Downs v. Colvin
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/26/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JUANITA DOWNS,
No. 6:15-cv-06644(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented by counsel, Juanita Downs (“Plaintiff”) brings
this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying her
applications
for
Disability
Insurance
Benefits
(“DIB”)
and
Supplemental Security Income (“SSI”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
PROCEDURAL STATUS
On June 29, 2012, Plaintiff applied for DIB and SSI, on the
basis of a learning disability affecting her ability to read and
write, bipolar disorder, and depression, with an onset date of
January
1,
2008.
These
claims
were
denied
initially
on
September 19, 2012. Plaintiff requested a hearing which was held on
January 28, 2014, in Buffalo, New York, before administrative law
judge John P. Costello (“the ALJ”). Plaintiff appeared at the
hearing with her attorney and testified, as did Peter Manzi, an
impartial vocational expert (“the VE”). T.29-70.1 On May 1, 2014,
the ALJ issued an unfavorable decision. T.11-28. The Appeals
Council denied Plaintiff’s request for review on August 26, 2015,
making the ALJ’s decision the final decision of the Commissioner.
This timely action followed.
The parties have filed cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Neither party has filed a reply brief. The Court adopts
and incorporates by reference herein the comprehensive factual
recitations contained in the parties’ briefs. The Court will
discuss the record evidence in further detail as necessary to the
resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is affirmed.
THE ALJ’S DECISION
At step one of the five-step sequential evaluation process,
the ALJ found that Plaintiff meets the insured status requirements
of the Act through December 31, 2012, and has not engaged in
substantial gainful activity (“SGA”) since January 1, 2008, the
alleged onset date. Although Plaintiff testified that she is
currently working about 20 hours per week as a housekeeper at a
hotel, this work activity does not rise to the level of SGA.
1
Numbers preceded by “T.” refer to pages from the certified administrative
transcript, filed by Defendant electronically on CM/ECF.
-2-
At step two, the ALJ found that Plaintiff has the following
severe impairments: asthma, bipolar disorder,
depression,
low
average
cognitive
ability,
and
personality
disorder.
At step three, the ALJ gave particular consideration to the
listed impairments of 3.03 (Asthma), 12.04 (Affective disorders),
and to 12.09 (Substance abuse disorders) but found that Plaintiff
does not have an impairment or combination of impairments that
meets or medically equals the severity of one of these impairments,
or any other impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. With regard to the four domains of functioning, the ALJ
found that Plaintiff has mild limitation in activities of daily
living;
moderate
difficulties
maintaining
concentration,
experienced
episodes
of
in
social
persistence,
decompensation.
or
functioning
pace;
and
in
and
has
not
Additionally,
the
ALJ
found, although Plaintiff appeared to assert that she meets Listing
12.05C (Intellectual disability (IQ test scores)), her subtest
scores do not qualify for the needed Intelligence Quotient (IQ)
score under that Listing. Furthermore, in the TONI-3 (Test of Nonverbal
Intelligence),
Plaintiff
obtained
a
quotient
of
91,
indicating “that she actually functions in the average range of
intelligence.” T.17. Finally, her overall measured intellectual
functioning
was
characterized
psychologist. Id.
-3-
as
average
by
the
school
The ALJ proceeded to determine 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:
She should avoid concentrated or excessive exposure to respiratory
irritants
(dust,
orders,
fumes,
extremes
in
temperature,
and
humidity), and she is limited to performing simple tasks, with
occasional interaction with co-workers and the general public.”
T.19.
At step four, the ALJ found that Plaintiff has no past
relevant work; was a younger individual age 18-49, on the alleged
disability onset date; and has at least a high school education and
is able to communicate in English.
At step five, the ALJ relied on the VE’s hearing testimony to
find
that
Plaintiff
can
perform
the
requirements
of
various
occupations that exist in significant numbers in the national
economy, such as Hand Packager (DOT #920.587-018), unskilled, with
an SVP of 2, and a medium exertional level; and Laundry Sorter (DOT
#361.687-014), unskilled, with an SVP of 2, and a light exertional
level. Accordingly, the ALJ entered a finding of not disabled.
