Taillon v. Commissioner of Social Security
Filing
16
DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/28/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RANDAL TAILLON,
Plaintiff,
17-CV-6812
DECISION
and ORDER
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff
Randal
Taillon
(“Plaintiff”),
who
is
represented by counsel, brings this action pursuant to
the Social Security Act (“the Act”), seeking review of
the final decision of the Commissioner of Social Security
(“the
Commissioner”),
Disability
jurisdiction
Insurance
over
the
denying
his
Benefits.
matter
application
This
pursuant
Court
to
42
for
has
U.S.C.
§ 405(g). Presently before the Court are the parties’
motions for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. Dkt. #10,
14.
BACKGROUND
A.
Procedural History
On December 13, 2013, Plaintiff filed an application
for DIB alleging disability beginning November 26, 2012,
due
to
major
depression,
possible
chronic
traumatic
encephalopathy, anxiety, and memory loss. T. 78, 189.1 His
application was initially denied, T. 78, and Plaintiff
attended a hearing, with counsel, before Administrative
Law Judge (“ALJ”) Roxanne Fuller on November 16, 2015.
T. 56-107.
On April 13, 2016, the ALJ issued an unfavorable
decision, T. 17-30, and the Appeals Council denied review
on September 18, 2017, making the ALJ’s determination the
final decision of the Commissioner. T. 1. This action
followed. Dkt. #1.
The
issue
before
the
Court
is
whether
the
Commissioner’s decision that Plaintiff is not disabled is
supported
1
by
substantial
evidence
and
free
of
legal
Citations to “T.__” refer to the pages of the administrative
transcript. Dkt. #9.
-2-
error.
See
Pl.
Mem.
(Dkt.
#10-1)
9-20;
Comm’r
Mem.
(Dkt. #14-1) 14-23.
B.
The ALJ’s Decision
In
applying
the
familiar
five-step
sequential
analysis, as contained in the administrative regulations
promulgated
by
the
Social
Security
Administration
(“SSA”), see 20 C.F.R. §§ 404.1520, 416.920; Lynch v.
Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y.
Aug. 8, 2008) (detailing the five steps), the ALJ found:
(1)
Plaintiff
did
not
engage
in
substantial
gainful
activity since November 26, 2012; (2) he had the severe
impairments of traumatic brain injury, diabetes mellitus,
anxiety disorder, depressive disorder, obstructive sleep
apnea, and obesity; (3) his impairments did not meet or
equal
the
Listings
set
forth
at
20
C.F.R.
§
404,
Subpt. P, Appx. 1. The ALJ found that Plaintiff retained
the residual functional capacity (“RFC”) to perform light
work, except he could occasionally climb ramps or stairs,
occasionally climb ladders, ropes or scaffolds, tolerate
occasional exposure to excessive noise, moving parts, and
unprotected
heights,
occasionally
-3-
operate
a
motor
vehicle, perform simple, routine, and repetitive tasks,
tolerate no interaction with the public, and occasional,
superficial interaction with coworkers and supervisors;
(4) Plaintiff was unable to perform his past relevant
work
as
a
software
engineer;
and
(5)
considering
Plaintiff’s age, education, work experience, and RFC, he
could
perform
the
jobs
of
sorter,
inspector,
and
assembler, and therefore concluded that Plaintiff was not
disabled. T. 19-29.
DISCUSSION
A.
Scope of Review
A federal court should set aside an ALJ decision to
deny disability benefits only where it is based on legal
error
or
is
not
supported
by
substantial
evidence.
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
“Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106
(2d Cir. 2003) (internal quotation marks omitted).
-4-
B.
Opinion Evidence
Plaintiff first argues the ALJ erred in rejecting the
opinions of treating physicians Shareen Gamaluddin, M.D.,
Jennifer
Fleeman,
Psy.D.,
and
Heather
Coles,
speech
pathologist, with respect to his traumatic brain injury.
Pl. Mem. 10-15.
In her decision, the ALJ afforded “little weight” to
the doctors’ opinions that Plaintiff was unable to work.
