Silva v. Commissioner of Social Security
Filing
25
DECISION AND ORDER denying 13 Motion for Judgment on the Pleadings; granting 21 Motion for Judgment on the Pleadings. Plaintiffs motion for judgment on the pleadings [#13] is denied, Defendants motion [#21] is granted, and this matter is dismissed. The Clerk of the Court is directed to enter judgment for Defendant and close this action. Signed by Hon. Charles J. Siragusa on 6/21/19. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
VERONICA P. SILVA,
Plaintiff
DECISION AND ORDER
-vs18-CV-6206 CJS
ANDREW M. SAUL,
COMMISSIONER OF SOCIAL SECURITY 1,
Defendant.
________________________________________
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
denying the application of Veronica Silva (“Plaintiff”) for Social Security Disability
Insurance (“SSDI”) Benefits and Supplemental Security Income (“SSI”) Benefits.
Plaintiff claims to be completely disabled due to non-exertional mental impairments, but
the Commissioner found otherwise. Now before the Court is Plaintiff’s motion for
judgment on the pleadings (Docket No. [#13]) and Defendant’s cross-motion [#21] for
the same relief. For the reasons discussed below, Plaintiff’s motion is denied,
Defendant’s motion is granted, and this action is dismissed.
1
The president nominated Andrew M. Saul to be Commissioner of Social Security and the Senate confirmed his
appointment on June 4, 2019, vote number 133. He is substituted pursuant to Fed. R. Civ. P. 25(d). The Clerk is
directed to amend the caption to comply with this substitution.
1
FACTUAL BACKGROUND
The reader is presumed to be familiar with the facts and lengthy procedural
history of this action, including the Court’s prior Decision and Order remanding the
matter to the Commissioner for further administrative proceedings. See, Silva v. Colvin,
No. 6:14-cv-6329 MAT, 2015 WL 5306005 at * 1 (W.D.N.Y. Sep. 10, 2015). The Court
will briefly summarize the record as necessary for purposes of this Decision and Order.
On February 28, 2011, Plaintiff filed applications for SSI benefits and SSDI
benefits, claiming that she became totally disabled on February 5, 2011.
It is undisputed that Plaintiff has mental impairments that are “severe” within the
meaning of the Commissioner’s regulations. Plaintiff suffered damage to the right
frontal lobe of her brain at birth, as a result of being delivered by forceps in her country
of birth, Ecuador. The record indicates that Plaintiff’s biological father, a medical
doctor, abandoned Plaintiff and her mother following the birth, due to his belief that
Plaintiff had suffered brain damage during the birth. Plaintiff subsequently suffered
from petit mal seizures throughout her childhood, for which she still takes medication.
Plaintiff has been diagnosed with major depressive disorder, attention deficit
hyperactivity disorder and a learning disorder. Treating doctors have also indicated
that Plaintiff exhibits symptoms consistent with a condition resembling autism. Indeed,
one treating doctor has opined that Plaintiff’s is “a complex case that may represent an
autistic spectrum disorder with prominent attention deficit, and that her depressive
symptoms appear reactive at this point.”2 This same treating doctor noted Plaintiff’s
2
Silva v. Colvin, No. 6:14-cv-6329 MAT, 2015 WL 5306005 at * 1 (W.D.N.Y. Sep. 10, 2015) (citation to
record and internal quotation marks omitted).
2
“odd features, dysconjugate gaze, odd affect, social anxiety and ritualistic behavior,
such as walking in circles when anxious,” and opined that Plaintiff’s “social isolation and
inappropriate affect point to autism spectrum disorder.” 3 Treatment records indicate
that Plaintiff reverses letters and numbers, has difficulty distinguishing left from right,
has difficulty reading social cues, and has angry outbursts at times.
