Flynn v. Commissioner of Social Security
OPINION AND ORDER Denying 8 Plaintiff's Motion for an Order Reversing the Commissioner's Decision and Granting 11 the Commissioner's Motion to Affirm. Signed by Chief Judge Christina Reiss on 4/10/2017. (pac)
U.S. OISlRiCT COURT
DISTRICT OF VERt10tH
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
2011 APR f0 PH ~: 06
Case No. 2:16-cv-150
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER
REVERSING THE COMMISSIONER'S DECISION AND GRANTING THE
COMMISSIONER'S MOTION TO AFFIRM
(Docs. 8 & 11)
Plaintiff Shawn Flynn is a claimant for Social Security Disability Insurance
("SSDI") benefits under the Social Security Act. He brings this action pursuant to 42
U.S.C. § 405(g) to reverse the decision of the Social Security Commissioner that he is not
disabled. 1 On November 7, 2016, Plaintiff filed his motion to reverse, seeking a remand
for an order of benefits (Doc. 8). On January 4, 2017, the Commissioner moved to affirm
(Doc. 11). On January 19, 2017, the court took the pending motions under advisement.
Plaintiff identifies the following errors in the Commissioner's decision: (1)
Administrative Law Judge ("ALJ") Matthew Levin failed to adhere to the treating
physician rule in evaluating the opinions of Plaintiffs treatment providers; (2) the ALJ
Disability is defined as the inability "to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months[.]" 42 U.S.C. §§ 423(d)(l)(A), 1382c(a)(3)(A). A claimant's "physical or mental
impairment or impairments" must be "of such severity" that the claimant is not only unable to do
any previous work but cannot, considering the claimant's age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy. 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
improperly evaluated Plaintiffs alcohol use; and (3) the ALJ's credibility determination
was not supported by substantial evidence.
James Torrisi, Esq. represents Plaintiff. Special Assistant United States Attorney
Rebecca H. Estelle represents the Commissioner.
Plaintiff applied for SSDI benefits on January 31, 2007, alleging a disability onset
date of October 31, 2006. The Commissioner initially denied Plaintiffs claims on June
15, 2007, and, upon reconsideration, on July 9, 2008. Plaintiff thereafter filed a timely
written request for a hearing before an ALJ. Following an August 5, 2009 hearing at
which Plaintiff testified, ALJ Thomas Merrill issued an unfavorable decision on August
20, 2009, which the Decision Review Board remanded on November 23, 2009.
ALJ Merrill held a second hearing on October 15, 201 0 at which Plaintiff,
impartial medical expert Alfred Jonas, M.D., and vocational expert ("VE") Richard Paul
testified. On October 29, 2010, ALJ Merrill again issued an unfavorable decision.
Plaintiff appealed that decision to this court, which on December 23, 20 11, granted the
Commissioner's motion for remand and ordered that a newly-assigned ALJ further
develop the record and issue a new decision.
On April4, 2013, ALJ Levin held a video hearing at which Plaintiff and VE
Christine Spaulding testified. On April 9, 2013, he issued an unfavorable decision to
which Plaintiff filed a timely written exception. Thereafter, the Appeals Council
remanded the case to ALJ Levin with the following instructions:
[D]etermine whether the claimant engaged in substantial gainful activity,
further consider the claimant's severe impairments, obtain additional
evidence, further evaluat[e] the claimant's mental impairments, further
consider the claimant's maximum residual functional capacity, obtain
supplemental evidence from a vocational expert if warranted, and obtain
evidence from a new medical expert[.]
On January 7, 2016, ALJ Levin held a fourth hearing at which Plaintiff, impartial
medical expert John R. Ruggiano, M.D., and VE Elizabeth C. LaFlamme testified. In a
decision dated February 18, 2016, ALJ Levin found that Plaintiff did not establish that he
was disabled within the meaning of the Social Security Act, and thus was not entitled to
SSDI benefits. Plaintiff did not file exceptions with the Appeals Council within sixty
days of the Notice of Decision. As a result, ALJ Levin's February 18, 2016 decision
stands as the Commissioner's final decision.
Plaintiff is a male with a high school education born in 1966. He worked for
approximately eighteen months during 2011-12 as a cook, and prior to that period, last
worked on October 15, 2006 in that same occupation. All of Plaintiffs prior work
experience is in the culinary field. Plaintiff alleges he is disabled on the basis of bipolar
Plaintiff's Mental Health.
According to his February 16, 2007 treatment notes, Plaintiffs primary care
physician Robert Wood, M.D. "agree[d] with disability on psychiatric basis" after he had
treated Plaintiff for approximately eight months. (AR 283.) Plaintiff was prescribed
Lexapro which he did not find effective. With Dr. Wood's support, he then sought
Beginning on July 13, 2006, Plaintiff engaged in counseling with psychiatric nurse
William R. Cote, A.P.R.N. on a regular basis. In a November 17, 2007 letter to Plaintiff,
Mr. Cote stated that he did "not believe that [Plaintiff is] able to work or to pursue a
training program at this time nor [is Plaintiff] able to engage in a training program" and
that he expected this condition to last "indefinitely." (AR 460.) Mr. Cote recorded that
Plaintiff had a primary diagnosis of bipolar disorder and a secondary diagnosis of alcohol
dependence, in partial remission. Mr. Cote characterized Plaintiffs prognosis as
"guarded" and stated that "the medications are helpful in controlling the most
troublesome symptoms but there is no known cure for this condition." (AR 458-59.) Mr.
Cote rendered substantially the same opinions regarding Plaintiffs ability to pursue
employment on September 4, 2008, July 29, 2009, and October 29, 2009. In his July 29,
2009 opinion, Mr. Cote stated that Plaintiff had "abstained from alcohol as far as I know
for many months." (AR 453.)
In addition to Mr. Cote's mental health treatment, from August 1, 2006 through
March 31, 2011, Plaintiff engaged in counseling with Gretchen Lewis, L.C.M.H.C., a
licensed psychotherapist. On August 15, 2006, Ms. Lewis noted that Plaintiffs alcohol
use "border[ ed] on abusive at times" (AR 289). She documented several instances of
outbursts of anger by Plaintiff and noted that she was working with Plaintiff to improve
his coping skills. On May 9, 2007, Ms. Lewis recorded that Plaintiff had been doing a lot
of work on his house.
On April 7, 2008, Ms. Lewis opined that Plaintiffs diagnosis, "made in
conjunction with Bill Cote, Psych. N.P.[,]" was bipolar disorder (AR 455), which caused
"marked" limitation in social functioning and ability to maintain concentration,
persistence or pace, and "moderate" restrictions in his activities of daily living. (AR
456.) Ms. Lewis opined that Plaintiff had experienced one or two episodes of
On July 10, 2009, Ms. Lewis completed an Assessment of Ability to Do WorkRelated Activities (Mental) ("Mental Assessment"), determining that Plaintiff had
"marked" difficulties in relating to co-workers, dealing with the public, interacting with
supervisors, coping with work stresses, and maintaining attention and concentration. She
observed that Plaintiff"continues to spend the majority of his time at home due to the
fact that he finds himself easily dysregulated and frustrated despite ongoing medication
management and counseling." (AR 450.) Ms. Lewis concluded that Plaintiff"has a low
tolerance for making any kind of mistake and will usually sabotage a whole project over
something like this." (AR 451.) She opined that Plaintiff was "still emotionally unstable
and unpredictable in social situations, but has made progress in terms of decreasing the
intensity of his emotional upheavals." !d. She further assessed that Plaintiff would be
expected to miss at least four work days per month due to his mental impairments,
depending on "what kind of mood he will be in on any given day and his mood continues
to fluctuate regularly in a month's period." (AR 452.) Ms. Lewis responded "NA" in
response to a question regarding Plaintiffs alcohol use. I d. Overall, Ms. Lewis
determined that Plaintiff was "quite a ways off from where we would like to see his
baseline functioning." (AR 449.)
