Opinion
14-CV-6798 (RRM)
09-21-2016
ALISHA HARDY, Plaintiff, v. CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.
MEMORANDUM AND ORDER
Plaintiff Alisha Hardy brings this action against defendant Carolyn Colvin, Commissioner of the Social Security Administration (the "Commissioner"), pursuant to 42 U.S.C. § 405(g), seeking review of defendant's determination that she is not entitled to disability insurance benefits or Supplemental Security Income benefits under Title XVI of the Social Security Act. Hardy maintains that the Commissioner's determination was the result of legal error and selective use of the evidence. (Pl.'s Reply Mem. (Doc. No. 27).) Both Hardy and the Commissioner have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Def.'s Mot. J. Pleadings (Doc. No. 22); Pl.'s Cross-Mot. J. Pleadings (Doc. No. 24).) For the reasons set forth below, the Commissioner's motion is GRANTED and Hardy's motion is DENIED.
BACKGROUND
I. Procedural History
Hardy filed applications for disability insurance benefits and supplemental security income on February 16, 2012, alleging disability as of August 18, 2011, due to post-traumatic stress disorder ("PTSD") and depression. (Admin. R. (Doc. No. 28) at 110-13, 114-22, 141, 145.) The applications were denied. (Id. at 69-70, 71-78.) The Explanation of Determination states that "[t]he reports did not show any conditions of a nature that would prevent you from working. Based on your description of your job as a cashier, your condition does not prevent you from performing this work." (Id. at 77.) Hardy then requested a hearing. (Id. at 79-81.)
Hardy appeared, with a non-attorney representative, before Administrative Law Judge ("ALJ") Michael Friedman at a hearing held on July 26, 2013. (Id. at 53-68.) By decision dated August 7, 2013, ALJ Friedman amended the earlier finding that Hardy could perform any past relevant work, but nevertheless found that Hardy was not disabled. (Id. at 23-40.) He found that Hardy suffered from post-partum depression and subsequent psychosis, as well as a history of cannabis use, and that these impairments "result in more than minimal limitations in [Hardy's] ability to engage in basic work-related activities and therefore constitute severe impairments." (Id. at 28.) However, the ALJ found that she responded well to treatment and that her "limitations have little or no effect on the occupational base of unskilled work at all exertional levels." (Id. at 35.) The ALJ therefore found that Hardy "is capable of performing unskilled work" and specified that "she is limited to jobs involving simple, routine, repetitive tasks requiring only occasional contact with others." (Id. at 30, 36.) The ALJ further noted that, although Hardy had also been diagnosed with obesity, "[t]here is nothing in the record to support any limitations from this condition." (Id. at 34.)
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Hardy's request for review on October 27, 2014. (Id. at 1-5.) On November 17, 2014, Hardy filed the instant action, alleging that the ALJ's decision was "erroneous, not supported by substantial evidence on the record and/or contrary to the law." (Compl. (Doc. No. 1) at ¶ 9.) Defendant asserts that the ALJ's determination was based on the application of the correct legal standards, and further argues that "substantial evidence supports the Commissioner's decision." (Def.'s Mem. Supp. J. (Doc. No. 23) at 1.)
Hardy filed a subsequent application for Supplemental Security Income on April 13, 2015. (Notice of Award (Doc. No. 25-1) at 1.) This application was granted on June 10, 2015. (Id.) This subsequent decision in Hardy's favor by the Commissioner does not on its own constitute new and material evidence for this Court to consider, and thus is not considered in this Memorandum and Order. See Caron v. Colvin, 600 F. App'x 43, 44 (2d Cir. 2015) (summary order) ("[T]he 2014 finding is not itself evidence of disability but, rather, a conclusion based on evidence. As this court has recognized, the fact that two ALJs may permissibly reach different conclusions, even on the same record - which is not the case here - is not probative of anything."); see also Allen v. Comm'r of Soc. Sec., 561 F.3d 646, 653 (6th Cir. 2009) (while a subsequent decision may be supported by evidence that is new and material, it is not itself "new and material evidence").
II. Administrative Record
a. Non-Medical Evidence
Alisha Hardy was born on March 1, 1987, and completed high school and one year of college. (Admin. R. at 110, 114, 146.) She reported past relevant work experience as a cashier, camp counselor, and in customer service. (Id. at 146, 152, 160.) She indicated that she stopped working on January 31, 2010 because her job was a seasonal position. (Id. at 145.)
In Hardy's Bellevue Hospital records, it was noted that the Administration for Children's Services opened a case on Hardy in September 2011 after Hardy's newborn infant tested positive for cannabis. (Id. at 243, 304-05.) The baby was placed with Hardy's mother. (Id. at 304-05.) Hardy was placed under a court-ordered mandate to attend an "ICD clinic" for substance abuse. (Id. at 304.) Hardy lived primarily with her aunt while her baby lived with her mother. (Id. at 235, 243, 305, 307.)
Hardy's briefing defines ICD as "International Center for the Disabled." (Pl.'s Mem. J. Pleadings (Doc. No. 25) at 2.)
In a function report dated April 16, 2012, Hardy indicated that she lived in an apartment with family. (Id. at 166-75.) During the day, she took her medication, went to her chemical dependency program, saw a psychiatrist, then went to another program at Harlem House and then went home and took more medication. (Id. at 167.) Hardy's mother cared for her daughter, and she saw her daughter weekly. (Id.) Hardy wrote that if she took too much medication, she could not sleep and also got "too stiff" and shook. (Id.) She was able to care for her personal needs and did not need reminders to do so. (Id. at 167-68.) She wrote that she might forget to take her medication if she did not receive injections administrated by her doctor. (Id. at 168.)
The program Hardy attended prepared some meals for her, and her mother made her dinner. (Id. at 168-69.) Hardy was able to go out alone, do laundry, shop, and clean. (Id. at 169, 171.) Hardy was socially active and talked on the telephone during the day. (Id. at 170-71.) She also enjoyed drawing and writing. (Id.) She claimed on the form that she could not lift heavy objects. (Id. at 170.) Hardy indicated that she had no problem paying attention and could finish what she started. (Id. at 173.) She could follow spoken and written instructions. (Id.) She had problems getting along with people in authority before she started taking medication, but did not have this problem any longer. (Id.) Hardy sometimes got impatient. (Id. at 175.)
On or about February 1, 2012, Hardy left her aunt's home and moved to the Harlem Hospital Crisis Residence. (Id. at 450.) On July 20, 2012, Hardy was referred for New York City supportive housing by Harlem Hospital social worker Kara Simpson. (Id. at 449.) On August 3, 2012, Placement Assessment and Client Tracking Unit reviewer Michael Bruno, LMSW, found Hardy to be eligible for Level II supportive housing for individuals with serious mental illnesses. (Id. at 445.)
On July 25, 2016, Hardy's mother, Angela Faulcon, wrote a letter to the ALJ to convey background information about Hardy's ability to handle money. (Id. at 213.) She wrote that when Hardy received money, she gave it away even though she did not have another source of income, and that when she received food stamps, she did not think of her daughter's needs without prompting. (Id.) Ms. Faulcon stated that when she had given Hardy money without demanding an accounting for how it was used, Hardy would give it away. (Id.) She asked the ALJ to designate Hardy as a "payee" if the ALJ granted benefits so that people would not be able to "take advantage" of Hardy. (Id.)
