Thurman v. Colvin

Filing 17

DECISION AND ORDER denying 12 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 5/18/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CALVIN THURMAN,
No. 6:16-cv-06082(MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented

by

counsel,

Calvin

Thurman

(“Plaintiff”)

instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying his application 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
Plaintiff protectively filed applications for DIB and SSI on
December 5, 2012, which were denied. (T.81-82, 85-100, 202-09).2
Plaintiff requested a hearing, which was scheduled to be held via
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
2

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.

videoconference on October 24, 2014, before administrative law
judge Rosanne M. Dummer (“the ALJ”). However, the hearing was
postponed until March 16, 2015, at which time Plaintiff appeared
with his attorney and testified, as did impartial vocational expert
Jacquelyn Schabacker (“the VE”). (See T.40-67). After the ALJ
issued

an

unfavorable

decision

on

March

20,

2015

(T.9-30),

Plaintiff requested review by the Appeals Council, which was denied
on December 18, 2015, making the ALJ’s decision the Commissioner’s
final decision. (T.1-4). This timely action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step procedure established by the
Commissioner

for

evaluating

disability

claims.

See

20

C.F.R.

§§ 404.1520, 416.920. At step one of the sequential evaluation, the
ALJ found that Plaintiff had not engaged in substantial gainful
activity since January 1, 2008, the alleged onset date. (T.14).
At

step

two,

the

ALJ

found

Plaintiff

has

the following

“severe” impairments: major depressive disorder; anxiety disorder;
hypothyroidism; and cocaine abuse, cannabis abuse, and alcohol
-2-

abuse, all in reported remission. At step three, the ALJ determined
that whether considered individually or in combination, Plaintiff’s
severe impairments did not meet or equal a listed impairment.
(T.14-15).
Before proceeding to step four, the ALJ assessed Plaintiff’s
residual functional capacity (“RFC”) and determined that he has the
ability

to

perform

medium

work

as

defined

in

20

C.F.R.

§§ 404.1567(c) and 416.967(c),3 except that he needs to avoid
concentrated exposure to work hazards, and, secondary to mental
impairments,

he

can

understand,

remember,

and

carry

out

instructions; sustain attention for simple tasks for extended
periods

of

two-hour

segments;

tolerate

brief

and

superficial

contact with others, and occasional brief and superficial contact
with the public; and adapt to changes as needed for routine,
repetitive, unskilled work. (T.16-23).
At step four, the ALJ found that Plaintiff could not perform
his past relevant work. (T.23).
At step five, the ALJ relied on the VE’s testimony at the
hearing

(T.60-66)

regarding

an

individual

of

the

same

age,

education, and work experience as Plaintiff, who has the RFC
assessed

by

the

ALJ,

supra.

The

VE

testified

that

such

an

individual could perform representative occupations of automobile

3

Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If the claimant can do
medium work, he can also do sedentary and light work. See 20 CFR § 404.1567(c),
416.967(c).

-3-

detailer, dishwasher, general laborer, coffee attendant, sorter,
and laundry worker, all of which were at the medium, unskilled
level. In addition, the VE testified, such an individual could
perform
photocopy

representative
machine

occupations

operator,

and

of

housekeeper/cleaner,

packager,

all

of

which

were

unskilled, light-exertion work. (T.63-64). The VE further testified
that, even if the hypothetical person were off-task for up to 10%
of the time, he could perform the same jobs. (T.66). Because there
are jobs that exist in significant numbers in the economy that
Plaintiff can perform, the ALJ entered a finding of “not disabled.”
DISCUSSION
I.

Failure by the ALJ to Develop the Record (Plaintiff’s Point
II)
Although “[t]he claimant has the general burden of proving

that he or she has a disability within the meaning of the Act,”
“because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.” Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) (internal quotation marks and brackets
omitted).

This

represented
(2d

Cir.

by

duty

is

present

“[e]ven

counsel.”

Moran

v.

