R. Mohanty, M.D.
reviewed the evidence in the file and opined that Plaintiff had no
limitation
in
acquiring
and
using
information,
attending
and
completing tasks, interacting and relating with others, moving
about and manipulating objects, and caring for herself.
327.
T. 326-
Dr. Mohanty opined that Plaintiff had a marked limitation in
health and physical well-being in light of her congenital eye
impairment.
T. 327.
On March 11, 2011, Plaintiff saw Dr. Markowitz for a follow-up
visit, at which time Plaintiff reported that her new eyeglass
prescription was working well but that she experienced one episode
-4-
of eye pain when looking overhead.
T. 373.
He reported that
Plaintiff’s vision was 20/70 in one eye and 20/100 in the other
eye.
He also reported no ptosis.
On March 15, 2011, Dr. Markowitz
reported that Plaintiff’s exam showed stable left extropia.
discussed
with
Plaintiff
and
her
mother
having
an
He
optional
additional surgery to repair Plaintiff’s strabismus, and Plaintiff
and her mother elected to proceed with the surgery.
T. 374.
Also in March 2011, Plaintiff saw nurse practitioner Karen
McMurty (“McMurty”) for asthma related issues.
McMurty noted that
Plaintiff reported that she was doing well and only occasionally
use Albuterol, although she had experienced a cough and wheeze in
the prior two weeks.
T. 386.
A pulmonary function test showed
that Plaintiff had “significant improvement” with bronchodilator
and that Plaintiff reported feeling much better.
McMurty started
Plaintiff on Advair, and instructed Plaintiff to call if her
symptoms worsened or did not improve.
T. 387.
Plaintiff underwent eye surgery in April 2011, after which
Dr. Markowitz reported that her eye alignment looked better.
T. 377.
Her vision in one eye was 20/70 and the other eye was
20/125. No ptosis was reported. Dr. Markowitz noted that Plaintiff
could resume gym/sports on May 4, 2011.
T. 378.
findings
follow-up
were
reported
throughout May 2011.
In
December
at
subsequent
No significant
appointments
T. 381.
2011,
Dr.
Jacobs-Perkins
completed
a
NYS
disability assessment form in which he assessed that Plaintiff had
-5-
optic nerve hypoplasia, chronic depression, and asthma.
T. 394.
Dr. Jacobs-Perkins opined that Plaintiff had no limitation in the
areas of moving about and manipulating objects, and moderate
limitation in the areas of interacting and relating with others,
caring for herself.
He reported “moderate limitations” with
respect to Plaintiff’s health and physical well-being but also
indicated that he “would defer to opthamologist.”
respect to
the
areas
of
acquiring
and using
T. 398.
information
With
and
attending and completing tasks, he indicated that Plaintiff’s
limitations were “unknown.” T. 398. He also opined that Plaintiff
had no limitation in lifting and carrying, sitting, standing and/or
walking, and pushing and/or pulling.
He noted that Plaintiff
needed a magnifying glass to read, and could not use public
transportation because she could not read bus numbers.
T. 409.
Also in December 2011, Dr. Markowitz completed a Vision
Impairment
RFC
Questionnaire.
T.
402.
He
assessed
that
Plaintiff’s vision in both eyes was 20/100 and reported that
Plaintiff saw well and had no symptoms during her last visit with
him in August 2011.
T. 400.
Dr. Markowitz indicated that
Plaintiff’s visual limitations in competitive work situations was
“unknown.”
T. 400.
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.
-6-
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)).
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.”
Twombly, 550 U.S. 544, 570 (2007).
-7-
Bell Atlantic Corp. v.
II.
The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence in the Record
The ALJ evaluated Plaintiff’s claim for benefits under the
disability
standards
Plaintiff’s
SSI
for
application
both
was
adults
and
filed
before
children
because
Plaintiff’s
18th
birthday T. 66-77.
A.
The Disability Standard for Children
The statutory standard for children seeking SSI benefits based
on disability is
[a]n individual under the age of 18 shall be
considered disabled for the purposes of this
title if that individual has a medically
determinable physical or mental impairment,
which results in marked and severe functional
limitations, and 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. §§ 1382c(a)(3)(C)(1).
In evaluating disability claims in children, the Commissioner
is required to use the three step process promulgated in 20 C.F.R.
§§ 416.924. First, the Commissioner must determine whether the
claimant is engaged in any substantial gainful activity.
Second,
if the claimant is not so engaged, the Commissioner must determine
whether the claimant has a “severe impairment” or combination of
impairments.
Third, the Commissioner must determine whether the
impairment or combination of impairments correspond with one of the
conditions presumed to be a disability by the Social Security
Commission,
that
the
impairment(s)
-8-
met,
medically
equaled
or
functionally equaled the severity of an impairment in the listings.