On October 26, 2009, Ms. Lewis recorded that Plaintiff had a "rough month" (AR
526) as both his grandmother and grandfather had passed away within a ten-day period.
The next month, Ms. Lewis noted that Plaintiff "has really been enjoying work on
projects in his wood shop" (AR 527) and on January 19, 2010 stated that Plaintiff"seems
to be doing really well" with "less expansive" moods (AR 528).
On April 7, 2010, Dr. Wood recorded that Plaintiff"[a]dmit[ted] to drinking at
least 2 beers daily" (AR 463) and reported that his depression had grown significantly
worse. Dr. Wood recommended "acute intervention ... either through the [N]ortheast
[K]ingdom mental-health or through the Emergency Ward[.]" (AR 464.) The next day,
Plaintiff was brought to the Northeast Kingdom Human Services Care Bed (the "Care
Bed") where he reported to the attending physician: "I thought I was doing alright but
then I tried to slit my wrists because I don't want to see tomorrow or any tomorrow."
Thereafter, Plaintiff received treatment from psychiatrist Richard Edelstein, M.D.,
who completed a psychiatric evaluation of Plaintiff on May 19 and June 8, 2010. Dr.
Edelstein noted that Plaintiffs chief complaint was that "[l]ife sucks" and that Plaintiff
"fe[lt] like there is a cloud over him, fe[lt] cut off from the world" and "tend[ ed] to
isolate self, and feel anxious, especially in crowds." (AR 1049.) Dr. Edelstein pointed
to Plaintiffs history of alcohol abuse, including that two months prior, he drank "a case
of beer per night for a period of 3 weeks prior to admission to Care Bed" but since that
time, he had only consumed three beers. (AR 1050.) Dr. Edelstein's mental status
examination revealed that Plaintiff was "pleasant, friendly, calm, and cooperative. Affect
is in full range. Mood is neutral. Speech is coherent. Thought content is without
distortions of reality testing. No acute suicidal ideation." (AR 1051.) On August 20,
2010, Dr. Edelstein recorded that Plaintiff reported having "a rough time a few nights ago
and scratched his wrist several times 'as practice."' (AR 1044.) Dr. Edelstein assessed
that Plaintiff was "[m]ildly anxious ... , not grossly depressed, some joking, no acute
S[uicidal] I[deation]." Id.
In a September 21, 20 10 Questionnaire, Dr. Edelstein diagnosed Plaintiff with
bipolar disorder and found "moderate" restrictions in Plaintiffs activities of daily living
and "marked" difficulties in his ability to maintain social functioning and concentration,
persistence or pace. (AR 504.) That same day, Dr. Edelstein also completed a Mental
Assessment and opined that Plaintiff had "extreme" difficulties dealing with the public;
"marked" difficulties responding appropriately to usual work situations, to changes in
routine work settings, and in maintaining concentration; "moderate" difficulties
responding appropriately to co-workers, dealing with work stresses, and functioning
independently; and "slight" difficulty responding appropriately to supervision. (AR 506.)
He opined that Plaintiff would be expected to miss at least two days of work per month
due to his impairments which he characterized as "ongoing and chronic." (AR 508.)
Regarding whether Plaintiffs alcohol use contributed to his limitations, Dr. Edelstein
responded: "NA currently." Id.
In an October 10, 2010 Mental Assessment, Ms. Lewis observed that Plaintiffhad
a "[d]epressed mood most of the day [and] markedly diminished interest or pleasure in
almost all activities." (AR 517.) She noted that Plaintiff exhibited "marked" difficulties
in his ability to deal with work-related stress and to respond appropriately to usual work
situations, supervision, co-workers, and changes in a routine work setting. !d. She
further opined that Plaintiff suffered from a "[ d]epressed mood ... , feelings of
worthlessness or excessive guilt[.]" (AR 518.) She reiterated her assessment that
Plaintiff would be expected to miss several days of work per month due to his mental
impairments and did "not believe that [Plaintiff] would be able to maintain 8 hrs/day- 40
hrs/week without decompensating or having some sort of mishap at work occur." (AR
519.) Regarding the relationship between Plaintiffs alcohol use and these limitations,
Ms. Lewis stated that Plaintiff"may have used alcohol to try to control his illness, [but]
now that we have medication on board, this is no longer an issue." Id.
After Plaintiffs SSDI application was denied in the fall of2010, he resumed work
as a part-time cook, and then began working nearly full-time in April2011. He
continued to work as a cook until November 2012 and earned approximately $25,000
during an eighteen-month period in thai position. On August 4, 2011, Dr. Edelstein noted
that Plaintiff had become "overly busy[,] working a lot of hours, trying to keep up with a
very large garden" and that "[o]verall, [his] mood has been good[.]" (AR 1035.) On
September 1, 20 11, Dr. Edelstein recorded that Plaintiff was "working long hours (3 5
hrs/week)" but reported no new stressors. (AR 1034.)
Although Plaintiff had already been working nearly full-time, Dr. Edelstein opined
on September 22, 20 11 that Plaintiff "is ready to return to work up to but no more than
four days a week." (AR 1033.) From October 27, 2011 to November 8, 2012, Dr.
Edelstein recorded that Plaintiff was either working part-time or nearly full-time at
various restaurants and handling both his work schedule and illness well, with only mild
variations in his mood.
On November 26, 20 12, Plaintiff sought treatment at the North Country Hospital,
stating that he "took between 75-100 tylenol yesterday (500 mg)." (AR 1209.)
Plaintiffs admission record states that he attempted suicide, but recorded that he
"[a]ppears in no apparent distress." (AR 1188.) Plaintiff was then transported to
Dartmouth-Hitchcock for further treatment and observation. According to the November
27, 2012 treatment notes of psychiatrist Frances S. Shin, M.D., Plaintiffwas regretful
about his actions and "endorse[ d] suicidal ideation for the past week and continues to feel
like he wants to 'just end it."' (AR 1073.) Dr. Shin recorded a prior suicide attempt two
and a half years prior in which Plaintiff slit his wrist in a manner that did not require
sutures. Dr. Shin further documented that Plaintiff endorsed "depressive symptoms
(sadness, hopelessness, anhedonia, poor energy, poor concentration ... poor sleep) for
the past month" and that Plaintiff"drank 3-4 beers on night prior to admission (11/25)[.]"
During this same time period, Plaintiff was seen by psychiatrist Donald A. West,
M.D., who opined that electroconvulsive therapy ("ECT") "may be the best option
considering [Plaintiffs] history." (AR 1079.) Thereafter, Plaintiff underwent multiple
rounds ofECT and was discharged on December 18, 2012. The discharge summary
completed by Hee-Jun Ahn, M.D. and Dr. West stated that "[o]n the day of discharge, the
patient denied thoughts of suicide, homicide, or violence. Given patient's positive and
notable response to ECT in terms of depression compared to admission, outpatient
maintenance ECT was not deemed necessary at this point[.]" (AR 1084.) The summary
also noted that "it may be beneficial for patient to take a short leave from work until he
could effectively manage the stress[.]" !d.