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
-4-
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”).
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
Plaintiff’s sole challenge on appeal deals with the weight
given by the ALJ to portions of the medical source statement by one
of Plaintiff’s primary care providers, Dr. Diana Herrmann. See
Pl.’s Mem., pp. 13-17.
The applicable regulations state that “[r]egardless of its
source,” the Commissioner “will evaluate every medical opinion
[she] receive[s][.]” 20 C.F.R. § 404.1527(c). Unless a treating
source’s opinion is given controlling weight, the Commissioner
“consider[s] all of the following factors in deciding the weight
[she] give[s] to any medical opinion[,]” 20 C.F.R. § 404.1527(c),
-5-
namely, whether there is an examining relationship; the nature,
extent, and length of the treatment relationship; supportability of
the opinion; consistency of the opinion with the record as a whole;
specialization by the provider in the area on which she is opining;
and any other factors brought to the Commissioner’s attention as
tending to
support
or
contradict
the opinion.
See
20
C.F.R.
§ 404.1527(c)(1)-(6).
As the Second Circuit has explained, the opinion of a treating
physician “is accorded extra weight” based on the “continuity of
treatment”
provided
and
“the
doctor/patient
relationship”
developed, which place the physician “in a unique position to make
a complete and accurate diagnosis of his [or her] patient.” Mongeur
v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir. 1983) “Although the
treating physician rule generally requires deference to the medical
opinion
of
a
claimant’s
treating
physician[,]”
Halloran
v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citation omitted),
Plaintiff has not argued that Dr. Herrmann qualifies as a “treating
physician.” As Respondent points out, while Dr. Herrmann indicated
on her report that she had treated Plaintiff for more than five
years as her primary care physician, see T.545, Plaintiff never
listed Dr. Herrmann as one of her medical providers, instead
stating that her primary care physician was Dr. Sharon Berkowitz.
See T.234-35. Dr. Herrmann and Dr. Berkowitz both practiced at
East Ridge Family Medicine, but the treatment notes from this
-6-
practice indicate that Plaintiff had only one office visit with
Dr. Herrmann, on December 20, 2013. T.452-53. Plaintiff regularly
received care from Dr. Berkowitz and Dr. Lindsay Phillips, and
occasionally from Dr. Jeanne Beddoe. See T.280-388, 452-93. The
Court
finds
that
Dr.
Herrmann
has
not
provided
sufficient
continuity of care or developed a treatment relationship for
purposes of applying the treating physician general presumption of
deference.
See, e.g., Petrie v. Astrue, 412 F. App’x 401, 405
(2d Cir. 2011) (unpublished opn.) (finding that ALJ did not err in
refusing to give controlling weight to treating source opinions
because one of the physicians had only examined the claimant once,
while
the
other
had
only
four
treatment
notes
bearing
his
signature, two of which were merely co-signatures on reports by
other
providers);
Shatraw
v.
Astrue,
No.
04-CV-510,
2008
WL
4517811, at *10 (N.D.N.Y. Sept. 30, 2008) (“Doctors who see a
patient only once do not have a chance to develop an ongoing
relationship with the patient, and therefore are not generally
considered treating physicians.”) (citations omitted).
The
ALJ
reviewed
the
January
2014
report
issued
by
Dr. Herrmann, which was on a form created by Plaintiff’s attorney
titled
“Medical
Statement
Regarding
Physical
Abilities
and
Limitations for Social Security Disability Claim.” T.545-48. In the
form, Dr. Hermann listed Plaintiff’s diagnoses as bipolar disorder,
migraines, and asthma. She opined that in an 8-hour day, Plaintiff
-7-
could sit for at least 6 hours (and sit continuously for more than
2 hours at a time); stand/walk about 4 hours total (and for 1 hour
at a time); frequently lift less than 10 pounds; occasionally lift
10 pounds; and could walk about 6 blocks at a time. T.545.