At the administrative hearing held on July 26, 2013, Hardy testified that she lived in a "Tier II" dormitory-like facility where she was provided a case manager and psychiatrist. (Id. at 57, 66.) Hardy also testified that she had leg pain for which she took Motrin and had paranoid schizophrenia for which she took medication daily. (Id. at 57-58.) Her medication allowed her to "stay stable, without hurting anybody." (Id. at 58.) Hardy did not need reminders to take her medication because she was "on self meds." (Id. at 67.) She also saw her psychiatrist every month and attended vocational training and drug rehabilitations classes. (Id. at 58, 63, 66.) Hardy testified that her mental health problems and paranoia started in October 2010 when she was raped. (Id. at 61.) She claimed to have started mental health treatment when she was hospitalized at Bellevue from October 28 to December 5, 2011. (Id. at 61-62.)
Hardy testified that she could not return to her past work (in retail, customer service, or as a camp counselor) because she is "a little paranoid" and, at times, had trouble with people, concentration, and remembering things. (Id. at 57-59, 65.) Hardy added that she had trouble seeing and sometimes heard voices. (Id. at 57-60.) Her medication was helpful. (Id. at 58.) She also claimed she had problems sitting, standing, and walking, and could stand for only 30 minutes at a time. (Id. at 60.) Hardy grocery shopped with someone else, cooked three times per week, cleaned her living area, read, and watched television. (Id. at 60, 63-64.) Hardy prepared meals on her own and did not have problems following directions. (Id. at 64.) During the day, Hardy napped, did her laundry, went to the movies, or went to a park to relax and get fresh air. (Id.) Hardy claimed that her medication made her drowsy and shaky, and that it made her arms feel stiff. (Id. at 64-65.) Hardy testified that she found herself in situations that were not good for her and that her friends changed a lot. (Id. at 65.)
b. Medical Evidence Prior to Hardy's Alleged Onset Date
i. St. Luke's Roosevelt Hospital
Hardy was seen at the St. Luke's Roosevelt Hospital ("St. Luke's") emergency department on April 24, 2011, complaining that she felt frustrated. (Id. at 221-23.) She was four months pregnant. (Id. at 222.) The attending doctor assessed adjustment reaction, not otherwise specified. (Id. at 221.)
c. Medical Evidence After Hardy's Alleged Onset Date of August 18, 2011
i. St. Luke's
Hardy returned to the emergency department at St. Luke's on September 26, 2011 for an evaluation of postpartum depression. (Id. at 224-29.) Hardy, who had recently delivered a baby, was brought in by a social worker because she appeared detached and disinterested in her child. (Id. at 225.) The attending doctor, Dr. Linda Nguyen, M.D., assessed hypertension and discharged Hardy a few hours later. (Id. at 224.)
ii. Bellevue Hospital Center
On October 29, 2011, Hardy was involuntarily admitted to Bellevue Hospital Center ("Bellevue") through the emergency department. (Id. at 310; see also id. at 231-53, 302-432.) Emergency medical services brought her to the hospital from her court-mandated ICD program after attempting to choke her nine-year-old niece and showing increasingly aggressive behavior toward strangers, particularly women. (Id. at 310.) She was exhibiting symptoms of psychosis including delusional thoughts, auditory hallucinations, and increasing paranoia. (Id.; see also id. at 231.) She did not know why she had been brought to the hospital. (Id. at 231, 239.) Bellevue contacted Hardy's court-mandated psychiatrist from the ICD clinic; he reported having prescribed Geodon, but that Hardy was not compliant with taking it. (Id. at 243, 304, 311.) Hardy's aunt, with whom Hardy was living, reported that Hardy's behavior shifted prior to the delivery of her infant in August 2011, as if she had a "different personality." (Id. at 244.) She did not want Hardy to return to live with her because Hardy's behavior frightened the aunt's children. (Id. at 305.)
Mental status examination revealed that Hardy was agitated, related oddly, and had staring eye-contact, decreased psychomotor activity, slow speech, and impaired insight and judgment. (Id. at 236.) She was irritable, and her affect was blunted with inappropriate affect. (Id.) Her insight and judgment were impaired. (Id.) The attending doctor's differential diagnosis was: psychosis not otherwise specified; post-partum psychosis; schizophrenia, paranoid type; substance-induced psychosis; and psychosis due to a general medical condition. (Id. at 237.) He noted, however, that Hardy's current presentation suggested a diagnosis of psychosis not otherwise specified. (Id.) Due to Hardy's recent history of aggressive behaviors, she was currently a danger to others and required hospitalization for further evaluation and medication management. (Id. at 237, 310.) Hardy refused voluntary admission and was admitted pursuant to § 9.39 of the N.Y. Mental Hygiene Law (mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others). (Id. at 238, 310.)
On October 31, 2011, while still at Bellevue, the record indicates that Hardy was not compliant with her medication and had impaired insight and judgment. (Id. at 327.) On November 1, 2011, Art Therapist Cheryl Walpole noted that Hardy was "unhelpful" during an assessment interview, had poor insight into her illness, and was isolated and withdrawn. (Id. at 332.) Her medication was changed to fluphenazine (Prolixin). (Id. at 360, 383.) Notes from treating physician Stephen Trevick, M.D., dated November 8, reveal that Hardy was compliant with medication, but remained withdrawn, disorganized and paranoid. (Id. at 246, 340.) Hardy stated that she believed that people were "bothering" her and "looking at" her. (Id.) She was not aggressive. (Id.) Dr. Trevick recorded that Hardy's discharge date would be November 30, 2011. (Id. at 251, 345.) Hardy was to be assessed for placement because she could not return to live with her aunt. (Id.)
Fluphenazine is an anti-psychotic medication used to treat psychotic disorders such as schizophrenia. Prolixin, drugs.com, http://www.drugs.com/mtm/prolixin.html (last visited Sep. 8, 2016).
On November 9, 2011, medical student Grace Huang noted that Hardy's insight and judgment continued to be impaired. (Id. at 354.) Hardy was not aggressive and was cooperative, though she remained irritable and distant. (Id.) Dr. Trevick recorded that Hardy had failed to meet her treatment goal of attending at least three group activities in a two-week period during which she was neither disruptive nor hostile. (Id. at 357.) Hardy was started on Cogentin on November 14 and two days later, she reported improvement and Dr. Trevick noted that she had brighter facial expressions. (Id. at 407, 431.) She also demonstrated significant improvements in thought organization and inappropriate affects disappeared, although mild blunting affect was noted. (Id. at 407.)
Cogentin is an anticholinergic used to treat Parkinson disease as well to control tremors and stiffness of the muscles due to certain antipsychotic medicines. Cogentin, drugs.com, http://www.drugs.com/cdi/cogentin.html (last visited Sep. 8, 2016).
