Davis v. Berryhill
Filing
17
DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/27/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEELEY ANNE DAVIS,
Plaintiff,
No. 6:17-cv-06168(MAT)
DECISION AND ORDER
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Keeley
Anne
Davis
(“Plaintiff”),
represented
by
counsel,
brings 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 (“Defendant” or “the
Commissioner”), denying her applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). The
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c).
II.
Procedural Status
On July 12, 2013, Plaintiff protectively for DIB and SSI,
alleging
disability
due
to
various
mental
impairments.
Her
applications were denied, and she requested a hearing. On April 14,
2015, Plaintiff appeared with her attorney before Administrative
Law Judge John P. Costello (“the ALJ”) for a hearing in Rochester,
New York. Plaintiff testified, as did impartial vocational expert
Carol McManus (“the VE”).
On August 17, 2015, the ALJ issued an unfavorable decision.
(T.17-32).1 Applying the five-step sequential evaluation, the ALJ
determined that Plaintiff meets the insured status requirement of
the
Act
through
December
31,
2015,
and
had
not
engaged
in
substantial gainful activity since January 15, 2012. At step two,
the ALJ found that Plaintiff had the following severe impairments:
depressive
disorder
disorder
(“PTSD”),
headaches,
alcohol
anxiety
disorder,
borderline
post-traumatic
personality
dependence,
cocaine
stress
disorder,
dependence,
tension
cannabis
dependence, and opioid dependence. (T.22). At step three, the ALJ
further found
that
Plaintiff’s
mental
impairments, considered
singly or in combination, did not meet or medically equal the
criteria
of
Listings
(anxiety-related
§§
12.04
disorders),
and
(affective
12.09
disorders),
(substance
12.06
addiction
disorder), as set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 12.04, 12.06, and 12.09. The ALJ performed the special technique
applicable to psychiatric impairments and determined that Plaintiff
had mild limitations in activities of daily living; moderate
limitations
in
social
functioning;
maintaining
concentration,
moderate
persistence,
or
limitations
pace;
and
in
had
experienced no episodes of decompensation of extended duration.
(T.23-24). Prior to proceeding to step four, the ALJ determined
1
Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.
-2-
that Plaintiff had the RFC to perform work at all exertional levels
but was limited to simple, routine tasks and should work primarily
alone, with only occasional supervision. (T.24). At step four, the
ALJ concluded that Plaintiff had no past relevant work. At step
five, the ALJ relied on the VE’s testimony that a person of
Plaintiff’s age (25 years-old on the alleged onset date), and with
her education (high school diploma), RFC, and work history, could
perform the representative occupations of hospital cleaner (DOT
#323.687-010, unskilled, medium), and mail clerk (DOT #209.687-026,
unskilled, light), with 917,470 and 99,140 positions, respectively,
available nationwide. Accordingly, the ALJ found that Plaintiff had
not been under a disability as defined in the Act.
On January 31, 2017, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner. Plaintiff timely brought this action.
III. Scope of Review
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.
Commissioner’s
findings
“as
to
42 U.S.C. § 405(g) (stating the
any
fact,
if
supported
by
substantial evidence, shall be conclusive”). “Substantial evidence
means ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Shaw v. Chater, 221 F.3d 126,
-3-
131
(2d
Cir.
2000)
(quotation
omitted).
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) (citation omitted).
IV.
Discussion
A.
Erroneous Weighing of Opinions from Treatment Providers
(Plaintiff’s Point I)
Plaintiff argues that the ALJ erred in giving the opinion of
psychiatrist Dr. Catherina Litkei and Therapist Lorraine Eyth only
“some
weight.”
(See
Pl’s
Br.
at
10,
14-15).
Dr.
Litkei
and
Therapist Eyth were part of the Wayne Behavioral Health Network
(“WBHN”), where Plaintiff received some of her treatment.
There is one treatment note in the record for Therapist Eyth.
On March 24, 2015, Plaintiff had a counseling appointment with her.
(T.512,
535).
Plaintiff
was
awaiting
a
background
check
for
Section 8 housing. (T.512, 535). She had custody of her children on
weekends and all summer, and mentioned that she had some trouble
with consistent discipline and implementing boundaries. (Id.).
Therapist Eyth stated that Plaintiff attended group therapy despite
experiencing anxiety and panic in group settings. (Id.).
