Lawrence v. Commissioner of Social Security
Filing
15
OPINION AND ORDER: Plaintiff's 11 MOTION for Order Reversing the Decision of the Commissioner is DENIED and Defendant's 12 MOTION for Order Affirming the Decision of the Commissioner is GRANTED. Signed by Judge John M. Conroy on 6/5/2018. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Tanya L.,
Plaintiff,
v.
Civil Action No. 2:17-cv-136
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 11, 12)
Plaintiff Tanya L. brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the
Commissioner of Social Security denying her application for Supplemental Security
Income (SSI). Pending before the Court are Plaintiff’s motion to reverse the
Commissioner’s decision (Doc. 11), and the Commissioner’s motion to affirm the same
(Doc. 12). For the reasons stated below, Plaintiff’s motion is DENIED, and the
Commissioner’s motion is GRANTED.
Background
Plaintiff was 31 years old on her alleged disability onset date of November 23,
2013. She struggled in school and dropped out after the ninth grade. She has had
many jobs over the years, including as a cashier and a cleaner, but each for only a
very brief period. Her last job was at a Kmart in West Lebanon, New Hampshire in
2013. Plaintiff is divorced and has four children, approximately ages 10, 15, 17,
and 18. As of January 2016, she was living in an apartment in Middlebury with her
children and her boyfriend.
Plaintiff has a long history of trauma beginning in early childhood and
continuing into adulthood. As a child, she was physically abused by her parents
(primarily her mother) and her brothers. She made a complaint to the State and was
removed from the home and placed in foster care at the age of 12 or 13. She began
receiving mental health treatment, and was diagnosed with attention deficit
hyperactivity disorder (ADHD), posttraumatic stress disorder (PTSD), depression,
and anxiety.
Plaintiff was pregnant at the age of 16 by a man who was 31 years old. She
moved to Florida and then to California with a different man, John, later returning
to Vermont to live with her mother for about a month before she aged out of custody.
Thereafter, she lived with John, who she married in May 2001 and with whom she
had two more children. John physically and verbally abused Plaintiff and had
substance abuse problems. The couple divorced in July 2009, with Plaintiff receiving
custody of the children.
In April 2010, Plaintiff was raped by an intruder in Winooski. Later that year,
she moved to Ohio with a new boyfriend who also physically and verbally abused her.
In September 2010, Plaintiff was involved in an automobile accident. She moved
back to Vermont in October 2011, briefly staying with friends before moving into a
motel in Middlebury with her children. At some point, Plaintiff met and became
engaged to a man named Bruce, who appears to be (the record is unclear on this) the
father of her fourth child. In 2012, six days before their wedding, Bruce was killed in
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a motorcycle accident. After his passing, Bruce’s family evicted Plaintiff from his
house, and Plaintiff lived in her car while her children moved in with her mother.
Thereafter, Plaintiff met her current boyfriend, Justin; and she and her children
moved into Justin’s home in Royalton.
Given the abuse she has suffered over the years, Plaintiff has psychological
problems, including feeling fearful and helpless, and experiencing recurrent intrusive
recollections and dreams of the abuse. She also feels detached and estranged from
people, has difficulty concentrating, is afraid to go out alone, has low energy, and has
feelings of worthlessness and guilt. In addition to her mental problems, Plaintiff
suffers from neck pain, back pain, and numbness and tingling in her hands, legs, and
feet.
On a typical day during the alleged disability period, Plaintiff got her children
ready for school in the morning, with Justin’s help. (AR 57, 627.) Often, she then
returned to bed until the children returned home after school. (Id.) Justin, who was
unemployed, did most of the household chores including cooking and cleaning, with
the help of Plaintiff’s daughter. (AR 56, 627.)
On March 5, 2014, Plaintiff filed an application for SSI, alleging that, starting
on November 23, 2013, she has been unable to work due to ADHD, PTSD, anxiety,
depression, back problems, and neck pain. (AR 119.) Plaintiff explained that she has
held many jobs lasting only one or two weeks because she “‘do[es]n’t feel like doing
[the job]’” and she “‘sleep[s] all the time.’” (AR 390.) She has tried looking for jobs,
but found that “‘nothing interested [her].’” (Id.) Plaintiff’s SSI application was
denied initially and upon reconsideration, and Plaintiff timely requested an
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administrative hearing. The hearing was conducted on January 13, 2016 by
Administrative Law Judge (ALJ) Joshua Menard. (AR 31–65.) Plaintiff appeared
and testified, and was represented by an attorney. A vocational expert (VE) also
testified. On February 12, 2016, the ALJ issued a decision finding that Plaintiff had
not been under a disability under the Social Security Act since the date her
application was filed. (AR 17–25.) Thereafter, the Appeals Council denied Plaintiff’s
request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (AR 1–3.) Having exhausted her administrative remedies, Plaintiff
filed the Complaint in this action on July 24, 2017. (Doc. 3.)
