Brown v. Berryhill

Filing 12

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; and granting 10 Commissioner's Motion for Judgment on the Pleadings. Plaintiffs complaint is dismissed in its entirety with prejudice. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 4/16/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARIE E. BROWN,
Plaintiff,

6:17-cv-06584-MAT
DECISION AND ORDER

-vsNANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.

INTRODUCTION
Represented by counsel, Marie E. Brown (“Plaintiff”) has brought

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”). This Court has jurisdiction over
the matter pursuant to 42 U.S.C. § 405(g).

Presently before the Court

are the parties’ competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

For

the

and

reasons

set

forth

below,

Plaintiff’s

motion

is

denied

Defendant’s motion is granted.
II.

PROCEDURAL BACKGROUND
On March 19, 2014, Plaintiff protectively filed applications for

DIB and SSI, alleging disability beginning March 19, 2014 due to severe
depression with psychotic episodes, impulse control disorder, and
anxiety disorder. Administrative Transcript (“T.”) 52, 144-56, 171.

Plaintiff’s applications were initially denied and she timely requested
a hearing, which was held before administrative law judge (“ALJ”) Barry
E. Ryan on July 26, 2016.

T. 73-78, 80-82, 35-51.

On September 26, 2016, the ALJ issued an unfavorable decision.
T. 10-20.
T. 142-43.

Plaintiff timely requested review by the Appeals Council.
Plaintiff’s request for review was denied by the Appeals

Council on June 23, 2017, making the ALJ’s decision the final decision
of the Commissioner.

T. 1-6. Plaintiff then timely commenced this

action.
III. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation promulgated
by the Commissioner for adjudicating disability claims. See 20 C.F.R.
§ 404.1520(a). Initially, the ALJ found that Plaintiff met the insured
status requirements of the Act through December 31, 2015. T. 12.

At

step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity from March 19, 2014, the alleged onset date. Id.
At step two, the ALJ determined that Plaintiff had the severe
impairments of depression, generalized anxiety disorder, and bipolar
disorder.

Id.

At

step

three,

the

ALJ

considered

Plaintiff’s

impairments and found that, singly or in combination, they did not meet
or medically equal the severity of a listed impairment.

T. 13.

In

particular, the ALJ considered Listings 12.04 and 12.06 in reaching
this determination.
Prior

to

T. 13-14.

proceeding

to

step

four,

the

ALJ

determined

that

Plaintiff had the residual functional capacity (“RFC”) to: occasionally

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lift or carry fifty pounds; frequently lift or carry twenty-five
pounds; sit for six hours in an eight-hour workday; stand for six hours
in an eight-hour workday; walk for six-hours in an eight hour workday;
understand and follow simple instructions and directions; perform
simple tasks with supervision and independently; maintain attention and
concentration for simple tasks; regularly attend to a routine and
maintain a schedule; relate to and interact with others to the extent
necessary to carry out simple tasks, but only occasionally perform work
requiring more complex interaction or joint efforts to achieve work
goals; have occasional interaction with supervisors, co-workers, and
the public; perform in a low-stress work environment, defined as
requiring only occasional decision-making and changes in the work
setting.

T. 15.

At step four, the ALJ determined that Plaintiff was incapable of
performing any past relevant work.

T. 18.

At step five, the ALJ

relied on the testimony of a vocational expert to find that, taking
into account Plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that Plaintiff

can

perform,

including the

representative

occupations of laundry laborer, industrial cleaner, and mail clerk.
T. 18-20.

The ALJ accordingly found that Plaintiff was not disabled

as defined in the Act.

T. 20.

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IV.

DISCUSSION
A.

Scope of Review

When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such findings
are supported by “substantial evidence” in the record. See 42 U.S.C.
§ 405(g) (the Commissioner’s findings “as to any fact, if supported by
substantial evidence, shall be conclusive”). Although the reviewing
court 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), “[i]f there is substantial
evidence to support the [Commissioner’s] determination, it must be
upheld.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “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).
In this case, Plaintiff’s sole argument is that the ALJ failed to
properly consider the opinions of her treating mental health counselor
(“MHC”) Jaclynn Sardone. For the reasons discussed below, the Court
finds this argument without merit.
B.

