Rusin v. Commissioner of SS
Filing
19
DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/5/2016. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID RUSIN,
No. 6:15-cv-06593(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
David Rusin (“Plaintiff”), represented by counsel, brings this
action pursuant to Title II 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
Disability Insurance Benefits (“DIB”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
PROCEDURAL STATUS
Plaintiff
protectively
filed
an
application
for
DIB
on
August 2, 2012, alleging disability beginning on September 15,
2010. (T.147-50, 1691).1 After the Commissioner initially denied
the application (T.106-09), Plaintiff requested a hearing, which
was held before administrative law judge Connor O’Brien (“the ALJ”)
on December 11, 2013. (T.36-93). Plaintiff appeared with his
attorney and testified, as did impartial vocational expert Peter A.
1
Citations to “T.” in parentheses refer to pages from the certified
transcript of the administrative record, filed electronically by the Commissioner
(Dkt #9).
Manzi (“the VE”). A request for vocational interrogatory was sent
to the VE on March 28, 2014, who replied on April 4, 2014. The VE’s
answers were proffered to Plaintiff on April 7, 2014; however,
Plaintiff did not reply to the proffer. On July 22, 2014, the ALJ
issued a decision finding Plaintiff is not disabled under the Act.
(T.19-35). The Appeals Council denied Plaintiff’s request for
review on August 28, 2015, making the ALJ’s decision the final
decision of the Commissioner. (T.1-5). This timely action followed.
Plaintiff moved for judgment on the pleadings (Dkt #10)
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and
the Commissioner cross-moved (Dkt #12) for the same relief. The
parties
have
comprehensively
summarized
the
administrative
transcript in their briefs (Dkt ##10-1, 12-1), and the Court adopts
and incorporates these factual summaries by reference. The Court
will discuss the record evidence in further detail below, as
necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation process
promulgated by the Commissioner for deciding disability claims. At
step
one,
the
ALJ
found
that
Plaintiff
had
not
engaged
in
substantial gainful activity (“SGA”) since September 15, 2010.
(T.21). The ALJ noted Plaintiff’s testimony that he provided
consultative
support
in
the
form
-2-
of
giving
an
opinion
on
investment; this occurred during three-hour conference call, and
Plaintiff did not receive any compensation for it. Additionally,
for the past few years, he has served on RIT’s President’s Circle,
a group that discusses long-term strategies and meets twice per
year. Plaintiff stated that he offers input for these meetings as
well. The ALJ found that these consulting activities do not qualify
as SGA because Plaintiff receives no payment for these essentially
volunteer positions.
At step two, the ALJ found that Plaintiff has the following
“severe impairments”: depressive disorder, anxiety disorder and
personality disorder. (T.21). Plaintiff confirmed at the hearing
that he confirmed at the hearing that he is not alleging any
physical impairments or limitations.
At the third step, the ALJ found that none of Plaintiff’s
impairments, considered singly or in combination, meet or equal the
criteria
of
an
impairment
in
the
Listing
of
Impairments
at
20 C.F.R. Part 404, Subpart P, Appendix 1. (T.22).
Before proceeding to the fourth step, the ALJ found that
Plaintiff has the residual functional capacity (“RFC”) to perform
a full range of work at all exertional levels but with the
following
nonexertional
limitations:
he
has
no
cognitive
limitations and can occasionally make judgments and decisions; he
cannot supervise others or be responsible for another’s work; he
can work toward daily, or monthly goals, but not at an automated,
machine-drive, assembly-line production pace; and he requires up to
-3-
three short, less-than-5-minute breaks in addition to regularly
scheduled breaks. (T.23).
At step four, the ALJ determined that Plaintiff cannot perform
his past relevant work as a chief executive officer of a privatelyheld corporation. (T.29). The VE classified this work, under the
Dictionary of Occupational Titles (“DOT”), as a “president,”
#189.117-026,
sedentary,
skilled,
with
a
specific
DOT
vocational
profile of 8.