There is likewise one treatment note from Dr. Litkei, who saw
Plaintiff two dates later for medication management. (T.514-15,
-4-
536-37). Dr. Litkei reported that Plaintiff had self-adjusted her
medication, so she reinstituted Plaintiff’s medication regimen.
(T.514, 536). Dr. Litkei observed that Plaintiff “attempts to put
on
a
good
face
but
easily
gets
clearly
traumatized
by
past
memories.” (T.536). On examination, Dr. Litkei described Plaintiff
as pleasant, alert, oriented, and cooperative; she was very aware
of herself; she demonstrated no tangentiality or thoughts of selfharm or harming others; her thinking was logical; and she had good
memory, insight, and judgment. (T.515, 536). Dr. Litkei noted that
time constraints did not allow a full profile of Plaintiff’s past
history.
On April 15, 2015, Dr. Litkei and Therapist Eyth co-authored
an opinion rating Plaintiff as having moderate limitations in all
areas of mental functioning, which would become marked limitations
if Plaintiff became anxious. (T.518-20). They also noted that
Plaintiff
suffered
from
confusion,
difficulty
concentrating,
short-term memory loss, emotional lability, and headaches, and
would miss more than four days of work per month due to her
impairments. They also recommended restricting her to working
1-2 hours per day, 3 days per week, because Plaintiff had not been
able to remain at a job for more than a month or two at a time.2
2
There is no indication that Plaintiff’s inability to maintain employment
was related to symptomatology from her mental impairments. On May 21, 2014, in
an intake interview at Finger Lakes Addictions Counseling & Referral Agency,
Plaintiff informed Toni M. Tiballi, RN that she left her last job in March 2012,
due to a probation violation. She left the job before that in January 2012, due
to not passing a background check. (T.459).
-5-
The ALJ declined to give more than “some weight” to this opinion,
and rejected their estimate of Plaintiff’s absenteeism as “purely
speculative.” (T.28).
A
treating
source
is
the
claimant’s
“own
physician,
psychologist, or other acceptable medical source who provides [a
claimant] with medical treatment or evaluation and who has, or has
had,
an
ongoing
treatment
relationship
with
[the
claimant].”
20 C.F.R. §§ 404.1502, 416.902. The Second Circuit has reiterated
that “[w]hether the ‘treating physician’ rule is appropriately
applied depends on ‘the nature of the ongoing physician-treatment
relationship.’” Arnone v. Bowen, 882 F.2d 34, 41 (2d Cir. 1989)
(quotation omitted).
Plaintiff agrees that Dr. Litkei and Therapist Eyth3 had only
seen Plaintiff for one appointment as of the date of their opinion.
(See Pl’s Br. at 10). Thus, neither Dr. Litkei nor Therapist Eyth
had
a
longitudinal
view
of
Plaintiff’s
treatment
when
they
co-authored their opinion. The Court finds that the lack of an
ongoing, continuous treatment relationship weighs against applying
the treating physician rule of deference to Dr. Litkei’s opinion.
See Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011)
(unpublished opn.) (finding that when a physician has only examined
3
The Court recognizes that Therapist Eyth is not an acceptable medical
source; as such, opinion from her, standing alone, would not be a “medical
opinion” entitled to controlling weight even when it concerns an impairment
within the realm of her expertise. See Diaz v. Shalala, 59 F.3d 307, 314 & n.8
(2d Cir. 1995).
-6-
a claimant once or twice, “his or her medical opinion is not
entitled to the extra weight of that of a treating physician”);
Comins v. Astrue, 374 F. App’x 147, 149 (2d Cir. 2010) (unpublished
opn.) (treating physician who saw claimant once did not have
ongoing relationship based). The Court finds that the ALJ did not
err
in
declining
to
apply
the
treating
physician
rule
to
Dr. Litkei.
