Opinion
6:13-CV-00755 (NAM/TWD)
09-26-2014
BONNIE L. ROSS, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
APPEARANCES: BONNIE L. ROSS Plaintiff Pro Se HON. RICHARD S. HARTUNIAN United States Attorney for the Northern District of New York Counsel for Defendant Room 218 James T. Foley U.S. Courthouse Albany, New York 12207 OFFICE OF GENERAL COUNSEL Social Security Administration 26 Federal Plaza, Room 3904 New York, New York 10278 OF COUNSEL: ROBERT R. SCHRIVER, ESQ. Special Assistant United States Attorney STEPHEN P. CONTE, ESQ. Chief Counsel, Region II
APPEARANCES: BONNIE L. ROSS
Plaintiff Pro Se
HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
Counsel for Defendant
Room 218
James T. Foley U.S. Courthouse
Albany, New York 12207
OFFICE OF GENERAL COUNSEL
Social Security Administration
26 Federal Plaza, Room 3904
New York, New York 10278
OF COUNSEL: ROBERT R. SCHRIVER, ESQ.
Special Assistant United States Attorney
STEPHEN P. CONTE, ESQ.
Chief Counsel, Region II
THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT AND RECOMMENDATION and ORDER
This matter was referred to the undersigned for report and recommendation by the Honorable Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. However, Plaintiff did not file a brief despite the Court providing her with extensions to do so. (Dkt. Nos. 14 and 20.) The Commissioner filed a brief as directed by the Court. (Dkt. Nos. 21 and 22.) After service of the Commissioner's brief, the Court gave Plaintiff a final opportunity to file a brief within forty-five days in support of her position. (Dkt. No. 21.) The Court received no response from Plaintiff. Oral argument was not heard. For the reasons discussed below, it is recommended that the decision of the Commissioner be affirmed and the Complaint (Dkt. No. 1) be dismissed.
I. BACKGROUND AND ADMINISTRATIVE PROCEDURAL HISTORY
Plaintiff is presently forty-seven years old. (T. at 71.) She completed ninth grade and holds a GED. (T. at 73.) She has worked as a medical assistant in a physician's office, as a presser at a dry cleaner, and as a clerk in a convenience store. (T. at 53, 73-74.) Plaintiff alleges disability due to bipolar disorder, post-traumatic stress disorder ("PTSD"), depression, mood swings, involuntary movements, insomnia, cardiac symptoms, back pain, neck pain, and anxiety. (T. at 75-80, 224, 235, 278-80.)
Citations identified as "T" refer to the Administrative Transcript and the page numbers set forth therein rather than the numbers assigned by the Court's electronic filing system. (Dkt. No. 12.)
Plaintiff filed for disability insurance benefits and SSI benefits on August 31, 2006. (T. at 36, 204-206.) The application was denied on March 16, 2007. (T. at 120-23.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (T. at 124.) The initial hearing was held on February 24, 2009, but Plaintiff did not appear for that hearing. (T. at 96-100.) Another hearing was held on June 16, 2009. (T. at 67.) On August 26, 2009, the ALJ issued a decision finding that Plaintiff was not disabled. (T. at 102.) Thereafter, the Appeals Council remanded the case for further proceedings. (T. at 113.) On May 12, 2011, a further hearing was held before the ALJ. (T. at 42.) On May 20, 2011, the ALJ issued a decision again finding that Plaintiff was not disabled. (T. at 36.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on June 11, 2012. (T. at 1.) Plaintiff commenced this action on June 27, 2013, after obtaining permission for an extension from the Appeals Council. (Dkt. No. 1; T. at 5.)
II. APPLICABLE LAW
A. Standard for Benefits
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or 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) (2006). In addition, the plaintiff's
physical or mental impairment or impairments [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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.Id. § 1382c(a)(3)(B).
Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a) (2012)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2014). "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find non-disability 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." [20 C.F.R.] §§ 404.1520(c), 416.920(c). 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. [20 C.F.R.] §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA 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 SSA 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. [20 C.F.R.] §§ 404.1520(f), 404.1560(c), 416.920(f), 416.9630(c).Id., 540 U.S. at 24-25 (footnotes omitted).
The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of working. Id.
B. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing, inter alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986.
A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g) (2012); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "An ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010) (citations omitted); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Featherly, 793 F. Supp. 2d at 630 (internal quotations omitted) (citation omitted); Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258 (citations omitted). However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
III. THE ALJ'S DECISION
Here, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since August 31, 2006. (T. at 24.) At step two, the ALJ found that Plaintiff's bipolar disorder, polysubstance abuse in remission, and degenerative disc disease of the cervical and lumbosacral spine were severe impairments. Id. At step three, the ALJ found that Plaintiff's impairments, although severe, did not individually, or in combination, meet or equal any of the criteria of a section of the Listing of Impairments ("Listings"), set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. (T. at 26-27.) Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and concluded that she retained the ability to "lift and/or carry 20 pounds on an occasional basis; lift and/or carry 10 pounds on a frequent basis; stand and/or walk for about six hours; and sit for about six hours." (T. at 27.) Additionally, the ALJ found Plaintiff "unable to interact with co-workers or the public on a frequent basis, but can do so on an occasional basis, meaning up to one-third of the workday." Id. At step four, the ALJ concluded that Plaintiff had no past relevant work. (T. at 34.) The ALJ obtained the testimony of a vocational expert (T. at 35) and, at step five, the ALJ concluded that Plaintiff was not disabled because jobs existed in significant numbers in the national economy that Plaintiff could perform. (T. 34-36.) Thus, the ALJ denied Plaintiff's claim for disability benefits. (T. at 36.)
IV. THE PARTIES' CONTENTIONS
Plaintiff did not file a brief despite several opportunities to do so. (Dkt. Nos. 14, 18, 20, and 21.) Her form complaint does not provide details regarding any claimed errors in the ALJ's decision. See Dkt. No. 1.
Defendant contends that the ALJ's decision applied the correct legal standards and is supported by substantial evidence and thus should be affirmed. (Dkt. No. 22.)