T. 27. Dr. Gamaluddin opined that Plaintiff was “unable
to work in any capacity.” T. 658-59. Dr. Fleeman opined
that Plaintiff was “unable to return to to work at this
time
due
to
a
combination
of
factors,”
but
“with
consistent use of the compensatory strategies and selfregulation skills as well as psychiatric stability, he
may be able to return to work in the future” in a
capacity that does not require him to supervise other
employees. T. 557. Ms. Coles opined that Plaintiff was
“unable to return to work at this time, due to his
challenges with attention and concentration, compromised
abilities
to
process
auditory
information
and
his
compromised social cognition/communication. T. 560. These
-5-
opinions were rendered in the context of Plaintiff’s
receipt of short-term disability benefits while he was
employed as a software engineer.
Under
the
regulations
in
place
at
the
time
of
Plaintiff’s DIB application, a treating physician is
entitled to controlling weight if it is well supported by
clinical
and
inconsistent
laboratory
with
techniques
other
substantial
and
is
not
evidence.
See
20 C.F.R. § 404.1527; see also Clark v. Comm’r of Soc.
Sec.,
143
application
F.3d
115,
of
118
the
(2d
Cir.
treating
1998)
(discussing
physician
rule).
Additionally, “the Commissioner ‘will always give good
reasons’” for the weight given to a treating source
opinion. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004)
(quoting
20
C.F.R.
§
404.1527(d)(2);
citing
20 C.F.R. § 416.927(d)(2)). While an ALJ may give less
than
controlling
weight
to
a
treating
physician’s
opinion, he or she must “comprehensively set forth [his
or her] reasons for the weight assigned to a treating
physician’s opinion.” Halloran, 362 F.3d at 33. “Those
good reasons must be ‘supported by the evidence in the
-6-
case record, and must be sufficiently specific....’”
Blakley
v.
Comm’r
of
Soc.
Sec.,
581
F.3d
399,
406
(6th Cir. 2009) (quoting Social Security Ruling (“SSR”)
96–2p, 1996 WL 374188, at *5 (S.S.A. July 2, 1996)
(rescinded 2017, after the date of the ALJ’s decision in
this case).
When a treating physician’s opinion is not given
controlling weight, the ALJ must apply various factors to
ascertain
the
frequency
of
weight
to
examination
give
and
the
the
opinion:
length,
(1)
the
nature
and
extent of the treatment relationship; (2) the evidence in
support of the opinion; (3) the opinion’s consistency
with the record as a whole; (4) whether the opinion is
from a specialist; and (5) other relevant factors. See
20 C.F.R. § 404.1527; see also Rosa v. Callahan, 168 F.3d
72, 78 (2d Cir. 1999).
At the outset, it is well-settled that it is the
Commissioner’s
responsibility
to
determine
whether
a
claimant meets the statutory definition of disability.
Cottrell v. Colvin, 206 F. Supp. 3d 804 (W.D.N.Y. 2016)
(citation omitted); 20 C.F.R. § 404.1527(d)(1); see also
-7-
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999) (a
“treating physician’s statement that the claimant is
disabled cannot itself be determinative”). The ALJ was
therefore
under
no
obligation
to
accept
those
determinations of Plaintiff’s inability to work. In any
event, the ALJ agreed with Plaintiff’s physicians to the
extent that he could not perform his previous work as a
software engineer. T. 28. In formulating Plaintiff’s RFC,
the ALJ
included a number of limitations relative to
Plaintiff’s memory and cognitive deficits noted by his
providers. See T. 23 (limiting Plaintiff to light work,
simple, routine, repetitive tasks, no interaction with
the public, superficial interaction with supervisors).
Next, the ALJ provided the requisite good reasons for
rejecting the treating source opinions. She cited to
Plaintiff’s “robust” daily activities, including chores,
driving, and sports; T. 23, 679; generally unremarkable
mental status examinations, T. 23, 685 (indicating alert,
appropriately interactive, normal affect; 21/30 Montreal
cognitive
assessment
losing
points
for
attention,
language, delayed recall, and orientation); and evidence
-8-
of steady progress concerning his memory loss and focus
as indicated by his treating providers. T. 23, 560, 559,
668.
Plaintiff is correct that an ALJ’s reliance on daily
activities alone does not constitute a “good reason” for
rejecting
a
treating
source’s
opinion.
