Cooley v. Colvin
DECISION AND ORDER granting in part 9 Motion for Judgment on the Pleadings and denying 14 Motion for Judgment on the Pleadings. The matter is remanded for further administrative proceedings. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 7/31/17. (JPL) -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMANDA L. COOLEY,
DECISION AND ORDER
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Represented by counsel, Plaintiff Amanda L. Cooley ("Plaintiff') brings this
action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting
Commissioner of Social Security ("the Commissioner"), denying Plaintiffs application
for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB").
(Dkt. 1). Presently before the Court are the parties' opposing motions for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. 9; Dkt. 14). For
the reasons set forth below, the Commissioner's motion is denied, Plaintiffs motion is
granted in part, and this matter is remanded for further administrative proceedings.
Nancy A. Berryhill been substituted as the defendant in this action pursuant to
Federal Rule of Civil Procedure 25(d).
Factual Background and Procedural History
On October 12, 2012, Plaintiff filed an application for DIB. (See Administrative
Transcript (hereinafter "Tr.") at 161-66). On October 30, 2012, she applied for SSL (Tr.
167-72). Plaintiff alleges that she has been disabled since February 21, 2012, due to
anxiety and depression. (Tr. 167, 185). Plaintiff's application was initially denied on
January 15, 2013.
Plaintiff timely filed a request for a hearing before an
Administrative Law Judge ("ALJ") on February 15, 2013. (See Tr. 106-07). Plaintiff
appeared at a hearing before ALJ Mary F. Withum on June 6, 2014.
(See Tr. 44).
Vocational Expert ("VE") Dana Leslie also testified at the hearing. (Tr. 45). On August
27, 2014, ALJ Withum issued a decision finding Plaintiff not disabled. (Tr. 21-36). The
Appeals Council denied Plaintiff's request for review on March 21, 2016, rendering the
ALJ's decision the final decision of the Commissioner. (See Tr. 5). Plaintiff commenced
this action on May 16, 2016. (Dkt. 1).
The Non-Medical Evidence
At the hearing before ALJ Withum, Plaintiff testified that she was living by herself
and not currently working. (Tr. 49). Plaintiff had medical coverage, and was receiving
food stamps as well as temporary assistance. (Id.). Plaintiff stated that she had a car,
which she drove "infrequently" to go to the doctor and grocery store. (Id.).
The ALJ questioned Plaintiff about her past work experience. (Tr. 50). Plaintiff
testified that she had completed some college. (Id.). She had previously worked full-2-
time behind the receptionist desk in the emergency room, at a retail kitchen supply store,
and at an office in a mental health hospital. (Tr. 50-52). Plaintiff also worked at a car
dealership where she was in charge of accounts payable/receivable. (Tr. 52).
When asked by the ALJ why Plaintiff was unable to return to work full-time,
Plaintiff replied, "I'm unable to function on a daily basis." (Tr. 53-54). Specifically,
Plaintiff stated she had "no concentration," was "upset all the time, [and] anxious all the
time." (Tr. 54 ). Plaintiff testified that she stopped working at the car dealership as a
result of anxiety and depression. (Id.).
The ALJ questioned Plaintiff about her medical history. Plaintiff stated that she
was currently seeing Pam King, a Psychiatric Nurse Practitioner. (Tr. 55). Plaintiff
stated that she sees Pam King every three to four weeks and that she had recently started
seeing a therapist. (Tr. 57). Plaintiff testified that since February 21, 2012, she has had
one inpatient psychiatric stay of five days as a result of Plaintiff overdosing on her
medication. (Tr. 55-56). She also noted "a couple of nights of observation in emergency
rooms." (Tr. 55). In response to a question about the emergency room visits, Plaintiff
stated that she took her medication "to escape the anxiety and the depression and the
sadness." (Tr. 57-58).
The ALJ inquired as to why Plaintiff began experiencing her reported mental
health issues in 2012. (Tr. 58). Plaintiff noted that her stress had increased over the past
few years and that she had intermittent mental health medications since 2001. (Id.). In
addition, Plaintiff testified that she was the victim of a sexual assault in March of 2012,
which she characterized as a traumatic event over which she frequently obsesses. (Id.).
Plaintiff testified that she experiences panic attacks "[fjive to six days a week,
almost daily," and that the attacks last two to three hours. (Tr. 59). Plaintiffs medication
for the panic attacks had been taken away from her because of overdosing.
Plaintiff explained that during the attacks her chest beats fast affecting her breathing, and
that she would have to lay down in silence to calm herself. (Id.).
Plaintiff stated that she experienced migraines, on average, three to five times a
Plaintiff testified to taking two different medications for her migraines
approximately three times a week. (Tr. 59-60). The medication reduced, but did not
eliminate, her pain. (Tr. 60). Plaintiff reported an average pain level of seven out of ten,
and that after taking her medication the pain drops to five or six. (Id.). The medication
took a couple hours to kick in. (Id.). Plaintiff began taking medication when she was
fifteen years old, but her migraines increased in severity in 2006. (Id.).