Nevertheless,
even
assuming
that
the
joint
opinion
from
Dr. Litkei and Therapist Eyth should have been analyzed in light of
the treating physician rule, the Court still concludes that the
ALJ’s decision as to the weight it should be accorded is based on
substantial evidence. The factors that must be considered when an
opinion from a treating “acceptable medical source” is not given
controlling weight include: “(i) the frequency of examination and
the length, nature, and extent of the treatment relationship;
(ii) the evidence in support of the opinion; (iii) the opinion’s
consistency with the record as a whole; and (iv) whether the
opinion is from a specialist.” Clark v. Comm’r of Social Sec., 143
F.3d 115, 118 (2d Cir. 1998). Here, as the ALJ noted, the treatment
records from prior to and around the time of Dr. Litkei and
Therapist
Eyth’s
opinion
in
April
2015,
were
sparse
due
to
Plaintiff’s lack of attendance, and were not reflective of the
level of impairment to which those providers opined. (T.28). For
instance, on June 23, 2014, therapist Kelly Smith-Mirisoloff at
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WBHN met with Plaintiff off-site and noted she “was very sporadic
with attendance.” (T.439). On that date, Plaintiff said “everything
was ‘pretty good.’” The next day, Plaintiff was a “no show, no
call” for her appointment. On July 10, 2014, Nurse Practitioner
Janine Quinlan saw Plaintiff for medication management; her affect
was reactive but her mood was “good,” her thought process was
coherent with no cognitive abnormalities, and her insight and
judgment were adequate. (T.439).
Plaintiff reported “no manic, no
panic,” and “[n]o obsessional thinking.” (Id.). On July 22, 2014,
Therapist
Smith-Mirisoloff
noted
that
Plaintiff’s
mood
was
“pleasant in session” with a congruent affect; her thought process
was focused; some memory issues were noted but concentration was
intact; and she did not report any panic attacks or anxiety related
symptoms. On January 28, 2015, Therapist Smith-Mirisoloff observed
that Plaintiff had not reported for therapy “for weeks.” (T.506).
While her mental status examination showed some stressors affecting
her mood, her thought process was focused, she had no concentration
issues, and she was interactive, cooperative, and calm. (T.506). A
functional assessment on February 7, 2015, from Lakeview Mental
Health Services showed Plaintiff was “completely self-sufficient”
in most activities of daily living and health care management.
(T.488-89). The assessment indicated “minimal” (i.e., monthly)
reinforcement
household
was
needed
for
responsibilities,
responding
expressing
-8-
to
mail,
needs
completing
and
wants
appropriately, and utilizing interpersonal skills; and “moderate”
(i.e., weekly or bimonthly) reinforcement in regard to money
management, utilizing community support and leisure recreational
services, and resolving interpersonal conflicts.
Looking at the treatment records as a whole, the Court cannot
find
it
was
unreasonable
for
the
ALJ
to
“question
whether
[Dr. Litkei’s and Therapist Eyth’s] findings are truly reflective”
of Plaintiff’s “mental state, or whether they are exaggerated.”
(T.28). Given Plaintiff’s lack of frequency of treatment, and the
generally unremarkable treatment notes, the ALJ did not error in
his weighing of their opinion. See, e.g., Cichocki v. Astrue, 534
F. App’x 71, 75 (2d Cir. 2013) (unpublished opn.) (“Because [the
treating source]’s medical source statement conflicted with his own
treatment notes, the ALJ was not required to afford his opinion
controlling weight.”); Dieguez v. Berryhill, No. 15CIV2282ERPED,
2017 WL 3493255, at *5 (S.D.N.Y. Aug. 15, 2017) (finding that “it
was
reasonable
physician]’s
for
the
otherwise
ALJ
to
conclude
unremarkable
that
[the
treatment
treating
notes
were
incompatible with the significant limitations she subsequently
reported in her opinion” and ALJ did not err in declining to afford
it controlling weight).
As
Plaintiff
points
out,
Dr.
Litkei
and
Therapist
Eyth
continued to see her after they provided their opinion in April
2015. (See Pl.’s Br. at 11-12). These subsequent treatment records
-9-
were not provided to the ALJ but were first submitted in connection
with Plaintiff’s request for review by the Appeals Council. (T.5-6,
10, 522-63). Evidence submitted to the Appeals Council becomes part
of the administrative record. Perez v. Chater, 77 F.3d 41, 45
(2d Cir. 1996). As discussed further below, the subsequent records
do not bolster the April 2015 opinion so as to compel a finding
that the ALJ erred in declining to afford it greater weight.
