Williams v. Colvin, No. 6:2015cv06136 - Document 21 (W.D.N.Y. 2016)
Court Description: -CLERK TO FOLLOW UP- ORDER granting 10 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 9/27/2016. (WGC)
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Williams v. Colvin Doc. 21 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK PANDORA DENESE WILLIAMS, Plaintiff, DECISION & ORDER v. 15-CV-6136 CAROLYN W. COLVIN, Defendant. Preliminary Statement Plaintiff Pandora Williams ("plaintiff") brings this action pursuant to Title XVI of the Social Security Act seeking review of the ("the final decision of Commissioner") security income. are the denying Commissioner of her application See Docket # 1. parties' pleadings. the competing Social for Security supplemental Presently before the Court motions for judgment on the See Docket ## 10, 13. Background and Procedural History On June 6, security income, 2007. 2011, plaintiff applied for supplemental alleging a disability onset date of August 31, Administrative Record ("AR") at 237. On August 25, 2011, the Social Security Administration denied her application. at 105-109. AR Plaintiff filed a timely request for a hearing by an administrative law judge ("ALJ"). AR at 113. On June 26, Dockets.Justia.com 2013, a hearing was held before ALJ Susan Wakshul. AR at 45-90. On July 3, 2013, the ALJ issued a decision finding plaintiff not disabled the under application for Social benefits. Security AR at Act and 24-39. denying Plaintiff her filed a request for review of the ALJ's decision by the Appeals Counsel and, on January request, 13, making Commissioner. the 2015, ALJ' s AR at 1-4. the Appeals decision the Council her decision of final denied the This federal lawsuit followed. Relevant Evidence and Medical History In plaintiff's disability report, she alleged stopped working due to major depression, anxiety, blood pressure, arthritis, disorder. at AR conditions became period the in July 3, C.F.R. this 2013, §§ the 416.335, period 242. While disabling instant begins on June 6, carpal suit 2011, August for syndrome, plaintiff 31, 2007, addresses that the the ALJ 416.501. for issued her decision. concerns her relevant security income on See 20 The Court includes evidence outside context. Additionally, plaintiff's motion for judgment on the pleadings solely and bipolar alleges supplemental she insomnia, high the.date of her application, and date merely on tunnel that with plaintiff's mental impairments, the ALJ's because (Docket # 10) findings as to the Court will not be addressing plaintiff's history of physical impairments. 2 Treatment at Culver Medical Plaintiff Group: reporting psychiatric impairments on March 15, 2010. began AR at 382. During a follow-up visit at the Culver Medical Group within the University of Rochester Medical feeling overwhelmed, depressed, to Center, concentrating have difficulty Elizabeth Cherella, M.D., plaintiff and anxious. and Id. She claimed sleeping. prescribed reported Id. an plaintiff Dr. anti- depressant and she was referred to mental health counseling for her depression and anxiety. plaintiff returned, at 379. On March 29, AR at 382-83. 2010, complaining of depression and anxiety. Though she claimed to feel continued difficulty sleeping and felt better, she overwhelmed. AR reported Id. Dr. Cherella increased plaintiff's anti-depressant prescription and advised her Bingemann to noted continue on with November counseling. 8 and AR November at 380. 22, Dr. 2010 that plaintiff appeared to be "doing quite well" with regard to her mood. AR at 370, 372. On May Bingemann, 10, M.D. 2010, AR at plaintiff 377. and Dr. appeared hypomanic. at plaintiff appeared depression treatment. and Dr. to be examined Dr. Todd Bingemann observed that On 377-78. improving: she Cherella advised her AR at 375-76. by She reported that her depression and anxiety had improved, AR was On June 6, 3 August denied 27, 2010, experiencing tu continue 2011, she however, with her plaintiff reported to Dr. Bingemann that she was "doing worse" and "crying often." at AR treatment, 367. and Dr. She Bingemann attending weekly therapy slightly on better reported that advised sessions. June 10, had plaintiff AR 2011, she at and appeared Bingemann AR again at 364-65. 2011, plaintiff reported difficulty sleeping and that she was hearing voices at night. suicidal ideations, and Dr. AR at 362. AR at 363. Treatment at Unity Health System: mental health treatment She also reported Cherella increased the dosage of her anti-depressant prescription. Clinic, continue She advised plaintiff to continue with her therapy. On July 6, all to 368. Dr. stopped at St. Plaintiff later obtained Mary's Mental Health Outpatient part of Unity Health System. AR at 458-471. Plaintiff attended mental health therapy with Carolyn Gavett beginning on May 18, bipolar 2011. disorder Functioning that she June 6, at and ("GAF") cried examination, moderate, AR Gavett assigned score easily Gavett 458. and noted of her 52. 1 felt that diagnosed plaintiff a Assessment Id. Global Plaintiff depressed. plaintiff met recurrent major depressive disorder. 2011, plaintiff's mood 1 had improved AR at the AR and with of told Gavett 460. Upon criteria for at 470. By she reported A GAF score of 51-60 suggests moderate symptoms or moderate difficulty in functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, IV 34 (1994). 4 that "things ha[d) been going well . 12, meeting with Gavett. appeared depressed worsened. early AR at 443. and at AR increased to 53. told On July 5, Gavett During 429. that this October tearful, 2011, her time, plaintiff depression her GAF had scored AR at 458-425. October 2011, Gavett noted doing better and "presented at baseline." by On June however, plaintiff appeared tearful and depressed when 2011, In AR at 448. " 17, plaintiff 2011, again that plaintiff However, AR at 640. appeared was depressed and and admitted that she had "not been using many coping skills." AR at By 633. "euthymic but irritated," GAF score of 56. Gavett February 27, plaintiff 2012, was and Gavett assigned her an increased AR at 616. completed a report psychiatric on plaintiff's treatment on October 3, 2011, by Dr. Muhammad Dawood, M. D. Gavett indicated that she began treating plaintiff on May 18, 2011 with weekly which was reviewed and co-signed AR at psychotherapy In the report, 514-519. sessions and opined that plaintiff's condition could be expected to last twelve months or longer. AR disorder not impaired in concentration, According to at She 514. diagnosed plaintiff with bipolar otherwise specified and noted that plaintiff mood and