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in
“substantial gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is
not so engaged, step two requires the ALJ to determine whether the claimant has a
“severe impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the
claimant has a severe impairment, the third step requires the ALJ to make a
determination as to whether that impairment “meets or equals” an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§
404.1520(d), 416.920(d). The claimant is presumptively disabled if his or her
impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582,
584 (2d Cir. 1984).
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If the claimant is not presumptively disabled, the ALJ is required to determine
the claimant’s residual functional capacity (RFC), which means the most the
claimant can still do despite his or her mental and physical limitations based on all
the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e),
404.1545(a)(1), 416.920(e), 416.945(a)(1). The fourth step requires the ALJ to
consider whether the claimant’s RFC precludes the performance of his or her past
relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the
ALJ determines whether the claimant can do “any other work.” 20 C.F.R. §§
404.1520(g), 416.920(g). The claimant bears the burden of proving his or her case at
steps one through four, Butts, 388 F.3d at 383; and at step five, there is a “limited
burden shift to the Commissioner” to “show that there is work in the national
economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009) (clarifying that the burden shift to the Commissioner at step five is limited,
and the Commissioner “need not provide additional evidence of the claimant’s
[RFC]”).
Employing this sequential analysis, ALJ Menard first determined that
Plaintiff had not engaged in substantial gainful activity since March 5, 2014, the date
of her application. (AR 19.) At step two, the ALJ found that Plaintiff had the
following severe impairments: degenerative disc disease of the cervical and lumbar
spine, depression, and anxiety. (Id.) At step three, the ALJ found that none of
Plaintiff’s impairments, alone or in combination, met or medically equaled a listed
impairment. (AR 19–21.) Next, the ALJ determined that Plaintiff had the RFC to
perform light work, as defined in 20 C.F.R. § 416.967(b), except as follows:
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[Plaintiff] can frequently climb ladders and scaffolds. She is limited to
performing simple, routine tasks[;] and can frequently respond
appropriately to supervisors and coworkers. She can occasionally
respond appropriately to the public and is limited to simple work-related
decisions.
(AR 21.) Given this RFC, the ALJ found that Plaintiff was unable to perform her
past relevant work as a cashier or commercial cleaner. (AR 24.) Finally, based on
testimony from the VE, the ALJ determined that Plaintiff could perform other jobs
existing in significant numbers in the national economy, including cleaner, price
marker, and document preparer/scanner. (AR 24–25.) The ALJ concluded that
Plaintiff had not been under a disability since her application was filed. (AR 25.)
Standard of Review
The Social Security Act defines the term “disability” 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)(1)(A). A person will be found disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous
work[,] but cannot, considering his 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).
In considering a Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
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Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual
review of the Commissioner’s decision is thus limited to determining whether
“substantial evidence” exists in the record to support such decision. 42 U.S.C. §
405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan,
904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support
either position, the determination is one to be made by the factfinder.”). “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. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305. In its deliberations, the
court should bear in mind that the Social Security Act is “a remedial statute to be
broadly construed and liberally applied.” Dousewicz v. Harris, 646 F.2d 771, 773 (2d
Cir. 1981).
Analysis
Plaintiff argues that the ALJ erred in failing to weigh the medical evidence
according to the regulations, and more particularly, failing to consider the opinions of
nonexamining agency consultant Dr. Ellen Atkins. (Doc. 11 at 2.) Plaintiff further
contends that the ALJ should have stricken the VE’s testimony from the record
because “it appears [the VE] intentionally misled the tribunal.” (Id.) In response,
the Commissioner argues that the ALJ made no legal errors and the record contains
substantial evidence to support the ALJ’s decision. (Doc. 12.)
I.
