Nesbitt v. Colvin
Filing
17
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/27/16. (JMC)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
MICHELLE NESBITT,
Plaintiff,
15-CV-6330
-v-
DECISION
AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner OF Social
Security,
Defendant.
Michelle
Nesbitt(“plaintiff”)
brings
this
action
under
Titles II and XVI of the Social Security Act (“the Act”), claiming
that the Commissioner of Social Security (“the Commissioner” or
“defendant”) improperly denied her application for supplemental
security income (“SSI”) under the Social Security Act (the “SSA”).
Currently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
plaintiff’s
motion
is
For the reasons set forth below,
denied
and
defendant’s
cross-motion
is
granted.
PROCEDURAL HISTORY
On January 17, 2012, plaintiff filed an application for SSI
alleging disability as of April 15, 2008. Administrative Transcript
(“T.”) 162-187.
plaintiff and
Following an initial denial of that application,
vocational expert (“VE”) Abby May testified at a
video hearing, held at plaintiff’s request, on November 4, 2013
before administrative law judge (“ALJ”) Mary Withum. T. 68-96. The
ALJ issued an unfavorable decision on January 14, 2014, and a
request for review was denied by the Appeals Council on April 8,
2015. T. 1-6.
Considering the case de novo and applying the five-step
analysis
contained
in
the
Social
Security
Administration’s
regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ made,
inter alia, the following findings: (1) plaintiff had not engaged
in substantial gainful activity since January 17, 2012, the onset
date
of
her
alleged
depression,
and
disability;
anxiety
were
(2)
her
severe
spinal
arthralgias,
impairments;
(3)
her
impairments, singly or combined, did not meet or medically equal
the
severity
Subpart
P,
of
any
Appendix
impairments
1
(20
CFR
listed
in
416.920(d)
20
and
CFR
Part
416.926);
404,
and
(4) plaintiff had the residual functional capacity to perform light
work
as
defined
in
20
CFR
416.967(b)
with
the
following
limitations: avoid ladders, ropes, scaffolds, and all exposure to
unprotected heights; simple, routine, and repetitive tasks, simple
work-related decisions, and few workplace changes; occasionally
interaction
with
frequent stooping.
the
public,
coworkers,
and
supervisors;
and
T. 17.
DISCUSSION
I.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
2
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g).
This section directs
that when considering such a claim, the Court must accept the
findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
When
determining whether
the
Commissioner’s
findings
are
supported by substantial evidence, the Court's task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam). Section 405(g) limits
the scope of the Court’s review to two inquiries: whether the
Commissioner’s findings were supported by substantial evidence in
the record as a whole and whether the Commissioner’s conclusions
are based upon an erroneous legal standard. See Green–Younger v.
Barnhart, 335 F.3d 99, 105–106 (2d Cir. 2003).
At the hearing, plaintiff, who lives with her boyfriend and
three children (16 years old and 13-year-old twins), testified that
she was
unemployed
and
receiving
DSS payments.
Since
2002,
plaintiff worked as a housekeeper in an adult care facility for six
months, a part-time bookkeeper for her husband’s roofing business
from 2005 to 2006, and a home health aide for an unspecified
period.
In August 2011, she also helped a friend do siding work
3
for three days, during which she witnessed another worker fatally
fall from a scaffold.
Plaintiff lifted up to 30 pounds during her
periods of employment.
She further testified that due to her
anxiety she does not like to leave her house or be around other
people, although she does drive or walk to other locations.
She
takes Ativan, which “calms [her] nerves,” to some extent, if she
has
to
leave
the
house.
T.
76.
Her
symptoms
include
heart
palpitations, difficulty breathing, and a lump in her throat, which
last 30 minutes to an hour.
Her medication was changed to include
an increase in Cymbalta, which made her “feel a little better.”
T. 78.
On a typical day, plaintiff would get up, get the kids up
for school, do puzzles, listen to music, clean, watch TV and, on
occasion, bake.
Plaintiff had struggled with panic attacks and depression from a
young age, but her anxiety became worse at the end of 2007 when she
found out that her husband was having an affair with her best
friend and “[her] world just fell apart.” T. 78-79.
She shops at
midnight to avoid people and sleeps for about four hours on a good
night.
She also has frequent crying spells that can last up to two
hours four or five days a week.
Her current medications do not
cause any side effects.
Apart from her anxiety, plaintiff testified that she also
experiences lower back pain and abdominal cramping on a daily
basis.