thought and speech, Gavett, memory, affect, plaintiff 5 motor and insight. was moderately was activity, AR at 514-515. restricted in completing sleeping, that household cooking, plaintiff chores, taking public Id. Gavett opined social functioning, and showering or bathing. had marked restrictions transportation, in including in her ability to receive and carry out instructions, communicate, and Gavett opined also maintaining example, took receive constructive that plaintiff concentration, Gavett "longer noted to criticism. had persistence, that complete plaintiff tasks marked or on several decompensated; occasions, she was or to and depressed. Id. plaintiff could not Due plaintiff tearful, to her function Id. misplaced due racing at impairment pace. Id. thoughts," and lost focus in therapy sessions. that, AR lost 516. in For items, ruminating She stated appeared deteriorated or distressed, condition, irritable, Gavett opined and that independently outside of her home AR at beyond attending medical appointments. 517. Because she became "easily dysregulated in response to pressure or perceived criticism" and experienced "racing, believed that instructions, worker, plaintiff respond or handle was tangential thoughts," Gavett unable appropriately to to carry a in this [a] setting." Dr. Dawood agreed, AR at schedule and or co- Gavett also [her] inability to function effectively Accordingly, 518. remember Id. customary work pressures. consistent work and supervisor noted that plaintiff's symptoms resulted "in maintain out Gavett noted, and that plaintiff would be unable to perform her 6 past relevant work for eight hours per day, five days per week. Id. She began attending medication management appointments with Dr. Muhammad 2011. AR Dawood, at M.D., 625-632. at At Unity her Healthy first on December appointment, Dr. 20, Dawood noted that plaintiff had been previously diagnosed with bipolar disorder and complained back cooperative, Dawood's depression, she Dawood noted alert, as AR aware, treatment plaintiff x3" 625. and Dr. "doing better" at seasonal of pain. notes "calm, [and] that she appeared oriented x3." from April cooperative, 2, alert, plaintiff stated that 2012 she "calm, AR at 626. again aware, [and] was Dr. described oriented and stated that her medication was decreasing her auditory hallucinations and improving her focus. 2, Although 2012, however, Dr. AR at 609. By November Dawood noted that plaintiff was "feeling sad and not doing well" and displayed symptoms of depression and isolation. AR at He 583. also suffered from a "chronic condition." Plaintiff transitioned Tiffany Mancuso, a Health, on May 7, 2012. a to indicated AR at 604. plaintiff Id. mental Licensed Mental that health Health therapy Counselor at with Unity Mancuso assigned plaintiff GAF score of 60, 2 although she noted that plaintiff appeared 2 A GAF score of 61-70 suggests mild symptoms or some difficulty American in social, occupational, or school functioning. 7 "hypomanic per baseline." 2012, at AR at 604-605. plaintiff appeared anxious, 600. tearful, 591. and frustrated. While plaintiff appeared stable by August still acted distressed and tearful. August, At the end of May AR at 592. Mancuso assigned plaintiff a Although plaintiff appeared anxious, complained 2012, she By the end of GAF score of of AR 62. increased AR at stress and Mancuso increased plaintiff's GAF score to 64 in December 2012. By February 2013, plaintiff appeared "stable at baseline," despite having "rapid, pressured AR at 575-576. speech and racing thoughts." AR at 569. assigned plaintiff a GAF score of 66. Accordingly, Mancuso Id. On April 16, 2012, Mancuso completed a medical statement on behalf of plaintiff Services. AR at Mancuso through her use the Monroe County Department of Human 544-547. depression, anxiety, 544. for main complaints chronic pain, and dysregulated mood. stated of Plaintiff's that plaintiff's "coping skills symptoms had were AR at improved to prevent decompensation," but noted that her anxiety and mood dysregulation persisted. at 545. frequently AR Mancuso opined that plaintiff's symptoms resulted in lost employment, frequent difficulty completing educational or training programs, and frequent interference with her daily activities. Occasionally, Id. Psychiatric Association, Diagnostic Mental Disorders, IV 34 (1994). 8 and Mancuso Statistical opined, Manual of plaintiff's emergency symptoms room, appropriately required hospitalization or visits interfered with with others, status these examination oriented x3, [that episodes, her] speech [and that her] employability [was] mood with noted that [was] that her was the interact ability plaintiff's plaintiff to Id. mental "alert .and anxious and elevated pressured with insight and judgment determination, to and caused decompensation. Mancuso indicated [that her] ability interfered abstain from drugs or alcohol, Despite her to racing [were] thoughts fair." Mancuso ppined Id. that In her plaintiff was very limited 3 in her capacity to perform simple and complex tasks independently and in concentration for rote moderately limited 4 her capacity tasks. to AR maintain at in her capacity to attention and 546. Plaintiff was understand, and follow, remember simple instructions and directions; a routine and maintain a schedule; regularly attend to maintain basic standards of hygiene and grooming, and perform low stress and simple tasks. Id. symptoms Based on these and limitations, Mancuso opined that plaintiff suffered from "chronic and persistent symptoms of mood dysregulation functioning." and AR at 547. anxiety that impair[ed] [her] daily Her chronic mental impairments, pain, 3 Meaning that plaintiff was unable to function twenty-five percent or more of the time. AR at 546. 4 Meaning that plaintiff was unable to function ten to twentyf i ve percent of the time. Id. 9 and physical impairments, Mancuso determined, rendered permanently disabled with no expectation of improvement. her Id. On February 20, 2013, Mancuso and Dr. Dawood wrote a letter to plaintiff's counsel verifying plaintiff's ongoing and active outpatient mental health treatment that started in January 2010. AR at 567. symptoms mood, They described plaintiff's bipolar-disorder-related as including racing thoughts, anxiety, and social of result [ed] work schedule Accordingly, in and and concentration, emotional poor sleep, deregulation. "with episodes [an] inability function Mancuso Id. Functional 2013. Capacity and to maintain effectively Dr. Dawood in setting." that concluded consistent work a [a] plaintiff Id. Dawood jointly prepared a Mental Residual Assessment ·AR at 647-648. limitations They of mania and depression "[did] not demonstrate ability to work at this time." Mancuso and Dr. labile symptoms significantly impacted her daily functioning that memory rapid and pressured speech, periods concluded that these and poor for plaintiff on February 25, They opined that plaintiff had severe 5 in her ability to understand or remember detailed instructions; maintain attention and concentration for at least two straight hours sustain an ordinary on at least routine four without 5 occasions special in a workday; supervision; work A severe limitation "indicates that the activity is totally precluded on a sustained basis and would result in failing even after short duration." AR at 647. 