In a December 19, 2012 letter to Attorney Torrisi, Dr. Edelstein stated that he had
not changed his opinion regarding Plaintiffs disability since September 21, 2010, but
because Plaintiff had been hospitalized since his last contact with him on November 8,
2012, his opinion "may change to some extent" after an opportunity to treat Plaintiff
further and review his inpatient records from Dartmouth-Hitchcock. (AR 1062.) After
reviewing those records, on March 20, 2013, Dr. Edelstein updated his opinion as
[Plaintiffs] depression is a disabling condition. I can attest to the fact that
he has tried to work at a variety of chef/cooking jobs over the past few
years. He has experienced an upsurge in anxiety and depressive symptoms
in each position. He worked at his latest position for months, continuing
even as some of his symptoms worsened. Ultimately, he became suicidal
and after a suicide attempt was hospitalized, where he was treated with
electro-convulsive therapy. I believe that the stress of his work contributed
to his depression. He is better now than when hospitalized, but still too
anxious and down to return to the job. I do not recommend that he return to
employment at this time.
Throughout 2014, Dr. Edelstein continued to record Plaintiffs depressed mood,
but noted that his speech was coherent and logical and his memory, concentration and
judgment were intact. On July 29, 2014, Dr. Edelstein observed that Plaintiff"report[ed]
better energy, motivation, and increased activity, but still gets down at times, and even
had a recent vague SI, without plans." (AR 1231.) Dr. Edelstein recorded that Plaintiff
had gone camping with family that month and was planning to go kayaking with his
niece the following day.
By September of2014, Dr. Edelstein detected "fidgetiness" in Plaintiffs
demeanor but also noted a "euthymic" mood and normal speech, memory and
concentration. (AR 1235.) On November 5, 2014, Plaintiff recounted to Dr. Edelstein
that he engaged in several "shouting matches with wife and strangers, got drunk and
drove around the woods for several hours, then went to the ER when he told his wife he
was suicidal." (AR 1237.) Plaintiff appeared "mildly anxious" with "sometimes
impaired" judgment, but had normal mood, affect, speech, memory, and concentration.
In the spring and summer of 2015, Dr. Edelstein recorded that Plaintiff continued
to have a depressed mood with irritability but no suicidal ideation. During the same time
period, Plaintiff exhibited normal speech, memory, and concentration. In several 2015
treatment notes, Dr. Edelstein diagnosed Plaintiff with "EtOH dependence, in current
remission." (AR 1242, 1247, 1257.)
In a December 28, 2015 letter to Attorney Torrisi, Dr. Edelstein stated that his
opinion "ha[d] not changed since" his September 21, 2010 and March 20, 2013 opinions.
(AR 1264.) He further stated that Plaintiff is "disabled due to his mood disorder and
anxiety. Regarding the contribution, if any, of alcohol abuse to his disability, it is my
opinion that alcohol has been associated with a few, but by no means all, of his episodes
of severe illness. I do not regard alcohol as a primary causative factor in his illness." !d.
State Consultants' Assessments.
Dr. Schwartzreich's June 2007 RFC Assessment.
On June 13, 2007, State Agency Medical Consultant Edward Schwartzreich, M.D.
opined that Plaintiff had a medically determinable impairment of bipolar affective
disorder that caused "moderate" difficulties in maintaining concentration, persistence, or
pace, and "mild" restriction in activities of daily living and difficulties in maintaining
social functioning. (AR 321.) He did not personally examine Plaintiff.
On the same date, Dr. Schwartzreich rendered a Mental Residual Functional
Capacity ("RFC") Assessment in which he opined that Plaintiff had "moderately limited"
abilities to carry out detailed instructions, to maintain attention and concentration for
extended periods, to complete a normal workday without interruptions from
psychologically based symptoms, and to respond appropriately to changes in the work
setting, but was otherwise "not significantly limited." (AR 325-26.) Dr. Schwartzreich
observed that Plaintiff was "able to do self-care, chores, meal prep, driving, shopping,
handling money" and opined that Plaintiff would be "[a]ble to sustain 1-4 step tasks for
2-hr periods over an 8-hr workday, across a 40-hr workweek .... He requires a quiet
workplace with straightforward, predictable tasks and adequate supervision" and "can
ha[n]dle the routine social demands of a workplace." (AR 327.) Dr. Schwartzreich
cautioned that Plaintiff"should avoid work stressors" but was nevertheless "able to
appreciate safety issues, travel in public, and show good judgment." !d.
Dr. Jonas's Testimony at the October 15, 2010 Hearing.
At the October 15, 2010 hearing before ALJ Merrill, Dr. Jonas, a board certified
psychiatrist, testified as an impartial expert who had not examined Plaintiff. Based on his
review of Plaintiffs medical records, he opined that there was "no genuine support for"
the diagnosis of bipolar disorder. (AR 568.) Dr. Jonas acknowledged that "[t]here is a
kind of an aspect of instability" and "a tenuousness of relating" in Plaintiffs behavior.
!d. However, nothing in the record "actually references or reflects an impairment in
A[ctivities of] D[aily] L[iving]." (AR 569.) He pointed to Plaintiffs prior status as a
stay-at-home parent as evidence that Plaintiff could engage in the activities of daily
living. Dr. Jonas stated that the record supported a finding that Plaintiff had moderate
limitations in social functioning, and questioned Dr. Edelstein's finding that Plaintiff had
marked restrictions, but was not sure that he would "completely disagree" with that
opinion. (AR 570.)
Dr. Jonas also questioned Dr. Edelstein's and Ms. Lewis's opinions that Plaintiff
had "marked" limitations in maintaining concentration, persistence and pace, noting that
in Dr. Edelstein's mental examinations from May and June 2010, Plaintiff was found to
have normal concentration and could manage his personal finances. Dr. Jonas concluded
that "my sense is that in reality there is no impairment." !d. Dr. Jonas nonetheless
acknowledged that Dr. Edelstein opined t~at Plaintiff satisfied the criteria for bipolar
With regard to treating opinions that indicate that Plaintiff suffers from bipolar
disorder, Dr. Jonas testified as follows:
[T]he record reflects that Ms. Lewis says that he's bipolar because Mr.
Co[te] says he's bipolar. And then, we have Dr. Wood says that he's felt to
have probable bipolar in discussions with, apparently, Mr. Co[te] and Ms.
Lewis. . . . [F]or whatever collection of reasons that will take a long time
for us to talk about, bipolar disorder is a dramatically over-applied
diagnosis, which is to say that diagnosis occurs essentially rampantly, but
the condition is fairly uncommon .... [B]ipolar is one or both of two
things. Either it is depression, that's one pole, and the other is mania or
hypomania. That's the other pole. Depression is a pretty familiar concept.
People have a sense of what that means. It's a person who is moderately or
deeply depressed. They look depressed. They act depressed. And, for
purpose of this diagnosis, we're talking about something that is continuous
for at least two weeks. This is not subtle, especially sometimes with
bipolar disorder. And so that's one pole. The other pole, the hypomanic or
manic, is somebody who is over-activated, and there are many
complications of that. They don't sleep well. Their behavior is poorly
controlled. They do things which they wouldn't normally do. They are
indiscrimina[te] about various kinds of things. And again, that's something
that will last for at least a few days. It is, again ... pretty dramatic. I[t]'s
not subtle. And, my purpose in mentioning this to you is that, for people
who are genuinely bipolar, medical notes are very clear about the mania or
the depression. They very clearly describe somebody who is manic and not
easy at all to control or very depressed .... In this record, we don't have
anything like that. We have some emotional instability ... [b ]ut, nothing
like real mania or real depression. So, again, in terms of the general
concept of bipolar disorder and thinking about Mr. Flynn in terms of how
he's reflected in the medical records, he and bipolar disorder are just not the
same thing at all.