Dr. Herrmann opined that Plaintiff’s mental ability to perform work
varied. T.546-47. When asked to provide the medical or clinical
findings
supporting
her
assessment,
Dr.
Herrmann
stated
that
Plaintiff’s bipolar disorder was currently “untreated,” that she
was exhibiting “extreme irritability” when directed by supervisors,
and that she had difficulty carrying out and understanding detailed
instructions.
T.547.
Dr.
Herrmann
indicated
that
Plaintiff’s
symptoms and limitations, particularly irritability, would increase
if she were working full-time. T.548.
The ALJ assigned Dr. Herrmann’s opinion “little weight” for
various reasons. First, the ALJ noted, there were no impairments to
support the physical limitations she assigned. This was a proper
factor
for
regulations.
the
See
ALJ
20
to
consider
C.F.R.
§§
under
the
404.1527(c)(4),
Commissioner’s
416.927(c)(4)
(“Generally, the more consistent an opinion is with the record as
a whole, the more weight [the Commissioner] will give to that
opinion.”). The ALJ did not find that Plaintiff has any “severe”
physical impairments, a conclusion with which Plaintiff does not
take issue on appeal. Her only physical impairments are asthma,
headaches, and obesity. In light of her routinely normal physical
-8-
examinations, the record does not support Dr. Herrmann’s opinion
that these conditions affect Plaintiff’s ability to sit and stand.
Second, the ALJ noted, Dr. Herrmann did not explain why she
stated
Plaintiff’s
nevertheless
had
bipolar
a
condition
prognosis
of
was
“untreated,”
“good”.
See
20
but
C.F.R.
§§ 404.1527(c)(3), 416.927(c)(3) (“The better an explanation a
source provides for an opinion, the more weight we will give that
opinion.”).
Moreover,
this
aspect
of
the
opinion
reveals
an
internal inconsistency, which is a factor the ALJ was entitled to
consider. See, e.g., Micheli v. Astrue, 501 F. App’x 26, 28
(2d
Cir.
2012)
(unpublished
opn.)
(finding
that
substantial
evidence supported ALJ’s decision not to accord controlling weight
to treating physician’s opinion, where physician’s opinions were
internally inconsistent and inconsistent with findings by other
treating physicians and treatment reports).
The ALJ also discounted Dr. Herrmann’s report because, while
she indicated that Plaintiff could not perform tasks, “such as
completing a workday and performing at a consistent pace, etc.,
over 20% of the work time,” Plaintiff was “performing all of these
functions now at 20 hours per week, and she was working that same
amount of time when the form was completed.” T.21-22. Thus, the ALJ
found, Dr. Herrmann’s report was inconsistent with Plaintiff’s
actual functional abilities. Again, an ALJ may accord less weight
to a medical opinion when it is inconsistent with other record
-9-
evidence.
See
20
C.F.R.
§§
404.1527(c)(4),
416.927(c)(4)
(“Generally, the more consistent an opinion is with the record as
a whole, the more weight [the Commissioner] will give to that
opinion.”); see also Salmini v. Comm’r of Soc. Sec., 371 F. App’x
109, 114 (2d Cir. 2010) (unpublished opn.) (“[W]e see no error in
the ALJ’s general decision to adopt Dr. Wasco’s findings except
insofar as plaintiff admitted ‘to a greater degree of functionality
than that found by Dr. Wasco.’ For that reason, we see no error in
the ALJ’s decision to credit plaintiff’s testimony that he could
lift
35
pounds,
rather
than
merely
10
pounds
as
opined
by
Dr. Wasco. Indeed, there is no dispute that plaintiff believed (and
continues to believe) that he can lift up to 35 pounds.”) (citing
Wright v. Barnhart, 473 F. Supp.2d 488, 493 (S.D.N.Y. 2007) (no
error where “[t]he ALJ rejected the treating physicians’ analyses
only as far as they conflicted with [the claimant]’s testimony
about how her impairments affected her functional capacity”)). The
ALJ
reasonably
determined
that
Dr.