2009).“[W]here

there

are

when

Astrue,
no

569

obvious

a

claimant

F.3d
gaps

is

108, 112
in

the

administrative record, and where the ALJ already possesses a
‘complete medical history,’ the ALJ is under no obligation to seek
additional information. . . .” Rosa v. Callahan, 168 F.3d 72, 79

-4-

n.5 (2d Cir. 1999) (quoting Perez v. Chater, 77 F.3d 41, 48
(2d Cir. 1996)).
Plaintiff contends that the ALJ erred by failing to develop
the full record of his psychiatric care with Dr. Gregory Seeger at
Rochester Rehabilitation Mental Health Center (“RRMHC”). Plaintiff
asserts that the ALJ repeatedly stated in her decision that there
was no evidence of a debilitating mental health condition (see
T.19-20), but then made no effort to obtain Plaintiff’s psychiatric
notes with Dr. Seeger. Plaintiff states that the only psychiatric
treatment

note

in

the

RRMCH

records

from

Dr.

Seeger

is

his

treatment note from their December 8, 2014 session. (T.391-93).
According to Plaintiff, it is “clear” there are missing notes,
because on October 28, 2014, Licensed Clinical Social Worker
Beverly Dodd (“LCSW Dodd”) authored a letter indicating that
Plaintiff had been a patient at RRMHC since April 23, 2013, when he
was put on a waiting list for an initial psychiatric evaluation,
which was conducted on July 8, 2014. (T.358). However, in this
Court’s view, it is far from clear that there are in fact missing
records from Dr. Seeger. Moreover, the Court notes that when
Plaintiff’s attorney submitted the RRMHC records to the ALJ on
February 12, 2015, including records from November 10, 2014,
through January 30, 2015, he included one treatment note from
Dr. Seeger, dated December 8, 2014. (See T.19, 22, 386, 391). Prior
to the hearing, the Commissioner sent a notice to Plaintiff and his
attorney advising them to submit any additional evidence before the

-5-

hearing. (See T.166-71). However, at the hearing on March 16, 2015,
Plaintiff’s attorney did not indicate that he was awaiting any
additional medical records. (See T.43). Plaintiff testified that he
saw Dr. Seeger once a month or month-and-a-half; however, the
evidence in the record indicates that he missed at least one
appointment with Dr. Seeger in August 2014; and, on December 8,
2014, Dr. Seeger instructed Plaintiff to return for follow-up in
two months. See Tr. 49, 370, 392. Accordingly, the number of
appointments with Dr. Seeger that are actually missing from the
record between July 2014 and March 2015 appears to be small. In
addition, the treatment note from Dr. Seeger that is in the record
is dated December 8, 2014, which is at the midpoint of his
treatment, and which was apparently his last visit with Plaintiff
before he co-signed the report by Ms. Dodd on February 2, 2015. See
Tr. 16, 19, 22, 391-92, 379-85.
Indeed, later in his argument, Plaintiff walks back his
assertion that it is clear there are missing records, stating, it
is “likely that there are other notes” from Dr. Seeger. To support
this argument, Plaintiff relies on pure speculation. He states that
LCSW-R Dodd’s treatment notes “generally assume ongoing treatment
with Dr. Seeger in that they note only once that [Plaintiff] missed
an appointment with Dr. Seeger, and include tidbits such as [LCSW]
Dodd
Dr.

encouraging
Seeger[.]”

[Plaintiff]

(Plaintiff’s

to

discuss

Memorandum

his
of

medications

Law

(“Pl’s

with

Mem.”)

(Dkt #12-1) at 15-16 (citing T.370, 374)). However, the fact that
-6-

Plaintiff

missed

an

appointment

with

Dr.

Seeger

does

not

necessarily mean that he rescheduled the appointment. Nor does the
fact that LCSW Dodd counseled Plaintiff to meet with Dr. Seeger
prove that Plaintiff actually did meet with Dr. Seeger to discuss
his medications.
In short, Plaintiff has failed to establish how any additional
treatment notes from Dr. Seeger, assuming that such notes exist,
would have altered the ALJ’s findings, given the extensive mental
health treatment notes already in the record, which the ALJ did
consider.

