Spallina v. Colvin

Filing 13

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/15/16. (JMC)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
VANESSA LYNN SPALLINA,
Plaintiff,

15-CV-6044

-v-

DECISION
AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner OF Social Security,
Defendant.

Vanessa Lynn Spallina(“plaintiff”), brings this action under
Title II of the Social Security Act (“the Act”), claiming that the
Commissioner of Social Security (“Commissioner” or “defendant”)
improperly

denied

her

applications

for

disability

insurance

benefits (“DIB”) under the Social Security Act (the “SSA”).
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,

plaintiff’s motion is denied and defendant’s motion is granted.
PROCEDURAL HISTORY
On
alleging

May

3,

2012,

disability

plaintiff
as

of

filed

August

an

23,

application
2011.

for

DIB

Administrative

Transcript (“T.”) 69, 136-137. Following an initial denial of that
application, plaintiff testified at a hearing held, at her request,
on June 11, 2013 before administrative law judge ("ALJ") Gregory M.
Hamel. T. 27-56. The ALJ issued an unfavorable decision on July 9,

2013, and a request for review was denied by the Appeals Council on
November 28, 2014. T. 1.
Considering the case de novo and applying the five-step
analysis

contained

in

the

Social

Security

Administration’s

regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ made,
inter alia, the following findings: (1) plaintiff met the insured
status

requirements

of

the

SSA

through

December

31,

2016;

(2) plaintiff had not engaged in substantial gainful activity since
August 23, 2011; (3) her asthma, major depressive disorder, panic
attacks,
disorder,

generalized

anxiety

personality

disorder,

disorder,

and

posttraumatic
obesity

were

stress
severe

impairments; (3) her impairments, singly or combined, did not meet
or medically equal the severity of any impairments listed in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520[d], 404.1525,
404.1526); and (4) plaintiff had the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b) with the
following limitations: no exposure to high concentrations of dust,
fumes, gases and other pulmonary irritants; only routine and
repetitive tasks; no more than occasional public contact. T. 13-17.
The ALJ further found that plaintiff was unable to perform any past
relevant work. T. 20.
The Appeals Council declined to review the ALJ’s decision, and
this action ensued. T 1.

2

DISCUSSION
I.

General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to

hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g).

This 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.
When

determining whether

the

Commissioner’s

findings

are

supported by substantial evidence, the Court's task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir.1999), quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir.1983) (per curiam).
scope

of

the

Court’s

review

to

two

Section 405(g) limits the
inquiries:

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. See Green–Younger v.
Barnhart, 335 F.3d 99, 105–106 (2d Cir.2003).

3

Plaintiff, 48 years old at the time of her hearing, testified
that she graduated from Indiana Business College in 1992 with a
certificate in secretarial work. T. 34.

Plaintiff testified that

left her retail job in 2013 after missing five and a half months
for sick leave due to her

panic and anxiety disorders. T. 35-36.

Plaintiff, 5 foot five and 280 pounds, lives with her husband.
T. 38.

With respect to her daily activities, plaintiff testified

that, depending on how she felt that day, she did light chores,
such as washing dishes, laundry, internet browsing, and reading
books, newspapers, and magazines. T. 38-39.

Certain activities

were limited by her asthma, such as climbing up and down stairs,
and restricted by her anxiety, such as driving or going anywhere
without her husband. T. 40-41.

Plaintiff’s counsel noted that

plaintiff’s leg was visibly shaking as she testified. T. 42.
Plaintiff

took

four

or

five

medications,

including

gabapentin, Zoloft, Claritin, and ibuprofen. T. 43.

Klonopin,

She testified

that the medications made her “zombie-like” and that she

did not

take any the morning of the hearing so she could “understand” the
questions and answer them “clearly.” T. 44.

Plaintiff was able to

do basic personal care, such as bathing, dressing, and using the
bathroom. T. 44.

Plaintiff felt, however, that she was unable to

work in any capacity due to her extreme anxiety and regular panic
attacks. T. 45. Plaintiff testified that she was “very sensitive”;
even when working by herself “in a quiet place,” plaintiff would

4

“get very anxious” and have “panic attacks at any time.” T. 45.
Her current medication was helping to curb her anxiety and panic,
but she was “still hav[ing] a lot of attacks.” T. 46.

Plaintiff

also had asthma attacks “at least once a week maybe.” T. 46.

A

typical anxiety attack ranged from plaintiff ending up on the floor
from “lack of oxygen” to a milder version with disorientation,
confusion, and crying. T. 47. Plaintiff testified that she went to
the hospital for a panic attack on two occasions during her recent
employment. T. 47-48.
II.