By November 15, 2011, Hardy was compliant with medication, and had started socializing in the hospital and attending more group activities, but she continued to be unable to express the reason for her hospitalization. (Id. at 361.) Her mood was euthymic, she was cooperative and goal directed, but had somatic delusions. (Id.) Impulse control was intact and her affect was full. (Id. at 362.) On November 17, Hardy expressed that her friend "Tiera" might be living inside her body, but she was uncertain. (Id. at 376.) On November 22, Dr. Trevick noted that Hardy was demonstrating greatly improved affective stability. (Id. at 385.) Hardy continued to improve, and by November 25, she had demonstrated significant improvements in thought organization. (Id. at 407.) Hardy stated that her previous thoughts that people had been out to get her, as well as her feelings that her friend Tiera was inside her, "were all delusions which have gone away due to her medications." (Id.) Her inappropriate affects had disappeared, although Dr. Trevick noted mild blunting. (Id.) The November 25 records reflect that a family meeting was held on November 22, and that Hardy's aunt had agreed to allow Hardy to continue living with her. (Id. at 404.) On November 29, Hardy was in good behavioral control with good medication compliance. (Id. at 408.) She exhibited greatly improved affective stability. (Id.) Hardy denied all prior persecutorial delusions and auditory hallucinations, demonstrating good, if somewhat superficial, insight into her illness. (Id.) On November 29, Harlem Hospital mentally ill chemical abuse program was contacted for intake, which was scheduled for December 6, 2011. (Id.)
Upon examination on December 2, Hardy was cooperative, related well, and exhibited normal eye contact. (Id. at 424.) She was cooperative with the interviewer, but guarded and distant. (Id.) Hardy spoke at a normal rate, volume, and rhythm; her speech was fluent and non-pressured. (Id.) Her thought process was goal directed and logical; her thought content was normal. (Id.) Hardy reported no thoughts of harming herself or others. (Id.) She exhibited no perceptual disorders. (Id.) Hardy's mood was euthymic and "good"; her affect was blunted or flat although stable and of normal intensity. (Id.) Impulse control was deemed intact. (Id.) Hardy had no grossly impaired insight or judgment. (Id.) The attending physician diagnosed unspecified chronic schizophrenia, and assessed a global assessment of functioning ("GAF") of 50. (Id. at 425.) Hardy was discharged on December 5, 2011, and was to stay with her aunt. (Id. at 431.) She had an appointment for intake into the day treatment program of Harlem Hospital. (Id.)
GAF is a rating of overall psychological functioning on a scale of 0 to 100. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Text Revision (4th ed., rev. 2000) (DSM-IV) at 34. A GAF of between 41 and 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. Id.
iii. Harlem Hospital
On February 1, 2012, Hardy walked into the emergency department at Harlem Hospital Center ("Harlem Hospital"). (Id. at 258-59.) Though Hardy had previously been staying with her aunt and other family members, she had also spent at least one night in a shelter. (Id. at 457.) She indicated that her shelter had sent her to the hospital. (Id. at 258.) The hospital determined her visit was "non-urgent." (Id. at 258-59.) Hardy was ambulatory, oriented to person, place and time and in no acute distress or in any pain. (Id.) She listed her medications as Cogentin and Prolixin. (Id.) Hardy enrolled in Harlem Hospital's Crisis Residence program. (Id. at 457.)
Hardy was seen on June 1, 2012 at the "Psych Alcoholism" clinic of Harlem Hospital. (Id. at 1002-04.) She was stable on her medications with no side effects. (Id. at 1002.) She denied any mood, anxiety, or psychotic symptoms. (Id.) The attending doctor's primary diagnosis was post-partum psychosis/depression and THC (cannabis) dependence by history. (Id. at 1003.) Her GAF was rated 40-45, with a current GAF of 50. (Id.) Hardy returned on June 18, 2012. (Id. at 1029-31.) Findings were the same; her GAF was noted to be 45. (Id. at 1029-30.)
On June 21, 2012, Hardy was seen at Harlem Hospital for mental health intake and psychiatric consultation. (Id. at 994-1001; see also id. at 893-96.) Hardy had been residing at Harlem Hospital's Crisis Residence transitional housing for four months, and Harlem Hospital social worker Kara Simpson had directed Hardy to the clinic for evaluation. (Id. at 995.) It was noted that upon discharge from Bellevue Hospital on December 5, 2011, Hardy had been referred to the chemical dependency program at Harlem Hospital. (Id. at 995.) Hardy's toxicology reports had all been negative since December 2011. (Id. at 458.) Hardy reported that she had been on Prolixin by intramuscular injection and Cogentin since her stay at Bellevue. (Id.) Hardy denied mood swings, "flight of ideas," "easy distractibility," and "being engaged in activities that may have painful consequences." (Id. at 996.) She denied compulsive/obsessive behaviors and symptoms of anxiety. (Id.)
Upon mental status examination, Hardy was noted to be appropriately dressed, with fair hygiene and grooming, and good eye contact. (Id. at 999.) She was cooperative and pleasant. (Id.) She was intermittently shaking her legs and was restless. (Id.) Hardy reported that her mood was "good" and she displayed an appropriate affect. (Id.) Her speech was clear and coherent and of normal volume. (Id.) Hardy's thought process was logical and goal directed, and her thought content showed no fixed delusions. (Id.) Hardy denied any perceptual disturbances and denied desires or plans to harm herself or others. (Id.) Hardy's immediate, recent, and remote memory was good. (Id.) She could spell "world" backwards and had good abstraction and fund of knowledge. (Id.) Her insight was good and her impulse control and judgment were fair. (Id.) Doctor Will Germain, M.D., who conducted the intake assessment, diagnosed paranoid type schizophrenia, unspecified, and assessed a GAF of 50. (Id. at 1001.) Hardy was to receive Prolixin injections every two weeks as well as Cogentin twice a day. (Id. at 1000.)
The next day, on June 22, 2012, Hardy returned to the "Psych Alcoholism" clinic. (Id. at 989-90.) Hardy had been regularly seeing a chemical dependency professional, and although her urine toxicology had been negative, her counselor suspected that Hardy might be abusing synthetic THC. (Id. at 989.) Hardy denied this, but nonetheless, was counseled on the consequences of substance abuse. (Id.) The primary diagnosis was cannabis abuse, continuous, and her GAF was rated at 40. (Id.)
A GAF of between 31 and 40 indicates some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. DSM-IV-TR at 34.
Hardy received Prolixin injections on July 10 and July 27. (Id. at 1017-20, 1021-24.) Mental status was essentially unchanged. (Id. at 1018, 1022.) The diagnosis was paranoid type schizophrenia, unspecified. (Id. at 1019, 1023.) Her GAF was 60 on July 10, and 55 on July 27. (Id.)
A GAF of between 51 and 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). DSM-IV-TR at 34.
Hardy continued to receive Prolixin injections at Harlem Hospital and was advised to report any side effects. (Id. at 775-78, 780, 783-84, 786, 900-02, 906, 908-09.) In September 2012, she reported feeling stiff and shaking at times. (Id. at 903.) Her GAF was rated as 50. (Id. at 974.) She was alert, calm and cooperative on mental status evaluation. (Id. at 903.) In October 2012, Hardy denied medication side effects and had no complaints. (Id. at 886, 904-05.) Also in October 2012, Beatrice Yonly, a hospital social worker, noted that Hardy had been living in a women's shelter since August 2012 and noted Hardy's activity level as "completely independent." (Id. at 1036-37, 1040.) Hardy denied having any physical health conditions. (Id. at 1040.)