Plaintiff testified that she used a preventative inhaler to control her asthma. (Tr.
The inhaler worked "for the most part," but its effectiveness varied based on
seasonal allergies and humidity. (Id.).
ALJ Withum then asked Plaintiff to describe her activities during a typical day.
(Id.). Plaintiff stated that a successful day would consist of sitting down and watching a
morning program, sometimes flipping through a magazine, or calling one of her few
friends. (Id.). Plaintiff then stated that on most days, five days a week, her day was "one
big cycle of nothingness." (Id.). Plaintiff further testified that she does not cook and
rarely does laundry. (Tr. 61-62). Plaintiff stated she lost about forty pounds in the past
year, yet she is unable to exercise because of a knee injury. (Tr. 62).
The ALJ questioned Plaintiff about her knee. Plaintiff noted that the pain level in
her knee can go up to a ten out of ten, and that it can keep her up at night to the point she
cannot sleep. (Id.). Plaintiff had three arthroscopic surgeries on her knee. (Tr. 62-63).
Plaintiff did physical therapy exercises on her own after the surgeries. (Tr. 63).
The ALJ also asked about Plaintiffs medications. (Tr. 63-64). Plaintiff said that
her medications provided slight improvement in her anxiety, yet she cried frequently and
claimed that "everything makes ... [her] upset," resulting in lack of appetite. (Tr. 64).
Plaintiff also stated that her medications can make her feel nauseous and sleepy. (Id.).
Plaintiff added that her sleep schedule is sporadic, altering based on her levels of
nervousness and anxiety. (Tr. 64-65).
ALJ Withum then questioned Plaintiff about her ability to walk and stand. (Tr.
65). Plaintiff testified that she could walk for ten minutes and stand for twenty minutes.
(Id.). Plaintiff stated her knee pain is too great to stoop or kneel or crouch, and she could
comfortably lift fifteen pounds. (Id.). Plaintiff could sit for hours at a time. (Id.).
Plaintiff was then examined by her attorney.
Plaintiff testified her
grandmother lived with Plaintiff from January 2013 until May 2013.
(Tr. 66). The
grandmother did the dishes and laundry, cooked, and swept. (Id.). Her grandmother was
fully mobile until she caught pneumonia and was later admitted to a nursing home. (Tr.
Vocational Expert's Testimony
VE Leslie also testified at the hearing. (Tr. 67-70). The VE reported Plaintiffs
past work history and the associated skill and exertional levels for each job. (Tr. 67).
Leslie described Plaintiffs past work as: management trainee (light, SVP of 6);
accounting clerk (sedentary, SVP of 5); medical secretary (sedentary, SVP of 6); and a
hospital admitting clerk (sedentary, SVP of 4). (Id.).
The ALJ then posed hypotheticals to the VE.
In the first
hypothetical, the ALJ asked the VE to
assume that the claimant has the residual functioning capacity to perform at
the light exertional level. But no work on ladders, ropes or scaffolds, and
no work at unprotected heights. She is limited to occasional kneeling,
crouching, and crawling. She should avoid concentrated exposure to
environmental irritants and extreme humidity. She should also avoid
concentrated exposure to loud noises. She is limited to simple, routine,
repetitive tasks with occasional interactions with coworkers, supervisors
and the general public.
(Tr. 67-68). The VE stated that the claimant would not be able to perform her past work
either as she actually performed the work or as those occupations are generally performed
in the national economy. (Tr. 68).
The ALJ then asked the VE if there were jobs in the national economy for a person
of the same age, education and work history of the claimant, and assuming the Residual
Functional Capacity ("RFC") already given. (Id.). The VE stated that such an individual
could work as a housekeeper (light, SVP of 2); sorter, agricultural produce (light; SVP of
2); or mail clerk (light, SVP of 2). (Id.).
In a third hypothetical, the ALJ asked the VE whether there would are jobs in the
national economy if the RFC were reduced from the light exertional level to the sedentary
exertional level. (Id.). The VE stated that the following occupations could be performed:
charge account clerk (sedentary, SVP of 2); document preparer (sedentary, SVP of 2);
and call-out operator (sedentary; SVP of 2). (Id.).
In a final hypothetical, the ALJ added a limitation of no interaction with the
general public. (Id.). The VE responded that if the work was done in person all the
occupations were possible, but if the work was done by telephone, only work as a
document preparer was consistent with the hypothetical. (Tr. 69).
The VE also testified that an unskilled worker would be terminated if they were
absent more than once a month, and could not be off task more than ten percent of the
time. (Tr. 69-70).
Summary of the Medical Evidence
Nurse Practitioner Pam King
On August 9, 2012, Psychiatric Nurse Practitioner King began treating Plaintiff
for depression and anxiety after Plaintiff was referred by her primary care physician. (Tr.
