Opinion
Civil No. 3:14-CV-01101 (AVC)
09-29-2017
LORRIE JEAN O'CONNOR plaintiff, v. NANCY A BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, defendant.
RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
This is an administrative appeal following the denial of the plaintiff, Lorrie Jean O'Connor's, application for Title II disability insurance benefits ("DIB") and Title XVI supplemental security income benefits ("SSI"). It is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Under the Social Security Act, the "Commissioner of Social Security is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under [the Act]." 42 U.S.C. §§ 405(b)(1) and 1383(c)(1)(A). The Commissioner's authority to make such findings and decisions is delegated to administrative law judges ("ALJs"). See 20 C.F.R. § 404.929; 20 C.F.R. § 416.1429. Claimants can in turn appeal an ALJ's decision to the Social Security Appeals Council. See 20 C.F.R. § 404.967; 20 C.F.R. § 416.1467. If the appeals council declines review or affirms the ALJ opinion, the claimant may appeal to the United States district court. Section 205(g) of the Social Security Act provides that "[t]he 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); see also 42 U.S.C. § 1383(c)(3).
O'Connor now moves for an order reversing the decision of the Commissioner of the Social Security Administration ("Commissioner"). In the alternative, O'Connor seeks an order remanding her case for a rehearing. The Commissioner, in turn, moves for an order affirming her decision.
The issues presented are whether: (1) the ALJ committed factual errors in evaluating the evidence; (2) there is substantial evidence to support the ALJ's finding that O'Connor's impairment did not meet or medically equal a listed impairment; (3) there is substantial evidence to support the ALJ's residual functional capacity ("RFC") determination given the ALJ's credibility assessment and the medical opinion evidence; and (4) there is substantial evidence to support ALJ's step five finding. For the following reasons, O'Connor's motion for an order reversing or remanding the ALJ's decision is denied, and the Commissioner's motion for an order affirming that decision is granted.
FACTS
An examination of the record discloses the following: O'Connor was born on January 12, 1958. At age 18, after the death of her father, she began suffering from depression. She did not complete high school and has been unable to pass the GED exam. According to O'Connor, she began self-medicating her depression with alcohol and developed alcohol related seizures. O'Connor alleges that she still suffers from "disabling depressive symptoms" despite being sober for "close to five years."
Since she worked in a commercial cleaning job in 2009, O'Connor has not engaged in substantial gainful activity. Previously, she worked as a waitress and cashier, a sewing and pressing machine operator, and a gas station cleaner. O'Connor alleges disability based on depressive disorder, anxiety disorder, mood disorder, alcohol abuse in remission, tinnitus, alcohol related seizures, chronic sinus disease, osteopenia of the spine, borderline osteopenia of the hip, osteoarthritis of the spine, sciatica, headaches, leg pain, and bilateral hand and joint pain
Tinnitus is "a subjective noise sensation, often described as ringing, heard in one or both ears." Tinnitus, Mosby's Medical, Nursing, & Allied Health Dictionary, (6th ed. 2002) at 1717.
Osteopenia is "[d]ecreased calcification or density of bone; . . . carries no implication about causality. . . ." Osteopenia, Stedman's Medical Dictionary, (28th ed. 2006) at 1391.
Osteoarthritis is "a condition of chronic arthritis, usually mechanical, without inflammation." Osteoarthritis, Mosby's Medical, Nursing, & Allied Health Dictionary, (6th ed. 2002) at 1242.
Sciatica is "an inflammation of the sciatic nerve usually marked by pain and tenderness along the course of the nerve through the thigh and leg." Sciatica, Mosby's Medical, Nursing, & Allied Health Dictionary, (6th ed. 2002) at 1543.
On February 27, 2011, O'Connor filed an application for both title II disability insurance benefits ("DIB") and title XVI supplemental security income benefits ("SSI") alleging disability from March 7, 2009 through June 21, 2012, the date of the ALJ decision. On June 29, 2011, a disability adjudicator in the Social Security Administration denied her initial request for disability benefits and, thereafter, denied her request for reconsideration.
Prior to the administrative hearing, O'Connor indicated an alleged onset date of June 30, 2008. However, at the hearing O'Connor clarified that she is alleging an onset date of March 7, 2009.
In order to be entitled to Title II disability insurance benefits ("DIB"), a claimant must "have enough social security earnings to be insured for disability, as described in §404.130." 20 C.F.R. § 404.315(a)(1). The ALJ found that O'Connor met the insured status requirement of the Social Security Act through March 31, 2012.
On June 13, 2012, O'Connor appeared with counsel for a hearing before an Administrative Law Judge ("ALJ"). On June 21, 2012, the ALJ issued a decision denying benefits.
On August 23, 2012, O'Connor requested review of the ALJ decision by the appeals council. On June 9, 2014, the appeals council denied O'Connor's request for review of that decision thereby making the ALJ's decision the final decision of the Commissioner. This appeal followed.
The appeals council initially denied O'Connor's request for review on May 20, 2013, but set aside their original denial to consider additional information. Subsequently, they denied her request for review on June 9, 2014.
Medical Facts
From April 15, 2006 through May 5, 2006, O'Connor was admitted to a residential treatment program at Rushford Center for alcohol dependence and depression.
See record pp. 332-354.
A Griffin Day Hospital (Griffin) "department of psychiatry partial hospitalization and intensive outpatient programs discharge summary" indicates that O'Connor received treatment from December 28, 2006 through February 13, 2007. The discharge summary noted that she was diagnosed with alcohol dependence and that she "successfully completed treatment. She worked on coping skills and she got a job." The discharge summary notes that the treatment was "court recommended due to [an] arrest on 7/1/06 [where she] was drinking [and] had a fight [with her] boyfriend." The discharge summary noted that she "has some anxiety." She had a GAF score of 40 on admission and 65 on discharge.
The Global Assessment Functioning Scale assesses and tracks the clinical progress of individuals with respect to psychological, social, and occupational function. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text revision, 2000). GAF scores between 41 and 50, on a scale of 0-100, implies serious symptoms or serious impairment in social, occupational or school functioning. Id. at 34. GAF scores between 51 and 60 implies moderate symptoms or moderate difficulty in social, occupational or school functioning. Id. The closer the GAF score is to 100, the greater the functioning.
On January 2, 2007, the Griffin "department of psychiatry progress notes" indicate that O'Connor was living in a shelter after being "in jail [for] 6 weeks for violation of probation" for not paying restitution after a car accident. The progress notes also indicate that O'Connor complained of "being clumsy and in a 'fog.'" She also complained of being "unable to think straight."
On January 26, 2007, the progress notes indicate that O'Connor "is doing better" and indicates that she is looking for supportive housing and going to daily meetings.
On March 17, 2009, O'Connor went to Griffin Hospital emergency room complaining of difficulty sleeping, ear pain with difficulty hearing, and congestion. Michael Tocci, M.D., diagnosed "chronic sinusitis", "acute otalgia," and "hearing loss."
Otalgia is "a pain in the ear." Otaglia, Mosby's Medical, Nursing, & Allied Health Dictionary, (6th ed. 2002) at 1248.
A Griffin "department of psychiatry partial hospitalization and intensive outpatient programs discharge summary" indicates that O'Connor received treatment from April 28, 2009 through June 24, 2009. The discharge summary noted that O'Connor entered the program due to a relapse in drinking following the death of a friend. The discharge summary further noted that O'Connor's first week was "very difficult" but "she turned around quickly and was able to remain sober and get back into a structured recovery program." O'Connor was "able to maintain sobriety" and her mood [was] stable at [the] time of discharge."
On May 20, 2009, the Griffin "department of psychiatry progress notes" indicate that O'Connor reports that she feels "so much better than when she started the program."
On June 17, 2009, the progress notes indicate that O'Connor is attending 2-3 self-help meetings a week and found a temporary sponsor to remain sober.
On June 19, 2009, the progress notes indicate that O'Connor canceled her appointment because she was babysitting for her brother.
On June 6-7, 2009, O'Conner went to Griffin Hospital emergency room complaining of "neck pain" and "rash." Lucille Soldano, M.D., performed a CAT scan on O'Connor from the base of the skull to the vertex. Soldano's report indicated "[n]o inter[-]cranial abnormality" and indicated evidence of "ethmoid and sphenoid sinusitis." As a result, the physician's assistant diagnosed "cervical strain" and "acute sinusitis."