10 near or with others without becoming distracted; with others without demonstrated distracting severe 6 moderately understand and them. remember short AR at limitations or simple and get along 647. in Plaintiff her ability instructions; appropriately with the public or customers; to interact accept instructions and respond appropriately to criticism from supervisors; respond appropriately to unexpected changes in work setting and routine; and set goals or to the According moderate 7 make plans on assessment, limitations her own. plaintiff in her ability to AR at 647-648. demonstrated remember only locations and procedures; make simple work-related decisions; ask questions or ask for help neatness, from supervisors; opined appropriate and travel transportation. that requirements, AR at 647-648. workplace-related production Even repetitive an demands, tasks, entry-level they job concluded, 6 in work in unfamiliar settings and use Mancuso and Dr. and demanding with would Dawood attendance stressors would increase the severity of plaintiff's 648. behavior, and cleanliness; ·respond to expected changes setting and routine; public maintain customers impairments. simple, routine, increase AR at and plaintiff's· Moderately severe limitations suggests that "the activity is and not totally precluded but is substantially impaired can only be engaged in occasionally or seldom during an eight hour day." AR at 647. 7 Moderate limitations suggest that "the activity is somewhat impaired . . but can be engaged in occasionally to frequently . but not constantly or continuously." Id. 11 psychological symptoms. Id. Psychiatric Consultative Examination Reports: examined by Dr. at 344-349. for Christine Ransom, In her Determination Ph.D., "mood of crying swings spells, Employability, frequently and of 2011. AR Dr. experienced job reiterated noting that she suffered anxiety AR at 344. Ransom Dr. hyperactivity," feelings excessive energy. on April 19, Psychological and Intellectual Assessment plaintiff's mental health complaints, from Plaintiff was difficulty and sleeping, irritability, and Ransom found that plaintiff loss or educational or training programs as a to failed complete result of her symptoms, and that her behavior frequently interfered with her activities of daily living. plaintiff's AR at psychiatric 345. symptoms Dr. Ransom also occasionally opined that interfered with her ability to interact appropriately with others. On examination, plaintiff appeared abnormal and moderately labile in mood and affect, impaired in her attention, memory skills. Id. as well as abnormal and moderately concentration, AR at 345-346. and recent and remote Her thought process, cognitive AR at function, and insight and judgment, however, were normal. 345-346. Dr. Ransom diagnosed plaintiff with moderate bipolar disorder and mild to moderate anxiety disorder. also assigned employability plaintiff a determination, GAF Dr. 12 score Ransom of 65. opined AR at 347. Id. that In She her plaintiff was moderately limited 8 in her ability to follow, understand, and remember tasks simple instructions independently; rote tasks; Plaintiff and or maintain complete maintained directions; attention and low stress and complex concentration simple functioning 9 normal perform in tasks. her for Id. ability to regularly attend to a routine and maintain a schedule; maintain basic standards of transportation. concluded hygiene Id. that and Despite plaintiff grooming; these would be and use public Dr. Ransom observations, unable to participate in activities other than her psychiatric treatment for six months due to the severity of her symptoms, appetite disturbances, excessive energy, irritability, Dr. Ransom, Psy. D. , 22, the and excessive AR at 348. consultative examination conducted by consultative examiner Dr. Christina Caldwell, completed a psychiatric evaluation of plaintiff on July AR 2011. sleeping, social to sleep and concentration difficulties, difficulty organizing activity, and obsessive goal oriented activity. In addition which included: at increased withdrawal, apprehension, Plaintiff 472-475. appetite, loss of dysphoric reported mood, interests, and weekly panic attacks 8 that difficulty crying fatigue, spells, excessive induced dizziness, Meaning that plaintiff was unable to function fifty percent of the time. AR at 347. 9 Meaning that plaintiff displayed no indication of a limitation. Id. 13 breathing difficulties, examination, and sweating. plaintiff's mood was pressured and stammering. AR at dysthymic AR at 473. On 472-73. and her voice was She appeared cooperative and had adequate presentation, and her judgment and insight were fair. AR at 473-474. "follow and perform simple Dr. understand tasks Caldwell found that plaintiff could simple directions independently, and maintain instructions, attention and concentration, maintain a regular schedule, learn new tasks, and perform complex tasks independently." AR at 474. Dr. in Caldwell, plaintiff was limited her According to ability to make appropriate decisions and was unable to relate adequately with others or deal with diagnosed psychotic stress appropriately. plaintiff features, agoraphobia. AR with major depressive anxiety disorder, at She 475. Dr. Id. disorder and panic concluded Caldwell with disorder with that plaintiff's prognosis was fair and that she should continue treatment. On completed Residual 100, 482. August a 5, 2011, Psychiatric Functional Harding, T. Review Medical Technique Capacity Assessment of form Id. Consultant, and plaintiff. a Mental. AR at On the Psychiatric Review Technique form, Dr. Harding confirmed that plaintiff suffered from major depressive disorder with psychotic features, with agoraphobia. plaintiff AR at anxiety 485, disorder, 487. demonstrated moderate 14 Dr. limitations and panic disorder Harding opined that in her . ability to maintain pace. social functioning, AR at 492. concentration, persistence, or Plaintiff also demonstrated mild limitations in completing activities of daily living, but never had repeated episodes Mental of deterioration of Residual Functional extended duration. Capacity Id. In the Dr. Harding Assessment, noted that plaintiff appeared moderately limited in her ability to work others workday normal with and symptoms; maintain instructions and without workweek a becoming distracted; without interruptions consistent respond to pace without criticism from complete from resting; a her accept supervisors; get along with coworkers or others without distracting them; and set independent, areas, Dr. limited. realistic Harding AR at goals. found 100-101. AR at In all 100-101. that plaintiff was Accordingly, Dr. not other significantly Harding concluded that plaintiff had "the capacity to perform simple work." AR at 102. Hearing Testimony Testimony of Plaintiff: On June 26, 2013, appeared before ALJ Susan Wakshul with counsel. Plaintiff's counsel spoke first, the residual functional capacity AR at 49. 15 AR at 45-90. arguing that plaintiff lacked ("RFC") to perform substantial gainful activity and that her condition met affective disorders. plaintiff listing 12. 04 He asserted that, for because of plaintiff's depression, concentration, social she persistence functioning." had and pace, as Plaintiff Id. difficulties "marked well then as maintaining testified, that she had two daughters, but lived by herself. in AR stating at 52-53. She did not have a driver's license and used Medicab to attend her doctor's appointments. at AR Plaintiff stated that 53-54. she completed eleventh grade in high school, not obtain a GED. period of pizza at employment a gas at AR Plaintiff testified that her last 54. was in 2006, station. but that she did at AR when she prepared and sold 55. She explained that she previously volunteered by cooking for the homeless, but that her carpal tunnel syndrome forced her to stop. also testified that, asked why she responded that carpal arthritis in her was hip, and maintaining employment. AR not AR currently working, tunnel syndrome, mental status at she at 56-58. 59. frozen prevented plaintiff shoulder, her from She said that she was constant pain and could barely care for herself. testified that, Plaintiff worked as a front desk clerk, and worked as a shift manager at Pizza Hut .. her at 56. before she worked at the gas station, volunteered at Highland Hospital, When AR for her mental impairments, Id. in Plaintiff she saw Dr. Dawood every three months and Mancuso every week or two weeks. AR at 61. Plaintiff described her pain as 16 concentrated on .the left side of her body. Id. She stated that she often felt her hip cracking and that her leg tingled down to her toes. described aching shoulder pain at all times, had difficulty lifting her arm. Id. She and noted that she AR at 67-68. Plaintiff also noted that she felt constant pain in her wrist, and that sudden movements and lifting increased the pain on her left side. With respect to her mental impairments, memory as "shattered," alleging that Id. plaintiff described her she frequently forgot to take her medicine and that "racing thoughts" made it difficult to concentrate. AR at 71-72. However, plaintiff stated that she could follow television shows because, something that testified she that caregivers. was she interested only socialized Plaintiff Id. further experienced auditory hallucinations. According involved to waking trying to clean, family, AR AR testimony, cooking at 74. AR at with they were 72. her She also family and that she testified Id. plaintiff's breakfast, taking daily her routine medicine, watching television or spending time with her trying to cook dinner, at 73-74. her. up, her in. typically, and then getting ready for bed. If her children came over, they typically bathed Plaintiff stated that she only slept for three to four hours each night and that her sleep was "not very good." Id. Plaintiff laundry, testified that she did not do any cleaning or but that she did wash the small amount of dishes she 17 used. Plaintiff also stated that she rarely left AR at 74-75. her house to visit family members, for walks. AR at 75-76. Testimony ("VE") Diana of the Sims Vocational also testified plaintiff's record of employment. VE, plaintiff's required but that she sometimes went light job as a exertion; fast her Expert: Vocational at hearing the AR at 80. as a regarding According to the food worker was job Expert unskilled and kitchen helper was unskilled and required medium exertion; her job as a front desk clerk was semi-skilled and required light exertion; her job as a sales associate at a gas station was unskilled and required light exertion; her job as a banquet server was semi-skilled and required light exertion; and her job as a shift manager at Pizza Hut was skilled or semi-skilled and required light exertion. AR at 81. The ALJ then posed a series of hypothetical questions to the VE, first asking whether an individual with plaintiff's work experience could perform their past work if limited to: work; frequent reaching tasks; with fingering the set ting; judgment. handling; arm; simple, interaction occasional without production, work left and pace, and AR at 82. with occasional repetitive, others; medium overhead and routine minimal stress or work quotas; occasional changes in occasional decision making and use of The VE testified that an individual with 18 those limitations could not perform plaintiff's past work. However, the VE noted that such an individual could work as an assembler, added finisher, limitation irritants, VE Id. or hand packer. of occasional that such an assembler or finisher. at exposure extremes in temperature, opined AR wetness, individual could With an 82-83. environmental to and humidity, only work as the an AR at 83. Next, the ALJ asked if employment opportunities existed for an individual limited ramps and stairs; to: light work; never climbing ropes, occasionally crouching, kneeling, and stooping; occasionally frequently climbing ladders and scaffolds; crawling; frequently balancing handling and fingering; occasionally reaching overhead with the left upper extremity; simple, routine and repetitive tasks, meaning unskilled superficial interaction with others; production pace work or quotas, occasional exposure temperature, that such helper, AR at to low stress, environmental individual could work With handling and an additional fingering with as unskilled in office and an unskilled porter. limitation of