Capron v. Commissioner of Social Security
Filing
15
-CLERK TO FOLLOW UP-DECISION AND ORDER denying 9 Motion for Judgment on the Pleadings; granting 11 Motion for Judgment on the Pleadings. Clerk of the Court is directed to close this action. Signed by Hon. Charles J. Siragusa on 6/25/15. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
CARL CAPRON,
Plaintiff
DECISION AND ORDER
-vs14-CV-6080 CJS
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
________________________________________
APPEARANCES
For the Plaintiff:
Mark M. McDonald, Esq.
Bond, McDonald and Lehman, P.C.
91 Genesee Street
Geneva, New York 14456
For the Defendant:
Andreea Laura Lechleitner, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Kathryn L. Smith, A.U.S.A.
Office of the United States Attorney
for the Western District of New York
100 State Street, Room 620
Rochester, New York 14614
1
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Carl Capron (“Plaintiff”) for Social Security Disability
Insurance (“SSDI”) benefits and Supplemental Security Income (“SSI”) disability benefits.
Now before the Court is Plaintiff’s motion (Docket No. [#9]) for judgment on the pleadings
and Defendant’s cross-motion [#11] for judgment on the pleadings. Plaintiff’s application
is denied and Defendant’s application is granted.
VOCATIONAL HISTORY
At the time of the hearing Plaintiff, who was 41 years of age, had graduated from
high school and worked at various jobs, including that of “mixer” at a food processing
plant, “mold operator,” “press operator” and machine operator at multiple factories, and
“propane tank reconditioner” at a gas company. (189). Plaintiff’s longest period of
employment at the same job was six years, when he worked at a turkey farm. (287).
PROCEDURAL HISTORY
On December 5, 2011 Plaintiff applied for both SSDI and SSI benefits, claiming to
be disabled due to “bipolar disorder, mania and depression.” (34). Later, Plaintiff
expanded his claim to include problems with his hands and elbows, specifically, “arthritis
in both hands and tendinitis in both elbows.” (34-35, 38). Plaintiff claimed that he
became unable to work on June 20, 2010. (155).1
1
Plaintiff also indicated, though, that he subsequently worked between October 2010 and
December 2010, and stopped working only because the job “ended due to lack of work.” (173, 188).
However, the ALJ apparently determined that such work did not qualify as substantial gainful employment.
(17).
2
As part of his application, Plaintiff described his activities of daily living. For
example, on December 22, 2011, Plaintiff, who was living with his parents at the time,
due to a court order preventing him from living with his long-time live-in girlfriend,
indicated that he had no problem with his own personal care (196), was able to cook his
own meals (197-198), and could do laundry, “mowing and some gardening,” “some
cleaning,” “simple household repairs” and shopping. (198-199). Plaintiff stated that he
spent his days visiting with family, watching television, reading, playing video games,
gardening and attending medical appointments and meetings of Alcoholics Anonymous
and Narcotics Anonymous. (199-200). Plaintiff indicated, though, that it was difficult to
do work requiring steady hands because his hands shake, apparently as a side-effect of
his Lithium medication. (198). Plaintiff also reported that he believes he has a short
attention span. (200, 202). However, Plaintiff indicated that he could follow oral and
written instructions, and had no problem getting along with “bosses” or other authority
figures. (202). In February 2012, Plaintiff reported that he was again living with a
girlfriend (362). At that time, Plaintiff also reported that his daily activities included
cooking, cleaning, laundry, shopping once per week, and providing childcare for his
daughter on weekends. (367-368).
In connection with Plaintiff’s application, the Commissioner, through the New York
State Division of Disability Determinations (“DDD”), obtained medical records from the
treatment providers that Plaintiff identified. See, Disability Worksheet (191-193, 390-398)
& Exhibits 1F-10F. For example, the Commissioner obtained records (311-360) from
Auburn Memorial Hospital (“Auburn Memorial”) in Auburn, New York, where Plaintiff
previously resided, records from Plaintiff’s primary care physician after Plaintiff moved to
3
Lyons New York, (255-261), treatment records from Plaintiff’s mental health therapist
(269-299) and records from Plaintiff’s arm surgeon (262-268), as well as reports from a
consultative psychiatric evaluation by psychologist Rachelle Hansen, Psy.D (“Hansen”)
(300-304, 362-366) and a consultative orthopedic examination by Harbinder Toor, M.D.
(“Toor”). (367-371).
Plaintiff’s aforementioned records from Auburn Memorial primarily pertain to three
separate medical issues: 1) an in-patient admission in April 2010 after he became
intoxicated and suicidal; 2) a complaint of chest and arm pain; and 3) in-patient treatment
following a suicidal gesture in July 2010 and the treatment of his underlying depression.
(315). The Court will discuss each of these issues in turn.
On April 13, 2010, Plaintiff was referred to Auburn Memorial’s ER by the Auburn
Police Department, due to the fact that he was intoxicated, agitated, depressed and
suicidal. (344-360). Plaintiff reportedly indicated that he had “run out” of psychiatric
medications two days earlier and had “been drinking in place of meds.” (347). At the
time of admission, on April 13th at approximately 10:30 p.m., Plaintiff was intoxicated,
depressed, suicidal, angry and hallucinating. (351). By the following morning, Plaintiff’s
mental status was much improved. Specifically, on April 14, 2010 at 10:15 a.m., Plaintiff
was fully oriented and cooperative, his memory was intact, his affect and thought
process were within normal limits, he was not hallucinating and he denied feeling
suicidal. (347). However, Plaintiff’s insight, judgment and impulse control were poor.
(348). Plaintiff also felt “stressed” over his personal relationships (his girlfriend was
undergoing “extensive treatment for cocaine”) and employment (he was recently laid off
from work). (349).
4
In June 2010, Plaintiff returned to Auburn Memorial complaining primarily of pain
in his chest, though he also indicated that his left arm sometimes felt numb. (331).
Plaintiff’s mental state at that time was apparently unremarkable. (334). Medical staff
performed a variety of tests, but it t does not appear that they found a particular reason
for Plaintiff’s chest pain.
Plaintiff returned to Auburn Memorial’s ER in July 2010, following a suicidal
gesture in which he consumed alchohol and over-the-counter medications (Excedrin and
cold tablets). (286). Upon admission to the hospital, doctors described Plaintiff as having
“a history of depression and possibly cycling mood disorder as well as alcohol
dependence.” (318). Plaintiff indicated that prior to his impulsive overdose, “he had
actually been doing fairly well in treatment of his depression with Zoloft,” that he had
stopped taking that medication when he lost medicaid coverage due to the fact that his
income had increased. (318). Similarly, Plaintiff stated that he had been taking Seroquel,
which was “quite good for his anxiety and depression,” but had stopped taking it due to
the cost. (318). Plaintiff added, though, that even when he was taking Zoloft he still had
some “depressive symptoms.” (318). The results of a mental status exam performed at
the time of admission to the hospital were essentially unremarkable, although his “mood
was dysphoric at times” when talking about his family problems, and his judgment and
insight were “partial.” (319). On July 19, 2010, David Strickland, M.D. reported the
results of Plaintiff’s mental status examination, in pertinent part, as follows:
He is alert. He is oriented, pleasant, cooperative, well dressed and well
groomed. Psychomotor activity is unremarkable. No tardive dyskinesia
[involuntary movements]. No tremor. He is certainly not intoxicated. His
speech is unremarkable. Thoughts are logical and linear. Thought content
5
is reality-based. His mood is stated as ‘much better.’ His affect is
euthymic. He denies adamantly any suicidal ideation or intent. His
judgment and insight appear improved at this time, though I sometimes
think he underestimates the power of alcohol in his illness. He is not
psychotic. His cognitive function, attention span and fund of knowledge are
unremarkable. . . . I would say if he remains abstinent from alcohol,
continues with therapy and responds well to the combined psychiatric
medication [Lithium and Celexa] and psychotherapy approach, he should
do well. However, certainly, if he goes back to drinking or abusing
substances of any kind, his prognosis will be poor due to his history of
impulsive behaviors.
