Miller v. Colvin

Filing 13

DECISION & ORDER This Court finds that the Commissioner's denial of DIB was based on substantial evidence and was not erroneous as a matter of law. Accordingly, the ALJ's decision is affirmed. The Commissioner's motion for judgment on the pleadings 11 is granted. Miller's motion for judgment on the pleadings 10 is denied, and Miller's complaint 1 is dismissed with prejudice. Signed by Hon. Marian W. Payson on 8/25/2016. (KAH) -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
CHRISTAL JEAN MILLER,
DECISION & ORDER
Plaintiff,
15-CV-6249P
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________

PRELIMINARY STATEMENT
Plaintiff Christal Jean Miller (“Miller”) brings this action pursuant to Section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision
of the Commissioner of Social Security (the “Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), the parties have
consented to the disposition of this case by a United States magistrate judge. (Docket # 6).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 10, 11). For the
reasons set forth below, this Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and complies with applicable legal standards. Accordingly,
the Commissioner’s motion for judgment on the pleadings is granted, and Miller’s motion for
judgment on the pleadings is denied.

BACKGROUND
I.

Procedural Background
Miller filed for DIB alleging disability beginning on April 14, 2011, as a result of

TIA strokes, a cognitive learning disability, and depression. (Tr. 197, 224).1 On November 9,
2011, the Social Security Administration denied Miller’s claim for benefits, finding that she was
not disabled. (Tr. 69-88). The decision was reconsidered, and, on January 30, 2012, the Social
Security Administration again denied Miller’s claim for benefits, finding that she was not
disabled. (Tr. 89-105). Miller requested and was granted a hearing before Administrative Law
Judge Teresa J. McGarry (the “ALJ”). (Tr. 32, 120-21, 137-42). The ALJ conducted a hearing
on July 30, 2013. (Tr. 32-68). Miller was represented at the hearing by her attorney Richard A.
Schwartz, Esq. (Tr. 32, 136). In a decision dated August 16, 2013, the ALJ found that Miller
was not disabled and was not entitled to benefits. (Tr. 13-31).
On December 19, 2014, the Appeals Council denied Miller’s request for review of
the ALJ’s decision. (Tr. 4-8). Miller commenced this action on April 28, 2015 seeking review
of the Commissioner’s decision. (Docket # 1).

II.

Relevant Medical Evidence2
A.

Treatment Records
1.

Florida Hospital Memorial Division3
Treatment notes from this facility date from February 2009. (Tr. 528). At

that time, Miller requested a prescription for Percocet to manage her headaches. (Id.). On
1

The administrative transcript shall be referred to as “Tr. __.”

2

Those portions of the treatment records that are relevant to this decision are recounted herein.

3

Portions of these treatment records are handwritten and difficult, if not impossible, to decipher.
Accordingly, the Court has summarized only those portions of these records that are legible.

2

March 23, 2009, an MRI was taken of Miller’s brain due to complaints of left leg weakness.
(Tr. 539-40). The MRI revealed multiple small areas of restricted diffusion, which indicated
acute infarction involving the corpus callosum and pericallosal region on the right and the right
parietal lobe. (Id.).
On August 19, 2009, Miller returned for treatment for migraines, chronic
obstructive pulmonary disease (“COPD”), and depression. (Tr. 529). Miller returned on
September 28, 2009 and reported only one minor headache since her last visit. (Tr. 533). Notes
from a visit that occurred on November 24, 2009 indicate that Miller’s headaches continued to be
better controlled and that she continued to take Prozac for her depression. (Tr. 535-36). On
March 12, 2010, Miller called to complain of an ongoing migraine and to request a refill of her
prescription for Percocet. (Tr. 521).
On February 15, 2011, Miller met with Jon Bolla (“Bolla”), MD, complaining of
ear discomfort. (Tr. 558-60). The treatment notes indicate that Miller’s medical history included
recurrent major depressive affective disorder, obstructive chronic bronchitis, endometriosis,
classical migraine without mention of “intractable” and hyperlipidemia. (Id.). Bolla assessed
that Miller’s blood pressure and depression were stable and noted that she reported only rare
headaches. (Id.).
Miller returned on March 7, 2011 complaining of a cough. (Tr. 555-57). She
reported feeling lightheaded and dizzy and that her chest hurt from coughing. (Id.). Bolla
assessed moderate, bilateral, diffuse wheezing and prescribed albuterol, prednisone, and
amoxicillin. (Id.). He advised Miller to stop smoking. (Id.).
On April 13, 2011, Miller presented to the emergency room complaining of left
leg numbness of fluctuating intensity that she had experienced for two days. (Tr. 468-71). Upon

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examination, Miller demonstrated no focal neurological deficits, although she had diminished
sensation in her left leg. (Id.). She was diagnosed with a herniated disk with neuropathy and
discharged. (Id.).
On April 14, 2011, Miller attended another appointment with Bolla complaining
of back pain and numbness. (Tr. 553-54). According to Miller, she was experiencing pain in her
lower back that radiated to her left ankle, left calf, and left thigh. (Id.). She also experienced
numbness in her left leg, along with motor weakness. (Id.).
On April 15, 2011, Bolla admitted Miller for inpatient treatment. (Tr. 472-74).
According to treatment notes, Miller reported that the previous week she had been moving heavy
furniture. (Id.). The day after moving the furniture she experienced severe pain in her back and
legs that brought her to her knees. (Id.). She was eventually able to get up and ambulate,
although she experienced a similar incident the following day. (Id.). Miller reported that her left
leg was numb and weak and that she was having difficulty ambulating. (Id.). She reported that
she had gone to the emergency room the day before and had been discharged with instructions to
follow up with Bolla. (Id.).
Bolla noted that Miller arrived in a wheelchair and demonstrated severe pain and
a clear neurologic deficit. (Id.). According to Bolla, an image of Miller’s lumbar spine
demonstrated a disk bulge at L4-5 and L5-S1, without clear herniation, and mild spinal stenosis.
(Id.). Because there was no clear diagnosis and Miller was experiencing a significant level of
discomfort, Bolla admitted her for further testing, including an MRI. (Id.).
Miller was discharged on April 15, 2011 after demonstrating significant
improvement. (Tr. 475-76). An MRI of her lumbar spine demonstrated no disk herniation or
stenosis, although she did have a central disk protrusion at L5-S1 with mild central stenosis and

4

bilateral foraminal stenosis. (Tr. 457). Bolla instructed her to follow up as an outpatient and to
contact him if her condition worsened. (Tr. 475-76). At discharge, Miller was diagnosed with
an improved disk herniation, COPD, migraines, and depression and anxiety that were controlled
with Xanax and Prozac. (Id.).
Miller was readmitted to the hospital on April 18, 2011. (Tr. 477-80). Miller’s
mother reported that after she had been discharged from the hospital the previous week, Miller
demonstrated difficulty playing card games, which she was normally able to play. (Id.). The
following Monday, Miller’s mother contacted Bolla’s office and an MRI of her brain was
ordered. (Id.). The MRI demonstrated that Miller had suffered a series of small strokes,
prompting her readmission to the hospital. (Id.).
Miller did not complain of current headaches and did not demonstrate facial
weakness or numbness, speech problems, upper extremity weakness, or right lower leg
weakness. (Id.). Miller did demonstrate difficulty moving her left foot, but not as much
difficulty as she previously had experienced. (Id.). Miller did not appear to be in discomfort,
and she was able to communicate clearly and appeared completely oriented. (Id.). Bolla
assessed that she suffered from multiple right-sided strokes, suggestive of embolic disease from
either a carotid or cardiac source. (Id.).
On April 19, 2011, Miller underwent a neurological consultation with Olimpio
Cunha (“Cunha”), MD. (Tr. 495-97). Miller reported that she was feeling better and was better
able to move her left leg. (Id.). Upon examination, Miller demonstrated alertness, with a flat
affect, but was oriented and cooperative. (Id.). She was able to follow commands and her
mentation appeared appropriate. (Id.). She demonstrated slight left facial and left upper
extremity weakness and more pronounced weakness in her left leg. (Id.).