Dr. Ruggiano's Testimony at the January 7, 2016 Hearing.
Dr. Ruggiano, an impartial, non-examining expert who is board certified by the
American Board of Psychiatry and Neurology, testified before ALJ Levin at Plaintiffs
fourth disability hearing to address the following remand from the Appeals Council:
"[C]larify the extent of the claimant's alcohol abuse, as it was not consistent throughout
the relevant period, and to re-assess whether it is material to the determination." (AR
Regarding Plaintiffs bipolar disorder diagnosis, Dr. Ruggiano opined that:
you would expect at some time in the record there would be a period of
mania, and then you'd expect in the record that it would be a period of
depression. The depression should be markedly different from his usual
state, which should be normal. In other words, bipolar people have a
course of illness which is chronic and remitting. It remits sometimes, and
that's not what's in this record.
(AR 613-14.) In light of Plaintiffs documented irritability, Dr. Ruggiano expected that a
person with such symptoms had used alcohol, marijuana, or other narcotics which "take
away frustration tolerance and make people irritable and not want to be bothered by other
people, and that's what I see in these progress notes." (AR 614.) Dr. Ruggiano therefore
"wonder[ed] ifthere's more alcohol being used than the patient is admitting to" but added
that he did not suggest that Plaintiff was lying "because patients who have drug, alcohol,
and narcotic problems ... usually have their own truth." I d. The only impairment Dr.
Ruggiano "ventured to make" was alcohol abuse (AR 615), and opined that Plaintiffs
limitations in social functioning, which he characterized as moderate, were attributable to
"central nervous system depressant chemicals" that could include "narcotics, sedative,
alcohol, and marijuana." (AR 616.) Dr. Ruggiano admitted that "it's a difficult record to
form opinions with reasonable certainty, and it usually is with alcohol abuse." (AR 613.)
Dr. Ruggiano could not determine with reasonable certainty when, after the alleged onset
date, Plaintiff resumed using alcohol.
Due to Plaintiffs suspected ongoing alcohol abuse, Dr. Ruggiano stated that
Plaintiff would "do better" in a job "in which he didn't have to interact with people" but
that there was "no evidence of cognitive impairment" and only moderate impairment in
Plaintiffs ability to maintain concentration, persistence, or pace. (AR 619.) Dr.
Ruggiano disagreed with Dr. Edelstein's December 2015 opinion that Plaintiff continued
to be disabled due to mood disorder and that alcohol was not the primary causative factor
in Plaintiff's illness. He summarized his disagreement as follows: "I read these treating
notes, and it makes me think there's an alcohol problem here, but I can't say with
reasonable certainty because [Plaintiff is] denying it; therefore, I'm left wondering why
he doesn't have frustration tolerance, and why he's so irritable, and why he doesn't get
better." (AR 621-22.)
When asked by Attorney Torrisi whether ECT is reserved for severe and
intractable psychiatric cases, Dr. Ruggiano stated that "it shouldn't be, but, yes, it is.
That's how it is nowadays, they save it for cases that don't respond to medications. My
personal opinion is that they ought to use it first because it works better and it's safer, but
that's not the common feeling[.]" (AR 626.)
Plaintiff's Testimony at the Hearings Before ALJ Merrill and
August 5, 2009 Hearing Before ALJ Merrill.
Plaintiff testified that he worked as a kitchen manager and cook from April 15,
2006 to October 15, 2006, and in those same roles at another restaurant establishment
from August 2005 to March 2006. Prior to those time periods, Plaintiff was a selfemployed restaurant manager from September 2004 to August 2005. At the time of the
August 5, 2009 hearing, Plaintiff had amassed twenty-five years of prior work experience
in the fields of cooking and restaurant management.
Plaintiff stated that "mental conditions" (AR 756) had prevented him from
working since October 31, 2006, including difficulty concentrating and finishing tasks,
and feeling overwhelmed. Plaintiff acknowledged a secondary diagnosis of alcohol
dependence, but maintained that it was an issue "[i]n the past, but I don't believe it's an
issue now, no." (AR 757.) He further stated that he did not believe his bipolar disorder
had improved, characterizing it as an "up and down battle." (AR 763.) He testified that
he visited Mr. Cote every four to six weeks and Ms. Lewis every two weeks for an hour
at a time.
On an average day, Plaintiff testified that he compiles a list of goals but "never
finish[ es] anything" and becomes frustrated as a result. He stops and takes breaks, but
upon returning to his chores feels overwhelmed and "go[ es] to watch a movie or
something and leave[s] everything right where it is." Id. While he used to enjoy working
in a public setting, Plaintiff declared that he now "hate[s] people" (AR 769) and "can not
accept the slightest change" that arises in his schedule (AR 770). Plaintiff reported
experiencing bouts of anger for which he sought treatment.
October 15,2010 Hearing Before ALJ Merrill.
Plaintiff testified that he applied to work at a restaurant after the initial adverse
decision by ALJ Merrill but was not invited for an interview. For the previous fourteen
months, Plaintiff testified that he continued to visit Ms. Lewis every two weeks, had
thrown objects, and had trouble sleeping.
Plaintiff acknowledged that he "had a DWI" (AR 549) approximately twenty or
twenty-five years previously and further admitted that during the prior spring he had been
drinking heavily for several weeks. Upon seeing Dr. Wood, Plaintiff was advised to go
to the Care Bed where he cut his wrists with a piece from a cribbage set. He remained
under medical care for five days. In August 2010, he started to "scratch" his wrists with
a knife "to practice for the real thing" and thought of suicide"[ q]uite often." (AR 551.)
Plaintiff stated that in the morning he sees his kids off to school, makes his own
breakfast, and takes his medicine. In the afternoon, Plaintiff takes a nap pursuant to Dr.
Edelstein's advice that "the more sleep I got, the better off I'd be." (AR 554.) Plaintiff
attended his son's soccer games, but did not attend other events involving his
stepchildren in order to avoid crowds and reported that he did not socialize with friends.
April4, 2013 Hearing Before ALJ Levin.
Plaintiff testified that he worked in a culinary position from December 20 10 to
February 2011 on an on-call basis. He explained that because this schedule was difficult
and his hours were reduced, he terminated his employment. After he left that position, he
found a more secure position in April 20 11, working approximately eight hours per day
two or three days per week as a cook. At some point thereafter, he was demoted to
working as a prep cook. During this period, Plaintiff stated he stopped seeing Ms. Lewis
"because I was seeing her for a long time and it just seemed like the same repetitive,
repetitive stuff." (AR 653.)
In early 20 12, Plaintiff took another position at a restaurant where he worked two
to four days per week, for an average of twenty hours per week. Later in 2012, Plaintiff
was asked to assume the responsibilities of his boss, which led to a series of"absolutely
horrible" panic attacks. (AR 656.) Between October 2010 and September 2012, Plaintiff
stated that he consumed one or two beers, three or four nights per week. From September
through November 2012, he acknowledged drinking "six plus beers a day" because he
felt "depressed and under a lot more pressure and just basically couldn't handle what was
going on." !d. Plaintiff stated that he had "not had a drop of alcohol" since November
25, 2012 when he consumed a large amount of Tylenol and was subsequently
hospitalized. (AR 657.)