At the fifth step, the ALJ found that, considering Plaintiff’s
age, education, work experience, and RFC, he has acquired work
skills, in his past relevant work, that are transferable to other
occupations with jobs that exist in significant numbers in the
national economy. (T.29-30). Accordingly, the ALJ entered a finding
of not disabled under the Act.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
supported
by
substantial
record
evidence
and
whether
the
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
-4-
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
I.
Failure to Give Controlling Weight to Treating Psychiatrist’s
Opinion
Plaintiff asserts that the ALJ erroneously assigned “minimal
weight” (also described by the ALJ as “little weight”) to the
opinion of Dr. Thomas Letourneau, Plaintiff’s treating psychiatrist
since 1998. (T.24, 28).
The Second Circuit has explained that “[a]lthough the treating
physician rule generally requires deference to the medical opinion
of a claimant’s treating physician, the opinion of the treating
physician is not afforded controlling weight where . . . the
treating physician issued opinions that are not consistent with
other substantial evidence in the record. . . .” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (internal and
other
citations
omitted).
When
an
ALJ
declines
to
accord
controlling weight to a treating physician’s opinion, the ALJ “must
consider various ‘factors’ to determine how much weight to give to
the opinion[,]” id. (quoting 20 C.F.R. § 404.1527(d)(2)), such as
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“(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;
and (v) other factors brought to the Social Security
Administration’s attention that tend to support or contradict the
opinion.’” Id. (quoting 20 C.F.R. § 404.1527(d)(2)).
A corollary to the treating physician rule is the so-called
“good reasons rule,” which is based on the regulations specifying
that “the Commissioner ‘will always give good reasons’” for the
weight given to a treating source opinion. Halloran, 362 F.3d at 32
(quoting
20
C.F.R.
§
404.1527(d)(2);
citing
20
C.F.R.
§ 416.927(d)(2); Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir.
1998)). “Those good reasons must be ‘supported by the evidence in
the case record, and must be sufficiently specific . . . .’”
Blakely v. Commissioner of Social Sec., 581 F.3d 399, 406 (6th Cir.
2009) (quoting Social Security Ruling (“SSR”) 96–2p, 1996 WL
374188, at *5 (S.S.A. July 2, 1996)). Because the “good reasons”
rule exists to “ensur[e] that each denied claimant receives fair
process,” Rogers v. Commissioner of Social Sec., 486 F.3d 234, 243
(6th Cir. 2007), an ALJ’s “‘failure to follow the procedural
requirement of identifying the reasons for discounting the opinions
and for explaining precisely how those reasons affected the weight’
given ‘denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.’”
-6-
Blakely, 581 F.3d at 407 (quoting Rogers, 486 F.3d at 243; emphasis
in Blakely).
Here, the regulatory factors regarding the length of the
treatment relationship and the nature of Dr. Letourneau’s practice
support a finding that he is a treating source: Dr. Letourneau is
a specialist in the field of psychiatry, and he treated Plaintiff
on a consistent basis (sometimes weekly) since at least 1998.
Indeed, the ALJ acknowledged that the “frequency, length, nature
and extent of treatment” by Dr. Letourneau qualified him as a
treating source, and the Commissioner here does not dispute that
Dr. Letourneau qualifies as a treating source.
Referring to Dr. Letourneau’s November 2010 report, the ALJ
found that notwithstanding Dr. Letourneau’s “treating relationship
with the claimant, this assessment cannot be given more than
minimal weight.” (T.24). The ALJ explained,
While the claimant reports that he devalued his work for
the last few years as C.E.O., he also testified to making
significant determinations regarding the sale and
distributions of his company, for the benefit of his
employees and against the more self-interested advice of
others. His actions demonstrate independence of thought
and the ability to negotiate the sale. His opinion on
matters of investment and economics continues to be
relied upon by others in the industry. Thus, while Dr.
Letourneau accepts the claimant’s reports of his
inability to function, the claimant’s actions and the
response of others in negotiations and in investment
circles belies the degree of infirmity feared by Dr.
Letourneau.