As alluded to earlier, this matter previously came before the Court to review the
Commissioner’s prior final decision denying benefits. The Court remanded the matter
for, among other things, the ALJ’s failure to properly apply the “treating physician rule.” 4
Following such remand, on April 5, 2017, the ALJ conducted a new hearing. On
December 12, 2017, the ALJ issued a new decision, again denying Plaintiff’s
applications. In pertinent part, applying the familiar five-step analysis for evaluating
disability claims, the ALJ found that Plaintiff has not engaged in substantial gainful
3
Silva v. Colvin, 2015 WL 5306005 at *1 (citation to record and internal quotation marks omitted).
The prior action was assigned to the Honorable Michael A. Telesca, Senior United States District
Judge. On September 10, 2015, Judge Telesca granted Plaintiff’s motion for judgment on the pleadings,
and remanded the action to the Commissioner. In his decision, Judge Telesca found that the ALJ’s
decision to afford little weight to the opinion of Plaintiff’s treating psychiatrist, Dr. Tullio Ortega, was
erroneous for several reasons, including that it was impossible to say whether Ortega’s opinion was
inconsistent with his treatment notes, since Ortega’s notes were almost entirely illegible. Judge Telesca
further indicated that the ALJ’s finding that Ortega’s opinion was inconsistent with the opinion of
consultative psychologist Kavitha Finnity, Ph.D. (“Finnity”), and with the opinion of Plaintiff’s long-term
therapist, Michael Boucher, LCSW-R (“Boucher”) other evidence, was erroneous since it “relied upon
parsed, selected portions of Dr. Finnity’s and Mr. Boucher’s opinions that provided support for the ALJ’s
RFC assessment,” but “ignored aspects” of those same opinions that did not support the RFC finding.
Judge Telesca further indicated that the ALJ’s reliance on Ortega’s GAF scores to discredit his opinion
was erroneous, and that “it is improper for the ALJ to discount a treating physician opinion solely based
on a comparison of it to the physician’s treatment notes.” Judge Telesca’s decision concluded: “the
matter is remanded for further administrative proceedings consistent with this decision. Specifically, the
ALJ is directed to develop the record fully by having all of Dr. Ortega's treatment notes, reports, and
questionnaires transcribed. The ALJ is then directed to evaluate Dr. Ortega's treating source opinions in
light of the appropriate regulatory factors and in accordance with the case law discussed above, and reassess the weight to be given Dr. Ortega's opinions. The ALJ also is directed to consider, as part of the
record, the new evidence submitted to the Appeals Council by Plaintiff on appeal.” Silva v. Colvin, 2015
WL 5306005, at *7.
4
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activity since February 5, 2011; that she has severe impairments consisting of
“degenerative disc disease of the lumbar spine, dyslexia, learning disorder, affective
disorder and anxiety disorder,” none of which meet or medically-equal a listed
impairment; that she has the following RFC:
The claimant has the [RFC] to perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c) except that the claimant needs to avoid
hazards, such as open waters or unprotected heights. She can adjust to
occasional changes in work setting, and can make work-related decisions.
She can perform simple, repetitive tasks, and maintain a regular schedule.
She can focus on simple tasks for 2-hour periods, with brief moments to
stretch and re-focus (up to 1 minute per hour). She can work to meet
daily goals, but cannot maintain a fast-paced, automated production line
pace. She cannot interact with the public, and cannot perform
tandem/teamwork. She needs three additional, short, less-than-fiveminute breaks, beyond regularly scheduled breaks[;] 5
that she cannot perform any past relevant work; but she can perform other work,
including “laundry sorter,” DOT 361.687-014, “photocopy machine operator,” DOT
207.685-014, and “garment folder,” DOT 789.687-066.
As part of the discussion of the Plaintiff’s RFC, the ALJ acknowledged the
serious nature of her impairments. For example, the ALJ stated:
[Claimant] does not socialize, and has never had friends. She felt
different in school and continues to feel isolated. The claimant attended
college, but [is] unable to remember the name of her roommate.