Plaintiff testified that he received inpatient treatment at Dartmouth-Hitchcock for
approximately three weeks during which he received ECT and that he experienced "very
few" memory problems as a result. (AR 658.) Plaintiff stated that he continued to visit
Dr. Edelstein approximately once a month for fifteen to thirty minutes. In the several
months after his release from Dartmouth-Hitchcock, Plaintiff spent his days "lounging
around" for four to five hours watching television and listening to music, and helping his
kids in the morning. (AR 661.) His wife handled the grocery shopping for the
January 7, 2016 Hearing Before ALJ Levin.
At his fourth hearing, Plaintiff testified that he lived with his wife and three
stepchildren. He continued to see Dr. Edelstein once a month, engaged in counseling
every two weeks with a counselor at Northeast Kingdom Human Services since April
20 13, and took prescribed Trazodone, Mirtazapine, Lamotrigine, Cymbalta, Wellbutrin,
Plaintiff stated that he had consumed alcohol on one occasion since his
hospitalization in November 2012. He recounted teaching his son how to drive and
venturing onto a road that he did not realize was private, which prompted a verbal
altercation with the property owners. Plaintiff consumed a six-pack of beer after this
incident, which occurred sometime in October 2014.
Plaintiff testified that since he underwent ECT, he has experienced memory
problems: "I can't really remember things like in a week, in a day .... I make lists, and
then I forget them or lose them." (AR 603.) He described the feeling of having a "black
cloud" descending over him that "blocks my eyes, and makes things worse." (AR 607.)
ALJ Levin's Application of the Five-Step, Sequential Evaluation Process.
In order to receive SSDI benefits, a claimant must be disabled on or before his or
her date last insured. Social Security Administration ("SSA") regulations set forth the
following five-step, sequential evaluation process to determine whether a claimant is
( 1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a
"residual functional capacity" assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
( 5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.
Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). "The claimant has the general burden of
proving that he or she has a disability within the meaning of the Act, and bears the burden
of proving his or her case at [S]teps [O]ne through [F]our of the sequential five-step
framework established in the SSA regulations[.]" Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008) (internal quotation marks and citation omitted). At Step Five, "the burden
shift[s] to the Commissioner to show there is other work that [the claimant] can perform."
Mcintyre, 758 F.3d at 150 (alterations in original) (internal quotation marks omitted).
In this case, ALJ Levin determined that Plaintiffs date last insured was December
31, 20 13, and that Plaintiff had engaged in substantial gainful activity from April 20 11
through November 2012. At Step Two, ALJ Levin found that Plaintiff had the following
severe impairments: "bipolar disorder, anxiety disorder, and a history of alcohol abuse in
partial remission[.]" (AR 1272.) ALJ Levin noted that the record also revealed the
existence of physical conditions including diabetes mellitus, hypertension, intermittent
headaches, gastrointestinal reflux disease, back pain, and carpal tunnel syndrome.
However, in the absence of any claim Plaintiffs physical limitations were the basis of his
disability claim, ALJ Levin did not proceed further.
At Step Three, ALJ Levin found that Plaintiff had moderate restrictions in social
functioning and in maintaining concentration, persistence or pace, no restrictions in the
activities of daily living, and that he had experienced one or two episodes of
decompensation. As a result, ALJ Levin concluded that Plaintiff did not have an
impairment or combination of impairments that met or equaled the severity of any listed
impairment, as the listing criteria for bipolar disorder and anxiety disorder require at least
two "marked" limitations or one "marked" limitation and "repeated" episodes of
decompensation. (AR 1273.) At Step Four, he further concluded that Plaintiff had the
perform a full range of work at all exertionallevels but with the following
nonexertionallimitations: he is limited to simple, unskilled work. He
should avoid social interaction with the general public. He can perform
brief and superficial social interaction with coworkers and supervisors,
which is defined as a semi-isolated workstation with no close proximity to
any other people and would require no collaborative work. He is able to
maintain attention and concentration for two hour increments throughout an
eight-hour workday and 40-hour workweek.
(AR 1274.) ALJ Levin considered all of Plaintiffs alleged symptoms and found "that
[Plaintiffs] medically determinable impairments could reasonably be expected to cause
the alleged symptoms; however, [Plaintiffs] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible[.]" (AR
1275.) Based on Plaintiffs RFC, ALJ Levin determined that Plaintiff was not capable of
performing past relevant work.
At Step Five, based in part on VE LaFlamme's testimony, ALJ Levin determined
that Plaintiff was capable of performing the duties of representative vocations such as
price marker, laundry classifier, and janitor, and for this reason was not disabled.
Conclusions of Law and Analysis.
Standard of Review.
In reviewing the Commissioner's decision, the court '"conduct[s] a plenary review
of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner's decision and if the correct legal
standards have been applied."' Cichocki v. Astrue, 729 F .3d 172, 175-76 (2d Cir. 20 13)
(quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). Substantial evidence is
'"more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."' Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.
2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Even if the court
could draw different conclusions after an independent review of the record, the court
must uphold the Commissioner's decision when it is supported by substantial evidence
and when the proper legal principles have been applied. See 42 U.S.C. § 405(g).
Whether ALJ Levin Misapplied the Treating Physician Rule.
Plaintiff contends that ALJ Levin misapplied the treating physician rule by failing
to accord controlling weight to the opinions of Dr. Edelstein, which were corroborated by
Ms. Lewis, Mr. Cote, and Dr. Wood. "[T]he [Social Security Administration] recognizes
a treating physician rule of deference to the views of the physician who has engaged in
the primary treatment ofthe claimant[.]" Burgess, 537 F.3d at 128 (internal quotation
marks omitted). Under the treating physician rule, the opinions of treating physicians are
"binding if ... supported by medical evidence and not contradicted by substantial
evidence in the record." Selian, 708 F.3d at 418. However, "[a] treating physician's
statement that the claimant is disabled cannot itself be determinative." Snell v. Apfel, 177
F.3d 128, 133 (2d Cir. 1999).
To weigh the opinion of a treating physician, an ALJ must consider, among other
things, the length, frequency, nature, and extent of the treatment relationship; the
consistency of the opinion offered with the "record as a whole"; and whether the opinion
is "of a specialist about medical issues related to his or her area of specialty[.]" 20 C.F .R.
§§ 404.1527(c)(2), (4), (5) & 416.927(c)(2), (4), (5). An ALJ is "required either to give
[the opinions of a claimant's treating physician] controlling weight or to provide good
reasons for discounting them." Zabala v. Astrue, 595 F .3d 402, 409 (2d Cir. 201 0).
Plaintiff argues that ALJ Levin did not address the six factors enumerated in 20
C.P.R. § 404.1527(c) in evaluating Dr. Edelstein's opinions. While an ALJ must
consider the§ 404.1527(c) factors, he or she need not analyze each factor in order to
properly evaluate a treating physician's opinion. See Halloran v. Barnhart, 362 F.3d 28,
32-33 (2d Cir. 2004) (per curiam) (upholding decision where ALJ did not mention
§ 404.1527(c) factors but gave "good reasons" for his decision to afford little weight to a
treating physician's opinion such that "the substance of the treating physician rule was
not traversed"); see also Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013)
("[Plaintiff] challenges the ALJ's failure to review explicitly each factor provided in 20
C.P.R.§ 404.1527(c). We require no such slavish recitation of each and every factor
where the ALJ's reasoning and adherence to the regulation are clear.").