23 8). Plaintiff reported her history of illness, current medications, and current anxiety
symptoms. (Id.). These symptoms included difficulty leaving her home, avoidance of
social situations, and panic attacks. (Id.). Plaintiff denied suicidal ideation and noted
irritability. (Id.). After being withdrawn from work in February 2012, Plaintiff could not
get out of bed, was more withdrawn, and lost twenty pounds. (Id.).
Plaintiff appeared pleasant and cooperative during the session, and maintained
good eye contact. (Tr. 239). Her speech was within normal limits, and Plaintiff reported
that she felt anxious.
Plaintiff reported her history of depression, avoidant
behaviors, and feeling "overwhelmed." (Id.). Her thoughts were organized and coherent.
Plaintiff complained of difficulty with focus and concentration when depressed.
(Id.). Plaintiff denied any history of hallucinations, and was oriented to person, place,
and time. (Tr. 239-240). Her short- and long term memory were intact. (Tr. 240). King
diagnosed Plaintiff with major depression recurrent; generalized anxiety disorder; panic
disorder without agoraphobia, and migraine headaches. (Id.).
King next saw Plaintiff on September 20, 2012.
generalized anxiety disorder, major depressive recurrent, and panic disorder without
agoraphobia, and increased Plaintiffs Lexapro medication. (Id.).
On October 9, 2012, Plaintiff called King and stated that she was "having a hard
time" leaving the house and was unable to come into an appointment. (Tr. 236). Plaintiff
said she had been in bed for two weeks, missed school, and had not showered for a week.
King treated Plaintiff the following day. (Tr. 264). King noted that "[Plaintiff]
should probably be disabled due to the fact that she is unable to get out of bed early in
time for school." (Id.). On October 24, 2012, Plaintiff noted no significant improvement
with regards to her mood; she remained depressed and anxious, having panic attacks
when going out of the house. (Tr. 265). Plaintiff was no longer attending school because
she missed too much time. (Id.).
On November 21, 2012, Plaintiff again met with King.
reported some improvement to her mood but continued to be quite depressed. (Id.). She
stated "her mood tends to be up and down." (Id.). King noted that Plaintiff continued to
have difficulty functioning with day-to-day activities. (Id.). King assessed Generalized
Anxiety Disorder; Panic Disorder without Agoraphobia; Major Depression Recurrent;
and Bipolar II Disorder provisional. (Id.).
Plaintiff next met with King on December 12, 2012. (Tr. 267). Plaintiff still had
difficulty getting out of the house, having episodes of staying in bed all day long with no
energy or motivation. (Id.). Plaintiff appeared somewhat tense during the session. (Id.).
Plaintiff's mood continued to be depressed and anxious; she had difficulty performing
activities of daily living, and was not able to work. (Id.). King assessed: Generalized
Anxiety Disorder; Panic Disorder without Agoraphobia; Major Depressive Recurrent.
On March 20, 2013, King and Psychiatrist Kang Yu, M.D. ("Dr. Yu") evaluated
Plaintiff reported increased anxiety and symptoms of
depression, increased stressors at home, and difficulty sleeping. (Tr. 418). Plaintiff had
difficulty leaving her home and had been unable to work a job due to anxiety and mood
lability. (Id.). Plaintiff appeared neatly groomed. (Tr. 419). Her speech was within
normal limits, and she was pleasant and cooperative during the session.
reported being anxious all the time, and having panic attacks three to four times a week.
She denied any suicidal or homicidal ideation.
Plaintiff's focus and
concentration was okay. (Id.). Plaintiff was diagnosed with Bipolar II Disorder; Panic
Disorder with agoraphobia; Generalized Anxiety Disorder, and her medications were
increased. (Tr. 419-20).
King treated Plaintiff again on April 4, 2014. (Tr. 421). Plaintiff reported that
overall she was feeling a little better, yet continued to struggle with anxiety. (Id.). On
May 14, 2014, King completed a Mental Impairment Questionnaire assessing Plaintiff.
King diagnosed Bipolar II disorder; GAD; Panic Disorder with
agoraphobia; and migraines. (Tr. 446). King assessed Plaintiff's functional limitations
and found: marked restriction of activities of daily living; extreme difficulties in
maintaining social functioning; marked deficiencies in concentration, persistence or pace;
and four or more repeated episodes of decompensation within a twelve month period,
each of at least two weeks duration. (Tr. 447). King further assessed a "[m]edically
documented history of a chronic organic mental, schizophrenic, etc. or affective disorder
of at least 2 years' duration that has caused more than a minimal limitation of ability to
do any basic work activity, with symptoms or signs currently attenuated by medication or
psychosocial support," and: (1) "[t]hree episodes of decompensation within 12 months,
each at least two months long;" and (2) "[a] residual disease process that has resulted in
such marginal adjustment that even a minimal increase in mental demands or change in
the environment would be predicted to cause the individual to decompensate." (Tr. 448).