Ethmoid sinusitis is inflammation of the sinus located in the ethmoid bone. Ethmoid, Mosby's Medical, Nursing, & Allied Health Dictionary (6th ed. 2002) at 632; see also Sinusitis, Mosby's Medical, Nursing, & Allied Health Dictionary (6th ed. 2002) at 1586.
Sphenoid sinusitis is inflammation of the sinus located in sphenoid bone at the base of the skull. Sphenoid Sinus, Mosby's Medical, Nursing, & Allied Health Dictionary (6th ed. 2002) at 1610; see also Sinusitis, Mosby's Medical, Nursing, & Allied Health Dictionary (6th ed. 2002) at 1586.
On July 1, 2009, Mary Ellen Gallagher, CAC, and Mihaela Boran, M.D., signed a case report from Griffin which diagnosed O'Connor with alcohol dependence, depression and anxiety. They indicate that O'Connor's substance abuse is in remission and she has maintained sobriety for six and one half weeks. They also indicate that O'Connor's "functioning has improved[,] but she still is anxious." They indicate that: 1) her speech characteristics have normal flow, tone, and rate; 2) her thought content is appropriate; 3) her mood is anxious; and 4) her judgment and insight are poor.
With regard to O'Connor's functional abilities, social interactions, and task performance, Gallagher and Boran indicate that, on a daily basis, O'Connor has the following: 1) "no problem" taking care of personal hygiene and respecting and responding appropriately to others in authority; 2) a "slight problem" caring for her physical needs such as dressing and eating; 3) an "obvious problem" carrying out single-step instructions, interacting appropriately with others in a work environment, asking questions or requesting assistance, and getting along with others without distracting them or exhibiting behavioral extremes; 4) a "serious problem" using good judgment regarding safety and dangerous circumstances, using appropriate coping skills to meet the ordinary demands of a work environment, and handling frustration appropriately; and 5) a "very serious problem" carrying out multi-step instructions, focusing long enough to finish assigned simple activities or tasks, changing from a simple task to another, performing basic work activities at a reasonable pace and finishing on time, and performing work activity on a sustained based.
A Griffin "department of psychiatry partial hospitalization and intensive outpatient programs discharge summary" indicates that O'Connor received treatment from January 18, 2010 through March 4, 2010.
On January 20, 2010, the Griffin "department of psychiatry progress notes" indicate that O'Connor is "returning to treatment after serving 5 months in jail for her second DUI." She was "in our program prior to being in jail" and was "being treated for mood disorder and alcohol dependence."
DUI is the abbreviation for driving under the influence. DUI, Black's Law Dictionary (8th ed. 1999).
On January 27, 2010, the progress notes indicate that O'Connor "continues to maintain sobriety and actively attends AA meetings . . . ." O'Connor reports "urges to drink 'do not occur often'" due to assistance of current medication regime. O'Connor "appeared depressed" and noted "'feeling low about self, and having low self[-]esteem.'" O'Connor "denies SI/HI intent or plan."
"SI" is an acronym used to refer to "suicidal ideation," which is "recurring thoughts of or preoccupation with suicide." See Acronyms, Initialisms & Abbreviations Dictionary (Mary Rose Bonk et al eds., Thomson Gale 31st ed. 2002) (listing SI as an abbreviation for "suicidal ideation."); Suicidal Ideation, Medical-Dictionary.com, http://medical-dictionary.thefreedictionary.com/suicidal+ideation (last visited May 22, 2017) (defining "suicidal ideation."). "HI" is an acronym used to refer to "homicidal ideation," which is "the capacity for or the act of forming or entertaining ideas" related to homicide. See Acronyms, Initialisms & Abbreviations Dictionary (Mary Rose Bonk et al eds., Thomson Gale 31st ed. 2002) (listing HI as an acronym for "homicidal ideation); Ideation, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/ideation (last visited May 22, 2017) (defining "ideation.").
On February 5, 2010, the progress notes indicate that O'Connor reports an increase in depression and a decrease in socialization.
On February 22, 2010, the progress notes indicate that O'Connor reported that "urges to drink have decreased significantly . . . [and her] mood is stable [with no] depression or anxiety."
On February 3, 2010, T. Freeman, LMSW, and Mihaela Boran, M.D., signed a case report from Griffin which diagnosed O'Connor with ETOH dependence and anxiety disorder. They indicate that O'Connor's prescriptions include Carbamazepine, Naltrexone, Lexapro, and Trazodone. They also indicate that O'Connor "has been abstinent [from alcohol] since 4/09" but "continues to experience ongoing . . . depression [and] anxiety." They indicate that: 1) her speech characteristics have normal rate and flow; 2) she has "no psychosis"; 3) her "mood is depressed [and] anxious [and] affect is constricted"; and 4) her judgment and insight is fair.
This document was signed by Boran on February 3rd and by Freeman on February 1st.
ETOH is the abbreviation for ethanol and refers to the abuse of drinking alcohol. See Acronyms, Initialisms & Abbreviations Dictionary (Mary Rose Bonk et al eds., Thomson Gale 31st ed. 2002) at 1530.
Carbamazepine "is used alone or in combination with other medications to control certain types of seizures . . . . Carbamazepine extended-release capsules . . . are used to treat episodes of mania (frenzied, abnormally excited or irritated mood) or mixed episodes (symptoms of mania and depression that happen at the same time) in patients with bipolar I disorder (manic-depressive disorder; a disease that causes episodes of depression, episodes of mania, and other abnormal moods)." Carbamazepine, MedlinePlus, Drugs and Supplements, https://medlineplus.gov/druginfo/meds/a682237.html (last revised May 15, 2017).
Naltrexone "is used along with counseling and social support to help people who have stopped drinking alcohol and using street drugs continue to avoid drinking or using drugs." Naltrexone, MedlinePlus, Drugs and Supplements, https://medlineplus.gov/druginfo/meds/a685041.html (last revised February 1, 2009).
Lexapro is the brand name for Escitalopram which "is used to treat depression and generalized anxiety disorder. . . ." Escitalopram, MedlinePlus, Drugs and Supplements, https://medlineplus.gov/druginfo/meds/a603005.html (last revised Feb. 15, 2016).
Trazodone "is used to treat depression." Trazodone, MedlinePlus, Drugs and Supplements, https://medlineplus.gov/druginfo/meds/a681038.html (last revised November 15, 2014).
With regard to O'Connor's functional abilities, social interactions, and task performance, Freeman and Boran indicate that O'Connor has the following: 1) "no problem" taking care of personal hygiene, caring for her physical needs, using good judgment regarding safety and dangerous circumstances, respecting and responding appropriately to others in authority, and getting along with others without distracting them or exhibiting behavioral extremes; 2) a "slight problem" interacting appropriately with others in a work environment, asking questions or requesting assistance, and carrying out single-step instructions; 3) an "obvious problem" using appropriate coping skills to meet the ordinary demands of a work environment, handling frustration appropriately, and carrying out multi-step instructions; 4) a "serious problem" focusing long enough to finish assigned simple activities or tasks, changing from a simple task to another, performing basic work activities at a reasonable pace and finishing on time, and performing work activity on a sustained based; and 5) No "very serious problems".
On March 12, 2010, upon discharge from Griffin, Freeman indicates that O'Connor "was able to continue sobriety by implementing learned techniques to [reduce] urges to use [alcohol] and [increase] feelings of self[-]worth." She had a GAF score of 45 on admission and 60 on discharge.
On April 26, 2010, O'Connor complained to her internal medicine provider that she had "hand pain all the time." She indicated that she "cannot carry anything" and that the "pain radiates from the fingers up to the forearm". She also indicated that she has pain in her joints.
On May 20, 2010, Lucille Soldano, M.D., conducted a bone density imaging on O'Connor's spine which indicated that she had "osteopenia in the spine with borderline osteopenia in the hip."
On May 21, 2010, O'Connor met with Jodi McLaughlin, APRN, for a medication management session. O'Connor reported lack of enjoyment in her usual activities, and a tendency to isolate.
From May 21, 2010 through January 21, 2011, O'Connor met with this provider for medication management sessions at Cornell Scott-Hill Health Center.