Treatment notes through January 2013 reflect that Hardy continued to be seen in follow-up appointments at Harlem Hospital, where she received Prolixin injections every two weeks with no side effects. (Id. at 869-71, 872-74, 876-81, 882-84.) Her GAF remained at 55 throughout this period. (Id. at 870, 874, 877, 881, 883.) On November 2, 2012, Hardy reported feeling "great" with the injections and on November 14, 2012, stated that she was "fine," had no complaints, and she now enjoyed her life better since her symptoms were "completely lessened." (Id. at 879, 882.) On November 28, 2012, Hardy was bright, looked jovial, and showed Dr. Dimy Fluyau, M.D., a picture of her daughter. (Id. at 876.) Harlem Hospital nurse Claudette Bond noted on December 12, 2012, that Hardy's mood was good and that she was compliant in taking medication as prescribed. (Id. at 790.)
When seen on February 6, 2013 for her injection, Hardy stated she had no complaints. (Id. at 803, 866-68.) She reported that she moved from a shared room at a shelter to a "single room occupancy" in another facility, and was very happy about that. (Id. at 866.) She had seen her daughter the day before and stated that she "f[elt] rejoiced." (Id.) She denied side effects of Prolixin. (Id.) Her GAF was unchanged at 55. (Id. at 868.) On March 4, Dr. Fluyau noted that Hardy was stable on Prolixin and that she preferred monthly shots. (Id. at 862-65.) Hardy reported that she did not hear voices or have delusions or anxiety. (Id.) Her GAF was rated at 65. (Id. at 865.) On April 3, 2013, Hardy complained of a dry mouth and her Cogentin dosage was decreased. (Id. at 860-62.) Her GAF was rated at 55. (Id. at 862.)
A GAF of 61 to 70 indicates that the individual has some mild symptoms or some difficulty in social, occupational or school functioning, but is generally functioning pretty well, and has some meaningful interpersonal relationships. DSM-IV-TR at 34.
On April 18, 2013, Hardy was seen at the emergency department of Harlem Hospital after reportedly being raped the night before. (Id. at 742-48, 815-24.) She reported the rape to police earlier that day. (Id. at 748.) Hardy was given prophylactic medication for sexually transmitted diseases, pregnancy prevention, and tetanus. (Id. at 744.) Hardy returned to Harlem Hospital the next day for HIV testing. (Id. at 462-67, 825-26, 947-50.)
When seen for follow-up and her Prolixin injection on April 23, 2013, Hardy discussed her recent beating and rape and emergency room treatment with Dr. Fluyau. (Id. at 856-59.) Her GAF was 55. (Id. at 859.) At her next counseling appointment, on April 30, she did not avoid talking about her recent rape. (Id. at 853.) Hardy stated that she had received counseling from her residence and felt empowered to protect herself. (Id.) When asked about her mood, she said, "I am great now." (Id.) She stated that she enjoyed spending time with her daughter. (Id.) She did not have nightmares or flashbacks and denied feeling depressed or anxious. (Id.) Dr. Fluyau noted that Hardy was mentally stable and assessed a GAF of 55. (Id. at 854.) During her visit on May 21, her GAF was assessed as 45. (Id. at 848-51.) On June 21, her GAF was 60. (Id. at 844-47.)
When seen for follow-up and her injection on July 19, 2013, Hardy stated that she was doing fine and was happy since she had started dating a new boyfriend. (Id. at 927-30.) Hardy stated that the Prolixin made her feel "stiff." (Id.) Her GAF was rated as 50. (Id. at 930.)
iv. Robert Lancer, Psy.D., Consultative Psychiatric Examiner
Robert Lancer, Psy.D., conducted a consultative psychiatric evaluation on April 16, 2012. (Id. at 266-69.) Hardy reported that she lived with her mother and that she took the train to the evaluation. (Id. at 266.) Hardy reported her October 2011 hospitalization and that she saw a psychiatrist every two weeks as well as a psychologist. (Id.) Hardy denied depression, suicidal ideation, anxiety, and panic attacks. (Id.) Hardy reported that she could dress, bathe, and groom herself. (Id. at 268.) She cooked and prepared food, did general cleaning, and did laundry. (Id.) She shopped, managed money, and took public transportation. (Id.) Hardy had friends. (Id.) She spent her day watching television, listening to the radio, and reading. (Id.)
Upon mental status evaluation, Hardy was cooperative and her manner of relating, social skills, and overall presentation was adequate. (Id. at 267.) She was well groomed. (Id.) Her gait, posture, and motor behavior were all normal; her eye contact was appropriate. (Id.) Hardy's speech was fluent, the quality of her voice clear and expressive and receptive language was adequate. (Id.) Her thought processes were coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia. (Id.) Hardy's affect was of full range and her mood was neutral. (Id.) Her attention and concentration were intact as were her recent and remote memory skills. (Id.) Cognitive functioning was average. (Id.) Insight and judgment were fair. (Id. at 267-68.)
Dr. Lancer diagnosed depressive disorder not otherwise specified, and psychotic disorder not otherwise specified. (Id. at 268.) He opined that Hardy was able to follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, learn new tasks, perform complex tasks independently, make appropriate decisions, relate adequately with others, and appropriately deal with stress. (Id.)
v. Dr. M. Apacible, M.D., Consultative Psychiatric Examiner
On April 26, 2012, Dr. M. Apacible, M.D., a consultative psychiatric examiner, reviewed the medical evidence of record and completed a psychiatric review technique form. (Id. at 270-83.) Dr. Apacible opined that Hardy's mental disorders did not meet the criteria of §§ 12.03 (schizophrenic, paranoid and other psychiatric disorder) or 12.04 (affective disorders) of the Listing of Impairments. (Id. at 270, 272-73.) With respect to the "B" criteria of the Listing, Dr. Apacible opined that Hardy had: no restrictions of activities of daily living; no difficulties in maintaining social functioning; mild restrictions in maintaining concentration, persistence, or pace; and one or two repeated episodes of deterioration. (Id. at 280.)
Dr. Apacible also assessed Hardy's mental residual functional capacity ("RFC"). (Id. at 298-301.) He opined that Hardy was not significantly limited in any aspects of: understanding and memory; sustained concentration and persistence; social interaction; or adaptation. (Id. at 298-300.) Dr. Apacible wrote that Hardy's psychiatric problems did not appear significant enough to interfere with her ability to function on a daily basis. (Id. at 300.)
vi. Dr. Lauren Korrol, D.O., New York City Supportive Housing
On November 5, 2012, Hardy was psychiatrically evaluated as part of her New York City Supportive Housing Referral Application. (Id. at 442-44.) At the time, Hardy was living in a shelter and was in an outpatient program for marijuana dependency and taking vocational training classes. (Id. at 441.) The examining psychiatrist, Dr. Lauren Korrol, noted Hardy's diagnosis of schizophrenia, paranoid type, and observed that Hardy was personable, had very good insight and judgment, including good insight into her illness, and that her psychotic symptoms were treated effectively with medications. (Id. at 442-43.) Dr. Korrol rated Hardy's GAF as 55 and recommended that Hardy continue treatment at Harlem Hospital's drug treatment program, which provided psychiatric treatment and medications as well as support groups that encouraged Hardy's vocational goals. (Id. at 443-44.) Dr. Korrol concluded that Hardy "can live independently with all of the services and supports from [m]ental health and [s]ubstance abuse day treatment programs and/or supportive housing services." (Id. at 444.)