ALJ Levin afforded Dr. Edelstein's opinions "little" weight for five reasons. (AR
1280.) First, while Dr. Edelstein qualified as a treating physician, his opinions were
internally inconsistent. Specifically, he opined in September 2010, March 2013, and
December 2015 that Plaintiff could not work, but opined in September 20 11 that Plaintiff
could return to work nearly full-time. ALJ Levin accurately observed that Dr. Edelstein's
latter two opinions did not address this discrepancy. See Greathouse v. Colvin, 2015 WL
418132, at *13 (D. Conn. Jan. 30, 2015) ("A physician's opinions are given less weight
when his opinions are internally inconsistent.") (internal quotation marks omitted); see
also 20 C.P.R.§ 404.1527(c)(6) ("When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring to our attention, or
of which we are aware, which tend to support or contradict the opinion.").
ALJ Levin further noted that of the four opinions, only Dr. Edelstein's final
opinion rendered in December 2015 mentioned Plaintiff's alcohol use, thus "call[ing] into
question the reliability of these opinions and how comprehensively Dr. Edelstein
considered the claimant's functioning." (AR 1278.) In light of Plaintiffs testimony
acknowledging intermittent alcohol use that was excessive at times, ALJ Levin did not
err in according less weight to Dr. Edelstein's opinions on this basis. See Bus v. Astrue,
2010 WL 1753287, at *5 (W.D.N.Y. Apr. 29, 2010) (holding that ALJ provided good
reasons for not affording treating physician's opinion controlling weight, including that
the opinion did not consider the claimant's drug abuse, "lacks objective support and flies
in the face of other medical reports") (internal quotation marks omitted).
Second, ALJ Levin concluded that Dr. Edelstein's opinions were inconsistent with
the record as a whole, including Plaintiffs eighteen months of work, and ability to
perform household tasks and child care. As ALJ Levin observed, Dr. Edelstein's
September 2010 opinion was "contradicted by [Plaintiffs] ability to work at levels of
substantial gainful activity seven months later and continue this activity for the
subsequent 18 months." (AR 1278-79.) Similarly, although Dr. Edelstein opined that
Plaintiff suffered "marked" limitations in a number of areas, this opinion conflicts with
his May and June 2010 treatment notes which describe Plaintiff as having a full range of
affect, neutral mood, coherent speech, and as calm, friendly, and cooperative. ALJ Levin
supported his conclusion with detailed and accurate citations to Dr. Edelstein's treatment
notes during the course of his five-year treating relationship with Plaintiff.
Assessed in their totality, Dr. Edelstein's treatment notes, with few exceptions,
described Plaintiff as having a "euthymic" or "calm" mood and a full range of affect
through late 2012. (AR 1029-30, 1059, 1054.) While Dr. Edelstein recorded that
Plaintiffwas "downcast" in September 2011 after having a "rough month" (AR 1034),
one month later he recorded that Plaintiff was working a nearly full-time schedule of
thirty-five hours per week and had been "trying to keep up with a very large garden" (AR
1035). ALJ Levin concluded that this evidence was inconsistent with Dr. Edelstein's
opinion that Plaintiff had marked limitations in his ability to function in a work setting
and maintain concentration.
Third, ALJ Levin found Plaintiffs generally stable mood persisted after he had
been hospitalized at Dartmouth-Hitchcock following a suicide attempt. Dr. Edelstein's
notes revealed that Plaintiff had gone on a camping trip in the summer of 20 14 and
planned to go kayaking, activities which he found inconsistent with a mental disability
that precludes work or participation in a training program. In the ensuing time period,
Dr. Edelstein again documented Plaintiffs "euthymic" mood (AR 1235) and noted that
Plaintiff was not reporting significant depressive symptoms. Because ALJ Levin
identified numerous inconsistencies between Dr. Edelstein's opinion statements and his
treatment notes over a five-year time frame, he did not err in finding Dr. Edelstein's
opinions entitled to less weight. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)
("It is for the SSA, and not this court, to weigh the conflicting evidence in the record.");
see also 20 C.P.R.§ 404.1527(c)(4) ("Generally, the more consistent an opinion is with
the record as a whole, the more weight we will give to that opinion.").
Fourth, while ALJ Levin acknowledged that Dr. Edelstein had a "rather significant
history with" Plaintiff(AR 1280), which lasted from May 2010 through at least
December 28, 2015, he also noted that Dr. Edelstein first began to treat Plaintiff almost
four years after Plaintiffs alleged onset date of disability. In this respect, the ALJ
properly noted that Dr. Edelstein was not a treating physician for a significant portion of
the relevant time period. Cf 20 C.P.R.§ 1527(c)(2)(i) ("When the treating source has
seen you a number of times and long enough to have obtained a longitudinal picture of
your impairment, we will give the source's opinion more weight[.]").
Plaintiff contends that Dr. Edelstein's opinions are buttressed by the treatment
notes and opinion statements by Mr. Cote, Ms. Lewis, and Dr. Wood from June 2006 to
May 2010. However, these sources' opinions do not collectively or independently
compel a finding of disability. As ALJ Levin pointed out, neither Mr. Cote nor Ms.
Lewis is an acceptable medical source within the meaning of applicable SSA regulations.
See SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) (identifying nurse practitioners
and therapists as "other sources"). ALJ Levin further determined that Mr. Cote's
opinions ascribed no function-by-function limitations to Plaintiff and instead offered a
"conclusory finding of disability" (AR 1282) and that Ms. Lewis "provide[ d] almost no
analysis of the effect of alcohol on the claimant's mental condition" and even incorrectly
stated in her Mental Assessment that Plaintiffs alcohol was "no longer an issue" as of
October 10, 2010. (AR 1281.)
Although Plaintiff heavily relies upon Dr. Wood's February 16, 2007 treatment
note "[a]gree[ing] with disability on a psychiatric basis" (AR 283), ALJ Levin observed
that Dr. Wood made this comment very early in the relevant time period and performed
no mental status examination or assessment of Plaintiffs abilities or limitations to
support it. Moreover, a disability determination is reserved for the Commissioner. See
20 C.P.R.§ 1527(d)(l) (providing that the SSA is "responsible for making the
determination or decision about whether [the claimant] meet[s] the statutory definition of
disability" and that "[a] statement by a medical source that [the claimant is] 'disabled' or
'unable to work' does not mean that [the SSA] will determine that [the claimant] is
ALJ Levin properly accorded "little" weight to Dr. Wood's opinion (AR 1282) for
the further reason that he made his psychiatric diagnosis in apparent reliance on the
opinions of Ms. Lewis and Mr. Cote. Dr. Wood is not a specialist in psychiatry and his
opinion addresses none of the listing requirements for bipolar disorder. See Williams v.
Bowen, 859 F.2d 255, 259 (2d Cir. 1988) (holding that "it is not sufficient that there be a
diagnosis of a listed impairment" for a claimant to be entitled to SSDI benefits, but that
"the evidence must also establish that the medical findings demonstrate the existence of
the specific impairment").
