Cook v. Colvin
DECISION AND ORDER denying 10 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings. This action is dismissed. Signed by Hon. Charles J. Siragusa on 10/3/17. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KIMBERLY MARIE COOK,
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
For the Plaintiff:
Howard D. Olinsky, Esq.
Olinsky Law Group
300 South State Street, Suite 420
Syracuse, New York 13202
For the Defendant:
Benil Abraham, 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.
United States Attorney’s Office
100 State Street, Fifth Floor
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 Kimberly Cook (“Plaintiff”) for Social Security Disability
Insurance Benefits (“SSDI”) and Supplemental Security Income Benefits (“SSI”). Now
before the Court is Plaintiff’s motion (Docket No. [#10]) for judgment on the pleadings
and Defendant’s cross-motion [#15] for judgment on the pleadings. Plaintiff’s
application is denied, Defendant’s application is granted, and this action is dismissed.
The reader is presumed to be familiar with the parties’ submissions, which
contain detailed recitations of the pertinent facts. The Court has reviewed the
administrative record [#8] and will reference it only as necessary to explain this Decision
Plaintiff was born in 1981, and completed high school (63). Plaintiff also
completed two years of college, earning an Associate’s Degree in “human services.”
(49, 197). Plaintiff has worked as a cashier at a dollar store, as a deli worker in a
supermarket, as cook in a fast-food restaurant, and as a child-care provider in a
daycare center. (30). About these jobs, Plaintiff stated, when applying for disability
benefits: “At all jobs I had issues controlling my temper and emotions. Out of the eight
jobs I left because of my emotions, anxiety or no body want[ed] to work with me. I’m
snappy and don’t realize it.” (211). On another application form, Plaintiff stated: “4 out
of eight job I los[t] because of my att[it]ude.” (219).
Plaintiff is divorced and lives with her two children – a daughter age nine and a
son age six. (35-36). Plaintiff indicates that her son receives SSI benefits because he
is “autistic,” “has ADHD” and “mood disorders” (36), while her daughter has “ADHD.”
(55). Plaintiff indicates that both children take medication for their conditions, which she
On August 10, 2011, Plaintiff reportedly told her primary care physician, David
Breen, M.D. (“Breen”) that back pain was bothering her “on and off.” (275).
On September 1, 2011, Plaintiff reportedly told Breen that she had twisted the
muscles in her lower back while playing with her son. (273).
On September 15, 2011, Breen reported that Plaintiff had received nerve block
injections in her lumbosacral spine, “with good response.” (276) (“Low back pain
improved with injections. Continued low level pain intermittently.”). Breen further noted
that Plaintiffs “depression and anxiety” were “well treated at this time.” (276).
On or about October 22, 2011, Breen referred Plaintiff to Livingston County
Counseling for “cannabis abuse.” (279).
On November 4, 2011, Plaintiff saw Breen for follow-up on her back pain. (272).
Plaintiff reportedly stated that she had “broken up” with her husband, and felt good
about that, but was stressed because her son was not sleeping. (272). Plaintiff
indicated that her back pain was still a “problem,” but that she was only taking Vicodin
“occasionally,” and was exercising and had lost weight. (272). Plaintiff further stated
that she had not been taking her “mental health meds,” but wanted to re-start taking
them, because she felt “overwhelmed.” (272).
On November 8, 2011, Breen’s office reported that Plaintiff had telephoned,
“demanding an appointment at mental health.” (271). Office notes indicate that Breen
had previously referred Plaintiff to “Noyes Mental Health,” but that Plaintiff had not
attended any sessions during 2011. (271).
On December 5, 2011, Plaintiff complained to Breen of low back pain. Upon
examination, Breen noted “bilateral lumbar spasm” and limited range of motion. (270).
Breen’s impression was “lumbo-sacral strain,” for which he prescribed exercise and
On January 17, 2012, Plaintiff reportedly told Breen that she was having severe
pain in her right forearm. (269).
On January 26, 2012, Plaintiff left Breen’s practice and became a patient of
Shaikh Ahmed, M.D. (“Ahmed”), who noted that Plaintiff claimed to have a history of
bipolar disorder, but was not taking medication. (292). Ahmed further noted that
Plaintiff’s mood was “stable” since splitting from her husband. (292). Ahmed’s physical
examination was normal. (292).
On August 8, 2012, Plaintiff had an initial mental health intake evaluation at
Noyes Memorial Hospital. (314) Plaintiff reported having a history of “mood fluctuations
including anxiety, depression, and anger, low self esteem, difficulty adjusting to major
life changes including ongoing divorce, family conflict [and] struggles managing her
children and their mental health concerns.” (314). Plaintiff indicated that she was not
taking medications “due to her belief that they do not work.” (314).
On August 13, 2012, Ahmed reported that Plaintiff was working at a hospital, and
was continuing to smoke. (284). Ahmed’s physical examination was normal. (284).
On August 22, 2012, Ahmed reported that Plaintiff was complaining of feeling
“overwhelmed at work, can’t handle two kids at home [with autism and ADHD].” (282).