King anticipated that Plaintiff would likely be absent from work more than four days per
month on average due to her impairments or treatment. (Id.). King noted that Plaintiff's
impairment could be expected to last at least twelve months, and that Plaintiff was not a
King also indicated that Plaintiff would have difficulty working a
regular job on a sustained basis due to weeks of isolation resulting from her anxiety and
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Neurologist William J. Kingston
On January 19, 2012, neurologist Dr. William J. Kingston ("Dr. Kingston") treated
Plaintiff for headaches. (Tr. 230). Plaintiffs headaches occurred daily, and about three
days per week her headaches worsened to an eight out of ten in severity. (Id.). Plaintiff
noted moderate to high stress and mild depression. (Id.). Upon physical examination,
Plaintiff did not appear to be in any significant discomfort. (Id.). Dr. Kingston assessed
headache, migraine with aura, stress, and that she may have mixed headache syndrome.
(Tr. 230-31 ).
On April 16, 2012, Dr. Kingston saw Plaintiff and noted that she had been taken
out of work. (Tr. 228). Her headaches, stress and depression had improved, yet she had
continued stress and depression. (Id.). On physical examination, Plaintiff was obese and
in no apparent discomfort. (Id.). Dr. Kingston assessed headaches, migraine with aura;
stress; headaches, tension type; and depression. (Tr. 228-29). Dr. Kingston noted that
Plaintiffs headaches had improved, and that "[h]opefully she can find another job that is
less stressful." (Tr. 229).
On August 22, 2012, Dr. Kingston again treated Plaintiff. (Tr. 226-27). Plaintiff
reported headaches as often as three to four times a week, sometimes reaching an eight
out of ten in severity. (Tr. 226). Plaintiff noted moderate stress and some depression, but
that the depression seemed mild. (Id.). Dr. Kingston reported that Plaintiff probably has
mixed headache syndrome and some migraine headaches. (Tr. 226-27).
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On December 12, 2012, Dr. Kingston treated Plaintiff for reoccurring headaches
with a severity of six to seven out of ten. (Tr. 277). Plaintiff noted moderate stress and
On March 13, 2013, Dr. Kingston once again saw Plaintiff. (Tr. 274). Plaintiff
continued to have headaches, and also complained of wrist and neck pain. (Id.). She
noted moderate depression and severe stress. (Id.). Plaintiff had also begun living with
her grandmother. (Id.).
Dr. Kingston next treated Plaintiff on August 20, 2013. (Tr. 227-73). Plaintiff
stated that she continued to get headaches about four days per week, lasting about four
hours, and rated at a seven out of ten in severity. (Tr. 272). Plaintiff also noted a high
level of stress and depression, but denied suicidal ideation. (Id.). Dr. Kingston reported
that Plaintiff "again has a mixed headache syndrome," continuing to get frequent
headaches. (Tr. 273).
Hospital Admissions; Intentional Overdoses
The record includes evidence of Plaintiffs hospital admissions and intentional
overdoses. On March 12, 2014, Plaintiff was treated in the emergency room for suicidal
(See Tr. 294-312).
Plaintiff took approximately eighty "butalbital/
acetaminophen/caffeine tablets" because she "wanted it all to go away."
Plaintiff reported that she took the medication and fell asleep on the couch. (Id.).
From March 13, 2014, until March 17, 2014, Plaintiff was admitted to the
psychiatric unit at Clifton Springs Hospital because of her intentional overdose. (See Tr.
3 81-92). Plaintiff had been isolating herself for six months, reporting that she would stay
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at home for weeks at a time and not go out unless absolutely necessary.
Plaintiff claimed to have "crowd anxiety" and cried during the evaluation.
Plaintiff was diagnosed with Depressive disorder NOS; morbid obesity; constant
migraines (five per week); and rule out Borderline Personality Disorder. (Tr. 382).
On April 8, 2014, Plaintiff was evaluated in the emergency room following an
alleged medical overdose. (See Tr. 313-23, 439-44). Plaintiff claimed to have ingested
fifty to seventy Fiorocet pills over a course of five hours. (Tr. 317). Plaintiff denied any
desire to hurt herself. (Id.). Upon departure, Ramiro Ramos, M.D., noted that it was
"[ u ]nclear if . . . [Plaintiff] actually took any medication or is just stating this to get
attention. She adamantly denies suicidal ideation or attempt, but can not give a good
reason why she took that much Fiorocet." (Tr. 323). Dr. Ramos discharged Plaintiff
because, "[a]though she shows poor judgement[,] she does not require psychiatric or
further medical evaluation." (Id.).
