Davis v. Colvin
-CLERK TO FOLLOW UP-DECISION AND ORDER denying 9 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings. Defendants motion for judgment on the pleadings [#15] is granted and Plaintiffs motion [#9] for judgment on the pleadings is denied. The Clerk of the Court is directed to close this action. Signed by Hon. Charles J. Siragusa on 1/31/16. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHERRIE A. DAVIS,
DECISION AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
For the Plaintiff:
Elizabeth A. Haungs, Esq.
Justin M. Goldstein, Esq.
Law Offices of Kenneth Hiller
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
For the Defendant:
Joshua L. Kershner, 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
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 Sherrie Davis (“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 [#15] for judgment on the pleadings. Plaintiff’s application
is denied and Defendant’s application is granted.
The reader is presumed to be familiar with the Parties’ submissions, which contain
detailed recitations of the pertinent facts. The Court has reviewed the entire record and
will offer only a brief summary of those facts. Plaintiff, who was age 46 at the time of the
hearing, earned her GED degree and completed two semesters of college. Plaintiff’s
past relevant work experience includes factory assembly-line work and delivering pizzas.
Plaintiff has been diagnosed with ailments including panic disorder, anxiety disorder,
depressive disorder, alcohol and drug abuse, and carpal tunnel syndrome. Plaintiff
maintains that those conditions are disabling, but the only ailment for which she has ever
sought much treatment is alcoholism,1 and her attempts at treatment have been sporadic
and non-committal at best, resulting in her either quitting or being terminated from
treatment programs on multiple occasions.2 (495, 503-504, 512, 514, 556, 608-609, 615616).
Plaintiff’s testimony and written statements indicate that she believes her most
“disabling” condition to be “multiple chemical sensitivity syndrome” (“MCS”), which she
claims causes “excruciating” pain and limits most physical activity. (56; 49; 53; 56-58; 591
On October 3, 2012, Plaintiff estimated that she drank “84 cans of beer per week,” or one twelvepack per day. (641). Unless otherwise noted, all citations are to the administrative record.
For example, Plaintiff , whose testimony indicates that she is intelligent and articulate, claims to
have had a painful “neurological problem” with her legs for approximately two years, but has no definite
information about it and has not sought recommended treatment. See, e.g., Hearing Transcript (58) (“Q.
What’s going on with your legs? A. I don’t know what the word is, neuro, I don’t know. It’s something to
do with, it’s something to do with nerves or something, I’m not sure.”).
60, 274-282; see also, 304, 433).3 Indeed, when Plaintiff applied for SSDI and SSI
benefits, she completed sworn statements attributing her disability almost entirely to
“multiple chemical sensitivity”/“MCS syndrome.” (274-282; 293).4 Plaintiff indicates that
an allergist/immunologist, “Dr. Roth,” diagnosed her with MCS in 2005, though there is
no record of such a diagnosis. (310). Nor is there any mention of such a condition in
Plaintiff’s medical records prior to the alleged onset date. Even after the alleged onset
date, the medical record contains little mention of such a condition, except to note that
Plaintiff claims to have the condition. (418). For example, on February 25, 2011,
Plaintiff’s doctor noted that Plaintiff claimed to have a condition triggered by “perfumes
and chemicals,” but reported finding no symptoms, and indicated that there seemed to
be “a degree of anxiety or other concurrent psychiatric illness associated with this
In June 2012, Plaintiff indicated that her “most severe” chemical sensitivity
symptoms had mostly “gone away” after taking a course of antibiotics for an unrelated
infection,5 and as a result, her primary care physician (“PCP”), Myra Wiener, M.D.
(“Wiener”), indicated that she could return to work. (350).6 However, four months later,
Plaintiff claims that she developed chemical sensitivities after working in an electronics factory.
(425). The record indicates that Plaintiff briefly worked for IEC Electronics in 1997. (263). There is no
indication that “MCS” prevented Plaintiff from working between 1997 and 2008. Also, Plaintiff indicates
that “MCS” makes it “intolerable” for her to be around cigarette smoke (305), but she has continued to
smoke a pack of cigarettes per day for the past thirty years. (642).
Plaintiff also mentioned carpal tunnel syndrome, but indicated that she “rarely” had carpal tunnel
“flare ups.” (281).
See, (604) (“She just finished doxycycline and feels that this improved her chemical sensitivities
In July 2012, Plaintiff reported told her doctor that she had “‘sensitivities’ to gluten, dairy, MSG
and nitrites,” but apparently did not mention chemicals or perfume. (531).
on October 23, 2012, at the hearing before the ALJ, Plaintiff did not mention such an
improvement, but instead indicated that her chemical sensitivity symptoms were still
crippling. (49, 56, 58, 59-60, 61).
Plaintiff contends that she became disabled from working on September 30, 2008.