A letter dated February 1, 2013 from the Institute for Community Living, Inc., indicates that Hardy was admitted to the State Street House Residence, a residential facility, on the same date. (Id. at 440.)
d. Non-Duplicative Medical Evidence Submitted to the Appeals Council
On January 22, 2013, Hardy was "conditionally approved for community care and Level II supportive housing for individuals with serious mental illness" for the period beginning January 22, 2013, and ending July 21, 2013. (Id. at 1045-46.) It was noted that from October 1, 2012 to January 18, 2013, Hardy was living at a women's shelter. (Id. at 1048.)
A WeCare Biopsychosocial summary was prepared in July 2013. (Id. at 1056-82.) Hardy reported that she had schizophrenia and was treated at Harlem Hospital and that she took Prolixin and Cogentin. (Id. at 1059-60, 1068-69.)
She had no problems caring for her personal needs, or with activities of daily living such as housekeeping chores, preparing meals, and shopping. (Id. at 1063-64, 1066.) She claimed that her "limitation" was that she had problems seeing and right ear hearing difficulty. (Id. at 1066.) She also reported her marijuana use and participation in a chemical dependency program at Harlem Hospital. (Id. at 1061-62, 1069.) While reporting difficulty with her hearing, Hardy also indicated that she did not have hearing problems. (Id. at 1071.) She also had blurry vision. (Id.) Hardy had no other complaints and a physical examination was unremarkable. (Id. at 1071-77.) The examining physician, Dr. Sundaraya Chandrasekaran, determined that Hardy had no exertional limitations and opined that Hardy would not be able to work due to her schizophrenic disorder. (Id. at 1078-83.)
A letter from the State Street Residence, dated November 11, 2013, indicates that Hardy was admitted to their residence facility on February 1, 2013. (Id. at 1140-41.) In a treating physician's wellness plan report dated November 20, 2013, Dr. Patrice Fouron, a psychiatrist, indicated that Hardy had schizophrenia. (Id. at 8-9.) The wellness plan report indicated that Hardy was oriented to person, place, and time. (Id.) She exhibited adequate hygiene and grooming. (Id.) Hardy's thought process and content were negative for paranoia and delusions. (Id.) She denied hallucinations and suicidal or homicidal ideation. (Id.) Hardy attended scheduled appointments and took prescribed medication. (Id.) She was deemed stable on medication (Prolixin injections and Cogentin). (Id.) The doctor opined that Hardy was unable to work for at least 12 months. (Id. at 9.) A WeCare wellness re-examination dated December 27, 2013, reiterated Dr. Fouron's assessment that Hardy was "unable to work." (Id. at 10-12.)
STANDARD OF REVIEW
I. Review of Denial of Social Security Benefits
The Court does not make an independent determination about whether a claimant is disabled when reviewing the final determination of the Commissioner. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Rather, the Court "may set aside the Commissioner's determination that a claimant is not disabled only if the [ALJ's] factual findings are not supported by 'substantial evidence' or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). "'[S]ubstantial evidence' is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
"In determining whether the agency's findings were supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Id. (internal quotation marks omitted). "If there is substantial evidence in the record to support the Commissioner's factual findings, they are conclusive and must be upheld." Stemmerman v. Colvin, No. 13-CV-241 (SLT), 2014 WL 4161964, at *6 (E.D.N.Y. Aug. 19, 2014) (citing 42 U.S.C. § 405(g)). "This deferential standard of review does not apply, however, to the ALJ's legal conclusions." Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 342 (E.D.N.Y. 2010). Rather, "[w]here an error of law has been made that might have affected the disposition of the case, [an ALJ's] failure to apply the correct legal standards is grounds for reversal." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (internal quotation marks omitted).
II. Eligibility for Disability Benefits
"To be eligible for disability insurance benefits, an applicant must be 'insured for disability insurance benefits," Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (quoting 42 U.S.C. §§ 423(a)(1)(A), (c)(1)), and must satisfy certain earnings requirements. Hartfiel v. Apfel, 192 F. Supp. 2d 41, 42 n.1 (W.D.N.Y. 2001). "Generally, an applicant must apply for benefits during the period in which she satisfies these earning requirements. If the applicant does not apply for benefits during this period, she may still obtain benefits if she has been under a continuous period of disability that began when she was eligible to receive benefits." Hartfiel, 192 F. Supp. 2d at 42 n.1.
To qualify for both disability insurance and Supplemental Security Income benefits, an individual must show that she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(2)(A). This requires a five-step analysis for determining whether a claimant is disabled:
[1] First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity.Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)); see also 20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proof for the first four steps of the analysis, but the burden shifts to the Commissioner for the fifth step. See Talavera, 697 F.3d at 151.
[2] If he is not, the Commissioner next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities.
[3] If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him per se disabled.
[4] Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work.
[5] Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform.
DISCUSSION
In support of her motion for judgment on the pleadings, Hardy argues that (1) the ALJ erred in his analysis by not considering schizophrenia and obesity as severe impairments; (2) the ALJ relied on a flawed RFC; (3) the ALJ cherry-picked the facts regarding Hardy's mental illness; and (4) the ALJ's credibility determination and assessment of Hardy's daily activities were unsupported by substantial evidence. (Pl.'s Mem. J. Pleadings at 1.)
I. The ALJ Properly Found that Obesity Was Not A Severe Impairment
Hardy argues that the ALJ erred in step two of the analysis by not considering obesity to be a severe impairment. Obesity is not in itself a disability, and an "ALJ's failure to explicitly address a claimant's obesity does not warrant remand." Guadalupe v. Barnhart, No. 04-CV-7644 (HB), 2005 WL 2033380, at *6 (S.D.N.Y. Aug. 24, 2005). Administrative law judges, nonetheless, must consider whether obesity in combination with other impairments prevents claimants from working. Dutcher v. Colvin, No. 1:12-CV-1662 (GLS), 2014 WL 295776, at *6 (N.D.N.Y. Jan. 27, 2014).
The claimant bears the initial burden of proving disability with respect to the first four steps and Hardy has failed to meet this burden. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). Hardy neither claimed obesity as a disabling impairment in her initial application nor furnished the ALJ with any medical evidence substantiating her claim that obesity limited her ability to work. Hardy's initial application for benefits did not claim obesity as a disabling impairment, listing only post-traumatic stress disorder and depression as disabling impairments. (Admin. R. at 75, 77.) Hardy testified that she could not carry "anything heavy" and that she was accompanied while grocery shopping by someone who helped carry her bags. (Id. at 63, 170.) She provided no medical evidence to substantiate this testimony. Further, the ALJ did address Hardy's obesity in step three, stating "it should be noted that the medical record does not contain any evidence of ongoing physical impairments[;] . . . while the claimant is obese, there is nothing in the record to support any limitations from this condition." (Id. at 33-34.) For these reasons, the ALJ did not err in his consideration of Hardy's obesity. See generally Britt v. Astrue, 486 F. App'x 161, 163 (2d Cir. 2012) (ALJ did not err in determining that obesity was not a severe impairment where the claimant "did not furnish the ALJ with any medical evidence showing how the[ ] alleged impairment[ ] limited his ability to work"); Mancuso v. Astrue, 361 F. App'x 176, 178 (2d Cir. 2010) (ALJ did not err in consideration of obesity where "there [was] no factual basis for thinking that 'any additional and cumulative effects of obesity' limited [the claimant's] ability to perform light work") (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00Q); see also Younes v. Colvin, No. 14-CV-170 (DNH), 2015 WL 1524417, at *4 (N.D.N.Y. Apr. 2, 2015) (failure to address claimant's obesity did not warrant remand where claimant did not claim obesity as a disabling impairment and failed to identify any limitations occasioned by her obesity in her briefing before the court).