20 C.F.R. § 416.924.
Here,
the
ALJ
followed
this
three-step
determined that Plaintiff was not disabled.
procedure
and
The ALJ found that
Plaintiff: (1) had not engaged in substantial gainful activity
since the application was filed; (2) had the severe impairments of
strabismus and optic nerve hypoplasia; and (3) did not have an
impairment that meets or equals one of the Listed Impairments
listed in Appendix 1, Part A or B, or functionally equaled the
severity of an impairment in the Listings.
B.
T. 70-74.
The Disability Standard for Adults
The Social Security Administration has promulgated a five-step
sequential analysis that the ALJ must adhere to for evaluating
disability claims for adults.
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
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).
-9-
The ALJ found that:
Plaintiff did not engage in substantial
gainful activity since the date the application was filed;
that
Plaintiff had the severe impairments of strabismus and optic nerve
hypoplasia, 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 has the
residual functional capacity (“RFC”) to perform a full range of
work at all exertional levels but with certain non-exertional
limitations; and that, considering Plaintiff’s age, education, work
experience and RFC, there are jobs that exist in significant
numbers
in
the
national
economy
that
Plaintiff
can
perform.
Therefore, the ALJ concluded that Plaintiff was not disabled during
the relevant period.
T. 77-78.
III. Plaintiff’s Arguments
A.
Duty to Develop the Record and Evidence Submitted to
Appeals Councils
At Point 1 of her supporting memo, Plaintiff claims that
remand is warranted based on the following: (1) the ALJ failed to
obtain updated education records (i.e., records from after March 2,
2005) at the time he issued his decision; and (2) that Plaintiff
subsequently obtained said records and submitted them to the
Appeals Council but they were rejected without adequate rationale.
Dkt. No. 12-1 at Point 1.
The Court disagrees.
Although, as Plaintiff correctly points out, the ALJ has an
affirmative
obligation
to
develop
the
administrative
record,
Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755
-10-
(2d Cir. 1982) (internal quotation marks and citations omitted),
this duty is not without limit.
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).
Indeed, if all of the evidence received
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.
20 C.F.R. § 416.920b(a).
See
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
treatment records, which included records from dates prior to and
including the relevant time period.
Plaintiff’s
educational
records
The ALJ also had before him
dating
from
2002
to
2005.
Additionally, in making his disability determination, the ALJ also
had:
a Functional Assessment Form from State Agency pediatrician
Dr. Mohanty from January 2011, several function assessment forms
from Dr. Jacobs-Perkins from December 2011, and a Vision Impairment
RFC Questionnaire from Dr. Markowitz from December 2011.
329, 394-410.
T. 324-
In this instance, the record fails to disclose any
critical gaps sufficient to trigger the ALJ’s duty to develop the
record by obtaining additional school records.
While Plaintiff
asserts that the ALJ should have contacted Plaintiff’s school to
obtain supplemental records that post-date March 2, 2005, there is
-11-
no indication that such records would have provided any significant
missing information.
Likewise, remand is not warranted with respect to Plaintiff’s
argument that the Appeals Council failed to adequately evaluate the
“new and material evidence” submitted to it after the ALJ issued
his decision.
Dkt. No. 12-1 at 14.
The Commissioner’s decision to
deny benefits does not become final until the Appeals Council
either renders its decision or denies review, thereby adopting the
decision of the ALJ.
See 20 C.F.R. § 416.1481;
77 F.3d 41, 45 (2d Cir. 1996).
Perez v. Chater,
In making its determination, the
Appeals Council must review all the evidence in the administrative
record and
any
additional
evidence
received.
See
20
C.F.R.
§ 416.1479. Social Security regulations allow a claimant to submit
additional evidence to the Appeals Council in support of the
Request for Review.
See 20 C.F.R. §§ 416.1470(b), 416.1476(b)(1).
The Appeals Council must accept the evidence so long as it is new,
material, and relates to the period on or before the date of the
ALJ’s decision.
See id.
If the evidence does not relate to the
relevant time period, the Appeals Council must return the evidence
to the claimant, issue an explanation why it was not accepted, and
advise the claimant of the right to file a new application.
20 C.F.R. § 416.1476(b)(1).
Additional evidence accepted by the
Appeals Council becomes part of the administrative record and
should be considered by a reviewing court.
45.
-12-
See Perez, 77 F.3d at
In this case, it appears that Plaintiff submitted education
records from Rochester City School District dated March 5, 2012
through June 22, 2012, as well as treatment notes from Association
for the Blind ABVI dated March 12, 2013.
T. 2, 6-9.
The Appeals
Council, in compliance with the relevant regulations, rejected this
evidence, explaining that “[t]he [ALJ] decided your case through
January 27, 2012.
