Opinion
18-CV-34 (LTS) (KNF)
11-08-2018
FELIX ACEVEDO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Felix Acevedo ("Acevedo") commenced this action against the Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision of November 15, 2016, finding Acevedo ineligible for Supplemental Security Income benefits, pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385. Before the Court is the defendant's unopposed motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
ALJ'S DECISION
Acevedo alleged disability beginning December 1, 2013. An administrative hearing was held at which Acevedo, represented by a person who is not an attorney, health care professionals Dr. Glenn F. Sternes ("Dr. Sternes"), licensed psychologist, and Dr. Jack Lebeau ("Dr. Lebeau"), as well as a vocational expert testified. The issue before the ALJ was whether Acevedo is disabled. The ALJ determined that Acevedo: (1) has not engaged in substantial gainful activity since March 18, 2014; (2) "has the following severe impairments: bipolar disorder, post-traumatic stress disorder (PTSD), schizoaffective disorder, poly-substance abuse disorder, learning disorder, borderline intellectual functioning"; (3) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) "has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he can perform simple, routine and repetitive tasks that can be explained (specifically SVP's 1-2), which involve making simple decisions, only occasional changes in routine, occasional and superficial contact with others, and that is entry-level and unskilled" and "he would be off-task 5% of the work day"; (5) has no past relevant work; (6) was 41 years old at the time of the hearing; (7) has a limited education; and (8) is able to communicate in English. The ALJ found that transferability of job skills is not an issue because Acevedo does not have past relevant work. Considering Acevedo's age, education, work experience and residual functional capacity, the ALJ found that jobs exist in significant numbers in the national economy that Acevedo can perform, such as kitchen helper, floor waxer and automobile detailer. The ALJ determined that a finding of not disabled was directed by Medical-Vocational Rule 204.00.
The ALJ considered Acevedo's alleged heart condition and gave great weight to Dr. Lebeau's opinion that Acevedo has no severe physical impairments because none of the physical complaints or abnormalities appears to have caused any long-term symptoms or would be expected to cause any work-related limitations, which was consistent with the lack of any ongoing treatment or complaints reflected in the record. The ALJ found that Acevedo has mild restriction in activities of daily living, moderate difficulties in social functioning and moderate difficulties with respect to concentration, persistence or pace. The ALJ found no episodes of decompensation of extended duration and no evidence exists that a minimal increase in mental demands or change in environment would cause Acevedo to decompensate.
In making the residual functional capacity determination, the ALJ considered all symptoms and the extent to which they can reasonably be accepted as consistent with the objective medical and other evidence. The ALJ found that Acevedo's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the record as a whole does not establish a need for any additional restrictions beyond those set in the ALJ's residual functional capacity assessment. The ALJ noted that the record shows a long history of mental illness compounded by substance abuse and certain inconsistencies in Acevedo's allegations. For example, Acevedo reported, at the hearing, that he was psychiatrically hospitalized while in prison but denied any history of hospitalization at the consultative examination and during the February 2014 psychiatric evaluation. In addition, prison records from 2007 to 2010 do not indicate any mental illness treatment. The ALJ stated that the inconsistencies noted indicate that Acevedo's symptoms and limitations have not always been as severe as alleged.
The ALJ gave great weight to Dr. Sternes's opinion, based on a review of the entire record, that Acevedo's limitations are not marked or disabling. This is consistent with Acevedo's independent functioning demonstrated in 2013 and 2014 despite the lack of consistent treatment and progress notes from late 2015 and early 2016, noting improvements with medication. The ALJ also gave great weight to the opinion of the psychiatric consultative examiner, Dr. Haruyo Fujiwaki ("Dr. Fujiwaki"), that Acevedo has no more than mild-to-moderate limitations with any mental, work-related tasks, which is consistent with Acevedo's independent functioning. For the same reason, the ALJ gave great weight to the opinion of the state agency psychiatric consultant, who found no more than moderate limitations in mental functioning. The ALJ accorded great weight to the July 2014 opinion of the internist consultative examiner who found no more than mild exertional limitations. However, the ALJ accorded little weight to the March 2015 opinion of Acevedo's treating psychiatrist, Dr. Paul Pierre Antoine ("Dr. Antoine"), that Acevedo has marked limitations in all areas of work-related functioning and meets the criteria of certain listings, because the evaluation was completed after only one or two meetings with Acevedo and is inconsistent with Acevedo's independent functioning and his report of significant improvement with medication. The ALJ also noted that Dr. Antoine's opinion is inconsistent with his own assessment of Acevedo's symptoms as being in full or partial remission in 2016. The ALJ also gave little weight to the December 2014 evaluation completed by nurse practitioner Ruben Martinez after only one meeting with Acevedo because it does not note mental status findings and is inconsistent with Acevedo's independent functioning and the evidence of significant improvement with medication and treatment.
Finding that Acevedo's ability to perform work at all exertional levels is compromised by nonexertional limitations, the ALJ asked the vocational expert whether jobs exist in the national economy for an individual with Acevedo's age, education, work experience and residual functional capacity. The vocational expert testified that such an individual would be able to perform requirements of representative occupations, such as kitchen helper, floor waxer and automobile detailer. The ALJ found that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles ("DOT"). The vocational expert testified that the DOT is silent regarding periods of time off-task and that her opinion on that point is based on her personal experience.