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Cunha assessed an acute/subacute ischemic stroke involving the right-sided
corpus callosum/parietal head region. (Id.). He recommended statin therapy to reduce her low
density lipoprotein level and an echocardiogram. (Id.). He indicated that he would consider
recommending a transesophageal echocardiogram, depending upon the results. (Id.).
On April 21, 2011, Miller was seen by Melchor Gonzalez (“Gonzalez”), MD, for
another consultation. (Tr. 498-501). Gonzalez noted that Miller was admitted after
demonstrating speech difficulties and was believed to have suffered from a cerebrovascular
accident caused by an unidentified source. (Id.). Gonzalez noted that Miller was alert and fully
oriented, but demonstrated occasional difficulty formulating answers to questions. (Id.).
Gonzalez was not able to identify the etiology of the cerebrovascular accident. (Id.). He
recommended a holter monitor to rule out significant dysrhythmias and a transesophageal
echocardiogram. (Id.).
Miller was discharged by Bolla on April 22, 2011. (Tr. 502-04). Bolla reported
that Miller had progressively improved during her stay, had recovered strength in her leg, and
had not suffered any additional neurological events. (Id.). Additional MRIs did not show
evolution of any new lesions in her brain, a carotid ultrasound was normal, and an
echocardiogram, holter monitor evaluation, and transesophageal cardiogram were negative.
(Id.). Bolla opined that Miller had suffered multiple, right-sided strokes in the parietal area of
her brain. (Id.). She was placed on aspirin and instructed to continue to receive care on an
outpatient basis. (Id.). He further opined that her hypertension, migraines, COPD, depression,
and anxiety were controlled. (Id.).
On May 20, 2011, Miller attended a follow-up appointment with Bolla.
(Tr. 550-52). Bolla’s notes indicated that Miller had made “great recovery” from her stroke and

6

that she was feeling well and demonstrated no deficits. (Id.). Upon examination, Miller
demonstrated no gait disturbance or psychiatric symptoms. (Id.).
Miller returned for further monitoring on August 17, 2011. (Tr. 547-49). During
the appointment, Bolla assessed that Miller suffered from moderate hyperlipidemia, but that she
was compliant with her medications. (Id.). He noted that she reported continued smoking and
advised her to quit. (Id.). With respect to her previous stroke, Bolla noted that her recovery was
good, she had not experienced any recurrence, and she did not demonstrate any deficits. (Id.).
On February 1, 2012, Miller attended another appointment with Bolla.
(Tr. 544-46). During the appointment she complained of anxiety, dizziness, headaches, and right
hand numbness, particularly while driving. (Id.). A neurological exam demonstrated intact
cranial nerves and no motor or sensory deficits. (Id.).
Miller returned for an appointment with Bolla on December 28, 2012,
complaining of headache. (Tr. 611). Miller reported that she had been experiencing debilitating
pain throughout her head for the previous three days. (Id.).
On February 13, 2013, Miller met with Bolla to monitor her blood pressure,
hyperlipidemia, and migraines. (Tr. 606-10). According to Bolla, Miller’s blood pressure was
improving and she did not report chest pain, shortness of breath, or headaches. (Id.). Miller’s
hyperlipidemia remained unchanged, and Miller’s migraines had improved. (Id.).
Miller attended an appointment with Bolla on April 8, 2013 and presented with
anemia. (Tr. 603-05). According to the treatment notes, her symptoms had begun over the
previous two weeks. (Id.).

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2.

Halifax Health

On February 20, 2013, Miller presented to the emergency room accompanied by
law enforcement after texting her friend that she was going to ingest fifty Xanax pills.
(Tr. 584-94). According to treatment notes, Miller reported increased depression after learning
that her boyfriend no longer wanted to see her. (Id.). A physical examination presented
essentially normal findings, although she was assessed to have impaired judgment and insight, a
depressed mood, and a flat affect. (Id.). She was assessed to be suffering from depression and
was discharged to a psychiatric care facility. (Id.).
3.

Stewart-Marchman Behavioral Healthcare

On February 21, 2013, Miller was involuntarily admitted for treatment at
Stewart-Marchman Behavioral Healthcare. (Tr. 598-602). Miller reported one previous
hospitalization and outpatient treatment, but that she had not seen a psychiatrist for several
months. (Id.). She also reported one previous suicide attempt, but stated that she could not
recall the details. (Id.). Upon examination, Miller appeared well-groomed with a normal gait.
(Id.). Antonio Canaan (“Canaan”), MD, opined that Miller had normal speech, full orientation,
appropriate affect, euthymic mood, spontaneous thought processes, relevant and goal-directed
thought associations, adequate abstracting abilities, normal thought content, no perceptual
distortions, immediate retention and recall impairment, adequate attention and concentration,
good insight and adequate judgment. (Id.). Miller denied current suicidal ideation, and she
presented no clinical indication of suicidal risk. (Id.). Canaan diagnosed Miller with recurrent
major depressive disorder and assessed a Global Assessment of Functioning (“GAF”) of 63.
(Id.). He discharged her to her parents with instructions to attend a follow-up appointment with
the outpatient clinic. (Id.).

8

On March 22, 2013, Miller returned for an appointment with Peggy Marion
(“Marion”), ARNP. (Tr. 595-97). During the appointment, Miller reported that she had been
depressed and angry prior to her hospitalization due to her inability to obtain employment or
disability assistance following her mini-stroke in 2011. (Id.). She reported that she texted her
friend that she was going to overdose on Xanax, but that she did not follow through with the
threat. (Id.). Miller reported that she continued to take medication that was prescribed by her
primary care physician. (Id.). Marion referred Miller for additional therapy. (Id.). She
diagnosed her with depressive disorder, not otherwise specified, and assessed a GAF of 50. (Id.).
B.

Medical Opinion Evidence4
1.

Norman E. Hoffman, PhD

On April 29, 2004, Norman E. Hoffman (“Hoffman”), PhD, administered
intelligence testing to Miller. (Tr. 577-80). In his report, Hoffman cautioned that his testing
results would need to be validated before they could be accepted. (Id.). According to Hoffman,
he administered the DSICA to Miller. (Id.). The results of that testing indicated that Miller
suffered from significant symptoms associated with a mood and anxiety disorder. (Id.).
Additionally, Miller’s reading comprehension, reasoning ability, and poor mathematical skills
suggested that she suffered from a learning disorder. (Id.).
Hoffman also administered the Bender Gestalt Test to Miller. (Id.). Hoffman
opined that the results of that testing suggested that Miller might demonstrate passivity,
withdrawn behavior, fearfulness, covert hostility, or schizoid tendencies. (Id.). Additionally the
results suggested that Miller might be emotional, depressed, or suffer from impulse control, overt

4

A physical Residual Functional Capacity (“RFC”) assessment was completed by Jorge Weksler, MD.
(Tr. 96-98). The Court has not summarized this assessment because Miller’s physical capabilities are not at issue.