Pl.
Mem.
12
(citing Brown v. Barnhart, 418 F. Supp. 2d 252 (W.D.N.Y.
2005) (holding that ALJ improperly substituted his own
opinion for those of claimant’s treating physicians and
the medical expert when finding, on basis of claimant’s
daily activities, that she was not disabled)). Here,
however, the ALJ’s decision indicates that she considered
the
record
as
a
whole
in
rejecting
the
physicians’
opinions of total disability, and provided good reasons
for doing so. See,e.g., Tanya L. v. Comm’r of Soc. Sec.,
No. 17-CV-136, 2018 WL 2684106, at *4 (D. Vt. June 5,
2018)(Listing examples of “good reasons” to discount the
opinions of a treating source as: [1] the opinions were
inconsistent
with
the
bulk
of
the
other
substantial
evidence, such as the opinions of other medical sources,
[2] the opinions were internally inconsistent, [3] the
-9-
physician’s relationship to the claimant was limited and
remote,
[4]
the
treating
source
gave
only
brief,
conclusory opinions unsupported by clinical findings or
other evidence, and [5] treating source lacked expertise
in the relevant medical specialty)).
The
ALJ’s
RFC
determination
of
light
work
with
additional limitations was not based on her failure to
afford controlling weight to the physicians’ opinions,
but upon the body of the medical evidence, including the
objective
findings
from
treating
sources.
Plaintiff
posits that the ALJ should have credited the opinions of
total
disability,
however,
the
ALJ’s
step
four
determination of Plaintiff’s RFC--the ability to perform
some
work
in
light
of
his
medically-determinable
impairments--was supported by substantial evidence.
It is for essentially the same reasons that the Court
rejects Plaintiff’s related argument that the ALJ failed
to
weigh
or
mention
opinions
from
Scott
LaVigne,
L.C.S.W., and Kay Loree, L.M.S.W. Pl. Mem. 15-17. Both
practitioners opined that Plaintiff was unable to work,
T.
405,
505,
which,
as
-10-
stated
earlier,
is
not
determinative.
See
Cottrell,
206
F.
Supp.
3d
804;
20 C.F.R. § 404.1527(d)(1).
Further,
LaVigne
and
Loree
were
not
acceptable
medical sources. SSR 06–03 provides that “medical sources
who are not ‘acceptable medical sources’ . . . have
increasingly
assumed
a
greater
percentage
of
the
treatment and evaluation functions previously handled
primarily by physicians and psychologists. Opinions from
these medical sources, who are not technically deemed
“acceptable
medical
sources”
under
our
rules,
are
important and should be evaluated on key issues such as
impairment severity and functional effects, along with
the other relevant evidence in the file.” SSR 06–03p.
Examples of non-acceptable medical sources include nurse
practitioners,
therapists.
licensed
“[W]hile
clinical
the
ALJ
is
social
workers,
certainly
free
and
to
consider the opinion of these ‘other sources’ in making
his overall assessment of a claimant’s impairments and
residual abilities, those opinions do not demand the same
deference as those of a treating physician.” Genier v.
Astrue, 298 Fed. Appx. 105, 108 (2d Cir. Nov. 5, 2008)
-11-
citing
Mongeur
v.
Heckler,
722
F.2d
1033,
1039
n.2
(2d Cir. 1983).
There also is no evidence that the ALJ did not
consider the therapists’ opinions that Plaintiff had poor
concentration
and
focus.
T.
408,
500-506.
Those
limitations were, in fact, consistent with the balance of
the medical record and were accounted for in Plaintiff’s
RFC. T. 23 (limiting Plaintiff, despite his history of
skilled work, to simple, routine, and repetitive tasks).
Any error in this regard would therefore be harmless. See
McKinstry v. Astrue, 511 Fed. Appx. 110, 111-12 (2d Cir.
Feb. 14, 2013) (Any alleged error caused by ALJ’s failure
to discuss the physician assistant’s opinion was harmless
where
there
was
no
reasonable
likelihood
that
consideration of the opinion would have changed the ALJ’s
determination
Zabala,
595
that
F.3d
the
at
claimant
410
was
(harmless
not
error
disabled);
where
“no
reasonable likelihood that [the ALJ’s] consideration of
the same doctor’s 2002 report would have changed the
ALJ’s determination that [the claimant] was not disabled
during the closed period”).
