Hemmer v. Colvin
ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/22/16. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JUSTIN T. HEMMER,
No. 6:15-CV-06546 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Justin T. Hemmer (“plaintiff”) brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
The record reveals that in December 2012, plaintiff (d/o/b
May 24, 1980) applied for SSI, alleging disability as of October 1,
2007. After his application was denied, plaintiff requested a
hearing, which was held via videoconference before administrative
law judge Rosanne M. Dummer (“the ALJ”) on May 12, 2014. The ALJ
issued an unfavorable decision on May 23, 2014. The Appeals Council
denied review of that decision and this timely action followed.
III. Summary of the Evidence
The medical records in the administrative transcript, which
are relatively sparse, reveal that plaintiff treated for both
hospitalized at Unity Health, Genesee Street campus in Rochester,
New York, for treatment of depression and panic attacks. Plaintiff
depression. Plaintiff reported that he took Lyrica to “get high,”
and that the overdose was not a suicide attempt. Plaintiff was
discharged with a referral for chemical dependency treatment, and
diagnosed with anxiety disorder, not otherwise specified (“NOS”);
depressive disorder, NOS; and secondary polysubstance dependency.
Plaintiff’s primary care physician for the relevant time
Dr. Taggart, which span only three examinations from March 2011
through April 2014, indicate that plaintiff was referred to mental
health counseling in March 2011. By May 2011, plaintiff reported to
Dr. Taggart that his anxiety with panic attacks, depression, and
social anxiety disorder were stable with medication. He regularly
reported lower back pain secondary to degenerative disc disease,
for which he was treated with medication.
“moderate back pain secondary to fibromyalgia,” for which he took
Lyrica daily. Plaintiff described his pain as “achy” and physical
examination revealed tenderness to palpation of his bilateral
shoulders, mild muscle spasm, and perispinal muscle tenderness. In
April 2014, however, Dr. Taggart noted that he “[did] not believe
that [plaintiff] [met] the criteria for fibromyalgia,” but “he
[had] several medical and psychological illnesses that limit his
ability to work,” including “chronic generalized pain that requires
him to frequently change positions.” T. 359. Dr. Taggart also noted
that plaintiff’s “social anxiety [made] it difficult for him to
work in an office setting without panic attacks.” Id.
Pinewild, which span January 2013 through March 2014, indicate that
plaintiff was treated by psychiatrists Drs. Anthony DiGiovanni and
Muhammad Dawood, as well as licensed mental health counselor
(“LMHC”) Lauren Whaley Aman. Plaintiff’s diagnoses were depressive
disorder, NOS; cannabis dependence; and anxiety disorder, NOS.
Dr. Giovanni noted that plaintiff suffered from panic attacks
secondary to social anxiety. Mental status examinations, when
conducted throughout the time period of plaintiff’s treatment, were
unremarkable except for occasional notations of superficial or
impaired insight, although LMHC Aman did note that plaintiff
consistently presented with depressed mood or constricted affect.
Dr. DiGiovanni repeatedly noted that plaintiff had difficulty with
substance abuse, and supported close medication monitoring and a
structured medication plan as a result. Plaintiff was prescribed as
many as ten medications at one time for pain management and
In February 2014, LMHC Aman noted that plaintiff’s therapy
sessions were “focus[ed] on anxiety reduction skills and increasing
self-motivation related to looking for employment.” T. 297. She
further noted that “[e]mployment was a condition of [plaintiff’s]
probation and upon consultation with Dr. DiGiovanni [he] believe[d]
that [plaintiff was] capable of working.” Id. LMHC Aman also
repeatedly noted that plaintiff’s attendance suffered either due to
reported transportation issues or stressors at home.
Dr. Taggart completed a fibromyalgia medical source opinion
questionnaire which he signed on July 18, 2014. It appears that
Dr. Taggart was presented with this questionnaire in April 2014,
when he noted that he “completed paperwork . . . from [plaintiff’s]
disability lawyer[,] . . . [in which the] [m]ajority of information
was subjectively obtained by patient self report (ex: how many
hours in an eight-hour workday day could you [perform a specified
Dr. Taggart stated in treatment notes that he did not believe
plaintiff’s condition met the criteria for fibromyalgia. On the
July 2014 form, Dr. Taggart stated that plaintiff was not diagnosed
insomnia, esophageal reflux, and depression. T. 321. He noted that
plaintiff’s prognosis was “stable” and “chronic.” Id. Dr. Taggart
“incapable of even low stress jobs” “due to social anxiety.”