9

anxiety, or agitation. (Id.). According to Hoffman, Miller’s psychopathology score suggested
that she had limited psychological problems. (Id.).
Hoffman also administered the Slosson Full-Range Intelligence Test (“S-FRIT”).
(Id.). The test results indicated that Miller had a verbal intelligence quotient (“IQ”) of 70, a
performance IQ of 64, and a full scale IQ of 62. (Id.). According to Hoffman, Miller’s
performance IQ and full scale IQ were within the educationally mentally handicapped range,
although he cautioned that her “current IQ probably does not represent her true cognitive abilities
due to a chronic difficulty with reading comprehension and integration.” (Id.). Hoffman also
administered the WRAT3 to evaluate her academic abilities. (Id.). The results indicated that
Miller’s mathematical performance was substantially below her expected grade level, and
although her reading score appeared to be within the normal range, her ability to recall and
understand what she had read was significantly impaired. (Id.). Results of coding and digit span
sub-tests suggested that Miller would have difficulty taking tests that require adequate reading
comprehension and integration and that she would perform better if provided auditory directions.
(Id.).
Hoffman diagnosed Miller with a reading disorder (dyslexia), mathematics
disorder, and he assessed a GAF of 55. (Id.). Hoffman indicated that Miller suffered from a
learning disorder and a below expected level of reading comprehension. (Id.). According to
Hoffman, Miller was able to read aloud, but had difficulty comprehending and discussing what
she had read. (Id.). When prepared material was read to her, however, she did not evidence any
difficulty understanding the material. (Id.). He attributed her academic deficiencies to dyslexia.
(Id.). He also ruled out bipolar disorder and recommended cessation of any treatment for bipolar
disorder. (Id.).

10

Hoffman recommended that Miller be permitted to retake the Emergency Medical
Technician (“EMT”) test with accommodations. (Id.). He also recommended that she continue
counseling and psychotherapy. (Id.).
2.

Argene K. Danielides, EdS, PhD

On November 22, 2004, Argene K. Danielides (“Danielides”), EdS, PhD,
conducted a psychological evaluation of Miller upon referral from Hoffman. (Tr. 574-76).
Miller was interested in pursuing further testing because she wanted to pass the EMT
examination. (Id.). According to Miller, she felt that she knew the information required for the
examination, but had difficulty with reading comprehension and the time limit. (Id.).
Danielides recounted Miller’s academic history, reporting that she began to
experience reading difficulties in the first grade. (Id.). In the fourth grade, Miller was placed
into special education due to academic difficulties, as well as moodiness, reduced impulse
control, and temper outbursts. (Id.). Eventually, she returned to a regular education setting and
graduated from high school. (Id.). Since that time, Miller held several jobs including cashier,
shelf stocker, station attendant and grocery bagger. (Id.). Danielides also noted that Miller
reportedly suffered sexual abuse when she was younger. (Id.).
Upon examination, Miller presented as cooperative, motivated, and conscientious,
although occasionally notably anxious and insecure. (Id.). Danielides described Miller as “quite
articulate and descriptive regarding recent daily happenings and current events.” (Id.).
According to Danielides, Miller responded best to oral questions, but demonstrated frustration
with tasks involving visual memory, speed, or reading comprehension. (Id.). She also
demonstrated difficulty with tasks requiring calculation, numeric processing, and reasoning.
(Id.).

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Danielides administered the Woodcock Johnson III tests of cognitive ability and
achievement. (Id.). She assessed that Miller’s intentional cognitive processing was in the high
average range and her automatic cognitive processing was in the low average range. (Id.). Her
performance in comprehension-knowledge and visual-spatial thinking, fluid reasoning, and
short-term memory was average. (Id.). She demonstrated an advanced phonemic awareness and
an average working memory capacity. (Id.). Her oral language skills and listening
comprehension skills were average. (Id.). Danielides opined that Miller’s academic skills,
ability to apply those skills, and her fluency with academic tasks were all within the average
range and that her performance was high average in written expression, average in reading,
reading comprehension and written language, and low average in mathematics and math
calculation skills. (Id.).
Danielides opined that Miller’s difficulties likely stemmed from her ability to
process information, affecting both her comprehension and performance. (Id.). Despite this
difficulty, her overall cognitive processing was in the high average range, with particular
strength in auditory interactive processing. (Id.). Danielides opined that Miller should be
permitted to retake the EMT test with accommodations, including auditory presentation of the
testing materials. (Id.).
3.

Richard K. Lyons, PhD

On November 9, 2011, agency medical consultant Richard K. Lyons (“Lyons”),
PhD, completed a Psychiatric Review Technique. (Tr. 77-79). Lyons concluded that Miller’s
mental impairments did not meet or equal a listed impairment. (Id.). According to Lyons, Miller
suffered from mild limitations in her activities of daily living and ability to maintain social

12

functioning and moderate limitations in her ability to maintain concentration, persistence or pace.
(Id.). According to Lyons, Miller had not suffered from repeated episodes of deterioration. (Id.).
Lyons completed a mental RFC assessment. (Tr. 82-84). Lyons opined that
Miller suffered from moderate limitations in her ability to remember, understand, and carry out
detailed instructions, maintain attention and concentration for extended periods, complete a
normal workday and workweek without interruptions from psychologically-based symptoms,
interact appropriately with the general public, maintain socially appropriate behavior and adhere
to basic standards of neatness and cleanliness, and respond appropriately to changes in the work
setting. (Id.). Lyons opined that Miller retained the ability to understand and remember simple
routine instructions and work procedures, sustain concentration, persistence and pace to
complete simple tasks, interact appropriately with coworkers and supervisors in a setting with
limited interpersonal demands, although she might need occasional redirection to hygiene and
cleanliness. (Id.). He further opined that Miller was generally adaptable in a task setting, but
would do best if changes were introduced in a gradual manner. (Id.). He also opined that Miller
was able to learn and engage in simple, rote and repetitive tasks and to perform on a sustained
basis in a socially appropriate manner. (Id.).
4.

George Grubbs, PsyD

On January 30, 2012, agency medical consultant George Grubbs (“Grubbs”),
PsyD, completed a Psychiatric Review Technique. (Tr. 93-95). Grubbs concluded that Miller’s
mental impairments did not meet or equal a listed impairment. (Id.). According to Grubbs,
Miller suffered from mild limitations in her activities of daily living and her ability to maintain
social functioning and moderate limitations in her ability to maintain concentration, persistence

13

or pace. (Id.). According to Grubbs, Miller had not suffered from repeated episodes of
deterioration. (Id.).
Grubbs completed a mental RFC assessment. (Tr. 98-101). Grubbs opined that
Miller suffered from moderate limitations in her ability to remember, understand, and carry out
detailed instructions, maintain attention and concentration for extended periods, complete a
normal workday and workweek without interruptions from psychologically-based symptoms,
interact appropriately with the general public, maintain socially appropriate behavior and adhere
to basic standards of neatness and cleanliness, and respond appropriately to changes in the work
setting. (Id.). Grubbs opined that Miller retained the ability to understand and remember simple
routine instructions and work procedures, sustain concentration, persistence and pace to
complete simple tasks, interact appropriately with coworkers and supervisors in a setting with
limited interpersonal demands, although she might need occasional redirection to hygiene and
cleanliness. (Id.). He further opined that Miller was generally adaptable in a task setting, but
would do best if changes were introduced in a gradual manner. (Id.). He also opined that Miller
was able to learn and engage in simple, rote and repetitive tasks and perform on a sustained basis
in a socially appropriate manner. (Id.).
5.