On June 22, 2010, James Butler, M.D., from Griffin Hospital department of neurology, conducted an electrodiagnostic study on O'Connor due to her complaint of pain in both hands and elbows. The electrodiagnostic study "revealed no evidence of carpal tunnel syndrome or ulnar neuropathy on either side."
John Stern, LPC, LDAC from Cornell Scott-Hill Health Center ("Cornell") treated O'Connor from May 10, 2010 through May 25, 2011.
LPC is an abbreviation for Licensed Professional Counselor. See Acronyms, Initialisms & Abbreviations Dictionary (Mary Rose Bonk et al eds., Thomson Gale 31st ed. 2002 at 2582.
On June 14, 2010, Stern indicated in a behavioral health division treatment plan review document that O'Connor "continues to remain an active participant in group process and reports continued abstinence from substances." He further indicated that O'Connor "states that she believes some of the causes of her depression are that she is over 50 years old, she lives with her sister, [and] she does not feel productive or self-sufficient."
On August 30, 2010, Stern indicated in a plan review document that O'Connor "has been clean and sober . . . [and] is beginning to focus on her mood." He further indicated that O'Connor "feels disappointed about not working . . . but realizes that she must work on her recovery." She reported needing money for a class to get her driver's license back and that "she may try to work part-time somewhere close to her bus route to help her achieve her goal."
On October 12, 2010, Alvi Naveed, M.D., performed a MRI indicating "no acute intracranial" abnormalities, but indicated "bilateral [m]axillary sinus disease, left greater than right" and "[m]ild bilateral mastoid air cell fluid right greater than left."
MRI is the abbreviation for magnetic resonance imaging. MRI, Mosby's Medical, Nursing, & Allied Health Dictionary, (6th ed. 2002) at 1121.
On December 8, 2010, Stern indicated in a clinical progress note that O'Connor reported that she "forgets thing, misplaces items, notices that she is in a room, but forgets why she went there." He recommended she get a medical evaluation done. He indicated that O'Connor reported that she is "applying for social security benefits" and "that she does not want to try to coordinate the bus schedule with a work schedule and states that 'I did that before, it didn't work, but I need money, and I need my own place to stay." He indicated that she reported being "sad, although she was noted to present with bright affect and was often smiling during session . . . indicating the possibility that [she] is reporting experiencing mood symptoms as being disabling for the secondary gain of disability compensation benefits."
On January 13, 2011, Stern indicated in a clinical progress note that O'Connor reported an increase in anxiety due to problems staying at her sister's house. Stern indicated that O'Connor reported that "she believes that she cannot work on a sustained basis because of the difficulty with the bus schedule." He further indicated that O'Connor reported that "she spoke to her lawyer and was instructed to ask . . . [him] to change the results of the assessment done by SSCS APRN regarding [her] ability to maintain her ADL's." He noted that O'Connor "consistently presents to group, individual counseling and medication management sessions well groomed, and dressed appropriately." He informed her that she "does not appear to have any problems maintaining her ADL's" and no change would be made. He reported that O'Connor "became tearful", reported that she cannot work citing the bus schedule as her main problem, and left the office.
On February 3, 2011, Stern indicated in a clinical progress note that O'Connor "is isolating in her room" because of the "conflict that is ongoing" between her sister and her brother-in-law. He indicated that O'Connor stated that "she fears that he will tell her to leave his house" if she says anything. Stern indicated that O'Connor reports that the "chaotic household is leading to increased anxiety and sadness."
On February 16 and 23, 2011, Stern indicated in a clinical progress note that O'Connor missed her appointment due to a screening appointment for disability and "problems with the bus," respectively.
On March 14, 2011, Stern indicated in a clinical progress note that O'Connor requested that her "disability paperwork be given to her to mail out directly" and he explained that he could not do that. She indicated that she is totally "anxious in that house. I have to get out of there." Subsequently, O'Connor missed appointments on March 21 and March 28, 2011.
On March 21, 2011, Stern indicated in a treatment plan review document that O'Connor was living with her sister. He indicated that O'Connor stated that "her sister and husband's relationship is dysfunctional" and she "watch[es] her sister's husband treat her poorly." Stern indicated that she "fears[s] that she will be asked to leave the house" if she "verbaliz[es] her disapproval to her brother-on-law." He further indicated that she claims there is a "constant level of tension in the house" and "is isolating from . . . family members by going into her bedroom and staying there." Stern indicated that O'Connor claimed to be "an active person" and "staying in her bedroom . . . is leading to frustration and depression." He noted that she indicated that "she cannot work at this time, most often citing the difficulties with coordinating her work schedule with public transportation." He further indicated that O'Connor reports using "exercise, walking, and reading" to block out urges to drink alcohol.
On April 7, 2011, Stern indicated in a clinical progress note that that O'Connor brought with her an application for disability stating that she "is disabled because she cannot concentrate, is easily confused, and has problems with her memory, and irritability."
On April 11, 2011, Stern and Nasair Lara, M.D., signed a case report from Cornell which diagnosed O'Connor with alcohol dependence-remission and depressive disorder. They noted that O'Connor indicated that "transportation and concentration prevent her from being able to seek employment." They noted that O'Connor's cognitive status was "alert and oriented to person, place, [and] time. Concentration appears to be WNL." They further indicated that speech is within normal limits, and thought content is clear, goal oriented, [and] linear. They indicated that O'Connor's judgment is "adequate for safety," however, her mood is "depressed" and "fearful" and her "insight is moderately impaired." They indicated that O'Connor "becomes overwhelmed, fearful, [and] angry in response to ordinary insignificant stressors."
WNL is an abbreviation for within normal limits. See Acronyms, Initialisms & Abbreviations Dictionary (Mary Rose Bonk et al eds., Thomson Gale 31st ed. 2002) at 4659.
With regard to O'Connor's functional abilities, social interactions, and task performance, Stern and Lara indicate that O'Connor has the following: 1) "no problem" taking care of personal hygiene, caring for her physical needs including dressing and eating, using good judgment regarding safety and dangerous circumstances; 2) a "slight problem" with carrying out single-step instructions and interacting appropriately with others; 3) an "obvious problem" with asking questions or requesting assistance, respecting and responding appropriately to others in authority, and changing from one simple task to another; 4) a "serious problem" using appropriate coping skills to meet ordinary demands of a work environment, getting along with others without distracting them or exhibiting behavioral extremes, carrying out multi-step instructions, performing basic work activities at a reasonable pace and finishing on time; 5) a "very serious problem" handling frustration appropriately and focusing long enough to finish assigned simple activities or tasks.
On April 27, 2011, Stern indicated in a clinical progress note that that O'Connor was "feeling more hopeful about the future . . . and thinking about what she would do if she is not approved to receive disability."
On May 11, 2011, Stern indicated in a clinical progress note that that O'Connor "stated that she followed up on job ads" and that "if she would either find work, o[r] be approved for disability, [she] may be able to finance her own housing with assistance of the AIC program." He indicated that she had over 2 years of sobriety.
On May 25, 2011, Stern indicated in a clinical progress note that that O'Connor "does not think she can work at a place on a sustained basis" and that her "thoughts are 'always confused, [she] can't maintain concentration, and [she get[s] irritated easily.'" He indicated that she stated that "she would consider looking for work, but her motivation is decreased, and she often will procrastinate on job search related activity."
On June 17, 2011, James Ryan, D.O., performed an internal medicine consultative exam on O'Connor. O'Connor self-reported migraines, a bunion on her right foot, carpal tunnel syndrome in her right hand, vertigo, anxiety, depression, and suicidal ideation. She self-reported that she lacks "feeling in her fifth finger" of her right hand, and "[s]he drops things all of the time." She self-reported that she was able to do "some cooking and cleaning." She self-reported that she was limited to walking 15-20 minutes, standing 15-20 minutes, and lifting five to 10 pounds on the right side.
Ryan noted that the patient was "the historian for the exam" and indicated that the "quality of the history was fair." He indicated that she "was being fully cooperative, just very anxious about her symptoms and limitations." He further indicated that she was "alert" and "oriented to person, time, and place."