II. Hardy's Schizophrenia Is Not Grounds for a Remand
Hardy argues that the ALJ erred at step two of the analysis by not considering schizophrenia to be a severe impairment. (Mem. J. Pleadings at 23-24.) Hardy failed to include schizophrenia in her initial application for benefits, listing only depression and PTSD as impairments. (Admin. R. at 75, 77.) In her briefing, Hardy relies on McClaney v. Astrue, No. 10-CV-5421 (JG), 2012 WL 3777413, at *5-6 (E.D.N.Y. Aug. 10, 2012), to support her argument that failing to specify schizophrenia as a severe impairment is grounds for remand. In McClaney, the case was remanded on the grounds that the ALJ had not specified which, if any, of McClaney's impairments were severe, and subsequently failed to properly consider the combination of impairments in making a finding of no disability. McClaney, 2012 WL 3777413, at *5-6. The district court in McClaney explained that, in the event that the ALJ found the complainant to be suffering from a combination of impairments, the "ALJ must address the combined impact of the impairments at every subsequent stage of the analysis." Id. at *6. Here, the ALJ found that Hardy suffered from the following severe impairments: "post-partum depression with subsequent psychosis and history of cannabis use." (Admin. R. at 28.) Unlike McClaney, the ALJ both specified which of Hardy's impairments could be considered severe and considered all of her impairments and diagnoses, including schizophrenia, in the subsequent steps of his analysis. (Id. at 30-36.)
Further, even if the ALJ could be said to have erred in not specifically discussing schizophrenia at step two, this error is not grounds for remand because the inclusion of schizophrenia would not have changed the ALJ's decision. Zabala v. Astrue, 595 F.3d 402, 409-10 (2d Cir. 2010) (finding remand unnecessary where the application of correct legal principles to the record could only lead to the same conclusion). As discussed in step three of the ALJ's decision, Hardy's schizophrenia did not constitute a severe impairment under § 12.03 of the Listings. (Admin. R. at 29.) To be severe under this Listing, Hardy would have to show that she meets both the A and B criteria together, or else the C criteria, as follows:
A. Medically documented persistence, either continuous or intermittent, of one or more of the following: (1) Delusions or hallucinations; (2) Catatonic or other grossly disorganized behavior; (3) Incoherence, loosening of associations, illogical thinking, or poverty of content of speech if associated with one of the following: (a) Blunt affect; (b) Flat affect; (c) Inappropriate affect; or (4) Emotional withdrawal and/or isolation.20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.03. The ALJ addressed only the "B" and "C" criteria in his analysis. However, Hardy's impairment does not meet any of the three criteria under § 12.03.
B. Resulting in a marked limitation in at least two of the following: (1) activities of daily living, (2) maintaining social functioning, (3) maintaining concentration, persistence or pace, or (4) repeated episodes of decompensation, each of extended duration.
C. Medically documented history of a chronic schizophrenic, paranoid, or other psychotic 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; (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; (3) a 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.
With respect to the "A" criteria, following her hospitalization, Hardy did not experience, either continuously or intermittently: delusions or hallucinations; catatonic or other generalized disorganized behavior; incoherence associated with blunt, flat, or inappropriate affect; or emotional withdrawal and/or isolation. At a mental status examination on December 2, 2011, shortly prior to discharge, Hardy was coherent: she spoke at a normal rate, volume, and rhythm and her speech was fluent and non-pressured. (Admin. R. at 424.) Her thought process was goal directed and logical; her thought content was normal. (Id.) She exhibited no perceptual disorders. (Id.) Subsequent examinations after her discharge did not reveal any abnormal affect or delusions. Dr. Lancer's consultative examination on April 16, 2012, revealed Hardy's affect to be of full range with a neutral mood. (Id. at 267.) Her thought processes were coherent, with no evidence of hallucinations, delusions, or paranoia. (Id.) An appropriate affect continued to be exhibited during the psychiatric examination at Harlem Hospital on June 21, 2012, where Hardy denied mood swings, flights of ideas, easy distractibility, and engaging in activities that may have painful consequences. (Id. at 999.) Treatment notes from Harlem Hospital continued to show appropriate affect, with no other significant findings of delusions, hallucinations, or catatonic behavior. (See generally id. at 840-926, 927-1040.) Thus, Hardy cannot be said to have presented "medically documented persistence" of the elements of the A criteria.
As the ALJ properly found, Hardy's medical history also does not indicate that the "B" criteria are met. To meet the "B" criteria, Hardy would have to show marked limitations in at least two of the following: activities of daily living; social functioning; concentration, persistence, or pace; and marked episodes of decompensation. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.03(b). The ALJ found that Hardy had no restrictions in daily living. (Id. at 29.) This finding is supported by Hardy's testimony and statements in which she related that she cooks, cleans, travels alone, shops, does laundry, reads, and watches television. (Id. at 60, 63-64, 167-69, 171, 268.) The ALJ's finding that Hardy had only moderate difficulties in social functioning is also supported by the record. Here, the ALJ cited Hardy's statement to Dr. Lancer that she had friends, and that once she had been medicated and treated in the hospital, she socialized with other patients during group activities. (Id. at 29, 170-71, 268, 361.) With regard to concentration, persistence, or pace, the ALJ found that Hardy had no more than mild difficulties. (Id. at 29.) This finding is also supported by the record. (See generally id. at 267, 461, 999.) As for episodes of decompensation, the ALJ correctly noted Hardy's Bellevue 2011 hospitalization as being the sole episode. (Id. at 29.) Accordingly, there is sufficient evidence to support the ALJ's finding that the "B" criteria were not met.
Lastly, the ALJ determined that "the evidence fails to establish the presence of the paragraph 'C' criteria." (Id. at 29.) Here, the first medical documentation of Hardy's psychotic disorder is from October 28, 2011, when she was admitted to Bellevue, see, e.g., id. at 231, 236-37, 303, 305, and the ALJ's decision is dated August 7, 2013, less than two years later. (Id. at 36.) This does not meet the Listing's requirement of "at least two years' duration" of a medically documented history of schizophrenia, paranoid or other psychotic disorder. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.03(C)(1). Hardy failed to establish that her mental impairments "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." See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.03(C)(2). On the contrary, Hardy consistently improved with treatment, even while experiencing multiple changes in living environment, and was repeatedly noted to be mentally stable. (Id. at 846, 854, 880, 964, 967, 991.) Hardy was even able to remain stable after she was raped in April of 2013, demonstrating remarkable resiliency: in the days following her assault, Hardy denied any suicidal thoughts or hallucinations, remained alert and oriented to her surroundings, and availed herself of counseling and the support of her family to cope with this traumatic experience. (Id. at 822-29.) Finally, Hardy failed to meet her burden of proving she was unable to function outside of a highly supportive living arrangement. In October 2012, a hospital social worker indicated that Hardy's activity level was "completely independent." (Id. at 1036.) Dr. Korrol, who psychiatrically evaluated Hardy for housing placement in January 2013, indicated that Hardy had the capacity to live independently while attending day treatment programs "and/or" supportive housing services. (Id. at 444.) Therefore, the "C" criteria are not met.