This new information is about a later time.
Therefore, it does not affect the decision about whether you were
disabled beginning or before January 27, 2012.”
T. 2.
However, as Plaintiff points out, on the June 21, 2013 form
titled “Order of Appeals Council,” the Appeals Council states, in
relevant part, that it “received additional evidence, which it is
making part of the record. That evidence consists of the following
exhibits: Ex. 15E Education records from Rochester City School
District dated May 16, 2005, through December 27, 2011.”
T. 5.
While this evidence is currently located in the record at pages
242-290, it is unclear whether it was ever actually submitted to
and/or reviewed by the Appeals Council.
Nonetheless, there is no reasonable probability that the
Appeals Council (or the ALJ for that matter) would have reached a
different
result
if
the
administrative
additional evidence for several reasons.
record
contained
this
First, the majority of
these records (i.e., those from May 16, 2005 up to August 16, 2010)
pre-date the relevant time period.
Second, these records do
little, if anything, to support Plaintiff’s claim that she is
-13-
disabled. Plaintiff points out that “the new and material evidence
contains multiple report cards indicating deficient grades and
regents test scores.”
Dkt. No. 12-1 at 15.
While these records do
reflect that Plaintiff received some “F” grades and low test
scores, they also indicate that, over time, Plaintiff’s grades
improved and she generally received A-C grades. These records also
show
that
Plaintiff
was
reported
as
having
either
met
or
“partially” met the standards for New York State and the school
district.
that
T. 255-256, 274-275, 281.
these
additional
records
Plaintiff also maintains
undermine
the
ALJ’s
disability
decision because they contain a note from Dr. Markowitz describing
Plaintiff as having a visual “handicap.”
Dkt. No. 12-1 at 15.
The
determination of whether a claimant is disabled, however, is
“reserved to the Commissioner.”
20 C.F.R. § 404.1527(e).
Accordingly, the Court finds no basis to remand Plaintiff’s
case because that the ALJ failed to develop the record and/or that
the Appeals Council failed to adequately evaluate the “new and
material evidence”
submitted
to
it
after
the
ALJ
issued
his
decision.
B.
The Opinion Evidence in the Record
At Point 2, Plaintiff argues that the ALJ failed to properly
weigh the opinion evidence in the record.
that the ALJ erred in:
Specifically, he claims
(1) relying on the opinion of State Agency
physician Mohanty because his opinion was “stale”; (2) failing to
incorporate all of the limitations contained in the opinions of
-14-
treating physicians Markowitz and Jacobs-Perkins; and (3) failed to
develop the record with respect to Plaintiff’s non-exertional
limitations.
Dkt. No. 12-1
at Point 2.
The Court rejects
Plaintiff’s contentions for the reasons that follow.
(1)
Dr. Mohanty’s Opinion
With respect to Plaintiff’s first argument, the record shows,
as Plaintiff correctly points out, that Dr. Mohanty reviewed the
medical evidence in the record and rendered his opinion in January
2011 –- one year before the ALJ issued his disability decision.
T. 325. Plaintiff claims that Dr. Mohanty’s opinion is “stale” and
does not establish substantial evidence because it was rendered
“prior to the submission of most of the medical and educational
evidence.”
establish
Dr.
Dkt. No. 12-1 at 16.
how
Mohanty’s
Plaintiff’s
report.
In
Plaintiff, however, has failed to
condition
fact,
the
deteriorated
record
reflects
after
that
Plaintiff’s condition generally remained the same after January
2011, and that her eyesight actually improved.
For example, after
her April 2011 eye surgery, Dr. Markowitz reported that Plaintiff’s
eye alignment looked better and that she could resume gym and
sports in early May 2011.
At subsequent follow-up appointments
with Dr. Markowitz, Plaintiff reported that she had no concerns,
and Dr. Markowtiz noted that Plaintiff’s diplopia was “stable” and
that Plaintiff had no evidence of eye turn.
T. 379.
On May 24,
2011, Dr. Markowitz noted that Plaintiff’s eyes were appropriately
aligned, and that Plaintiff’s conjunctiva was mildly inflamed in
-15-
the left eye but that he expected it to improve.
final
matter,
the
Court
notes
that,
the
T. 381.
opinion
of
a
As a
state
consultative physician can constitute substantial evidence where,
as here, the opinion is consistent with the other evidence in the
record.
his
Said evidence, which the ALJ exhaustively summarized in
decision,
shows
that
while
Plaintiff
suffered
from
some
physical and mental impairments, these impairments, singularly or
in
combination,
did
not
significantly
limit
her
functional
abilities and/or ability to perform work.