(316).
As mentioned earlier, the Commissioner also obtained records from Plaintiff’s
primary care physician in Lyons, New York (Exhibit 1F), Effat Jehan, M.D. (“Jehan”),
which cover the period of late 2010 to early 2011. Such records refer cursorily to
Plaintiff’s history of bipolar disorder and to the purported suicide attempt in July 2010.
(255). The records also indicate that Plaintiff takes psychiatric medications including
Lithium and Trazodone. (256). Otherwise, the records pertain mainly Plaintiff’s
complaints of pain/numbness in his hands and left elbow. On September 22, 2010,
Plaintiff had his initial visit with Jehan, at which time he was complaining of hand pain.
The results of Jehan’s examination of Plaintiff were normal, and he ordered routine
testing such as a lipid panel. (261). On October 20, 2010, Plaintiff reportedly told Jehan
that “his hand pain is a lot better.” (260). Jehan observed that Plaintiff’s lab test results
were “ok,” except that his Vitamin D level was low. (260). On January 4, 2011, Jehan
reported that Plaintiff was complaining of pain in his left elbow, which he had been
experiencing for “the past three months.” (259). Jehan’s impression was “lateral
6
epicondylitis” of the left elbow, for which he prescribed Naproxen (Aleve) as needed.
(259). On March 1, 2011, Jehan reported that Plaintiff was complaining of bilateral heel
pain, dry skin and boils on his thigh and back. (258). Otherwise, Plaintiff’s physical
examination was normal.
The Commissioner also obtained records from Plaintiff’s orthopedic surgeon,
Daniel Alexander, M.D. (“Alexander”), who provided a medical source statement dated
January 5, 2012. (Exhibit 2F). Alexander indicated that Plaintiff had left lateral
epicondylitis and “bilateral cubital/carpal” tunnel syndrome, about which Plaintiff was
complaining of numbness and tingling of the hands. (262). Alexander indicated that
Plaintiff was receiving injections and physical therapy, and that “improvement [was]
expected.” (263). Alexander stated that despite Plaintiff’s complaints, he had “no
limitations” on his ability to lift and carry, stand and/or walk, sit, and push and/or pull.
(265-266). Alexander further stated that Plaintiff had no postural or manipulative
restrictions. (266). Alexander stated, though, that he could not “provide a medical
opinion regarding [Plaintiff’s] ability to do work-related activities.” (266). Plaintiff contends
that such statement is contradictory, but the Court disagrees. In that regard, viewing
Alexander’s report as a whole, including his unambiguous statements that Plaintiff had
“no limitations” in the foregoing areas, and also due to the fact that Plaintiff was not
working at the time, the Court understands Alexander’s statement about “work-related
activities” to mean only that he was not expressing any opinion about Plaintiff’s ability to
perform any particular work-related tasks that would involve activities other than those
about which he had already given an opinion. In support of that view, the Court notes
that Alexander later reiterated that Plaintiff could go “back to work without restrictions.”
7
(495).
The Commissioner also obtained records from Plaintiff’s mental health therapy
provider, Wayne Behavioral Health Network (“Wayne Behavioral”), which apparently
cover the period between August 4, 2010 and November 1, 2011. (Exhibit 3F). Plaintiff
began treating with Wayne Behavioral in August 2010, following the purported suicide
attempt in July 2010, after which he had moved from Auburn to Lyons to live with his
parents. (286). Plaintiff reported that the overdose incident arose because he was
distraught over the fact that Child Protective Services (“CPS”) had determined that he
could no longer reside with his girlfriend, their daughter, or the girlfriend’s son, because
years earlier a court had issued a restraining order against him that was still in effect,
preventing him from having contact with his girlfriend, even though he and his girlfriend
had been living together despite the order of protection. (286). Plaintiff indicated that he
was attempting to address his substance-abuse problem through treatment, so that he
could retain custody of his daughter. (286). Plaintiff further indicated that in 2009, he had
attended college full-time, but quit to care for his daughter due to his girlfriend’s drug
addiction. (294) (“He has been linked to VESID and was going to college full-time last
year but he had to quit to care for the kids as GF was using.”). Upon examination,
Ronald Biviano, M.D. (“Biviano”) reported that Plaintiff was alert and oriented and had
logical thoughts, average intelligence, good memory, and fair judgment and insight.
(289). Biviano added, though, that Plaintiff claimed to feel “aggravated,” depressed and
easily agitated, and displayed a “reactive” affect. (289). Biviano made the following
observations, in pertinent part:
8
The client is referred for treatment after a lethal [sic] suicide attempt taking
multiple pills. He feels depressed, poor sleep, decreased appetite with 8
pound weight loss since July 15, 2010, he reports that he is easily agitated.
He stated he does not want to be around people at all not even in stores. .
. . Currently he is stressed by separation from his ex-girlfriend and her son,
he is not working and is staying with his parents. . . . He seems to be
overwhelmed by his current life circumstances. He does report symptoms
that are in line with Bipolar illness and is being treated with medication
[Lithium] for [that] illness. . . . He was previously prescribed Zoloft and
Seroquel but lost ability to pay for them when his income increased too
much and he lost medicaid. He will follow up in 4 weeks.
(291). Biviano further indicated that when Plaintiff was abusing alcohol he had “the
potential to be impulsive.” (289).
Between March 4, 2011 and August 31, 2011, Plaintiff did not receive treatment
from Wayne Behavioral, because he was incarcerated in the Cayuga County Jail due to
the fact that he apparently violated the aforementioned order of protection. (272-274,
276). However, on September 15, 2011, Plaintiff returned to Wayne Behavioral for
treatment. On October 12, 2011, James Arena LCSW (“Arena”) reported that Plaintiff
was seeking treatment for “ongoing depression/bi-polar/anger issues.” (276). Arena
noted that Plaintiff was taking the medications Celexa and Lithium. (277). Arena further
reported that Plaintiff was unemployed and not seeking work, and listed the following
reasons why Plaintiff had left his last job: “low pay, crisis and drug addiction by patient
and his female partner.” (282). Arena conducted a mental status exam and reported that
Plaintiff had a flat affect, anxious mood, focused thoughts, intact orientation and memory,
good insight and poor judgment. (284). Arena gave Plaintiff a GAF score of 61,
observing that Plaintiff had a depressed mood, mild insomnia, some difficulty with social
9
functioning, some difficulty with school/occupational functioning and some meaningful
relationships. (285). Arena additionally reported that Plaintiff was compliant with his
medications and generally had “psychiatric stability,” though he occasionally relapsed
and used alcohol. (273).
As mentioned earlier, the Commissioner also had Plaintiff examined by
consultative psychologist Dr. Hansen, on February 16, 2012. (362-366). Plaintiff
reportedly told Hansen that he stopped working in 2010 “due to a breakdown” (362),
though the record contains no record of such a breakdown, or of any particular event that
preceded Plaintiff’s cessation of work.2 Plaintiff reported to Hansen a variety of
depression- and anxiety-related symptoms. Upon examination, Hansen found that
Plaintiff’s affect was “depressed and anxious” and his mood was “dysthymic,” but
otherwise his mental state was essentially normal. More specifically, Hansen reported
that Plaintiff’s thought processes were coherent and goal-directed, he was oriented to
person, place and time, his attention, concentration and memory were intact, his
cognitive functioning was average, and his insight and judgment were fair. (363-364).
Hansen’s medical source statement was as follows:
The claimant is capable of following and understanding simple directions
and instructions. The claimant can perform simple tasks independently.