John D. Bolla, MD

In a letter dated February 14, 2012, Bolla indicated that Miller was his patient and
that she had suffered a stroke in 2011. (Tr. 573). He opined that Miller was “unemployable”
since her stroke. (Id.).

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C.

Application for Benefits
In her application for benefits, Miller reported that was born in 1962. (Tr. 197).

According to Miller, she had previously been employed in grocery stores and as a pizza delivery
driver. (Tr. 211).
Miller reported that she lived with her parents and is able to care for the family’s
dog and bird with assistance from her parents. (Tr. 248-55). Miller indicated that she is able to
care for her personal hygiene without assistance. (Id.). She reported difficulty with
concentration and that she walks and thinks more slowly since her 2011 stroke. (Id.). Miller
reported that she does not prepare meals, but can perform indoor and outdoor household chores
without assistance. (Id.). Miller leaves her house to walk the dog and is able to drive a car.
(Id.). Miller reported that she is able to shop, but makes impulsive purchases. (Id.).
According to Miller, she is able to pay bills, count change, handle a savings
account, and use a checkbook. (Id.). During the day she watches television, works on the
computer, and plays card games. (Id.). She does not socialize with others since her stroke. (Id.).
Miller reported impaired memory, concentration, and understanding since
suffering the stroke. (Tr. 232-33, 248-55). According to Miller, she can concentrate for
approximately one hour, but has difficulty finishing things and is not able to follow written
directions, although she can follow oral instructions. (Id.). She also reported that she gets along
with authority figures, but has difficulty managing stress and changes in routine. (Id.).
Miller’s mother, Rose Ann Miller (“Rose Ann”), also completed a function report
in support of Miller’s application for benefits. (Tr. 237-44). Rose Ann reported that Miller’s
thinking and walking have slowed since her stroke and she has difficulty with her memory and
working on the computer. (Id.). According to Rose Ann, Miller spends her day playing games

15

on the computer, watching television, playing cards, walking the dog, preparing meals, and
completing household chores. (Id.). Although Miller is able to feed, bathe and walk the dog,
Rose Ann and her husband are the dog’s primary caregivers. (Id.). Rose Ann reported that
Miller does not have difficulty maintaining her own personal hygiene, although she is sometimes
not as “careful” with her appearance as she used to be. (Id.).
According to Rose Ann, Miller can prepare her own breakfast and lunch and
assists her parents in preparing dinner. (Id.). She is able to clean the house, change the beds,
prepare meals, wash, mow the lawn, and trim the hedges. (Id.). Rose Ann reported that Miller
can spend from one to six hours a day performing household chores. (Id.). Rose Ann assists
Miller by providing encouragement and checking to ensure that the chores are properly
completed. (Id.).
Rose Ann reported that Miller leaves the house every few days and is able to
drive. (Id.). Miller goes shopping approximately once a week for food and other supplies. (Id.).
She is able to pay bills, count change, handle a savings account and a checkbook, although she is
not confident and often rechecks her calculations. (Id.). According to Rose Ann, Miller is able
to play cards, watch television, and play on the computer “very well.” Although she does not
socialize with her friends as frequently as she used to, she does leave the house to play cards
once a week. (Id.).
Rose Ann reported that Miller has difficulty with memory, completing tasks,
concentration, and understanding and following instructions. (Id.). According to Rose Ann,
Miller often seems distracted and has diminished self-confidence. (Id.). Rose Ann opined that
Miller could pay attention for “quite awhile,” but often becomes distracted and cannot complete
tasks. (Id.). Rose Ann reported that Miller has difficulty with written instructions, but can

16

follow spoken instructions. (Id.). She also has difficulty dealing with stress and changes in
routine. (Id.).
D.

Administrative Hearing Testimony
During the administrative hearing, Miller testified that she has lived with her

parents her entire life. (Tr. 48). According to Miller, she does not believe that she could live on
her own. (Tr. 51). Miller testified that she has always been close to her parents and they have
always kept her “under their wing.” (Tr. 52). Miller assists with household chores, including
washing laundry, caring for the family dog, and mowing the lawn. (Tr. 47-48). Miller testified
that she owns her own car and is able to drive. (Tr. 48). She has some friends from her previous
jobs, and she bowls with her friends in a bowling league once a week. (Tr. 49).
Miller testified that she graduated from high school with a regular diploma.
(Tr. 39). Miller testified that she was previously employed as a cashier and a swing shift
manager at a gas station. (Tr. 40). She also worked as a hotel room attendant. (Tr. 41).
According to Miller, her last job was in a hotel from April to May 2012. (Tr. 42, 192). Miller
was laid off due to lack of work. (Id.). Prior to that, Miller was employed as a pizza delivery
driver. (Tr. 42-43). Miller’s employment with that company ended shortly after she suffered a
stroke in April 2011. (Id.).
Since being laid off from her hotel job, Miller applied for several jobs. (Tr. 43).
According to Miller, she did not have any problems with her work as a cashier and, if she were
offered a cashier position, she would take it. (Tr. 45). Miller testified that since her stroke she
takes longer to process information and sometimes “zone[s] out.” (Tr. 46). According to Miller,
she is unable to calculate change in her head, but believes she would be able to provide the

17

correct change with the assistance of a cash register or calculator. (Tr. 50). Miller testified that
although she wants to work, she believes that full-time work would be too stressful. (Tr. 46, 50).
Miller testified that she also suffers from headaches approximately once every
three months. (Tr. 51). According to Miller, her prescription medicine is effective in alleviating
her headaches. (Id.).
Miller’s mother also testified at the hearing. (Tr. 54-63). Rose Ann testified that
Miller has always lived with her parents because she is a slow learner and does not earn enough
money to live on her own. (Tr. 56). Additionally, Miller has difficulty trusting others, and
others easily take advantage of her. (Id.). According to Rose Ann, Miller was placed into
special education classes and was eventually placed back into a regular classroom setting.
(Tr. 57).
Rose Ann testified that Miller’s processing has slowed since her stoke and she has
difficulty making decisions, counting change, and playing cards. (Tr. 57-58). According to
Rose Ann, Miller is able to drive without getting lost, but sometimes experiences migraines
requiring her parents to come get her. (Id.).
Rose Ann testified that Miller assists with household chores, including mowing
the lawn and vacuuming, but often loses focus and cannot work quickly. (Tr. 59). According to
Rose Ann, Miller has made significant efforts to obtain employment since her stroke, but no
employers are willing to hire her. (Tr. 60).
Rose Ann did not know what caused Miller to threaten to overdose in February
2012, but the psychiatric care Miller received after the episode was helpful. (Tr. 61). According
to Rose Ann, Miller is unable to afford ongoing psychiatric care because she is uninsured. (Id.).