(2)
Next,
The Opinions of Treating Physicians Markowitz and JacobsPerkins
Plaintiff
argues
that
while
the
ALJ
afforded
the
opinions of Plaintiff’s treating physicians Markowitz and JacobsPerkins “great weight,” he erred by failing to incorporate all of
the limitations contained in the opinions into his functional
equivalence and RFC findings, or to explain why he rejected them.
Dkt. No. 12-1 at 19-20.
The “treating physician rule” requires an
ALJ “to grant controlling weight to the opinion of the claimant’s
treating physician if the opinion is well supported by medical
findings and is not inconsistent with other substantial evidence.”
Rosado v. Barnhart, 290 F. Supp. 2d 431, 438 (S.D.N.Y. 2003)
(citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). In this case,
the ALJ properly took into consideration the opinions of treating
physicians Markowitz and Jacobs-Perkins -- to the extent their
opinions were internally consistent and consistent with the record
-16-
as a whole -- when considering the severity of Plaintiff’s mental
and physical impairments and the functional limitations resulting
therefrom.
See, e.g., Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002) (“Genuine conflicts in the medical evidence are for
the Commissioner to resolve.”) (citing Richardson v. Perales, 402
U.S. 389, 399 (1971)).
Plaintiff asserts that “Dr. Markowitz noted clinical findings
of headaches, and the ALJ failed to find headaches to be a severe
impairment at Step 2 or incorporate any non-exertional limitations
into the RFC finding.”
Dkt. No. 12-1 at 20.
This argument is
meritless because Dr. Markowitz’s clinical finding of “headaches”
was
not
a
stand-alone
finding,
but
rather
was
related
to
Plaintiff’s eye impairments and associated squinting.
T. 307.
At
Step 2, the ALJ explicitly discussed Plaintiff’s eye impairments
and her functional limitations resulting from same.
T. 67-74.
Additionally, the ALJ accounted for Plaintiff’s eye impairments in
his RFC assessment by limiting her to occupations “which do not
require near acuity.”
T. 75.
Plaintiff also claims that the ALJ erred in failing to find
Plaintiff’s
depression
to
be
severe
at
Step
2,
citing
to
Dr. Jacobs-Perkins’ diagnosis of chronic depression. Dkt. No. 12-1
at 20.
into
Relatedly, Plaintiff argues that the ALJ failed to take
account
Dr.
Jacobs-Perkins
opinion
that
Plaintiff
was
“moderately limited” in the domain of interacting and relating with
-17-
others.
Dkt. No. 12-1 at 20 citing T. 394, 397.
these arguments.
The Court rejects
An impairment is severe if it causes more than
minimal functional limitations.
20 C.F.R. § 416.924(c).
As an
initial matter, Plaintiff did not claim depression as a disabling
impairment when she first applied for benefits.
Moreover, when
she testified at the administrative hearing about her depression,
she stated that she had received mental health treatment in the
past but was not currently being treated for any mental health
issues.
T. 42.
Plaintiff’s mental health treatment notes from
January 19, 2010 show that Plaintiff was discharged from therapy
because her mother did not believe she needed to be seen on a
regular basis.
T. 362.
Furthermore, the ALJ thoroughly discussed
the evidence in the record –- including her diagnosis of chronic
depression
(T.
68)
–-
and
there
is
no
indication
that
said
depression significantly limited her ability to function and/or do
basic work activities. To the contrary, the evidence in the record
shows that Plaintiff was consistently assessed a GAF score of 65,
A GAF score between 61 and 70 equates to some “mild symptoms” or
some difficulty in social, occupational, or school functioning but
generally
functioning
interpersonal
pretty
relationships.
well,
See
has
American
some
meaningful
Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.
2000).
Plaintiff’s activities of daily living also belie the
notion that her depression significantly limited her ability to
-18-
function and/or do basic work activities. For instance, as the ALJ
noted in his decision, Plaintiff testified that, she can cook,
clean, bathe and dress herself, has friends that come to visit her,
and
attends
full-time
regular
classes
at
school.
She
also
testified that she helps take care of her brothers by ensuring they
do not make a mess and by changing their diapers.
T. 68-69, 71-72.
Thus, because the opinion of Dr. Jones-Perkins that Plaintiff was
“moderately limited” in the domain of interacting and relating with
others was inconsistent with the other evidence in the record as a
whole,
it
particular
was
entirely
portion
of
proper
his
for
opinion
the
ALJ
when
to
discount
assessing
this
Plaintiff’s
functional limitations and/or her ability to perform work.
(3) Additional Opinion Evidence
Finally, Plaintiff claims that the ALJ failed to develop the
record by obtaining an additional opinion from a consultative
examiner and/or Plaintiff’s treating physicians “with respect to
Plaintiff’s mental, non-exertional limitations despite allegations
of a mental impairment.”