The Commissioner’s Decision Denying Benefits is Supported by
Substantial Evidence in the Record.
A.

The ALJ’s finding at Step Three.

Plaintiff contends that remand is warranted because the ALJ
failed to evaluate plaintiff’s severe mental impairments under
section 12.04C of the Listing of Impairments at Step Three of his
analysis. Plaintiff’s memorandum of law, p. 21-28.

Defendant

responds that the ALJ expressly noted that he considered the
section 12.04C and found that none of the criteria was met by
plaintiff. Defendant’s memorandum of law, p. 14.
The Court concludes that the ALJ properly analyzed evidence
concerning plaintiff's mental impairments.

To meet the criteria

for paragraph C, plaintiff must have:
Medically documented history of a chronic affective
disorder of at least 2 years' duration that has caused
more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently

5

attenuated by medication or psychosocial support, and one
of the following:
1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to
function outside a highly supportive living arrangement,
with an indication of continued need for such an
arrangement.
20 C.F.R. pt. 404, subpt. P, app. 1, Listing 12.04C.

The term

“repeated episodes of decompensation” is defined as three episodes
within one year, or an average of once every four months, each
episode lasting for at least two weeks. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1, ¶ 12.00C.4.

Episodes of decompensation are

temporary increases in symptoms causing difficulties in performing
activities of daily living, maintaining social relationships, or
maintaining concentration, persistence, or pace. See id.

Such

episodes “would ordinarily require increased treatment or a less
stressful situation (or a combination of the two),” which can be
inferred from documentation “showing significant alteration in
medication [or] the need for a more structured psychological
support system (e.g., hospitalizations, placement in a halfway
house, or a highly structured and directing household); or other
relevant information in the record about the existence, severity,
and duration of the episode.” Id.

6

Here, the ALJ “considered whether the ‘paragraph C’ criteria
[is] satisfied.” T. 16.

In concluding that disability was not

established under Listings 12.04 and 12.06, the ALJ found that “the
record

is

devoid

of

evidence

of

episodes

of

decompensation,

potential episodes of decompensation, or the inability to function
outside a highly supportive living arrangement or outside the area
of [plaintiff’s] house.” T. 16.

Plaintiff’s contention that the

ALJ’s findings on this issue are “brief” and “boilerplate” is
contradicted by the ALJ’s discussion of the record evidence in Step
Three, which is devoid of any indication that the ALJ failed to
consider section 12.04C.
In his decision, the ALJ noted that, with respect to “episodes
of decomposition” considered in “[t]he fourth functional area,”
plaintiff’s reports of “panic attacks ha[d] not required her to be
admitted to any facility.” T. 15.

The ALJ concluded, therefore,

that plaintiff had “experienced no episodes of decompensation which
have been of extended duration.” T. 15. The ALJ further noted that
plaintiff was treated in the emergency department in September 2011
for a panic attack after she ran out of Xanax, and she reported
symptoms of “nausea, dizziness, chest pain, and shortness of
breath.” T. 15. The ALJ then considered the records of plaintiff’s
treating psychiatrist since September 2011, Dr. Jane Hong, who
assessed plaintiff with panic disorder without agoraphobia, major
depressive disorder, posttraumatic stress disorder, personality

7

disorder, and a Global Assessment of Functioning (“GAF”) score of
54-58,

indicating

occupational

or

moderate
school

symptoms

or

functioning.

difficulty

T.

15.

in

The

social,

ALJ

noted

Dr. Hong’s finding that, although plaintiff experienced fewer panic
attacks by April 2012, she remained anxious about work and felt
that she could only work part time. T. 15.
During a July 2012 consultative examination by Dr. Lin,
however,
difficulty

plaintiff
sleeping,

reported

worsening

dysphoric

mood,

worrying and social withdrawal. T. 16.

symptoms,

including

hopelessness,

excessive

The ALJ noted that Dr. Lin

assessed plaintiff with major depressive disorder, panic disorder
with agoraphobia, and generalized anxiety disorder. T. 16. Dr. Lin
opined that plaintiff could not “appropriately deal with stress;”
her “[d]ifficulties were caused by lack of motivation;” and that
plaintiff’s psychiatric problems may “significantly interfere with
[her] ability to function on a daily basis.” T. 317.

Pl

The ALJ

also considered Dr. Hong’s May 2013 treatment notes that: plaintiff
had “self-limited” panic attacks on a weekly basis; she was “less
depressed with only a few days of depressed mood at a time;” her
anxiety had improved with Nerontin; she was “taking afternoon
gabapentin only as needed;” and her functioning had improved
overall with individual psychotherapy and medication management.
T. 16.

