Opinion
6:21-cv-01316-BKS-TWD
01-30-2023
JUSTIN L., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
JUSTIN L., PLAINTIFF, PRO SE SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL JASON P. PECK, ESQ. Counsel for Defendant
JUSTIN L., PLAINTIFF, PRO SE
SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL
JASON P. PECK, ESQ.
Counsel for Defendant
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Justin L. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (“Defendant” or “Commissioner”) denying his application for disability insurance benefits (“DIB”). (Dkt. No. 1.) Plaintiff did not consent to the jurisdiction of a Magistrate Judge. (Dkt. No. 24.) The matter was referred to the undersigned for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Both parties filed briefs, which the Court treats as crossmotions for judgment on the pleadings under Federal Rule of Civil Procedure Rule 12(c) in accordance with General Order 18. (Dkt. Nos. 30, 31.) With permission from the Court, Plaintiff filed a reply brief. (Dkt. No. 35.) For the reasons discussed below, the Court recommends that the Commissioner's decision denying Plaintiff Social Security benefits be affirmed, and that Plaintiff's complaint be dismissed.
I. BACKGROUND
Plaintiff was born in 1975 and is a high school graduate. (Administrative Transcript at 32, 69, 248.) He had previously worked at the University of California, San Francisco (“UCSF”), where he assembled enrollment contracts for doctors and nurses to enroll in Medicare and Medi-Cal. (T. 56.)
The Administrative Transcript is found at Dkt. No. 11. Citations to the Administrative Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather than the numbers assigned by the Court's CM/ECF electronic filing system. Citations not made to the Administrative Transcript will use the page numbers assigned by the Court's CM/ECF electronic filing system.
On May 19, 2016, Plaintiff filed an application for DIB. (T. 248.) His alleged disability onset date is May 2, 2016. Id. On July 21, 2016, his application was denied, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). (T. 115-19; 132-39.) On August 23, 2018, Plaintiff, represented by counsel, first appeared before ALJ Mary P. Parnow, who found Plaintiff not disabled under the Social Security Act. (T. 30-47; 97-104.)
Plaintiff appealed and on February 14, 2020, the Social Security Administration Appeals Council remanded the case to the ALJ to further consider Plaintiff's anxiety disorder; to provide additional consideration of Plaintiff's compliance with his medical regimen; and to further consider Dr. Kollath's opinion. (T. 111-13.) On September 1, 2020, Plaintiff, represented by counsel, again appeared before ALJ Parnow. (T. 51-68.) Both the Plaintiff and a Vocational Expert (“VE”) testified. Id. On September 21, 2020, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 12-23.) On April 5, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 1-6.) This action followed. (Dkt. No. 1.)
II. LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner's finding must be sustained “even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, a court must afford the Commissioner's determination considerable deference, and may not substitute “its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Determination of Disability
The requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3) and Title II, 42 U.S.C. § 423(d), are identical, so “decisions under these sections are cited interchangeably.” Donato v. Sec'y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation omitted).
The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under the five-step sequential evaluation process, the ALJ determines:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
C. Standards for ALJ Evaluation of Opinion Evidence
In making a disability determination, the ALJ weighs all the evidence of record and carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL 374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues are not “medical issues,” but are “administrative findings.” The responsibility for determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL 374183, at *2. These issues include whether the plaintiff's impairments meet or equal a listed impairment; the plaintiff's residual functional capacity (“RFC”); how the vocational factors apply; and whether the plaintiff is “disabled” under the Act. Id.
In evaluating medical opinions on issues reserved to the Commissioner, the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The ALJ must clearly state the legal rules that he applies and the weight that he accords the evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2 (S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).
In terms of weighing opinion evidence, the Second Circuit has long recognized the treating physician rule set out in 20 C.F.R. § 404.1527(c) [ . “Thus, the opinion of a claimant's treating physician as to the nature and severity of the impairment is given controlling weight so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).
For claims filed on or after March 27, 2017, a new set of regulations apply. These new regulations do “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R. § 416.920c(a). But since Plaintiff filed his claim on May 19, 2016, the treating physician rule applies. See Claudio v. Berryhill, No. 3:17-CV-1228 (MPS), 2018 WL 3455409 at *3 n.2 (D. Conn. July 18, 2018) (“Since [the plaintiff] filed her claim before March 27, 2017, I apply the treating physician rule under the earlier regulations.”).