DEFENDANT'S CONTENTIONS
The defendant contends that substantial evidence supports the ALJ's findings at steps two and three of the sequential analysis and the ALJ considered properly Acevedo's history of chest pain and Dr. Lebeau's testimony that none of the physical conditions caused long-term symptoms or resulted in work-related limitations. The ALJ considered Listings 12.02, organic mental disorder, 12.03, schizophrenic, paranoid and other psychotic disorders, 12.04, affective disorders, 12.05, intellectual disability, 12.06, anxiety-related disorders and 12.09, substance addiction disorders, in assessing whether Acevedo's severe impairments singly or in combination demonstrated per se disability during the adjudicated period. The defendant asserts that the ALJ relied properly on Acevedo's self-reported activities, finding only mild limitations in activities of daily living and moderate limitation in social functioning, despite Acevedo's complaints of paranoia, anxiety and anger, because the record demonstrates that Acevedo socialized with family or friends and no evidence exists of recent aggressive or violent behavior. The ALJ also found properly that Acevedo has, at most, a moderate limitation with concentration, persistence or pace, which is consistent with Dr. Fujiwaki's and Dr. Sternes's limitation assessments.
With respect to physical limitations, the defendant asserts that the ALJ gave proper weight to Dr. Vinod Thurkal's examination-based opinion that Acevedo did not have any limitation for sitting, standing, pulling or pushing and had only mild limitations for lifting and carrying. Similarly, the ALJ gave proper weight to Dr. Lebeau's testimony that Acevedo did not have work-related functional limitations because it was consistent with record evidence.
Concerning mental functioning, the defendant contends that the ALJ considered that Acevedo did not undergo mental treatment in 2014 when Dr. Fujiwaki examined him and his condition improved when the "consistent" treatment began in February 2015. In January 2016, Acevedo reported that he was happy with his medication and that his symptoms were controlled and, subsequently during 2016, Acevedo reported he was doing well overall, felt better and had more energy. The ALJ considered the opinion of state agency psychologist Dr. K. Lieber-Diaz that Acevedo had, at most, mild-to-moderate restrictions in the areas of attention, concentration, social interaction and, further, was capable of simple, unskilled work. According to the defendant, giving great weight to Dr. Sternes's opinion, that Acevedo was capable of simple, routine and repetitive tasks, was proper because the opinion was consistent with the record, unlike the opinion of Dr. Antoine, which was given little weight due to its inconsistency with Acevedo's self-reported independent functioning and improvement in his symptoms with medication, as well as other evidence in the record, including Dr. Fujiwaki's less restrictive assessment. The defendant asserts that the ALJ gave proper consideration to Acevedo's subjective complaints and self-reported functionality, finding that his conditions did not limit Acevedo beyond the restrictions included in the ALJ's residual functional capacity determination. The defendant maintains that substantial evidence supports the ALJ's determination, at step five of the sequential analysis, that Acevedo could perform work that exists in the national economy, including jobs identified by the vocational expert.
LEGAL STANDARD
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
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. Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). "Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations." Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted). "It is not the function of a reviewing court to decide de novo whether a claimant was disabled, or to answer in the first instance the inquiries posed by the five-step analysis set out in the [Social Security Administration] regulations." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (internal citation omitted).
Title 42 of the United States Code, Chapter 7, Subpart XVI provides benefits to each disabled individual whose income and resources fall below a certain level. See 42 U.S.C. § 1382(a). To qualify for disability benefits, an individual must prove that she is unable "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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). Social Security Administration regulations establish a five-step process for determining a disability claim. See 20 C.F.R. § 416.920(a)(4).
If at any step a finding of disability or nondisability can be made, the [Social Security Administration] will not review the claim further. At the first step, the agency will find nondisability unless, the claimant shows that he is not working at a "substantial gainful activity." At step two, the [Social Security Administration] will find nondisability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [Social Security
Administration] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [Social Security Administration] to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy."The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003) (internal citations omitted).
APPLICATION OF LEGAL STANDARD
Upon review of the record, the Court finds that the ALJ's decision is supported by substantial evidence and the ALJ did not make any error of law in determining Acevedo's claim. Substantial evidence demonstrates that, despite his medically determinable severe mental impairments, Acevedo's limitations in activities of daily living, social functioning and concentration, persistence or pace, are not as restrictive as alleged. The ALJ accounted for Acevedo's nonexertional limitations properly when assessing Acevedo's residual functional capacity. The ALJ accorded weight to medical opinions properly and explained, in great detail, the weight given and the reasons for the weight given. More specifically, the ALJ followed the Social Security Administration's regulations when assessing and determining the weight to be given to the opinion of Acevedo's treating physician Dr. Antoine, see 20 C.F.R. § 416.927, and finding, properly, that it was not entitled to controlling weight due to the opinion's inconsistencies with Acevedo's independent functioning, other medical evidence in the record as well as Dr. Antoine's own assessment of Acevedo's symptoms as being in full or partial remission in 2016. The ALJ's determination of Acevedo's residual functional capacity is supported by substantial evidence and the ALJ found, properly applying Medical-Vocational Rule 204.00, that, considering Acevedo's age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that Acevedo can perform. Accordingly, affirming the ALJ's decision is warranted.
RECOMMENDATION
For the foregoing reasons, I recommend that the defendant's motion, Docket Entry No. 12, be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 500 Pearl Street, Room 1640, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Dated: New York, New York
November 8, 2018
Respectfully submitted,
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE Copy mailed to: Felix Acevedo