See Reices-Colon

(2d

2013)

Cir.

v.

(unpublished

Astrue,
opn.)

523 F.

App’x

(rejecting

as

796, 799
“baseless”

claimant’s argument that ALJ failed to supplement the record, where
claimant she failed to explain how any specific missing record
would have affected the decision on her claim).
II.

RFC Unsupported by Substantial Evidence (Plaintiff’s Points I
and III)
A.

Erroneous Weighing of LCSW Dodd’s RFC Assessment

Plaintiff contends that the ALJ erred in his evaluation of the
January 30, 2015, RFC assessment by his treating therapist, LCSW
Dodd, pointing to the ALJ’s failure to specifically acknowledge
that

the

opinion

was

co-signed

by

Plaintiff’s

psychiatrist,

Dr. Seeger, on on February 2, 2015. (T.21-22, 380-85). Plaintiff
argues that Dr. Seeger’s co-signing of LCSW Dodd’s opinion renders
it an opinion from a treating physician, entitling to deference
under the treating physician rule.

-7-

Under the Regulations in effect at the time of the ALJ’s
decision, a treating physician’s opinion on the issues of the
nature

and

severity

of

a

claimant’s

impairments

is

accorded

controlling weight only when it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques, and is
not inconsistent with the other substantial evidence in the record.
See

20

C.F.R.

Barnhart,

362

§§
F.3d

404.1527(c)(2),
28,

32

(2d

416.927(c)(2);

Cir.

2004).

When

Halloran
a

v.

treating

physician’s opinion is not entitled to controlling weight, the ALJ
is to consider (1) the examining relationship; (2) the length,
nature and extent of the treatment relationship, and frequency of
examination;

(3)

the

supportability

of

the

opinion;

(4)

the

consistency of the opinion with the record as a whole; (5) the
source’s area of specialization, if any; and (6) other factors
brought to the ALJ’s attention. See 20 C.F.R. §§ 404.1527(c),
416.927(c). However, the Second Circuit has cautioned that it does
not require a “slavish recitation of each and every factor, where
the ALJ’s reasoning and adherence to the regulation are clear.”
Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (unpublished
opn.) (citing Halloran, 362 F.3d at 31-32 (affirming ALJ opinion
which did “not expressly acknowledge the treating physician rule,”
but where “the substance of the treating physician rule was not
traversed”).
Assuming that LCSW Dodd’s co-signed report was entitled to the
ALJ’s

application

of

the

treating

-8-

physician

presumption

of

deference, the Court finds that “the substance of the treating
physician rule was not traversed.” Halloran, 362 F.3d at 32. It is
apparent from the ALJ’s analysis of LCSW Dodd’s report that the ALJ
considered most of the same factors set forth in the treating
physician regulations, 20 C.F.R. §§ 404.1527(c) and 416.927(c). For
instance, the ALJ considered the supportability of the opinion, and
the consistency of the opinion with the record as a whole. (T.2021).

Applying the pertinent regulations and legal principles, the

Court is able to “deduce that the ALJ considered the treating
physician’s opinion and explained the consistency of [that] opinion
‘with the record as a whole.’” Halloran, 362 F.3d at 32 (quoting
20 C.F.R. § 404.1527(d)(4)). In particular, the ALJ noted that
“routine therapy notes and psychiatric examination did not indicate
any debilitating mental health problems[,]” and Plaintiff “was
treated conservatively with counseling and medications on a routine
basis,

in

stressors.”

mostly
In

cognitive

addition,

behavioral

LCSW

Dodd’s

management
opinion

for

was

life

somewhat

internally inconsistent insofar as she checked a box indicating
that Plaintiff would be absent from work approximately four days
per

month

(T.384),

but,

with

regard

to

ability

to

perform

semi-skilled and skilled work, she opined that Plaintiff was
“seriously limited but not precluded” in his ability to deal with
the stress of semi-skilled and skilled work, and he had a limited
but satisfactory ability to understand, remember, and carry out
detailed instructions, and to set realistic goals or make plans