8

The

Court

concludes

that

the

ALJ’s

failure

to

find any

“episodes of decompensation, potential episodes of decompensation,
or [plaintiff’s] inability to function outside a highly supportive
living arrangement or outside the area of [her] home” is supported
by substantial evidence in the record. Despite plaintiff’s reports
of unspecified work-related anxiety resulting in panic attacks,
sometimes on a weekly basis, there is no evidence in the record of
episodes that meet the criteria of Listing 12.04C.

In early 2012,

plaintiff reported that her anxiety, brought on by considering a
return to work, was “fairly controlled” and that her medications
were “helpful.” T. 289. Treatment records from Dr. Giugno at Unity
Health in 2012 reveal that plaintiff reported an improvement in her
anxiety through the spring, noting that the frequency of her
anxiety attacks was reduced from “several” attacks per day to
several per week. T. 241.

Plaintiff further stated that her

current medications were “working well” and she “recently started
to go to her job at the mall.” T. 241.

In June 2012, Dr. Hong

advised plaintiff, who remained anxious about work, that there were
“many other medications that [plaintiff] could try” and that her
regimen was “suboptimal” in light of continued symptoms and weight
gain as a side effect. T. 298.

On the two occasions that plaintiff

was admitted to the hospital for anxiety attacks, she had run out
of medication. T. 237, 307.

The record indicates that she was

released on the day of admittance. T. 307.

9

Based on the foregoing, the Court finds that the ALJ applied
the appropriate legal standards in considering the medical evidence
in the record relating to plaintiff’s mental impairments and
properly evaluated plaintiff's treating source and consultative
opinions.

The ALJ expressly considered the paragraph C criteria

and record evidence pertaining thereto, and, in any event, he was
“not required” to mention every piece of evidence presented to him
or “explain[] why he considered particular evidence unpersuasive or
insufficient.”

Mongeur

v.

Heckler,

722

F.2d

1033,

1040

(2d Cir.1983). There is no indication the ALJ selectively chose or
ignored evidence from the record to support his Step-Three finding.
Consequently, remand is not warranted.
B. The ALJ’s RFC assessment
Plaintiff further asserts that remand is required because the
ALJ's RFC assessment is not based on substantial evidence because
he (1) failed to properly explain how he formulated his RFC
finding; (2) substituted his own lay opinion for that of medical
evidence contained in the record.; and (3) failed to follow the
treating physician rule. Plaintiff’s memorandum of law, p. 29-38.
Defendant responds that the ALJ’s finding is based on substantial
evidence and is properly supported by the opinions of Dr. Hong and
consultative examiners Drs. Montalvo, Lin, and Meade. Defendant’s
memorandum of law, p. 16-19.

10

It is well established that “‘[t]he RFC assessment must
include a narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts (e.g., laboratory
findings)

and

nonmedical

evidence

(e.g.,

daily

activities,

observations).’” Hogan v. Astrue, 491 F. Supp.2d 347, 354 (W.D.N.Y.
2007), quoting Social Security Ruling 96-8p, 1996 WL 374184, *7
(S.S.A. 1996) and citing Balsamo v. Chater, 142 F.3d 75, 80-81
(2d Cir. 1998).
plaintiff’s

In this case, the ALJ’s narrative discussion of

treating

and

consultative

physicians

generally

indicates his appropriate consideration of their opinions.

As

stated above, the ALJ’s failure to discuss every part of an opinion
does not indicate that such evidence was not considered. The Court
finds that, upon its review of the record as a whole, the ALJ’s RFC
assessment is supported by substantial evidence.
In his RFC assessment, the ALJ found that plaintiff was able
to perform light work with the following limitations: no exposure
to high concentrations of dust, fumes, gases and other pulmonary
irritants;

only

routine

and

repetitive

occasional public contact. T. 13-17.

tasks;

no

more

than

There is little support in

the record for plaintiff’s contention that the ALJ failed to
consider

the

combined

effects

of

her

asthma

and

anxiety,

particularly in light of his finding that she was able to perform
light work with no exposure to pulmonary

irritants.

The record

reveals that plaintiff had: no hospital visits for asthma; well

11

controlled asthma with medication, including an inhaler; and no
wheezing upon consultative examination. Pulmonary function tests
performed in March 2012 revealed moderate obstructive lung defect
with

normal

lung

volumes

and

normal

single

breath

diffusing

capacity, and significant improvement in airway mechanics following
the inhalation of a bronchodilator. T. 275.