On August 30, 2012, Plaintiff reportedly told her therapist that she intended to
obtain “long term disability coverage,” but would have to “endure ongoing financial
struggles until she was able to [do so].” (317). Plaintiff reportedly expressed the view
that her life was becoming more difficult, and that nothing worked out for her, while
“everyone else has it so easy.” (317). Plaintiff further indicated that she did not take her
prescribed thyroid or depression medications consistently. (318).
On September 14, 2012, Plaintiff told her therapist that she had woken up that
morning in an irritable mood, and “knows she will not be able to be around people
today.” (319). Plaintiff acknowledged that she verbally lash[ed] out” at people and
“often overreact[ed] to circumstances,” but felt that she “ha[d] reasons for her behavior
based on her past.” (319).
On September 17, 2012, Ahmed noted that Plaintiff was complaining of
worsening back pain. (280). However, upon examination, Ahmed found no muscle
spasm or other objective findings; the examination was completely normal, with full
range of motion and negative straight-leg raising. (280).
On September 25, 2012, despite Plaintiff’s expressed hope to obtain long-term
disability, Noyes indicated that as part of her treatment plan, she was required to
“actively engage in career counseling work in order to identify overall objectives for
possible occupations.” (348); see also, id. at 354 (noting that one of the objectives of
Plaintiff’s plan of treatment was to “establish plans for future employment and
On October 3, 2012, Virginia Wohltmann, M.D. (“Wohltmann”) performed a
psychiatric evaluation in connection with Plaintiff’s treatment at Noyes. (325-327).
Plaintiff reported problems with “moodiness and irritability” for many years, as well as
racing thoughts and anxiety. (325). Upon examination, Wohltmann found that Plaintiff’s
affect was “quite variable,” inasmuch as she was “tearful and upset” at times, and “loud
and irritable” at other times. (327). Wohltmann’s diagnosis was, inter alia, “mood
disorder [not otherwise specified],” and she recommended that Plaintiff continue
outpatient mental health therapy and thyroid treatment. (327). In particular, Woltmann
emphasized that Plaintiff needed to take her thyroid medication, in addition to the
mental health medication, because “thyroid dysfunction . . . can impact mood in a
significant way.” (327).
On October 10, 2012, Plaintiff’s therapist expressed concern over whether
Plaintiff was “benefitting from therapy due to lack of consistent attendance.” (323).
On October 15, 2012, Plaintiff told her therapist that “things appear to be
gradually improving in her life,” but that she did not want to schedule therapy
appointments “more frequently than every two weeks,” because of her “anxiety about
leaving home.” (324).
On November 5, 2012, Plaintiff underwent an internal medicine examination at
the Commissioner’s request. (335-338). Karl Eurenius, M.D. (“Eurenius”) examined
Plaintiff, and noted that she was complaining of “chronic right leg pain, chronic back
pain, chronic right arm pain and COPD.” (335). Plaintiff reportedly told Eurenius that
she took care of her children and home by herself, but needed help with cleaning “on
occasion.” (336). Eurenius’s physical exam was essentially normal, except that in the
lumbar spine, Plaintiff had decreased flexion, with pain and tenderness, and positive
straight-leg raising bilaterally. (337). Eurenius opined that Plaintiff would be
“moderately limit[ed] in prolonged sitting, standing, walking, climbing, bending, lifting,
carrying, pushing, and pulling, due to a combination of chronic low back pain and right
thigh pain.” (338). Eurenius further stated that Plaintiff would be “mildly” limited in
lifting, carrying, reaching and handling objects with her right arm, due to right elbow
On November 5, 2012, Plaintiff underwent a psychiatric evaluation by Yu-Ying
Lin, Ph.D. (“Lin”), at the Commissioner’s request. (339-343). Plaintiff reportedly told Lin
that she had left her last job “due to stress and interpersonal difficulties.” (339). Plaintiff
indicated to Lin that she had experienced “depressive symptoms on and off for years,
[which had] worsened five years ago after a car accident.” (339). Plaintiff claimed that
“since 18 or 19 years old,” she experienced manic symptoms “daily with each time
lasting five minutes to hours.” (340). Plaintiff further indicated that she had panic
attacks daily. (340). Plaintiff indicated that “she always leaves the house with
company,” and also claimed to have visual and auditory hallucinations. (340). Plaintiff
reportedly stated that she took care of the house (“cooking, cleaning, laundry, and
shopping”), drove, and managed her own money (though she was not good at
managing money). (341). Plaintiff stated, though, that her medical conditions made her
daily functions “difficult at times,” and that she sometimes needed assistance from her
mother-in-law. (341). Upon examination, Lin reported that Plaintiff appeared “dysphoric
and anxious,” but that her thought processes were coherent and goal directed, her
insight and judgment were fair, and her cognitive functioning was “below average to
average.” (341). Lin opined that Plaintiff’s “attention and concentration” were “mildly
impaired due to anxiety in the evaluation,” and that her memory similarly seemed to
“impaired due to anxiety.” (341). Lin offered the following opinion:
The claimant can follow and understand simple directions and
instructions. She can perform simple tasks independently. She may have
difficulty maintaining attention and concentration. She is not able to
maintain a regular schedule. She can learn new tasks. She can perform
complex tasks with supervision. She may have difficulty making
appropriate decisions. She cannot relate adequately with others. She
cannot appropriately deal with stress. Difficulties are caused by stressrelated problems and lack of motivation. The results of the examination
appear to be consistent with psychiatric problems, and this may
significantly interfere with the claimant’s ability to function on a daily basis.