-9-

independently of others. (T.383). Moreover, LCSW Dodd stated,
Plaintiff had an “unlimited or very good” ability to interact
appropriately

with

the

general

public,

maintain

socially

appropriate behavior, adhere to basic standards of neatness and
cleanliness, and use public transportation. (T.383). LCSW Dodd’s
report also suggests uncertainty about Plaintiff’s actual degree of
impairment, since she noted that “[d]epressive symptoms and anxiety
may seriously impair work functioning at this time. Symptoms may
interfere with concentration and focus.” (T.383). As the ALJ noted,
it “appears that [LCSW] Dodd’s statements were speculative; she
noted that the claimant’s symptoms ‘may’ impair work function and
it

was

‘possible’

that

his

psychiatric

condition

exacerbates

pain[.]” Furthermore, as the ALJ observed, LCSW Dodd’s report was
inconsistent with Dr. Seeger’s previous month’s examination of
Plaintiff

on

December

8,

2014.

During

that

visit,

Plaintiff

reported increased anxiety and stated that he was starting to get
mildly depressed again, but it was mainly situational insofar he
complained

primarily

about

his

unsafe

living

conditions

and

dangerous neighborhood (for which LCSW Dodd had referred him to
housing assistance services on that same day). (See T.19-20, 391,
393).

Dr.

Seeger’s

mental

status

examination

revealed

that

Plaintiff’s thought process was characterized by some persistent
racing thoughts, his mood was mildly depressed and affect was
characterized by some anxiety, but other findings were essentially
normal; he had intact recent and remote memory, and good attention

-10-

span, concentration, judgment, and general grooming and hygiene.
(T.391-92). Dr. Seeger noted that Plaintiff was not a danger to
himself or

others,

and

increased

his dosage

of

Celexa,

with

instructions to follow up in two months. (T.392). The ALJ observed
further that “[t]here was no evidence of overt concern by mental
health

clinicians

recommended

to

[LCSW

use

Dodd

cognitive

and

Dr.

behavioral

Seeger];

he

techniques

was
and

only
begin

seeking new living arrangements. Though he alleged medication
side-effects at the hearing, the record indicated he complied with
medications,

had

no

side-effects,

and

the

medication

was

effective.” The ALJ’s conclusion that “[o]verall,” Plaintiff did
not have a “debilitating physical or mental condition” is supported
by substantial evidence.
B.

Erroneous Credibility Assessment

Plaintiff assigns error to the ALJ’s consideration of his
criminal history and substance abuse history as detrimental to his
overall credibility. The ALJ “note[d] a significant history of
cocaine use and incarceration. . . . The history of substance and
legal history also do little to enhance the overall credibility of
his statements. . . .” (T.22).

An ALJ properly may considere a

claimant’s criminal history and substance abuse in assessing his
credibility. See, e.g., Williams v. Comm’r of Soc. Sec., 423 F.
Supp.2d 77, 84 (W.D.N.Y. 2006) (ALJ properly considered claimant’s
criminal

history

and

other

factors

in

assessing

claimant’s

credibility). However, it is error for an ALJ to categorically
-11-

reject a claimant’s subjective complaints based on his criminal
history or prior substance abuse. See, e.g., Arrington v. Astrue,
No. 09-CV-870 A F, 2011 WL 3844172, at *13 (W.D.N.Y. Aug. 8, 2011)
(“The ALJ’s categorical rejection of [the claimant]’s claims of
pain relating to [the claimant]’s right knee impairment on the
basis

that

[the

claimant]’s

criminal

bank

robbery

conviction

rendered [the claimant] without any credibility, was error.”),
report and recommendation adopted, No. 09-CV-870, 2011 WL 3844164
(W.D.N.Y. Aug. 30, 2011). Here, the ALJ did not categorically
reject Plaintiff’s subjective complaints on the basis of his prior
criminal history and substance abuse, but instead considered other
appropriate

factors

inconsistencies

between

for

assessing

Plaintiff’s

credibility,

statements. See

such
20

as

C.F.R.