ALJ’s Analysis of the Medical Opinions
After explaining his decision to give “great weight” to the opinions of several
examining and nonexamining medical consultants (AR 22–23), the ALJ stated that
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he “accord[ed] little weight to the opinions submitted by [Plaintiff’s] treating
physicians and counselors” because these opinions “are conclusory in nature and
provide no explanation of the evidence relied on in forming [them].” (AR 23.) The
ALJ explained that these opinions “did not document positive objective clinical or
diagnostic findings to support any of the statements made in their medical source
statements.” (Id.) Plaintiff argues that the second statement quoted above
improperly “use[s] the criteria for controlling weight––well-supported by medically
acceptable clinical and laboratory diagnostic techniques––to give the opinions little
weight.” (Doc. 11 at 5.)
Under the “treating physician rule,” a treating source’s opinion on the nature
and severity of the claimant’s condition is entitled to “controlling weight” if it is
“well[] supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 416.927(c)(2)1; see Schisler v. Sullivan, 3 F.3d 563, 567–69 (2d
Cir. 1993). When, however, as here, controlling weight is not given to a treating
source’s opinions, the ALJ must consider the following “factors” in determining how
much weight, if any, to give the opinions: (1) the length of the treatment relationship
and frequency of examination; (2) the nature and extent of the treatment
relationship; (3) whether the opinions are supported by relevant medical evidence or
The Social Security Administration recently adopted regulations that change the standards
applicable to the review of medical opinion evidence for claims filed on or after March 27, 2017. See
20 C.F.R. § 416.920c(a) (“We will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) . . . , including those from your medical sources. . . . [W]e
will consider those medical opinions . . . together using the factors listed in paragraphs (c)(1) through
(c)(5) of this section, as appropriate.”). Because Plaintiff filed her claims before March 2017, however,
the Court applies the treating physician rule under the earlier regulations (20 C.F.R. § 416.927), and
not under the more recent ones (20 C.F.R. § 416.920c).
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explanation; (4) whether the opinions are consistent with the record as a whole;
(5) the specialization of the treating source with respect to the condition being
treated; and (6) any other factors that may be significant. 20 C.F.R. § 416.927(c)(2);
see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Treating source opinions may be rejected based on the ALJ’s proper
consideration of any of these factors, and the ALJ need not expressly recite each
factor in his decision. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (“We
require no . . . slavish recitation of each and every factor where the ALJ’s reasoning
and adherence to the regulation are clear.”) (citing Halloran, 362 F.3d at 31–32).
Nonetheless, ALJs must give “good reasons” for the weight they assign to a treating
source’s opinions, 20 C.F.R. § 416.927(c)(2), and failure to do so is ground for remand,
Halloran, 362 F.3d at 33. Examples of “good reasons” to discount the opinions of a
treating source include the following: the opinions are inconsistent with the bulk of
the other substantial evidence, such as the opinions of other medical sources, see, e.g.,
Williams v. Comm’r of Soc. Sec., 236 F. App’x 641, 643–44 (2d Cir. 2007); the opinions
are internally inconsistent, see, e.g., Micheli v. Astrue, 501 F. App’x 26, 28 (2d Cir.
2012); the physician’s relationship to the claimant was “limited and remote,” see, e.g.,
Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011); the treating source gave only
brief, conclusory opinions unsupported by clinical findings or other evidence, 20
C.F.R. § 416.927(c)(3); or the treating source lacked expertise in the relevant medical
specialty, id. at (c)(5).
The Plaintiff’s argument that the ALJ erred in using the criteria for affording
treating source opinions controlling weight in the context of affording Plaintiff’s
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treating source opinions little weight is meritless, as the applicable regulation
implicitly contemplates a similar analysis with respect to both opinions that receive
controlling weight and those that receive less than controlling weight. See 20 C.F.R.
§ 416.927(c). Moreover, the regulation explicitly directs as follows with respect to
assessing the weight of a treating source opinion that is not entitled to controlling
weight: “The more a medical source presents relevant evidence to support a medical
opinion, particularly medical signs and laboratory findings, the more weight we will
give that medical opinion.” Id. at (c)(3) (emphasis added). Therefore, the ALJ’s
consideration of whether the opinions of Plaintiff’s treating physicians and
counselors “document[ed] positive objective clinical or diagnostic findings [in support
thereof]” (AR 23) was proper.