Because ALJ Levin supplied good reasons for according little weight to the
opinions of Mr. Cote, Ms. Lewis, and Dr. Wood, the purported consistency of those
opinions with those offered by Dr. Edelstein did not undercut his rationale for according
Dr. Edelstein's opinions little weight.
Finally, ALJ Levin concluded that Dr. Edelstein's opinions were inconsistent with
those of Dr. Ruggiano which he accorded "great" weight. (AR 1277, 1283.)2 Plaintiff
argues that ALJ Levin's decision to accord great weight to Dr. Ruggiano's opinions
rested on a misinterpretation of Dr. Ruggiano's testimony. In particular, Plaintiff
criticizes ALJ Levin's statement that "Dr. Ruggiano testified ... that [ECT] is not
necessarily reserved for those with the most severe mental conditions, but rather is used
when medications have historically not been effective." (AR 1277-78.) Plaintiff
concedes that "[t]he ALJ was correct [that] ECT is used when medications fail" but
disputes that Dr. Ruggiano testified that ECT is not reserved for the most severe mental
conditions. (Doc. 8-1 at 8.)
An examination of the January 7, 2016 hearing transcript reveals that Dr.
Ruggiano admitted that it was "fair to say" that ECT is reserved for the "more severe or
intractable cases of depression" and that providers "save it for cases that don't respond to
medications." (AR 626.) He, however, further opined that, but for the stigma attached to
it, ECT would be used more readily. Accordingly, while ALJ Levin may have failed to
fully and accurately reflect Dr. Ruggiano's testimony regarding ECT, it also remains true
that Dr. Ruggiano opined that ECT did not necessarily indicate that the patient suffers
from an extreme or intractable mental impairment. Indeed, Plaintiff was released to
return to work shortly after he completed ECT. See AR 1084 (Dartmouth-Hitchcock
discharge summary recording that "it may be beneficial for [Plaintiff] to take a short
leave from work until he could effectively manage the stress" and that Plaintiff "agreed
that it would be better for him if he were to return after the New Year"). As a result, Dr.
"In appropriate circumstances, opinions from State agency medical and psychological
consultants and other program physicians and psychologists may be entitled to greater weight
than the opinions oftreating or examining sources." SSR 96-6p, 1996 WL 374180, at *3 (July 2,
1996). Provided that the non-examining sources' opinions "are supported by evidence in the
record[,]" the ALJ may "permit the opinions of nonexamining sources to override treating
sources' opinions[.]" Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v.
Sullivan, 3 F.3d 563, 567-68 (2d Cir. 1993)); see also Mongeur v. Heckler, 722 F.2d 1033, 1039
(2d Cir. 1983) ("[T]he opinion of a treating physician is not binding if it is contradicted by
substantial evidence, and the report of a consultative physician may constitute such evidence.")
Ruggiano's testimony supported ALJ Levin's conclusion that "[t]he fact that [Plaintiff]
underwent electro-convulsive therapy is a factor in the overall analysis but does not by
itself reflect a need for limitations in excess of those identified." (AR 1278.)
To the extent Plaintiff contends that any reliance on Dr. Ruggiano's testimony was
misplaced, ALJ Levin provided good reasons for reaching a contrary conclusion. He
acknowledged the absence of a treating relationship but pointed out that Dr. Ruggiano is
board certified in psychiatry and neurology and is familiar with SSA rules and
regulations. He also noted that Dr. Ruggiano reviewed the medical record in its entirety
and rendered an assessment of Plaintiffs abilities that was consistent with his symptom
presentation, in contrast to the opinions of Dr. Edelstein, Ms. Lewis and Mr. Cote.
Based on the foregoing, ALJ Levin supplied at least five good reasons not to
afford Dr. Edelstein's opinions controlling weight under the treating physician rule: (1)
Dr. Edelstein's opinions were internally inconsistent and failed to adequately address
Plaintiffs alcohol use; (2) his opinions were inconsistent with Plaintiffs demonstrated
ability to work during the 2011-12 time period; (3) his opinions were inconsistent with
his treatment notes documenting Plaintiffs generally mild symptoms; (4) his treating
relationship with Plaintiff began relatively late in the relevant time period; and (5) his
opinions were contradicted by the well-supported opinions of Dr. Ruggiano. Although a
close question, in light of ALJ Levin's "good reasons," the treating physician rule was
not traversed even if this court might have reached a different conclusion. See Valente v.
Sec'y ofHealth & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984) ("The court may
not substitute its own judgment for that of the Secretary, even if it might justifiably have
reached a different result upon a de novo review."); see also Stolpen v. Astrue, 2009 WL
1505524, at *1 (D. Conn. Mar. 24, 2009) (noting that "a court may not decide facts, reweigh evidence or substitute its judgment for that of the Commissioner" and that "[u ]nder
this standard of review, absent an error oflaw, a court must uphold the Commissioner's
decision if it is supported by substantial evidence, even if the court might have ruled
Whether ALJ Levin Properly Evaluated the Evidence Regarding
Plaintiff's Alcohol Use.
The Social Security Act provides that "[a]n individual shall not be considered ...
disabled ... if alcoholism or drug addiction would (but for [certain exceptions]) be a
contributing factor material to the Commissioner's determination that the individual is
disabled." 42 U.S.C. § 423(d)(2)(C). Applicable regulations provide: "[i]fwe find that
you are disabled and have medical evidence of your drug addiction or alcoholism, we
must determine whether your drug addiction or alcoholism is a contributing factor
material to the determination of disability." 20 C.F.R. § 404.1535(a). The "key factor"
in this inquiry is "whether [the Commissioner] would still find [the claimant] disabled if
[he or she] stopped using drugs or alcohol." Id. § 1535(b)(l). The Second Circuit has
held that the claimant bears the burden of demonstrating that his or her drug addiction or
alcoholism is not material to the disability determination. See Cage v. Comm 'r of Soc.
Sec., 692 F.3d 118, 120 (2d Cir. 2012) (holding that claimants "bear the burden of
proving that they would be disabled in the absence of [drug addiction or alcoholism]").
In his April 9, 20 13 decision, ALJ Levin found that:
[Plaintiffs] substance use disorder is a contributing factor material to the
determination of disability because the claimant would not be disabled if he
stopped the substance abuse[.] Because the substance use disorder is a
contributing factor material to the determination of disability, the claimant
has not been disabled within the meaning of the Social Security Act at any
time from the alleged onset date through the date of this decision.
(AR 727.) The Appeals Council subsequently remanded the case to ALJ Levin on a
number of grounds, including its observation that "while the administrative record
includes evidence of alcohol abuse for portions of the period at issue, the record does not
conclusively establish that the claimant abused alcohol for the entire period at issue."
(AR 742.) The Appeals Council directed ALJ Levin to "[o]btain evidence from a new
medical expert (preferably a board-certified psychiatrist) to clarify the nature and severity
of the claimant's impairment ... and to assist in determining whether substance abuse is
a contributing factor material to a finding of disability." (AR 744.) In the decision under
review, ALJ Levin concluded that "[u]pon further consideration ofthe evidence of record
in its totality and giving great weight to the opinion of Dr. Ruggiano, I find that alcohol
abuse is not material to the determination" of disability. (AR 1276.)