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Jackson C. McKay (“McKay”), a vocational expert, also testified during the
hearing. (Tr. 63-68). The ALJ asked McKay to characterize Miller’s previous employment.
(Tr. 64) According to McKay, Miller previously had been employed as a cashier and a
housekeeper. (Id.).
The ALJ asked McKay whether a person would be able to perform Miller’s
previous jobs who was the same age as Miller, with the same education and vocational profile,
who was unable to maintain full-time work because they could not keep up with the pace of the
work, be persistent or concentrate sufficiently. (Tr. 65). McKay testified that such an individual
would be unable to maintain competitive employment. (Id.).
The ALJ asked McKay whether a person would be able to perform Miller’s
previous jobs who was the same age as Miller, with the same education and vocational profile,
who was able to perform light level exertional work, could climb ramps and stairs frequently,
balance, stoop, kneel, crouch and crawl occasionally, was unlimited in the use of her upper
extremities, and could see, hear, and communicate, but was unable to climb ladders, ropes or
scaffolds, should avoid hazards and dangerous machinery, and was limited to jobs involving
simple, one-to-two step tasks, that did not require complicated or complex reading or math, or
production or pace demands. (Tr. 66). McKay testified that such an individual would be able to
perform Miller’s previous positions. (Id.).
Miller’s attorney asked McKay to provide the tolerable absentee rates for those
positions. (Id.). McKay indicated that a person could be absent at most two times per month in
order to maintain employment. (Id.). McKay also testified that employees who were off task
more than ten percent of the workday would have difficulty maintaining employment.
(Tr. 66-67).

19

DISCUSSION
I.

Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent

20

they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled if he or she is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A). In assessing whether
a claimant is disabled, the ALJ must employ a five-step sequential analysis. See Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The five steps are:
(1)

whether the claimant is currently engaged in substantial
gainful activity;

(2)

if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;

(3)

if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;

(4)

if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and

(5)

if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
21

national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
A.

The ALJ’s Decision
In her decision, the ALJ followed the required five-step analysis for evaluating

disability claims. (Tr. 16-26). Under step one of the process, the ALJ found that Miller had not
engaged in substantial gainful activity since April 14, 2011, the alleged onset date. (Tr. 18). The
ALJ noted, however, that Miller had worked since the alleged onset date at levels that were
below the substantial gainful activity level. (Id.). At step two, the ALJ concluded that Miller has
the severe impairments of ischemic heart disease, degenerative disk disease of the lumbar spine,
affective disorder, anxiety disorder, and dyslexia. (Tr. 18-19). The ALJ determined that Miller’s
COPD, sleep apnea and migraine headaches were not severe. (Id.). At step three, the ALJ
determined that Miller does not have an impairment (or combination of impairments) that meets
or medically equals one of the listed impairments. (Tr. 19-20). With respect to Miller’s mental
impairments, the ALJ found that Miller suffered from mild restrictions in activities of daily
living and social functioning and moderate difficulties in maintaining concentration, persistence,
and pace. (Id.). The ALJ concluded that Miller has the RFC to perform light work, but that she
must avoid climbing ladders, ropes or scaffolds, could frequently climb ramps or stairs, and
balance, stoop, kneel, crouch and crawl occasionally, and must avoid exposure to workplace
hazards. (Tr. 20). The ALJ also found that Miller was limited to jobs that involve no more than
simple one-to-two step commands with no production-paced demands and no complicated or
advanced reading or math. (Id.). At step four, the ALJ determined that Miller was able to
perform past relevant work as a cashier and housekeeping cleaner. (Tr. 25). Accordingly, the
ALJ found that Miller was not disabled. (Id.).

22

B.

Miller’s Contentions
Miller contends that the ALJ’s mental RFC determination is not supported by

substantial evidence and is the product of legal error. (Docket # 10-1). First, Miller maintains
that the ALJ’s RFC determination is not supported by substantial evidence because the ALJ’s
decision is not properly supported by any medical opinion of record and the ALJ improperly
weighed the medical opinions of record.5 (Id. at 14-25). Miller also contends that the ALJ failed
to apply the correct legal standards in evaluating her credibility. (Id. at 25-29). Specifically,
Miller maintains that the ALJ improperly considered her activities of daily living in assessing her
credibility and mischaracterized her capabilities. (Id.). Additionally, Miller maintains that the
ALJ improperly relied upon her failure to seek psychiatric treatment. (Id.).

II.

Analysis
A.

Mental RFC Assessment
I turn first to Miller’s contention that the ALJ’s RFC assessment was flawed. An

individual’s RFC is her “maximum remaining ability to do sustained work activities in an
ordinary work setting on a continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(quoting SSR 96–8p, 1996 WL 374184, *2 (1996)). In making an RFC assessment, the ALJ
should consider “a claimant’s physical abilities, mental abilities, symptomology, including pain
and other limitations which could interfere with work activities on a regular and continuing
basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221 (N.D.N.Y. 2009) (citing 20 C.F.R.
5

In a single sentence in a footnote, Miller maintains that the ALJ failed to adequately explain her step
three determination. (Docket # 10-1 at 15 n.3). Miler does not contend, and in fact concedes, that the record does
not contain evidence that her cognitive impairments satisfied one of the listings. Further, Miller concedes that her
IQ scores are not valid for purposes of meeting the listings. I conclude that Miller has failed to properly raise this
issue, and I need not address it. In any event, a review of the record provides substantial evidence to support the
ALJ’s conclusion that Miller’s impairments, either singly or in combination, did not meet or equal any of the
listings.

23

§ 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant evidence, including
medical opinions and facts, physical and mental abilities, non-severe impairments, and
[p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue, 2009 WL 1940539, *9
(N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 380 F. App’x 231 (2d Cir. 2010).
Miller’s challenge to the RFC assessment primarily concerns the medical opinion
evidence of record and the ALJ’s evaluation of the relative weight to accord to the various
medical opinions. (Docket ## 10-1 at 14-25; 12 at 1-6). The crux of Miller’s challenge is that
the ALJ failed to account adequately for Miller’s low IQ, purportedly demonstrated by the 2004
intelligence testing performed by Hoffman and Danielides. (Id.). According to Miller, the ALJ
erred by failing to discuss the results of that intelligence testing and by improperly relying upon
the opinions of Lyons and Grubs. (Id.). Miller maintains that the ALJ failed to appreciate that
that she suffered from a low IQ prior to her stroke and that her cognitive disabilities declined
further after her 2011 stroke. (Id.). According to Miller, the ALJ improperly relied upon the
opinions of Lyons and Grubbs because they were not aware of Miller’s pre-stroke cognitive
deficiencies. (Id.).
Although the record demonstrates that Miller scored a full-scale IQ of only 62 in
2004, Hoffman, who administered the testing, opined that the score did not accurately reflect
Miller’s true cognitive capabilities because it was artificially deflated due to her dyslexic reading
comprehension deficiencies. (Tr. 579). Indeed, Danielides, who reviewed Hoffman’s report and
conducted an independent evaluation of Miller, opined that Miller’s intentional cognitive
processing was in the high average range and her cognitive efficiency was in the low average
range. (Tr. 575). According to Danielides, Miller’s “academic skills, her ability to apply those
skills, and her fluency with academic tasks are all within the average range.” (Tr. 576). Further,