(207). However, the record indicates that Plaintiff stopped working that year “because of
other reasons,” namely, that she “was let go.” (295). Alternatively, Plaintiff has indicated
that she stopped working because she had a hysterectomy (376, 406), though her
hysterectomy occurred in 2010. (572, 585).
The record indicates that Plaintiff believes that her symptoms are more disabling
than her medical providers believe them to be. For example, on April 7, 2011, Nurse
Practitioner Cynthia Cappiello reported that Plaintiff had asked her for a note indicating
that she was incapable of working 20 hours per week, but Cappiello declined because
she saw no reason that Plaintiff could not work. (419) (“I declined to giver her this note
today . . . I see no indication that she cannot work.”). Similarly, in June 2012, Dr. Wiener,
opined that Plaintiff could work, but Plaintiff disagreed. (350). Moreover, while Plaintiff
claims to be permanently disabled, the medical providers who have examined her have
at most indicated that she is temporarily unable to work.7
In connection with Plaintiff’s current8 application for SSDI and SSI disability
See (587) (Dr. Toor indicated that Plaintiff was limited to working 20 hours per week for six
months); (593) (FNP Finnity indicated that Plaintiff was unable to work for six months since she needed to
focus on treatment/rehab); (NP Bilsback indicated that Plaintiff was unable to work for 3 months while in
rehab). The records indicate that Plaintiffs doctors expected that she would be able to return to work after
treatment if she could stop drinking. See, e.g. (582) (“She will be seeking VESID [vocational training] later
in her recovery process.”); (628) (“Patient would likely be a good candidate for VESID to help her find an
area in which she can work given her history of tendinitis, once she is sober.”).
She was previously denied benefits in 2005. (271).
benefits, she was examined by several consultative medical doctors and psychologists.
On October 23, 2012, Plaintiff, accompanied by her attorney, testified before an
Administrative Law Judge (“ALJ”). On April 12, 2013, the ALJ issued a detailed and
well-reasoned decision finding that Plaintiff was not disabled. The ALJ made that
determination at Step 5 of the five-step sequential analysis that the Commissioner uses
to evaluate disability claims.9 As part of the ALJ’s decision, he found that Plaintiff had
the residual functional capacity (“RFC”) to perform less than the full range of light work.
For example, the ALJ found that Plaintiff was restricted in her ability to lift and carry, and
in her ability to interact with supervisors, co-workers and the public. In making his RFC
determination, the ALJ found that Plaintiff’s statements about the severity of her
conditions were not entirely credible, because they were inconsistent with other
statements that she made about her daily activities, and because Plaintiff had made only
limited attempts to obtain treatment.
Plaintiff appealed to the Appeals Council, and submitted additional evidence,
including notes from nurse practitioner Denise Bilsback, N.P (“Bilsback”). However, the
Appeals Council declined to review the ALJ’s determination. In that regard, the Appeals
Council indicated that Plaintiff’s submission “d[id] not provide a basis for changing the
[ALJ’s] decision,” but it did not discuss Bilsback’s notes.
Plaintiff now maintains that the Commissioner’s decision must be reversed for two
reasons: First, the Appeals Council did not explain why Bilsback’s notes failed to provide
a basis for review; and second, the ALJ’s credibility determination was not supported by
See, Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (Explaining the five-step sequential
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 ALJ’s Credibility Determination
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
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
Factors relevant to your symptoms, such as pain, which we will consider
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
(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,
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.
In this case, Plaintiff correctly points out that the ALJ based his credibility finding
partly on the fact that he found Plaintiff’s statements about the severity of her conditions
to be inconsistent with other statements that she made about her activities of daily living.
In that regard, the ALJ stated in pertinent part:
The claimant’s allegations of disability are only partially credible. The
claimant has alleged severely limited activities of daily living due to physical
problems. However, the record does not support the allegations. Further,
the allegations are inconsistent with the treatment records, which often
state that the claimant is engaging in activities of daily living with no
(27). Plaintiff maintains that the ALJ mis-characterizes the record, since Plaintiff
engaged in only “minimal” daily activities, which “were hardly indicative of the ability to
perform light work.”10 Plaintiff also complains that the ALJ failed to cite any portion of the
record to support his finding.
See, Docket No. [#9-1] at pp. 18-19.