On April 10, 2014, Plaintiff was again treated in the hospital following a medical
overdose. (Tr. 324-48). Plaintiff's friend called EMS when she found Plaintiff on the
floor heavily sedated. (Tr. 336). Plaintiff was groggy, but was not experiencing any pain
or discomfort. (Id.).
On April 11, 2014, Plaintiff presented at Geneva Hospital complaining of lethargy
(Tr. 352-64). Plaintiff's family was concerned about her overdosing on
medication. (Tr. 355). Later that day, Plaintiff was treated at Clifton Springs Hospital.
Plaintiff reported falling off her bed because she took too much
medication, and complained of feeling "groggy." (Tr. 368). Plaintiff's friend assisted
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Plaintiff off the floor after she defecated and was unable to get up on her own. (Tr. 371).
Plaintiffs friend shared that Plaintiff tends to fabricate stories often and will do things to
get attention. (Id.). On mental status examination, Plaintiffs speech was slurred, slow,
and mumbled. (Tr. 373). Intelligence was average, insight was poor, and judgement was
impulsive and impaired with increased emotion. (Tr. 374).
On June 2, 2014, Plaintiff was treated in the emergency room following an
overdose of medications. (See Tr. 457-69). Plaintiff stated that she ingested over ninety
Knolopin and ten Xanax pills because she wanted to feel better. (Tr. 457). Plaintiff was
lethargic, but had no motor/sensory deficits upon physical examination. (Tr. 458). One
doctor stated, "[i]t seems unlikely that the patient took high amounts of Klonopin and
Xanax, but instead I am suspecting a cry for help as opposed to an actual suicide
attempt." (Tr. 467).
Doctor Joseph Lorenzetti
On February 22, 2012, Joseph Lorenzetti, M.D. ("Dr. Lorenzetti") treated Plaintiff
for anxiety and depression. (Tr. 437). Plaintiff complained of feeling depressed and
anxious. (Id.). Dr. Lorenzetti noted suicidal thoughts and a lack of sleep, and altered
Plaintiffs medications. (Id.). Plaintiff next met with Dr. Lorenzetti on March 2, 2012.
(Tr. 436). Plaintiff was "still very anxious," depressed, and had spent more than twentyfour hours in bed. (Id.). Additional medication was prescribed. (Id.). On March 14,
2012, Plaintiff was feeling a little better, however she was still very anxious. (Tr. 435).
Dr. Lorenzetti noted that Plaintiff exhibited depression and suicidal thoughts.
Plaintiffs medication was increased. (Id.). On April 11, 2012, Plaintiff reported that her
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medication was helping, but that she was still very anxious. (Tr. 434 ). Plaintiff was
stressed out because of her co-workers and perceived work as a hostile environment.
(Id.). Dr. Lorenzetti took Plaintiff out of work until she could be further evaluated. (Id.).
Psychiatric Social Worker Steven Kane
On February 28, 2013, Plaintiff began treatment with Steven Kane ("Kane"), a
Licensed Clinical Social Worker at Seneca County Community Counseling Center. (Tr.
416-417). Plaintiff reported anxiety in the form of panic attacks 3-4 times per week, fear
of crowds, nausea and vomiting. (Tr. 416). Plaintiff reported isolating herself and being
"anxious all the time." (Id.). Additionally, she reported depressed mood, hypersomnia,
and occasional suicidal thoughts. (Id.). Plaintiff appeared neatly groomed, somewhat
obese, pleasant and cooperative.
Speech was normal in rate, tone and
inflection, and her thoughts were organized and coherent, and no perceptual disturbance
Plaintiff denied suicidal ideation, plan or intent.
preliminary diagnoses were Panic Disorder with agoraphobia; Generalized Anxiety
Disorder; Depressive Disorder; RIO Bipolar II Disorder; and RIO PTSD. (Id.).
State Agency Opinions
Psychologist Christine Ransom
Psychologist Christine Ransom, Ph.D., ("Dr. Ransom") a State agency consultant,
performed an adult psychiatric evaluation on Plaintiff on December 19, 2012. (See Tr.
Dr. Ransom noted Plaintiffs background information, psychiatric history,
current medications, and current functioning. (Tr. 259-260).
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Plaintiff was cooperative and socially appropriate. (Tr. 260). Her dress was neat,
casual and appropriate with adequate hygiene and grooming. (Id). Plaintiffs thought
processes were coherent and goal-directed with no evidence of hallucinations, delusions
or paranoia in the evaluation setting.
She expressed moderately to markedly
dysphoric and tense affect during the evaluation. (Id.). Dr. Ransom noted that Plaintiff's
attention and concentration were moderately impaired. (Id.). She could count backwards
from ten, and do two out of three simple calculations. (Id.). She had difficulty with
serial threes. (Id.). Plaintiff's attention and concentration appeared to be impaired by
depression and anxiety. (Id.). Her intellectual functioning appeared to be average. (Id.).