(T.24). The ALJ proceeded to discuss certain of Dr. Letourneau’s
subsequent
office
notes
that
documented
an
improvement
in
Plaintiff’s mood and outlook. For instance, although in October
-7-
2010,
Plaintiff
reported
that
he
had
been
making
funeral
arrangements as part of his suicide plans, by December 2010,
Dr. Letourneau reported an improvement in mood. According to the
ALJ, “[w]hile the claimant reports serious symptoms, and clearly
had been working his way through a painful divorce, the record
establishes
that
he
has
experienced
chronic
depression
since
childhood, and that he kept his negative thoughts at bay by
engaging in activities, albeit from a ‘bucket list’ perspective;
[that is,] describing activities that he needed to complete before
his life was over.” (T.24-25) (citation omitted).
The ALJ noted that Plaintiff continued to treat regularly with
Dr. Letourneau into 2012, and by March 2012, his depression was
reported to be in partial remission. (T.29) (citing T.283). The ALJ
stated that despite “the recognized improvement, Dr. Letourneau
made the following contradictory statements: ‘His depression is
definitely better. But the divorce is life threatening.’” (Id.)
(quoting T.289). However, in May 2013, Dr. Letourneau found “no
serious mental status abnormalities” on examination of Plaintiff
and noted that “for the first time in a long time, [he] was more
hopeful that [Plaintiff] would not commit suicide.” (T.29) (quoting
T.328). Plaintiff was diagnosed with major depressive disorder,
recurrent, in partial remission; and personality disorder. “In
August 2013, post-divorce proceedings,” Dr. Letourneau reported
that Plaintiff was
[m]ore animated, more hopeful. [Plaintiff]’s mood is
euthymic with no signs of depression or manic process.
-8-
His speech is normal in rate, volume, and articulation
and his language skills are intact. Assaultive or
homicidal ideas or intentions are convincingly denied.
Hallucinations and delusions are denied and there is no
apparent thought disorder. Associations are intact,
thinking is generally logical and thought content is
appropriate. Cognitive functioning, based on vocabulary
and fund of knowledge, is intact and age appropriate and
he is fully oriented. There are no signs of anxiety
apparent. He exhibits no signs of attentional or
hyperactive difficulties. Insight and social judgment
appear intact.
(T.30-31) (citing T.347).
Reviewing Plaintiff’s “most recent treatment records with
Dr. Letourneau, the ALJ found they “reveal[ed] that [Plaintiff]
denied suicidal ideas and that his depressive disorder remained in
partial remission.” (T.28) (citing T.395). The ALJ found these
observations “at odds” with Dr. Letourneau’s opinion on December 8,
2013, that Plaintiff “has a poor prognosis with multiple symptoms
of depression, including sleep disturbance, disturbance of mood or
affect, withdrawal and difficulty thinking or concentrating,” “is
unable to remember work-like procedures, maintain attention for
two-hour segments, complete a normal workday without interruptions
from psychologically based symptoms or deal with normal work
stress,” “cannot interact appropriately with the general
public and on average would miss work more than four days per
month.” (T.31) (citing T.398-402).
The ALJ further found Dr. Letoureau’s opinions as being “at
odds with the other medical evidence,” such as treatment notes from
Plaintiff’s primary care doctor, Dr. Christopher Momont, who also
had a treating relationship with Plaintiff. On May 5, 2011, when
-9-
discussing his on-going depression, Plaintiff told Dr. Momont that
he had “‘recently sold his business, and it has given him a more
positive outlook on things.’” (T.28)
(citing T.247). At a routine
health maintenance exam on May 12, 2012, Dr. Momont, while aware of
Plaintiff’s
chronic
depression,
“ha[d]
no
concern
over
[Plaintiff]’s weight or any weight loss” and noted that Plaintiff
“adamantly denie[d] any thoughts of wanting to harm himself in any
way.” (T.28) (citing T.241). Plaintiff told Dr. Momont that “his
only side effect from the depression is that he is slightly
forgetful, with some issues of insomnia,” and he “related that his
insomnia has improved slightly with transcranial therapy.” (T.28).