The Court acknowledges that Plaintiff had a stretch of time
where her symptoms worsened. At the end of April 2015, Dr. Litkei
reported
a
possible
drug
interaction
with
Plaintiff’s
ADHD
medication. (T.538). Plaintiff became upset because she felt she
was doing well on the medication and had already applied “to return
to school” (Id.). One week later, Therapist Eyth recorded that
Plaintiff had an angry, anxious, and dysthymic mood; she was still
upset about not being able to take her ADHD medication while taking
Suboxone. (T.539). She had fair memory, fair/good attention and
concentration, fair insight and judgment, fair impulse control, and
was
open,
interactive,
cooperative,
and
calm
during
the
appointment. (T.539). Although Plaintiff reported a few panic
attacks
daily
and
mildly
manic
episodes,
she
was
attending
substance abuse counseling and a therapy group, and was looking
forward to returning to school. (T.539).
Plaintiff missed several appointments with various providers at
WHBN through June 2015, and ran out of her medication. (T.554). On
-10-
May 21, 2015, at a medication management appointment, Dr. Litkei
noted that Plaintiff was “very agitated, chaotic,” although she
“tried to be cooperative;” she had a “great deal of difficulty
staying focused and not working herself up.” (T.552). Plaintiff
appeared very anxious; her mood was nervous and her affect was
labile. (Id.). However, on May 28, 2015, Kimberly Robinson called
to check on her; Plaintiff reported that was “doing well” and her
only complaints were related to her housing situation. (T.553).
Plaintiff was a “no show” to appointments with Therapist Eyth and
Dr. Litkei on June 2, 4, and 9, 2015. (T.553). On June 17, 2015,
Anne
Marie
DeSanto
called
Plaintiff’s
pharmacy
to
review
medications prescribed by Dr. Litkei and found that prescription
refills from April 23rd and May 21st orders were still unfilled.
(Id.). On July 9, 2015, Plaintiff contacted DeSanto requesting
medication renewals, which were not given because she had missed so
many appointments. (T.554). DeSanto noted that Plaintiff did not
want to take responsibility for non-compliance with appointments,
citing scheduling conflicts between FLACRA and WBHN, and staffing
changes
at
WBHN;
Plaintiff
also
minimized
the
number
of
appointments that she missed. (T.554). On July 14, 2015, Therapist
Eyth described Plaintiff as open, interactive, cooperative, and
calm;
she
had
fair
memory,
fair
to
good
attention
and
concentration, fair insight and judgment, and fair impulse control.
Plaintiff had an anxious and dysthymic mood; however, Plaintiff
-11-
acknowledged she had not taken her psychiatric medications for two
weeks. Therapist Eyth noted that Plaintiff “[d]oes not seem to see
the
cause
and
effect
nature
of
this
discontinuation
of
her
medications. . . .” (T.554). Plaintiff stated she was looking
forward to attending school and being busy, and spending more time
with her children. On July 21, 2015, Plaintiff admitted to Nurse
Practitioner Donna Fladd that when she was on her “medication
regime she still had some depression but was fairly stable.”
(T.555).
Thus,
it
appears
that Plaintiff
had
not
only
been
non-
compliant with counseling appointments, she had been non-compliant
with her medication regimen during April and May, and into June and
July. Although the treatment notes submitted to the Appeals Council
do reflect some exacerbation of Plaintiff’s symptoms over the
course of a few months, they also demonstrate that this was due to
Plaintiff’s failure to be compliant with her prescribed medication
regime
and
therapy
schedule.
They
also
evidence
Plaintiff’s
recognition that when she was compliant, her symptoms improved. In
short, the Court does not find that the new evidence from WBHN that
Plaintiff presented to the Appeals Council “alter[ed] the weight of
the evidence so dramatically,” Bushey v. Colvin, 552 F. App’x 97,
98 (2d Cir. 2014) (unpublished opn.), to require a different
weighing of Dr. Litkei and Therapist Eyth’s opinion.
-12-
B.
Failure to Recontact Treating Sources (Plaintiff’s Point
III)
Relatedly, Plaintiff argues that because the ALJ did not give
full weight to the opinion of Dr. Litkei and Therapist Eyth, he was
required
to
recontact
those
providers
or
request
additional
evidence. (See Pl.’s Br. at 22-23). There is caselaw in this
Circuit that stands for the proposition that “[i]f the ALJ is not
able to fully credit a treating physician’s opinion because the
medical records from the physician are incomplete or do not contain
detailed support for the opinions expressed, the ALJ is obligated
to
request
such
missing
information
from
the
physician.”