On November 19, 2012, Plaintiff reportedly told Ahmed that she was unable to
work “due to social anxiety.” (426).
On January 15, 2013, Dr. Ahmed noted that Plaintiff’s “mood is stable.” (424).
On May 29, 2013, Plaintiff reportedly told Ahmed that she had been having back
pain for a week, that was “episodic,” though Ahmed’s physical examination of her back
was unremarkable. (414).
On June 5, 2013, Plaintiff went to Livingston County Mental Health to seek
treatment, rather than to Noyes. At that time, Livingston Mental Health completed an
intake note for Plaintiff. (372). Plaintiff indicated that she was seeking treatment for
“depressed mood and anxiety,” and “ha[d] retained an attorney and [was] seeking
disability.” (372). Plaintiff indicated that her “depression is a 10" and that she had
“some suicidal thoughts,” though “with no plan or intent.” (372). Plaintiff indicated that
she had left mental health treatment at Noyes because her therapist “was rude and did
not say much.” (372). Plaintiff denied any use of drugs, including marijuana. (373).
Upon examination, the therapist noted that Plaintiff was “tearful” and had an “anxious”
mood, but otherwise the examination was unremarkable. (376).
On June 12, 2013, Noyes discharged Plaintiff from mental health treatment,
noting that she had transferred to Livingston County Mental Health to obtain treatment.
(354). In her notes closing the file, Plaintiff’s therapist stated that Plaintiff had “often”
missed appointments and had “frequently reported physical health problems that
impacted her mood, [which] frequently ma[de] her irritable and resistive in sessions.”
(354). The therapist further noted that Plaintiff had made only “minimal progress”
because of her “reluctance to engage in sessions.” (354). The therapist also noted that
Plaintiff had apparently decided not to continue with therapy at Noyes after her session
on May 6, 2013, when she had been “uncooperative and hostile in session, and [had]
left the building after 20 minutes.” (354). (Plaintiff referred to this during the hearing,
noting that she stopped attending mental health therapy at Noyes because she “had a
really huge meltdown with [her] therapist.” (58)). The therapist further indicated that
Plaintiff did not fully meet the criteria for a diagnosis of “intermittent explosive disorder,”
but had a history of bipolar disorder and attention deficit hyperactivity disorder, based
upon her “self-report of difficulty concentrating and high energy levels, as well as [her]
fluctuating mood.” (352).
On July 10, 2013, Plaintiff’s therapist at Livingston Mental Health, nurse
practitioner Marybeth Peterson (“Peterson”), reported that Plaintiff was feeling
“depressed, sad, [and] angry,” and that she had been in “fights with family members.”
(379). Upon examination, Plaintiff appeared “sad” and “anxious,” with a flat affect,
impaired insight and poor judgment. (382).
On July 30, 2013, orthopedic specialist Jennifer Paul, M.D. (“Paul”), saw Plaintiff
upon referral from Dr. Ahmed. (449). Paul reported that Plaintiff was complaining of
severe lower back pain, as well as muscle pain in the middle of her back. (449). Paul
advised Plaintiff to take flexeril, to use heat on the lower back, and to “start [physical
therapy] as previously ordered.” (451).
On August 1, 2013, Plaintiff reported stated that she felt “overwhelmed” by her
finances and difficulties caring for her children.
On August 19, 2013, Plaintiff told Peterson that she worried about her “children
and lack of money,” but did not feel that she could work, “due to her depression.” (384).
Plaintiff admitted that she was not taking Klonipin as directed for anxiety. (385).
On August 23, 2013, Dr. Ahmed noted that Plaintiff was “absolutely
noncompliant” with her thyroid medications. (409).
On September 11, 2013, Plaintiff told Peterson that she had begun taking her
medication as directed and felt “emotionally better.” (387) (“The client reports that she
still has days of depression, but it is getting better.”).
On October 8, 2013, Dr. Ahmed noted that Plaintiff was “compliant with meds
[and] doing well.” (405).
On October 9, 2013, Peterson reported that Plaintiff was “doing better.” (390).
On October 24, 2013, Plaintiff was seen at Noyes Hospital by Chirag Patel, M.D.
(“Patel”), for lower back pain. (368). Plaintiff reportedly stated that her low back pain
had begun in 2011, without any apparent cause. (368). Patel obtained an MRI study,
which was “positive for mild broad base disc bulge,” “moderate to severe left sided
foraminal stenosis “ and “moderate right sided foraminal narrowing.” (368). Patel further
reported finding “18/18 trigger points associated with fibromyalgia.” (369). Patel
scheduled Plaintiff for an L4/L5 epidural steroid injection, and prescribed Cymbalta.