The ALJ found that Dr. Momont’s “observations are more in line with
the
[Plaintiff]’s
activities—such
as
continuing
to
provide
investment advice to business associates, assisting his mother with
household repairs and the care of his brother, driving himself to
appointments, and going to Boston to visit his daughter’s college.”
(T.28).
Likewise, on April 17, 2012, despite the “reports of impulsive
suicidal thoughts” in the record, Dr. Mahipal Chaudhri indicated
that
“‘[t]he
patient
denies
suicidal
ideations
or
homicidal
ideations, intent or plan. The patient is hopeful and futuristic.’”
(T.25) (citing (T.254).
In April 2012, Plaintiff also saw primary
care physician Dr. Momont, who noted that Plaintiff “appeared
clinically stable from a mental health perspective, and . . .
denied thoughts of harming himself[.]” (T.26) (citing T.243).
-10-
In summary, the ALJ determined that Dr. Letourneau’s opinions
deserved “little weight” because “his own treatment notes, outlined
above,
reveal[ed]
objective
findings,”
including
Plaintiff’s
“depression going into partial remission, the obvious improvements
evidenced,
and
[Plaintiff]’s
disparity
activities
between
that
[Plaintiff]’s
do
not
reports
support
his
versus
extreme
assessments.” (T.28).
Contrary
to
Plaintiff’s
suggestion,
the
Commissioner’s
regulations permit an ALJ to consider an opinion’s consistency with
other evidence in the record when determining how to weight the
opinion. See 20 C.F.R. § 404.1527(c)(4). That said, Plaintiff is
correct that “[c]ourts generally do not take an ALJ’s conclusion
that a treating physician’s own treatment notes contradict the
record
as
mentioning
a
of
whole
at
specific
face
value;
findings
rather,
that
they
would
require
support
such
the
a
conclusion.” Pidkaminy v. Astrue, 919 F. Supp.2d 237, 244 (N.D.N.Y.
2013) (citing Briest v. Comm’r of Soc. Sec., No. 5:07–CV–121, 2010
WL 5285307, at *5 (N.D.N.Y. Dec. 17, 2010) (holding that the ALJ
failed to follow the guidelines for evaluating the opinion of a
treating
physician
by
merely
stating
that
the
claimant’s
psychiatrists’ treatment notes were inconsistent with his overall
ability to engage in gainful activity and failing to consider other
factors found in 20 C.F.R. § 404.1527(d)(2)); other citation
omitted). Here, however,
as discussed above, the ALJ referenced
specific medical evidence and testimonial and explained how it was
-11-
inconsistent with Dr. Letourneau’s highly restrictive statements
about Plaintiff’s mental functioning. For instance, as the ALJ
noted,
Plaintiff
reported
assisting
a
friend
in
political
fundraising, participating in a 3-hour conference call advising
Harvard University’s endowment fund on investment strategies, and
applying for CEO positions. (T.278, 330, 336). See Wavercak v.
Astrue, 420 F. App’x 91, 94 (2d Cir. 2011) (unpublished opn.)
(finding that “the ALJ was not required to defer to [treating
source] Dr. Eppolito’s opinion” where “Dr. Eppolito’s assessments
were called into question by other medical evidence in the record,
including his own earlier reports which did not always conclude
that Wavercak was unable to engage in any sedentary work during the
relevant period . . . [and] conflicted with Wavercak’s description
of
his
daily
activities”)
(citing
20
C.F.R.
§§ 404.1527(d)(2)(i)–(ii), (d)(3)–(6) (explaining that deference
accorded to treating physician’s opinion may be reduced based on
consistency of opinion with rest of medical record, and any other
elements “which tend to . . . contradict the opinion”)); Pidkaminy,
919 F. Supp.2d at 245 (ALJ did not err in explaining decision not
to give controlling weight to the opinion of disabilitiy claimant’s
treating physician; ALJ specified what weight he accorded to the
physician’s opinion and provided sufficient reasons for doing so,
considered the length of the treating relationship, the fact that
the physician was a specialist, and all the evidence on which the
-12-
physician relied to support his opinions, and noted and explained
the various
records,
inconsistencies
claimant’s
own
between
the
statements,
physician’s
and
the
treatment
opinions
of
non-examining State agency consultants).