As discussed above, an ALJ has an
affirmative duty to develop the record.
However, the ALJ is not
required to seek additional information where, as here, there are
no obvious gaps in the record.
79 n.5 (2d Cir. 1999).
See Rosa v. Callahan, 168 F.3d 72,
In this case, the ALJ was able to make a
determination about the severity of Plaintiff’s depression and any
functional limitations resulting therefrom based on the evidence
-19-
before him at the time.
Specifically, that evidence included
treatment notes from Drs. Jacobs-Perkins and Markowitz, the report
of state agency physician Mohanty, as well as Plaintiff’s treatment
records from Rochester Mental Health.
The Court finds no ambiguity in the record which is fully
developed and adequately reflects Plaintiff's medical history –including her mental health history. The ALJ was under no duty to
re-contact her treating physicians and/or obtain an additional
consultative opinion with respect thereto.
The ALJ considered the
evidence before him, resolved inconsistencies in the record, and
properly assessed the severity of Plaintiff’s impairments and the
functional limitations resulting therefrom.
In sum, the Court finds that the ALJ properly weighed the
opinion
evidence
in
the
record
and
his
severity
and
RFC
determinations, as discussed in more detail below, are supported by
substantial evidence.
C.
The ALJ’s Functional
Determination
Equivalence
Finding
and
RFC
At Point 3 of her supporting memo, Plaintiff challenges the
ALJ’s functional equivalence finding (“FEF”) (under the child
disability standard) and his determination that Plaintiff had the
RFC to perform a full range of work at all exertional levels with
certain limitations (under the adult disability standard).
No. 12-1 at Point 3.
The Court rejects this claim.
-20-
Dkt.
(1)
The ALJ’s FEF
Under the child disability standard, the ALJ found that
Plaintiff no limitation in the domains of attending and completing
tasks, interacting and relating with others, moving about and
manipulating objects, and caring for herself.
He determined that
Plaintiff had marked limitations in health and physical well-being.
Accordingly, he found that Plaintiff was not disabled.
T. 71-74.
The Court finds that the ALJ’s FEF is supported by substantial
evidence.
To
determine
whether
an
impairment
or
combination
of
impairments functionally equals the listings, the ALJ must assess
the claimant’s functioning in terms of the following six domains:
(1)
(2)
(3)
(4)
(5)
(6)
acquiring and using information;
attending and completing tasks;
interacting and relating with others;
moving about and manipulating objects;
caring for yourself; and
health and physical well-being.
See 20 C.F.R. § 416.926a(b)(1).
In
making
this
assessment,
the
ALJ
must
compare
how
appropriately, effectively and independently the claimant performs
activities compared to the performance of other children of the
same age who do not have impairments.
20 C.F.R. § 416.926a(b).
To
functionally equal the listings, the claimant’s impairment or
combination of impairments must result in “marked” limitations in
two domains of functioning or an “extreme” limitation in one
domain.
20 C.F.R. 416.926a(d).
-21-
A child has a “marked” limitation in a domain when her
impairment(s)
interferes
“seriously”
with
the
ability
to
independently initiate, sustain, or complete activities. 20 C.F.R.
416.926a(e)(2).
A child has an “extreme” limitation in a domain
when her impairment(s) interferes “very seriously” with her ability
to
independently
initiate,
sustain,
or
complete
activities.
20 C.F.R. 416.926a(e)(3).
In the domain of Health and Physical Well-Being, a marked
limitation means frequent episodes of illness because of the
impairment(s) or frequent exacerbations of the impairment(s) that
result in significant documented symptoms or signs that occur:
(a) on an average of 3 times a year, or once every
4 months, each lasting 2 weeks or more; (b) more
often than 3 times in a year or once every 4
months, but not lasting for 2 weeks; or (c) less
often than an average of 3 times a year or once
every 4 months but lasting longer than 2 weeks, if
the overall effect (based on the length of the
episode(s) or its frequency) is equivalent in
severity.
20 C.F.R. 416.926a(e)(2).
An “extreme” limitation in this domain
means there are episodes of illness or exacerbations that result in
significant, documented symptoms or signs substantially in excess
of the requirements for showing a “marked” limitation.
20 C.F.R.
416.926a(e)(2).
Plaintiff argues that, in arriving at his FEF, the ALJ erred
by relying exclusively on the opinion of Dr. Mohanty and failed to
discuss evidence that was contrary thereto.
-22-
Dkt. No. 12-1 at 24-
25.
Initially, an ALJ is “responsible for reviewing the evidence
and making findings of fact and conclusions of law.”
See 20 C.F.R.
§ 416.927(e)(2). Further, the opinions of State consultants may be
relied on by an ALJ, and their findings can constitute substantial
evidence. See id.