V. DISCUSSION
A. Plaintiff's Failure to File Papers in Response to Defendant's Motion for Judgment on the Pleadings
It is well settled that a plaintiff bears the burden of establishing disability. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) ("The claimant generally bears the burden of proving that she is disabled under the statute. . . ."). See also Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) ("The burden is on the claimant to prove that he is disabled within the meaning of the Act."). Plaintiff's pro se complaint consists of a fill-in-the-blank form, in which she complains "of a decision which adversely affects the plaintiff in whole or in part." (Dkt. No. 1.) Despite Orders of this Court on December 23, 2013, February 6, 2014, and March 11, 2014 (Dkt. Nos. 14, 20, and 21), providing Plaintiff with additional time, Plaintiff did not file any papers opposing Defendant's motion, nor has she filed any further extension request to enlarge the time within which to oppose Defendant's motion. As a result, it follows that Plaintiff has failed to set forth all errors which she contends entitle her to relief. (General Order No. 18 at 1.) Thus Plaintiff's complaint, with nothing else, is conclusory and insufficient to defeat Defendant's motion for judgment on the pleadings. See Feliciano v. Barnhart, Civ. No. 04-9554 (KMW)(AJP), 2005 U.S. Dist. LEXIS 14578, at *36, 2005 WL 1693835, at *10 (S.D.N.Y. July 21, 2005); Reyes v. Barnhart, Civ. No. 01-4059 (LTS) (JCF), 2004 U.S. Dist. LEXIS 3689, at *6-7, 2004 WL 439495, at *3 (S.D.N.Y. Mar. 9, 2004); Worthy v. Barnhart, Civ. No. 01-7907 (JSH), 2002 U.S. Dist. LEXIS 24550, at *2, 2002 WL 31873463, at *1 (S.D.N.Y. Dec. 23, 2002).
General Order No. 18 also contains the following "Notification of the Consequences of Failing to File a Brief as Required by Paragraph (1)(a-d)": "Plaintiff's brief is the only opportunity for Plaintiff to set forth the errors Plaintiff contends were made by the Commissioner of Social Security that entitle Plaintiff to relief. The failure to file a brief as required by this Order will result in the consideration of this appeal without the benefit of Plaintiff's arguments and may result in a decision heavily influenced by the Commissioner's version of the facts and subsequent dismissal of your appeal." (General Order No. 18 at 4.)
The Court will provide Plaintiff with a copy of all of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
B. The ALJ's Decision Was Supported By Substantial Evidence
For the reasons set forth above in Section V.A., it is not necessary for the Court to consider the ALJ's five step sequential evaluation of Plaintiff's claims. However, as set forth below, such consideration shows that the ALJ's decision is supported by substantial evidence.
See Feliciano, 2005 WL 1693835 (where magistrate judge nonetheless analyzed the five step sequential evaluation even though pro se plaintiff never filed a brief); Jiang v. Barnhart, Civ. No. 03-0077, 2003 WL 21526937 (S.D.N.Y. July 8, 2003); and Reynoso v. Apfel, Civ. No. 97-2234, 1998 WL 61002 (S.D.N.Y. Feb. 11, 1998).
(1) Plaintiff Was Not Engaged in Substantial Gainful Activity
As noted above at the first step of the sequential evaluation process, the agency will find non-disability unless the claimant shows that she is not working at a "substantial gainful activity." 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b).
Here, the ALJ found the that Plaintiff had "not engaged in substantial gainful activity since August 31, 2006, the application date." (T. at 24.) The record confirms that Plaintiff had not worked in any capacity since 2004. (T. at 51-54, 75, 208, 264.) Therefore, the Court finds that the ALJ's determination at step one is supported by substantial evidence.
(2) Plaintiff Had Severe Impairments
At the second step of the evaluation, the medical severity of a claimant's impairments is considered. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Here, the ALJ determined that Plaintiff suffered from the severe impairments of bipolar disorder, polysubstance abuse in remission, and degenerative disc disease of the cervical and lumbosacral spine. (T. at 24.) The decision of the ALJ shows a reasoned and proper analysis in making this determination. Id. at 24-26. Defendant does not dispute these findings. (Dkt. No. 22.)
The ALJ did not find that Plaintiff's other alleged mental impairments or combination of impairments were severe impairments. (T. at 24.) This is supported by substantial evidence. Plaintiff was seen in consultation by David Stang, Psy.D., whose report of his examination on November 18, 2006, shows that she was only mildly limited in her activities of daily living. (T. at 277-282.) She could dress, bath, and groom herself; prepare some food; do house cleaning, shopping and laundry; manage money; and drive. (T. at 281.) In her testimony, she confirmed that she could do household chores, drive, and take care of her personal hygiene. (T. at 72, 77, 90-91.) She could go to appointments and meetings. (T. at 72, 83.)
The record shows Plaintiff's social functioning was likewise mildly limited. At the consultative visit with Dr. Stang, Plaintiff was animated and friendly, and she reported that she socialized with her boyfriend and family members and spoke to her neighbors. (T. at 281-82.) While she did not like to go out much, she had a friend that she visited once in a while. (T. at 88.)
The ALJ's finding that Plaintiff had moderate difficulties maintaining concentration, persistence, or pace due to her mental impairments or combination of impairments is also supported by the record. Dr. Stang noted that she was fully oriented to person, place, and time and could adequately perform serial three exercises. (T. at 281.) However, she could only recall one out of three words after a five-minute interval. Id. He found her thought processes "coherent, organized, and goal directed." Id. She enjoyed reading and watching movies. (T. at 89, 282.) She was capable of handling her own funds. (T. at 281, 282.)
The record does not show any repeated episodes of decompensation of extended periods of time. While Plaintiff was psychiatrically hospitalized on three separate occasions, these were for short durations of time and were precipitated by a relapse into substance abuse. (T. at 401-409, 419-436.)
Additionally, the state agency psychiatric review record shows that Plaintiff had mild restrictions in her activities of daily living and social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. (T. at 469-482.)
At the second step of the evaluation, the medical severity of a claimant's impairments is considered. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A "severe impairment" is defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." Id. at §§ 404.1520(c), 404.1521, 416.920(c), 416.921. "Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." Id. at §§ 404.1521(b), 416.921(b). These include walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing, speaking, understanding, carrying out, remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. Id.; see also Ianni v. Barnhart, 403 F. Supp. 2d 239, 252 (W.D.N.Y. 2005); Camacho v. Apfel, Civ. No. 97-6151 (JG), 1998 U.S. Dist. LEXIS 23866, at *17-18, 1998 WL 813409, at *6 (E.D.N.Y. July 22, 1998). The claimant bears the burden of presenting evidence to establish severity. 20 C.F.R. § 404.1512(c). The claimant must demonstrate "that the impairment has caused functional limitations that precluded him from engaging in any substantial gainful activity for one year or more." Perez v. Astrue, 907 F. Supp. 2d 266, 272 (N.D.N.Y. 2012).