On November 15, 2013, Plaintiff reportedly requested an appointment with Dr.
Ahmed, so that she could tell him about her “generalized body aches” and “generalized
joint pain other than back, digits, hip knee.” (401). Once again, though, Dr. Ahmed’s
physical examination was unremarkable. (401).
On December 3, 2013, Plaintiff reportedly told Dr. Patel that she was having
severe (10/10) pain in her “low back radiating to all parts of [her] back,” which increased
with “walking a lot [and] standing a lot,” but which “decreases with sitting for short
periods.” (444). Patel’s impression was “lumbar discogenic pain syndrome” and “spinal
stenosis of the lumbar region.” (445). Patel performed another “L4/L5 epidural steroid
injection” and prescribed “Tizanidine.” (367).
On December 4, 2013, Plaintiff was “sad and tearful,” because her “husband
stopped paying child support,” and she had been “fighting with a friend and her sister.”
On December 9, 2013, Dr. Ahmed discussed with Plaintiff the results of a nerve
conduction study concerning carpal tunnel syndrome, and the fact that Dr. Patel had
diagnosed carpal tunnel syndrome. (399). Ahmed’s physical examination of Plaintiff
was unremarkable. (399).
On December 10, 2013, Nurse Practitioner Peterson completed a “Mental
Residual Functional Capacity Form.” (453-456). Peterson indicated that as of that date,
she had been treating Plaintiff for approximately five months. (453). Peterson indicated
that Plaintiff’s diagnoses were “mood disorder nos” and “anxiety disorder nos.” (453).
Peterson opined that Plaintiff was “markedly impaired” in the following work-related
abilities: ability to maintain attention and concentration for extended periods; and, ability
to complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number
of rest periods. (455). Peterson opined that Plaintiff was “moderately impaired” with
regard to remembering locations and work-like procedures; understanding,
remembering and carrying-out detailed instructions; performing activities within a
schedule, maintaining regular attendance and being punctual; and setting realistic goals
and making plans independently of others. (455-456).
Peterson indicated that Plaintiff was “not significantly impaired” in the following
areas: ability to interact appropriately with the general public; ability to accept
instructions and respond appropriately to criticism and supervisors; and the ability to get
along with coworkers or peers without distracting them or exhibiting behavioral
extremes. (455) (emphasis added). This aspect of Peterson’s opinion is surprising,
since according to Plaintiff, the primary reason she was unable to keep a job was her
inability to get along with others, including co-workers, supervisors and customers. (34,
54, 211, 219).
On January 21, 2014, Dr. Ahmed reported that Plaintiff was “doing well,” “taking
meds regularly” and “voic[ing] no complaints.” (468).
On February 26, 2014, Ahmed completed a report concerning Plaintiff’s residual
functional capacity to perform physical work-related activities. (459-464). Ahmed
indicated that Plaintiff’s physical impairments did not prevent her from performing
typical activities of daily living. (464). Ahmed further stated that Plaintiff should never lift
more than fifty pounds or work in unprotected heights. Otherwise, though, Ahmed
indicated that Plaintiff could frequently lift and carry up to 20 pounds; occasionally lift
and carry up to fifty pounds; sit for four hours at time; stand and/or walk for up to two
hours at a time; sit and/or stand for up to six hours in a workday; and walk for up to four
hours in a workday. (459-460).
Plaintiff claims to be unable to work, due to impairments including carpal tunnel
syndrome, chronic obstructive pulmonary disease (“COPD”), bipolar disorder, panic
disorder, generalized anxiety disorder, mood disorder, intermittent explosive disorder,
thyroid problems and lumbar pain. (30-31, 49). Plaintiff also claims to experience
residual pain from a car accident nine years ago, in which she sustained leg and arm
fractures, though she indicated that she is not receiving treatment for such pain. (50).
Plaintiff claims a disability onset date of August 29, 2012. (29). In that regard, Plaintiff
claims that in August 2012, she was working as a cashier at the Dollar Tree store, but
experienced anxiety and pain, and “g[ot] in enormous arguments with employees [and]
The Commissioner denied Plaintiff’s claim initially. The Commissioner noted that
the decision was based upon a review of Plaintiff’s medical records, including those
from Noyes (for the period 9/15/11-5/16/12), Breen, Ahmed, Eurenius and Lin. (121). In
that regard, on November 23, 2012, non-examining agency review psychologist T.
Harding, Ph.D. (“Harding”) completed a mental residual functional capacity assessment.
(69-73, 82-84). Harding found, based upon evidence including Wohltmann’s evaluation
(71), that Plaintiff was “not significantly limited” with regard to most mental work-related
functions, but that she was “moderately limited” with regard to the following: maintaining
attention and concentration for extended periods; performing activities within a
schedule; maintaining regular attendance; being punctual; completing a normal
workday and workweek without interruptions from psychologically-based symptoms;
interacting appropriately with the public; accepting instructions and criticism from
supervisors; and responding appropriately to changes in the work setting. (70-71).