The ALJ, "after careful consideration of the entire record," came to the conclusion that Hardy's impairments, considered singly or in combination, did not satisfy the criteria of § 12.03. (Id. at 28-29.) This conclusion is based on substantial evidence and contains no errors of law. Hardy fails to show that the specific inclusion of the term "schizophrenia" at step two would alter this finding. Therefore, the ALJ's omission of schizophrenia at step two of the analysis is neither a fatal error nor grounds for remand.
III. The ALJ Properly Applied The Treating Physician Rule
The regulations governing the ALJ's deliberations state that:
Generally, [the ALJ] give[s] more weight to opinions from [a claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.20 C.F.R. § 404.1527(c)(2). The treating physician's opinion on the nature and severity of the patient's impairment is generally given controlling weight if it is supported by "medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record." Id.
Where the ALJ assigns less than controlling weight to the treating physician's opinion, he is required to provide "good reasons" for doing so. Id. ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."); see also Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993) (upholding these regulations as valid and binding on the courts). In deciding how much weight to give the opinion, the ALJ must consider "(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)).
Hardy argues that by failing to consider schizophrenia and obesity as severe impairments, the ALJ was "rejecting the treating physicians' diagnoses." (Pl.'s Mem. J. Pleadings at 26.) To reach his conclusions, the ALJ relied on extensive treatment notes from Hardy's hospitalization in Bellevue in 2011, as well as reports from her outpatient treatment at Harlem Hospital. (Admin. R. at 30-33.) The ALJ also considered opinions from two consultative examiners, Dr. Lancer and Dr. Apacible, but gave only partial weight to Dr. Lancer's findings and "less weight" to those of Dr. Apacible. (Id. at 34.) The ALJ afforded less weight to these opinions because the ALJ disagreed with the examiners' findings that Hardy could perform complex work or return to her previous work as a cashier, and stated that "the full psychiatric record does not support a conclusion that the claimant has no significant limitations." (Id.) In disagreeing with these consultative examiners' findings, the ALJ relied on the remainder of the record, namely, Hardy's treating physicians. There is no indication that the ALJ afforded Hardy's treating physicians anything less than controlling weight. As discussed in the previous section, the ALJ did not err in determining that schizophrenia and obesity were not severe, and did not reject these diagnoses, given that he proceeded to consider the effects of Hardy's diagnosed schizophrenia and obesity in the subsequent steps of his analysis.
IV. The ALJ Properly Considered the Evidence
Hardy argues that the ALJ failed to properly consider the evidence to determine Hardy's RFC and come to a finding of no disability. She states that the ALJ failed to consider her inability to function outside of a highly supportive living environment, failed to consider the side effects that she experienced from her medication, erred in not completing a function-by-function analysis, and erroneously "cherry-picked" the evidence to reach his determination. As previously stated, this Court does not make an independent determination of whether the claimant is disabled, and must defer to the Commissioner's factual findings unless clear factual errors are present. "If there is substantial evidence in the record to support the Commissioner's factual findings, they are conclusive and must be upheld." Stemmerman, 2014 WL 4161964, at *6. For the reasons discussed below, the Court finds that there is substantial evidence in the record to support the ALJ's findings and Hardy's arguments are without merit.
Hardy first contends that the ALJ did not consider Hardy's inability to function outside of a highly structured setting when making his RFC determination. (Pl.'s Mem. J. Pleadings at 28-29.) The ALJ evaluated Hardy's ability to function independently during step three of his analysis and found that Hardy's testimony and her statements to a psychologist consultative examiner supported his finding that "in activities of daily living, [Hardy] has no restriction." (Admin. R. at 29.) This finding is supported by evidence in the record that Hardy was able to independently perform activities of daily living and to follow up with treatment while residing in a variety of living arrangements, including with family members, in shelters and group homes, and in Tier II Supportive Housing. (See, e.g., id. at 60, 63-64, 167-69, 171, 268; see generally id. at 840-926, 927-1040.) Hardy's frequent relocations did not lead to any further episodes of decompensation after her initial hospitalization in 2011. Further, in October 2012, a hospital social worker described Hardy's activity level as "completely independent." (Id. at 1036.) Dr. Korrol, who evaluated Hardy for housing placement in January 2013, opined that Hardy was able to live independently while attending day treatment programs "and/or" use supportive housing services. (Id. at 444.) The ALJ's determination that there is no evidence that Hardy cannot function outside of a highly supportive living arrangement is supported by substantial evidence.
Hardy next asserts that "the ALJ failed to consider Hardy's need for agency supports or accommodations in crafting his RFC." (Pl.'s Mem. J. Pleadings at 28.) On the contrary, the ALJ repeatedly emphasized in his RFC evaluation that continued treatment, supportive housing and supervision of her medication intake had helped Hardy stabilize and improved her functioning capacity "to the point where she was in vocational training and preparing to look for jobs." (Admin. R. at 33.) The ALJ clearly considered Hardy's continued treatment history and needs in determining that Hardy should perform jobs involving simple, repetitive tasks requiring only occasional contact with people.
Plaintiff also argues that the ALJ committed a legal error when he found that Hardy had not demonstrated that she experienced medication side effects, and that this error resulted in an incorrect RFC determination. On several instances, Hardy reported having no side effects and feeling fine. (Id. at 803, 872-74, 876-77, 878-81, 882-84, 886-87, 904-05, 1002.) However, Hardy also at times reported stiffness and shakiness from her medications. (Id. at 459, 778, 807, 902-03, 995, 1000.) She was prescribed Cogentin to control these symptoms, but continued to intermittently complain of them. (Id. at 778, 807, 902-03, 928, 995, 1000.) In April 2013, her Cogentin dosage was reduced after she complained that her mouth was dry. (Id. at 860.) At her hearing, Hardy testified that her medication made her drowsy, and "sometimes" made her shake and have stiff arms. (Id. at 64.) In a function report dated March 12, 2012, Hardy wrote that she experienced these symptoms if she "take[s] too much medication." (Id. at 167.)