"A finding of not severe should be made if the medical evidence establishes only a slight abnormality which would have no more than a minimal effect on an individual's ability to work." Id. at 271 (internal quotations omitted) (citations omitted); SSR 85-28, 1985 WL 56858, at * 2 (1985). Based upon the medical evidence and Plaintiff's testimony at her hearing as outlined above, the ALJ correctly found Plaintiff's other mental conditions — PTSD, depression, anxiety, mood swings, involuntary movements, and insomnia — were not severe impairments. (T. at 24.) Notably, during a psychiatric evaluation by her treating providers, Anandavalli Menon, M.D., and Sylvia Coleby, N.P.P., on October 31, 2006, Plaintiff appeared neat and clean; she was cooperative, calm, and relaxed; and her thoughts were logical and organized. (T. at 460.) Accordingly, there is substantial evidence to support the ALJ's finding that Plaintiff's only severe impairments were her bipolar disorder, polysubstance abuse in remission, and degenerative disc disease of the cervical and lumbosacral spine.
(3) Plaintiff's Impairments Did Not Meet or Equal a Listed Impairment
The inquiry at step three is whether, based solely on medical evidence, the claimant has an impairment noted in the Listings. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant has one of the listed impairments, the Secretary will consider the claimant disabled without looking at vocational factors, and the claimant will automatically be entitled to benefits. Id. §§ 404.1520(d), 416.920(d). The Secretary presumes that someone with a listed impairment is unable to perform substantial gainful activity. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). "Under the regulations, the ALJ's determination as to whether the claimant's impairment meets or equals the Listings must reflect a comparison of the symptoms, signs, and laboratory findings about the impairment, as shown in the medical evidence, with the medical criteria as shown with the listed impairment." Kuleszo v. Barnhart, 232 F. Supp. 2d 44, 52 (W.D.N.Y. 2002) (citing 20 C.F.R. § 404.1526). However, the burden is on the claimant to present medical findings that show his or her impairments match a listing or are equal in severity to a listed impairment. If a claimant's impairment manifests only some of the criteria in the listing, no matter how severely, the impairment does not qualify. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
An ALJ is required to provide an explanation as to why the claimant failed to meet or equal the Listings, "where the claimant's symptoms, as described by the medical evidence, appear to match those described in the Listings." Kuleszo, 232 F. Supp. 2d at 52. However, if an ALJ's decision lacks an express rationale for finding that a claimant does not meet a Listing, a Court may still uphold the ALJ's determination if it is supported by substantial evidence. Berry, 675 F.2d at 468; Rockwood v. Astrue, 614 F. Supp. 2d 252, 273 (N.D.N.Y. 2009).
The ALJ found that Plaintiff's bipolar disorder, polysubstance abuse in remission, and degenerative disc disease of the cervical lumbosacral spine, status post laminectomy and fusion of November 2009, separately or in combination, did not meet or medically equal the severity of any impairment set forth in any section of the Listings. (T. at 26.) There is substantial evidence to support the ALJ's finding.
Plaintiff's alleged mental impairments most closely correspond to Listing 12.04 (Affective Disorders), Listing 12.06 (Anxiety Related Disorders), and Listing 12.09 (Substance Addicting Disorders). Plaintiff's alleged physical impairments of the cervical and lumbosacral spine most closely correspond to Listing 1.04 (Disorders of the Spine). The medical evidence does not show that Plaintiff's symptoms meet or equal the requirements of any of these Listings.
(a) Listing 12.04
For example, Listing 12.04 states that "[t]he required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. These requirements are:
A. Medically documented persistence, either continuous or intermittent, of one of the following:Id.
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or2. Manic syndrome characterized by at least three of the following:
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractability; or
B. Resulting in at least two of the following:g. Involvement in activities that have a high probability of painful consequences which are not recognized; oror
h. Hallucinations, delusions, or paranoid thinking;
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes);
AND
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
The medical evidence does not provide support that Plaintiff's bipolar disorder met or equaled Listing 12.04. As discussed above, Plaintiff's mental impairment or combination of impairments did not cause at least two "marked" limitations in the first three functional areas (activities of daily living; social functioning; and concentration, persistence, or pace) or one "marked" limitation in the first three functional areas and "repeated" episodes of decompensation, each of extended duration. As such, the determination by the ALJ that "paragraph B" criteria for Listing 12.04 was not met is supported by substantial evidence. See id.
The evidence also supports that "paragraph C" criteria was likewise not met in connection with Plaintiff's mental impairment or combination of impairments such that the ALJ's finding in this regard is appropriate. (T. at 27.) The Psychatric Review Technique Form prepared by state agency examiner Dr. Kamin found that the evidence did not establish the presence of the "paragraph C" criteria. (T. at 472, 480.) As noted more fully above in discussing the ALJ's step two analysis, Dr. Kamin's opinion is consistent with the medical records of the treating providers.
Accordingly, the medical evidence does not provide support that Plaintiff's impairments met or equaled Listing 12.04.
(b) Listing 12.06
Listing 12.06 states that "[t]he required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in both A and C are satisfied." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06 (2014). These requirements are:
A. Medically documented findings of at least one of the following:Id.
1. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms:or
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning
2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of marked distress; orAND
5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress;
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; orOR
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
C. Resulting in complete inability to function independently outside the area of one's home.
As outlined more fully above in Part V.B(2), Dr. Stang found Plaintiff was only mildly limited in her activities of daily living and social functioning. (T. at 277-282.) Her own testimony confirms she could function in these areas. (T. at 72, 77, 83, 90-91.) Dr. Stang also noted that she was fully oriented to person, place, and time and could adequately perform serial three exercises. (T. at 281.) However, she could only recall one out of three words after a five-minute interval. Id. He found her thought processes coherent, organized, and goal directed; and she was capable of handling her own funds. (T. at 281-82.)
Notably, the record does not show any repeated episodes of decompensation of extended periods of time. While she was psychiatrically hospitalized on three separate occasions, these were for short durations of time and were the result of a relapse into substance abuse. (T. at 401-409, 419-436.)
The treatment records of Plaintiff's providers, Nurse Practitioner Coleby and Dr. Menon, show Plaintiff had a Global Assessment of Functioning ("GAF") score of 61 after an initial psychiatric evaluation of Plaintiff conducted on October 31, 2006. (T. at 458-62.) The GAF score "rates overall psychological functioning on a scale of 0-100 that takes into account psychological, social, and occupational functioning." Zabala v. Astrue, 595 F.3d 402, 405 n.1 (2d Cir. 2010). A GAF score in the range of 61 to 70 indicates the presence of "some mild symptoms," such as a depressed mood or insomnia, or some difficulty in social or occupational functioning, but also indicates that the patient is "generally functioning pretty well" and has some meaningful interpersonal relationships. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") 34 (4th ed. rev. 2000). After another psychiatric examination, conducted on December 9, 2010, Nurse Practitioner Coleby and Dr. Menon assessed a GAF score of 90. (T. at 803-05.) A GAF score in the range of 81 to 90 indicates a patient with absent or minimal symptoms, with good functioning in all areas, who is interested and involved in a wide range of activities, socially effective, generally satisfied with life, and who has no more than everyday problems and concerns. See DSM-IV at 34.