the extremes and The VE found 83-84. an and defined as no irritants, AR at an unskilled final assembler, 84. occasional occasional decision making, wetness and humidity. an work; left upper only occasional extremity, the individual could work as a .machine operator or a machine tender. AR at · 84-85. If the individual 19 was limited to sitting and standing as needed, the VE testified that they would be unable to maintain competitive employment. that the only position at a AR at 85-86. sedentary level limitations was a surveillance monitor position. VE also twelve indicated that to if with these AR at 87. The individual would have more the fifteen absences The VE noted than per year, or was not productive at least eighty-five percent of the time, no competitive employment opportunities would exist for them. AR at 87-88. Determining Disability Under the Social Security-Act The that a engage Evaluation claimant in any Process: will be The deemed substantial Social Security Act disabled gainful "if activity he by is provides unable reason of to any medically determinable physical or mental impairment which . has lasted or can be expected to last for a continuous period of 42 U.S.C. not less than twelve months." 1382c(a) (3) (A). § The impairments must be "of such severity that he is not only unable to do his education, previous and work work but cannot, experience, engage considering in any other his age, kind of substantial gainful work which exists in the national economy " The 42 U.S.C. § 1382c(a) (3) (B). determination of disability entails a whet.her the sequential evaluation process: 1. The Commissioner considers 20 five-step 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 medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without c?nsidering vocations factors such as age, education, and work experience. 4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps. Shaw v. C.F.R. Chater, §§ 221 F.3d 126, 404.1520, 132 416.920. (2d Cir. Plaintiff proving her case at steps one through four. is a "limited burden shift to the 2000); bears see also 20 the burden At step five, Commissioner" to of there "show that there is work in the national economy that the claimant can do." 21 Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam) (noting that Commissioner "need not provide additiona.l evidence of the claimant's residual functional capacity" at step five) ; see also 20 C.F.R. § 404.1560(c) (2). When evaluating the severity of reviewing authority must also apply a second and Astrue, third 546 F.3d 260, 404.1520a(a) has a F.3d steps of the 265 First, five-step (2d Cir. 265-66; see also 20 of functional four (2) broad limitation functional social functioning; and (4) see also (3) C.F.R. § "(l) better, the reviewing claimant's mental benefits." the ALJ the 546 F.3d If impairment (s)" activities of daily Kohler, is not at 266; the degree of 'mild' or identified, conclude 'severe' see living; 546 F.3d at 266; "[I]f will in or pace; three areas is rated generally impairment Kohler, 404.1520a(d) (1). severe, from of decompensation are authority § 546 404.1520a(b) (1) § 404.1520a(c) (3). and no episodes Kohler, concentration, persistence, limitation in each of the first v. whether plaintiff impairment." episodes of. decompensation." 20 Kohler the ALJ must "rate the degree resulting areas: the see also 20 C.F.R. determine C.F.R. plaintiff has such an impairment, analysis. 2008); the ALJ must impairment, "special technique" at the "medically determinable mental at mental and also then that will 20 the deny C.F.R. § If plaintiff's mental impairment is considered "will first compare 22 the relevant medical findings of and the functional limitation ratings listed mental disorders in impairment meets or is equivalent mental disorder." Kohler, 404 .1520a (d) (2). If listed mental disabled." make a finding as to in plaintiff's severity plaintiff plaintiff's Id.; see also 20 C.F.R. determine mental whether to any impairment "will 546 F.3d at 266. to the criteria the listed 546 F.3d at 266; see also 20 C.F.R. disorder, Kohler, order to be If not, residual meets found § any to be the ALJ will then functional capacity. 404 .1520a(d) (3) § ALJ denied plaintiff's application for supplemental security income. AR at The 24-39. first ALJ's Decision: On July 2013, 3, In applying the five-step sequential evaluation, found gainful that activity application. plaintiff syndrome, anxiety, plaintiff since the left panic June following ulnar not 6' engaged 2011, severe neuropathy, disorder, and bipolar disorder. major medical evidence that impairments equaled of the severity regulations and, as of a one result, the carpal depressive her diabetes, tunnel disorder, degenerative plaintiff impairment or combination of of the ALJ found that At the third step, and found the ALJ substantial date impairments: diverticulitis, Id. in the At the second step, AR at 29. had had disease of the left shoulder and left hip, the the joint emphysema, the ALJ analyzed did not have an that met or medically listed impairments in the proceeded to assign plaintiff an 23 RFC. AR at 31-37. The ALJ concluded that plaintiff had the RFC to perform light work as defined in 20 CFR 416.967(b) except occasionally climb ramps or stairs and never climb ladders, ropes and scaffolds. She is limited to occasional kneeling, crouching, crawling and frequent balancing or stooping. Moreover, she is capable of frequent handling and fingering and occasional overhead reaching with the left upper extremity. She needs a sit/stand option as needed and should experience only occasional exposure to environmental irritants, extremes in temperatures, wetnes's and humidity. She is limited to simple, repetitive tasks and occasional and superficial interaction with others. She is also limited to low stress work, which is defined as no strict production paced work or quotas, occasional changes to work setting, occasional use of judgment and decision making. AR at 31. Accordingly, the ALJ moved required asking whether plaintiff past work, The ALJ to the had the fourth RFC step, to perform her notwithstanding her severe impairments. concluded that the exertional which and AR at 37. non-exertional requirements of plaintiff's past work exceeded her RFC and that she was unable to perform her past relevant work. proceeded to the fifth step, First, the ALJ assessed Id., The ALJ which is comprised of two parts. plaintiff's considering her physical ability, age, job qualifications education, by and previous work experience. AR at 37-38. The ALJ next determined whether jobs the economy existed in national