Because she does not socialize in person, the claimant interacts with
others on the computer. She spends a significant portion of her day
engaging with others in chat rooms. . . . [Claimant] needs to focus to
recall details. However, she is able to remember things when she does
concentrate. . . . The claimant is able to shower and dress by herself
with reminders from her mother. She lives with her mother, who
5
Transcript 563
4
reportedly also tells the claimant what clothes to wear. . . . The
claimant’s [IQ] scores placed her in the borderline range of intellectual
abilities. . . . However, the claimant’s verbal abilities [are] fairly good,
and even in English [(English is claimant’s second language)], measured
in the low, average range. . . . To address her mental health symptoms,
the claimant has been prescribed a variety of medications, including
Fluoxetine, Strattera, Depakote, and Seroquel.
Transcript 561-565.
Further, the ALJ acknowledged that several of Plaintiff’s long-time treating
sources have indicated that she is unable to work, due to her mental impairments.
Nevertheless, when making the aforementioned RFC determination, the ALJ gave lessthan-controlling weight to those opinions, after finding that they were inconsistent with
the other evidence of record. In particular, the ALJ gave “limited weight” to the
opinions of treating psychiatrist Tulio Ortega, M.D. (“Ortega”) and treating physician
Christopher Galbreath, D.O. (“Galbreath”), and “little weight” to the opinion of treating
psychologist John Amos, Ph.D. (“Amos”). It is undisputed that if the opinions of
Ortega, Galbreath and Amos were given controlling weight, Plaintiff would be found
disabled.
However, the ALJ found that such opinions were inconsistent with other
substantial evidence of record, namely, that despite her impairments Plaintiff attended
college and earned her bachelor’s degree, while also working almost full time over a
period of ten years. The ALJ’s reasoning may be summarized as follows: Immediately
prior to the period of alleged disability, and despite her severe impairments, which did
not subsequently worsen or change during the period of alleged disability, Plaintiff was
able to work almost full-time for ten years, and was able to earn her bachelor’s degree,
5
thereby contradicting the opinions of her treating doctors that she would be unable to do
such things. In this regard, the ALJ stated in pertinent part:
The claimant is a former cashier who alleges that she is disabled because
of back problems, dyslexia, and anxiety. She worked as a cashier until
February 2011. . . . Despite dyslexia, the claimant has a Bachelor’s
Degree. When she was in college, the claimant received
accommodations because she is dyslexic. People took notes for her, and
textbooks and exams were read to her. The claimant also took exams in
an alternative, isolated site and received extra time. . . . She reportedly
lost her job because she did not interact well with the customers. . . .
The claimant ultimately attained her Bachelor’s Degree while working parttime as a cashier. . . . Although Dr. Ortega is a treating physician and a
specialist in psychiatry, the evidence of record does not support his
opinion. Dr. Ortega treated the claimant from 2008 to 2012. During the
majority of that time, the claimant was working part-time as a cashier and
attending college. The claimant had worked as a cashier for almost ten
years. At times, she worked as many as 30 hours per week. Her
earnings from 2008 though 2010 were close to the threshold for
substantial gainful activity. Thus, she was working a significant amount of
time, albeit not at substantial gainful activity level, and attending college.
Nothing in the record indicates that the claimant’s mental functioning
deteriorated from 2008 to 2011. . . . I [also] accord limited weight to the
opinion of Dr. Galbreath. Again, the record does not show that the
claimant’s condition had deteriorated since she worked and attended
college. . . . I [also] accord little weight to the opinion of Dr. Amos. . . .
Notably, the doctor’s opinion that the claimant has no ability to perform in
a regular work setting with regard to remembering simple work-like
procedures and maintaining attention for two-hour segments is
inconsistent with the claimant’s long history as a cashier and [her] success
in obtaining a Bachelor’s Degree. . . . The claimant clearly has
limitations. However, the record does not show that her limitations are
totally disabling. . . . Notably, the claimant has described activities that
are not limited to the extent one would expect, given the complaints of
disabling symptoms and limitations. The claimant worked as a cashier in
a supermarket for almost ten years. She generally worked about 30
hours per week. The claimant reported that she had difficulty functioning
at work, but she maintained her job for almost ten years. While she
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worked as a cashier, the claimant also attended college. She took twelve
college credits while working part-time and doing fieldwork in human
services. She claimant also worked in a group home [as part of her
educational coursework]. Her work [in the group home] was a class
requirement, but she was paid wages. Although the claimant needed
numerous educational accommodations and special help, she did
ultimately attain her Bachelor’s Degree. Although the claimant’s mother
testified that she must remind the claimant to engage in regular hygiene,
the claimant lived in a dormitory when she was a student. In May 2011,
the claimant stated that her mother had recently been in Ecuador and she
functioned well by herself while her mother was gone.