T. 322. Dr. Taggart also opined various physical limitations,
including that plaintiff could sit and stand for 15 minutes at a
time during an eight-hour workday and could sit, stand, and/or walk
for a total of about four hours in an eight-hour workday.
On January 30, 2013, Dr. Karl Eurenius completed a consulting
internal medicine examination at the request of the state agency.
“denie[d] any trigger points, and [Dr. Eurenius] [was] unable to
provoke trigger point symptoms.” T. 222. Dr. Eurenius opined that
plaintiff was “not significantly limited in routine activities due
to his medical conditions.” Id.
questionnaire on April 9, 2014. She indicated that she had been
treating plaintiff bi-weekly to monthly since February 2012. LMHC
interruptions from psychologically-based symptoms and responding
appropriately to changes in a routine work setting. She opined that
plaintiff was “limited but satisfactory” in maintaining regular
accepting instructions and responding appropriately to criticism
from supervisors; getting along with coworkers or peers without
unduly distracting them or exhibiting behavioral extremes; and
responding appropriately to changes in a routine work setting.
Psychologist Dr. Christine Jean-Jacque completed a consulting
psychiatric evaluation at the request of the state agency on
unremarkable. Dr. Jean-Jacque opined that plaintiff “appear[ed]
able to follow and understand simple directions and instructions,
perform complex tasks independently, make appropriate decisions,
and appropriately deal with stress,” but he did “not appear to
adequately relate to others.” T. 227.
The ALJ’s Decision
The ALJ followed the well-established five-step sequential
disability claims. See 20 C.F.R. § 404.1520. At step one, the ALJ
determined that plaintiff had not engaged in substantial gainful
activity since December 21, 2012, the application date. At step
two, the ALJ found that plaintiff suffered from the following
severe impairments: chronic generalized pain disorder; anxiety
disorder, NOS; depressive disorder, NOS; and polysubstance abuse.
At step three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled a listed impairment. In evaluating plaintiff’s mental
activities of daily living; “at most moderate” difficulties in
social functioning and concentration, persistence, or pace; and no
episodes of decompensation of extended duration.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
lift/carry 50 pounds occasionally and 25 pounds
frequently; sit about six of eight hours; and stand/walk
about six of eight hours. He can occasionally climb
ramp/stairs, balance, stoop, kneel, crouch, and crawl. He
should not climb ladders/ropes/scaffolds. He should not
perform commercial driving. He should avoid concentrated
exposure to dangerous moving machinery and cold.
Secondary to mental limitations, the claimant can
understand, remember, and carry out unskilled work. He is
able to sustain attention for simple tasks, for extended
periods of two hour segments in an eight hour day. He can
tolerate brief and superficial contact with others and
occasional brief and superficial contact with the public.
He can adapt to changes as needed for unskilled, simple
T. 14 (citation omitted).
At step four, the ALJ found that plaintiff had no past
plaintiff’s age, work experience, and RFC, there were significant
numbers of jobs in the national economy which he could perform.
Accordingly, the ALJ found that plaintiff was not disabled.
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Physical RFC Finding
Plaintiff contends that the ALJ failed to properly apply the
treating physician rule to Dr. Taggart’s December 2013 opinion and
failed to give good reasons for assigning the opinion less than
controlling weight. Consequently, plaintiff contends that the ALJ
erroneously relied on his own lay interpretation of the medical
record and the RFC was unsupported by substantial evidence.
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
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
controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v.
§ 404.1527(d)(4)). The ALJ is also required to give “good reasons”
Coluciello-Pitkouvich v. Astrue, 2014 WL 4954664, *6 (E.D.N.Y.
assigned and provide ‘good reasons’ for why the particular weight
was assigned to each treating source's opinion.”) (citing 20 C.F.R.
In this case, the ALJ assigned Dr. Taggart’s opinion “limited
weight,” finding that it was not well-supported by the objective
evidence of record, including Dr. Taggart’s notations of “generally
unremarkable” physical examinations. T. 21. The ALJ also noted that
plaintiff saw Dr. Taggart “on a sporadic, infrequent basis” and
considered Dr. Taggart’s statement that the majority of information
in his opinion was “subjectively obtained by patient self report
(ex: how many hours in an eight-hour workday day could you [perform
a specified function]”). Id.
In assessing the weight to be given to a treating physician’s
opinion, the ALJ must consider the factors set forth in 20 C.F.R.