On February 6, 2014, a hearing was held before an Administrative Law Judge
(“ALJ”). (25-62). When asked why she was unable to work, Plaintiff indicated that she
“h[as] a lot of trouble leaving her house,” and has “so much pain” that she needs to “just
sit down and rest.” (34). Regarding her claimed inability to leave the house, Plaintiff
stated that it is because she has “really bad anxiety,” “get[s] real paranoid,” and “get[s]
really irritated sometimes at people.” (44). As for her claimed inability to get along with
people, Plaintiff testified, “[S]ometimes certain conversations will set me off for no
reason.” (45). Plaintiff also testified that she experienced “panic attacks,” consisting of
her getting “sweaty” and “nervous,” and crying. (45). Plaintiff stated that she suffers
such attacks “25, maybe 30 times” per month. (46). Plaintiff indicated that her mental
health medications were somewhat helpful. (47, 48). Plaintiff testified that she received
therapy for her mental impairments, but could not remember the therapist’s name, and
had “problems keeping schedules and stuff.” (47).
Regarding pain, Plaintiff indicated that she was able to perform household
chores, but that it took her a long time because she needed to stop and take breaks,
due to pain. (37). Plaintiff indicated that she was able to walk less than half a block at
one time, due to pain. (40-41). Plaintiff indicated that she used a cane to ambulate at
times, though it was not prescribed by a doctor. (41).1
When Plaintiff applied for benefits she indicated that she did not use a cane or other assistive
At the hearing Plaintiff asserted that she really couldn’t perform her daily
activities without assistance from others. For example, Plaintiff testified that she took
the children to their appointments, such as to “doctors” and “Career Center,” but that
“most of the time” she had someone else go with her. (55-56). Similarly, Plaintiff stated
that although she drove and had a driver’s license, she usually needed another adult to
accompany her when she left home. (36). Plaintiff further stated that she had a friend
or relative accompany her when she went grocery shopping, in case she decided to go
and sit in the car, due to back pain, and that she sometimes needed the other adult to
finish the shopping for her. (37). Plaintiff also testified that she occasionally needed
family members to help her maintain her home.
However, when Plaintiff applied for benefits, she indicated that she took care of
the home and children by herself, doing “pretty much everything” for the children,
without any assistance. (213). At that time, Plaintiff also indicated that she performed all
“house and yard work” by herself. (215). Further, when asked, on the application form,
“When you go out, can you go alone?,” Plaintiff answered, “Yes.” (215). On a different
form, Plaintiff stated that she is “able to travel by [her]self.” (221).
On May 6, 2014, the ALJ issued his decision, denying Plaintiff’s application for
benefits. (9-20). Applying the familiar five-step sequential analysis used to evaluate
disability claims, the ALJ found, at step one, that Plaintiff had not engaged in
substantial gainful activity since August 21, 2012. (11). At step two, the ALJ found that
Plaintiff has the following severe impairments: “lumbar spine degenerative disc disease,
a history of fractured right elbow and right femur, a mood disorder, and bipolar
disorder.” (11). The ALJ also found that Plaintiff has the following non-severe
impairments: COPD, hypothyroidism and carpal tunnel syndrome. (12). At step three of
the analysis, the ALJ found that none of Plaintiff’s impairments met or medicallyequaled the severity of a listed impairment. (12-13).
Prior to reaching step four of the analysis, the ALJ found that Plaintiff has the
following residual functional capacity:
[C]laimant has the residual functional capacity to perform light work . . .
except she should avoid more than occasional overhead lifting with either
upper extremity. She retains the ability to understand and follow simple
instructions and directions, perform simple tasks with supervision and
independently, maintain attention/concentration for simple tasks, regularly
attend to a routine and maintain a schedule, and relate to and interact
with others to the extent necessary to carry out simple tasks, but should
avoid work requiring more complex interaction or joint efforts with other
coworkers to achieve work goals and should have no more than
occasional brief interaction with the public. She can handle reasonable
levels of simple work-related stress in that she can make decisions
directly related to the performance of simple work and handle usual work
place changes and interactions associated with simple work.
(14). The ALJ indicated that in making that assessment, he had considered the
medical evidence and opinion evidence in accordance with the Commissioner’s
regulations. (14). In discussing the medical opinion evidence of physical impairments,
the ALJ gave limited weight to Eurenius’s opinion, in part because it was vague and
could be interpreted multiple ways. (15). The ALJ gave significant weight to Ahmed’s
opinion because of his “treating relationship with the claimant,” but not controlling
weight because it was “not entirely supported” by the record evidence. (16). Regarding
Plaintiff’s mental impairments, the ALJ gave only limited weight to Lin’s opinion, noting,
in part, that it “was inconsistent with the claimant’s activities.” (17). On that point, the
ALJ discussed why Plaintiff’s activities of daily living were not consistent with a finding
of disability, including that she was “able to live alone with and take care of her two
young disabled children.” (16). The ALJ similarly gave limited weight to Peterson’s
opinion, because she was not an acceptable medical source, because she had not
treated Plaintiff very long, and because her opinion was inconsistent with Plaintiff’s
“activities and demonstrated abilities.” (18). The ALJ gave significant weight to
Harding’s opinion, both because it was supported by the record evidence and because
it was based upon a “review of the claimant’s records,” unlike Lin’s opinion. (17). The
ALJ further noted that when Plaintiff actually complied with her doctors’ instructions and
took her medications, she improved. (17).