Plaintiff
Dr.
argues
Letourneau’s
that
opinions
contrary
are
to
the
supported
ALJ’s
by
the
assertions,
reports
of
consultative psychologist Sherry Schwartz, Ph.D.; and independent
medical examiner John Langfitt, Ph.D., who conducted a two-day
neurological examination of Plaintiff on behalf of Plaintiff’s
insurer.
The Court finds that the ALJ’s conclusion that these
opinions did not support Dr. Letourneau’s opinion is underpinned by
substantial evidence in the record, and that the ALJ adequately
explained
this
decision.
Turning
first
to
Dr.
Schwartz’s
consultative opinion, the results of her mental status examination,
apart from noting Plaintiff’s depressed mood and restricted affect,
were largely normal: Plaintiff’s speech and language were fluent,
clear and adequate; his thoughts were coherent and goal-irected
with no hallucinations, delusions or paranoia; he was oriented,
with intact attention and concentration, and intact recent and
remote memory; his cognitive function was above average; and his
insight and judgment were good. Dr. Schwartz opined that Plaintiff
can follow and understand simple directions and instructions,
perform simple tasks independently, maintain concentration and
attention, maintain a regular schedule, learn new tasks, and
-13-
perform complex tasks independently; but he cannot make appropriate
decisions, relate adequately with others, or appropriately deal
with stress. The ALJ rejected Dr. Schwartz’s assessment regarding
Plaintiff’s ability to interact with others and deal with stress
because it was “based on what the claimant reported and not on her
observations over time” and failed to “provide specific limitations
in decision making, relating or stress.” The ALJ explained that
“[t]o the extent that Dr. Schwartz suggests that [Plaintiff] can
have no interaction [with people], make no decisions, and handle no
stress, such an interpretation is unsupportable” because “[e]ven
the basic activities of daily life—choosing clothing, driving to
the store and making a purchase—require some degree of these
functions,” and Plaintiff “acknowledges his capacity for multiple
activities requiring some functioning . . . .” (T.27).
Similarly, the ALJ’s evaluation of Dr. Langfitt’s report is
supported by substantial evidence. Notably, the question posed to
Dr. Langfitt by Plaintiff’s insurer was fairly narrow—that is,
whether Plaintiff still can function, notwithstanding his mental
impairments,
in
a
CEO-type
role.
The gist
of
Dr.
Langfitt’s
narrative opinion is that Plaintiff is currently very limited in
performing most of the tasks required of a typical CEO; he works
extremely slowly on cognitive tasks and projects a very negative
emotional tone. However, Dr. Langfitt did not perform a functionby-function assessment of Plaintiff’s abilities to perform basic
-14-
work activities such as what would be required in an unskilled or
semiskilled job. While Dr. Langfitt opined that Plaintiff should be
restricted from making major life decisions without advice from
people who knew him well, he qualified those as being decisions
involving
Plaintiff’s
large
amounts
living
of
money,
situation.
While
Plaintiff’s
decisions
estate
involving
and
large
amounts of money are typically required in an executive leadership
employment
position,
they
are
not
involved
in
most
jobs.
Furthermore, decisions involving end of life planning and domestic
situations are likewise not involved in most jobs. The ALJ thus
accurately characterized Dr. Langfitt’s report when she stated that
“the limitations offered by Dr. Langfitt may preclude [Plaintiff]’s
past work [as a CEO], but [they] do[ ] not necessarily preclude
other work activities.” (T. 26).
Neuropsychologist Dr. Michael Santa Maria, Ph.D. conducted in
independent medical examination of Plaintiff on January 9, 2012, at
the request of his attorney (not the attorney or firm representing
him in connection with the present disability claim and appeal).