Dr. Ransom assessed that:
This individual will have moderate difficulty following and understanding
simple directions and instructions, performing simple tasks independently,
maintaining attention and concentration for simple tasks, maintaining a
simple regular schedule and learning simple new tasks. She would have
moderate to marked difficulty performing complex tasks, relating
adequately with others and appropriately dealing with stress. Areas of
difficulty are secondary to major depressive disorder, currently moderate to
marked; generalized anxiety disorder, currently moderate to marked; panic
disorder with agoraphobia, currently moderate.
The results of the
evaluation are consistent with the claimant's allegations.
Dr. Ransom recommended that Plaintiff continue current intensive
psychiatric treatment. (Tr. 262).
Doctor of Osteopathic Medicine Donna Miller
On December 19, 2012, State agency consultant Donna Miller, D.O., ("Dr.
Miller") completed an internal medicine examination of Plaintiff. (Tr. 254-5 8). Plaintiff
reported her medical problems, including that she was diagnosed with asthma in 1999
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which is triggered by humidity, and that she has a history of migraine headaches
triggered by stress.
Dr. Miller noted Plaintiff's medical history, current
medications, and activities of daily living. (Tr. 254-55).
Dr. Miller's full medical examination diagnosed the following: Migraine
headaches; Asthma; Obesity, status post gastric bypass surgery; and remote history of
pulmonary embolism. (Tr. 257). Dr. Miller also stated that Plaintiff "should avoid any
dust, irritants, or tobacco exposure which may exacerbate her asthma." (Id.).
The Commissioner's Decision Regarding Disability
Determining Disability Under the Social Security Act
For both Social Security Insurance and Disability Insurance Benefits, the Social
Security Act provides that a claimant will be deemed disabled "if he is unable to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which ... has lasted or can be expected to last for a continuous period
of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A); see Rembert v. Colvin, No.
13-CV-638A, 2014 WL 950141, at *6 (W.D.N.Y. Mar. 11, 2014).
impairment is defined as "an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostics techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The burden
is on the claimant to demonstrate that he is disabled within the meaning of the Act. See
Draegert v. Barnhart, 311 F .3d 468, 4 72 (2d Cir. 2002). The individual will only be
declared disabled if his impairment is of such severity that he is unable to do his previous
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work and cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful activity. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the ALJ follows a five-step sequential
analysis. If the ALJ makes a determination of disability at any step, the evaluation will
not continue to the next step. 20 C.F.R. § 416.920(a)(4). The five steps are as follows:
The Commissioner considers whether the claimant is currently
engaged in substantial gainful activity.
If not, the Commissioner considers whether the claimant has a
"severe impairment" which limits his or her mental or physical ability to do
basic work activities.
If the claimant has a "severe impairment," the Commissioner must
ask whether, based solely on medical evidence, the claimant has an
impairment listed in Appendix 1 of the regulations. If the claimant has one
of these enumerated impairments, the Commissioner will automatically
consider him disabled, without considering vocational factors such as age,
education, and work experience.
If the impairment is not "listed" in the regulations, the
Commissioner then asks whether, despite the claimant's severe impairment,
he or she has residual functional capacity to perform his or her past work.
If the claimant is unable to perform his or her past work, the
Commissioner then determines whether there is other work which the
claimant could perform. The Commissioner bears the burden of proof on
this last step, while the claimant has the burden on the first four steps.
Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000); see 20 C.F.R. §§ 404.1520, 416.920.
Summary of the ALJ's Decision
In applying the five-step sequential evaluation in this matter, ALJ Withum made
the following determinations. First, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through February 21, 2012. (Tr. 26). At step one
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of the evaluation, the ALJ found that Plaintiff had "not engaged in substantial gainful
activity since February 21, 2012, the alleged onset date." (Id.).
At step two, the ALJ found that Plaintiff suffered from severe impairments,
including: migraine headaches, asthma, obesity, pulmonary embolism, major depression,
generalized anxiety, and panic disorder. (Id.).
At step three, the ALJ found that none of the Plaintiff's severe impairments, alone
or in combination, qualified as an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 26-27).
In making the step three evaluation, the ALJ first considered whether the
"paragraph B" criteria was satisfied, determining whether Plaintiff's mental impairments
result in two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence or pace; or repeated episodes of decompensation, each of
extended duration. (Tr. 27). In finding paragraph B criteria restrictions, ALJ Withum
gave "great weight" to Dr. Ransom's opinion. (Id.). ALJ Withum noted the consultative
examiner's opinion was "supported by the internal mental status examination and [was]
consistent with the subsequent outpatient records in the file, namely, treatment with
psychotropic medications and psychotherapy with a few signs of psychiatric illness .... "
(Id.). The ALJ found that the Plaintiff had mild restriction in activities of daily living.
(Id.). The ALJ found that the Plaintiff had moderate difficulties in social functioning.