At step four of the sequential analysis, the ALJ found that Plaintiff was unable to
perform her past relevant work because those jobs “require[d] socialization.” (18).
However, at the fifth and final step, the ALJ found, using the grids as a framework, that
Plaintiff can perform other work that exists in significant numbers in the national
economy. (19). In that regard, the ALJ noted that there was no need for testimony from
a vocational expert (“VE”), because Plaintiff was essentially able to perform a full range
of unskilled light work, and her nonexertional impairments (limiting her interaction with
others) did not significantly erode the occupational base for unskilled jobs. (19).
Plaintiff appealed (5), but the Appeals Council declined to review the ALJ’s
On July 10, 2015, Plaintiff commenced this action. On February 22, 2016,
Plaintiff filed the subject motion [#10] for judgment on the pleadings, and on May 23,
2016, Defendant filed the subject cross-motion [#15] for the same relief.
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). Substantial evidence is defined as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. If the Commissioner applies the correct standards and the
decision is supported by substantial evidence, “the Commissioner's decision must be
upheld, even where substantial evidence may support the plaintiff's position and despite
that the Court's independent analysis of the evidence may differ from the Secretary's.”
Alves v. Colvin, No. 13-CV-3898 RPP, 2014 WL 4827886, at *5 (S.D.N.Y. Sept. 29,
2014) (citation omitted).
The ALJ’s RFC Determination
Plaintiff first maintains that the ALJ erred by giving significant weight to Harding’s
opinion, while giving only limited weight to the opinions of Lin and Peterson. Plaintiff
contends that, “[i]n doing so, the ALJ failed to comply with regulations regarding
weighing opinion evidence, resulting in an unsupported RFC which is contradicted by
the record.”2 On this point, Plaintiff argues that ALJs should not rely on opinion
evidence from “a non-examining physician who has never seen the Plaintiff,”
particularly when making “mental health disability determinations.”3 Plaintiff suggests
that the ALJ violated 20 C.F.R. § 404.1527(c)(1) by doing so, though she concedes that
the regulation provides only that the opinions of examining physicians should
“generally” be given more weight. Plaintiff further contends that the ALJ “cited no
specific reason” why Harding’s opinion was entitled to more weight than the opinions of
“examining physicians.”4 Plaintiff also contends that the opinions of Lin and Peterson
are more consistent with each other and with the record than was Harding’s opinion.
Defendant responds that the opinions of non-examining sources can, at times,
override the opinions of treating sources, provided that they are supported by evidence.
Defendant further contends that Harding’s opinion is well-supported by the totality of the
evidence. Additionally, Defendant notes that the ALJ accepted much of Lin and
Petersons’s reports, and that insofar as he rejected aspects of those reports, he gave
good reasons for doing so.
The Court determines that Plaintiff’s arguments lack merit. To the extent that
Plaintiff contends the ALJ erred merely because he gave more weight to the opinion of
a non-examining source than he gave to the opinion of an examining source, the Court
disagrees. See, SSR 96-6p, 1996 WL 374180 at *3 (SSA Jul. 2. 1996) (“In appropriate
circumstances, opinions from State agency medical and psychological consultants and
Pl. Memo of Law [#11] at p. 16.
Pl. Memo of Law [#11] at p. 17.
Pl. Memo of Law [#11] at p. 18.
other program physicians and psychologists may be entitled to greater weight than the
opinions of treating or examining sources.”); see also, Camille v. Colvin, 652 F.App’x
25, 26-29 (2d Cir. Jun. 15, 2016) (ALJ did not err by assigning more weight to opinion of
non-examining State agency consulting psychologist than to opinion of treating
Plaintiff next contends that the ALJ erred by offering “no specific reason” why he
gave less weight to the opinions of Lin and Peterson than he gave to Harding’s opinion.
The Court again disagrees. As mentioned earlier, the ALJ indicated that one reason he
gave more weight to Harding’s opinion was because Harding had reviewed all of
Plaintiff’s medical records that were available at the time, while Lin and Peterson
evidently had not. (17, 121). More importantly, the ALJ indicated that he found
Harding’s opinion to be more consistent with the overall record and with Plaintiff’s
activities. For example, the ALJ stated that Peterson’s opinion was inconsistent with
Plaintiff’s demonstrated ability to provide care to “two young disabled children.” (18).