Ryan noted under "review of systems" that O'Connor was positive for migraine headaches vertigo, and glasses. He further indicated that O'Connor was "positive for carpal tunnel syndrome, de Quervain syndrome on the right and somewhat on the left and also for a bunion on the right foot.
De Quervain's disease is an "inflammation of tendons and their sheaths at the styloid process of the radius that often causes pain in the thumb side of the wrist." De Quervain's Disease, Merriam-Webster.com, https://www.merriam-webster.com/medical/deQuervain's%20disease (last visited Aug. 25, 2017).
Ryan indicated under "physical examination" that O'Connor had normal gait, but "grip strength was mildly decreased in the right hand" and "there was decreased sensation in the right and left thumb, also in the right fourth and fifth finger." He further noted that O'Connor "did have a bunion on the right foot in the area of the right great toe, tender to palpation." He indicated that there was "no significant limitation in range of motion" and motor function was normal.
Beginning on July 26, 2011, Jessica Brault, LPC, began seeing O'Connor at Cornell for counseling.
On August 10, 2011, in a treatment plan review, Brault reported that O'Connor defined her moods as "pretty good" but noted "increased isolation, memory issues, but less dizziness."
On August 10, 2011, Jefferey Kerner, M.D., from State Street Health Services, examined O'Connor for complaints of "ringing" in her ears and sensitivity to noise. He referred her to the Yale Hearing and Balance Center for testing.
See record pp. 787-790.
On September 7, 2011, Brault and a supervising MD completed a case report. They diagnosed O'Connor with depressive disorder and alcohol dependence in remission. They noted that O'Connor's appearance was well groomed, however she appeared fatigued and her mood was depressed and anxious. They further noted that she was alert, fully oriented, had clear thought content, and her concentration and speech were within normal limits.
With regard to O'Connor's functional abilities, social interactions, and task performance, Brault and a supervising MD indicate that O'Connor has the following: 1) "no problem" taking care of personal hygiene, caring for her physical needs, and using good judgment regarding safety and dangerous circumstances; 2) a "slight problem" with carrying out single-step instructions and interacting appropriately with others; 3) an "obvious problem" with asking questions or requesting assistance, and respecting and responding appropriately to others in authority; 4) a "serious problem" using appropriate coping skills to meet ordinary demands of a work environment, getting along with others without distracting them or exhibiting behavioral extremes, carrying out multi-step instructions, changing from one simple task to another, performing basic work activities at a reasonable pace and finishing on time and performing work activity on a sustained basis; 5) a "very serious problem" handling frustration appropriately and focusing long enough to finish assigned simple activities or tasks.
On November 10, 2011, in a treatment plan review, Brault reported that O'Connor "appears to be more social than reported in the past sessions; going to stores and a relative's football game." O'Connor reported going to a Halloween party, but "only stayed a few hours" indicating that she "can't talk to people." Brault reported that O'Connor was "anxious about her housing as her sister and brother-in-law talk about breaking up . . . ." She noted that O'Connor reported that she continues to isolate and has increased depressive symptoms.
On November 28, 2011, in a clinical progress note, Brault indicated that, when asked if she was socializing, O'Connor indicated "nope, I haven't gone anywhere" but later in the session indicated that she went to her mother's house for Thanksgiving, grocery shopping, and out with her sister.
On January 17, 2012, in a clinical progress note, Brault noted that she indicated to O'Connor that her mental illness doesn't inhibit her working.
On February 9, 2012 and March 8, 2012, in clinical progress notes, Brault indicated that O'Connor was more irritable, anxious, and agitated, but O'Connor admitted to not taking the Vistaril as prescribed.
Vistiril is the brand name for Hydroxyzine which "is used in adults . . . to relieve itching caused by allergic skin reactions. It is also used alone or with other medications in adults . . . to relieve anxiety and tension. Hydroxyzine is also used along with other medications in adults . . . as a sedative before and after general anesthesia for surgery." Hydroxyzine, MedlinePlus, Drugs and Supplements, https://medlineplus.gov/druginfo/meds/a682866.html (last revised Feb. 15, 2017).
On February 14, 2012, in a treatment plan review, Brault indicated that O'Connor reported "continued depressive symptoms with isolation and anxiety stating that she doesn't "want to deal with people." She noted that O'Connor also "traveled to NC with family to visit her nephew." Brault indicated that O'Connor needed to "take her Vistaril as prescribed, instead of taking it only twice daily." Brault reported that O'Connor's other medications are Lexapro and Elavil. Brault also noted that O'Connor "has almost 3 years sober" but "continues to isolate and reports an increase in depressive symptoms."
Elavil is the brand name for Amitriptyline which "is used to treat symptoms of depression." Amitriptyline, MedlinePlus, Drugs and Supplements, https://medlineplus.gov/druginfo/meds/a681038.html (last revised Aug. 01, 2010).
On May 7, 2012, McLaughlin wrote a letter to O'Connor's attorney at O'Connor's request. McLaughlin noted O'Connor's physical symptoms, including gastrointestinal symptoms, and said they "seem to significantly contribute to her depression." McLaughlin further noted that she changed O'Connor's psychiatric medications for new medications, but came to the conclusion that the medication was "not the cause of her physical symptoms."
O'Connor missed alcoholic anonymous meetings and counseling sessions due to rain, bus issues, and babysitting.
ALJ'S DESCISION
At step one, the ALJ found that O'Connor did not engage in substantial gainful activity since her onset date of March 7, 2009.
At step two, the ALJ found that O'Connor had the severe impairments of depressive disorder, anxiety disorder, and alcohol dependence in remission. The ALJ noted that O'Connor also alleged multiple physical conditions which include vertigo, migraines, bilateral knee, hand, and elbow pain, chronic ear and sinus infections, carpal tunnel syndrome, gastrointestinal issues, osteopenia of the spine and borderline osteopenia of the hips, and tinnitus. The ALJ did "not find that any of [O'Connor's] alleged physical impairments cause more than minimal limitation."
At step three, the ALJ found that O'Connor's "mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.04, 12.06, and 12.09.
Next, the ALJ found that the claimant has the residual functional capacity "to perform light work . . . except she can frequently balance; frequently handle and finger with the right hand; no working at unprotected heights; no operating of a motor vehicle; simple routine, repetitive tasks; simple work-related decisions; can tolerate occasional changes in a routine work setting; no interaction with the public, and only occasional interaction with co-workers."
At step four, the ALJ determined that O'Connor does not have the residual functional capacity to perform any past relevant work. At step five, the ALJ determined that, considering O'Connor's age education, work experience, and residual functional capacity, "there are jobs that exist in significant numbers in the national economy that the claimant can perform." As a result, the ALJ found that O'Connor "has not been under a disability, as defined in the Social Security Act, From March 7, 2009 through June 21, 2012, the date of the ALJ's decision.
STANDARD
"A district court reviewing a final . . . decision [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate function." Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive . . . ." 42 U.S.C. § 405(g). Accordingly, the court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.; Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). The court's function is to first ascertain whether the Commissioner applied the correct legal principles in reaching his/her conclusion, and then, whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, this court may not set aside the decision of the Commissioner if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Further, if the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
The second circuit has defined substantial evidence as "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be "more than a mere scintilla or touch of proof here and there in the record." Williams, 859 F.2d at 258.
DISCUSSION
The Social Security Act ("SSA") establishes that benefits are payable to individuals who have a disability. 42 U.S.C. § 423(a)(1). "The term 'disability' means . . . [an] 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); see also 42 U.S.C. § 1382c(a)(3)(A). In order to determine whether a claimant is disabled within the meaning of the SSA, the ALJ must follow a five-step evaluation process as promulgated by the Commissioner.
The five steps are as follows: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities; (3) if the claimant has a "severe impairment," the Commissioner must ask whether, based solely on the medical evidence, the claimant has an impairment which "meets or equals" an impairment listed in Appendix 1 of the regulations. If so, and it meets the durational requirements, the Commissioner will consider him or her disabled, without considering vocational factors such as age, education, and work experience; (4) if not, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work; and (5) if the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work in the national economy which the claimant can perform. 20 C.F.R. § 404.1520 (a)(4)(i)-(v); 20 C.F.R. § 416.920(a)(4)(i)—(v). The claimant bears the burden of proof on the first four steps, while the Commissioner bears the burden of proof on this last step. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).