Transcript 564-572.
Also as part of the ALJ’s decision, she purported to give “more weight” to the
opinion of consultative examining psychologist Kavitha Finnity, Ph.D. (“Finnity”), finding
that it was consistent with the evidence concerning Plaintiff’s actual work history and
college experience. In this regard, the ALJ acknowledged Finnity’s opinion that Plaintiff
“has difficulty relating with others, dealing with stress, and maintaining
attention/concentration.” 6
After receiving the ALJ’s unfavorable ruling, Plaintiff appealed to the Appeals
Council. However, the Appeals Council declined to review the ALJ’s decision.
On March 12, 2018, Plaintiff commenced this action. On December 10, 2018,
Plaintiff filed the subject motion [#13] for judgment on the pleadings. Plaintiff contends
that the Commissioner’s decision should be reversed for the following reasons: 1) “the
ALJ failed to provide ‘good reasons’ for the rejection of three treating source opinions,”
referring to the opinions of Ortega, Galbreath and Amos ; and 2) the ALJ “cherry picked”
6
Transcript 569
7
opinions from Finnity’s report that are consistent with an ability to work, while ignoring
other opinions in the same report that are not consistent with an ability to work.
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). Substantial evidence is defined as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id
The ALJ’s Application of the “Good Reasons” Rule to the Opinions of
Ortega, Galbreath and Amos
Plaintiff contends that the ALJ failed to provide “good reasons” for the weight that
she assigned to the opinions of Ortega, Galbreath and Amos. It is well settled that
[w]hatever weight the ALJ assigns to the treating physician’s opinion, he
must “give good reasons in [his] notice of determination or decision for the
weight [he gives to the] treating source’s medical opinion.” 20 C.F.R. §
404.1527 (c)(2); see also Harris v. Colvin, 149 F. Supp. 3d 435, 441
(W.D.N.Y. 2016) (“A corollary to the treating physician rule is the so-called
‘good reasons rule,’ which is based on the regulations specifying that ‘the
Commissioner “will always give good reasons” ’ for the weight given to a
treating source opinion.” (quoting Halloran [v. Barnhart,] 362 F.3d [28,] 32
[(2d Cir. 2004)])). “Those good reasons must be supported by the
evidence in the case record, and must be sufficiently specific[.]
Mojbel v. Comm'r of Soc. Sec., No. 1:18-CV-00400 EAW, 2019 WL 2417063, at *3
8
(W.D.N.Y. June 10, 2019)
Evidence that a claimant can do more than what her treating doctor says she can
do, may provide a “good reason” for assigning less weight to the doctor’s opinion. See,
e.g., Huyck v. Colvin, No. 16-CV-6331P, 2017 WL 2957867, at *8 (W.D.N.Y. July 11,
2017) (“I conclude that the ALJ provided “good reasons” for her decision to assign
limited weight to [Dr.] Devlin’s and [Dr.] Norsky’s opinions. In her decision, the ALJ
accorded Devlin’s opinions “very little weight” because they . . . were inconsistent with
Huyck’s own testimony that she would be able to engage in part-time sedentary work. .
. . Further, the ALJ noted that many of the limitations assessed by Devlin were
contradicted by other evidence in the record, particularly Huyck’s own statements
concerning her ability to perform activities of daily living. . . . Finally, the ALJ
recognized that the extreme limitations assessed by Devlin were inconsistent with
Huyck’s own testimony that she could perform a sedentary job on a part-time basis.”)