416.927, which include (i) the frequency of examination and the
length, nature and extent of the treatment relationship; (ii) the
evidence in support of the treating physician's opinion; (iii) the
consistency of the opinion with the record as a whole; (iv) whether
the opinion is from a specialist. The ALJ’s decision in this case
was supported by substantial evidence in the record, which reveals
Significantly, Dr. Taggart opined that plaintiff did not suffer
from fibromyalgia and his findings on physical examination were
largely unremarkable and do not support his ultimate opinion of
plaintiff’s functional limitations.
Additionally, Dr. Taggart treated plaintiff on only three
occasions between August 2012 and April 2014. Plaintiff does not
dispute that these are the only examinations which occurred nor
argue that any records from Dr. Taggart are missing. The ALJ
relationship and the frequency of examination” in his rejection of
Dr. Taggart’s opinion. 20 C.F.R. 416.927(c)(2)(I). Moreover, the
remainder of plaintiff’s medical record does not support the
physical limitations opined by Dr. Taggart. Therefore, the Court
finds that the ALJ appropriately applied the treating physician
rule in declining to give Dr. Taggart’s opinion controlling weight.
See, e.g., Gray v. Colvin, 2015 WL 5005755, *5 (W.D.N.Y. Aug. 20,
Plaintiff further argues that the ALJ erred in giving greater
weight to the opinion of consulting examiner Dr. Eurenius, and that
substantial evidence. However, “it is the province of the ALJ to
make the RFC determination,” and the Court finds that substantial
evidence supports the RFC determination in this case. Roehm v.
Comm’r of Soc. Sec., 2011 WL 6318364, *6 (N.D.N.Y. Nov. 28, 2011),
Dec. 16, 2011) (citing 20 C.F.R. § 416.946(c) (at the hearing
level, it is the ALJ's responsibility to assess RFC); Aldrich v.
determination of a claimant’s RFC is based on all relevant medical
evidence and is reserved solely for the ALJ)).
Mental RFC Finding
Plaintiff contends that the RFC finding failed to adequately
account for limitations stemming from his mental impairments.
inconsistent with the opinions of both LMHC Aman and Dr. JeanJacque. The Court disagrees, and finds that the RFC determination
was consistent with both opinions. Dr. Jean-Jacque opined that
plaintiff could follow and understand simple instructions and
perform simple and complex tasks independently. The only limitation
opined by Dr. Jean-Jacque was that plaintiff “[did] not appear to
adequately relate to others.” T. 227. LMHC Aman, who treated
plaintiff directly, opined that plaintiff was seriously limited –
but not precluded – from performing in only two out of a possible
25 areas of mental work-related areas of functioning.
Based on the Court’s review of this administrative record, the
superficial contact with others sufficiently accounted for the
limitations prescribed by both LMHC Aman and Dr. Jean-Jacque. See,
e.g., Steffens v. Colvin, 2015 WL 9217058, *4 (W.D.N.Y. Dec. 16,
2015) (“In this case, the RFC finding requiring low contact with
coworkers and the public adequately accounted for plaintiff's
stress.”) (citing Amrock v. Colvin, 2014 WL 1293452, *7 (N.D.N.Y.
Mar. 31, 2014) (RFC finding was proper where plaintiff’s stress
associated with bipolar disorder was accounted for by restriction
to “simple, routine, low stress tasks with brief, superficial
contact with coworkers and the public”); Kotasek v. Comm’r of Soc.
Sec., 2009 WL 1584658, *13 (June 3, 2009) (ALJ’s RFC finding, which
plaintiff had stress stemming from social phobias)).
Severity of Plaintiff’s Alleged Fibromyalgia
Plaintiff argues that the ALJ “fail[ed] to acknowledge that
[p]laintiff has been diagnosed with fibromyalgia,” in an apparent
attempt to challenge the ALJ’s step two finding. Doc. 11-1 at 17.
However, Dr. Taggart’s treatment notes and opinion make clear that
he did not diagnose plaintiff with fibromyalgia, and Dr. Taggart
explicitly stated that he “[did] not believe that [plaintiff] [met]
diagnosed plaintiff with “chronic generalized pain,” which the ALJ
consulting examination noted that plaintiff denied trigger point
tenderness and Dr. Eurenius was unable to provoke trigger point
Moreover, there is no indication from the ALJ’s decision that
the ALJ failed to consider the impact of plaintiff’s generalized
pain throughout the balance of the sequential evaluation process.
See Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 311-12 (W.D.N.Y.