Dr. Santa Maria noted that Plaintiff has history of a difficult
childhood involving ongoing abuse in the home through childhood
with lingering prominent symptoms of depression and anxiety. While
Dr. Santa Maria considered Plaintiff to meet diagnostic criteria
for Posttraumatic Stress Disorder (PTSD) which is an Anxiety
Disorder, based on his childhood experiences, and Major Depresssive
-15-
Disorder, Severe Without Psychotic Features, Chronic, he found
there was not evidence, based on the clinical interview, the
records review, and the comprehensive personality inventory, of any
comorbid Personality Disorder. Dr. Santa Maria also performed an
extensive battery of neuropsychological tests, including the Benton
Temporal Orientation Test, Mini Mental State Exam, various tests
assessing sensory and motor functioning, tests to measure premorbid
intelligence
such
as
the
North
American
Adult
Reading
Test,
multiple WAIS-4 intelligence tests to measure current intelligence,
and
numerous
tests
measuring
academic
abilities,
language
abilities, spatial abilities, learning and memory, memory/effort,
and executive functioning. Dr. Santa Maria found that Plaintiff’s
performance on the current cognitive evaluation was “compatible
with some scattered mild-range impact of mood and anxiety symptoms
on
Dr.
some
aspects
Santa
Maria
of
was
memory,
attention
presented
with
a
and
processing
specific
speed.”
question,
to
“identify any psychiatric diagnoses; conditions or personality
disorders that may be present, and to the extent possible, assess
the severity of any condition identified and the impact that
condition might be expected to have on [Plaintiff]’s work capacity
and, in particular, his ability to competitively perform the duties
of a CEO.” In answer to that question, Dr. Santa Maria did “not
foresee” Plaintiff “effectively demonstrating attentional focus,
motivation and follow-through to effectively handle CEO duties in
-16-
a
typical
company
full-time/greater
than
full-time
at
least
5 days/week as would be expected of a CEO for a typical company,
given his prominent current depression and anxiety/PTSD.” However,
Dr.
Santa
Maria
concluded,
the
“cognitive
data
support
that
[Plaintiff] demonstrates adequate cognitive capacity to handle a
variety of modestly demanding work roles in various sectors of the
economy.” Thus, while Dr. Santa Maria’s opinion supports a finding
that Plaintiff can no longer function effectively as a CEO, his
opinion does not actually support Plaintiff’s claim of being
totally disabled as defined by the Act.
To the extent that Plaintiff argues that the ALJ’s decision
must be overturned because he did not give controlling weight to
any medical opinion in particular, the Second Circuit has found the
failure of an RFC to align completely with an acceptable source’s
medical opinion, standing alone, does not amount to reversible
error.
See, e.g., Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.
2013) (unpublished opn.) (“[The claimant] asserts that the ALJ
substituted his own medical judgment for these expert opinions in
concluding that ‘substantial evidence revealed [the claimant’s]
condition stabilized and at the most, he had moderate symptoms.’ We
disagree.
Although
the
ALJ’s
conclusion
may
not
perfectly
correspond with any of the opinions of medical sources cited in his
decision, he was entitled to weigh all of the evidence available to
make an RFC finding that was consistent with the record as a
-17-
whole.”) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)
(“We therefore are presented with the not uncommon situation of
conflicting medical evidence. The trier of fact has the duty to
resolve that conflict.”)).
II.
Erroneous Credibility Assessment
When assessing a claimant’s credibility, the ALJ must consider
both his medical records and his reported symptoms. See 20 C.F.R.
§ 404.1529. “Under the regulations, an individual’s statement(s)
about his or her symptoms is not enough in itself to establish the
existence of a physical or mental impairment or that the individual
is disabled.” SSR 96–7p, 1996 WL 374186, at *1 (S.S.A. July 2,
1996). The ALJ employs a two-step process to evaluate a claimant’s
self-reported symptoms. See 20 C.F.R. § 404.1529(a); SSR 96–7p, at
*2. First,
the
ALJ
determines
if
the
claimant
has medically
determinable impairments that could produce the alleged symptoms.