The claimant is able to maintain a regular schedule. The claimant is
cognitively able to learn new tasks. The claimant may have difficulty
performing complex tasks independently. The claimant has some difficulty
2
At the hearing, the ALJ attempted unsuccessfully to determine exactly why Plaintiff claimed that
he became unable to work on June 20, 2010 due to bipolar disorder, when the following exchange took
place between the ALJ and Plaintiff’s counsel: “ALJ: All right. Counsel, why is the onset date June 20th,
2010, do you have any idea? ATTY: That’s when he stopped working due to his bipolar disorder, Your
Honor. ALJ: It looks like he stopped working then, okay, due to bipolar? ATTY: Yeah. ALJ: I mean, is
there something like – did he – was he hospitalized on that date? ATTY: No, Your Honor.” (35-36).
10
making appropriate decisions. The claimant has difficulty relating
adequately with others. The claimant does not deal appropriately with
stress. The claimant’s difficulties appear to be caused by his psychiatric
diagnosis. The results of the present evaluation appear to be consistent
with psychiatric problems, and this may significantly interfere with [his]
ability to function on a daily basis.
(365). Hansen’s prognosis was “guarded,” “given [Plaintiff’s] extensive psychiatric
difficulties.” (366).
The Commissioner also had Plaintiff examined by consultative orthopedic
examiner Dr. Toor, on February 16, 2012. (367-371). Toor’s report is based on a
physical examination of Plaintiff and Toor’s review of an x-ray of Plaintiff’s left arm. Toor
reported that Plaintiff’s “chief complaint” was pain in his right arm, resulting from a
fracture of his right wrist in 2010. Plaintiff reported that he had numbness and tingling in
his right hand, as well as difficulty “grasping, holding, pushing, pulling, lifting, and
reaching with the right arm.” (367). Toor examined Plaintiff’s spine and upper and lower
extremities, and reported normal findings except with regard to Plaintiff’s right arm. As to
that, Toor reported that Plaintiff “has mild to moderate limitations with pushing, pulling,
lifting, reaching, grasping, holding, writing, tying shoelaces, zipping a zipper, buttoning a
button, manipulating a coin, or holding objects with the right arm/right hand[.]” (369).
Toor observed no such limitations with regard to Plaintiff’s left hand/arm, and instead
reported full range of motion and strength in the left hand/arm. (369).
The Commissioner also obtained a Psychiatric Review Technique (372-385) and
Mental Residual Functional Capacity Assessment (386-389) from non-treating non-
11
examining state agency psychologist E. Kamin (“Kamin”).3 On the Mental RFC form,
Kamin indicated that Plaintiff was only “moderately” limited with regard to understanding
and remembering detailed instructions, carrying out detailed instructions, working in
close proximity with others without being distracted by them, completing a normal
workday and workweek without interruptions from his symptoms, interacting appropriately
with the general public, getting along with co-workers and traveling in unfamiliar places or
using public transportation. (386-387). Overall, Kamin concluded that Plaintiff “retains
the ability to perform entry level work with limited contact with people.” (388).4
Based upon the foregoing evidence, on March 14, 2012, the Commissioner
denied Plaintiff’s application for SSDI and SSI benefits. (73-86). The Commissioner
determined that despite Plaintiff’s physical and mental problems he was still capable of
performing less than a full range of light work, with “limitations in pushing/pulling,
reaching and handling & fingering with [his right] arm/hand, and [having] limited contact
with people.”(75).
On or about May 16, 2012, Plaintiff appealed, and the Commissioner scheduled a
hearing before an ALJ for October 16, 2012. Meanwhile, on July 25, 2012, Plaintiff
notified the Commissioner that he had retained an attorney. (112) (“Appointment of
Representative”). Approximately two months later, on September 21, 2012, Plaintiff’s
3
The Court observes that the markings on theses two forms are so faint as to be almost illegible.
In fact the first time the Court reviewed these forms it appeared that they were left blank. However, upon
careful study, the Court perceives that there are faint “checks” in many of the boxes on these forms.
4
On the Psychiatric Review Technique form, Kamin indicated that there was insufficient evidence
concerning Plaintiff’s claimed bipolar disorder and polysubstance abuse disorder. (375, 380, 384).
Consequently, in his decision the ALJ essentially rejected Kamin’s Psychiatric Review Technique Form,
noting that it was inconsistent with her opinions in her Mental RFC Assessment. (18, n. 1).
12
attorney wrote to the Commissioner and requested an adjournment of the hearing. In
that regard, Plaintiff’s attorney maintained that Plaintiff’s “SSA form-1696 and fee
agreement [which Plaintiff and his attorney had signed on July 25, 2012,] were not
processed until 9/20/12,” which had prevented him from “fully review[ing] and
develop[ing] [Plaintiff’s] file.” (117). As to that point, it is the Court’s understanding that
the attorney did not have the ability view Plaintiff’s electronic claim folder prior to the
processing of Plaintiff’s SSA form-1696 by the Commissioner, and that without such
access he would not have known which additional records, if any, he needed to obtain
and provide to the Commissioner. In any event, the ALJ did not respond to Plaintiff’s
attorney’s letter.
On October 16, 2012, Plaintiff attended the hearing before the ALJ,
accompanied by his attorney. (32-72). At such time, Plaintiff’s attorney did not renew his
request for an adjournment, or even mention his earlier request for an adjournment to
which he had not received a response. However, counsel told the ALJ that he had been
unable to obtain some of Plaintiff’s treatment records, despite having already given the
treatment providers releases signed by Plaintiff. Plaintiff’s counsel did, though, provide
some additional records at the hearing. Consequently, at the hearing the ALJ had before
him the aforementioned records which the Commissioner had obtained,5 as well as
exhibits 12F and 13F, all of which, combined, consisted of 147 pages of medical records
covering the period 2010 to 2012. (30-31, 52). Exhibit 12F consists of a one-page form
report from Arena, Plaintiff’s therapist, indicating that Plaintiff is “not capable or working
5
See, HALLEX I-2-1-15.
13
in any capacity” due to “mental illness,” specifically, “bi-polar [disorder].” (400). The
Court observes that in rendering such opinion, Arena merely drew a single line/arrow
across the entire list of potential, specific work activities, thereby indicating that they were
“not recommended.” (400). Such a broad statement seems curious, since some of the
activities appear to be ones that Plaintiff is capable of doing, such as working for either a
male or female supervisor,6 “working alone,” “part-time work” and “other.” (400). On the
other hand, Arena indicated that Plaintiff was “capable of participating in classroom
training.” (400).
The second exhibit that Plaintiff’s attorney provided at the hearing, Exhibit 13F,
was merely a notice by the Wayne County Department of Social Services indicating that
Plaintiff was temporarily exempted from “work requirements” because he was “currently
unable to work due to a medical issue.” (401). Such determination was apparently made
by “Mrs. Collins,” though neither her job title nor the basis for her determination is
explained on the form. (401).
During the hearing, Plaintiff and/or his attorney also mentioned the following
additional records, which they hoped to obtain: 1) medication records from Cayuga
Correctional Facility (36); 2) additional “medical source statements”7 concerning
Plaintiff’s ability to work despite his “mental and physical” problems (39); 3) “most-recent”
treatment records from Wayne Behavioral Health (39-40, 42, 51); and 4) additional
6
As noted earlier, Plaintiff indicated that he had no problem working with “bosses” or other
persons in positions of authority. (202).
7
“Medical source statements are medical opinions submitted by acceptable medical sources,
including treating sources and consultative examiners, about what an individual can still do despite a
severe impairment(s), in particular about an individual's physical or mental abilities to perform work-related
activities on a sustained basis.” SSR 96-5p (footnote omitted).
14
records regarding the fracture of Plaintiff’s right hand which was already referenced in
other exhibits. (49). Plaintiff’s counsel told the ALJ that he would obtain these records,
and he asked the ALJ to leave the record open for two weeks to allow him to do so. (39,
51, 71). The ALJ agreed to leave the record open for two weeks. (71).