(Id.). With regard to concentration, persistence, or pace, the ALJ found that the Plaintiff
had moderate difficulties. (Id.). The ALJ found that the claimant has experienced no
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episodes of decompensation which have been of extended duration. (Id.). Because the
claimant's mental impairments did not cause at least two "marked" limitations or one
"marked" limitation and "repeated" episodes of decompensation, each of extended
duration, the ALJ found that the "paragraph B" criteria was not satisfied. (Id.). ALJ
Withum also found that the evidence failed to establish the presence of the "paragraph C"
Because Plaintiffs severe impairments failed to meet the standards of a listing
under Appendix 1, ALJ Withum assessed Plaintiffs RFC in step four of the sequential
analysis. (Tr. 28-31 ). The ALJ found that Plaintiff:
[H]as the residual functional capacity to perform light work ... except
never climb ladders, ropes, or scaffolds; occasionally crouch, kneel, and
crawl; avoid concentrated exposure to humidity and excessive noise; avoid
concentrated exposure to environmental irritants, such as fumes, odors,
dusts and gases; avoid all unprotected heights; work is limited to simple,
routine, repetitive tasks; no interaction with the public; occasional
interaction with supervisors and coworkers.
(Tr. 28). In making her RFC determination, the ALJ followed a two-step process. (Id.).
First, the ALJ "determined whether there is an underlying medically determinable
physical or mental impairment . . . that could reasonably be expected to produce the
claimant's pain or other symptoms." (Id.).
Then, the ALJ evaluated the "intensity,
persistence, and limiting effects of [Plaintiffs] symptoms to determine the extent to
which they limit [Plaintiffs] functioning," and made findings of credibility "whenever
statements about the intensity, persistence, or functionally limiting effects of pain or other
symptoms [were] not sustained by objective medical evidence .... " (Id.).
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At step one, ALJ Withum found that Plaintiffs medically determinable
impairments could reasonably be expected to cause the alleged symptoms.
However, at step two, she found that the statements concerning the intensity, persistence,
and limiting effects of these symptoms were not entirely credible. (Id.).
ALJ Withum first noted that Plaintiff worked consistently to the alleged onset
date, before leaving her job and attempting cosmetology school. (Id.). Plaintiff sought
disability for problems that had been treated mostly by King, a nurse practitioner, "who
managed her medications and was not competent to assess psychiatric signs of illnesssimply recording subjective complaints as reported and diagnosing and prescribing
medications without diagnostic criteria evaluated through clinical testing." (Id.). The
ALJ stated that "[ f]or those reasons and the lack of support in outpatient records, for
mental and physical impairments, no listings are met and less than sedentary is not
ALJ Withum did not find that the medical evidence supported listing 12.04
"because the file does not contain medical signs of psychiatric illness to support the
severity requirements in the listing." (Id.). The ALJ stated that factors of Plaintiffs
testimony created "more [of a] situational picture than structural, in terms of mental
illness." (Id.). The ALJ noted that despite having an inpatient stay for five days, a few
nights of observation in the emergency room, and other stressors on the record, Plaintiff
admitted that she was scheduled to meet with a therapist. (Id.). And, from the onset date
of disability, Plaintiff did not routinely see a specialist, instead checking in with King
once every three weeks. (Id.).
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ALJ Withum gave little weight to King's "checkbox" evaluation because (1) King
only managed Plaintiffs medications; (2) the statement was inconsistent with the state
agency evaluator's opinion; and (3) the outpatient records did not support the limitations
King listed. (Id.). The ALJ stated that the evaluation that identifies "patient's signs and
symptoms" is unaccompanied by a mental status examination identifying King's
The ALJ indicated that King narrated subjective complaints and medical history,
but did not evaluate Plaintiff using clinical testing except for four occasions in late 2012,
and "even then her descriptions were conclusory based on complaints, noting only affect
and mood." (Tr. 30). The ALJ found no corroboration of evidence of "the 'weeks of
isolation,' not getting out of bed, and staying inside the house." (Tr. 30 n.6). Unlike
King's reports, Dr. Ransom's report evaluated Plaintiff using clinical tests.
Although Dr. Ransom noted limitations and signs of depressive disorder, the ALJ
discounted her evaluation because it "was a one-time interview, and the totality of the
record d[id] not suggest that those signs represent overall functioning." (Id.).
ALJ Withum noted other credibility issues in the record. (Tr. 30 n.6). When she
was admitted to the emergency room in March 2014, Plaintiff reported taking eighty
butalbital pills, yet urinalysis and blood work did not conform to this amount of
medication. (Id.; see, e.g., Tr. 368). The ALJ stated "[ c]uriously, the timing of this
emergency visit correlates with her Notice of Hearing, dated April 29, 2014." (Tr. 30
n.6). Moreover, the medical record stated it was "[u]nclear if [Plaintiff] actually took any
medication or just stat[ed] this to get attention." (Id.; see, e.g., Tr. 323).