Second, if such impairments exist, the ALJ evaluates the intensity,
persistence, and limiting effects of the symptoms to determine the
extent to which those symptoms limit the claimant’s ability to
work. See id. In so doing, the ALJ considers (1) the claimant’s
daily
activities;
intensity
(3)
of
(2)
the
precipitating
and
the
location,
claimant’s
aggravating
duration,
pain
or
factors;
frequency,
other
(4)
and
symptoms;
type,
dosage,
effectiveness, and side effects of any medication the claimant
takes or has taken to relieve his pain or other symptoms; (5) other
-18-
treatment the claimant receives or has received to relieve his pain
or other symptoms; any measures the claimant takes or has taken to
relieve his pain or other symptoms; and (6) any other factors
concerning the claimant’s functional limitations and restrictions
due
to
his
pain
or
other
symptoms.
See
20
C.F.R.
§ 416.929(c)(3)(i)-(vii); SSR 96–7p, at *3.
The ALJ, in evaluating Plaintiff’s subjective symptomatology,
found that while “the objective medical evidence does provide a
basis for finding that [he] has more than minimal restrictions
arising from his impairments,” “[t]he objective medical evidence
does not support the extent of the limitations alleged.” (T.29).
Section 404.1529(c)(2) permits an ALJ to consider objective medical
evidence,
which,
although
not
dispositive,
can
be
“a
useful
indicator to assist . . . in making reasonable conclusions about
the intensity and persistence of [the claimant’s] symptoms and the
effect those symptoms, such as pain, may have on [the] ability to
work.”
The ALJ noted that “the treatment notes and observations
offered
by
Dr.
Momont,
Dr.
Chaudhri,
Dr.
Langfitt,
and
Dr. Letourneau indicate that Plaintiff has suffered from chronic
mental impairments that pre-date his disability claim,” and that
while
Plaintiff
grooming
and
“has
command
sometimes
of
a
presented
CEO,
mental
with
less
status
than
the
examinations
throughout treatment reflect a greater capacity than alleged.”
(T.29). Plaintiff’s mental status examinations, as discussed above,
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consistently showed that he had logical and goal-directed thought
processes, intact cognitive functioning and memory, fair or good
judgment, normal attention span and concentration. (T.326, 328,
330, 332, 334, 336, 338, 351, 395).
The ALJ also properly considered the nature and extent of
Plaintiff’s daily activities in finding that his subjectively
reported symptoms were not as severe as he alleged. (T.24, 29). See
20 C.F.R. §§ 404.1529(c)(3)(i) (allowing an ALJ to consider a
claimant’s
daily
activities
subjective
complaints).
In
when
evaluating
particular,
the
the
ALJ
severity
noted
of
that
Plaintiff’s “actions demonstrate independence of thought and the
ability to negotiate the sale” of his business in 2010, and
Plaintiff’s
“opinion
on
matters
of
investment
and
economics
continues to be relied upon by others in the industry” (T.24), as
evidenced by his participating in political fundraising, providing
high-level input on investments and strategy to Harvard’s endowment
fund on investments and RIT’s President’s Circle, and providing
input to lawyers and accountants on the viability of companies
(T.54, 278, 330, 336). There is substantial evidence in the record
to support a finding that Plaintiff’s day-to-day activities were
inconsistent
with
his
reports
to
treating
psychiatrist
Dr. Letourneau and other providers that he has a near complete
inability to function due to his depression and anxiety. In sum,
the ALJ did not misapply the relevant legal standards in evaluating
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the credibility of Plaintiff’s subjective complaints, and the Court
finds substantial evidence in the record to support the ALJ’s
credibility assessment.
CONCLUSION
For the foregoing reasons, the Court finds that the ALJ’s
decision was free of legal error and supported by substantial
evidence. Accordingly, Plaintiff’s Motion for Judgment on the
Pleadings
is
denied,
Defendant’s
Motion
for
Judgment
on
the
Pleadings is granted, and the Commissioner’s decision is affirmed.
The Clerk of the Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
January 5, 2017
Rochester, New York.
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