As stated above, Plaintiff must satisfy the requirements of parts A and B of Listing 12.06 or part C. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06. The medical evidence discussed above does not show that Plaintiff meets part B. Thus in order to satisfy Listing 12.06, she must meet part C. There is no evidence that Plaintiff is completely unable to function independently outside her home. She testified she could drive and go to appointments and meetings. (T. at 72, 83.)
Accordingly, the above evidence does not provide support that Plaintiff's impairments met or equaled Listing 12.06.
(c) Listing 12.09
The required level of severity for this listing is met when the requirements of, inter alia, Listing 12.04 or Listing 12.06 are met. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.09. As discussed above, Plaintiff does not meet the requirements for Listing 12.04 or 12.06. Thus, she does not meet the requirements for this Listing and the ALJ's finding is supported by substantial evidence.
(d) Listing 1.04
Listing 1.04 concerns disorders of the spine resulting in compromise of a nerve root or the spinal cord. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. There must be medical findings establishing evidence of nerve root compression, or spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication. Id.
Here, while not specifically outlining Plaintiff's medical records concerning her cervical and lumbar impairments when determining that the conditions did not meet the Listings criteria, the ALJ later detailed Plaintiff's medical records of treatment and findings concerning her spinal condition when determining her RFC. (T. at 26, 29-30.) The objective medical evidence, including medical signs and laboratory findings, shows that on December 12, 2007, x-rays of Plaintiff's lumbosacral spine were negative, and x-rays of her cervical spine showed no acute findings. (T. at 621.) An April 10, 2008, a magnetic resonance imaging ("MRI") study of her lumbar spine was normal except for mild to moderate degenerative disc bulging at the L5-S1 level, mild compression of the left descending nerve root, and a mild degenerative disc change at the L4-L5 level. (T. at 599.) An MRI of the cervical spine, also performed on April 10, 2008, showed an asymmetric disc bulge at the C4-C5 level, possibly representing a small disc herniation; flattening of the spinal cord; no direct compression of the spinal corporal or ventral nerve roots; and mild to moderate degenerative disc change at the C5-C6 level, without evidence of disc herniation or cord compression. (T. at 596-97.) October 9, 2008, x-rays of Plaintiff's lumbar spine were also negative. (T. at 582.) An MRI of the lumbar spine performed the same day showed internal disc disruption and herniation at the L5-S1 level. (T. at 580-81.) February 2, 2009, x-rays of Plaintiff's cervical spine showed mild degenerative changes at the C5-C6 level, with no fracture; x-rays of Plaintiff's lumbar spine were negative. (T. at 715.)
The ALJ also noted that Plaintiff had undergone surgery on her lumbar spine, including a discectomy and instrumented fusion of the L5 and S1 vertebrae, on November 16, 2009. (T. at 29, 748, 755-56.) Post-operative x-rays of Plaintiff's lumbar spine showed no acute findings. (T. at 753.) An October 4, 2010, CT scan of Plaintiff's lumbar spine showed only a questionable epidural scar. (T. at 741.) An MRI of Plaintiff's lumbar spine performed two months later showed no obvious compressive lesion in the low lumbar region; normal intensity to all intervertebral disc spaces near the fusion; an intact lordotic curve; no obvious spondylolysis or spondylolisthesis; mild facet disease at the L4-L5 level, but no acute findings; and no signs of any obvious nerve entrapment or spinal stenosis at the area of surgical intervention. (T. at 735, 738.) X-rays of Plaintiff's cervical spine taken on March 21, 2011, showed suspected Schmorl's nodes at the C4-C5 level, which were interpreted as being unchanged from the previous cervical spine x-rays done in December 2007. (T. at 833.) On March 24, 2011, an MRI of Plaintiff's cervical spine showed a small right paracentral disc herniation at the C5-C6 level that was also interpreted as being unchanged from the previous cervical-spine MRI done on April 9, 2008. (T. at 830-31.) As shown by the medical records and specifically the objective medical tests discussed above, Plaintiff has not met the requirements for Listing 1.04; therefore, the Court finds the ALJ's determination is supported by substantial evidence.
(4) Plaintiff Retained the Residual Functional Capacity to Perform Certain Work as Defined by the ALJ
(a) Residual Functional Capacity
A claimant's RFC is the most he can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 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 eight hours a day, for five days a week, or an equivalent work schedule." Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quotations omitted)).
It is the ALJ's job to determine a claimant's RFC, and not to simply agree with a physician's opinion. 20 C.F.R. § 404.1546(c). In determining RFC, the ALJ can consider a variety of factors including a treating physician's or examining physician's observations of limitations, the claimant's subjective allegations of pain, physical and mental abilities, as well as the limiting effects of all impairments even those not deemed severe. Id. § 404.1545(a). Age, education, past work experience, and transferability of skills are vocational factors to be considered. Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999). Physical abilities are determined by evaluation of exertional and nonexertional limitations. Exertional limitations include claimant's ability to walk, stand, lift, carry, push, pull, reach, and handle. 20 C.F.R. § 404.1569a(b).
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." Genier v. Astrue, 606 F.3d 46, 49 (2010). Once the ALJ has resolved a claimant's complaints of pain, he can then evaluate exertional and non-exertional limitations. Lewis v. Apfel, 62 F. Supp. 2d 648, 658 (N.D.N.Y. 1999).
The RFC can only be established when there is substantial evidence of each physical requirement listed in the regulations. Whittaker v. Comm'r of Soc. Sec., 307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004) (citation omitted). " In assessing RFC, the ALJ's findings must specify the functions a plaintiff is capable of performing; conclusory statements regarding plaintiff's capacities are not sufficient." Roat, 717 F. Supp. 2d at 267 (citation omitted). "RFC is then used to determine the particular types of work a claimant may be able to perform." Whittaker, 307 F. Supp. 2d at 440.
(b) Treating Physician Rule
Part and parcel to the RFC determination is the ALJ's review of the medical opinion evidence and the credibility of Plaintiff. With regard to the medical opinion evidence, the Court finds that the ALJ properly weighed the medical opinions at issue in making the RFC determination and provided "good reasons" for assigning treating Psychiatric Nurse Practitioner Coleby's opinion little weight. The ALJ also properly addressed the factors set forth in 20 C.F.R. § 404.1527 and 20 C.F.R. § 416.927 in assessing what weight to give her opinion.