-12-
C. Credibility Determination
Finally, Plaintiff argues that the ALJ erred in
evaluating Plaintiff’s credibility. Pl. Mem. 17-20.
In pertinent part, the ALJ found that Plaintiff’s
“robust range of activities, in addition to claimant’s
ability
to
tend
to
personal
care,
leave
his
home
unaccompanied, shop for groceries and sundries, do his
own
laundry,
and
manage
his
own
finances,
strongly
suggestions his symptoms are less limiting than alleged.”
T. 25. In finding that the “medical evidence of record
does not suggest the presence of totally debilitating
symptoms,”
she
discussed
several
treatment
notes
inconsistent with Plaintiff’s allegations of disabling
symptoms.
question
Id.
She
also
noted,
that
the
claimant
has
“[w]hile
there
experienced
is
no
residual
cognitive and psychological issues stemming from his
history of traumatic brain injury, the record suggests
these issues have been significantly exacerbated by life
stressors,” and went on to cite examples of Plaintiff’s
stressors,
including
his
divorce.
Id.
Situational
stressors are not a basis for a finding of disability and
-13-
may be considered when evaluating a claimant’s subjective
reports. See, e.g., Morgan v. Colvin, No. 14-CV-0549,
2016
WL
3527906,
at
*15
(N.D.N.Y.
June
23,
2016);
Gonzalez v. Comm’r of Soc. Sec., No. 07-CV-629, 2010 WL
55933, at *5 (N.D.N.Y. Jan. 5, 2010).
Next, the ALJ observed that Plaintiff’s symptoms
improved with treatment, citing to the medical evidence
including
treatment
notes
from
his
primary
care
physician, psychiatrist, and speech pathologist. T. 25.
The
ALJ
may
Plaintiff’s
consider
medical
a
provider’s
condition
had
statement
that
improved
with
treatment. Johnson v. Colvin, 669 Fed. Appx. 44, 46
(2d Cir. 2016).
The
ALJ
demonstrates
concluded
significant
that
the
record
cognitive
and
“clearly
emotional
symptoms,” but that they were less limiting than alleged
by
Plaintiff.
Nonetheless,
“to
accommodate
these
symptoms, I furnished numerous limitations at Finding
Five, above, including a restriction to simple, routine,
and repetitive tasks, with no public interaction, and
-14-
only occasional, superficial interaction with coworkers
and supervisors.” T. 25-26.
As the trier of fact, the ALJ was in the best
position to weigh Plaintiff’s subjective reports. While
an ALJ is required to take the claimant’s complaints into
account, she is not required to accept those complaints
without question. Campbell v. Astrue, 465 Fed. Appx. 4,
6
(2d
Cir.
2012)
(unpublished)
(citing
20
C.F.R.
§ 416.929 and Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010)). Rather, she “may exercise discretion in weighing
the credibility of the claimant’s testimony in light of
the other evidence of record.” Campbell, 465 Fed. Appx.
at 6 (citing Genier, 606 F.3d at 49 (internal quotation
omitted). Contrary to Plaintiff’s assertion, the ALJ did
not
provide
“insufficient
reasons”
to
support
her
determination, but explained it in great detail with
support from the evidence of record. T. 25. Thus, the
Court does not find the ALJ’s analysis flawed, as she
properly relied on a number of factors in accordance with
20
C.F.R.
§
404.1529,
when
-15-
evaluating
Plaintiff’s
subjective reports about his mental limitations. T. 24-26.
For all of these reasons the Court finds that the
ALJ’s decision is supported by substantial evidence and
free of legal error.
CONCLUSION
For the reasons discussed above, Plaintiff’s motion
for judgment on the pleadings (Dkt. #10) is denied and
the Commissioner’s motion for judgment on the pleadings
is (Dkt. #14) is granted. The Clerk of the Court is
directed
to
enter
judgment
in
accordance
with
this
Decision and Order.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
March 28, 2019
-16-
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