Consideration of MHC Sardone’s Opinions

MHC Sardone treated Plaintiff beginning in February 2014. T. 314.
On March 24, 2014, MHC Sardone completed a Monroe County Department of
Human

Services

Psychological

Assessment

Employability related to Plaintiff.

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for

T. 372-76.

Determination

of

MHC Sardone opined

that Plaintiff was very limited (defined as unable to function 25% or
more

of

the

time)

in

her

abilities

to

maintain

attention

and

concentration for rote tasks and perform low stress and simple tasks.
T. 374.

MHC Sardone stated that she had insufficient data to assess

Plaintiff’s abilities
instructions

and

to

follow,

directions;

understand,

perform

and

simple

remember

and

complex

simple
tasks

independently; and regularly attend to a routine and maintain a
schedule.

Id.

On May 7, 2014, MHC Sardone completed a Mental Residual Functional
Capacity Questionnaire related to Plaintiff, which was cosigned by
Dr. Kashinath Patil. T. 314-319. MHC Sardone diagnosed Plaintiff with
major depressive disorder, anxiety not otherwise specified, and impulse
disorder.

T.

314.

She

stated

that

Plaintiff

needed

weekly

psychotherapy to reduce the symptoms of depression and to support her
in learning to how to cope with anger.
medications at that time.

Id.

Id.

Plaintiff was not on any

MHC Sardone opined that Plaintiff’s

prognosis was fair if she attended therapy. Id.
With respect to Plaintiff’s functional limitations, MHC Sardone
opined that Plaintiff: had no useful ability to function with respect
to her abilities to in complete a normal workday and workweek without
interruptions from psychologically-based symptoms, ask simple questions
or request assistance, accept instructions and respond appropriately
to criticism from supervisors, respond appropriately to changes in a
routine

work

appropriately

setting,
with

the

deal

with

general

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normal
public,

work
and

stress,

interact

maintain

socially

appropriate behavior; was unable to meet competitive standards with
respect to her abilities to work in coordination with or proximity to
others without

being

unduly distracted,

make simple

work-related

decisions, perform at a consistent pace without an unreasonable number
and length of rest periods, get along with co-workers or peers without
unduly distracting them, and deal with the stress of semiskilled and
skilled work; was seriously limited in her abilities to carry out short
and simple instructions, maintain attention for a two-hour segment, be
aware of normal hazards and take appropriate precautions, and set
realistic goals or make plans independently of others; had a limited
by satisfactory ability to sustain an ordinary routine without special
supervision; and had limitations in her abilities to maintain regular
attendance and be punctual within customary tolerances and adhere to
basic standards of neatness.

T. 316-17.

On March 12, 2015, MHC Sardone completed another Psychological
Assessment for Determination of Employability related to Plaintiff.
T. 364-68.

Plaintiff’s present complaints were depression, anger, and

anxiety, and her current medication was Prozac.

T. 364-65.

MHC

Sardone opined that Plaintiff was very limited in her abilities to
follow, understand, and remember simple instructions; perform simple
and complex tasks independently; maintain attention and concentration
for rote tasks; regularly attend to a routine and maintain a schedule;
maintain basic standards of hygiene and grooming; and perform low
stress and simple tasks.

T. 366.

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On October 1, 2015, MHC Sardone completed a third Psychological
Assessment for Determination of Employability related to Plaintiff.
T. 368-70.

MHC Sardone opined that Plaintiff was very limited in her

abilities to follow, understand, and remember simple instructions;
perform simple and complex tasks independently; maintain attention and
concentration for rote tasks; regularly attend to a routine and
maintain a schedule; maintain basic standards of hygiene and grooming;
and perform low stress and simple tasks.

T. 370.

She further opined

that Plaintiff had an inability to be near people without being
violent.

Id.

In his decision, the ALJ considered MHC Sardone’s opinions and
ultimately afforded them “less weight.” T. 17. The ALJ explained that
the opinions were inconsistent with MHC Sardone’s own treatment notes,
which

“generally

highlighted

a

cooperative

attitude,

appropriate

behavior, calm motor activity, appropriate speech, logical thought
processes, goal directed thought content, an appropriate affect[,] and
intact

memory.”

T.

17.

The

ALJ

also

noted

that

the

severe

restrictions set forth in MHC Sardone’s opinions were inconsistent with
Plaintiff’s self-reported activities of daily living, which included
providing extensive childcare, attending appointments, maintaining
personal care, driving occasionally, shopping, cleaning, and cooking.
Id.
The Court finds that the ALJ adequately explained the reasons why
he afforded less weight to MHC Sardone’s opinions.