During the hearing, Plaintiff testified that he could only concentrate for “maybe 15
minutes” before needing to take a break. (43). Plaintiff further indicated that he doesn’t
like working or being around other people, because it makes him “paranoid, confused.”
(43). On this point, Plaintiff flatly indicated that he does not “go grocery shopping”
because he dislikes being around people (44), even though he previously indicated, both
in his written statement to the Commissioner and during his examination by Dr. Toor, that
he went shopping once per week. (199, 367). Plaintiff also testified at the hearing that he
“never” leaves home alone, which again seems inconsistent with other statements he
has made concerning his daily activities.8 (45). When Plaintiff was asked to explain how
the alleged arthritis in his hands affected his ability to work, he stated: “I have trouble
sometimes with my hands that they freeze up, and when it’s cold, they just don’t really – I
can’t really bend my fingers.” (39). Plaintiff stated that for pain, he takes “naproxen,” “as
needed.” (50).
After Plaintiff’s testimony, the ALJ posed a hypothetical question to the Vocational
Expert (“VE”), asking him to assume
a hypothetical claimant that’s a younger person who’s a high school
graduate. Assume this person retains the physical RFC to perform light
work but may only frequently handle, finger or feel. This person retains the
8
Plaintiff has stated, for example, that he routinely attends Alcoholics Anonymous and Narcotics
Anonymous meetings on an almost daily basis, without indicating that anyone else goes with him.
15
mental RFC to perform unskilled work where interactions with others are
routine, superficial and incidental to the work performed. . . . [T]his person
should not do fast paced production work and needs a regular work break
approximately every two hours.
(52-53, 55). The VE opined that such a claimant could not perform any of Plaintiff’s past
relevant work. (57). However, the VE stated that such a claimant could perform other
work in the national economy, including “parking lot attendant,” DOT 915.473-010, and
“sales attendant,” DOT 299.677-010. (57). The ALJ then modified his hypothetical to
indicate that the claimant could only “finger” occasionally, and the VE stated that such a
claimant could not perform the previously-identified job of parking lot attendant, but could
still perform the “sales attendant” job. (62). The ALJ then again modified his initial
hypothetical to indicate that the claimant could only occasionally handle, finger and feel.
(62). The VE responded that such a claimant could still perform other jobs, including
“sandwich board carrier,” DOT 299.687-014, and “outside deliverer,” DOT 230.663-010.
(65-66). Lastly, the ALJ modified the hypothetical to involve “[a] high school graduate,
younger person, [who] retains the physical RFC to perform light work but may only
frequently handle and occasionally finger or feel. The claimant retains [the] mental RFC
to perform unskilled work where interaction for those are routine, superficial and
incidental; where work performed should not be fast paced production work; [and] who
needs a regular work break approximately every two hours.” (71). The VE responded
that such a claimant could still perform the previously-identified jobs of “sales attendant”
and “sandwich board carrier.” (71).
On October 24, 2012 and October 29, 2012, following the hearing, and during the
period in which the ALJ left the record open, Plaintiff’s attorney submitted four additional
16
packets of medical reports, which the ALJ added to the record as Exhibits 14F-17F.
(402-442).9 Exhibit 14F consists of a one-page “Drug/Alcohol Evaluation” form,
completed by Susan Townsend, LMSW (“Townsend”), from Wayne Behavioral. (403).
On the form, Townsend offered only a single opinion, which is that if Plaintiff “were to
completely abstain from the use of any alcohol and drugs, [his] limitations and
impairments [would] continue unabated.” (403). However, Townsend did not indicate the
basis for such opinion.
Exhibit 15F consists of 28 pages of notes from Plaintiff’s counseling sessions at
Wayne Behavioral. (405-432). Such records contain much of the same information that
was already referenced in Exhibit 3F. However, on April 2, 2012, Plaintiff reported that
he “had longstanding problems with anxiety, particularly in social situations,” and that his
depression was triggered by the death of one of his friends when they were teenagers.
(416). The therapist, though, reported that Plaintiff “denies symptoms from the past that
would indicate a bipolar affective disorder or a psychotic disorder. He reports a
significant history of alcohol dependence, marijuana abuse, hallucinogen abuse and
caffeine abuse.” (416) (emphasis added).
Exhibit 16F consists of a printout of Plaintiff’s pharmacy records, including
prescriptions for Lithium and Trazodone. (434-438).
Exhibit 17F is an affidavit from Plaintiff’s mother, Carole Capron. (440-442). Mrs.
Capron essentially reiterated that Plaintiff has a short attention span, as evidenced by
9
The following statement in Plaintiff’s memo of law is therefore incorrect: “It is true that the ALJ
discussed the need for additional records and counsel agreed to provide them, however, the ALJ did not
take any steps to ensure that those records were received, nor did he allow for additional time for their
acceptance into the record.” Pl. Memo of Law at p. 8 (emphasis added).
17
the fact that he starts new tasks before finishing other tasks. (440-441). Mrs. Capron
further indicated that Plaintiff can be short-tempered with people if their communications
with him are not “short and right to the point.” (440). Notably, however, Mrs. Capron also
opined that her son is capable of working, “[i]f the job is suitable with [sic] his
medications,” and that “as long as he is on his medications he can be productive again.”
(442).
On October 31, 2012, after submitting the foregoing additional exhibits, Plaintiff’s
counsel wrote to the ALJ and stated that he was “still waiting for a response from several
[of Plaintiff’s treating] sources,” and asked if the record could be kept open for two
additional weeks, “until 11/14/12.” (235). The ALJ did not respond to the letter, but
neither did he issue a decision at that time or otherwise indicate that he was closing the
record. As of November 14, 2012, Plaintiff’s counsel had not submitted any additional
records, nor did he request a further extension of time to keep the record open.
Consequently, one week later, on November 20, 2012, the ALJ issued his Decision (1531), denying Plaintiff’s applications for SSDI and SSI benefits.
The ALJ’s decision, which found that Plaintiff was not disabled at any time
between the alleged onset date and the date of the decision, follows the familiar five-step
sequential analysis for evaluating disability claims, discussed further below. At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful employment since the
alleged onset date, June 20, 2010. At step two, the ALJ found that Plaintiff has the
following severe impairments: “Affective disorder, anxiety-related disorder, substance
addiction disorder, status post right hand injury, and history of left lateral epicondylitis.”
(17). At step three, the ALJ found that none of Plaintiff’s impairments meet or medical
18
equal a listed impairment. (18). Before reaching step four, the ALJ found that Plaintiff
has the following RFC:
[T]he claimant retains the physical [RFC] to perform light work but may only
frequently handle, and occasionally finger, or feel. Claimant retains the
mental [RFC] to perform unskilled work, where interactions with others are
routine, superficial, and incidental to the work performed. Should not do
fast paced production work. Needs a regular work break approximately
every 2 hours.
(20). In making this RFC determination, it is notable that the ALJ rejected Arena’s onepage medical source statement not because Arena was a licensed clinical social worker,
but because the report was inconsistent with the reports of Hansen and Kamin, which the
ALJ gave “significant weight,” and with Plaintiff’s own description of his activities of daily
living. (24). At step four of the analysis the ALJ found that Plaintiff cannot perform his
past relevant work. However, at step five of the analysis the ALJ found that Plaintiff can
perform other work, including “sales attendant” and “sandwich board carrier.” (26).
Consequently, the ALJ determined that Plaintiff is not disabled. (26-27).