that a plaintiff's qualifications and RFC could perform. also 42 U.S.C. § 423(d) (2) (A); 20 C.F.R. 24 §§ person having AR at 38; see 416.969, 416.969(a). After assessing. ·determined that assembler. s she could job work qualifications, as an office the helper ALJ or final AR at 38. Standard of Review The denying scope of benefits this to Court's plaintiff review is of the limited. ALJ' s It decision is not the function of the Court to determine de novo whether plaintiff is disabled. ( 2d Cir. Brault v. 2012) (per curiam) . administrative evidence Soc. Sec. Admin., Comm'r, record supporting Rather, confirms the "there that Commissioner applied Commissioner's determination should not v. Barnhart, U.S. 1132 475 (2007). scintilla. F.3d 77, correct 80-81 "Substantial is legal be standard, disturbed. (2d Cir.), evidence and "the the 11 Acierno cert. is denied, more than a 551 mere It means such relevant evidence as a reasonable mind F. 3d at 447-48 where support substantial decision," might accept as adequate to support a conclusion." "Even 447 so long as a review of the Commissioner's the 683 F.3d 443, Brault, 683 (internal citation and quotation marks omitted). the contrary administrative findings on record may particular also adequately issues, the ALJ' s factual findings must be given conclusive effect so long as they are F.3d supported by substantial evidence." 46, 49 (2d Cir. 2010) (per 25 Genier v. curiam) Astrue, (internal 606 quotation marks omitted) This deferential standard of review does not mean, that the Court determination. it is should simply "rubber stamp" claimants Moran v. 569 Apfel, in our circuit that judge in a trial, develop non-adversarial Astrue, Melville v. hearing unlike a affirmatively essentially the Commissioner's "Even when a claimant is rep:i:-esented by counsel, the well-established rule security ALJ, however, nature F.3d 198 the 108, 112 F.3d 45, on' disability benefits 51 is must on behalf of all record of a in light benefits (2d Cir. (2d Cir. a the social of the proceeding." 2009); 1999) nonadversarial see also ("Because a proceeding, the ALJ generally has an affirmative obligation to develop the administrative record."). the record factors need be explicitly reconciled by to enable determination Ferraris v. determine evidence, record, is Heckler, whether [the supported 728 the reviewing F.2d by 582, findings court] in "crucial are to decide (2d Cir. supported by whether evidence. 1984). 11 "To substantial the reviewing court is required to examine the entire including contradictory evidence and evidence from which F.2d 1033, is ALJ, substantial 587 conflicting inferences can be drawn." there the conflict in any determination must be set forth with sufficient specificity the While not every factual 1038 a (2d Cir. 198:3) reasonable basis Mongeur v. (per curiam). for 26 doubt Heckler, Moreover, whether 722 " [w] here the ALJ applied correct legal evidence standard to uphold a an principles, unacceptable risk that application a the of substantial finding of no disability creates claimant will be deprived of the right to have her disability determination made according to the correct legal principles." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) Discussion Though plaintiff raises three arguments in her motion, 10 (1) that the they can be distilled into two primary challenges: ALJ erred treating because in evaluating physician the ALJ' s and the opinion evidence (2) that the error RFC determination was from was flawed. plaintiff's not harmless See Docket # 10-1 at 19-29. Treating Physician's Opinion: Plaintiff first argues that the ALJ failed to provide satisfactory reasons for her decision to apply treating "no weight" physician, to Dr. the opinion evidence Dawood. 10 Id. at from plaintiff's 19-25. Similarly, Plaintiff argues that: ( 1) "the ALJ erred in evaluating the opinion evidence of record," (2) "the ALJ' s failure to accord proper weight to the treating source opinions was not harmless error," and (3) "the ALJ erred in formulating hypothetical questions to the vocational expert." See Docket # 10-1 at 1929. At base, however, plaintiff is objecting to the ALJ' s application of the treating physician rule and its result on her subsequent RFC determination. Indeed, plaintiff argues that the ALJ' s questions to the VE were improper because the RFC was incorrectly determined. Id. at 27-29. 27 plaintiff argues that the ALJ should have assigned some weight to Gavett the opinions acknowledging medical of that sources" contends that Gavett entitled their and and Mancuso to opinions Mancuso. See are not controlling should have been § 416 . 913 (a) . explanations for weight, including scores demonstrate In response, whole, because to Additionally, See id., some see also them plaintiff's her and argues that the less than treatment improvement, controlling notes lack and support GAF from See Docket # 10-1 at 19-25. to the opinions of Dr. they are inconsistent Dawood, with and because Gavett and Mancuso are entitled afforded the Commissioner argues that the ALJ properly afforded no weight Mancuso assigning that substantial evidence. plaintiff Plaintiff concludes that their opinions are consistent with the record as a whole, ALJ's While "acceptable weight, weight to show the severity of her symptoms. 2 0 C. F. R. id. controlling the weight. Commissioner record and as "other sources" Docket contends the Gavett, # that 13-1 the at a not 11-17. consultative opinions of Dr. Caldwell and Dr. Harding, as well as plaintiff's demonstrated improvement opinion evidence from Dr. 14-16. Dawood, treatment, Gavett, contradict and Mancuso. the Id. at Finally, the Commissioner argues that the ALJ's reliance on plaintiff's GAF because through the ALJ scores declined to to show improvement equate 28 the GAF was permissible scores with a functional capacity assessment. Analysis: afford "a Under measure the of Id. at 17. treating deference physician to the rule, medical claimant's treating physician." Halloran v. 28, § 31 (2d Cir. 2004); 20 C.F.R. the opinion of a and severity weight,,, opinion Barnhart, 404.1527(d) (2). of a 362 F.3d Accordingly, claimant's treating physician as to the nature of so an ALJ must claimant's long impairment it as is given well-supported "is "controlling by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent case record. 