The medical opinions of a claimant's treating physician are generally given more weight than those of other medical professionals. "If . . . a treating source's opinion . . . is well-supported by medically acceptable clinical and laboratory techniques and is not inconsistent with other substantial evidence . . . [it] will [be] give[n] controlling weight." 20 C.F.R. § 404.1527(c)(2). Medically acceptable techniques include consideration of a patient's report of complaints and the patient's history as essential diagnostic tools. Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003). Generally, the longer a treating physician has treated the claimant and the more times the claimant has been seen by the treating source, the more weight the Commissioner will give to the physician's medical opinions. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (citing 20 C.F.R. § 404.1527(c)(2)(i)).
An opinion from a treating source that the claimant is disabled cannot itself be determinative. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). However, a lack of specific clinical findings in the treating physician's report is not, by itself, a reason to justify an ALJ's failure to credit the physician's opinion. Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (citing Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998)).
An ALJ who refuses to give "controlling weight to the medical opinion of a treating physician must consider various factors to determine how much weight to give to the opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citation omitted). This analysis must be conducted to determine what weight to afford any medical opinion. 20 C.F.R. § 404.1527(c). This is necessary because the ALJ is required to evaluate every medical opinion received. Id.; see also Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010) (finding that the ALJ failed to satisfy the treating physician rule when he discounted a report because it was incomplete and unsigned). These factors include: (1) the length of the treatment relationship and frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the medical evidence in support of the opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6).
Generally, the opinion of the treating physician will not be afforded controlling weight when the treating physician issued opinions that were not consistent with those of other medical experts and the opinions are contradicted by other substantial evidence in the record. Halloran, 362 F.3d at 32; 20 C.F.R. § 404.1527(c)(2); Snell, 177 F.3d at 133 ("When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given."). Other findings, including the ultimate finding of whether the claimant is disabled, are reserved to the Commissioner. Snell, 177 F.3d at 133.
The Regulations require the Commissioner's notice of determination or decision to "give good reasons" for the weight given a treating source's opinion. 20 C.F.R. § 404.1527(c)(2). This is necessary to assist the court's review of the Commissioner's decision and it "let[s] claimants understand the disposition of their cases." Halloran, 362 F.3d at 33 (citing Snell, 177 F.3d at 134). Failure to provide "good reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand. Snell, 177 F.3d at 133; Halloran, 362 F.3d at 32-33. However, remand is unnecessary where application of the correct legal standard could lead to only one conclusion. Schaal, 134 F.3d at 504.
(c) Crediblity Assessments by the ALJ
"It is the function of the [Commissioner], not the reviewing courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citation omitted). In making a credibility determination, the hearing officer is required to take the claimant's reports of pain and other limitations into account. 20 C.F.R. § 404.1529(a); Genier, 606 F.3d at 49; SSR 96-7p, 1996 WL 374186, at *5 (S.S.A. 1996). The ALJ is required to consider all of the evidence of record in making his credibility assessment. Genier, 606 F.3d at 50 (citing 20 C.F.R. §§ 404.1529, 404.1545(a)(3)).
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First, the ALJ must consider "whether there is an underlying medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the claimant's pain or other symptoms." SSR 96-7p, 1996 WL 374186, at *2. This finding does not involve a determination as to the intensity, persistence, or functionally limiting effects of the claimant's pain or other symptoms. Id. If no impairment is found that could reasonably be expected to produce pain, the claimant's pain cannot be found to affect the claimant's ability to do basic work activities. Id. An individual's statements about his pain are not enough by themselves to establish the existence of a physical or mental impairment, or to establish that the individual is disabled. See Grewen v. Colvin, Civ. No. 1:11-829 (FJS), 2014 U.S. Dist. LEXIS 41260, at *10-11, 2014 WL 1289575, at *4 (N.D.N.Y. Mar. 27, 2014) (while a "claimant's subjective complaints are an important part of the RFC calculus . . . subjective symptomatology by itself cannot be the basis for a finding of disability . . ., [and] [a] claimant must present medical evidence or findings that the existence of an underlying condition could reasonably be expected to produce the symptoms alleged."); see also 42 U.S.C. §§ 423(d)(5)(A); 20 C.F.R. § 404.1529(b); SSR 96-7p.
Once an underlying physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms has been established, the second step of the analysis is for the ALJ to "consider the extent to which the claimant's symptoms can reasonably be accepted as consistent with other objective medical evidence and other evidence." Genier, 606 F.3d at 49 (internal quotations omitted) (citation omitted); see also Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (finding that claimant's subjective complaints of pain were insufficient to establish disability because they were unsupported by objective medical evidence tending to support a conclusion that he has a medically determinable impairment that could reasonably be expected to produce the alleged symptoms); see also SSR 96-7p, at *5 ("One strong indicator of the credibility of [an individual's statements is their] consistency, both internally and with other information in the case record."). This includes evaluation of the intensity, persistence, and limiting effects of the pain or symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities. Genier, 606 F.3d at 50.
The ALJ must consider all evidence of record, including statements the claimant or others make about his impairments, his restrictions, daily activities, efforts to work, or any other relevant statements the claimant makes to medical sources during the course of examination or treatment, or to the agency during interviews, on applications, in letters, and in testimony during administrative proceedings. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1512(b)(3)). A claimant's symptoms can sometimes suggest a greater level of severity than can be shown by the objective medical evidence alone. SSR 96-7p, at *5. When the objective evidence alone does not substantiate the intensity, persistence, or limiting effects of the claimant's symptoms, the ALJ must assess the credibility of the claimant's subjective complaints by considering the record in light of the following symptom-related factors: (1) claimant's daily activities; (2) location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to relieve pain or symptoms; (5) other treatment received to relieve pain or symptoms; (6) any measures taken by the claimant to relieve pain or symptoms; and (7) any other factors concerning claimant's functional limitations and restrictions due to pain or symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii); 416.929(c)(3)(i)-(vii).
"An [ALJ] may properly reject [subjective complaints] after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons 'with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.'" Lewis, 62 F. Supp. 2d at 651 (quoting Gallardo v. Apfel, Civ. No. 96-9435 (JSR), 1999 U.S. Dist. LEXIS 4085, at *16, 1999 WL 185253, at *5 (S.D.N.Y. Mar. 25, 1999) (citing Aponte, 728 F.2d at 591-92; Ferraris v Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). "A finding that a [claimant] is not credible must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams, 859 F.2d at 260-61 (citation omitted) (finding that failure to make credibility findings regarding claimant's critical testimony undermines the Secretary's argument that there is substantial evidence adequate to support his conclusion that claimant is not disabled). "Further, whatever findings the ALJ makes must be consistent with the medical and other evidence." Id. at 261 (citation omitted) ("[A]n ALJ must assess subjective evidence in light of objective medical facts and diagnoses.").
"Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive effect' so long as they are supported by substantial evidence." Genier, 606 F.3d at 49 (citing Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)). An ALJ's evaluation of a plaintiff's credibility is entitled to great deference if it is supported by substantial evidence. Murphy v. Barnhart, Civ. No. 00-9621 (JSR) (FM), 2003 U.S. Dist. LEXIS 6988, at *29-30, 2003 WL 470572, at *10 (S.D.N.Y. Jan. 21, 2003) (citing Bischof v. Apfel, 65 F. Supp. 2d 140, 147 (E.D.N.Y. 1999)); Bomeisl v. Apfel, Civ. No. 96-9718 (MBM), 1998 U.S. Dist. LEXIS 11595, at *19, 1998 WL 430547, at *6 (S.D.N.Y. July 30, 1998) ("Furthermore, the ALJ has discretion to evaluate a claimant's credibility . . . and such findings are entitled to deference because the ALJ had the opportunity to observe the claimant's testimony and demeanor at the hearing.")).
(d) Substantial Evidence Supports the ALJ's RFC Determination
(i) Plaintiff's Physical RFC
To make the physical portion of the RFC finding (i.e., that Plaintiff was exertionally limited to light work), the ALJ considered the objective medical evidence, including medical signs and laboratory findings. See T. at 29-30; see also 20 C.F.R. §§ 416.912(b)(1), 416.928 (b) - (c) (defining medical signs and laboratory findings). As set forth in detail in Part V.B(3)(d) above, the objective medical and diagnostic test results regarding Plaintiff's lumbosacral spine and cervical spine showed no acute findings, and essentially only mild to moderate degenerative findings. (T. at 580-82, 596-99, 621, and 715.) Even after Plaintiff's lumbar spine surgery, the diagnostic tests showed no acute findings and no signs of any obvious nerve entrapment or spinal stenosis at the area of surgical intervention. (T. at 735, 738.) On March 24, 2011, an MRI of Plaintiff's cervical spine showed a small right paracentral disc herniation at the C5-C6 level that was also interpreted as being unchanged from the previous cervical spine MRI done on April 9, 2008. (T. at 830-31.)
Finally, the ALJ also noted the absence in the record of any statement or opinion from Plaintiff's treating physicians regarding limitations on her ability to work or perform physical activities. (T. at 34.) In making a decision, an ALJ is entitled to rely not only on what the record says, but also what it does not say. See Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Petell v. Comm'r of Soc. Sec., No. 12-CV-1596 (LEK/CFH), 2014 U.S. Dist. LEXIS 37955, at *27, 2014 WL 1123477, at *9 (N.D.N.Y. Feb. 28, 2014).
Based upon the records outlined above, the Court finds that the ALJ's physical RFC finding was clearly supported by substantial evidence.
(ii) Plaintiff's Mental RFC
The mental portion of the ALJ's RFC finding was supported by the opinion of Dr. E. Kamin, a state agency review psychologist, and the treatment records of Nurse Practitioner Coleby and Dr. Menon, a psychiatrist. On March 16, 2007, Dr. Kamin reviewed Plaintiff's psychiatric records and provided an opinion as to her mental RFC. (T. at 483-86.) According to Dr. Kamin, Plaintiff was not significantly limited or only moderately limited in the areas of understanding and memory, sustained concentration and persistence, social interaction, and adaption. (T. at 483-84.) She had demonstrated that she was able to function on her medications, and could do entry-level work in an environment where she would have limited interaction with others. (T. at 485.) Dr. Kamin, as a state agency review psychologist, was deemed a qualified expert in the field of social security disability, and his opinion may serve as substantial evidence in support of the ALJ's RFC finding. See Diaz, 59 F.3d at 313 n.5; Santos-Sanchez v. Astrue, 723 F. Supp. 2d 630, 638 (S.D.N.Y. 2010) (ALJ may rely on opinions of state agency medical consultants, who are experts in Social Security disability evaluations, to determine disability); 20 C.F.R. § 416.912(b)(6), 416.913(c), 416.927(e); SSR 96-6p, 1996 WL 374180, at *2.
The ALJ's mental RFC finding was also supported by the treatment records of Nurse Practitioner Coleby, who as noted more fully above in Part V.B(3)(b), assessed a GAF score of 61 after an initial psychiatric evaluation of Plaintiff conducted on October 31, 2006. (T. at 45862.) After another psychiatric examination, conducted on December 9, 2010, Nurse Practitioner Coleby and Dr. Menon assessed a GAF score of 90, indicating that she had minimal symptoms and good functioning in all areas. (T. at 803-05.) See also DSM-IV at 34. The ALJ's RFC which limited Plaintiff to only occasional interaction with others, therefore, imposed restrictions greater than those suggested by her treatment records.
(iii) Opinion Of Nurse Practitioner Coleby
In making his RFC finding, the ALJ properly evaluated the opinion of Nurse Practitioner Coleby. (T. at 32-33.) Under the Commissioner's regulations, an opinion from a treating "acceptable medical source" can be given controlling weight. 20 C.F.R. §§ 416.913(a), 416.927(d)(2); SSR 96-2p, 1996 WL 374188, at *1, *3. Plaintiff's area of residence in the Mohawk Valley is not a rural area, and thus, as a nurse practitioner, Coleby is not an "acceptable medical source" but instead is an "other medical source;" therefore her opinion is not entitled to controlling weight. See 20 C.F.R. §§ 416.913(a) & (d). The Commissioner "may" use evidence from sources such as physician assistants to determine the severity of a claimant's impairments. See id. § 416.913(d). Under SSR 06-03p, an ALJ "generally should explain the weight given to opinions from" other medical sources who have a treating relationship with a claimant. SSR 06-03p, 2006 WL 2329939, at *6. Courts have held, however, that an ALJ is not required to weigh the assessment of an "other medical source" at all. See Bulavinetz v. Astrue, 663 F. Supp. 2d 208, 212 (W.D.N.Y. 2009); Esteves v. Barnhart, 492 F. Supp. 2d 275, 281-82 (W.D.N.Y. 2007).
In fact, the ALJ considered and correctly gave "little weight" to an April 7, 2011, form completed by Nurse Practitioner Coleby. (T. at 815-17.) In that report, Coleby stated that Plaintiff was moderately limited in her ability to understand, remember, and carry out simple instructions; to make judgments on simple work related decisions; and to interact appropriately with supervisors, coworkers, and the public. (T. at 815-16.) According to Coleby, Plaintiff was markedly limited in her ability to understand, remember, and carry out complex instructions; to make judgments on complex work related decisions; and to respond appropriately to usual work situations and to changes in a routine work setting. Id. Nurse Practitioner Coleby gave a diagnosis of bipolar disorder with psychotic features. (T. at 816.) Despite her medications, Plaintiff's mood was labile at best, and her speech continued to be rapid and pressured at times. Id. When stressed, she experienced aural and visual hallucinations. Id. Nurse Practitioner Coleby stated that these symptoms persisted even when Plaintiff abstained from drug and alcohol abuse. Id. According to Coleby, these mental limitations had existed since 2005. Id.