(emphasis added; citations to record omitted); see also, Varnum v. Colvin, No. 15-CV6269P, 2016 WL 4548383, at *14 (W.D.N.Y. Sept. 1, 2016) (“I conclude that the ALJ
provided “good reasons” for his decision to assign limited weight to [Dr.] Choudhury’s
opinions. In his decision, the ALJ accorded Choudhury’s opinions “little weight” because
he found that they were inconsistent with Varnum’s current work history [and] her
testimony regarding her activities of daily living[.] . . . Specifically, the ALJ noted that
the limitations assessed by Choudhury were inconsistent with Varnum’s work history,
including her current employment. During the hearing, Varnum testified that she had
been employed in a part-time position for approximately six months. Varnum’s
9
employment required her to sit at a receptionist desk to answer telephones and work on
a computer for four hours each day, five days per week, without any breaks.”) (citations
to record omitted).
Evidence that a claimant was able to earn a college degree following the alleged
onset of disability may also provide “good reason” to afford less weight to the opinion of
a treating doctor indicating that the Plaintiff is unable to work. See, e.g., Rapaport v.
Comm'r of Soc. Sec., No. 16CV2617VSBJCF, 2018 WL 3122056, at *3–4 (S.D.N.Y.
June 26, 2018) (“Plaintiff argues that the ALJ erred by considering Plaintiff’s ‘success’ in
college and graduate school and as a part time librarian in evaluating Plaintiff’s RFC
and weighing the opinion of Dr. Judka, Plaintiff’s psychiatrist, who opined that Plaintiff
was incapable of self-sustaining employment due to his developmental and
psychological disorders. . . . [However,] ALJ Gonzalez properly assessed Dr. Judka’s
opinion in light of the record as a whole and provided sufficient reasons for not granting
significant weight to the opinion, including describing the inconsistency of the opinion
with Plaintiff’s educational and vocational success.”) (citations to record omitted).
However, depending on the circumstances, the fact that a claimant attended college is
not necessarily indicative of an ability to work on a sustained basis, or inconsistent with
a treating doctor’s opinion that the claimant is disabled. See, e.g., Sudac v. Berryhill,
No. 3:18-CV-410 (JCH), 2019 WL 1856501, at *7 (D. Conn. Apr. 24, 2019) (“The record
supports a finding that Sudac’s ability to take part in college classes was predicated on
a schedule that allowed him significant gaps in the day to address his IBS and paruresis
symptoms. It is unclear how such a record contradicts, rather than supports, Dr.
10
Robinson’s finding that Sudac would have difficulty completing a full workday or
workweek without interruptions caused by his psychological symptoms. Because the
ALJ did not point to evidence in the record that would support her conclusion, she failed
to provide ‘good reasons’ for the weight afforded to Dr. Robinson’s opinion.”).
An ALJ may also properly consider a claimant’s demonstrated ability to work
part-time during the relevant period as evidence that the claimant is not completely
disabled. See, 20 C.F.R. § 404.1571 (“Even if the work you have done was not
substantial gainful activity, it may show that you are able to do more work than you
actually did.”); see also, Dyjewska v. Colvin, No. 1:15-CV-00532(MAT), 2018 WL
703103, at *5 (W.D.N.Y. Feb. 3, 2018) (“Social Security regulations provide that
employment ‘during any period’ of claimed disability may be probative of a claimant’s
ability to work. Thus, it would not have been impermissible for the ALJ to have drawn
an adverse inference based on [the claimant’s] ability to perform light-duty work, albeit
on a part-time basis, during the period for which she claims to be totally disabled.”)
(citation omitted); Bernard v. Colvin, No. 2:14-CV-148-JMC, 2015 WL 4949300, at *7
(D. Vt. Aug. 19, 2015) (“The ALJ's consideration of this work activity—particularly the
work done during the alleged disability period—was proper, even if the work was done
on only a part-time basis.”); Durante v. Colvin, No. 3:13CV1298 HBF, 2014 WL
4852881, at *20 (D. Conn. Aug. 7, 2014) (“[A]n ALJ's consideration of a claimant's parttime work is ‘entirely proper’ and may support an ALJ's decision to discount a claimant's
credibility.”) (citation omitted), report and recommendation adopted, No. 3:13-CV-1298
JCH, 2014 WL 4843684 (D. Conn. Sept. 29, 2014).