2 008) Chater, 20 other v. F.3d 335 substantial Astrue, C.F.R. Barnhart, 221 the Burgess 11 (citing Younger v. with F.3d 117, 404.1527(d)(2)); § F.3d 99, 126, 537 134 106 (2d evidence Cir. 128 see (2d Cir. in (2d Cir. also, 2003); 2000)) [the] GreenShaw v. "Medically acceptable clinical and laboratory diagnostic techniques include consideration of a as diagnostic an essential patient's report tool." of complaints, Burgess, 537 or history, F.3d at 128 (internal citations and quotations omitted). Relatedly, the Social Security Administration is required to explain the weight that it gives to the opinions. of treating physicians. 20 C.F.R. § 404.1527(d) (2) ("[W]e will always give good reasons in our notice of determination or decision for the weight we give your' treating source's opinion."). even when the treating source's 29 opinion is given This is true controlling weight, but especially true if controlling weight. See Burgess, explicitly consider, inter alia, relationship extent of and the the particularly medical opinion of and not given The ALJ must "[l] ength of the treatment examination; relationship; signs is 537 F.3d at 129. the frequency treatment the the laboratory the nature relevant and evidence, findings, supporting the opinion; the consistency of the opinion with the record as a whole; and covering whether the the particular quotations omitted) (3) - (5)); 2013) . physician (citing 20 C.F.R. Astrue, the set treating physician's 802 F.3d 370, 375 129) The (2d Cir. failure the opinion of a Snell v. also Schaal v. 2015) to provide no Id area (internal 404.1527(d) (2) (i)-(ii), factors, reasons opinion." 418 (2d Cir. the for ALJ must the weight Greek v. Colvin, (citing Burgess, "good reasons 537 for not F.3d at crediting claimant's treating physician is a. ground for Apfel, Apfel, 177 F.3d 128, 134 F.3d 496, Commissioner's failure to provide affording in the 708 F.3d 409, above assigned to a remand." § [their] forth specialist issues.,, considering comprehensively a medical see also Selian v. "After is weight to the 133 505 (2d Cir. (2d Cir. 'good reasons' opinion of 1999); 1998) see ("[T]he for apparently plaintiff's treating physician constituted legal error."). An ALJ a therapist, "may also use evidence from other sources," such as to evaluate the severity of a claimant's impairment 30 and the impairment's impact on a claimant's ability to work. C.F.R. 3d 416.913(d) (1); 362, see also Beckers v. 371 § 2014) (W.D.N.Y. practitioners, be used to Moreover, show automatically the n. the severity of a entitled to the same they "are entitled to the patient." In 2) . fact, eligible for approved by Griffin 2016) Id. a has a by 2016 WL 912164, Impairment was Oct. F.2d "other 2011) id. at *14 at she signs weight."); 2008) worker in Keith v. order co-signed ("There signed for Astrue, (instructing ALJ and not source when at 1039, source" 372; (D. is by to a is F. evaluate 7, by [a [the treating 2011 WL 4744411, no to legal be Supp. notes psychiatrist 31 Mar. completed by also and it is a fact that the ALJ it 553 see Conn. principle states that a doctor must personally write out a or impairments). treating 722 Questionnaire This is important, 6, can treating relationship an See did not consider."); McAninch v. Astrue, (W.D.N.Y. nurse opinions . are as Mongeur, physician. Mental psychiatrist] . source weight produced therapist] licensed of source deference when i t is reviewed and treating Colvin, ("The Supp. 'some extra consideration' (quoting report treating a v. opinions claimant's non-acceptable medical [non-acceptable medical source] with that 38 F. whiie non-acceptable medical source opinions, while opinions, (holding Colvin, 20 "in which report that he accorded 2d 291, at *15 controlling 301 (W.D.N.Y. produced by a accordance social with the treating physician rule") . ALJ to believe that a treating physician, treating own Santiago (S.D.N.Y. 2006) is no reason for an report prepared by someone other than a does not v. reflect Barnhart, ("[T]here is no report [the treating physician] view. Nor is there but nevertheless reviewed and signed by that physician, view. Indeed, there any the 441 treating F. reason Supp. physician's 620, 628 believe to 2d that the signed does not reflect his own legal principle doctor must personally write out a which states that a report that he signs for it to be afforded weight."). Here, the parties do not dispute also Docket # 13-1 ALJ's assertion, reports Dawood produced constitute Dawood, Mancuso, at 12. Dawood was See Docket #10-1 at 21-23; plaintiff's treating physician. that see Accordingly, and see Docket # 13-1 at 12, and treating to the the functional therapists and Dr. opinions. Thus, Dr. therapists, Gavett and source in conjunction with plaintiff's contrary 16-17, signed by plaintiff's proper Dr. offered two treating source opinions about plaintiff's functional abilities. AR at 514-519, 647-648. In one opinion, Dr. Dawood and Gavett opined that plaintiff would have: moderate impairment in restrictions impairment in receiving communicating, impairment of and activities; daily carrying out instructions, and receiving constructive criticism; in maintaining concentration, 32 marked persistence, and marked or pace. AR at 515-516. noted that In the plaintiff other opinion, would have indicated would that social a AR at 648. assessments, AR repetitive, plaintiff's claiming at they gave were They also entry-level thereby however, that impairments 647. simple, symptoms, The ALJ, severe sustained concentration and interaction. routine, increase stressor. these and Dawood and Mancuso several regarding understanding and memory, persistence, Dr. serving job as a "no weight" to inconsistent with treatment records based on plaintiff's apparent improvement and were "overly pessimistic. While the Commissioner may properly discount inconsistent with the nothing from a Gavett correct substantial 537 F.3d 117, 128 case here. in Dr. is A review of Dawood' s and in arguing treating physician's other Burgess v. Astrue, isn't AR at 36. 