2013) (““As a general matter, an error in an ALJ's severity
assessment with regard to a given impairment is harmless . . . when
it is clear that the ALJ considered the
and their effect on his or her ability to work during the balance
of the sequential evaluation process.”) (internal quotation marks
and citations omitted).
Development of the Record
Plaintiff contends that the ALJ failed to develop the record
plaintiff, the ALJ failed to obtain treatment notes indicated by
her April 9, 2014 statement that she had treated plaintiff biweekly or monthly since February 2013. LMHC Aman’s treatment notes
are present in the record and span the time period from February
2013 through February 2014. It does appear that she began treating
plaintiff in February 2012, and therefore approximately a year of
her records may be missing. However, the Court notes LMHC Aman’s
repeated statements that plaintiff had often failed to appear for
appointments; thus, it is unclear to what extent treatment notes
from LMHC Aman existed prior to February 2013.
The Court finds that there were “no obvious gaps in the
administrative record” and the ALJ “possesse[d] a complete medical
history, and therefore was “under no obligation to seek additional
information in advance of rejecting [plaintiff’s] claim.” Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (emphasis added). This
is especially true because the administrative record makes clear
providing those to the ALJ. “Even though the ALJ has an affirmative
obligation to develop the record, it is the plaintiff’s burden to
furnish such medical and other evidence of disability as the
Secretary may require.” Long v. Bowen, 1989 WL 83379, *4 (E.D.N.Y.
July 17, 1989) (internal citations omitted). Accordingly, the Court
finds that the ALJ properly discharged his obligation to develop
Finally, plaintiff contends that the ALJ erroneously assessed
his credibility. In assessing credibility, an ALJ is required to
consider the factors listed in 20 C.F.R. § 416.929(c) as well as
other relevant authorities, including SSR 96-7p. Pursuant to SSR
96-7p,1 the ALJ “must consider the entire case record, including
the objective medical evidence, the individual's own statements
treating or examining physicians or psychologists and other persons
about the symptoms and how they affect the individual, and any
other relevant evidence in the case record.”
First, plaintiff argues, the ALJ’s credibility assessment was
based on an incomplete record. The Court has found, however, that
the record in this case gave a complete history of plaintiff’s
improperly “discounted” plaintiff’s panic attacks because “there
were no documented panic episodes” and his “panic attacks were
‘never witnessed’ by [LMHC Aman].” Doc. 11-1 at 28 (citing T. 19).
However, LMHC Aman herself explicitly wrote, in a handwritten note,
that although she checked a box indicating that plaintiff suffered
from recurrent panic attacks, those attacks were “never witnessed
by” her. T. 233. Under the circumstances, and considering the
substantial evidence of record which as the ALJ noted contained
largely unremarkable mental status examinations, the Court finds
The Court notes that SSR 96-7p was recently superceded by
SSR 16-3p, which became effective March 28, 2016. SSR 96-7p,
however, remains the relevant guidance for purposes of plaintiff’s
that the ALJ properly considered LMHC’s notation in considering
Third, plaintiff contends that the ALJ improperly considered
her own opinion that the “claimant’s presence and testimony at the
hearing did not indicate any obvious problems.” Doc. 11-1 at 29
administrative hearing conducted by the ALJ, the ALJ may consider
‘her own recorded observations of the individual as part of the
statements.’” Conant v. Comm’r of Soc. Sec., No. 3:15-CV-500 (GLS),
2016 WL 6072386, at *5 (N.D.N.Y. Oct. 17, 2016) (citing SSR 96-7p).
Fourth, plaintiff takes issue with the ALJ’s citation to
plaintiff’s criminal history in support of her credibility finding.
However, it was not improper for the ALJ to consider, as just one
of the many factors considered, that plaintiff had an undisputed
criminal history. See, e.g., Vine v. Comm’r of Soc. Sec., 2013 WL
3243562, *10 (N.D.N.Y. June 26, 2013) (finding “no error in the
ALJ’s decision to discount [p]laintiff’s credibility based on his
undisputed criminal record”).
considered plaintiff’s babysitting in determining credibility. It
is clear from the ALJ’s decision, however, that her discussion of
plaintiff’s childcare reflected proper consideration of plaintiff’s
activities of daily living, a factor which is delineated in the
regulations. See 20 C.F.R. 416.929(c)(i). For all of the abovestated reasons, the Court finds no error in the ALJ’s credibility
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 11) is denied and the Commissioner’s motion
(Doc. 13) is granted. The Clerk of the Court is directed to close
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
December 22, 2016
Rochester, New York.
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