Her legs and hips “go numb” for ten to fifteen minutes if
she sits or stands for a long period of time. T. 84.
4
She is able
to sit for “about a half hour without having to adjust” her
position, and she can lift up to 30 pounds. T. 85-86.
Plaintiff
visits her counselor once or twice a month and has never been
admitted to inpatient psychiatric care.
The VE testified, in response to the ALJ’s hypothetical
question, thatan individual of plaintiff’s age, education, and work
background who was limited to light work activities involving no
ladders,
ropes,
scaffolds,
or
unprotected
heights,
frequent
stooping, simple repetitive tasks, occasional workplace changes and
decision
making,
and
occasional
interaction
with
coworkers,
supervisors, and the general public could perform the unskilled,
light work of an office helper, of which over 85,000 positions
exist
nationally,
a
mail
room
clerk,
of
which
over
102,000
positions exist nationally, and a laundry sorter, of which over
434,000 positions exist nationally. T. 89-90.
II.
The Commissioner’s Decision Denying Benefits is
Substantial Evidence in the Record.
Supported by
Plaintiff contends that remand is warranted because the ALJ
erred by assigning little weight to the opinions of her mental
health treatment providers, Kathe Klein and Lorraine Eyth, and her
treating family physician Dr. Nickell, and assigning greater weight
to the state agency psychiatric examiner Dr. Marjorie Baittle,
Ph.D.
and
non-examining
consultant
Dr.
Plaintiff’s memorandum of law, p. 16-24.
T.
Harding,
Psy.D.
Defendant responds that
the ALJ gave valid reasons for affording little weight to the
“other source” opinions of Ms. Klein and Ms. Eyth, to which the
5
treating physician rule does not apply, and good reasons for
affording less than controlling weight to Dr. Nickell’s opinion.
Defendant’s memorandum of law, p. 15-25.
The Court notes, initially, that the regulations define nurses
and therapists as “other sources” whose opinions may be considered
with respect to the severity of the plaintiff’s impairment and
ability to work, but need not be assigned controlling weight.
20 C.F.R. § 416.913(d)(1). In her decision, the ALJ noted that Ms.
Klein,
plaintiff’s
treating
counselor,
was
not
an
acceptable
medical source and had a limited one-year treating relationship,
during which plaintiff had compliance and attendance issues.
The
ALJ further noted that Ms. Klein’s opinion that plaintiff would
miss four or more workdays per month due to her mental impairments
did
not
address
plaintiff’s
noncompliance
with
treatment
or
plaintiff’s own reports that her condition improved with therapy
and Ativan.
In April 2013, Ms. Klein noted that plaintiff’s mood
was emotional with full range and an appropriate affect.
displayed
She
organized thoughts, was cognitively intact, and showed
fair to good judgment and insight. T. 528.
Ms. Klein recommended
adjusting plaintiff’s medications and continuing therapy. T. 528.
The record reveals that, in November 2012, Ms. Eyth, LCSW,
found that, despite having a long history of anxiety, plaintiff was
motivated for treatment and had: good communication skills; insight
into her problems; the ability to participate in treatment and care
for herself and others; and adequate decision making skills.
6
T. 483. Ms. Eyth also noted that plaintiff had limited vocational
skills, financial difficulties, difficulties with interpersonal
relationships, and a history of noncompliance with treatment.
T. 483.
Ms. Eyth later submitted a letter to the Appeals Counsel
that plaintiff’s treatment attendance problems were no longer an
issue. T. 644.
In a mental RFC evaluation dated July 16, 2013, Ms. Klein and
Ms. Eyth diagnosed panic disorder with agoraphobia and depressive
disorder, not otherwise specified, and opined that she had a fair
ability: to comprehend and carry out simple instructions; remember
work
procedures;
remember
detailed
instruction;
respond
appropriately to supervision; exercise appropriate judgment; and
make simple work-related decisions. T. 538-540.
They further
opined a fair-to-good ability to respond appropriately to coworkers
and be aware of normal hazards and make necessary adjustments.
T. 538, 540. However, plaintiff showed a poor ability to: complete
a normal workday; concentrate and attend tasks over an eight-hour
period,
maintain
work-related
social
stress.
T.
functioning,
539-540.
and
Her
respond
ability
to
to
normal
abide
by
occupational rules was poor-to-fair. T. 540.