Moreover, the ALJ explicitly and unambiguously applied a significant
regulatory factor––supportability––in assessing the opinions of Plaintiff’s treating
sources. (Id.) Specifically, the ALJ found that the opinions of Plaintiff’s treating
sources were “conclusory in nature,” another way to say unsupported, a factor listed
in 20 C.F.R. § 416.927(c)(3) and discussed above. ALJs are clearly entitled to afford
less weight, or even no weight, to treating source opinions that are “conclusory and
unsupported by clinical findings.” Orts v. Astrue, No. CIV.A. 5:11-512, 2012 WL
6803588, at *5 n.8 (N.D.N.Y. Nov. 14, 2012), report and recommendation adopted, No.
5:11-CV-0512 LEK/ESH, 2013 WL 85071 (N.D.N.Y. Jan. 7, 2013) (citing Perez v.
Barnhart, 415 F.3d 457, 466 (5th Cir. 2005) (ALJ justified in giving little weight to
treating physician opinions, where opinions contained “statements that [we]re brief
and conclusory, not supported by medically acceptable clinical laboratory diagnostic
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techniques, or otherwise unsupported by the evidence” (internal quotation marks
omitted)); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“ALJ need not
accept the opinion of any physician, including a treating physician, if that opinion is
brief, conclusory, and inadequately supported by clinical findings”); Alvarado v.
Barnhart, 432 F. Supp. 2d 312, 320 (W.D.N.Y. 2006) (“Appeals Council would have
been justified in rejecting [treating physician’s] opinion that plaintiff could not work
until after she had knee surgery, since that conclusory opinion was inconsistent with
the other medical evidence in the record, and was not supported by any test results,
or indeed by any stated diagnostic techniques”)).
Further, the Court is able to glean from the ALJ’s decision that he considered
another important factor––consistency with the record––in assessing the opinions of
Plaintiff’s treating sources. See 20 C.F.R. § 416.927(c)(4) (“Generally, the more
consistent a medical opinion is with the record as a whole, the more weight we will
give to that medical opinion.”). The ALJ implicitly found that the treating source
opinions were inconsistent with the consulting and reviewing medical opinions, as
well as with imaging studies, normal physical examinations, and Plaintiff’s reported
daily activities of living2. (See AR 22–23.) Because a comparison of this evidence
Plaintiff asserts that she could not complete many of her daily activities, including caring for
her four children, without the help of others, particularly her boyfriend Justin. (See Doc. 13 at 2–3.)
But there is substantial evidence supporting the ALJ’s finding that Plaintiff “perform[ed] a wide
variety of daily activities in spite of [her] alleged functional limitations arising from her impairments”
(AR 22). (See, e.g., AR 244 (“excited to get back to work”; “the last [six] years she was raising her
kids”), 655 (“able to care for children and home with assistance of fiancée”), AR 718 (“staying with a
friend when she doesn’t have her children”), 918 (“takes care of her [four] children by herself”).) It is
within the ALJ’s––not the court’s––discretion to resolve these genuine conflicts in the evidence. Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)
(“If evidence is susceptible to more than one rational interpretation, the Commissioner’s conclusion
must be upheld.”); Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“[W]e do not
substitute our judgment for the agency’s . . . [;] [i]n our review, we defer to the Commissioner’s
resolution of conflicting evidence.”).
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reveals the inconsistency (compare, e.g., AR 130, 132, 392, 629, 817, 881, 918, 942,
with AR 676, 804, 805), the ALJ’s failure to explicitly consider the “consistency”
factor in assessing the value of Plaintiff’s treating source opinions was harmless
error at most, and remand is unnecessary on this ground. See Zabala v. Astrue, 595
F.3d 402, 409 (2d Cir. 2010) (“Remand is unnecessary . . . [w]here application of the
correct legal standard could lead to only one conclusion.” (internal quotation marks
omitted) (alteration in original)); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)
(“[W]here application of the correct legal principles to the record could lead to only
one conclusion, there is no need to require agency reconsideration.”); see also Filichko
v. Colvin, No. 15CV00525AJNSN, 2016 WL 3166899, at *7 (S.D.N.Y. Apr. 27, 2016),
report and recommendation adopted, No. 15-CV-525 (AJN), 2016 WL 3197134
(S.D.N.Y. June 6, 2016) (where court could “glean findings under factors 3, 4, and 5
from the ALJ’s opinion,” “ALJ’s failure to follow punctiliously the structured analysis
described in 20 C.F.R. § 416.927(c) was not reversible error”); Petrie, 412 F. App’x at
406–07 (claimant’s contention that ALJ failed to consider all relevant factors in
giving treating physician’s opinion minimal weight was without merit because court
could “glean the rationale of [the] ALJ’s decision” (internal quotation marks
omitted)).