24

Danielides opined that Miller’s “overall cognitive processing is reported in the high average
range.” (Id.). Simply stated, Miller’s protestations of significant cognitive deficiencies are not
supported by the single IQ score she cites, the validity of which was questioned by the medical
professional who administered the test.
Although Miller attended special education classes for several years, she was
placed back into a regular education setting and graduated from high school with a regular
diploma. Miller is able to care for her personal hygiene, and assist with household chores,
shopping, and caring for family pets. She participates in a weekly bowling league, plays cards
with her family, and uses a computer “very well.” She is able to drive by herself without getting
lost, and indeed worked delivering pizzas both before and after her stroke. She has successfully
worked as a cashier and as a housekeeper, and nothing in the record suggests that she was unable
to perform any of these positions due to her alleged cognitive deficits. Indeed, Miller testified
that she worked both as a cashier and as a shift manager before her stroke.
Miller’s own testimony does not support her allegations of debilitating cognitive
deficits prior to (or, indeed, after) after her stroke. For instance, Miller did not testify that she
was unable to obtain or maintain employment prior to her stroke due to her cognitive deficits.
Indeed, Miller testified that she was able to perform as a cashier prior to her stroke. (Tr. 45).
According to Miller, she was terminated from her last job (post-stroke) because there was
insufficient work, not because of her cognitive inabilities. (Tr. 42). Indeed, Miller continues to
actively seek employment and testified that she would accept a position as a cashier if it were
offered to her. (Tr. 45). Although Miller has never lived independently, her mother’s testimony
suggests that her limited financial resources was the principal reason. (Tr. 56).

25

Although the ALJ did not specifically refer to Hoffman’s report,6 her decision
makes clear that she fully evaluated Miller’s cognitive abilities in evaluating Miller’s RFC, and I
conclude that remand is not warranted. See Jones v. Barnhart, 2004 WL 3158536, *6 (E.D.N.Y.
2004) (“[t]hat an ALJ must consider all relevant evidence does not mean that the ALJ must
specifically address each piece of evidence in [her] decision[;] . . . [i]t is enough that the ALJ
noted that [she] carefully considered the exhibits presented in reaching [her] decision, . . . and
that the crucial factors in any determination are set forth with sufficient specificity to enable the
court to decide whether the determination is supported by substantial evidence”) (internal
quotations, citations and emphasis omitted). Indeed, the ALJ explicitly noted that Miller
contended that she suffered from “a cognitive learning disability,” but she nevertheless
concluded that Miller’s “alleged mental deficits [were] not well-supported by the objective
medical evidence.” (Tr. 21, 23). Having independently reviewed the record, I find that the
ALJ’s conclusion is well-supported, as the record as a whole does not support Miller’s
contention that she suffered from severe cognitive deficiencies either prior to or subsequent to
her stroke. Indeed, the record as a whole suggests that Miller was able to function at a level
above her alleged deficiencies.
I similarly reject Miller’s contentions that the ALJ improperly relied upon the
opinions of Lyons and Grubbs. As an initial matter, the law refutes any suggestion that the
opinions of non-examining physicians may never constitute substantial evidence to support an
RFC determination. See Miller v. Colvin, 2015 WL 1431699, *18 (W.D.N.Y. 2015) (citing F.S.
v. Astrue, 2012 WL 514944, *6 (N.D.N.Y. 2012) (“[a]n ALJ may rely upon the opinions of both
examining and non-examining [s]tate agency medical consultants, since such consultants are

6

In fact, the ALJ’s conclusion that Miller suffered from dyslexia strongly suggests that she reviewed
Hoffman’s report because Hoffman was the only doctor in the record to diagnose Miller with dyslexia.

26

deemed to be qualified experts in the field of Social Security disability[;] . . . the regulations
permit the opinions of nonexamining sources to override treating source opinions provided they
are supported by evidence in the record”)). Although a medical opinion that would otherwise
constitute substantial evidence may be rendered stale or invalid because it is based upon an
incomplete record or fails to account for a deterioration in a claimant’s impairment, see Welsh v.
Colvin, 2016 WL 836081, *12 (W.D.N.Y. 2016) (collecting cases), I find that the ALJ properly
relied upon the opinions of Lyons and Grubbs.
In this case, Lyons and Grubbs rendered their opinions after Miller had suffered
her stroke. Lyons and Grubbs were fully aware of her stroke and were able to review Miller’s
treatment notes relating to the stroke and those documenting her subsequent medical care. After
reviewing that medical evidence, both Lyons and Grubbs opined that Miller was capable of
performing unskilled work. That Lyons and Grubbs did not review Miller’s IQ results is
immaterial because, as described above, the administering physician concluded that the results
were not valid and nothing in the record suggests that Miller suffered from severe cognitive
deficits prior to her stroke. Accordingly, I conclude that the ALJ properly relied upon the
opinions of Lyons and Grubbs and that those opinions, in addition to the record as a whole,
provide substantial evidence to support the ALJ’s determination.
Miller also argues that the ALJ failed to follow the treating physician rule because
the reasons that the ALJ provided for rejecting Bolla’s opinion did not constitute “good reasons”
under the rule and because the ALJ failed to recontact Bolla prior to rejecting his opinion.
(Docket ## 10-1 at 20-22; 12 at 4-6). I disagree.
“An 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

27

opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). The ALJ must explicitly
consider:
(1)

the frequency of examination and length, nature, and extent
of the treatment relationship,

(2)

the evidence in support of the physician’s opinion,

(3)

the consistency of the opinion with the record as a whole,

(4)

whether the opinion is from a specialist, and

(5)

whatever other factors tend to support or contradict the
opinion.

Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010). The regulations also
direct that the ALJ should “give good reasons in [her] notice of determination or decision for the
weight [she] give[s] [claimant’s] treating source’s opinion.” Halloran v. Barnhart, 362 F.3d at
32 (quoting 20 C.F.R. § 404.1527(c)(2)). “Even if the above-listed factors have not established
that the treating physician’s opinion should be given controlling weight, it is still entitled to
deference, and should not be disregarded.” Salisbury v. Astrue, 2008 WL 5110992, *4
(W.D.N.Y. 2008). The same factors should be used to determine the weight to give to a
consultative physician’s opinion. Tomasello v. Astrue, 2011 WL 2516505, *3 (W.D.N.Y. 2011).
“However, if the treating physician’s relationship to the claimant is more favorable in terms of
the length, nature and extent of the relationship, then the treating physician’s opinion will be
given more weight than that of the consultative examining physician.” See id.
As an initial matter, Bolla’s opinion that Miller was “unemployable” reflects a
conclusion that is expressly reserved for the Commissioner. As such, the ALJ was not obligated
to accord significant weight to Bolla’s opinion. See Osbelt v. Colvin, 2015 WL 344541, *3
(W.D.N.Y. 2015) (physician’s letter “which concluded that ‘[claimant] is unable to work in any