Herrmann’s
opinion
that
Plaintiff would be off-task or unable to perform for more than
20 percent of an 8-hour day to be inconsistent with Plaintiff’s
testimony about her activities. At the hearing, Plaintiff testified
she was currently working two to three days a week for about
20 hours per week. T.35, 37, 39-40. Assuming Plaintiff never worked
a full 8-hour day, she would have had to work almost 7 hours a day
for 3 days in order to clock 20 hours a week. If Plaintiff actually
-10-
was unable to perform for even 21 percent of an 8-hour day (1.68
hours), she likely would not have had sufficient time for her
part-time work as a hotel housekeeper. As Defendant argues, the
level of work activity performed by Plaintiff is inconsistent with
Dr. Herrmann’s opinion that Plaintiff could not perform for more
than 20 percent of an 8-hour day. The Commissioner’s regulations
provide that part-time work, even if not substantial gainful
activity, may show a claimant is able to do more than they actually
did. See Frawley v. Colvin, No. 5:13-CV-1567 LEK/CFH, 2014 WL
6810661, at *11 (N.D.N.Y. Dec. 2, 2014) (ALJ’s consideration of
claimant’s part-time work was “entirely proper” and supported his
decision); Fancher v. Colvin, No. 3:12-CV-1505 GLS, 2014 WL 409080,
at *4 (N.D.N.Y. Feb. 3, 2014) (claimant’s part-time work supported
ALJ’s decision to discount physician’s opinion).
The Court acknowledges that one of the reasons cited by the
ALJ, namely, that the form given to Dr. Herrmann to complete
appeared to be skewed to lead to finding of disability, T.22,
reflects a misreading of the form by the ALJ. Specifically, the ALJ
stated that apart from Category I, all the other categories of
limitation stated that “the person could not perform any task 10%
of the time or more–leading to a finding of disabled in many cases,
even if just one box were checked outside ‘Category I.’” T.22
(emphasis supplied). This is not what the form says. Category II,
for instance, applies when the reviewer believes that the claimant
-11-
is limited less than 10 percent of the time.2 However, the Court
agrees with Defendant that the ALJ’s misstatement is not fatal to
his decision, because substantial evidence supports his decision to
discount Dr. Herrmann’s opinion.
The ALJ discussed the substantial evidence in the record that
supported his finding that Plaintiff’s mental impairments do not
cause disabling limitations on her ability to perform work-related
activities. At a follow-up with her primary care physician in
September 2008, Plaintiff reported that she was pleased with the
mental health treatment she had received at Genesee Mental Health
Center, was doing well in group therapy, and had received a
diagnosis of bipolar disorder. T.332, 333. At a December 2008 visit
related to gynecological complaints, Plaintiff reported to her
primary care doctor that her bipolar disorder seemed to have
stabilized with her medication, and that she felt good. T.331. In
May
2009,
Plaintiff
had
her
annual
gynecological
visit
at
East Ridge Family Medicine. T.341. Plaintiff reported doing better
with her medication, and she denied any psychiatric symptoms,
2
The form lists mental abilities for work and has spaces to indicate the
amount of limitation a claimant has for each ability. T.546-47. The choices given
for the level of limitation to be assigned by the provider are Categories I
through V. T.546. Category I indicates no limitation, i.e., that the claimant’s
performance is not precluded, while Category V indicates the claimant’s
performance is entirely precluded. Id. Categories II, III, and IV rate the
claimant’s degree of limitation as a particular percentage of an 8-hour work day.