Substantial evidence supports the ALJ’s finding that the treating source
opinions are entitled to little weight because they are unsupported and inconsistent
with the record. The only opinions discussed on this point in Plaintiff’s brief are the
opinions of treating psychiatrist Dr. Evelyn Gerretson. (See Doc. 11 at 6–8.) Plaintiff
began treatment with Dr. Gerretson on January 4, 2015. (AR 755.) On January 15,
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and October 15, 2015, respectively, Dr. Gerretson opined on “Temporary Medical
Deferment” forms issued by the Vermont Department for Children and Families
Economic Services Division, that Plaintiff could not engage in any work activities on
a weekly basis due to her mental impairments, including depression, PTSD, social
anxiety, ADHD, panic attacks, and bipolar disorder. (AR 676, 805.) In a form dated
October 1, 2015 (between the dates of the other two forms), Dr. Gerretson opined that
Plaintiff could engage in work activities for 10 hours per week. (AR 804.)
The ALJ was not required to give Dr. Gerretson’s opinions significant weight
because the opinions primarily address the ultimate question of disability, concluding
that Plaintiff is unable to work, which is an issue reserved to the Commissioner. The
regulations provide that “[a] statement by a medical source that [the claimant is]
‘disabled’ or ‘unable to work,’” 20 C.F.R. § 416.927(d)(1), is not a medical opinion but
an “opinion[] on [an] issue[] reserved to the Commissioner because [it is an]
administrative finding[] that [is] dispositive of [the] case; i.e., that would direct the
determination or decision of disability,” id. at § 404.1527(d). See Taylor v. Barnhart,
83 F. App’x 347, 349 (2d Cir. 2003) (holding that doctor’s opinion that claimant was
“‘temporarily totally disabled’” was entitled to no weight, “since the ultimate issue of
disability is reserved for the Commissioner”); SSR 96-5p, 1996 WL 374183, at *2
(July 2, 1996) (“treating source opinions on issues that are reserved to the
Commissioner are never entitled to controlling weight or special significance[, as
g]iving controlling weight to such opinions would . . . confer upon the treating source
the authority to make the . . . decision about whether an individual is under a
disability, and thus would be an abdication of the Commissioner’s statutory
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responsibility to determine whether an individual is disabled”). Further, as the ALJ
noted, Dr. Gerretson’s opinions are conclusory: they fail to explain what evidence the
Doctor relied on in formulating them. See Halloran, 362 F.3d at 31 n.1 (standardized
form furnished by the New York State Office of Temporary and Disability Assistance
“only marginally useful for purposes of creating a meaningful and reviewable factual
record” in disability case).
Also, Dr. Gerretson’s opinions conflict with those of agency consultants
Dr. Edward Hurley and Dr. Ellen Atkins, who opined in May 2014 and August 2014,
respectively, that Plaintiff was able to perform a range of limited work despite her
mental impairments. (See AR 113–15, 129–31.) Plaintiff claims the ALJ erred in
failing to discuss Dr. Atkins’s August 2014 opinions (see Doc. 11 at 8–9), but the
Court finds no error given that these opinions mirror those of Dr. Hurley (compare
AR 114–15 with AR 130–31), and the ALJ properly considered the opinions of
Dr. Hurley in his decision (see AR 23). Plaintiff claims the ALJ should have adopted
Dr. Atkins’s (and Dr. Hurley’s) opinion that Plaintiff could perform only “1–3 step
tasks” “with social restrictions” in his RFC determination. (AR 115, 130; see Doc. 11
at 9.) But an ALJ’s RFC determination need not “perfectly correspond with any of
the opinions of medical sources,” so long as the ALJ “weigh[ed] all of the evidence
available to make an RFC finding that was consistent with the record as a whole.”
Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013.) Moreover, the opinions of
Dr. Atkins and Dr. Hurley are largely consistent with the ALJ’s RFC determination
on this point, given that the ALJ found that Plaintiff could do only “simple, routine
tasks” and make only “simple” work-related decisions (AR 21), which generally
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accounts for a limitation to one-to-three step tasks. See Barca v. Comm’r of Soc. Sec.,
No. 2:16–cv–187, 2017 WL 3396416, at *5 (D. Vt. Aug. 8, 2017) (simple, unskilled
work accounted for limitation to one-to-three step tasks). The ALJ’s RFC
determination also accounted for Dr. Atkins’s and Dr. Hurley’s opinions that Plaintiff
was socially restricted (see AR 129–31) by including a limitation to only occasional
interaction with the public and no more than frequent contact with coworkers and
supervisors (AR 21).
In sum, the ALJ did not err in his analysis of the medical opinions, and
substantial evidence supports the ALJ’s findings. Regarding the latter point, as the
ALJ discussed in his decision (AR 22), many of Plaintiff’s treatment records
documented unremarkable mental status findings. (See, e.g., AR 611, 645, 656, 673,
780, 802, 813, 857, 939.) And examining consultant psychologist Marc Carpenter,
MA, opined that Plaintiff was “cooperative” and “socially appropriate,” and showed
no signs of a cognitive impairment. (AR 391–92.) Both Carpenter and examining
consultant counselor Terry Padilla assessed Plaintiff with Global Assessment of
Functioning (GAF)3 scores indicating only moderate, or borderline moderate,
difficulties. (See AR 392, 629.) See generally Whipple v. Astrue, 479 F. App’x 367,
370 (2d Cir. 2012) (RFC limitations of completing only “simple tasks” in a “low-stress
environment” accounted for consulting medical source assessments of mild and
moderate limitations). Moreover, none of Plaintiff’s treating or examining providers–
“The GAF is a scale promulgated by the American Psychiatric Association to assist ‘in
tracking the clinical progress of individuals [with psychological problems] in global terms.’” Kohler v.
Astrue, 546 F.3d 260, 262 n.1 (2d Cir. 2008) (quoting Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 32 (4th ed. 2000) (DSM-4)).
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–other than Dr. Gerretson, whose opinions are deficient for the reasons discussed
above––indicated that Plaintiff had anything more than moderate functional
limitations. See Zabala, 595 F.3d at 410. Although there was medical evidence
indicating that Plaintiff’s back and neck pain, depression, and anxiety limited her
ability to work, the ALJ’s determination that there were nonetheless some jobs that
Plaintiff could perform, is supported by substantial evidence. See Fiorello v. Heckler,
725 F.2d 174, 176 (2d Cir. 1983) (ALJs need not “reconcile explicitly every conflicting
shred of medical testimony”).
II.
ALJ’s Reliance on Vocational Expert Testimony at Step Five
Next, Plaintiff claims that the VE “seems to have intentionally misled” the
ALJ about the “Document Preparer, Microfilming” position, and thus “all of [the
VE’s] testimony is suspect and should be stricken from the record.” (Doc. 11 at 10.)
Specifically, Plaintiff finds error in the VE’s failure to advise the ALJ that the
document preparer position involves preparing documents “for microfilming.” (Id.
(emphasis added).) The Court finds no merit to this argument, as there is no
requirement for the VE to mention that “microfilming” was part of the document
preparer job.
Even assuming the ALJ erred in relying on the VE’s testimony regarding this
job, the error was harmless because the VE testified to two other jobs existing in
significant numbers in the national economy that Plaintiff could perform—cleaner
and price marker—and Plaintiff has not demonstrated any error regarding the ALJ’s
adoption of that testimony. (See AR 25, 62–63.) The regulations require that a
significant number of jobs exist in only “one or more occupations.” 20 C.F.R. §
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404.1566(b). Therefore, even if Plaintiff was able to perform only one of the three
jobs that the ALJ determined existed in significant numbers in the national economy,
a finding of not disabled would be appropriate. See Martin v. Comm’r of Soc. Sec.,
No. 5:06-CV-720 (GLS/DEP), 2008 WL 4793717, at *12 (N.D.N.Y. Oct. 30, 2008)
(“[E]ven the finding that one job exists in sufficient numbers in the national economy
capable of being performed by the plaintiff is sufficient to sustain the Commissioner’s
burden at step five.”).
Conclusion
For these reasons, the Court DENIES Plaintiff’s motion (Doc. 11), GRANTS
the Commissioner’s motion (Doc. 12), and AFFIRMS the decision of the
Commissioner. The Clerk shall enter judgment on behalf of the Commissioner.
Dated at Burlington, in the District of Vermont, this 5th day of June 2018.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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