Dr. Montalvo found

that plaintiff had mild limitations bending, lifting, and carrying,
but he assess no restrictions related to her asthma, alone or in
combination with any psychological or nonexertional limitations.
The record contains no medical evidence that contradicts his
opinion. See Younes v. Colvin, 2015 WL 1524417, *5 (N.D.N.Y. Apr.
2, 2015)(opinions from state agency medical consultants and may be
entitled to greater weight than the opinions of treating sources).
The Court also finds that there is no basis for plaintiff’s
contention that the ALJ failed to follow the treating physician
rule.

This rule provides that an ALJ must give controlling weight

to a treating physician's opinion if that opinion is well-supported
by medically acceptable clinical and diagnostic techniques and not
inconsistent with other substantial evidence in the record. See
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); 20 C.F.R.
§ 416.927(c)(2).

“The less consistent that opinion is with the

record as a whole, [however,] 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(d)(4).

12

It is well settled that the ALJ is entitled to “credit
portions of a treating physician's report while declining to accept
other portions of the same report” Pavia v. Colvin, 2015 WL
4644537, at *4 (W.D.N.Y. 2015), citing Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002).

The record here reveals that Dr. Hong

maintained a significant mental health treatment relationship with
plaintiff, and she found plaintiff to have no marked or extreme
limitations, which is consistent with the ALJ's findings regarding
plaintiff's RFC, her ability to perform light work with certain
limitations, and her disability status.

Dr. Hong assessed only

moderate limitations and could not predict whether plaintiff’s
limitations would cause her to miss work.

The Court’s review of

the record as a whole reveals that the ALJ’s assessment is based on
substantial evidence.
C.

The ALJ’s credibility finding.

Plaintiff contends that the ALJ improperly used her part time
work

and

good

work

history

to

Plaintiff’s memorandum of law, p.

discount

38-40.

her

credibility.

Defendant responds that

the ALJ applied the proper legal standard and expressly considered
the factors enumerated in 404.1529(c)(3) and SSR 96-7p. Defendant’s
memorandum of law, p. 19-21.
The Court finds that the ALJ’s discussion of plaintiff’s
credibility,
indicates

which

that

he

incorporates
used

the

a

review

proper

13

of

standard

her
in

testimony,
assessing

credibility. See Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y.
June 25, 2012).

In his decision, the ALJ specifically stated that

he followed the two-step credibility analysis and applied 20 C.F.R.
§ 404.1529 and SSR 96-7p in assessing plaintiff’s credibility. See
Britt v. Astrue, 486 F. App'x 161, 164 (2d Cir. 2012) (finding
explicit mention of 20 C.F.R. § 404.1529 and SSR 96-7p as evidence
that the ALJ used the proper legal standard in assessing the
claimant's credibility).
Here, the ALJ's concluded that plaintiff’s self-reports and
complaints were not credible concerning the intensity, persistence,
and limiting effects of her anxiety because her reports were
inconsistent and they conflicted with substantial evidence in the
record, including Dr. Hong’s treatment notes.

The ALJ noted

Dr. Hong’s assessment that plaintiff’s affect was not markedly
anxious; she had a history of being noncompliant with taking her
medication; and agoraphobia was not assessed despite plaintiff’s
hearing

testimony

that

she

could

not

go

anywhere

alone.

Plaintiff’s assertions concerning her inability to work, even on a
part-time basis, rest largely on her complaints and reports of
having to miss work due to frequent work-related panic or anxiety
attacks.
the

Significantly, the ALJ notes, and the Court agrees, that

frequency

alleged

is

not

substantially

supported

by,

or

documented in, her medical records. Although it is well-established
that “[a]

patient’s

report

of

complaints,

14

or

history,

is

an

essential diagnostic tool.” (Green–Younger v. Barnhart, 335 F.3d
99, 107 [2d Cir. 2003][internal quotation marks ommitted]), the
record reveals only two instances of plaintiff’s treatment for
anxiety attacks, both occurring when she was no longer taking, or
had run out of, medication.

The ALJ further noted that plaintiff

was able to carry out a wide range of household activities,
including grocery shopping with her husband and going out to eat.
It is clear in the ALJ’s

decision that he carefully considered

plaintiff’s complaints concerning the intensity, persistence, and
functional limiting effects of her symptoms against the entire
record. T. 17-20. Consequently, the ALJ’s credibility finding will
not be disturbed.
CONCLUSION
For the foregoing reasons the plaintiff’s motion for judgment
on the pleadings (Docket No. 8) is denied, and defendant's crossmotion for judgment on the pleadings (Docket No. 10) is granted.
The ALJ’s decision denying plaintiff’s claim for DIB is supported
by substantial evidence in the record. Therefore, the complaint is
dismissed in its entirety, with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
January 15, 2016
15