In order to be considered disabled, an individual's impairment must be "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) and 1382c(a)(3)(B). "'[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country."
The determination of whether such work exists in the national economy is made without regard to: 1) "whether such work exists in the immediate area in which [the claimant] lives[;]" 2) "whether a specific job vacancy exists for [the claimant;]" or 3) "whether [the claimant] would be hired if he applied for work." 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
I. Alleged Factual Errors by ALJ in Evaluating the Evidence
O'Connor first argues that the ALJ "committed a number of factual errors as well as misstatements, distortions, and mischaracterizations of the evidence" which prevented her from having a "full and fair hearing." Specifically, O'Connor argues that an ALJ cannot make numerous factual errors and erroneous descriptions of what medical records say and then find that a claimant is not disabled because of those erroneous errors.
The Commissioner responds that the ALJ "properly characterized and evaluated the evidence of record" and that O'Connor "actually fails to depict the record accurately" in her argument.
As discussed above, "[w]e set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)(citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). This is so, even where there may also be substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). "'Procedural perfection in administrative proceedings is not required' as long as 'the substantial rights of a party have not been affected.' Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)." Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009).
O'Connor identified three alleged claims of factual error made by the ALJ. First, O'Connor argues that the ALJ's statement that she stays in her room "to avoid family discord" and not due to mental illness is incorrect. The court disagrees. There is ample evidence in the record that, between January 13, 2011 and May 11, 2011, O'Connor reported to Stern an increase in anxiety due to living in her sister's house. She further indicated that as a result of the ongoing conflict between her sister and brother-in-law she is isolating in her room. She also expressed fear that her brother-in-law will throw her out of the house if she complains. She further indicated that she is isolating from her family by going into her room due to the "constant level of tension in the house." From May 10, through February 20, 2012, in treatment plan reviews and in progress notes, Brault indicates that O'Connor continues to report isolation and anxiousness about her housing due to issues with her sister and brother-in-law. Therefore, the court finds that there is substantial evidence in the record to support the ALJ's statement.
Next, O'Connor argues that the ALJ's statement that she "has not sought treatment for any other of her alleged physical conditions" is incorrect. The court notes that the ALJ's statement was that O'Connor "has not sought treatment for any other of her alleged physical conditions, including knee pain and hand problems." (emphasis added). Additionally, the ALJ noted that O'Connor has not had any recent treatment on her hands and has not sought medical treatment for her knees. While O'Connor indicates that she had two hand surgeries and underwent physical therapy for her hands, this treatment was prior to the onset date and not in the record. Additionally, on June 22, 2010, Butler conducted an electrodiagnostic study which revealed no evidence of carpal tunnel syndrome or ulnar neuropathy. Therefore, no treatment was provided. Additionally, there are no records indicating that O'Connor sought treatment for knee pain. The court finds that there is substantial evidence for the ALJ's statement.
Finally, O'Connor argues that the ALJ's statement that O'Connor is an "active participant in group therapy and has not displayed any difficulty in getting along with others" is incorrect. The court disagrees.
The evidence demonstrates that O'Connor was an active member in group therapy. On January 26, 2007, progress notes from Griffin indicate that O'Connor is going to daily meetings. On January 27, 2010, progress notes from Griffin indicate that O'Connor actively attends AA meetings. On June 14, 2010, Stern indicated in a treatment plan review document that O'Connor "continues to remain an active participant in group process and reports continued abstinence from substances." Therefore, the court finds that there is substantial evidence to support the ALJ's statement with regard to participation in group therapy.
With regard to the ALJ's statement about O'Connor's ability to get along with others, on July 1, 2009, Gallagher and Boran, indicate that O'Connor has an "obvious" problem getting along with others without distracting them or exhibiting behavioral extremes and interacting with others in the work environment. However, on February 3, 2010, Freeman and Boran indicate that O'Connor would have "no problem" getting along with others without distracting them or exhibit behavioral extremes and a "slight problem" interacting appropriately with others in a work environment. On April 11, 2011 Stern and Lara indicated that O'Connor has a "slight problem" interacting appropriately with others in a work environment and a "serious problem" getting along with others without distracting them or exhibiting behavioral extremes. On September 7, 2011, Brault and a MD supervisor found the same levels as the April 11, 2011 assessment.
The levels of functional abilities used includes: 1) no problem; 2) slight problem; 3) obvious problem; 4) serious problem; and 5) very serious problem.
In a treatment plan review dated February 14, 2012, Brault indicated that O'Connor reported isolation, but then noted that O'Connor went to North Carolina with family to visit her nephew. In a treatment plan review dated November 10, 2011, Brault reported that O'Connor appears to be more social than reported as she reported going to stores and a relative's football game. On August 10, 2011, Brault indicated that O'Connor initially indicated that she was not socializing, but then indicated that she went to her mother's for Thanksgiving, grocery shopping, and out with her sister. She also indicated that she went to a Halloween party but claimed that she only stayed a few hours because she can't talk to people.
The court finds that there is substantial evidence to support the ALJ's statement that O'Connor "has not displayed any difficulty in getting along with others." While there is conflicting opinions with regard to O'Connor getting along with others in a work setting, and O'Connor's statements conflict with her actions, the ALJ's decision will be sustained even where there is substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d at 57.
The court concludes that there is no error. Therefore, O'Connor's motion to reverse is denied on this ground and the motion to affirm is granted.
II. Listed Impairment
O'Connor next argues that the ALJ improperly concluded that her impairment was not a listed impairment. Specifically, O'Connor argues that "the medical record contains descriptions of all of the clinical signs and symptoms necessary to meet or to be equivalent to the listing of section 12.04." She further argues that the ALJ incorrectly characterized the clinical signs, symptoms, and other evidence of record supporting her depressive disorder.
In so far as O'Connor is again arguing that the ALJ mischaracterized the evidence, the court addressed this issue in the preceding section.
The Commissioner responds that the ALJ's decision that O'Connor did not have a listed impairment is supported by substantial evidence. Specifically, the Commissioner argues that it is O'Connor's "burden to establish that her impairments were severe enough to satisfy the criteria of a listed impairment" and she failed to "identify evidence that compels such a finding."
"For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). The plaintiff bears the burden of showing that an impairment meets the specified criteria. Id.
"For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is 'equivalent' to a listed impairment, he must present medical findings equal in severity to all the [required] criteria for the one most similar listed impairment." Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (quoting 20 C.F.R. § 416.926(a) (1989)).
In this case, the ALJ found that "[t]he severity of [O'Connor]'s mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.04, 12.06, and 12.09."
In making this finding, the ALJ "considered whether the 'paragraph B' criteria [was] satisfied." The ALJ ultimately found that the criteria was not satisfied.
Paragraph "B" of section 12.04 and 12.06 of 20 C.F.R. Part 404, Subpart P, Appendix 1 requires "at least two of the following: (1) [m]arked restriction of activities of daily living; or (2) [m]arked difficulties in maintaining social functioning; or (3) [m]arked difficulties in maintaining concentration, persistence, or pace; or (4) [r]epeated episodes of decompensation, each of extended duration."
"The court notes that on January 17, 2017, following the date of the ALJ's decision in this case, new regulations came into effect that revised the criteria used to evaluate claims involving mental disorders found in 20 C.F.R, Part 404, Subpart P, Appendix 1, Listing of Impairments. See Evaluation of Mental Impairments, 20 C.F.R. § 404.1520a (2017); 20 C.F.R. § 416.920a (2017). The court has applied the regulations in effect at the time of the ALJ's decision. See Revised Med. Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138-01 (Sept. 26, 2016)("We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the effective date . . . we will apply these final rules . . . ."). See also, Graham v. Commissioner of Social Security, No. 16cv142 (LDH), 2017 WL 1232493, n.2 (E.D.N.Y March 31, 2017); Davilar v. Commissioner of Social Security, No. 15cv7200 (LDH), 2017 WL 1232490, n.2 (E.D.N.Y March 31, 2017).
A marked limitation "means more than moderate but less than extreme." 20 C.F.R. Part. 404, Subpart P, Appendix 1, 12.00 (C). "A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. Part. 404, Subpart P, Appendix 1, 12.00. The ALJ found no marked limitations.