Correale-Englehart v. Astrue, 687 F. Supp.2d 396, 428 (S.D.N.Y.
2010) (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)
(“Because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.”)). “Similarly, the ALJ has a
duty to ‘seek additional evidence or clarification from [the]
medical source when a report from [that] medical source contains
conflict or ambiguity that must be resolved, [or] the report does
not contain all the necessary information.’” Correale-Englehart,
687 F. Supp.2d at 428 (quoting 20 C.F.R. § 404.1512(e)(1); citing
Perez, 77 F.3d at 47; brackets in original).
Here, however, Dr. Litkei’s and Therapist Eyth’s opinion was
not internally conflicting or ambiguous. The ALJ had all of the
available records from WBNH, the mental health provider with which
-13-
Dr. Litkei and Therapist Eyth were associated. The Court recognizes
that additional records from WBHN were submitted to the Appeals
Council, but, as discussed above, the Court has reviewed them
carefully and finds that they do not provide a justification for
the extreme limitations assigned by Dr. Litkei and Therapist Eyth.
Therefore, as discussed above, the Court finds that substantial
evidence supports the ALJ’s weighing of their opinion. In addition,
the record contained a consultative psychiatric evaluation by Dr.
Brownfeld. See Cichocki, 534 F. App’x at 75 (where ALJ properly
declined to afford controlling weight to treating source statement,
“[t]he ALJ could therefore afford weight to the expert opinion
provided by [the consultative examiner]”). The Court finds that
under the circumstances present here, the ALJ did not abuse his
discretion in declining to recontact Dr. Litkei and Therapist Eyth.
C.
Erroneous Weighing of Opinions from Consultative
Psychologist and Review Psychiatrist (Plaintiff’s Point
I)
Plaintiff argues that the ALJ erroneously assigned greater
weight to the opinions from consultative examiner Adam Brownfeld,
Ph.D. and state agency review psychiatrist J. Echevarria, M.D.
On
August
9,
2013,
Plaintiff
underwent
a
psychiatric
evaluation with Dr. Brownfeld who noted that she had appropriate
eye contact, coherent and goal-directed thought processes, full and
appropriate
affect,
euthymic
mood,
intact
attention
and
concentration, and mildly impaired memory. (T.327). Dr. Brownfeld
-14-
stated that Plaintiff had no evidence of limitations in following
and understanding simple directions and instructions, performing
simple
tasks
concentration,
independently,
and
relating
maintaining
adequately
with
attention
others;
and
and
mild
limitations in maintaining a regular schedule, learning new tasks,
performing complex tasks independently, and making appropriate
decisions (T.327-28). Dr. Brownfeld opined that Plaintiff was
moderately
limited
in
dealing
with
stress
but,
overall,
her
psychiatric impairments were not significant enough to interfere
with her ability to function on a daily basis. (T.328).
On August 19, 2013, J. Echevarria, M.D., a state agency
psychiatrist, reviewed the record and opined that Plaintiff’s
mental impairments resulted in mild limitations of activities of
daily living; mild limitations in social functioning; and mild
limitations in maintaining concentration, persistence, or pace.
(T.74, 83). Dr. Echevarria therefore concluded that Plaintiff’s
mental impairments were not severe. (Id.).
The
ALJ
gave
significant
weight
to
the
opinion
of
Dr. Brownfeld because he found it to be consistent with the record
as a whole showing moderate limitations dealing with stress and
with Plaintiff’s treatment history and activities of daily living.
(T.28). The ALJ gave Dr. Echevarria’s opinion significant weight,
but found that subsequent evidence demonstrated greater limitations
than provided by Dr. Echevarria. (T.29). Plaintiff objects to the
-15-
ALJ’s weighing of these opinions more heavily than Dr. Litkei and
Therapist Eyth’s opinion. (See Pl.’s Br. at 9, 15-17).
An ALJ may rely on the opinion of a consultative examiner or
non-examining state agency consultant as substantial evidence in
support of an RFC determination. See, e.g., Diaz, 59 F.3d at 313
(concluding that the opinions of non-examining physicians can
constitute substantial evidence when, as here, they are consistent
with other medical evidence of record); Heagney-O’Hara v. Comm’r of
Soc. Sec., 646 F. App’x 123, 126 (2d Cir. 2016) (unpublished opn.)