However, the Court finds that the ALJ’s observations about Plaintiff’s activities of
daily living are supported by substantial evidence. At the outset, the Court disagrees
with Plaintiff’s contention that the ALJ failed to cite to evidence supporting his credibility
determination. In fact, the ALJ referred to conflicting evidence of Plaintiff’s activities
multiple times in his decision. (22-2311, 2412, 25-2613). Moreover, as alluded to by the
ALJ, the record is replete with inconsistent or contradictory statements that Plaintiff has
made about her symptoms. For example, at the hearing, Plaintiff testified that she is
essentially incapable of much physical activity.14 However, Plaintiff previously told her
doctor that “she enjoys exercising.” (372). Plaintiff also claims to have long-standing
issues with depression and anxiety, but on February 24, 2011, she “denie[d] any
problems with mood.” (426). Similarly, on April 20, 2011, Plaintiff denied being
depressed. (428) (“The claimant reports no depressive symptoms.”). Plaintiff has told
some examiners that she has major problems sleeping, while telling other examiners that
she has no problems sleeping. Specifically, on February 24, 2011, Plaintiff denied having
“The claimant lives in a boarding room at the YWCA. She is responsible for her own cooking,
cleaning and laundry. She testified she showers daily but that she will not do housework daily. . . . The
claimant testified she is able to go to the store but will go when it is not busy. She has a boyfriend that
she visits frequently and she also visits with her daughter on a weekly basis. She is able to take the bus
but now is transported by her boyfriend. . . . The claimant testified she ‘gets lost in her thoughts’ and has
trouble staying focused. She states she is able to handle her money. At the hearing, the claimant testified
she has not owned a television in three years; however, in March 2011 she stated her hobbies included
reading, music, television and movies.” (citations omitted).
“Despite testifying she lives alone and is responsible for her activities of daily living, the claimant
alleges she is not able to lift, stand, walk, sit, claim stairs, kneel, squat, reach, or use her hands at all due
to pain, weakness and fatigue. She also states she has difficulty seeing, hearing, and talking.”
“[In April 2011,] [t]he claimant reported she was able to do cooking, cleaning, laundry, shopping,
showering, and reading. . . . [In November 2011,] she reported she enjoyed taking walks, exercising,
cooking, music, socializing, arts and crafts, games and movies.” (citations omitted).
See, Record at 56, 57 (“I really don’t do anything on a daily basis.”), 58, 60
“any problems with . . . sleep” (426), while two months later, on April 20, 2011, she
claimed to have “difficulty falling asleep, [and] frequent awakening two times a night.”
(428); see also, (375) (April 12, 2011 office note: “Sleep disturbance: No apparent
problem.”); (393) (February 24, 2011 office note: “She denies any issues with sleep or
Plaintiff also maintains that the ALJ’s credibility determination is erroneous insofar
as it suggested that Plaintiff was seeking treatment “primarily in order to generate
evidence” of disability. (27). Plaintiff contends that such a view is “not borne out by the
record.” In his decision, the ALJ stated, in pertinent part: “She later stated that she felt
she did not need treatment and was only going because it was mandated (Ex. B12F, p.
21). She returned for mental health treatment briefly in November 2011, because her
“SSI lawyer and PCP wanted” her to be in treatment (Ex. B12F, p. 20).” The ALJ was
mistaken in asserting that Plaintiff said that she “was only going [to treatment] because it
was mandated.” Actually, Plaintiff “denied” that mental health treatment was “mandated”
in order for her to receive welfare benefits. (503). Overall, though, the ALJ’s observation
on this point is supported by substantial evidence. For example, as the ALJ observed,
notes from Evelyn Brandon Mental Health Center indicate that Plaintiff was “ambivalent
about treatment,” was “not able to identify a clear goal,” had previously stopped attending
treatment because she “fe[lt] as though she didn’t really need treatment,” and was only
seeking treatment at the suggestion of her attorney and doctor. (502-503).
Plaintiff also maintains that the ALJ’s credibility determination was flawed because
he found that Plaintiff’s lack of diligence in obtaining treatment detracted from her
credibility, without first considering whether her “psychological and emotional difficulties”
may have “affected her ability to understand her own need for treatment.” The
Commissioner has stated that,
statements may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints, or if the medical reports or records
show that the individual is not following the treatment as prescribed and
there are no good reasons for this failure. However, the adjudicator must
not draw any inferences about an individual's symptoms and their
functional effects from a failure to seek or pursue regular medical treatment
without first considering any explanations that the individual may provide, or
other information in the case record, that may explain infrequent or irregular
medical visits or failure to seek medical treatment. The adjudicator may
need to recontact the individual or question the individual at the
administrative proceeding in order to determine whether there are good
reasons the individual does not seek medical treatment or does not pursue
treatment in a consistent manner. The explanations provided by the
individual may provide insight into the individual's credibility.
Titles II & Xvi: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of
an Individual's Statements, SSR 96-7P (S.S.A. July 2, 1996).