With respect to the weight accorded to Dr. Nickell’s opinion,
the
treating
physician
rule
provides
that
an
ALJ
must
give
controlling weight to a treating physician's opinion if that
opinion is well-supported by medically acceptable clinical and
diagnostic techniques and not inconsistent with other substantial
7
evidence in the record. See Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. § 416.927(c)(2).
However, “[w]hen other
substantial evidence in the record conflicts with the treating
physician's
opinion
.
.
.
that
opinion
will
not
be
deemed
controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v.
Apfel,
177
F.3d
128,
133
(2d
Cir.
1999)
(citing
20
C.F.R.
§ 404.1527(d)(4)).
Here, the ALJ found Dr. Nickell’s opinion that plaintiff was
not able to sustain full time work, despite the doctor’s own
opinion that she had no or slight limitations in all mental
functioning areas, to be unpersuasive.
The ALJ listed several
reasons for rejecting the doctor’s opinion, including the finding
that Dr. Nickell, “a primary physician and not a psychological
specialist,” treated plaintiff primarily for “benign conditions
such as poison ivy, cold and B12 shots.” T. 26; see T. 491, 493,
496, 502, 503.
The ALJ further noted that Dr. Nickell’s treatment
records revealed that plaintiff benefitted from Ativan and therapy.
See T. 502.
In an October 2, 2012, Medical Examination for
Employability
form
for
the
Department
of
Social
Services,
Dr. Nickell opined that, with some limitation, plaintiff could
understand
and
remember
simple
instructions
and
complex
instructions, maintain attention and concentration, and interact
with others and, with no limitation, maintain socially appropriate
behavior and personal hygiene, make simple decisions, and perform
8
simple tasks.
Dr. Nickell further opined that plaintiff would be
able to return to work within six months if her condition was
stabilized
by
reinitiating
in
counseling
and
the
use
of
her
medications. T. 490, 502 (plaintiff reporting not using Ativan
daily
despite
her
increased
stress).
On
April
10,
2013,
Dr. Nickell completed another Medical Examination for Employability
form assessing similar limitations and indicating that plaintiff
could possibly resume working by October 10, 2013. T. 506.
The ALJ’s decision specifically noted that Dr. Nickell’s
opinion that plaintiff was unable to work was inconsistent with the
doctor’s own treatment records and the employability assessment,
which, apart from the aforementioned functional abilities, reveals
no
physical
limitations
aside
from
the
use
of
public
transportation. T. 490; see T. 26 (“Dr. Nickell paradoxically found
that [plaintiff] is unable to work, yet is able to work without or
with some limitations.”).
In fact, through the course of her
assessments, Dr. Nickell consistently opines that plaintiff has no
physical limitations.
The record also reveals, as noted by the
ALJ, that in Dr. Nickell’s third and final medical examination for
employability
form,
dated
October
10,
2013,
she
opined
that
plaintiff would be able to return to work within five months.
T. 26.
The Court finds that the ALJ’s decision to afford little
weight to the opinions of Ms. Eyth, Ms. Klein, and Dr. Nickell is
supported by the record evidence as a whole.
9
The Court also finds
that the ALJ did not err in her determination that the consultative
opinions of examining psychologist Marjory Baittle and reviewing
physician T. Harding are supported by the record. See Tankisi v.
Comm'r of Soc. Sec., 521 F. App'x 29, 35 (2d Cir. 2013) (finding no
reversible error where ALJ assigned “substantial weight” to state
agency reviewer’s opinion, where it was “supported by the remainder
of the record”).
State
agency
“In appropriate circumstances, opinions from
medical
and
psychological
consultants
and
other
program physicians and psychologists may be entitled to greater
weight than the opinions of treating or examining sources.” Younes
v. Colvin, 2015 WL 1524417, at *5 (N.D.N.Y. 2015) (citing SSR
96-6p).
In a psychiatric evaluation dated March 8, 2012, Dr. Baittle
opined that plaintiff’s attention and concentration was intact with
a mild impairment in recent and remote memory skills and above
average cognitive skills.
judgment
with
Dr. Baittle assessed fair insight and
psychiatric
problems
“that
may
interfere
with
[plaintiff’s] ability to function on a daily basis.” T. 250.
Dr.