28

significant capacity given ongoing emotional and physical limitations’ . . . [did] not specify the
nature of such limitations, or describe how they would render plaintiff incapable of work” and
thus amounted to a “conclusory opinion concerning the ultimate issue of disability, [a] matter
[that] is unquestionably reserved for the Commissioner”) (internal quotation omitted); Wilferth v.
Colvin, 49 F. Supp. 3d 359, 363 (W.D.N.Y. 2014) (“[the doctor’s] opinion . . . does not specify
any particular limitation on plaintiff’s capacity: it is no more than a conclusory opinion on the
ultimate issue of disability, which is unquestionably a matter reserved to the Commissioner”)
(internal quotation omitted); Thompson v. Colvin, 2014 WL 7140575, *9 (D. Vt. 2014) (doctor’s
opinion that claimant was currently unable to work was not entitled to weight; “the opinion[] [is]
conclusory and do[es] not list any practical functional consequences of [claimant’s] mental
impairments, stating merely that ‘complications with anxiety, PTSD[,] and agoraphobia’ have
caused her to be unable to work”); Emery v. Astrue, 2012 WL 4892635, *6 (D. Vt. 2012) (“the
ALJ was not obligated to afford significant weight to [the doctor’s] conclusory opinion that
[claimant’s] impairments limited ‘her ability to hold a full-time job’”).
In her decision, the ALJ reviewed Miller’s medical records and Bolla’s
two-sentence opinion. (Tr. 21-24). The ALJ stated that she accorded Bolla’s opinion “no
weight” because it was “inconsistent with his personal treatment notes and [Miller’s]
longitudinal medical records as a whole.” (Tr. 23). Specifically, the ALJ noted that these
limitations were inconsistent with the medical record, which demonstrated that although Miller
suffered from several impairments, they were all well-controlled. (Id.). She also concluded that
Bolla’s opinion was inconsistent with his treatment notes reflecting improvement in Miller’s
health after her stroke. (Id.). Indeed, during post-stroke appointments, Bolla described Miller’s
recovery as “great” and specifically noted that she demonstrated no deficits. (Tr. 550-52).

29

During subsequent appointments with Bolla, Miller never complained or requested treatment for
stroke-related cognitive deficits. Accordingly, even assuming that Bolla’s opinion was not too
conclusory to be considered, the ALJ did not violate the treating physician rule by determining to
reject it for the reasons she explained. See Harrington v. Colvin, 2015 WL 790756, *16
(W.D.N.Y. 2015) (ALJ properly discounted treating physician opinion where it assessed
limitations that were inconsistent with findings contained in the treatment records and with
admissions claimant had made concerning his activities of daily living); Wilferth v. Colvin, 49
F. Supp. 3d at 362 (ALJ properly weighed treating physician opinion and “adequately explained
her reasons for declining to grant controlling weight to his conclusion” where opinion was
“inconsistent with other opinions in the record, as well as statements made by the plaintiff
himself, and none of the objective test records . . . indicate[d] a level of disability greater than
that reflected in the plaintiff’s RFC, as determined by the ALJ”); Gladle v. Astrue, 2008 WL
4411655, *5 (N.D.N.Y. 2008) (ALJ properly discounted treating physician opinion where it was
inconsistent with treatment records and objective findings of consultative examiner).
I similarly reject Miller’s contention that the ALJ erred by failing to recontact
Bolla to request clarification of his opinion. (Docket # 10-1 at 21-22). Although “[i]t is well
established in the Second Circuit that an ALJ is under an obligation to develop the administrative
record fully, to ensure that there are no inconsistencies in the record that require further inquiry,
and to obtain the reports of treating physicians and elicit the appropriate testimony during the
proceeding,” Martello v. Astrue, 2013 WL 1337311, *3 (W.D.N.Y. 2013), the ALJ satisfied her
duty in this case. Here, the record contained other opinions from medical professionals,
including Grubbs and Lyons, regarding Miller’s ability to perform the mental requirements of
work. “[W]here, as here, the particular treating physician’s opinion that is at issue is

30

unsupported by any medical evidence and where the medical record is otherwise complete, there
is no duty to recontact the treating physician for clarification.” Ayers v. Astrue, 2009 WL
4571840, *2 (W.D.N.Y. 2009). In any event, the relevant inquiry is whether the record was
sufficient to support the ALJ’s RFC assessment. See Kunkel v. Comm’r of Soc. Sec., 2013 WL
4495008, *16 (W.D.N.Y. 2013) (“the issue is whether the record was adequate to permit the ALJ
to determine whether or not [p]laintiff was disabled”). As discussed above, I conclude that the
record was adequate to support the ALJ’s RFC determination.
I turn next to Miller’s contention that the ALJ improperly relied upon the absence
of noted work-related limitations in Bolla’s and Marion’s treatment notes in rendering her RFC
determination. (Docket # 10-1 at 23-25). Miller argues that the ALJ improperly drew an adverse
inference against her based upon the absence of limitations noted by Bolla and Marion. The
record does not support Miller’s contention.
Although Miller correctly notes that an ALJ should not interpret a physician’s
silence on a particular limitation as an opinion from the physician that the limitation does not
exist, see Cahill v. Colvin, 2013 WL 4034381, *18 (E.D. Pa. 2013) (“the proper inference from
silence about RFC in a treating physician’s report is that the issue was not considered”) (internal
quotations and brackets omitted), my review of the ALJ’s decision suggests that this did not
occur. In this case, the ALJ observed that neither Bolla nor Marion, two examining physicians
who treated Miller’s mental health issues, noted any particular work-related limitations in their
treatment notes. She did so in the course of summarizing the treatment records of Miller’s
hospitalization in 2011, Bolla’s treatment of her in the hospital, his discharge treatment plan, and
Marion’s treatment notes of her one appointment with her in March 2013. (Tr. 23-24). In other
words, the ALJ’s decision suggests that she merely noted the lack of identified limitations in

31

assessing the record as a whole. See Kennedy v. Comm’r of Soc. Sec., 2016 WL 633729, *5
(M.D. Fla. 2016) (“there is nothing prohibiting an ALJ from considering the absence of
functional limitations in treatment notes[,]” particularly where “the ALJ . . . simply relied on
these reasons to bolster his determination to assign [the treating physician’s] opinion less than
controlling weight”); Norris v. Colvin, 2014 WL 6474038, *8 (N.D. Ind. 2014) (“[t]he ALJ did
not rely on the [consulting examiner’s] silence”; “rather, the ALJ relied on [the consulting
examiner’s] examination findings and [the treating doctor’s] own unremarkable treatment
records to discount [the treating physician]”). Even if the ALJ’s observation could be considered
error, at most it was harmless in the context of the entire record, which demonstrated substantial
evidence for the ALJ’s determination.
Miller also contends that the ALJ improperly gave weight to Marion’s treatment
notes despite the fact that those notes did not constitute an opinion regarding Miller’s mental
ability to perform work-related tasks. (Docket # 10-1 at 24-25). While I agree with Miller that
Marion’s treatment notes do not contain opinions about her mental ability to perform
work-related tasks, I conclude that any error by the ALJ in according weight to the notes was
harmless. As described above, Marion’s treatment notes reflected that Miller’s mental health
had stabilized since her recent hospitalization and that she presented as cooperative and fully
oriented, with appropriate and adequate affect, mood, thought process, memory, concentration,
insight, and judgment. (Tr. 596). Nothing in Marion’s treatment notes was inconsistent with any
medical opinions of record or with the record as a whole. Moreover, the ALJ’s decision reflects
that she formulated Miller’s RFC based upon the entirety of the functional assessment provided
by Lyons and Grubbs, her review of the medical records, and Miller’s testimony and statements.
(Tr. 20-25).