Indeed, the fact that Plaintiff is apparently able to provide adequate care for her children
under those circumstances seems inconsistent with Lin’s opinion that Plaintiff cannot
maintain concentration or keep a schedule, and with Peterson’s opinion that Plaintiff
would have a marked inability to maintain attention. In sum, the Court finds that the
ALJ gave specific reasons for the weight that he assigned the subject opinions, and that
those reasons are supported by substantial evidence.
Plaintiff nevertheless insists that Dr. Lin’s report is both supported by her clinical
findings and consistent with the record. The ALJ found otherwise, and such finding is
supported by substantial evidence in the record. For example, Lin’s report indicates
(based upon what Plaintiff told Lin) that Plaintiff cannot leave the house alone and that
she experiences visual and auditory hallucinations, but those statements are not
consistent with the record as a whole. Similarly, Lin’s opinion that Plaintiff cannot
maintain a schedule seems at odds with the fact that she maintains an entire household
by herself, including caring for two school-age disabled children. On that point, the
Court notes that Lin’s report contains no mention of the fact that Plaintiff’s children have
mental and emotional impairments, or that she is responsible for administering their
medications. (36, 55). Further, with regard to clinical findings, it is difficult to see where,
for example, Lin made clinical findings that support her opinion that Plaintiff is
completely unable to maintain a regular schedule, completely unable to relate
adequately with others and completely unable to deal with stress.
Further, Lin’s opinion that Plaintiff is completely unable to relate adequately with
others is contradicted by Peterson’s report, which indicates that Plaintiff is “not
significantly impaired” in dealing with other people. (455-456). In addition to being
completely opposite from each other in this regard, neither Lin’s nor Peterson’s
opinions on this particular point seem well supported by the record. On the other hand,
Harding’s opinion that Plaintiff is “moderately” limited in dealing with the public and with
supervisors seems better supported by the record.
The ALJ’s Credibility Determination
Plaintiff next contends that the ALJ’s credibility determination was erroneous and
unsupported by substantial evidence. In particular, Plaintiff maintains that the ALJ did
not specifically consider the factors set forth in 20 C.F.R. § 416.929(c). Further, Plaintiff
contends that the ALJ erred by viewing her non-compliance with treatment as detracting
from her credibility. In this regard, Plaintiff states: “[T]he ALJ failed to view Plaintiff’s
noncompliance in context, as it is actually a symptom of her depression and anxiety,
and highlights the severity of her symptoms.”5
Defendant responds that Plaintiff’s non-compliance with treatment was just one
of many factors that the ALJ considered when evaluating her credibility. Further,
Defendant maintains that the ALJ properly considered the circumstances of Plaintiff’s
non-compliance, contrary to what Plaintiff maintains. Defendant also states that while
Plaintiff now attributes her non-compliance to her depression and anxiety, the record
indicates that she previously gave other reasons, including her belief that the
medications did not work and her desire not to gain weight.
The Court notes that, although Plaintiff claims the ALJ “erred in considering the
required factors” for assessing credibility, the ALJ specifically indicated that he
evaluated Plaintiff’s credibility in accordance with 20 C.F.R. § § 404.1529 and 416.929.
(14-15). When evaluating a claimant’s credibility, the ALJ is required to consider the
factors set forth in those regulations, but 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
Pl. Memo of Law [#11] at p. 21.
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. Accordingly, to the extent that
Plaintiff is arguing the ALJ erred by not expressly discussing the required factors, the
argument lacks merit.
The primary thrust of Plaintiff’s credibility argument, however, is that the ALJ did
not properly consider whether her mental impairments were to blame for her admitted
non-compliance with treatment. On this point, the Court notes, preliminarily, that it is
clear from the record that Plaintiff was in fact largely non-compliant with her doctor’s
treatment recommendations. For example, Plaintiff routinely stopped taking
medications unilaterally, or took doses different from those that were prescribed, and
only attended three physical therapy sessions, contrary to her doctors’ instructions.
Moreover, as the ALJ noted, Plaintiff’s condition improved when she took her
medications. (16, 17). This caused the ALJ to observe that, “throughout the record, the
claimant was noncompliant with medications and attendance, which brings into
question the severity of [her] symptoms.” (18).
An ALJ should not use a claimant’s non-compliance to draw a negative credibility
inference without first attempting to discern the reason for the non-compliance. See,
e.g., Mitchell v. Colvin, 584 Fed.Appx. 309, 313–14 (9th Cir. 2014) (“[D]isability
adjudicators are ‘not [to] 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...failure to seek medical treatment’ ” SSR 96–7p at *7.
Agency rules instead advise that ‘to determine whether there are good reasons the
individual does not . . . pursue treatment in a consistent manner,’ disability adjudicators
‘may need to recontact the individual or question the individual at the administrative
Here, for the most part, the ALJ observed the many instances in which Plaintiff
was non-compliant, but did not discuss the possible reasons therefore. (17).
Presumably, that is because there does not appear to be any good reasons why
Plaintiff was non-compliant. Rather, Plaintiff admitted that she did not take the
medications because she did not think that they were effective. The ALJ did, however,
note one specific instance in which Plaintiff cancelled a mental health therapy session,
purportedly because she had a “busy schedule and family obligations.” (17, 356). On
the other hand, Plaintiff now attributes her non-compliance to her depression and
anxiety, but none of her treatment providers have made such a connection. On these
facts, the Court finds that the ALJ did not err by citing Plaintiff’s non-compliance as a
factor that detracted from her credibility.