However, the ALJ correctly gave little weight to this opinion because it was unsupported by treatment notes, reports, or clinical and diagnostic findings that would establish the level of disability indicated by Nurse Practitioner Coleby. (T. at 32-33.) See 20 C.F.R. § 416.927(c)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion."). For example, the diagnosis given by Coleby (bipolar disorder with psychotic features) appears nowhere in her treatment notes or in Dr. Menon's notes. Instead, the diagnoses given during Plaintiff's treatment were bipolar disorder, most recent episode mixed; or bipolar disorder, most recent episode mixed, moderate. (T. at 461, 804.) Nor is Nurse Practitioner Coleby's statement that Plaintiff's mental limitations have persisted despite her continued compliance with medication supported by the record; instead, both Nurse Practitioner Coleby and Dr. Menon noted on December 9, 2010, that Plaintiff continued to have difficulty complying with treatment. (T. at 803-05.) Furthermore, references in Plaintiff's treatment records to hallucinations are historical and relate to her active cocaine abuse. (T. at 32, 401, 460.) Treatment notes from the time period relevant to this case make no mention of hallucinations or psychotic behaviors. (T. at 32-33, 493-567, 783-814.) Since October 2010, only one mental status examination was anything other than completely normal. (T. at 33, 783-814.) As noted, Dr. Menon and Nurse Practitioner Coleby also assessed a GAF score of 90 on December 9, 2010, indicating only minimal or even absent symptoms and good mental functioning in all areas. (T. at 805.)
The ALJ also correctly found that Coleby's opinion was inconsistent with the medical evidence of record. (T. at 32-33.) See also 20 C.F.R. § 416.927(c)(4) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."). As the ALJ noted, Nurse Practitioner Coleby's treatment notes did not contain findings that would establish a level of total disability. (T. at 32-33, 783-814.) Furthermore, the ALJ also found that Coleby's assessment was inconsistent with the record as a whole, including the opinion of Dr. Kamin (T. at 483-86), as described above. Nurse Practitioner Coleby's opinion was entitled to lesser weight for this additional reason. See 20 C.F.R. § 416.927(d)(4).
For all of these reasons, the ALJ therefore properly gave little weight to the statements made by Nurse Practitioner Coleby in the April 7, 2011, form.
(iv) Plaintiff's Credibility
As part of his RFC determination, the ALJ also evaluated Plaintiff's credibility. Under the Act, symptomatology cannot, by itself, be the basis for a finding of disability; there must be medical signs or other findings which show the existence of a medical condition that reasonably could be expected to produce the symptomatology alleged and, when considered with other evidence, demonstrates that a plaintiff is disabled. 42 U.S.C. § 423(d)(5)(A); Hammond v. Colvin, No. 12-CV-965, 2013 U.S. Dist. LEXIS 121911, at *19-20, 2013 WL 4542701, at *7 (N.D.N.Y. July 10, 2013); 20 C.F.R. § 416.929(b). If the symptoms suggest a greater restriction of function than can be demonstrated by objective evidence alone (medical signs and laboratory findings), the Commissioner considers other evidence, such as a plaintiff's statements, daily activities, duration and frequency of pain, medication, and treatment. 20 C.F.R. § 416.929(c)(3); SSR 96-7p, 1996 WL 374186, at *3. Where an ALJ's credibility finding is supported by substantial evidence in the record, it is entitled to deference on appeal. See Calabrese v. Astrue, 358 F. App'x 274, 277-78 (2d Cir. 2009).
In this case, Plaintiff's statements about the intensity and persistence of her symptoms were not supported by the medical evidence of record, as the ALJ explained. (T. at 30-32.) See also 20 C.F.R. § 416.929(c)(2). The ALJ was therefore "entitled to find [plaintiff] not credible." Rutkowski v. Astrue, 368 F. App'x 226, 230 (2d Cir. 2010). To do so, the ALJ correctly considered other factors, including Plaintiff's activities of daily living, her treatment history, her inconsistent statements and testimony, and evidence of drug-seeking behavior. (T. at 30-32.)
First, the ALJ considered Plaintiff's ability to engage in a wide range of activities of daily living. (T. at 30.) See also 20 C.F.R. § 416.929(c)(3)(i). Plaintiff testified that she was able to dress, bathe, and groom herself; that she could prepare meals, do laundry, shop, drive, do household chores, clean the house, go to medical appointments, go to meetings, walk her dog, read for pleasure, and watch movies. (T. at 72, 77, 82-83, 87, 89, 281-82.) These activities belie Plaintiff's claims of totally disabling symptoms, and the ALJ properly considered them when making his credibility determination. See Taylor v. Barnhart, 83 F. App'x 347, 350 (2d Cir. 2003); Pidkaminy v. Astrue, 919 F. Supp. 2d 237, 250-51 (N.D.N.Y. 2013); 20 C.F.R. § 416.929(c)(3)(i).
Second, the ALJ considered Plaintiff's history of "extremely poor adherence to treatment recommendations." (T. at 31.) Nurse Practitioner Coleby and Dr. Menon noted during their treatment of her that she struggled with following treatment recommendations. (T. at 805.) Plaintiff also was resistant to treatment that might cause her to gain weight. (T. at 788 (Plaintiff would rather be "crazy than fat"), 803 (Plaintiff very resistant to any medication that would cause weight gain).) A claimant's treatment history is also a factor to be considered in the credibility analysis. See Campbell v. Astrue, 465 F. App'x 4, 7 (2d Cir. 2012); 20 C.F.R. § 416.929(c)(3)(v); see also 20 C.F.R. § 416.930(b) (failure to follow prescribed treatment "without a good reason" precludes a finding of disability).