On January 11, 2013, Plaintiff appealed the ALJ’s determination to the Appeals
Council. (10-11). In support of the appeal, Plaintiff submitted five new sets of treatment
records, consisting of 53 pages, which are now set forth in the record as Exhibits 18F22F. (6-7). Presumably these are the records that Plaintiff was attempting to obtain
before the ALJ issued his decision. The Court observes, though, that Exhibit 18F, a
medical source statement from Plaintiff’s primary care physician’s PA, Susan Jackson,
RPAC (“Jackson”), concerning Plaintiff’s abilitiy to “reach, handle and finger,” was
executed on October 12, 2012, and it is therefore unclear why Plaintiff could not have
19
submitted it to the ALJ before the ALJ issued his Decision. In any event, in Exhibit 18F
Jackson opines that Plaintiff may only occasionally “reach at or below shoulder level,”
rarely reach above shoulder level with his right arm and occasionally with his left arm,
and rarely handle or finger with either hand. (444). Jackson further indicates that Plaintiff
should never lift 20 or 50 pounds. (444). Further, Jackson indicates that Plaintiff has
postural restrictions limiting him to occasionally twisting, stooping, crouching, squatting,
climbing stairs and climbing ladders. (444). Such opinion is particularly curious to the
Court, since neither Toor, nor Alexander nor any other doctor indicated that Plaintiff has
any such limitations, or, indeed, any physical restrictions apart from those involving his
hands and arms. In any event, Jackson further indicates that Plaintiff would likely have
“good days and bad days,” and would miss “more than four days per month” from work
due to his impairments. (445). Significantly, Jackson’s report does not reference any
examination notes or other supporting evidence. The reason for that, presumably, is that
there is no such supporting evidence. In that regard, while Jackson is a Nurse
Practitioner in the office of Plaintiff’s primary care physician, Dr. Hong, the only
references to hand or arm impairments in the records obtained from Hong’s practice are
notations of Plaintiff’s subjective complaints of hand pain and numbness.10 Meanwhile,
10
Of course, a treating source's opinion may take into account the claimants's own subjective
complaints or report: "Medically acceptable clinical and laboratory diagnostic techniques include
consideration of a patient's report of complaints, or history, as an essential diagnostic tool." Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir.
2003), internal quotation marks omitted). However, a treating source's opinion is not considered
well-supported if it is based entirely on the claimants's own subjective reports. See, Baladi v. Barnhart, 33
Fed.Appx. 562, 564, 2002 WL 507139 at *2 (2d Cir. Apr. 4, 2002) (A medical opinion based on "plaintiff's
subjective complaints of pain and unremarkable objective tests" is not considered to be well supported by
medically acceptable clinical and laboratory diagnostic techniques); see also, Polynice v. Colvin, 576
Fed.Appx. 28, 31 (2d Cir. Aug. 20, 2014) (“Much of what Polynice labels ‘medical opinion’ was no more
than a doctor's recording of Polynice's own reports of pain.”).
20
all of the physical examinations were normal except for one reference to “arthralgias” in
Plaintiff’s left elbow and hands (479), and Jackson noted that Plaintiff was being treated
for any hand or arm problems by specialists, not Hong.11 (See, Exhibits 1F (255-261),
18F (443-463) and 20F (476-482)).
Exhibit 19F consists of a series of chart notes from Newark Wayne Hospital,
dating from October 2010, as well as notes from a “cubital tunnel” surgery in August
2012 on Plaintiff’s left elbow. The Newark Wayne notes indicate that Plaintiff was
admitted to the hospital on October 23, 2010, “highly intoxicated,” following a purported
intentional drug overdose (448), though later notes state that “there is no evidence he
OD’d + he denies that he did.” (449). Plaintiff was transported to the hospital by police,
who first tasered him (five times), after he became aggressive when they found a crack
pipe in his pocket. (458, 459). The notes report that Plaintiff became intoxicated using
alcohol because he was distraught over the ending of a recent “short romance” and had
also been inconsistent in taking his medications. (449-450). On the evening he was
admitted, a chart note indicates that he “cont[inues] to have disjointed thoughts – nice
and suddenly gets quickly agitated.” (459). Upon being discharged from the hospital two
days later, Plaintiff’s mood was “good” and his affect was “full and appropriate.” (454).
Surprisingly, in light of Plaintiff’s claim of social anxiety, the notes indicate that while he
was in the hospital he was social, “attending groups, recreational activities and
social[izing] with select peers.” (455).
The remaining portion of Exhibit 19F pertains to cubital tunnel syndrome surgery
11
See, (479) (“He is being treated by neurology and orthopedics for those conditions.”).
21
on Plaintiff’s left arm on August 1, 2012, by Dr. Alexander. (464-475). The reader will
recall that Alexander had previously provided a medical source statement about this
same condition. (See, Exhibit 2F (262-268)). Alexander’s surgical notes indicate that the
surgery went well. (474-475).12
Exhibit 20F consists of office notes from Dr. Hong, Plaintiff’s primary care
physician in 2012, for complaints involving mundane matters such as rashes and the flu.
However, the notes include references to Plaintiff’s mental state. For example, on
October 12, 2012, PA Jackson wrote:
Psychiatric/Behavioral: Positive for sleep disturbance and dysphoric mood
(improving, some days are more difficult.). Negative for suicidal ideas and
self-injury. The patient is nervous/anxious (always).
***
Psychiatric: His speech is normal and behavior is normal. Judgment and
thought content normal. His mood appears anxious. His affect is not
angry, not blunt, not labile and not inappropriate. Cognition and memory
are normal. He exhibits a depressed mood.
(477-478). On November 12, 2012, Jackson reported that Plaintiff’s “dysphoric mood”
was “well controlled on current medications/followed by [therapy at Wayne Behavioral]
twice a month. Negative for suicidal ideas and self injury. The patient is
nervous/anxious (well controlled).” (481).
12
At the hearing, Plaintiff indicated that he was still having some post-surgery pain in his left arm,
but that was apparently normal since Alexander had told him that the arm would probably be sore for
about a year. (46-47) (“I mean, he said it’d be sore for like a year.”).
22
Exhibit 21F is a collection of notes from neurologist Eugene Tolomeo, M.D.
(“Tolomeo”), dating from 2011 and concerning Plaintiff’s complaints of hand and arm
pain prior to his surgery by Dr. Alexander. (483-488). The notes indicate that Alexander
referred Plaintiff to Tolomeo for nerve conduction studies. Tolomeo reported that Plaintiff
was complaining of paresthesias (tingling/pins and needles) in both hands. (484).
Tolomeo indicated that the nerve conduction testing indicated an abnormality with
Plaintiff’s left elbow (484), which he attributed to left cubital tunnel syndrome (485), for
which Alexander later performed surgery.
Lastly, Exhibit 22F consists of notes from Alexander. Most of the notes are dated
prior to Plaintiff’s surgery, and report Alexander’s impression that Plaintiff had left lateral
epidondylitis and bilateral cubital/carpal tunnel syndrome that required surgery. (489495). The last two notes, dated August 14, 2012 and September 25, 2012, respectively,
are post-surgery, and indicate that Plaintiff was doing well. (494) (“He is doing very well
and is happy so far with his outcome. He is not taking anything for pain.”); (495) (“He
has been doing well and happy that he had the surgery performed.”). Quite significantly,
Alexander stated that Plaintiff could go “back to work without restrictions.” (495).
On January 7, 2014, the Appeals Council denied Plaintiff’s appeal, finding no
basis to review the ALJ’s determination. (3-8). Consequently, the ALJ’s determination is
the Commissioner’s final decision regarding Plaintiff’s claim.
On February 20, 2014, Plaintiff commenced this action. Plaintiff contends that the
Commissioner’s decision must be reversed for four reasons: 1) the ALJ failed to develop
the record; 2) the ALJ and Appeals Council “improperly rejected” the opinions of
Plaintiff’s treating sources; 3) the ALJ’s RFC determination was incorrect; and 4) the
23
ALJ’s credibility determination was incorrect. In connection with Plaintiff’s motion for
judgment on the pleadings [#9], his attorney has submitted an affidavit [#9-2] along with
three additional sets of medical records that were not previously submitted to the
Commissioner. See, Docket No. [#9-2] at p. 2.13
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the Commissioner
of Social security as to any fact, if supported by substantial evidence, shall be
conclusive.” The issue to be determined by this Court is whether the Commissioner’s
conclusions “are supported by substantial evidence in the record as a whole or are based
on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
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.” Id.