The ALJ found that O'Connor had a mild restriction in activities of daily living. The court finds that there is substantial evidence in the record to support the ALJ's finding. The ALJ noted that O'Connor is able to perform personal care and grooming and take public transportation. In addition, the record indicates that O'Connor was able to babysit for her brother, take trips with her family, attend parties, grocery shop, and go out with her sister. In a March 21, 2001 treatment plan review by Stern, he noted that O'Connor reported exercising, walking, and reading to block urges for alcohol.
The ALJ found that O'Connor had moderate difficulties in social functioning. The court finds that there is substantial evidence in the record to support the ALJ's finding. While O'Connor missed AA meetings and counseling sessions, due to rain, bus issues, and babysitting, she was an active participant in group therapy. O'Connor reported isolating due to her sister and sister's husband's "dysfunctional" relationship and the fear of being asked to leave their house if she disapproved. However, O'Connor was able to socialize with family at other times. On July 12, 2010, O'Connor reported to Stern that she spent her day "vacuuming her sister's pool, mowing the lawn, and cleaning the house." On November 10, 2011, Brault reported that O'Connor "appears to be more social than reported in the past sessions; going to stores and a relative's football game."
The ALJ also found that O'Connor had moderate difficulties in maintaining concentration, persistence or pace and no episodes of decompensation of extended duration. The ALJ noted that the record reflected "some anxiety and depression, which would limit the claimant's ability to concentrate and focus."
On July 1, 2009, Gallagher and Boran indicated that O'Connor had a "very serious problem" focusing long enough to finish assigned simple activities or tasks and performing basic work activities at a reasonable pace and finishing on time. However, on February 3, 2010, Freeman and Boran indicate that O'Connor had a "serious," rather than "very serious problem," maintaining those same skills. On April 11, 2011, Stern and Lara indicate that O'Connor has a "very serious problem" focusing long enough to finish assigned simple activities. In the same report, however, they note that O'Connor's "[c]oncentration appears to be WNL [within normal limits]." They noted that O'Connor has a serious problem performing basic work activities at a reasonable pace and finishing on time. The court finds that there is substantial evidence to support the ALJ's finding that she has moderate, not marked, difficulties is social functioning and in maintaining concentration, persistence or pace.
The court concludes that O'Connor has failed to show that she has an impairment that manifests "all of the specified medical criteria," Sullivan v. Zebley, 493 U.S. 521, 530 (1990), of [cite specific listing]. In addition, the court concludes that O'Connor has failed to show that she has an impairment or combination of impairments that is "'equivalent' to a listed impairment," through "medical findings equal in severity to all the [required] criteria for the one most similar listed impairment." Sullivan, 493 U.S. at 531 (quoting 20 C.F.R. § 416.926(a) (1989)). Therefore, the motion to reverse on this ground is denied and the motion to affirm is granted.
III. Residual Functional Capacity Determination
Residual functional capacity ("RFC") is "what an individual can still do despite his or her limitations." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). "Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id. RFC is "an assessment based upon all of the relevant evidence . . . [which evaluates a claimant's] ability to meet certain demands of jobs, such as physical demands, mental demands, sensory requirements, and other functions." 20 C.F.R. § 220.120(a).
An ALJ must consider both a claimant's severe impairments and non-severe impairments in determining his/her RFC. 20 C.F.R. § 416.945(a)(2); De Leon v. Sec'y of Health & Human Servs., 734 F.2d 930, 937 (2d Cir. 1984).
"When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account . . . ." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). However, the ALJ "is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." Id.
A. Credibility Assessment
O'Connor argues that the ALJ "failed to properly assess . . . O'Connor's credibility." Specifically, O'Connor argues that the ALJ "employed the same boilerplate language that appears in nearly all [d]ecisions" and the ALJ's conclusions are "based on erroneous reasons."
The Commissioner responds that the ALJ's decision with respect to O'Connor's credibility was proper and is supported by substantial evidence. Specifically, "[w]hile the ALJ does provide an introduction with the standard requirements for any credibility analysis, she goes on to specifically detail the facts" of O'Connor's case.
In determining credibility, the ALJ must first determine if the claimant's pain could "reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. §§ 404.1529(a), 416.929(a). If so, the ALJ assesses the claimant's credibility with respect to the alleged pain symptoms. "[A] claimant's subjective evidence of pain is entitled to great weight where . . . it is supported by objective medical evidence." Skillman v. Astrue, No. 08-CV-6481, 2010 WL 2541279, at *6 (W.D.N.Y. June 18, 2010) (citing Simmons v. U.S.R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992)). If the objective evidence does not support the plaintiff's testimony with respect to functional limitations and pain, the ALJ considers the factors set forth in 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Skillman, 2010 WL 2541279, at *6.
These factors include: 1) daily activities; 2) the location, duration, frequency, and intensity of your pain or other symptoms; 3) the type, dosage, effectiveness and side effects of any medication you take or have taken; 4) treatment, other than medication, that you receive; 4) any other measures you use to relieve pain; and 5) other relevant factors. See 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3).
The ALJ "is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence of record." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Although the ALJ's decision need not list the relevant factors to be considered, it must "contain specific reasons for the finding on credibility, supported by the evidence in the case record." Cichocki v. Astrue, 534 F. App'x. 71, 76 (2d Cir. 2013). The decision must "make clear . . . the weight the [ALJ] gave to the individual's statements and the reasons for that weight." Id.
"To be disabling, pain must be so severe, by itself or in combination with other impairments, to preclude any substantial gainful activity." See Manzo v. Sullivan, 784 F. Supp. 1152, 1157 (D.N.J. 1991) (citing Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983)). The ALJ should consider medical findings, other objective evidence, and subjective evidence of pain in assessing the claimant's credibility. Id.
The ALJ's "finding that the witness is not credible must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). The "ALJ's credibility determination is generally entitled to deference on appeal." Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013).
In this case, the ALJ found that O'Connor's subjective complaints were only "partially credible." The ALJ indicated that O'Connor's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible with the . . . RFC." The ALJ further found that the "longitudinal medical record is generally not supportive of the degree of limitation alleged by the claimant."
In making this finding, the ALJ noted O'Connor's testimony regarding her pain. O'Connor testified that she has headaches 3 times a week, vertigo, and pain in her hands and knees which is getting worse. The ALJ noted that O'Connor testified that she takes medication daily for the vertigo, however, has not obtained any treatment for her hands and knees despite her testifying that it is getting worse. The ALJ noted that O'Connor is able to walk 2 blocks to the bus stop and does not take any pain medications. With regard to her headaches, the ALJ noted that O'Connor's testimony is contradicted by her report to Ryan that she suffered from migraines only one to two times a month. The ALJ noted that, while her headaches may have worsened since that time, there are no records that she sought additional treatment.
O'Connor further argues that her case should be remanded so that the ALJ can properly evaluate her pain from osteopenia of the spine, borderline osteopenia of the hip, osteoarthritis of the spine, and sciatica. The court disagrees. The ALJ found these impairments to be non-severe. O'Connor did not testify that she has any pain or limitations from any of these impairments. She testified that, other than medication for migraines, she is does not take any medication or treatment of any kind for her other physical impairments. (R54-56). Also, there are no medical records indicating that O'Connor has sought any treatment for these impairments or that treatment was recommended by any medical provider. The court notes that O'Connor has the burden of proving the severity of her impairments, Burgess v. Astrue, 537 F.3d at 128 ("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 steps one through four[.]")
In addition, the ALJ noted O'Connor's testimony regarding her mental impairments and noted specific examples for finding that her testimony was only partially credible. The ALJ noted that O'Connor testified that she has trouble concentrating and is anxious around others. The ALJ noted that she testified that she isolates in her room and often cries. O'Connor also testified that she forgets what she reads, has difficulty with group therapy, and does not attend AA meetings. The ALJ noted that the "medical record is generally not supportive of the degree of limitation alleged by the claimant." The court agrees. The clinical progress notes from Stern, the treatment plan reviews and clinical progress notes from Brault, and the medication management notes from McLaughlin all generally do not support O'Connor's testimony regarding the limiting effect of her mental impairments.