§§ 404.1529(c)(4), 416.929(c)(4). The ALJ noted that “[t]hough the
claimant testified that he has stopped use of all alcohol and
illegal substances, records suggest ongoing alcohol and marijuana
use[.]” (See T.18, 20, 22, 47, 52, 323, 340).

The ALJ also

considered other reasons for finding that Plaintiff’s subjective
statements overstated his limitations, such as LCSW Dodd’s repeated
referral of Plaintiff vocational rehabilitation and her continued
encouragement of him to find work. See Camille v. Colvin, 652 F.
App’x 25, 27 n. 2 (2d Cir. 2016) (unpublished opn.) (finding ALJ’s
attribution of limited weight to treating physician’s opinion was
supported
clinical

by

substantial

notes,

which

evidence

included

-12-

including

physician’s

recommendation

that

own

claimant

participate in vocational rehabilitation); Poupore v. Astrue, 566
F.3d 303, 305-06 (2d Cir. 2009) (per curiam) (determination that
claimant was not disabled was supported by substantial evidence,
including report of claimant’s treating physician stating that he
would be “an excellent candidate for vocational rehabilitation, and
capable of performing lighter work”). Moreover, Plaintiff looked
for work throughout the relevant period of alleged disability.4 At
a July 2, 2014 appointment with LCSW Dodd, Plaintiff “again talked
about getting a job, and reported that he had made some efforts to
obtain one through his contacts” and observed that “must have a
high paying job, not a job that pays minimum wage.” (T.366). LCSW
Dodd attempted to help Plaintiff see the discrepancies between what
he wanted versus what he was willing to do to get it, but Plaintiff
maintained that he was “not going to start all over again.”
(T.366). LCSW Dodd provided examples of people who had needed to
“start over” and had done so successfully; she “continue[d] to
encourage him to accept work anywhere.” (T.366). It was not error
for the ALJ to consider that factors unrelated to his impairments
contributed to Plaintiff’s unemployment. In addition, the ALJ
appropriately considered that Plaintiff’s work ended in 2008 due to
reasons unrelated to any of his impairments. Plaintiff testified
that he last worked in 2008, removing asbestos from buildings and

4

The Commissioner’s “regulations provide that employment ‘during any period’
of claimed disability may be probative of a claimant’s ability to work, 20 C.F.R.
§§ 404.1571, 416.971.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924
(9th Cir. 2002) (emphasis in original).

-13-

supervising 15 people in performing that task. (T.45). When asked
whether he quit or was terminated, Plaintiff responded that the
contract ended. (T.45, 323). He further testified that he was
supposed to renew his asbestos license every two years, but he was
sent to the wrong recertification class; as a result, he lost his
license. (T.55-56). Plaintiff was told that he would have to repeat
the entire certification program (T.56), which he apparently did
not do.
It is well within the discretion of the Commissioner to
evaluate the credibility of [P]laintiff’s complaints and render an
independent judgment in light of the medical findings and other
evidence.” Williams v. Comm’r of Soc. Sec., 423 F. Supp.2d 77, 84
(W.D.N.Y. 2006) (citing Mimms v. Heckler, 750 F.2d 180, 185–86
(2d Cir. 1984) (“On appeal, the court’s proper function is merely
to determine whether the appropriate legal standards have been
applied and assess whether the Secretary’s findings of fact are
supported by substantial evidence.”); Social Security Ruling 96–7p,
1996 WL 374186 (S.S.A. July 2, 1996)). Here, in making factual
findings

regarding

the

credibility

of

Plaintiff’s

subjective

complaints, the ALJ did not misstate or mischaracterize the record,
and did not misapply the relevant legal principles. Accordingly,
the

Court

may

not

re-examine

the

credibility determination.

-14-

evidence

and

make

its

own

CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is not legally flawed and is based on
substantial evidence. Accordingly, it is affirmed. Defendant’s
motion for judgment on the pleadings is granted, and Plaintiff’s
motion for judgment on the pleadings is denied. The Clerk of Court
is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 18, 2017
Rochester, New York.

-15-