The ALJ’s Decision Not to Obtain Testimony from a Vocational Expert
Plaintiff next contends that the ALJ erred, at step five of the sequential analysis,
by failing to obtain testimony from a VE. On this point, Plaintiff states: “Plaintiff suffers
from significant nonexertional impairments, thereby necessitating the introduction of
vocational expert testimony. If a plaintiff’s nonexertional impairments significantly limit
the range of work permitted by his exertional limitations, the ALJ is required to consult
with a vocational expert.” Pl. Memo of Law [#11] at p. 22 (citing Bapp v. Bowen, 802
F.2d 601, 604 (2d Cir. 1986) and “SSRs 83-12, 85-15, 96p, 00-4p”). Plaintiff further
states that if she can only have limited contact with co-workers and the public, as the
ALJ found, then she cannot perform the basic mental demands of unskilled work, citing
Defendant responds that the ALJ properly used the grids as a framework, rather
than obtaining VE testimony, because Plaintiff’s work capacity is not significantly
diminished by her nonexertional limitations.
SSR 85-15, which Plaintiff cites, observes that nonexertional impairments “may
or may not significantly narrow the range of work a person can do.” SSR 85-15, 1985
WL 56857 at *2 (1985). SSR 85-15 further states that the extent to which a
nonexertional impairment reduces a person’s occupational base “may range from little
to very much, depending on the nature and extent of the impairment(s),” and that “[i]n
many cases, a decisionmaker will need to consult a vocational reference.” Id. at *3
(emphasis added). SSR 85-15 indicates that once it has been determined how the
nonexertional impairment affects the claimant’s occupational base, the ALJ must
consider “whether the person can be expected to make a vocational adjustment
considering the interaction of his or her remaining occupational base with his or her
age, education, and work experience.” Id. at *3. The SSR states that “[i]f, despite the
nonexertional impairment(s), [the] individual has a large potential occupational base, he
or she would ordinarily not be found disabled in the absence of extreme adversities in
age, education, and work experience.” Id.7 The SSR adds, though, that in making this
Pl. Memo of Law [#11] at p. 22.
Plaintiff in this action does not claim to have extreme adversities in age, education or work
determination, “[t]he assistance of a vocational resource may be helpful.” Id.
SSR 85-15 goes on to describe the basic mental demands of unskilled work as
The basic mental demands of competitive, remunerative, unskilled work
include the abilities (on a sustained basis) to understand, carry out, and
remember simple instructions; to respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in a
routine work setting. A substantial loss of ability to meet any of these
basic work-related activities would severely limit the potential occupational
base. This, in turn, would justify a finding of disability because even
favorable age, education, or work experience will not offset such a
severely limited occupational base.
Id. at *4.
In the instant case, Plaintiff argues that the ALJ’s RFC finding confirms that she
cannot perform these basic mental demands of unskilled work, because it directs that
she “should avoid work requiring more complex interaction or joint efforts with other
coworkers to achieve work goals and should have no more than occasional brief
interactions with the public.”8 However, the basic mental demands of unskilled work,
as set forth earlier, do not require interaction with the public. Accordingly, the issue is
whether the limitation on Plaintiff’s ability to interact with co-workers significantly limits
the occupational base of light unskilled work. In particular, the Court understands the
RFC to mean that Plaintiff would have difficulty working as a team with co-workers to
achieve work objectives. Or, more simply, it seems to mean that Plaintiff should work
alone to complete her work tasks, even though she is capable of normal incidental
Pl. Memo of Law [#11] at p. 22.
interaction with co-workers while doing so. Accordingly, the issue is whether a
requirement that a claimant work alone significantly limits the occupational base of light
unskilled work, to the point that an ALJ must consult a VE to determine whether she
can perform other work.
The Court finds that it does not. See, Garcia v. Comm'r of Soc. Sec., 587 F.
App'x 367, 370 (9th Cir. 2014) (Finding that ALJ properly concluded that claimant’s
limited capacity to work with others did not significantly erode the base of unskilled light
work, and that the ALJ therefore “properly declined to call a vocational expert.”); see
also, Oliver v. Berryhill, No. 2:16-cv-01846 CKD, 2017 WL 4038388 at *6-7 (E.D. Ca.
Sep. 13, 2017) (Limitation that claimant have only occasional contact with co-workers
did not “qualify as a substantial loss of ability to meet the basic requirement of being
able to respond appropriately to supervision and coworkers,” and therefore did not
require the ALJ to consult a VE). Consequently, the Court determines that the ALJ did
not err by deciding not to consult a VE.
Plaintiff’s application [#10] for judgment on the pleadings is denied, Defendant’s
cross-motion [#15] is granted, and this action is dismissed.
Dated: Rochester, New York
October 3, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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