In this case, the State consultant evidence from Dr. Mohanty
was consistent overall with the treatment notes from Plaintiff’s
treating physicians, the clinical findings, the hearing testimony,
and the other evidence of record.
Accordingly, this Court finds
that the ALJ properly relied on the findings of State agency
consultant
Dr.
Mohanty,
who
opined
that
Plaintiff
had
no
limitations in any of the first three functional domains, and had
marked limitations in the domain of health and well-being.
Moreover, the Court finds no merit to Plaintiff’s related
argument that the record supports a finding that Plaintiff’s eye
impairment is an “extreme” limitation (rather than a “marked”
limitation) in the health and well-being domain.
24-25.
Dkt. No. 12-1 at
In determining that Plaintiff had a “marked” limitation in
this area, the ALJ acknowledged that Plaintiff had vision problems
(including congenital optic atrophy) and that she had undergone
several eye surgeries, which had improved her eyes from “going out”
but had
not improved her vision.
The ALJ noted that Plaintiff was
unable to drive as a result of her eye impairments and that she
needed a magnifying glass and glasses to aide in her vision.
-23-
The
ALJ also noted that Plaintiff complained of eye pain resulting from
her eye impairments and that she took Tylenol for said pain.
However, the ALJ also noted, after her eye surgery in April 2011,
Plaintiff’s eyes were appropriately aligned in the distance and
that she had near fixation while wearing her glasses.
Thus, the
Court finds that there is substantial evidence to support the ALJ’s
decision that Plaintiff does not have an “extreme” limitation in
this domain.
In sum, the ALJ correctly found that Plaintiff’s impairments
did
not
result
in
“marked”
limitations
in
two
domains
of
functioning or an “extreme” limitation in one domain. 20 C.F.R.
416.926a(d).
As
a
result,
Plaintiff’s
impairments
did
not
functionally equal the Listings, and thus she was properly found
not to be disabled.
(2)
The ALJ’s RFC Determination
Under the adult disability standard, the ALJ determined that
Plaintiff retained the RFC to perform the full range of work at all
exertional levels with the following limitations: “the claimant
would
need
irritants
to
avoid
such as
ventilated areas.
concentrated
fumes,
odors,
exposure
dusts
and
to
environmental
gases,
and
poorly
She would also be limited to occupations, which
do not require near acuity.”
T. 75.
A claimant’s RFC represents an assessment of her “ability to
do sustained work-related physical and mental activities in a work
-24-
setting on a regular and continuing basis. . . .” 20 C.F.R.
§ 404.1545(a)(1).
The Regulations provide in pertinent part that
the Commissioner “will assess [the claimant’s] residual functional
capacity based on all of the relevant medical and other evidence.”
20 C.F.R. 416.945(a)(3).
The Commissioner is not “permitted to
substitute his own expertise or view of the medical proof for the
treating physician’s opinion, or indeed for any competent medical
opinion.”
Burgess v. Astrue, 537 F.3d at 128.
“In assessing RFC,
the ALJ’s findings must specify the functions plaintiff is capable
of
performing;
conclusory
statements
capacities are not sufficient.”
regarding
plaintiff’s
Martone v. Apfel, 70 F. Supp.2d
145, 150 (N.D.N.Y. 1999) (citing, inter alia, Ferraris v. Heckler,
728 F.2d 582, 588 (2d Cir. 1984);
Sullivan v. Secretary of Health
& Human Servs., 666 F. Supp. 456, 460 (W.D.N.Y. 1987)).
Here, as the ALJ explained in his decision, Plaintiff’s RFC
was supported by the opinions and treatment records of physicians
Jacobs-Perkins and Markowitz.
Specifically, Dr. Jacobs-Perkins
opined that Plaintiff had no limitation in lifting and carrying,
sitting, standing and/or walking, and pushing and/or pulling.
T. 409.
In his December 16, 2011 assessment report, Dr. Jones-
Perkins diagnosed Plaintiff with, among other things, strabismus
optic nerve hypoplasia and opined that she needed a magnifying
glass to read and had trouble reading bus numbers.
-25-
T. 409.
The
ALJ reasonably determined that Plaintiff could perform work, but
was restricted to work that did not require visual acuity.
The opinion of Dr. Jacobs-Perkins was consistent with the
other evidence in the record, including the treatment notes from
treating eye physician Dr. Markowitz. T. 75.
Although, as the ALJ
noted, Dr. Markowitz indicated on his December 2011 assessment form
that he could not provide a medical opinion regarding Plaintiff’s
work-related activities, his treatment notes consistently showed
that Plaintiff was doing well following her 2011 surgery, her eye
alignment was improving, and no significant findings were made.