However, there are situations where the treating physician's opinion is not entitled to controlling weight, in which case “the ALJ must explicitly consider, inter alia: (1) the frequen[c]y, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). “Where an ALJ's reasoning and adherence to the Regulations is clear, she is not required to explicitly go through each and every factor of the Regulation.” Blinkovitch v. Comm'r of Soc. Sec., No. 3:15-CV-1196 (GTS/WBC), 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017) (citing Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013)), adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017). After considering these factors, “the ALJ must ‘comprehensively set forth [his] reasons for the weight assigned to a treating physician's opinion.'” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129) (alteration in original). “The failure to provide ‘good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.” Id. (quoting Burgess, 537 F.3d at 129-30).
The factors for considering opinions from non-treating medical sources are the same as those for assessing treating sources, with the consideration of whether the source examined the claimant replacing the consideration of the treatment relationship between the source and the claimant. See 20 C.F.R. § 404.1527(c)(1)-(6). Additionally, when weighing opinions from sources who are not considered “medically acceptable” sources under the regulations, the ALJ must consider the same factors as used for evaluating opinions from medically acceptable sources. Saxon v. Astrue, 781 F.Supp.2d 92, 104 (N.D.N.Y. 2011) (citing Canales v. Comm'r of Soc. Sec., 698 F.Supp.2d 335, 344 (E.D.N.Y. 2010)); SSR 06-03p, 2006 WL 2329939.
III. PLAINTIFF'S MEDICAL HISTORY
On August 13, 2014, Dr. Zachary Torry, MD, performed a psychological intake on Plaintiff. (T. 459.) Dr. Torry noted Plaintiff presented with anxiety in the context of his job stress. Id. Plaintiff told Dr. Torry that he felt compelled to leave his job because of his strained relationship with his new boss. He said he felt angry, panicked, overwhelmed, and like he could not catch his breath. Id. Dr. Torry diagnosed Plaintiff with Major Depressive Disorder and attention-deficit/hyperactivity disorder (“ADHD”). Id.
On March 3, 2016, Shivani Beri, DO, a psychiatrist, examined Plaintiff whose chief complaint was ADHD. (T. 391.) Plaintiff told Dr. Beri he was worried his ADHD symptoms would affect his performance at work. Id. Plaintiff reported that without medication he makes careless mistakes, has low motivation, is easily distracted, and has a hard time sitting and completing tasks. Id. However, when he is on medication, he noted that he was able to sit and work for longer periods of time without getting distracted and he was able to work through the day without constantly looking at the time. Id. Plaintiff denied history of anxiety or depressive episodes. Id. He reported no symptoms of Post-traumatic Stress Disorder, Obsessive Compulsive Disorder, General Anxiety Disorder, social anxiety, panic, or anhedonia. Id. Plaintiff reported his mood was “good,” he was sleeping well at night, he was able to enjoy things, his energy level was normal, and his appetite was normal. Id. Dr. Beri diagnosed Plaintiff with ADHD and restarted Plaintiff on Dexedrine. (T. 392-93.)
Plaintiff returned to Dr. Beri on April 4, 2016, for a follow-up. (T. 394.) Plaintiff reported he was doing well overall and noticed an improvement since restarting Dexedrine. Id. He was able to focus much better at work, was able to sit at his desk for longer periods of time rather than getting very distracted or having to get up and walk around, and felt more productive throughout the day. Id. He further reported that his anxiety levels had been lower, he felt calmer, and his mood was “good.” Id. He denied feeling depressed or hopeless and reported his appetite was normal, he was sleeping well, and he had no jittery feelings or increased anxiety. Id. Dr. Beri noted Plaintiff was cooperative, had good eye contact, and presented with a congruent mood. (T. 395.) Dr. Beri further noted Plaintiff's insight/judgment, recent memory, and attention were intact and his thought process and content were goal directed, future oriented, organized, logical, and linear. Id.
On June 8, 2016, Plaintiff visited Joseph L. Pace, MD, for joint paint. (T. 398.) Dr. Pace diagnosed Plaintiff with psoriasis, ADHD, knee pain, and hand pain. Id. Dr. Pace prescribed cream for Plaintiff's psoriasis and an x-ray for Plaintiff's hand. Id. Dr. Pace noted Plaintiff had recently lost medical insurance and could not return to his psychiatrist who had been prescribing him medication for his ADHD. Id.
On June 17, 2016, Plaintiff presented to Alicia Carrasco, MD, as a new patient. (T. 440.) Dr. Carrasco diagnosed Plaintiff with ADHD, anxiety, depression, elevated blood pressure, psoriasis, and obesity. Id. She prescribed Plaintiff sertraline for ADHD and clonazepam for anxiety. (T. 441.)