For purposes of the Social Security Act, disability is the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.
The SSA has promulgated administrative regulations for determining when a
claimant meets this definition. First, the SSA considers whether the claimant is
13
The first group of records is from Auburn Memorial and pertains to, inter alia, a fracture of
Plaintiff’s right hand in 2008 during a fight, which is mentioned in records that were already submitted to
the Commissioner, and Plaintiff’s subsequent request for medications to help him control his anger and
irritability. Such records include a reference to the fact that Plaintiff was using amphetamines and alcohol.
(Docket No. [#9-2] at p. 31). The second group of records are notes made in 2008 by Thomas Sullivan,
M.D. (“Sullivan”), and also pertain to the fracture of Plaintiff’s right hand, though Plaintiff told Sullivan that
he injured his hand in a fall while walking his dog. Id. at p. 36. The third group of records are counseling
“progress notes” from Wayne Behavioral, mostly written by Arena, and mostly dealing with angermanagement counseling. These records are largely cumulative of the records already before the
Commissioner.
24
currently engaged in substantial gainful employment. If not, then the SSA
considers whether the claimant has a “severe impairment” that significantly limits
the “ability to do basic work activities. If the claimant does suffer such an
impairment, then the SSA determines whether this impairment is one of those
listed in Appendix 1 of the regulations. If the claimant’s impairment is one of those
listed, the SSA will presume the claimant to be disabled. If the impairment is not
so listed, then the SSA must determine whether the claimant possesses the
“residual functional capacity” to perform his or her past relevant work. Finally, if
the claimant is unable to perform his or her past relevant work, then the burden
shifts to the SSA to prove that the claimant is capable of performing “any other
work.”
Schaal, 134 F.3d at 501 (Citations omitted).
Under the regulations, a treating physician’s opinion is entitled to controlling
weight, provided that it is well-supported in the record:
If we find that a treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record, we will give it controlling
weight.
20 C.F.R. § 416.927(c)(2); 20 C.F.R. § 404.1527(c)(2). However, “[w]hen other
substantial evidence in the record conflicts with the treating physician's opinion . . . that
opinion will not be deemed controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999)(citing 20 C.F.R. § 404.1527(c)(4), formerly designated as 20 C.F.R. §
404.1527(d)(4)). Nevertheless,
[a]n ALJ who refuses to accord controlling weight to the medical opinion of
a treating physician must consider various ‘factors’ to determine how much
weight to give to the opinion. 20 C.F.R. § 404.1527[(c)](2). Among those
factors are: (i) the frequency of examination and the length, nature and
extent of the treatment relationship; (ii) the evidence in support of the
treating physician's opinion; (iii) the consistency of the opinion with the
record as a whole; (iv) whether the opinion is from a specialist; and (v)
other factors brought to the Social Security Administration's attention that
tend to support or contradict the opinion. Id. The regulations also specify
25
that the Commissioner ‘will always give good reasons in [her] notice of
determination or decision for the weight [she] give[s] [claimant's] treating
source's opinion.’ Id.; accord 20 C.F.R. § 416.927[(c)](2); see also Schaal,
134 F.3d at 503-504 (stating that the Commissioner must provide a
claimant with “good reasons” for the lack of weight attributed to a treating
physician's opinion).
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). An ALJ, though, is not required to
explicitly discuss each factor, as long as his “reasoning and adherence to the regulation
are clear.” Atwater v. Astrue, 512 Fed. Appx. 67, 70, 2013 WL 628072 at *2 (2d Cir. Feb.
21, 2013) (“Atwater challenges the ALJ's failure to review explicitly each factor provided
in 20 C.F.R. § 404.1527(c). We require no such slavish recitation of each and every
factor where the ALJ's reasoning and adherence to the regulation are clear.”) (citation
omitted).
Administrative Law Judges are required to evaluate a claimant’s credibility
concerning pain according to the factors set forth in the Commissioner’s regulations,
which state, in relevant part:
In determining whether you are disabled, we consider all your symptoms,
including pain, and the extent to which your symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence. By objective medical evidence, we mean medical signs and
laboratory findings as defined in § 404.1528 (b) and (c). By other evidence,
we mean the kinds of evidence described in §§ 404.1512(b)(2) through (8)
and 404.1513(b)(1), (4), and (5), and (d). These include statements or
reports from you, your treating or nontreating source, and others about your
medical history, diagnosis, prescribed treatment, daily activities, efforts to
work, and any other evidence showing how your impairment(s) and any
related symptoms affect your ability to work. We will consider all of your
statements about your symptoms, such as pain, and any description you,
your treating source or nontreating source, or other persons may provide
about how the symptoms affect your activities of daily living and your ability
to work.
26
***
In evaluating the intensity and persistence of your symptoms, including
pain, we will consider all of the available evidence, including your medical
history, the medical signs and laboratory findings and statements about
how your symptoms affect you. (Section 404.1527 explains how we
consider opinions of your treating source and other medical opinions on the
existence and severity of your symptoms, such as pain.) We will then
determine the extent to which your alleged functional limitations and
restrictions due to pain or other symptoms can reasonably be accepted as
consistent with the medical signs and laboratory findings and other
evidence to decide how your symptoms affect your ability to work.
20 C.F.R. § 404.1529(a); 20 C.F.R. § 416.929(a). The regulation further states, in
relevant part:
Factors relevant to your symptoms, such as pain, which we will consider
include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief
of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due
to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3). However, while an ALJ is
required to consider these factors, he is not required to explicitly discuss each one. See,
Pellam v. Astrue, 508 Fed.Appx. 87, 91, 2013 WL 309998 at *3 (2d Cir. Jan. 28, 2013)
(“The ALJ did not apply an incorrect legal standard when judging the credibility of
Pellam's testimony. Although the ALJ did not explicitly discuss all of the relevant factors,
27
Pellam has failed to point to any authority requiring him to do so. In any event, the ALJ
cited the applicable regulation, 20 C.F.R. § 404.1529, explicitly mentioned some of the
regulatory factors (such as Pellam's limited use of pain medication), and stated that he
considered all of the evidence required by § 404.1529.”). If it appears that the ALJ
considered the proper factors, his credibility determination will be upheld if it is supported
by substantial evidence in the record. Id.
DISCUSSION
As mentioned earlier, Plaintiff maintains that the Commissioner’s ruling must be
reversed for the following reasons: 1) the ALJ failed to develop the record; 2) the ALJ
and Appeals Council “improperly rejected” the opinions of Plaintiff’s treating sources; 3)
the ALJ’s RFC determination was incorrect; and 4) the ALJ’s credibility determination
was incorrect.
Development of the record
Plaintiff maintains that the ALJ failed to develop the record in various ways. First,
Plaintiff contends that the ALJ erred by failing to grant his request to adjourn the hearing.
According to Plaintiff, “[n]o reason was provided by the ALJ or his staff as to why an
adjournment was not granted.” Apparently, Plaintiff maintains that the ALJ’s failure to
grant such request resulted in the record being incomplete. However, the Court finds
that Plaintiff waived any argument concerning the requested adjournment by attending
the hearing and saying nothing about the adjournment request. Instead, Plaintiff
participated fully in the hearing and then asked the ALJ to leave the record open in order
to allow him to submit additional documentation, which the ALJ did. Moreover, Plaintiff
submitted several additional exhibits to the ALJ after the hearing, which were added to
28
the record. Consequently, Plaintiff’s argument on this point lacks merit. See, Brutsche v.
Barnhart, No. 02 Civ. 7304(MBM), 2004 WL 307280 at *2, n. 1 (S.D.N.Y. Feb. 18, 2004)
(“I find no error in the ALJ's decision not to grant an adjournment, particularly because
Brutsche's legal representatives did not raise this objection at the hearing and because
ALJ allowed them to supplement the record after the hearing.”).