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In the instant case, based on the discussion above the Court finds that the ALJ
provided good reasons for the weight that she assigned to the opinions of Ortega,
Galbreath and Amos. In that regard, the Court notes that the ALJ did not simply rely on
the mere fact that Plaintiff earned her bachelor’s degree, or the mere fact that Plaintiff
worked part-time for almost ten years. The ALJ acknowledged that Plaintiff had
needed accommodations at college, and that she had difficulties performing her
cashier’s job, such as difficulty dealing with certain customers, that ultimately led to her
being fired. Indeed, the ALJ found that Plaintiff could not perform her past work as a
cashier. However, the ALJ took Plaintiff’s limitations into consideration and accounted
for them in the RFC determination.
The ALJ’s Alleged Selective Reliance on Dr. Finnity’s Opinion
Plaintiff also contends that the ALJ “cherry picked” information from Dr. Finnity’s
report that supported her RFC finding, while ignoring Finnity’s “statement that the
results of her examination were consistent with Plaintiff’s allegations, [Finnity’s
statement concerning] Plaintiff’s complete inability to perform tasks requiring memory,
[Finnity’s] statement regarding [Plaintiff’s] stress tolerance, and [Finnity’s statement
concerning] Plaintiff’s inability to manage money.” 7
Of course, an ALJ is not permitted to “cherry pick” information in the manner that
Plaintiff has alleged. See, Bohart v. Astrue, No. 10-CV-6503, 2011 WL 2516413, at *5
(W.D.N.Y. June 23, 2011) (“An ALJ cannot selectively choose the only portions of a
medical opinion that support his determination, while ignoring others.”) (citations
7
Pl. Memo of Law [#13-1] at p. 27.
12
omitted).
Preliminarily, Plaintiff’s contention that Finnity opined that Plaintiff had a
“complete inability to perform tasks requiring memory” is incorrect. Rather, as the ALJ
correctly observed, Finnity indicated only that Plaintiff’s “memory skills were mildly
impaired.” 8
Similarly, the ALJ expressly noted Finnity’s opinion that Plaintiff would have
difficulty “dealing with stress,” 9 as well as Plaintiff’s own testimony that “she is unable to
work under stressful conditions.” 10 Accordingly, Plaintiff’s suggestion that the ALJ
ignored those facts is also incorrect. The ALJ considered them, but she also noted
Finnity’s opinion overall was that Plaintiff “would be able to perform simple tasks with
some limitations.”11 The ALJ construed Finnity’s opinion as limiting Plaintiff to “simple,
repetitive tasks.”12 The ALJ stated that the RFC finding was “very limiting,” but that
there were still jobs Plaintiff could perform, according to the VE. 13
To the extent that Plaintiff maintains that remand is required because the ALJ did
not expressly mention Finnity’s opinions that “[t]he results of the evaluation appear to be
consistent with allegations” and that “[t]he claimant will need assistance to manage her
funds,” the Court disagrees. The ALJ is not required to discuss every single opinion
contained in a consultative examiner’s report, and, in any event, the ALJ noted that
Plaintiff’s own treating therapist, Michael Boucher, LCSW-R (“Boucher”), opined that
8
Transcript at 224, 569.
Transcript 569
10 Transcript 564
11 Transcript 569
12 Transcript 563
13 Transcript 572
9
13
Plaintiff is capable of handling her own money. 14
In sum, Plaintiff’s contention that the ALJ improperly “cherry picked” evidence
from Finnity’s report lacks merit.
CONCLUSION
For the reasons discussed above, Plaintiff’s motion for judgment on the
pleadings [#13] is denied, Defendant’s motion [#21] is granted, and this matter is
dismissed. The Clerk of the Court is directed to enter judgment for Defendant and
close this action.
So Ordered.
Dated: Rochester, New York
June 21, 2019
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
14
Transcript 562 (“Her doctor stated that the claimant would be able to handle payment of her own
benefits.”)(referring to Transcript 963)
14
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