(“[T]he ALJ gave great weight to the opinion of Dr. Goldman. Even
though
Dr.
Goldman
also
lacked
a
treating
relationship
with
Heagney–O’Hara, his opinion regarding Heagney–O’Hara’s healing
progress and ability to use her hand was consistent with the
objective medical evidence in the record.”); Suarez v. Colvin, 102
F. Supp.3d 552, 577 (S.D.N.Y. 2015) (“[A]n ALJ may give greater
weight
to
a
consultative
examiner’s
opinion
than
a
treating
physician’s opinion if the consultative examiner’s conclusions are
more consistent with the underlying medical evidence.”) (collecting
cases). The ALJ articulated proper bases for the weight given to
both of these opinions, and his findings are consistent with the
evidence as a whole, in particular, the treatment notes from WBHN
discussed supra in Section IV.A. See, e.g., Frawley v. Colvin, No.
5:13-CV-1567 LEK/CFH, 2014 WL 6810661, at *9 (N.D.N.Y. Dec. 2,
2014) (ALJ’s decision to give great weight to the opinion of a
-16-
consultative psychological examiner was supported by substantial
evidence;
this
opinion
was
consistent
with
the
same
medical
evidence relied on by the ALJ to reject the treating psychologist’s
opinion).
C.
Erroneous Credibility Assessment (Plaintiff’s Point II)
The Commissioner’s regulations set forth a two-step process
for
evaluating
depression,
and
symptoms
such
nervousness.
as
See
pain,
20
fatigue,
C.F.R.
§§
weakness,
404.1529(c),
416.929(c). First, the ALJ must determine whether the claimant has
a
medically
determinable
impairment
that
could
reasonably
be
expected to produce the claimant’s symptoms; if so, the ALJ must
then evaluate the intensity and persistence of the claimant’s
symptoms to determine the extent to which they limit the claimant’s
capacity for work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).
Thus, while an ALJ is required to consider a claimant’s reports
about her symptoms and limitations, see 20 C.F.R. §§ 404.1529(a),
416.929(a), an ALJ is “not required to accept the claimant’s
subjective complaints without question; he may exercise discretion
in weighing the credibility of the claimant’s testimony in light of
the other evidence in the record[.]” Genier v. Astrue, 606 F.3d 46,
49 (2d Cir. 2010). “While it is ‘not sufficient for the [ALJ] to
make a single, conclusory statement that’ the claimant is not
credible or simply to recite the relevant factors, remand is not
required where ‘the evidence of record permits us to glean the
-17-
rationale of an ALJ’s decision,”’ Cichocki, 534 F. App’x at 76
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983);
internal citation omitted; alteration in original).
The ALJ first found Plaintiff to be less than fully credible
“due to her spotty compliance with treatment[,]” (T.30), including
evidence that she had been discharged from a treatment program due
to poor compliance and had attended various treatment programs “due
to ulterior motives, such as to have paperwork to be filled out for
[disability applications].” (T.30 (citation omitted)). SSR 96-7p
provides that “the adjudicator must not draw any inferences about
an individual’s symptoms and their functional effects from a
failure to seek or pursue regular medical treatment without first
considering any explanations that the individual may provide, or
other information in the case record, that may explain infrequent
or irregular medical visits or failure to seek medical treatment.”
Titles II & XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, SSR 96-7P,
1996 WL 374186, at *7 (S.S.A. July 2, 1996).
Here, there is no indication that Plaintiff’s noncompliance
with the treatment plan was due to symptomatology resulting from
her mental impairments. The ALJ correctly noted that when Plaintiff
failed to attend her appointments and programs, it was “not due to
her mental impairments impeding treatment, but rather it was
because she could not arrange transportation.” (T.30). Moreover,
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the ALJ did not err in drawing an adverse inference based on
Plaintiff’s motivation. In January 2015, Plaintiff was contacted
regarding whether she wanted to continue treatment after missing
numerous appointments; Plaintiff called back to say she wanted to
discuss her Social Security appeal. (T.501). Her case manager
scheduled an appointment to help her pull documents related to her
appeal; Plaintiff was late to that appointment by an hour and
15 minutes. (T.502). Plaintiff also indicated that she was not
interested in finding work due to her pending disability claim.