Plaintiff contends that despite ALJ Levin's finding that Plaintiffs alcohol use was
not material, the ALJ' s decision is nevertheless premised on an unfounded assumption
that Plaintiff engaged in significant alcohol use during the period under review. 3
Specifically, Plaintiff challenges ALJ Levin's statement that "Dr. Ruggiano testified that
the claimant does have a history of significant alcohol use" (AR 1276), noting it is an
inaccurate paraphrase of Dr. Ruggiano's testimony. Dr. Ruggiano testified that "I don't
even know how much alcohol [Plaintiff is] using" but "I read these treating notes, and it
makes me think there's an alcohol problem here, but I can't say with reasonable certainty
because he's denying it[.]" (AR 621.) Although the ALJ failed to accurately summarize
this testimony, the thrust of his conclusion was that Plaintiffs medical sources did not
adequately address his alcohol use in rendering their opinions and that Dr. Ruggiano
disagreed with Dr. Edelstein's opinion that alcohol was not the "primary causative factor
in [Plaintiffs] illness" (AR 621) and instead opined that Plaintiff may have been using
central nervous system depressants, which include alcohol. 4 This is a fair
characterization of the record. Moreover, as it was only one of several reasons why ALJ
Levin accorded Plaintiffs treatment providers' opinions little weight, ALJ Levin's failure
to accurately summarize the entirety of Dr. Ruggiano's testimony regarding Plaintiffs
alcohol use is not grounds for remand.
Plaintiff argues in his motion to reverse that "the ALJ' s opinion is quite confusing, selfcontradictory and misleading on the question of alcohol use" (Doc. 8-1 at 8) and that "[w]hat
seems to be going on here is the ALJ wants to thread a needle: he is bootstrapping Dr.
Ruggiano's speculation about alcohol to a higher level without always acknowledging that he is
doing so." !d. at 13.
Plaintiff further argues that ALJ Levin was required to consider whether Plaintiffs prescribed
use of Benzodiazepine may have caused his symptoms, citing Dr. Ruggiano' s testimony that
Benzodiazepine constituted a "central nervous system depressant" that could diminish Plaintiffs
"frustration tolerance." (AR 614.) Had ALJ Levin done so, however, there is no evidence that
his conclusion would have been different. The thrust of Dr. Ruggiano's opinion was that
symptoms of irritability remit in bipolar disorder while Plaintiffs irritability remained relatively
constant even when addressed by medication. Plaintiff does not attribute his frustration to his
use ofBenzodiazepine and provided no grounds for ALJ Levin to do so.
ALJ Levin credited Dr. Ruggiano's testimony because he found that it was
consistent with the record as a whole and reasonably called into question whether
Plaintiffs periodic and potentially understated use of alcohol was overlooked by Dr.
Edelstein in his bipolar diagnosis. Against this backdrop, ALJ Levin's treatment of
Plaintiffs alcohol use was not reversible error. See Sova v. Colvin, 2014 WL 4744675, at
*9 (N.D.N.Y. Sept. 23, 2014) (holding that because the ALJ's finding was "supported by
substantial evidence other than the statement in question, reconsideration on remand
would not likely result in a different outcome, and therefore the error is harmless").
Whether ALJ Levin's Credibility Determination Was Supported by
Plaintiff argues that his credibility was improperly assessed by ALJ Levin because
his "strong work history is entitled to substantial credibility" and "[h]is complaints were
consistent." (Doc. 8-1 at 14-15.) SSA regulations provide that "[o]ne strong indication
of the credibility of an individual's statements is their consistency, both internally and
with other information in the case record." SSR 96-7p, 1996 WL 374186, at *5 (July 2,
1996). In rendering a credibility assessment, the ALJ "must compare statements made by
the individual in connection with his or her claim for disability benefits with statements
he or she made under other circumstances" and consider whether those statements are
consistent with "reports and observations by other persons concerning the individual's
daily activities, behavior, and efforts to work." Id. at *5-6.
Credibility determinations are reserved for the ALJ and the court may not
substitute its own judgment for that of the Commissioner. See Yancey v. Apfel, 145 F.3d
106, 111 (2d Cir. 1998) ("Where an administrative decision rests on adequate findings
sustained by evidence having rational probative force, the court should not substitute its
judgment for that of the Commissioner."); Aponte v. Sec y, Dep 't of Health & Human
Servs. of US., 728 F.2d 588, 591 (2d Cir. 1984) ("It is the function of the
[Commissioner], not the reviewing courts, to resolve evidentiary conflicts and to appraise
the credibility of witnesses.") (internal quotation marks omitted).
Here, ALJ Levin documented a series of inconsistencies between Plaintiffs claims
of disabling mental impairments and the reports and observations of his treating sources
regarding the extent of Plaintiffs daily activities. ALJ Levin found that Plaintiffs claims
were "[m]ost convincingly" contradicted by his eighteen months of continuous
employment in the culinary field. (AR 1277/ He further noted that Plaintiffs ability to
perform household chores and pursue hobbies which included gardening, woodworking,
and home repairs, and activities such as camping and kayaking were inconsistent with the
limitations Plaintiff claimed. Inconsistencies in Plaintiffs self-reports during the relevant
time period buttress this conclusion. Plaintiff testified at his January 7, 2016 hearing that
he experienced memory loss following his ECT in December 2012, but claimed very
little memory loss at the April 4, 2013 hearing, and contemporaneous treatment notes
record that Plaintiff had an intact memory in the period following his ECT treatment.
ALJ Levin also properly found that Plaintiffs complaints of near complete debilitation
were inconsistent with the treatment notes of his health care providers, which "do not
describe the claimant as presenting with abnormalities or deficits consistent with the
extent and frequency of symptoms he described." (AR 1276.)
Although Plaintiffs work history militates in favor of finding his complaints
credible, see Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983) (noting that "[a]
claimant with a good work record is entitled to substantial credibility when claiming an
inability to work because of a disability"), a claimant's work history is 'just one of many
factors that the ALJ is instructed to consider in weighing the credibility of claimant
testimony." Schaal, 134 F.3d at 502. In this case, ALJ Levin considered Plaintiffs work
history and nonetheless found that Plaintiff was not entirely credible. Because substantial
evidence supports ALJ Levin's credibility determination, the court cannot reject it merely
SSA regulations provide that during a "trial work period" a claimant "may test [his or her]
ability to work and still be disabled." 20 C.F.R. § 404.1592(a). As the Commissioner argues,
Plaintiff's characterization of this eighteen-month period as a trial work period is misplaced
because a trial work period can last "as many as 9 months[.]" Id ALI Levin was therefore not
required to regard Plaintiff's return to work from April2011 to November 2012 as a trial work
because it might have reached a different conclusion. See Genier v. Astrue, 606 F .3d 46,
49 (2d Cir. 2010) ("Even where the administrative record may also adequately support
contrary findings on particular issues, the ALJ' s factual findings must be given
conclusive effect so long as they are supported by substantial evidence.") (internal
quotation marks omitted).
In summary, although this case presents a close question, and although in a de
novo review this court might reach a different conclusion, Plaintiff has not established
that the ALJ' s decision is not supported by substantial evidence or that the ALJ
misapplied applicable legal standards in such a manner as to constitute reversible error.
In such circumstances, the Commissioner's motion to affirm must be granted. See Shaw
v. Carter, 221 F .3d 126, 131 (2d Cir. 2000) ("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.").
For the foregoing reasons, the court DENIES Plaintiff's motion for an Order
reversing the Commissioner's decision (Doc. 8) and GRANTS the Commissioner's
motion to affirm (Doc. 11 ).
Dated at Burlington, in the District of Vermont, this
day of April, 2017.
United States District Court
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