Even assuming that this evidence suggests that Hardy experienced medication side effects that were not being properly managed by her treatment plan, Hardy has failed to establish that her alleged medication side effects limited her ability to perform work-related activities. No physician opined that Hardy was functionally limited by medication side effects or any other physical limitation. "Although an ALJ has an obligation to examine, and if necessary, further develop the record with respect to a claimant's known diagnoses and limitations," this responsibility does not extend so far as to require the ALJ to proffer proof that a claimant is not disabled "where there is no diagnostic evidence in the record that such an impairment does exist." Semprie v. Astrue, 784 F. Supp. 2d 222, 226 (W.D.N.Y. 2011). The initial burden to demonstrate the existence of one or more disabling conditions remains with the claimant. See Burgess, 537 F.3d at 128; Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). When "there are no obvious gaps," and the record presents "a complete medical history," the ALJ is under no duty to seek additional information before rejecting a claim. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1999)). Here, the record was fully developed and included assessments from Hardy's treating sources as well as consultative sources. None of those assessments included details of how Hardy's alleged side effects would place physical restrictions or limitations on Hardy's ability to perform work-related activities. Accordingly, the ALJ did not err in finding that Hardy had no exertional limitations and could perform the full range of light work.
Hardy additionally contends that the ALJ erred in not completing a function-by-function assessment when determining her RFC. (Pl.'s Mem. J. Pleadings at 30.) This argument is without merit, as an ALJ need not expressly discuss a claimant's capacity to perform each work-related function before determining the claimant's exertional RFC. Cichoki v. Astrue, 729 F.3d 172, 177-78 (2d Cir. 2013). The Cichoki court emphasized that the relevant inquiry is whether the ALJ applied the correct legal standards and whether the ALJ's decision is supported by substantial evidence. Id. at 177. Here, the ALJ addressed Hardy's relevant limitations and the ALJ's RFC finding is supported by substantial evidence.
Lastly, Hardy contends that the ALJ "cherry-picked" evidence to find that Hardy's chronic mental illness was a "one-time decompensation" and failed to fully develop the record regarding the longevity of Hardy's condition. (Pl.'s Mem. J. Pleadings at 32-33.) The ALJ did not characterize Hardy's mental illness as simply a "one-time decompensation," but rather found that it was a severe impairment that would "result in more than minimal limitations in the claimant's ability to engage in basic work-related activities." (Admin. R. at 28.) While it is true that "[t]he very nature of [mental illness] is that the afflicted experience fluctuations in their symptoms," (Pl.'s Mem. J. Pleadings at 32), the ALJ's finding that Hardy experienced a single "episode of decompensation of extended duration" during the period of alleged disability is supported by substantial evidence. (Admin. R. at 29.) Although she received continuous treatment during the relevant period, she was hospitalized only once and otherwise responded well to treatment. (Id. at 442-43, 803, 853-54, 866-68, 879, 882, 903-05, 927-30, 1018-23.) Additionally, as discussed above, where the record presents "a complete medical history," the ALJ is under no duty to seek additional information before rejecting a claim. Rosa, 168 F.3d at 79 n.5.
Thus, for the reasons discussed above, the ALJ applied the correct legal standards in determining Hardy's RFC, and the RFC is based on substantial evidence.
V. The ALJ's Credibility Finding is based on Substantial Evidence
Hardy also contends that the ALJ failed to consider all of the evidence in making his credibility determination and "engaged in cherry-picking only those activities and statements supporting a denial of benefits, while ignoring evidence corroborating Hardy's complaints." (Pl.'s Mem. J. Pleadings at 33.)
A credibility finding by an ALJ is entitled to deference by a reviewing court "because [the ALJ] heard plaintiff's testimony and observed [plaintiff's] demeanor." Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995). The ALJ must analyze the credibility of a claimant as to her symptoms through a two-step test. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The ALJ must first decide "whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged." Id. (citing 20 C.F.R. § 404.1529(b)). Next, if the ALJ determines the claimant does have such an impairment, he must consider "'the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record." Genier, 606 F.3d at 49 (quoting 20 C.F.R. § 404.1529(a) (alternations omitted)). When evaluating the "intensity, persistence and limiting effects of symptoms, the Commissioner's regulations require consideration of seven specific, objective factors . . . that naturally support or impugn subjective testimony of disabling pain and other symptoms." Dillingham v. Colvin, No. 14-CV-105 (ESH), 2015 WL 1013812, at *5 (N.D.N.Y. Mar. 6, 2015). These seven objective factors are:
(1) [the] claimant's daily activities; (2) [the] location, duration[,] frequency, and intensity of [the] claimant's pain or other symptoms; (3) precipitating and aggravating factors; (4) [the] type, dosage, effectiveness, and side effects of any medication . . . taken to alleviate [the claimant's] pain or other symptoms; (5) treatment, other than medication, [the] claimant receives or has received for relief of her pain or other symptoms; (6) measures [the] claimant uses or has used to relieve pain or other symptoms; and (7) other factors concerning [the] claimant's functional limitations and restrictions due to pain or other symptoms.Id. at *5 n.22 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). "While it is not sufficient for the ALJ to make a single, conclusory statement that the claimant is not credible or simply recite the relevant factors, remand is not required where the evidence of record permits [the Court] to glean the rationale of the ALJ's [credibility] decision." Cichocki, 534 Fed. App'x. at 76 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)) (internal quotation marks omitted). In such a case, "the ALJ's failure to discuss those factors not relevant to [her] credibility determination does not require remand." Id.
Here, the ALJ followed the two-step process in considering Hardy's symptoms: (1) determining if there was an underlying medically determinable impairment that could reasonably be expected to produce Hardy's symptoms; and (2) evaluating the intensity, persistence, and limiting effects to determine the extent of functional limitation. (Admin. R. at 34.) Ultimately, the ALJ concluded that Hardy's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely credible in light of the medical record. (Id.)
Considering the ALJ's determination as a whole, the evidence in the record, not just that supporting a denial of benefits, supports the ALJ's credibility determination. The ALJ did not ignore Hardy's continuing problems with interacting with people, (Pl.'s Mem. J. Pleadings at 33), but instead included this limitation in his RFC determination, finding that Hardy is limited to jobs requiring only limited contact with others (Admin. R. at 34).
In addition, the ALJ's finding that Hardy's "state[ment] that she is still psychiatrically symptomatic . . . is contradicted by recent psychiatric consultations and mental status examinations" is supported by substantial evidence. (See Admin. R. at 442-43, 803, 853-54, 866-68, 879, 882, 903-05, 927-30, 1018-23.) Following her two-month hospitalization in 2011, Hardy's condition improved with medication and psychiatric treatment. (Id.) The ALJ's credibility finding regarding Hardy's statements about her exertional impairments is similarly supported by the record as there is no medical evidence of exertional impairments.
Finally, although the ALJ did not specifically reference Ms. Faulcon's letter in his decision, this is not grounds for remand. "An ALJ does not have to state on the record every reason justifying a decision. . . . An ALJ's failure to cite specific evidence does not indicate that such evidence was not considered." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and citation omitted). "[W]here 'the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability." Petrie v. Astrue, 412 F. App'x 401, 407 (2d Cir. 2011) (quoting Mongeur, 722 F.2d at 1040).
Here, the ALJ relied on the correct legal standard to determine Hardy's credibility and his credibility determination was based on substantial evidence.
CONCLUSION
For the reasons stated herein, the Commissioner's motion for judgment on the pleadings is GRANTED and Hardy's cross-motion is DENIED. The Clerk of Court is respectfully directed to enter judgment accordingly and close this case.
SO ORDERED. Dated: Brooklyn, New York
September 21, 2016
/s/_________
ROSLYNN R. MAUSKOPF
United States District Judge