Plaintiff nevertheless maintains that the ALJ erred because he failed to follow the
procedures set forth in 20 CFR § 404.1512(d) which, he argues, required the ALJ to
personally contact Plaintiff’s treatment providers, even though Plaintiff’s attorney
indicated that he would obtain the records and even though the ALJ left the record open
in order to allow the attorney to do so. The Court does not agree. As discussed above,
prior to the hearing the Commissioner contacted all of the treatment providers that
Plaintiff identified (390-398), and also arranged for consultative examinations by Hansen
and Toor. After the hearing, at Plaintiff’s request, the ALJ left the record open for more
than a month before issuing his decision, during which time Plaintiff submitted several
additional exhibits. Notably, in that regard, although Plaintiff now complains that the ALJ
should have kept the record open longer, it is clear that the ALJ did not issue his decision
until after the date which Plaintiff’s counsel had requested to submit additional records.
If Plaintiff needed additional time to submit records, beyond the date which he had
requested, it was incumbent upon him to notify the ALJ of that fact.14 In the absence of
14
Plaintiff suggests that it would have been futile to make another request, since the ALJ did not
directly respond to the first request. The Court disagrees. In that regard, while Plaintiff suggests that the
ALJ ignored his first post-hearing request for additional time, it appears to the Court that the ALJ tacitly
granted the request, since he waited until after the date that Plaintiff had requested before issuing his
decision. The Court reiterates that this was not a situation where the attorney needed the ALJ’s
assistance in obtaining the records, because the attorney eventually obtained the records on his own.
Rather, the issue here is really the attorney’s failure to inform the ALJ that he needed a further extension
29
such a notification, the Court finds that it was reasonable for the ALJ to conclude that
Plaintiff had “nothing further to add” to the record. See, Jordan v. Commissioner of Social
Security, 142 Fed.Appx. 542, 543, 2005 WL 2176008 at * (2d Cir. Sep. 8, 2005) (ALJ left
the record open to allow claimant’s attorney to obtain additional specific records, and
then issued decision after attorney subsequently indicated that he had nothing further to
add to the record);15 see also, Farrell v. Commissioner of Social Security, No. 7:12-cv418 (GLS), 2013 WL 4455697 at *7-8 (N.D.N.Y. Aug. 16, 2013) (Holding that ALJ
satisfied his duty to develop the record where, prior to the hearing, he obtained certain
records and had the plaintiff examined by consulting doctor, and then, after the hearing,
left the record open initially for two weeks, and then for an additional ten days, in order to
allow the plaintiff’s attorney to submit any additional records before issuing his decision,
even though the attorney did not submit any additional records). Accordingly, the Court
finds that the ALJ complied with § 404.1512(d).
For all of the foregoing reasons the Court finds that Plaintiff’s contentions
regarding alleged failures to develop the record lack merit.
The Commissioner Properly Applied the Treating Physician Rule
Plaintiff next maintains that the Commissioner “improperly rejected” the opinions
of his treating sources. In particular, Plaintiff contends that the ALJ improperly rejected
Arena’s report, Exhibit 12F, and that the Appeals Council improperly rejected Jackson’s
of time in which to do so. Such error was not the fault of the ALJ, who waited until after the date which
counsel had requested before issuing his decision.
15
The Court observes that the Circuit Court did not require the ALJ to make a further effort to
obtain the records which Plaintiff’s counsel had either been unable to obtain, or which he had decided not
to submit.
30
report, Exhibit 18F. As mentioned above, Arena’s statement was a one-page form
report on which he merely drew a line through all of the possible work activities,
indicating, implausibly in light of the entire record, that Plaintiff could not perform any of
them, while Jackson’s report indicated, inter alia, that Plaintiff could not work because he
could only occasionally reach and could only rarely handle or finger.
With regard to Arena’s statement, at the outset Plaintiff’s contention that the ALJ
rejected his opinion because Arena, a licensed clinical social worker, “was not an
acceptable medical source” is simply incorrect. Rather, the ALJ correctly indicated that
he could consider Arena’s statement insofar as it pertained to the “severity of a
claimant’s impairment and how it affects a claimant’s ability to work.” (24).
Plaintiff is correct, though, that the ALJ gave “little weight” to Arena’s statement
because it was inconsistent with the findings of Hansen and Kamin. (24). Plaintiff
contends that the ALJ “failed to apply the various factors in weighing the opinions from
[Arena],” and that the ALJ’s reasons “are not supported by the evidence of record.”16
Plaintiff further suggests that Hansen’s opinion might have changed if she had access to
the fully-developed record. However, the Court disagrees and finds that the ALJ’s
determination in this regard complies with the applicable law and is supported by
substantial evidence. To begin with, the ALJ specifically indicated that he “considered
opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (20). Moreover, the ALJ carefully discussed
the medical evidence, including the reports of Hansen, Kamin and Arena, and gave good
16
Plaintiff’s memo of law at p. 21.
31
reasons for why he gave more weight to the opinions of Hansen and Kamin than he did
to that of Arena. (20-25). Although the ALJ may not have discussed every factor under §
§ 404.1527 & 416.927, he was not required to do so. Moreover, the record was
sufficiently developed to allow the ALJ to accurately weigh the opinions.
Alternatively, Plaintiff maintains that the Appeals Council should have reviewed
the ALJ’s determination, based upon the additional exhibits that he submitted with his
appeal, and in particular, the medical source statement (Exhibit 18F) (444) from Jackson,
because it was “new and material.” Further, Plaintiff contends that the reason offered by
the Appeals Council for denying review was insufficient. In that regard, when Plaintiff
appealed to the Appeals Council, the reason he gave is as follows: “The decision is not
supported by substantial evidence and the ALJ failed to apply the proper legal standards
in weighing the evidence.” (10). In denying review, the Appeals Council indicated that it
had considered Plaintiff’s appeal statement, as well as the additional evidence that he
submitted, and determined that “this information does not provide a basis for changing
the [ALJ’s] decision.” (4). Plaintiff contends that this was error, and that the Appeals
Council was required, pursuant to Snell v. Apfel , 177 F.3d 128 (2d Cir. 1999) (“Snell”),
also cited earlier, to explain the weight that it gave to Jackson’s medical source
statement.
The Court again disagrees. In that regard, the Court observes that another
claimant unsuccessfully raised this identical argument in Bushey v. Colvin, 8:11-CV00031-RFT, in the Northern District of New York. In that case, in which the plaintiff had
submitted additional medical evidence from her treating neurosurgeon to the Appeals
Council, the Appeals Council similarly declined to review the ALJ’s determination, stating
32
only that, “this information does not provide a basing for changing the [ALJ’s] decision.”17
In the district-court action, the claimant argued that the Appeals Council was required to
“consider” the additional evidence. The District Court disagreed, finding that the records
were not relevant to the period of disability at issue in the case, even though such reason
had not been offered by the Appeals Council.18 On appeal, the claimant-appellant
argued that “[t]he Appeals Council's terse denial of plaintiff's request for review
[erroneously] omitted any explanation for its finding that plaintiff's additional evidence did
not provide a basis for changing the ALJ's decision.”19 Nevertheless, the Second Circuit
affirmed, after conducting its own plenary review of the record, stating:
We do not believe that the Appeals Council erred by refusing to review the
ALJ's decision in light of the new evidence that Bushey submitted to that
body. The Appeals Council had substantial evidence supporting its decision
to decline review, as the new evidence that Bushey presented did not alter
the weight of the evidence so dramatically as to require the Appeals
Council to take the case.
Bushey v. Colvin, 552 Fed.Appx. at 98. From this, it appears that Plaintiff’s reliance on
Snell is misplaced, insofar as he contends that Snell requires the Commissioner to
weigh and discuss the newly-submitted evidence as part of the process of deciding
17
See, Appellant Bushey’s appellate brief to the Second Circuit, 2013 WL 2286627 at *1.