In the instant case, the Court finds that the ALJ did not err. In reaching its
conclusion, the Court reiterates that at the hearing, Plaintiff and her attorney chose to
emphasize Plaintiff’s alleged physical complaints and pain resulting from her chemical
sensitivity condition and carpal tunnel syndrome, while offering comparatively little
testimony concerning her depression and anxiety generally, and no evidence tending to
indicate that her mental or emotional problems had prevented her from obtaining
treatment. On the other hand, the record contains statements from Plaintiff in which she
explains why she did not actively pursue certain treatments. For example, with regard to
mental health treatment, Plaintiff stated that she did not think that she needed treatment:
“She reports feeling as though her anxiety and depression ha[ve] always been justified
by life’s circumstances.15 . . . She reports that she ceased attending MH appointments
in the past due to feeling as though she didn’t really need treatment.” (503); see also,
(527) (Referring to Plaintiff’s “ambivalence regarding treatment.”). The ALJ specifically
referred to that document when observing that Plaintiff “stated that she felt she did not
need treatment.” (25). Inasmuch as Plaintiff had already explained why did not pursue
treatment, the Court does not find that the ALJ erred by failing to pursue the issue further
before making his credibility determination.
The Appeals Council’s Decision Not to Review the ALJ’s Decision
Plaintiff maintains that the Appeals Council erred by denying review without
discussing Nurse Practitioner Bilsback’s notes, which had been submitted along with the
request for review. Plaintiff contends that the Appeals Council was obligated to discuss
the newly-submitted evidence, since it contradicted the ALJ’s RFC determination. See,
Docket No. [#16] (“[T]he Appeals Council offered no more than boilerplate language to
support its denial of review. This was insufficient based on the other source opinion of
NP Bilsback that directly conflicted with the ALJ’s RFC finding.”). The Second Circuit
recently reiterated the law on this point by stating:
Once evidence is added to the record, the Appeals Council must then
consider the entire record, including the new evidence, and review a case if
the “administrative law judge's action, findings, or conclusion is contrary to
the weight of the evidence currently of record.” 20 C.F.R. § 404.970(b). If
the Appeals Council denies review of a case, the ALJ's decision, and not
the Appeals Council's, is the final agency decision.
Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (citation omitted). On the other
The record indicates that Plaintiff has had a very difficult life, marked by physical and verbal
abuse from parents and a former spouse, and substance abuse by family members and friends.
hand, the Appeals Council does not err by declining to review an ALJ’s decision, and is
not required to give a detailed explanation for its decision, when the newly-submitted
evidence does not dramatically alter the weight of the evidence. See, Bushey v. Colvin,
8:11-CV-00031-RFT (N.D.N.Y.), affirmed, 552 Fed.Appx. 97, 98 (2d Cir. Jan. 29, 2014)
(“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.”).16
Accordingly, the issue before the Court is whether Bilsbacks’ notes “altered the
weight of the evidence so dramatically as to require the Appeals Council to take the
case.” The Court finds that it did not. To begin with, Bilsback is a nurse practitioner,
which is considered an “other source,” as opposed to an “acceptable medical source.”
See, Genier v. Astrue, 298 Fed. Appx. 105, 108 (2d Cir. 2008) (“[N]urse practitioners and
physicians' assistants are defined as ‘other sources’ whose opinions may be considered
with respect to the severity of the claimant's impairment and ability to work, but need not
be assigned controlling weight.”) (citation omitted). Moreover, Bilsback apparently
examined Plaintiff on only one occasion, October 3, 2012 (641-645), and her physical
examination of Plaintiff was essentially negative for any abnormalities (639-640), though
On appeal the claimant in Bushey had argued that the Appeal Council’s “terse” “boilerplate”
decision denying review was insufficient, see, Appellant Bushey’s appellate brief to the Second Circuit,
2013 WL 2286627 at **20 & 28, but the Second Circuit disagreed.
Plaintiff complained of nasal congestion, dizziness and wrist pain.17 (641-645).
Nevertheless, Bilsback completed a form for the Monroe County Department of Social
Services, indicating that Plaintiff should not work for three months, in order to allow her to
attend treatment/counseling. (638). Inexplicably, given the entirely negative physical
examination, Bilsback indicated that Plaintiff was “moderately limited”(2-4 hours per day)
with regard to walking, standing, pushing, pulling and bending, and “very limited” (1-2
hours per day) with regard to lifting/carrying. (640). Nevertheless, Bilsback’s report was
actually less favorable overall to Plaintiff than the report of Harbinder Toor, M.D. (585588), which the ALJ gave “significant weight” when reaching his RFC determination. (25).
For all of these reasons, the Court finds that Bilsback’s report did not “dramatically alter
the weight of the evidence,” and that the Appeals Council therefore did not err in deciding
not to review the ALJ’s determination.
Defendant’s motion for judgment on the pleadings [#15] 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.
Dated: Rochester, New York
January 31, 2016
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
Bilsback opined that Plaintiff’s wrist pain was “probably due to neuropathy from ETOH (alcohol)
abuse.” (644). Bilsback further noted that Plaintiff had “no weakness, or decrease[d] strength” in her
hands . (641).
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