On June 24, 2016, Plaintiff went to Licensed Clinical Social Worker (“LCSW”) Crispin Tombo at Maxine Hall Health Center for anxiety and depression. (T. 437.) Plaintiff reported symptoms of anxiety and depression including depressed mood, anhedonia, low energy, poor appetite, trouble concentrating, low self-esteem, restlessness, and poor sleep quality. (T. 438.) He reported he was unemployed due to a change in supervisor, difficulty focusing, and a limited contract, and he had since applied for DIB. Id. Plaintiff told LCSW Tombo that he had taken Dexedrine from 2005 to 2013. Id. Plaintiff took Ritalin and Adderall for a brief period but discontinued them as they were not as effective as Dexedrine. Id. Plaintiff had been prescribed Prozac 3 years ago but stopped taking it after 3 months due to its possible interference with the Dexedrine. Id. Plaintiff had also been prescribed Zoloft (sertraline) in the past but reported being “being kind of scared of Zoloft and [its] possible side-effects.” Id. When LCSW Tombo asked Plaintiff whether he was interested in seeing a psychiatrist, Plaintiff declined because he “[did not] want more pills.” Id. LCSW Tombo reported Plaintiff was alert, oriented, amiable, and cooperative with a tense affect and anxious mood. Id.
On July 5, 2016, Plaintiff visited Dr. Carrasco for a routine follow-up where he was diagnosed with ADHD, hypertriglyceridemia, anxiety, depression, psoriasis, obesity, hypothyroidism, and hypertension. (T. 431.) Dr. Carrasco prescribed Plaintiff a cream for his psoriasis and amlodipine for his hypertension. (T. 432.) Dr. Carrasco increased Plaintiff's sertraline dose to treat his anxiety, depression, and ADHD as Plaintiff refused further medication. (T. 431-32.) Plaintiff reported he was crying more and felt more nervous and confused than usual during the first week of taking sertraline. (T. 433.) He also reported the clonazepam made him fall asleep at 5PM and he was still “thinking a lot about everything.” Id.
On July 8, 2016, Plaintiff returned to LCSW Tombo complaining of symptoms of anxiety and depression. (T. 429.) LCSW Tombo went over breathing exercises to help Plaintiff with his anxiety. (T. 430.) Plaintiff said the exercises helped his anxiety temporarily. Id. LCSW Tombo discussed pleasurable activities Plaintiff could do to help with his symptoms. Id. LCSW Tombo again reported Plaintiff was alert, oriented, amiable, and cooperative with a tense affect and anxious mood. Id.
On July 25, 2016, Plaintiff presented to LCSW Tombo with anxiety which was exacerbated by concerns about the denial of his social security application, no source of income, owing back taxes to the IRS, and not being able to pay rent for the month. (T. 427.) LCSW Tombo reported Plaintiff was alert, oriented, amiable, and cooperative with a tense and, at times, tearful affect and anxious mood. Id.
On September 8, 2016, Plaintiff presented to Dr. Carrasco for a follow-up regarding thyroid lab results and refills on prescriptions. (T. 422.) Dr. Carrasco again diagnosed Plaintiff with ADHD, anxiety, depression, psoriasis, obesity, hypothyroidism, and hypertension. Id. Plaintiff reported sertraline made him “unnaturally angry” and he stopped taking it when he ran out. (T. 424.) He also reported that clonazepam helped his anxiety, but he preferred to stay off medication for his ADHD because he did not like the sensation. Id. Plaintiff was prescribed buspirone, gabapentin, and clonazepam for his anxiety. (T. 423.) Dr. Carrasco noted she thought it would be a “good for [Plaintiff]” to see a psychiatrist. Id. Plaintiff reported occasional tightness in his chest but no other physical issues. Id.
On the same day, Plaintiff saw LCSW Tombo, who assessed Plaintiff with major depressive disorder, single episode with anxious distress. (T. 419.) Plaintiff reported his social security application was being appealed and if it was not approved, he would have to return to New York to stay with his uncle. (T. 420.) He also reported he cashed out his retirement and invited his wife's friend to move in to meet his financial obligations. Id. Plaintiff floated being open to the idea of part-time work but had concerns no one would hire him given his work history or he could not find work that was a good fit for him. Id. LCSW Tombo reported Plaintiff was alert, oriented, amiable, and cooperative with a tense and, at times, tearful affect and anxious mood. Id.