So, Category II means that the claimant’s performance is precluded for less than
10 percent of an 8-hour day; Category III means performance is precluded for 11
to 20 percent of an 8-hour day; and Category IV means performance is precluded
for more than 20 percent of an 8-hour day. T.546.
-12-
including depression. T.343-44. In December 2009, Plaintiff again
participated
in
the
partial
hospitalization
program,
but
was
discharged upon her request as she felt that she had too many
appointments,
needed
less
structure
and
supervision,
and
her
medications were working. T.510. In May 2010, she saw Dr. Berkowitz
for a routine gynecological visit and told Dr. Berkowitz that she
felt like she was doing well in regards to her bipolar disorder and
that her mood was stable. T.307. Plaintiff was “[d]oing very well
on lithium,” T.309, and had a normal affect, her mood was not
restrictive, and her insight and judgment were normal. T.308. In
June 2011, at a visit regarding a possible pregnancy, Plaintiff
reported that she was doing well even though she had let her
bipolar disorder medications lapse. T.293-94. As the ALJ noted,
“with few exceptions—such as when confronted with the death of her
friend, and of her grandmother, or when on street drug THC ([T.49899, 504])—[Plaintiff]’s mental status examinations were generally
moderate,
at
worse
[sic],
even
when
not
on
prescription
medication.” T.20 (citing T.293 (6/2/11–she let medications lapse
but is “doing well”); 403-05 (outpatient progress notes (“OPNs”) on
5/3/10,
5/27/10,
6/10/10
reflect
increased
mood,
increased
motivation, increased energy); T.409 (OPN on 11/9/10 indicates
decreased mood due to situational factors, i.e., concern about
children’s father); T.415 (OPN on 2/8/11 reflects increased mood,
increased motivation, increased energy); T.416 (OPN on 2/22/11
-13-
reflects increased mood, increased motivation, increased energy,
but
also
increased
5/29/12, 7/2/12
anxiety);
reflect
T.437-38,
increased
441
mood,
(OPNs
increased
on
5/9/12,
motivation,
increased energy); T.471 (told Dr. Berkowitz on 12/6/12 that she
was not on medication or seeing therapist but “mood is okay”);
T.495-96 (on 10/01/12, appears to be doing well with regard to her
bipolar disorder). The ALJ pointed out that in the Psychosocial
Assessment Admission note on January 28, 2010, Plaintiff was
“well-groomed; her behavior cooperative; speech was within normal
limits; her thought processes and content were organized and goal
directed; her mood was of full range; affect was congruent; she was
oriented times three; her recent and remote memory was intact; and
her insight, judgment and impulse control were all good.” T.20.
“Notably,” the ALJ stated, “these results were found despite the
fact that the claimant and her fiance had just ‘broken up,’ and he
had been put in jail with allegations involving the claimant’s
child.” Id. (citing Ex. 4F, pp. 6, 9-10). Subsequent progress notes
indicate that Plaintiff felt that she was a positive role-model for
the
neighborhood
children,
was
attending
a
work
program
for
20 hours per week, and showed a positive reaction to working; “she
experience[d] highs and lows at times but utilize[d] coping skills
regularly and appear[ed] to be doing well” with a good prognosis.
Id. (quoting T.495-96). At the last mental status examination in
the record, from May of 2013, Plaintiff reported continuing to feel
-14-
calmer and more in control of herself; she felt she could begin
concentrating on developing new goals. T.21 (citing Ex. 8F, p. 13).
In sum, the Court finds that substantial evidence supports the
ALJ’s evaluation of Dr. Herrmann’s opinion, and there was no error
requiring reversal of the Commissioner’s decision.
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s determination was not erroneous as a matter of law
and
was
supported
by
substantial
evidence.
Accordingly,
the
Commissioner’s motion for judgment on the pleadings (Dkt #10) is
granted, and the Commissioner’s decision is affirmed. Plaintiff’s
motion for judgment on the pleadings (Dkt #8) is denied. 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:
September 26, 2016
Rochester, New York
-15-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?