Mental health

counselors are “not an acceptable treating source as defined by the
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Commissioner.” Esteves v. Barnhart, 492 F. Supp. 2d 275, 281 (W.D.N.Y.
2007).

As such, they are considered “‘other sources’ whose opinions

can be considered to evaluate the severity of [an] impairment[] and how
it affects [a claimant’s] ability to work.”

Acevedo v. Astrue, No. 11

CIV. 8853 JMF JLC, 2012 WL 4377323, at *11 (S.D.N.Y. Sept. 4, 2012)
(quotation omitted and alterations in original). An ALJ may reject the
opinion of a mental health counselor where it is inconsistent with the
claimant’s treatment records. Bulavinetz v. Astrue, 663 F. Supp. 2d
208, 212 (W.D.N.Y. 2009).
There is ample support in this case for the ALJ’s conclusion that
MHC

Sardone’s

records.

As

opinions

were

inconsistent

with

her

own

treatment

the ALJ explained, MHC Sardone’s treatment records

consistently noted that Plaintiff was well-groomed, fully-oriented and
cooperative, had good attention and concentration and intact memory,
and that her thoughts were logical.

See, e.g., T. 286-87, 309-11,

326-36, 340, 345-46, 349-50, 352-55, 358, 362, 417, 423. Moreover, MHC
Sardone’s treatment notes show that Plaintiff’s condition improved when
she was compliant with her medication and treatment.

For example, on

April 9, 2015, MHC Sardone noted that Plaintiff was “taking [her]
medication
depressed.”

as

prescribed”

T. 349.

and

that

she

was

“less

anxious

and

Similarly, on July 16, 2015, MHC Sardone noted

that Plaintiff had made progress and was able to express her anger in
a “healthy mature way.”

T. 353.

On November 5, 2015, Plaintiff

reported to MHC Sardone that since her medication had been increased,
she had been experiencing less mental health symptoms, including
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reduced

worrying

and

sadness,

increased socialization.

T. 417.

fewer

conflicts

with

others,

and

However, MHC Sardone’s opinions do

not reflect this documented improvement in Plaintiff’s functioning.
This further supports the ALJ’s conclusion that MHC Sardone’s opinions
were inconsistent with her own treatment records.
The ALJ also correctly noted that the extreme limitations opined
to by MHC Sardone were inconsistent with Plaintiff’s self-reported
activities of daily living.

Plaintiff told psychiatric consultative

examiner Dr. Kristina Luna that she was able to care for her three
children, who were two, nine, and ten at the time of the hearing.
T. 49, 278.

Plaintiff also told Dr. Luna that she was able to cook,

clean, do laundry, and shop.

T. 278.

The ALJ appropriately concluded

that these activities of daily living were inconsistent with the
totally disabling limitations identified by MHC Sardone.

See Poupore

v. Astrue, 566 F.3d 303, 307 (2nd Cir. 2009)(claimant’s ability to care
for one-year-old child, vacuum, wash dishes, occasionally drive, and
watch television, read, and use the computer was inconsistent with
allegations of totally disability).
Plaintiff’s argument that the ALJ erred in crediting the opinions
of consultative examiner Dr. Luna and state agency psychological
consultant Dr. Inman-Dundon is unavailing. It is well-established that
the opinions of consultative examiners and non-examining sources may
“override treating sources’ opinions, provided they are supported by
evidence in the record.”
Cir. 1993).

Schisler v. Sullivan, 3 F.3d 563, 568 (2d

In this case, the ALJ explained in detail why he found Dr.
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Luna and Dr. Inman-Dundon’s opinions to be consistent with the record
as a whole, and why he did not find MHC Sardone’s opinions persuasive.
For the reasons discussed above, the Court finds no error in the
ALJ’s consideration of the medical opinions of record.

As such, there

is no basis for reversal of the Commissioner’s determination or for
remand of this matter.
V.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for judgment on the
pleadings (Docket No. 9) is denied and the Commissioner’s motion for
judgment on the pleadings (Docket No. 10) is granted.
complaint is dismissed in its entirety with prejudice.

Plaintiff’s
The Clerk of

the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 16, 2018
Rochester, New York

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