On October 30, 2016, Anna M. Franco, Psy.D., a state agency psychologist, determined from her review of the record Plaintiff had no restriction of activities of daily living; no difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of decompensation, each of extended duration. (T. 89.) She further found Plaintiff's impairments were not severe and Plaintiff could perform his past relevant work. (T. 90, 91.)
On June 29, 2018, Ute Kollath, Ph.D., performed a consultative mental status evaluation on Plaintiff. (T. 450.) Plaintiff's chief complaints were ADHD, persistent depressive disorder, anxiety disorder, panic disorder, and hypertension. Id. Plaintiff described his past work at UCSF where he received special accommodations to address issues related to his ADHD and anxiety. Id. Plaintiff stated he could not “work and sit and concentrate for a long time” and he was let go from most jobs due to his ADHD symptoms. Id. At UCSF, Plaintiff stated he “made a lot of trouble at work,” asked for additional accommodations, and filed frequent complaints. Id. He further stated he did not show up for work for a while, he only worked at night, and he did not talk to his manager. Id. Plaintiff claimed he did not get along with his manager and received severance pay to leave. Id. Plaintiff reported he lived with his ex-wife and son in Thailand and had to borrow money to buy the plane ticket to undergo the evaluation. Id. He declared he was unable to work because he had been fired from every job and he could not sit still. Id. Plaintiff further declared he is prone to mistakes due to his poor concentration and attempts to focus triggers his anxiety. Id. While Plaintiff claimed to be polite to everybody, he stated he had no friends. Id.
Dr. Kollath noted Plaintiff's economic hardship and diagnosed him with moderate ADHD, unspecified anxiety disorder, and unspecified depressive disorder. (T. 453.) Plaintiff presented with an anxious mood and affect. (T. 452.) Plaintiff's cognitive functioning was intact; his emotional functioning was impaired; and he appeared guarded. Id. Dr. Kollath observed Plaintiff was adequately groomed with short hair, cooperative, alert, fully oriented with adequate attention, concentration, fund of knowledge, and memory. Id. Dr. Kollath opined Plaintiff was either unimpaired, mildly impaired, or moderately impaired in all work-related abilities except one. (T. 453.) Plaintiff was markedly impaired regarding work stress per Dr. Kollath. Id.
IV. THE ALJ'S DECISION
After reviewing the procedural history of Plaintiff's applications and stating the applicable law, the ALJ found he met the insured status requirements through December 31, 2019, and had not engaged in substantial gainful activity since May 2, 2016, the alleged onset date. (T. 14.) At step two, the ALJ determined Plaintiff has the following severe impairments: anxiety disorder, depressive disorder, and ADHD. Id.
At step three, the ALJ found Plaintiff's impairments either singly or in combination did not meet or medically equal the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). (T. 15.) Specifically, the ALJ considered Listings 12.04 (depressive, bipolar, and related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). Id.
Next, the ALJ determined Plaintiff has the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations: precluded from complex and detailed tasks but remains capable of simple, repetitive tasks in a routine work environment, capable of maintaining concentration, persistence or pace for simple repetitive tasks in two-hour increments which presupposes that the morning, lunch, and afternoon breaks would form the natural barriers for those increments, able to respond appropriately to coworkers and supervisors but should have no more than occasional interaction with the general public. (T. 16.)
At steps four and five of the sequential evaluation, based upon the RFC, the Medical Vocational Guidelines, and the testimony of the VE, the ALJ determined Plaintiff was unable to perform any past relevant work; however, there were jobs that existed in significant numbers in the national economy Plaintiff could perform. (T. 21-23.)
Thus, the ALJ determined Plaintiff has not been under a disability, as defined in the Social Security Act, from May 12, 2016, through the date of the decision. (T. 23.)
V. DISCUSSION
Plaintiff contends the ALJ erred in the RFC and step five determinations. (Dkt. No. 30 at 1.) The Commissioner responds there is substantial evidence to support the RFC and Plaintiff demonstrates no harmful error stemming from the vocational expert and medical evidence allegations. (Dkt. No. 31 at 6-13, 14-17.)
“In a case such as this, where Plaintiff is proceeding pro se, General Order No. 18's promise of a consideration of the merits complies with the special solicitude that the Second Circuit mandates for pro se litigants.” Hubbard v. Comm'r of Soc. Sec., No. 6:14-CV-1 401 (GTS/WBC), 2016 WL 551783, at *4 (N.D.N.Y. Jan. 14, 2016). As such, this Court will “examine[ ] the record to determine whether the ALJ applied the correct legal standards and reached a decision based on substantial evidence.” Id. (citing Gregorka v. Comm'r of Soc. Sec., No. 6:13-CV-1408 (GTS/TWD), 2015 WL 3915959, at *4 (N.D.N.Y. June 25, 2015)).