Baittle
plaintiff’s
had
no
current
recommendations
psychotherapy
prognosis was guarded.
and
apart
opined
from
that
continuing
plaintiff’s
A psychiatric review technique report
completed by Dr. Harding on March 20, 2012 reveals his opinion that
plaintiff
had
a
mild
functional
limitation
in
the
area
of
restriction of daily living activities and moderate functional
10
limitations
in
the
areas
maintaining
concentration, persistence or pace.
social
functioning
and
There was no evidence to
establish the presence of “C” criteria of the Listings.
Dr. Harding’s mental residual functional capacity assessment
reveals plaintiff’s moderate limitations in the following areas:
understand and remember detailed instructions; maintain attention
and concentration for extended periods; perform activities within
a schedule; maintain regular attendance and be punctual within
customary
tolerances;
complete
a
normal
workday
and
workweek
without interruptions from psychologically-based symptoms and to
perform at a consistent pace without an unreasonable number and
length
of
rest
appropriately
periods;
to
accept
instructions
and
respond
from
supervisors;
and
respond
criticism
appropriately to changes in the work setting. T. 244-245.
not assess any marked limitations in any category.
He did
Dr. Harding
opined that plaintiff could “perform simple work in a low contact
environment.” T. 246.
The Court concludes that, based on its careful consideration
of the record evidence, that the ALJ’s RFC determination that
plaintiff was able to perform light work with the aforementioned
limitations
physical
is
based
limitation
on
substantial
evidence
and
the
evidence,
objective
including
findings
the
of
Ms. Eyth, Ms. Klein, and Dr. Nickell that although plaintiff’s
anxiety problems persisted in public, her condition was stabilized
11
by therapy and medication.
It is well established that the RFC
assessment must include, as it does here, “a narrative discussion
describing
how
the
evidence
supports
each
conclusion,
citing
specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).’” Hogan v. Astrue,
491 F. Supp.2d 347, 354 (W.D.N.Y. 2007), quoting Social Security
Ruling 96-8p, 1996 WL 374184, *7 (S.S.A. 1996) and citing Balsamo
v. Chater, 142 F.3d 75, 80-81 (2d Cir. 1998).
Importantly, the ALJ
is not required to credit all portions of a treating physician's
report even if she accepts other portions of the same report. See
Pavia v. Colvin, 2015 WL 4644537, at *4 (W.D.N.Y. 2015), citing
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
The
Court
has
also
considered
plaintiff’s
contention
concerning the ALJ’s credibility assessment (plaintiff’s memorandum
of law, p. 25-27), which incorporates a review of her testimony,
and finds no indication that the ALJ failed to apply the proper
standard in making this assessment. See Judelsohn v. Astrue, 2012
WL 2401587, *6 (W.D.N.Y. June 25, 2012); Britt v. Astrue, 486 F.
App'x 161, 164 (2d Cir. 2012).
Moreover, substantial evidence
supports the finding that the plaintiff's subjective complaints
lacked credibility because of inconsistencies with the balance of
the record evidence and testimony.
that
plaintiff
infrequent
“described
flare-ups”
and
her
In her decision, the ALJ notes
own
reported
12
back
that
pain
her
as
stable
depression
with
was
controlled.
Plaintiff’s testimony concerning her daily activities
indicate that despite her anxiety, she was able cook, clean, do
laundry, occasionally go out with her boyfriend, play computer
games, do puzzles, read, watch television, and listen to the radio.
The
ALJ
found
that
the
plaintiff's
subjective
complaints
in
relation to the intensity, persistence, and limiting effects of the
her symptoms are not credible because they are unsupported by the
record evidence.
Under the circumstances here, the Court finds that substantial
evidence supports the ALJ’s credibility determination.
The Court
further concludes that the additional evidence submitted to the
Appeals Counsel concerning plaintiff’s compliance with therapy and
her pelvic and abdominal pain did not warrant review of the
decision.
ALJ’s
The Appeals Council must grant review only if “it finds
that the [ALJ’s] action, findings, or contrary to the weight of the
evidence currently of record.” 20 C.F.R. §§ 404.970(b), 416.147(b).
There is no indication here that this additional evidence, to the
extent that these materials did not contain evidence already
considered by the ALJ, would, “more likely than not,” change the
ALJ’s findings or determination.
Consequently, remand is not
warranted.
CONCLUSION
Plaintiff’s
(Docket
No.
11)
motion
is
for
denied,
judgment
and
13
on
defendant's
the
pleadings
cross-motion
for
judgment on the pleadings (Docket No. 14) is granted.
Clerk is
directed to close case.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
August 27, 2016
14
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