18
See, 8:11-CV-0031-RFT, (NDNY), Docket No. [#20] at p. 9.
19
See, Appellant Bushey’s appellate brief to the Second Circuit, 2013 WL 2286627 at *20. ; see
also, id. at *28 (“In denying Ms. Bushey's Request for Review, the Appeals Council merely gave the
boilerplate rationale: “In looking at your case, we considered the reasons you disagree with the decision
and the additional evidence listed on the enclosed Order of Appeals Council. We found that this
information does not provide a basis for changing the Administrative Law Judge's decision” (R: 1-2). The
post-hearing MRI and EMG reports confirmed her continuing and deteriorating spinal disorder and
supported her testimony regarding her pain and physical limitations. They must be evaluated by an ALJ in
determining whether or not she was disabled. This Court should remand this action for full consideration
and analysis of this new and material evidence.”) (emphasis added).
33
whether to review the ALJ’s determination. Clearly it does not, otherwise the Circuit
Panel would have ruled differently in Bushey. Rather, it appears that Snell applies where
the Commissioner has decided to review the ALJ’s determination based upon the newlysubmitted evidence, in which case the Commissioner must then weigh the new evidence
in the same manner that an ALJ is required to do so. Significantly, in that regard, Snell
involved a situation where the Appeals Council not only reviewed the ALJ’s decision, but
did so on its own motion. See, Snell, 177 F.3d at 129-130 (“The Social Security
Administration's Office of Hearings and Appeals (the “Appeals Council”) reviewed the
case on its own motion, reversed the decision of the ALJ, and denied benefits to Snell.”).
In the instant case the Appeals Council chose not to review the ALJ’s decision
based on the additional evidence that Plaintiff submitted, and accordingly Bushey, and
not Snell, applies. Furthermore, the Court finds, similar to the Circuit Panel in Bushey,
that here, “[t]he Appeals Council had substantial evidence supporting its decision to
decline review, as the new evidence that [Plaintiff] presented did not alter the weight of
the evidence so dramatically as to require the Appeals Council to take the case.” On this
point, the Court has already mentioned that Exhibits 18F-22F, which Plaintiff submitted to
the Appeals Council, were generally redundant, unhelpful to Plaintiff, or, in the case of
Jackson’s statement (Exhibit 18F), unsupported and inconsistent with the rest of the
record. Consequently, Plaintiff’s arguments concerning the Appeals Council’s
determination lack merit.
34
The ALJ’s RFC Determination
Plaintiff next maintains that the ALJ’s RFC determination was erroneous. For
example, Plaintiff contends that the ALJ “failed to specifically to [sic] determine the
weight he assigned to Dr. Toor’s opinions,” and that Toor’s opinion was “not sufficiently
specific to support the ALJ’s limitations.”20 Plaintiff further contends that the ALJ’s RFC
determination with regard to Plaintiff’s ability to use his hands is inconsistent with
Plaintiff’s testimony that his fingers “freeze up” when it is cold outside.21 Plaintiff also
contends that the ALJ’s mental RFC finding was erroneous, since it was not adequately
supported by the opinions of Hansen and Kamin. For example, Plaintiff suggests that
Hansen’s opinion is inconsistent with the RFC determination, since she observed that
Plaintiff “does not deal appropriately with stress,” which, Plaintiff believes, “eliminat[es]
the possibility for any work.”22 However, the Court disagrees and finds that the ALJ’s
RFC determination, with regard to Plaintiff’s physical and mental abilities, is supported by
substantial evidence in the record. Also, with regard to Toor’s opinion, it is evident that
the ALJ gave it controlling weight, since he essentially adopted Toor’s statement after
observing, inter alia, that it was “consistent with claimant’s multiple surgeries and
treatment history.” (23).23
20
Pl. Memo of Law at p. 25.
21
Pl. Memo of Law at p. 25. Plaintiff contends that such testimony establishes that he cannot use
his hands “at all during periods of cold weather.” Id. The Court disagrees, and notes that, according to
weather records, when Toor examined Plaintiff on February 16, 2012, the outdoor temperature in
Rochester ranged between 25 and 34 degrees Fahrenheit, and Plaintiff had full use of his left hand and
only “mild to moderate difficulty” with his right hand. (368).
22
Pl. Memo of Law at p. 26.
23
In his memo of law, Plaintiff recognizes that “the ALJ appears to have given the opinion of Dr.
Toor, the consultative examiner, the greatest weight.” Pl. Memo fo Law at p. 19.
35
The ALJ’s Credibility Determination
Plaintiff further maintains that the ALJ’s “rejection” of his credibility was
erroneous, for several reasons. First, Plaintiff argues that the ALJ’s credibility
determination was hampered by the ALJ’s failure to develop the record, but the Court
has already addressed Plaintiff’s argument regarding development of the record. Next,
Plaintiff contends that the ALJ placed too much emphasis on his activities of daily living,
since those activities may not accurately depict his “ability to perform a full day’s work on
a sustained basis.”24 Further, Plaintiff suggests that the ALJ failed to take into
consideration his “good work record” for the years 1992 through 2001 when assessing
his credibility. On this point, Plaintiff contends that he had “consistent earnings” during
that period.25
At the outset, the Court does not believe that the ALJ was required to find Plaintiff
credible merely because Plaintiff had a ten-year period in which his earnings were
relatively consistent, particularly where such period ended nine years prior to the alleged
onset date of disability. (146). As to this issue, the Court observes that subsequently,
between 2002 and 2009, when Plaintiff does not claim to have been disabled, his
earnings fluctuated wildly, including two years (2002-2003) in which he earned only one
thousand dollars or less and one year (207) in which he had no reported earnings. (146147). The Court therefore rejects Plaintiff’s contention that the ALJ was required to
factor in Plaintiff’s “good work history” when evaluating Plaintiff’s credibility.
24
Pl. Memo of Law at p. 28.
25
Pl. Memo of Law at p. 28.
36
More importantly, the suggestion that the ALJ generally “rejected” Plaintiff’s
credibility is incorrect. For example, as Plaintiff admits elsewhere in his papers,26 the
ALJ gave him the “benefit of the doubt,” and found his testimony regarding limitations in
his upper extremities credible, even though Plaintiff had failed to mention any problems
with his left elbow when Toor examined him. (23).
As for Plaintiff’s activities of daily living, which were fairly extensive, the Court
does not agree that the ALJ placed too much emphasis on them in assessing Plaintiff’s
credibility. On this point, and as a general observation about this case after having
studied the record, the Court notes that overall the evidence supporting a finding of
disability, including much of the evidence that Plaintiff provided himself, see, e.g., Exhibit
17F, was far from compelling, while the evidence that he is not disabled was more than
substantial. A consistent theme running throughout the record is that Plaintiff is capable
of working when he takes his medications and refrains from using alcohol and illegal
drugs.27 In any event, the Court has considered Plaintiff’s arguments concerning the
ALJ’s credibility determination, and finds that they lack merit.
26
Pl. Memo of Law at p. 25.
27
See, e.g., treatment notes of David Strickland, M.D. (“I would say if he remains abstinent from
alcohol, continues with therapy and responds well to the combined psychiatric medication [Lithium and
Celexa] and psychotherapy approach, [which he admittedly did] he should do well. However, certainly, if
he goes back to drinking or abusing substances of any kind, his prognosis will be poor due to his history of
impulsive behaviors.”) (316); see also, Jackson’s notion that Plaintiff’s “dysphoric mood” was “well
controlled on current medications/followed by [therapy at Wayne Behavioral] twice a month. Negative for
suicidal ideas and self injury. The patient is nervous/anxious (well controlled).” (481).
37
CONCLUSION
Defendant’s motion for judgment on the pleadings [#11] is granted and Plaintiff’s
motion [#9] for judgment on the pleadings is denied. The Clerk of the Court is directed to
close this action.
So Ordered.
Dated: Rochester, New York
June 25, 2015
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
38
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