T. 309-400.
Further, in his post-operative treatment notes,
Dr. Markowitz assessed that Plaintiff could resume gym and sports
in early May 2011.
T. 379.
In reaching his RFC determination, the ALJ also took into
account Plaintiff’s asthma, which the evidence shows Plaintiff was
diagnosed with and treated for during the relevant time period, by
restricting Plaintiff to work that did not require concentrated
exposure to environmental irritants, such as excessive dust, fumes,
odors, gases and poorly ventilated areas.
T. 75, 257, 386-387,
394.
Furthermore, there is no merit to Plaintiff’s claim that the
ALJ’s RFC determination was flawed because it failed to incorporate
limitations related to Plaintiff’s fatigue and depression.
No. 12-1 at 27.
Dkt.
As discussed above, Plaintiff did not claim
-26-
depression as a disabling impairment when she first applied for
benefits, and she testified at the administrative hearing that was
not
currently
being
treated
for
any
mental
health
issues.
Additionally, there is no evidence in the record that Plaintiff’s
depression significantly limited her ability to perform work.
Plaintiff’s statements with respect to her daily activities also
belie her contention that her chronic depression limits her ability
to work.
Accordingly, the ALJ reasonably found that Plaintiff had
no limitations from a mental impairment, and his RFC determination
is supported by substantial evidence.
D.
Plaintiff’s Credibility
Plaintiff claims that the ALJ’s credibility assessment is the
product of legal error insofar as the ALJ:
(1) improperly engaged
in a credibility assessment calculated to conform to his RFC
determination; (2) failed to discuss Plaintiff’s testimony in its
entirety, which supports greater limitations than those assessed by
the ALJ; and (3) failed to make credibility findings regarding the
testimony of Plaintiff’s mother.
Here,
the
ALJ
determined
Dkt. No. 12-1 at Point 4.
that
Plaintiff’s
medically
determinable impairments could reasonably be expected to cause the
alleged symptoms, but that her statements concerning the intensity,
persistence and limiting effects of the symptoms were not credible
to the extent they were inconsistence with the RFC.
-27-
T. 69, 75.
“The assessment of a claimant’s ability to work will often
depend
on
the
credibility
of
her
statements
concerning
the
intensity, persistence and limiting effects of her symptoms.”
Otero v. Colvin, 12-CV-4757, 2013 U.S. Dist. LEXIS 37978, 2013 WL
1148769, at *7 (E.D.N.Y. Mar. 19, 2013).
Thus, it is not logical
to decide a claimant’s RFC prior to assessing her credibility. Id.
As Plaintiff correctly points out, this Court –- as well as others
in this Circuit –- have found it improper for an ALJ to find a
plaintiff’s statements not fully credible simply “because those
statements are inconsistent with the ALJ’s own RFC finding.”
Ubiles v. Astrue, No. 11-CV-6340T (MAT), 2012 U.S. Dist. LEXIS
100826, 2012 WL 2572772, at *12 (W.D.N.Y. July 2, 2012) (citing
Nelson v. Astrue, No. 5:09-CV-00909, 2010 U.S. Dist. LEXIS 90689,
2012 WL 2010 3522304, at *6 (N.D.N.Y. Aug. 12, 2010), report and
recommendation adopted, 2010 U.S. Dist. LEXIS 90686, 2010 WL
3522302
Instead,
(N.D.N.Y.
SSR
Sept.
96-7p,
1,
1996
2010);
SSR
other
LEXIS
4
citations
requires
omitted)).
that
“[i]n
determining the credibility of the individual’s statements, the
adjudicator must consider the entire case record.” SSR 96-7p, 1996
SSR LEXIS 4, at *3, 1996 WL 374186, at *4 (S.S.A. July 2, 1996);
20 C.F.R. §§ 404.1529, 416.929.
Here, although the ALJ found that Plaintiff’s statements were
not fully credible to the extent they were inconsistent with his
RFC finding, the ALJ measured Plaintiff’s credibility by evaluating
-28-
the required factors bearing on her credibility prior to deciding
Plaintiff’s RFC.
Contrary to Plaintiff’s contention, the ALJ
thoroughly discussed Plaintiff’s statements with respect to her
medical history, her symptoms and related treatments, and her daily
activities.
The ALJ determines issues of credibility and great
deference is given his judgment. Gernavage v. Shalala, 882 F.Supp.
1413, 1419, n.6 (S.D.N.Y. 1995).
Specifically, the ALJ noted Plaintiff’s complaint that she is
unable to work because of her vision problems.
He acknowledged
that Plaintiff had undergone several eye surgeries, and that these
surgeries were met with some success.
He also acknowledged her
need for a magnifying glass and glasses to aide her vision.
further
noted
Plaintiff’s
allegations
that
she
has
He
problems
switching between seeing close up and far off, and has difficulty
focusing.