After carefully considering the matter and for the reasons stated in Defendant's memorandum of law (Dkt. No. 31 at 6-17), the Court finds the ALJ did not err in determining the RFC and in the step five analysis. The Court also finds substantial evidence supports the ALJ's ultimate decision that Plaintiff was not under a disability within the meaning of the SSA. 20 C.F.R. §§ 404.1520(g), 416.920(g).
A. Substantial Evidence Supports the ALJ's RFC Determination
1. Legal Standards
A claimant's RFC is the most he or she can do despite his or her limitations. 20 C.F.R. § 404.1545(a)(1). “Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A regular and continuing basis means eight hours a day, for five days a week, or an equivalent work schedule.” Pardee v. Astrue, 631 F.Supp.2d 200, 210 (N.D.N.Y. 2009) (citing Melville v. Apfel, 198 F.3d 45 52 (2d Cir. 1999)). “In making a residual functional capacity determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations which could interfere with work activities on a regular and continuing basis.” Id. (citing 20 C.F.R. § 404.1545(a)). “Ultimately, ‘[a]ny impairment-related limitations created by an individual's response to demands of work . . . must be reflected in the RFC assessment.'” Hendrickson v. Astrue, No. 11-CV-0927 (ESH), 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting SSR 85-15, 1985 WL 56857, at *8). The RFC determination “must be set forth with sufficient specificity to enable [the Court] to decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
The regulations mandate procedures an ALJ must follow in determining the appropriate weight to assign a treating physician's opinion. The Second Circuit has articulated the procedure as a two-part analysis. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). First, the ALJ must decide whether the opinion is entitled to controlling weight. Id. “[T]he opinion of a claimant's treating physician as to the nature and severity of [an] impairment is given ‘controlling weight' so long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.'” Burgess, 537 F.3d at 128 (quoting 20 C.F.R. § 404.1527(c)(2)); see, e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (holding “the opinion of the treating physician is not afforded controlling weight where, as here, the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts”).
Second, if the ALJ decides the opinion is not entitled to controlling weight, he must determine how much weight, if any, to give it. Estrella, 925 F.3d at 95. In doing so, the ALJ must “explicitly consider” the following, nonexclusive “Burgess factors”: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per curiam) (citing Burgess, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(c)(2)). In Estrella, the court emphasizes the importance of a treating source's opinion in cases concerning mental impairments, as “cycles of improvement and debilitating symptoms [of mental illness] are a common occurrence.” Estrella, 925 F.3d at 97 (quoting Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014)).
At both steps, the ALJ must give “good reasons” for the weight given to a treating physician's opinion. Id. at 96 (quoting Halloran, 362 F.3d at 32). An ALJ's failure to “explicitly” apply the Burgess factors when assigning weight to a treating physician's opinion is a procedural error. Id. (citing Selian, 708 F.3d at 419-20). However, if “a searching review of the record” assures the court “that the substance of the treating physician rule was not traversed,” the court will nonetheless affirm. See id. (citing Halloran, 362 F.3d at 32).
In evaluating a plaintiff's RFC for work in the national economy, the ALJ must take into account the plaintiff's reports of pain and other symptoms. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “The ALJ must ‘carefully consider' all the evidence presented by claimants regarding their symptoms, which fall into seven relevant factors including ‘daily activities' and the ‘location, duration, frequency, and intensity of [their] pain or other symptoms.'” Del Carmen Fernandez v. Berryhill, No. 18-CV-326, 2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935 (Mar. 16, 2016)).
In 2016 the Commissioner eliminated the use of term “credibility” from the “sub-regulatory policy” because the regulations themselves do not use that term. SSR 16-3p, 81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations. The evaluation of symptoms involves a two-step process. First, the ALJ must determine, based upon the objective medical evidence, whether the medical impairments “could reasonably be expected to produce the pain or other symptoms alleged ....” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).
The standard for evaluating subjective symptoms has not changed in the regulations. Rather, the term “credibility” is no longer used, and SSR 16-3p makes it clear that the evaluation of the claimant's symptoms is not “an evaluation of the claimant's character.” SSR 16-3p, 81 FR at 14167. The Court will remain consistent with the terms as used by the Commissioner.