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In terms of asthma and obesity, ALJ Withum gave great weight to internal
medicine examiner Dr. Donna Miller, who concluded "[Plaintiff] should avoid any dust,
irritants, or tobacco exposure which may exacerbate her asthma." (Tr. 30).
The ALJ noted that Plaintiff continued home exercises for her knee after
unsuccessful physical therapy, reporting "significant improvement in her knee." (Id; see,
e.g., Tr. 401).
With respect to migraines, ALJ Withum stated that Plaintiff "had no neurological
defects and uses Zonegran." (Tr. 30). Additionally, the ALJ found that the medical
record did "not prove [Plaintiffs] allegations of frequency and intensity of her
headaches .... " (Id.).
ALJ Withum's summarized Plaintiffs RFC:
[C]onsidering the knee meniscus tear, asthma, and migraines, light work is
supported with never climb ladders, ropes, or scaffolds; occasionally
crouch, kneel, and crawl; avoid all unprotected heights. To account for the
internal medicine examiner opinion and sustained treatment for asthma and
moderate obstruction on testing, she should avoid concentrated exposure to
humidity and excessive noise; avoid concentrated exposure to
environmental irritants, such as fumes, odors, dusts and gases; avoid all
unprotected heights. Considering her sustained treatment for mental health
with her nurse, taking medications and starting therapy, with some
deference to subjective complaints regarding social functioning, and giving
great weight to the psychiatric consultative examiner, work is limited to
simple, routine, repetitive tasks; no interaction with the public; occasional
interaction with supervisors and coworkers.
(Tr. 30-31 ).
At step four, ALJ Withum determined that Plaintiff was unable to perform any
past relevant work based on Plaintiffs RFC. (Tr. 31).
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At step five, ALJ Withum concluded there are jobs that exist m significant
numbers in the national economy that Plaintiff can perform. (Tr. 31-32). Plaintiff could
perform requirements of occupations at the light exertional level, such as cleaner hospital,
produce sorter, and mail clerk.
Additionally, Plaintiff could perform
requirements of occupations at the sedentary level, such as charge account clerk,
document preparer, and call operator.
The ALJ concluded Plaintiff was not
disabled. (Tr. 33).
Plaintiff argues that the ALJ erred, requiring remand. First, Plaintiff argues that
the ALJ's RFC finding is unsupported by substantial evidence and is inconsistent with
the legal standards. (Dkt. 9 at 13). Specifically, Plaintiff asserts that the ALJ improperly
rejected King's opinion, improperly incorporated Dr. Ransom's and Dr. Miller's opinion,
and failed to accommodate for Plaintiffs headache limitations. (Id. at 13-26). Second,
Plaintiff claims the ALJ' s decision failed to use the appropriate legal standard in
assessing Plaintiffs credibility. (Id. at 26-30).
Standard of Review
This Court has jurisdiction to review the final decision of the Commissioner under
42 U.S.C. §§ 405(g) and 1383(c)(3). "In reviewing a decision of the Commissioner, a
court may 'enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing."' Rehr v. Barnhart, 431 F. Supp. 2d 312,
317 (E.D.N.Y. 2006) (quoting 42 U.S.C. § 405(g)). The Social Security Act directs the
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Court to accept findings of fact made by the Commissioner, so long as the findings are
supported by substantial evidence in the record.
42 U.S.C. § 405(g).
evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Richardson v. Pear/es, 402 U.S.
389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
"Where there is a reasonable basis for doubt whether the ALJ applied correct legal
principles, application of the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be deprived of the right to have
her disability determination made according to the correct legal principles." Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
The scope of the Court's review 1s limited to determining whether the
Commissioner applied the appropriate legal standards in evaluating Plaintiffs claim, and
whether the Commissioner's findings were supported by substantial evidence on the
record. See Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (stating that a
reviewing Court does not examine a benefits case de nova). If the Court finds no legal
error, and that there is substantial evidence for the Commissioner's determination, the
decision must be upheld, even if there is also substantial evidence for the plaintiffs
position. See Perez v. Chafer, 77 F.3d 41, 46 (2d Cir. 1996).
Judgment on the pleadings may be granted under Rule 12(c) where the "material
facts are undisputed and where a judgment on the merits is possible merely by
considering the contents of the pleadings." See Sellers v. MC. Floor Crafters, Inc., 842
F.2d 639, 642 (2d Cir. 1988).
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The ALJ's RFC Determination Regarding Stress and Migraine
Limitations is Not Supported by Substantial Evidence
An ALJ is required to consider every medical opinion received by the Social
Security Administration, and to review all available evidence. 20 C.F.R. § 404.15278(c);
Whipple v. Astrue, 479 F. App'x 367, 370 (2d Cir. 2012). An ALJ must weigh certain
factors in evaluating both treating and non-treating source statements, including the
nature, length, and extent of the treating or examining relationship, as well as whether the
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