(T.459). The ALJ properly considered Plaintiff’s motivation in
seeking
treatment
in
evaluation
of
the
credibility
of
her
subjective allegations of disabling mental impairments. See Riley
v. Astrue, No. 11-cv-6512T, 2012 WL 5420451, at *7 (W.D.N.Y.
Nov. 6, 2012) (“The ALJ also properly noted that Dr. Drayer, the
[claimant]’s treating physician, stated that [the claimant] might
be exaggerating symptoms to receive disability benefits.”) The
Court finds no error in the ALJ’s determination that Plaintiff’s
noncompliance with treatment negatively affected her credibility.
See, e.g., Weed Covey v. Colvin, 96 F. Supp.3d 14, 33 (W.D.N.Y.
2015) (ALJ’s finding that claimant’s “credibility was diminished by
her failure to regularly attend treatment sessions was supported by
ample cancellation and no-show notes” which did “not suggest
that
[claimant] missed appointments as a result of [her] mental health;
-19-
rather, they often referenced transportation issues, or that [she]
was ‘injured,’ or that [she] cancelled without an explanation”).
As an additional reason for declining to find Plaintiff’s
subjective statements “fully credible,” the ALJ stated that her
allegations of disability did not “comport with her activities of
daily living[,]” which “appear to be largely unencumbered by her
mental impairments.” (T.30).
A claimant’s daily activities is a
proper factor for the ALJ to consider in assessing credibility. See
20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i).
The ALJ recited that Plaintiff “still has hobbies, she can
still go outside, and she can still function and take care of
herself.” (T.30). The Court finds this reason for discounting
Plaintiff’s credibility to be unpersuasive. It is well-settled that
“‘[s]uch activities do not by themselves contradict allegations of
disability,’ as people should not be penalized for enduring the
[symptoms] of their disability in order to care for themselves.’”
Woodford v. Apfel, 93 F. Supp.2d 521, 529 (S.D.N.Y. 2000) (quoting
Boyd v. Apfel, No. 97 CV 7273, 1999 WL 1129055, at *3 (E.D.N.Y.
Oct. 15,
1999)).
The Second
Circuit has
stated
on
“numerous
occasions that ‘a claimant need not be an invalid to be found
disabled’ under the Social Security Act.” Balsamo v. Chater, 142
F.3d 75, 81 (2d Cir. 1998) (quotation omitted).
Nonetheless, the Court finds that any error by the ALJ in this
regard
to
be
harmless
because
-20-
the
remainder
of
the
ALJ’s
credibility assessment is well supported by other substantial
evidence in the record. See, e.g., Barringer v. Comm’r of Soc.
Sec., 358 F. Supp.2d 67, 82 n. 26 (N.D.N.Y. 2005) (ALJ misstatement
of the record with respect to claimant’s ability to vacuum and do
the laundry “amounts to nothing more than harmless error where, as
here, [the] credibility assessment is amply supported by other
substantial evidence”) (citing Rebeck v. Barnhart, 317 F. Supp.2d
1263, 1274 (D. Kan. 2004) (ALJ’s conclusion as to claimant’s
ability to read books and newspapers not supported by substantial
evidence;
“however,
other
evidence
amply
supports
the
ALJ
conclusion to discount [claimant]’s testimony in part based on his
daily activities”); other citation omitted).
Finally, the ALJ did not find Plaintiff’s “complaints wholly
credible because the only treating sources who opined that the
claimant had any physical exertional or non-exertional limitations
were Dr. Litkei and [Therapist] Eyth.” (T.30). As the ALJ discussed
earlier in his decision, he found those opinions “problematic”
because, inter alia, both sources only had seen her on one occasion
each and their severely restrictive assessment was not supported by
the contemporaneous treatment records. This finding is not legally
erroneous or unsupported by substantial evidence, as discussed
supra in Section IV.A.
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V.
Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision is free of legal error and is supported by
substantial evidence. Therefore, it is affirmed. Plaintiff’s motion
for judgment on the pleadings is denied and the Commissioner’s
motion for judgment on the pleadings is granted. 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:
April 27, 2018
Rochester, New York.
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