11 opinion evidence (2d Cir. the that in if the 2008), an ALJ it is record, that simply record establishes that treatment notes qr the treatment notes Mancuso Al though Dr. Dawood and the therapists noted on some occasions euthymic mood, depression, 616, 626, was she anxiety, 640. doing inconsistent better, consistently appeared displayed and bipolar disorder. Indeed, in a or functional of plaintiff are their that assessments that plaintiff indicate pessimistic. calm, symptoms AR at 583, letter dated February well into plaintiff's treating relationship with Dr. 33 or had related 591, 20, a to 600, 2013, Dawood, he opined that plaintiff's ongoing difficulties with concentration, memory, anxiety, impair [ed] her and daily emotional and deregulation social "significantly functioning periods of mania and depression that result[ed] with episodic in her inability to maintain consistent work schedule and function effectively in a work setting." plaintiff's AR treatment, developing coping nevertheless were that Dawood she was working managing her medication; that and her confirmed Dr. 567. noting skills found observations at symptoms commented persisted. in plaintiff's most on towards but These Id. recent Mental Residual Functional Capacity Assessment, completed by Dr. Dawood and Mancuso in February 2013. In their assessment, plaintiff suffered from a range of severe limitations with respect to her concentration and persistence, routine, repetitive, simple, her level of impairment. suggested, was and would be unable to work a entry-level job without increasing The fact· that Dr. Dawood AR at 648. despite plaintiff's temperate improvements, nonetheless severely restricted by her mental that she impairments and would suffer psychiatric harm working a routine and simple job should speak to the severity of plaintiff's impairments and not to Colvin, any inconsistency in Dr. 2015 WL 7758533, at Dawood' s *10 opinion. (S.D.N.Y. Dec. Garcia v. 1, 2015) ("[E]vidence of improvement alone, without an assessment of how any the such improvement reduced 34 claimant's functional limitations such that they are no longer, limitations is insufficient. relative improvement great, marked a or never were, marked One can show even significant but if limitation the may deficiency remain." is sufficiently (citations omitted)). The ALJ's reference to plaintiff's ability (or inability) public her GAF scores, a particular type of of claimant's ability transportation "necessarily reveal not an Colvin, assessment 104 F. Supp. and 3d 329, 342 . do limitation and to (W.D.N.Y. which to use work," not [are] Camille v. 2015), also do little to cast doubt on the multiple and otherwise consistent reports, letters, Mancuso and assessments provided detailing ·plaintiff's limitations. Accordingly, See AR at by severe Dr. Gavett, 544-47, 514-19, 567, 647-48. the ALJ's decision to credit the opinions of one of plaintiff's treating physician, state agency consultant several therapists, plaintiff's other consultative examiner appears arbitrary. Selian v. and and marked non-exertional plaintiff's consultative examiner and a over Dawood, Astrue, 708 previously cautioned findings of examination."); F.3d 409, that ALJs consultative see 419 (2d Cir. should not See ("We rely heavily on physicians also Hensley v. 2013) Astrue, a after 573 F.3d ("Nothing in the regulations indicates, and have the single 263, 267 (6th Cir. 2009) suggests, that the administrative judge may decline to give the treating physician's medical opinion 35 less than or even controlling weight simply because conclusion.") . treating another physician has reached a Indeed, relationship Dr. Dawood, with plaintiff, foundation on which to comment an examiner minimum, from a single the though, through had his a far on plaintiff's consultative minor contrary long-standing more reliable limitations than appointment. discrepancies over At plaintiff's ability to use public transportation and inconclusive notes improvement the cited evidence to treating source justify appropriate. 2004) by a ALJ fail wholesale opinions. In to qualify rejection these of substantial the multiple circumstances, See Halloran v. Barnhart, 362 F.3d 28, remand 33 is (2d Cir. ("We do not hesitate to remand when the Commissioner has not provided physician's encounter 'good reasons' opinion opinions and from for the weight given to a we will ALJ' s that continue do remanding not forth reasons for the weight assigned to a Cir. reasons' 1998) for ("Commissioner's treating when comprehensively we set treating physician's opinion."); see also see also Schaal v. Apfel, (2d as of a failure apparently affording no weight 134 F.3d 496, to to provide the 505 'good opinion of plaintiff's treating physician constituted legal error."). Harmless failure to Error: properly Plaintiff consider next the asserts opinions that the provided ALJ's by her treating physician and other examining sources rendered her RFC determination flawed. See Docket 36 # 10-1 at 25-29. Plaintiff believes that ·the ALJ' s rejec,tion of these opinions was more than mere harmless error; she claims that it was prejudicial and necessarily tainted the ALJ' s subsequent Id. analysis. The Commissioner argues that the ALJ properly rejected the opinions of plaintiff's treating physician and other examining sources, and properly relied on the opinions of plaintiff's consultative Docket # 13-1 at 21-23. examiners to assess her RFC. The Court agrees with assign any weight to Dr. not harmless error. Dr. Dawood's Dawood' s she opinions, ALJ's a would Dawood, plaintiff's minimal environment" mental increase would to treating source opinions was have likely rendered a he and plaintiff's therapists impairments prevented her functioning independently outside of her home, "even failure For example, at various points in the opinions provided by Dr. that the Had the ALJ properly considered and adopted different RFC assessment. opined plaintiff; cause in mental her to demand or decompensate, AR at 517, change id., in and from that the that plaintiff suffered various severe limitations in her ability to , AR at 647. maintain concentration and understand instructions. Most troublingly, repetitive, simple, Dr. limitations assessment and, opined entry-level psychologically-based exertional Dawood even a "routine, job" would increase plaintiff's symptoms. are that not AR at encompassed These 648. in the ALJ's nonRFC as demonstrated at oral argument before the ALJ, 37 would likely have precluded plaintiff from gainful employment. · AR at 87 ("[I]f [eighty-five] with percent competitive appropriate the individual of the is time employment."). so that the not productive it would not Accordingly, ALJ may provide a be I at least consistent find more remand thorough explanation of her reasons for completely rejecting the opinions of Dr. Dawood, Gavett, and Mancuso in favor of the opinion provided by a one-time consultative examiner and a non-examining consultant. Conclusion The Commissioner's (Docket # 13) is denied, motion for judgment on the pleadings and plaintiff's motion for judgment on the pleadings (Docket # 10) is granted only insofar as remanding this matter back to the Commissioner for further proceedings consistent with the findings made in this Order. SO ORDERED. U ite Dated: September 27, 2016 Rochester, New York 38 States Magistrate Judge
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