T. 68.
However, the ALJ pointed out that Plaintiff also
testified that she was able to see the tissue box on the desk in
front of her at the hearing and was able to see him on the screen,
she was able to see a paper clip on a desk, work on small craft and
large projects and was able to see differences in some colors but
could not seen differences in difference shades of the same color.
Additionally, the ALJ pointed out that while Plaintiff reported
having problems with seeing things in the distance, she also
testified that she can see the house across the street from where
she lives.
The ALJ also noted that while Plaintiff reported
-29-
experiencing occasional eye fatigue, pain and related headaches,
she also reports that she rests her eyes and that she takes Tylenol
for the headaches.
Further,
the
T. 68.
ALJ
compared
Plaintiff’s
alleged
pain
and
symptoms with her testimony related to her daily activities.
He
discussed that Plaintiff reported being able to cook, clean, bathe
and dress herself daily, and that she attends full-time regular
classes
at
school
where
she
reads
with
the
assistance
of
a
magnifying glass. He also pointed out that Plaintiff reported that
she helps her mother take care of her brothers by making sure they
do not cause a mess in the house and changing their diapers.
T. 68.
It is worth noting that the ALJ did not entirely discount
Plaintiff’s subjective complaints of pain and related symptoms when
assessing her RFC.
Rather, the ALJ determined that Plaintiff was
able to perform a full range of work, but that she was specifically
limited to occupations that do not require near visual acuity.
T. 75.
Accordingly, Plaintiff’s argument that the ALJ failed to
properly assess her subjective complaints is rejected.
Finally, the Court finds no merit to Plaintiff’s contention
that the ALJ’s credibility assessment is flawed because he failed
to make credibility findings with respect to the testimony of
Plaintiff’s mother.
“As a fact-finder, an ALJ is free to accept or
reject the testimony of a parent.”
-30-
F.S. v. Astrue, 2012 U.S. Dist.
LEXIS 18865, 2012 WL 514944, at * 19 (N.D.N.Y. Feb. 15, 2012).
It
is evident from the text of the ALJ’s decision that he considered
the lay witness testimony of Plaintiff’s mother.
However, a
finding that any witness is not credible must be set forth with
specificity to allow for proper review of the record.
Id.
Here, the ALJ summarized Plaintiff’s mother’s testimony at
page 69 of the administrative transcript, specifically noting her
testimony that: Plaintiff cannot see small prints, she is clumsy,
that she trips two to three times a week, that her eyes hurt after
looking at something for an hour and will have to take Tylenol for
pain, that she cannot wash dishes or vacuum because she is not able
to see small particles on a plate or lint on the floor, that she
cannot drive because she could not see the writing on the document
to get a learners permit, and that her daughter’s eye condition has
not gotten worse but will not get better.
T. 69.
Although the ALJ
did not expressly state the weight she afforded to Plaintiff’s
mother’s testimony, he did discuss the testimony in such a way as
to
make
it
clear
to
a
reviewer
of
the
decision
that,
like
Plaintiff’s testimony, he afforded it some, but not great weight.
“[T]he evidence of record permits us to glean the rationale of an
ALJ’s decision, we do not require that [s]he have mentioned every
item of testimony presented to [her] or have explained why [s]he
considered particular evidence unpersuasive or insufficient to lead
-31-
[her] to a conclusion of disability.”
Mongeur, 722 F.2d at 1040
(citing Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)).
Moreover, the Court notes that even if the ALJ did fully
credit Plaintiff’s mother’s testimony –- a finding this Court does
not make -- such a consideration would not impact the ALJ’s
determination that Plaintiff is not disabled because the evidence
in
the
record,
disability.
as
a
whole,
does
not
support
a
finding
of
Statements alone cannot be conclusive evidence of
disability; instead, “[m]edical signs and laboratory findings,
established
diagnostic
by
medically
techniques,
acceptable
must
show
the
clinical
existence
or
of
laboratory
a
medical
impairment(s) which results from anatomical, physiological, or
psychological abnormalities and which could reasonably be expected
to
produce
the
pain
or
other
symptoms
alleged.”
20
C.F.R.
§ 416.929(b).
Therefore, any error in failing to assign a specific weight to
the testimony of Plaintiff’s mother is a harmless error.
Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
See
“Where
application of the correct legal principles to the record could
lead only to the same conclusion, there is no need to require
agency consideration.”) (internal quotation omitted).
In sum, the Court finds that the ALJ’s credibility assessment
with respect to the testimony of Plaintiff and her mother is
supported by substantial evidence and does not warrant remand.
-32-
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted, the Plaintiff’s 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:
June 6, 2014
Rochester, New York
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