32

The ALJ’s RFC finding explicitly required positions involving one-to-two step
tasks without production-paced demands or complicated reading or math. This requirement is
consistent with both Lyons’s and Grubb’s opinions that although Miller suffered some mental
limitations in her ability to perform work-related tasks, she nonetheless was capable of learning
and engaging in “simple, rote and repetitive tasks and perform[ing] on a sustained basis in a
socially appropriate manner.” (Tr. 84, 101). It is also supported by the medical records and
Miller’s testimony, which demonstrate that Miller engages in significant daily activities, has
been employed since her stroke, and continues to look for employment. Nothing in the record
suggests that Miller is unable to perform unskilled work involving no production-paced or
complex reading and math requirements. I conclude that the ALJ’s RFC assessment was based
upon a thorough review of the record and was supported by substantial record evidence;
accordingly, remand is not warranted. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)
(“[n]one of the clinicians who examined [claimant] indicated that she had anything more than
moderate limitations in her work-related functioning, and most reported less severe limitations[;]
[a]lthough there was some conflicting medical evidence, the ALJ’s determination that
[p]etitioner could perform her previous unskilled work was well supported”).
B.

Credibility Assessment
I turn next to Miller’s contention that the ALJ’s credibility analysis is flawed

because she applied the incorrect legal standards and mischaracterized the record. (Docket
## 10-1 at 25-29; 12 at 6-8).
An ALJ’s credibility assessment should reflect a two-step analysis. Robins v.
Astrue, 2011 WL 2446371, *4 (E.D.N.Y. 2011). First, the ALJ must determine whether the
evidence reflects that the claimant has a medically determinable impairment or impairments that

33

could produce the relevant symptom. Id. (citing 20 C.F.R. § 404.1529). Next, the ALJ must
evaluate “the intensity, persistence and limiting effects of the symptom, which requires a
credibility assessment based on the entire case record.” Id. (citing 20 C.F.R. § 404.1529(c)).
The relevant factors for the ALJ to weigh include:
(1) the claimant’s daily activities; (2) the location, duration,
frequency and intensity of the claimant’s pain or other symptoms;
(3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medication the claimant takes
or has taken to alleviate [his] pain or other symptoms;
(5) treatment, other than medication, the claimant receives or has
received for relief of her pain or other symptoms; (6) any measures
the claimant uses or has used to relieve her pain or other
symptoms; and (7) other factors concerning the claimant’s
functional limitations and restrictions due to pain or other
symptoms.
Id. (citing 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii)).
The ALJ concluded that Miller’s statements “concerning the intensity, persistence
and limiting effects of [her] symptoms are not entirely credible.” (Tr. 21). In doing so, the ALJ
assessed Miller’s subjective complaints in the context of a comprehensive review of the entire
record. I disagree with Miller’s contention that the ALJ applied the incorrect legal standard or
mischaracterized the evidence.
As an initial matter, insofar as Miller suggests that the ALJ was not permitted to
consider her activities of daily living in assessing her credibility, she is incorrect. (Docket # 10-1
at 25-29). Although not necessarily determinative as to credibility, the regulations require the
ALJ to consider a claimant’s daily activities in assessing credibility. 20 C.F.R.
§§ 404.1529(c)(3)(i)-(vii). In her decision, the ALJ considered the entire record, including
Miller’s daily activities and her history of treatment, along with the other factors described

34

above. Further, I disagree to the extent that Miller contends that the ALJ mischaracterized her
activities of daily living in evaluating her credibility. (Docket # 10-1 at 27-28).
Miller maintains that the ALJ improperly characterized Miller as an “independent,
functioning 50 year old woman,” rather than as a woman who is unable to engage in significant
activities and is dependent upon her parents. (Id. at 27). First, the ALJ never characterized
Miller as an “independent functioning” individual; rather, she stated that the claimant could
independently attend to her personal care needs, prepare simple meals, drive, shop, and complete
household chores. (Tr. 24). Second, although Miller disputes the ALJ’s characterization of her
daily activities, she does not identify a single factual error in the ALJ’s recitation. Instead, she
simply disagrees with the ALJ’s conclusions; in essence, Miller “invite[s] the court to re-weigh
evidence and come to a different conclusion than did [the] ALJ.” Martin v. Colvin, 2016 WL
1383507, *11 (N.D.N.Y. 2016) (internal quotation omitted). “That invitation must be declined,
since a reviewing court defers to the Commissioner’s resolution of conflicting evidence.” Id.
Miller also maintains that the ALJ improperly discounted her credibility because
she did not have a significant history of mental health treatment. (Docket # 10-1 at 28-29).
According to Miller, the ALJ failed to consider Miller’s mother’s testimony that Miller did not
have insurance and was unable to afford ongoing psychiatric care. (Id.). As an initial matter, the
regulations specifically permit the ALJ to consider a claimant’s treatment history in evaluating
credibility. 20 C.F.R. §§ 404.1529(c)(3)(v), 416.929(c)(3)(v). Further, my review of the ALJ’s
decision does not suggest that she discounted Miller’s credibility because she was not receiving
psychiatric treatment. Rather, the ALJ noted that her anxiety and depression were
well-controlled by medications prescribed by her primary care physician, even without further
treatment. (Tr. 22). The ALJ acknowledged that despite Miller’s complaints of debilitating

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cognitive deficits stemming from her stroke, Miller never complained of those deficits to her
primary care physician or to any other mental health provider. (Tr. 23).
In any event, even if the ALJ did err, her credibility finding is supported by other
substantial evidence in the record. Medick v. Astrue, 2012 WL 5499445, *5 (N.D.N.Y. 2012)
(although ALJ did not acknowledge that claimant’s failure to seek treatment could be explained
by lack of insurance, ALJ’s credibility determination was otherwise supported by substantial
evidence). As described in detail above, the record demonstrates that Miller could care for her
personal hygiene and family pets, clean, prepare simple meals, shop, drive, manage money, use
the computer, participate in a weekly bowling league, play cards and had been employed
successfully as both a cashier and in housekeeping. Although she contends that she has had
difficulty focusing and sometimes needs redirection since her stroke, she believes that she is
capable of working, although not at full-time capacity. Indeed, she has been employed since her
stroke, and nothing in the record suggests that she was unable to perform the requirements of that
position due to cognitive deficits.
In sum, I conclude that the ALJ applied the proper legal standards in analyzing
Miller’s subjective complaints and that substantial evidence supports the ALJ’s determination
that Miller’s complaints were not entirely credible for the reasons stated in her decision. See
Luther v. Colvin, 2013 WL 3816540, *7 (W.D.N.Y. 2013) (ALJ properly assessed subjective
complaints where she “reviewed all of [p]laintiff’s subjective complaints . . . [and] properly
considered [p]laintiff’s activities of daily living, inconsistent testimony and how her symptoms
affected her attempts at maintaining a job”).

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CONCLUSION
After careful review of the entire record, this Court finds that the Commissioner’s
denial of DIB was based on substantial evidence and was not erroneous as a matter of law.
Accordingly, the ALJ’s decision is affirmed. For the reasons stated above, the Commissioner’s
motion for judgment on the pleadings (Docket # 11) is GRANTED. Miller’s motion for
judgment on the pleadings (Docket # 10) is DENIED, and Miller’s complaint (Docket # 1) is
dismissed with prejudice.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
August 25, 2016

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