The court concludes that the ALJ properly determined credibility, and "weigh[ed] the credibility of the claimant's testimony in light of the other evidence of record." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Therefore, O'Connor's motion to reverse on this ground is denied and the Commissioner's motion to affirm is granted.
B. Treating Physician's Rule/Medical Opinion Evidence
The court notes that on January 18, 2017, the Social Security Administration promulgated final rules that significantly change the way the Commissioner considers medical opinion evidence. Revisions to Rules Regarding the Evaluation of Medical Opinion Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). The new regulations, 20 C.F.R. §§ 404.1520c and 416.920c, apply only to claims filed with the Social Security Administration on or after March 27, 2017. Accordingly, because O'Connor's claims were filed before this date, this court applied the regulations in effect prior to March 27, 2017.
O'Connor next argues that the treating physician's rule and 20 C.F.R § 404.1527 "requires that the treating physician's opinion must be given controlling weight when the opinion is well-supported by the objective tests and clinical findings and is not contracted by substantial evidence." Specifically, O'Connor argues that the ALJ "did not assign great, substantial, significant, or controlling weight to any physician or therapist that has met and treated Ms. O'Connor, or that has reviewed her medical records." She further argues that, as a result, the ALJ's decision is not supported by substantial evidence.
The Commissioner argues that a treating source's opinion as to the nature and severity of an impairment is entitled to controlling weight only if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence." (citing 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2)). The Commissioner further argues that four of the six providers were not physicians and not entitled to deference and the opinions were based on O'Connor's subjective complaints rather than objective evidence.
The court notes that the opinions on O'Connor's functional limitations were signed by two licensed professional counselors, a certified addiction counselor, and a licensed master social worker; none of which are listed as acceptable medical sources under the regulations, and therefore, not entitled to controlling weight. See 20 C.F.R. § 404.1513 and § 416.913. However, these documents were also co-signed by medical doctors whom are considered acceptable medical sources. Opinions cosigned by medical doctors are not be considered "treating" physician's opinion when there are no records or other evidence to show that the medical doctor treated the patient. See Vester v. Barnhart, 416 F.3d 886, 890 (8th Cir. 2005); Petrie v. Astrue, 412 F. App'x 401, 405 (2d Cir. 2011)(The ALJ did not err in refusing to find physicians' opinions controlling when the claimant's contact with the physicians was "limited and remote").
"[T]he opinion of a claimant's treating physician as to the nature and severity of the impairment is given 'controlling weight' so long as 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.'" Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)); see also Mariani v. Colvin, 567 F. App'x 8, 10 (2d Cir. 2014) (holding that "[a] treating physician's opinion need not be given controlling weight where it is not well-supported or is not consistent with the opinions of other medical experts" where those other opinions amount to "substantial evidence to undermine the opinion of the treating physician").
"The regulations further provide that even if controlling weight is not given to the opinions of the treating physician, the ALJ may still assign some weight to those views, and must specifically explain the weight that is actually given to the opinion." Schrack v. Astrue, 608 F. Supp.2d 297, 301 (D. Conn. 2009) (citing Schupp v. Barnhart, No. Civ. 3:02CV103(WWE), 2004 WL 1660579, at *9 (D. Conn. Mar. 12, 2004)). The ALJ must "explain why a treating physician's opinions are not being credited." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). It is "within the province of the ALJ to credit portions of a treating physician's report while declining to accept other portions of the same report, where the record contain[s] conflicting opinions on the same medical condition." Pavia v. Colvin, No. 6:14-cv-06379 (MAT), 2015 WL 4644537, at 4 (W.D.N.Y. Aug. 4, 2015) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)). In determining the amount of weight to give to a medical opinion, the ALJ considers the examining relationship, the treatment relationship, the length of treatment, the nature and extent of treatment, evidence in support of the medical opinion, consistency with the record, specialty in the medical field, and any other relevant factors. 20 C.F.R. § 404.1527.
In this case, the ALJ noted that O'Connor was evaluated by Ryan, a consultative examiner, in connection with her disability application and appeal for her physical impairments. Despite seeing O'Connor on only one occasion, the ALJ gave partial weight to Ryan's opinion where it noted his objective clinical findings. However, as noted by the ALJ, much of Ryan's evaluation was based on O'Connor's own reporting. Ryan noted that the quality of her self-reported history was "fair." The court notes that "if the treating physician's opinion is inconsistent with the consulting physician's opinion, internally inconsistent, or based solely on the patient's subjective complaints, the ALJ may discount it." Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008)(citations omitted).
The ALJ further noted that the state agency opinion found no severe physical impairments, however, the ALJ found that O'Connor's non-severe physical impairments cause some limitations "which [were] reflected in the [RFC]." The ALJ took into consideration O'Connor's bilateral hand and knee pain and limitations with sitting, standing, and walking in assessing O'Connor's RFC by finding her capable of light work with limitations. Under these circumstances, the court concludes that the ALJ's decision to give Ryan's opinion partial weight regarding O'Connor's physical impairments is supported by substantial evidence.
Next, with regard to O'Connor's mental impairments, the ALJ gave "partial weight" to the July 2009 opinion signed by Gallagher and Boran, "partial weight" to the April 2011 opinion signed by Stern and Lara, "partial weight" to the September 2011 opinion signed by Brault and a supervising M.D., and "partial weight" to the state agency consultant's opinions noting that the claimant can perform work. The ALJ then went on to explain the reasons for giving these providers partial weight. The ALJ noted that that there were discrepancies within the opinions and between the opinions and the clinical progress notes by the providers which "raises questions regarding the accuracy of [these] opinions." The ALJ pointed to specific discrepancies and cited from the medical record.
This court agrees that the clinical progress notes do contradict O'Connor's reporting of her reason for not working and her reporting of her depression symptoms. For example, throughout the progress notes, O'Connor's treating providers report that her primary reason for not working is coordinating the bus schedule with work. On December 8, 2010, Stern noted that O'Connor reported that she was sad, but present with bright affect and was often smiling during the session. He questioned whether she was reporting her mood symptoms "as being disabling for the secondary gain of disability compensation benefits." On November 28, 2011 Brault indicated that O'Connor claimed to not be socializing, however, she further noted that later in the session O'Connor reported specific events of socializing. On February 9, 2012, Brault reported that O'Connor indicated that she was more irritable, anxious, and agitated, but O'Connor admitted to not taking her medication as prescribed. The court concludes that substantial evidence supports the ALJ's decision to give these opinions partial weight.
O'Connor next argues that "[b]y assigning an unknown 'partial weight' to . . . O'Connor's treatment providers, and even to doctors who never met or examined . . . O'Connor, the ALJ failed to articulate a precise amount of weight assigned to each doctor." However, the court notes that "[t]he failure 'to explicitly state the weight assigned to [an] opinion' need not be reversible error where an ALJ has 'discussed [the source's] opinion at length.'" Nieves v. Colvin, Civ. No. 3:14CV01736 (VLB), 2017 WL 1050569, at *5 (D. Conn. Mar. 20, 2017) (citing Freitas v. Colvin, Civ. No. 3:14CV789(DFM), 2016 WL 7407706, at *5 (D. Conn. Dec. 22, 2016)(holding that an ALJ "evaluated [a source's] opinions in accordance with regulations," where she "fail[ed] to explicitly state the weight he assigned to the opinion" of the source, but "discussed [the source's] opinion at length")). In this case, the ALJ designated and explained the weights given to the opinions and the reasons for the weights give, therefore, the court finds no error.
In making this argument, O'Connor cites to Shupp v. Barnhart, Civ. No. 3:02-cv-00103(WWE), 2004 WL 1660579 (D. Conn Mar. 12, 2004), for the proposition that the ALJ must "be sufficiently specific to make clear to subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for the weight." However, nothing in Shupp indicates that "partial weight" is not sufficient to meet the case law and regulations. In Shupp, the ALJ did not articulate any level of weight given to the treating provider. The Shupp court noted that "even if controlling weight is not given to a treating physician's opinion, some weight may still be attached to that opinion, and the ALJ must still designate and explain the weight that is actually given to the opinion." In this case, the ALJ did designate and explain the weight given to the opinion.