Third, the ALJ noted inconsistent statements and drug-seeking behavior. For example, Plaintiff testified that she had used a transcutaneous electrical nerve stimulation ("TENS") unit for her back pain (T. at 81), but previously had told her pain management physician, Dr. Nathaniel S. Gould, that she had never used a TENS unit when she was attempting to obtain a prescription for stronger narcotic pain relievers. (T. at 843.) Inconsistent statements also undermine a claimant's credibility. See Campbell, 465 F. App'x at 7; Pidkaminy, 919 F. Supp. 2d at 251 (holding that ALJ properly considered plaintiff's inconsistent statements and instances of plaintiff being "untruthful in the past" in determining credibility); Walker v. Colvin, Civ. No. 5:12-CV-483, 2013 U.S. Dist. LEXIS 139747, at *26 n.17, 2013 WL 5434065, at *10 n.17 (N.D.N.Y. June 19, 2013). As the ALJ also observed, the record contained evidence that Plaintiff was engaging in drug-seeking behavior. (T. at 31.) Specifically, Dr. Gould twice noted that previous doctors considered her to be exhibiting drug-seeking behavior, and had her tested for drug use. (T. at 834-37 (drug testing positive for Tramadol, which Dr. Gould had not prescribed), 838 (Dr. Khan felt "that she was struck [sic] seeking"), 843 ("Previous doctors have felt that she was drug-seeking.").) Evidence of drug-seeking behavior is a valid factor to consider in the credibility analysis. See Pidkaminy, 919 F. Supp. 2d at 250; Metz v. Astrue, No. 1:06-CV-1509, 2010 WL 2243343, at *14 (N.D.N.Y. Apr. 21, 2010)
The ALJ therefore correctly found that Plaintiff's subjective complaints were not entirely credible. An ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment in light of the medical findings and other evidence. See Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999). Because the ALJ heard Plaintiff's testimony and observed her demeanor, the ALJ's credibility determination concerning Plaintiff's pain symptoms is entitled to deference on appeal. See Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) ("It is the function of the [Commissioner], not the reviewing courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." (internal brackets omitted)); Metz, 2010 WL 2243343, at *15. For these reasons, the Court finds the ALJ's credibility determination was proper.
(5) Substantial Evidence Supports the ALJ's Step Five Finding
After determining Plaintiff's RFC, the ALJ found at step four of the sequential analysis that she had no past relevant work (T. at 34), and, therefore, proceeded to step five, where he found that Plaintiff was capable of performing jobs existing in significant numbers in the national economy. (T. at 34-35.) To make this finding, the ALJ considered Plaintiff's age on the application date, thirty-nine years, which made her a younger individual aged eighteen to forty-four under the Commissioner's regulations. (T. at 34.) See also 20 C.F.R. § 416.963(b). The ALJ also considered her high school education and ability to communicate in English; her lack of work experience; and her RFC. Id.; see also 20 C.F.R. §§ 416.920(f), 416.968. These factors corresponded to Rule 202.20 of the Medical-Vocational Guidelines at 20 C.F.R. Part 404, Subpart P, Appendix 2. The ALJ determined that under Medical-Vocational Rule 204.00, Plaintiff would be found not disabled based upon her exertional limitations. (T. at 34-35.) See also 20 C.F.R. Part 404, Subpart P, App. 2, § 204.00.
As the ALJ further found, however, the full range of what Plaintiff could do was compromised by her nonexertional limitations. (T. at 34-35.) The ALJ therefore considered the testimony of David A. Festa, the vocational expert. See 20 C.F.R. § 416.966(e) (ALJ may rely on vocational expert at step five). At the May 12, 2011, administrative hearing, the ALJ asked Mr. Festa to consider a hypothetical person with the same age, education, work experience, as Plaintiff. (T. at 59.) The hypothetical individual would be able to perform light work as defined in the regulations, but would be able to interact only occasionally with coworkers or the public. (T. at 60.) Mr. Festa testified that such an individual would be able to perform certain unskilled jobs, of which he identified three: checker I (DOT Code No. 222.687-010), consisting of 69,980 jobs nationally, 2,540 job in the state of New York, and 190 jobs in the Mohawk Valley region; racker (DOT Code No. 524.687-018), consisting of 433,370 jobs nationally, 16,590 jobs in New York State, and 530 jobs regionally; and laundry worker, domestic (DOT Code No. 302.685010), consisting of 887,980 jobs nationally, 47,940 jobs in New York State, and 1,830 jobs regionally. (T. at 60-62.) The ALJ found that these occupations constituted a significant number of jobs in the national economy. (T. at 35.) See also 20 C.F.R. § 416.920(g). An ALJ may rely on a vocational expert to determine whether there is work which exists in significant numbers in the national economy that a claimant could perform given his vocational factors and RFC. See Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); 20 C.F.R. § 416.966(e). Thus, the Court finds that the ALJ's finding at this step was supported by substantial evidence. See Dumas, 712 F.2d at 1554.
WHEREFORE, it is hereby
RECOMMENDED, that the determination of the Commissioner be affirmed and the Complaint (Dkt. No. 1) be dismissed; and it is further
ORDERED that the Clerk provide Plaintiff with copies of Feliciano v. Barnhart, Civ. No. 04-9554 (KMW)(AJP), 2005 U.S. Dist. LEXIS 14578, 2005 WL 1693835 (S.D.N.Y. July 21, 2005); Reyes v. Barnhart, Civ. No. 01-4059 (LTS) (JCF), 2004 U.S. Dist. LEXIS 3689, 2004 WL 439495 (S.D.N.Y. Mar. 9, 2004); Worthy v. Barnhart, Civ. No. 01-7907 (JSH), 2002 U.S. Dist. LEXIS 24550, 2002 WL 31873463 (S.D.N.Y. Dec. 23, 2002); Camacho v. Apfel, Civ. No. 97-6151 (JG), 1998 U.S. Dist. LEXIS 23866, 1998 WL 813409 (E.D.N.Y. July 22, 1998); Grewen v. Colvin, Civ. No. 1:11-829 (FJS), 2014 U.S. Dist. LEXIS 41260, 2014 WL 1289575 (N.D.N.Y. Mar. 27, 2014); Murphy v. Barnhart, Civ. No. 00-9621 (JSR) (FM), 2003 U.S. Dist. LEXIS 6988, 2003 WL 470572 (S.D.N.Y. Jan. 21, 2003); Bomeisl v. Apfel, Civ. No. 96-9718 (MBM), 1998 U.S. Dist. LEXIS 11595, 1998 WL 430547 (S.D.N.Y. July 30, 1998); Petell v. Comm'r of Soc. Sec, No. 12-CV-1596 (LEK/CFH), 2014 U.S. Dist. LEXIS 37955, 2014 WL 1123477 (N.D.N.Y. Feb. 28, 2014); Hammond v. Colvin, No. 12-CV-965, 2013 U.S. Dist. LEXIS 121911, 2013 WL 4542701 (N.D.N.Y. July 10, 2013); Walker v. Colvin, Civ. No. 5:12-CV-483, 2013 U.S. Dist. LEXIS 139747, 2013 WL 5434065 (N.D.N.Y. June 19, 2013); and Metz v. Astrue, No. 1:06-CV-1509, 2010 WL 2243343 (N.D.N.Y. Apr. 21, 2010).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: September 26, 2014
Syracuse, New York
/s/_________
Tnérèse Wiley Dancks
United States Magistrate Judge