Next, O'Connor argues that the ALJ should not have assigned the same partial weight to the state agency consultants, who never met her, never examined her, and "only reviewed a portion of her medical records." However, the court notes that "State agency medical and psychological consultants . . . are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation." Tyson v. Astrue, No. 3:09CV1736(CSH), 2010 WL 4365577, at *10 (D. Conn. June 15, 2010), report and recommendation adopted, 2010 WL 4340672 (D. Conn. Oct. 22, 2010) (citing 20 C.F.R. § 404.1527(f)(2)(I)). "As the second circuit has held, the opinions of non-examining sources can override the treating sources' opinions provided they are supported by evidence in the record." Id. (citing Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993)). In light of the internal inconsistencies between the clinical progress notes and the treating provider's opinions, the court concludes that it was not error to assign the same weight to the state agency consultant's opinions.
O'Connor further argues that "if the non-examining doctor has not reviewed all of a claimant's pertinent medical records, the opinion of that non-examining doctor is entitled to almost no weight, or no weight at all[.]" Specifically, because the state agency consultants only reviewed the records through October 5, 2011, the ALJ should not have given them the same weight as the treating providers.
The court notes, however, that the ALJ had all records subsequent to that date through the date of the hearing. "[O]pinions of state agency physicians may constitute substantial evidence if they are consistent with the record as a whole." Wessel v. Colvin, 2015 WL 12712297 (D. Conn. Dec. 22, 2015) (citation omitted). "[T]he ALJ . . . [is] entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole." Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013).
In this case, even though the state agency consultants rendered their opinions about eight months before the ALJ hearing, the agency consultant's opinions are consistent with the record as a whole. The ALJ was free to consider the relevant medical evidence from the record as a whole and base the RFC determination on all of the evidence.
The court concludes that there is substantial evidence to support the weights given to the medical opinions by the ALJ. Therefore, O'Connor's motion to reverse on this ground is denied and the Commissioner's motion to affirm is granted.
C. RFC
O'Connor argues that the ALJ's determination of her RFC is not supported by substantial evidence because "the RFC description far exceeds [her] actual capabilities." Specifically, the ALJ should have included greater limitations due to her physical impairments and due to the fact that she cannot be exposed to pulmonary irritants due to her chronic sinus disease.
The Commissioner responds that O'Connor "failed to present evidence that her residual functional capacity was such that she could not perform any work-related activities." The Commissioner further responds that "[t]he ALJ, therefore, properly considered the evidence of record and properly found that [O'Connor] retained the ability to perform a range of light work."
In this case, the ALJ found that O'Connor has the residual functional capacity "to perform light work . . . except she can frequently balance; frequently handle and finger with the right hand; no working at unprotected heights; no operating of a motor vehicle; simple routine, repetitive tasks; simple work-related decisions; can tolerate occasional changes in a routine work setting; no interaction with the public, and only occasional interaction with co-workers."
O'Connor again argues that the ALJ should have included limitations for her osteopenia of the spine, borderline osteopenia of the hip, osteoarthritis of the spin, sciatica, and bilateral hand and knee pain. As this court noted supra, O'Connor has failed to provide evidence that these issues caused her any pain or limitations. Since the court addressed this issue, the court need not address it again. O'Connor also quotes much of her subjective testimony regarding her hand and knee pain. This court concluded that there was substantial evidence to support the ALJ's credibility determination, and need not address this issue again. In addition, this court concluded that there was substantial evidence to support the weights given to the medical opinions.
Finally, O'Connor argues that she suffers from chronic sinus disease and the ALJ should have included a limitation on her exposure to allergens and pulmonary irritants. On March 17, 2009, the Griffin Hospital emergency room provider diagnosed O'Connor with "chronic sinusitis." However, on June 6-7, 2009, O'Connor again sought treatment at Griffin Hospital emergency room. Based on the results of a CAT scan, the provider noted inflammation of her sinuses and diagnosed "acute sinusitis." On October 12, 2010, Naveed performed a MRI which indicated "bilateral [m]axillary sinus disease, left greater than right" and "[m]ild bilateral mastoid air cell fluid right greater than left." On June 17, 2011, at O'Connor's consultative examination with Ryan, O'Connor did not report any issues with her sinuses. There are no further records indicating that O'Connor sought treatment for her sinuses. There are no records that any treating provider recommended any treatment or limitations caused by her sinus issues. O'Connor did not testify at the hearing that her sinuses caused her any pain or limitations even when questioned repeatedly by the ALJ as to her physical and psychological limitations. O'Connor has the burden of proving the severity of her impairments, Burgess v. Astrue, 537 F.3d at 128 ("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 steps one through four[.]") O'Connor failed to prove that she has any limitations resulting from these diagnoses.
Therefore, court concludes that the ALJ's finding that O'Connor's can perform light work with limitations is supported by substantial evidence of record and, therefore, O'Connor's motion to reverse on the ground that the RFC exceeds her actual capabilities is denied and the Commissioner's motion to affirm is granted.
VI. Step Five Finding
O'Connor argues that the Commissioner "failed to meet her burden of proof" at "step five, which requires that [the Commissioner] demonstrate that [she] can perform work which is available in significant numbers in the State of Connecticut. . . ." Specifically, O'Connor argues that her functional limitations identified by her treating providers regarding her focus, pace, and her ability to perform work activities on a sustained basis would make her off task more than the 20% noted by the VE which would make her unable to perform any job.
O'Connor also argues that the three jobs identified by the vocational expert were "well beyond" O'Connor's abilities because of her hand swelling and joint pain and her sinus issues. Since the court addressed this issue in the previous sections, the court need not address it here.
The Commissioner responds that the ALJ's decision with respect to the existence of work in the national economy that O'Connor's can perform, was proper and is supported by substantial evidence.
"At Step Five [of the evaluation process], the Commissioner must determine that significant numbers of jobs exist in the national economy that the claimant can perform. An ALJ may make this determination either by applying the Medical Vocational Guidelines ["Grids"] or by adducing testimony of a vocational expert." McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing 20 C.F.R. § 404.1520(a)(4)(v)). ALJs must apply the Grids on a case-by-case basis, and if the Grids accurately reflect a claimant's limitations, then an ALJ may solely use them in assessing the availability of jobs that the claimant can perform. Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986).
See 20 C.F.R. pt. 404, subpt. P. --------
"Vocational expert testimony is required only if a claimant's 'nonexertional limitations . . . significantly limit the range of work permitted by his exertional limitations.'" Lewis v. Colvin, 548 F. App'x 675, 678 (2d Cir. 2013) (quoting Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)). A significantly limiting nonexertional impairment must "so narrow a claimant's possible range of work as to deprive him of a meaningful employment opportunity." Zabala, 595 F.3d at 411. "An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as 'there is substantial record evidence to support the assumption[s] upon which the vocational expert based his opinion,'" McIntyre, 758 F.3d at 151 (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983)), and the hypothetical "accurately reflect[s] the limitations and capabilities of the claimant involved." Id. "'[T]he combined effect of a claimant's impairments must be considered in determining disability; the [Commissioner] must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe.'" Id. at 151-152. "A vocational expert is not required to identify with specificity the figures or sources supporting his conclusion, at least where he identified the sources generally." Id. at 152.
In this case, the ALJ properly gave partial weight to the treating physician's opinions regarding her ability to function in the work environment when determining O'Connor's RFC. As the court noted, the ALJ's decision that O'Connor could perform light work with limitations was supported by substantial evidence. In determining those limitations the court properly took into consideration O'Connor's mental health issues by limiting O'Connor to only simple routine, repetitive tasks, and simple work-related decisions. The ALJ also limited O'Connor to only occasional changes in a routine work setting, no interaction with the public, and only occasional interaction with co-workers.
The court concludes that the ALJ's decision that there is a significant number of jobs in the national economy that O'Connor's can perform, was proper and is supported by substantial evidence. The ALJ properly relied on the testimony of a vocational expert in assessing the availability of jobs that the claimant can perform. Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986). O'Connor's motion to reverse on this ground is denied and the Commissioner's motion to affirm is granted.
CONCLUSION
O'Connor's motion for an order reversing or remanding the Commissioner's decision (document no. 16) is DENIED and the Commissioner's motion to affirm that decision (document no. 20) is GRANTED.
It is so ordered this 29 day of September 2017, at Hartford, Connecticut.
/s/_________
Alfred V. Covello,
United States District Judge