If so, at the second step, the ALJ must consider “‘the extent to which [the claimant's] alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the [objective medical evidence] and other evidence to decide how [the claimant's] symptoms affect [her] ability to work.'” Barry v. Colvin, 606 Fed.Appx. 621, 623 (2d Cir. 2015) (citing inter alia 20 C.F.R. § 404.1529(a); Genier, 606 F.3d at 49) (alterations in original).
If the objective medical evidence does not substantiate the claimant's symptoms, the ALJ must consider the other evidence. Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013) (citing superseded SSR 96-7p). The ALJ must assess the claimant's subjective complaints by considering the record in light of the following symptom-related factors: (1) claimant's daily activities; (2) location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning claimant's functional limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
2. Application
Plaintiff argues, albeit indirectly, the RFC determination is not supported by substantial evidence because the ALJ did not consider Plaintiff's history of depression, his adverse reaction to sertraline, the onset of hypertension, and his negative experience with his supervisor at his last job. (Dkt. No. 30 at 1, 2, 6.)
As stated above, the ALJ determined Plaintiff has the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations: precluded from complex and detailed tasks but remains capable of simple, repetitive tasks in a routine work environment, capable of maintaining concentration, persistence or pace for simple repetitive tasks in two hour increments which presupposes that the morning, lunch, and afternoon breaks would form the natural barriers for those increments, able to respond appropriately to coworkers and supervisors but should have no more than occasional interaction with the general public. (T. 16.)
In evaluating potential limitations imposed by Plaintiff's mental impairments, the ALJ considered the opinions of psychiatric consultative examiner Dr. Kollath and state agency psychologist Dr. Franco. (T. 16-21.) Although no mental health treating source opinion was available, the ALJ reviewed Plaintiff's treatment notes and Plaintiff's testimony regarding his symptoms. Id.
During the May 2018 consultative examination with Dr. Kollath, Plaintiff's chief complaints were ADHD, persistent depressive disorder, anxiety disorder, panic disorder, and hypertension. (T. 450.) He was casually dressed and adequately groomed. (T. 452.) Plaintiff had agitated leg and foot movement, poor eye contact, and pressured speech, but was alert and fully oriented. Id. His attention, concentration, fund of knowledge, and memory were all adequate. Id. His judgment and insight were fair and his mood and affect were anxious. Id. Plaintiff did not have suicidal ideations, his thought process was intact, and he had unremarkable thought content. Id. Plaintiff's cognitive functioning was intact, but his emotional functioning was impaired. Id. Plaintiff denied physical limitations due to medical problems and was independent for basic activities of daily living. (T. 451.) Moreover, he reported that he did not need help preparing meals; he was able to drive and make change at the store; and he typically spent his day taking care of his son and doing chores around the house. Id.
Based on his examination, Dr. Kollath concluded Plaintiff had no limitations following simple instructions and could manage his own funds. (T. 453.) He opined Plaintiff had mild limitations following complex/detailed instructions; maintaining adequate pace or persistence to perform one or two step simple repetitive tasks; and interacting appropriately with co-workers, supervisors, and the public on a regular basis. Id. Dr. Kollath further opined Plaintiff had moderate limitations maintaining adequate pace or persistence to perform complex tasks; maintaining adequate attention/concentration; adapting to changes in job routine; and adapting to changes, hazards, or stressors in a workplace setting. Id. Finally, he found Plaintiff's ability to withstand the stress of a routine workday was markedly impaired. Id.
However, in the same report, Dr. Kollath seemingly made different determinations about the same limitations. Dr. Kollath opined Plaintiff had no limitations understanding and remembering simple or complex instructions. (T. 454.) Moreover, he noted Plaintiff had mild limitations carrying out simple instructions; making judgments on simple work-related decisions; and interacting appropriately with the public and coworkers. (T. 454-55.) Additionally, he observed Plaintiff had moderate limitations carrying out complex instructions; making judgments on complex work-related decisions; interacting appropriately with supervisors; and responding appropriately to usual work situations and to changes in a routine work setting. Id. Finally, Dr. Kollath opined Plaintiff's other capabilities were not affected by his impairments. (T. 455.)
The ALJ accorded Dr. Kollath's opinion “little weight because of the [internal] inconsistencies.” (T. 21.) The ALJ noted Dr. Kollath found a marked limitation in Plaintiff's ability to withstand the stress of a routine workday but had noted in the same report Plaintiff had moderate limitations in his ability to respond appropriately to the usual work situations and to changes in a routine work setting. Id. Moreover, Dr. Kollath noted moderate limitations in Plaintiff's ability to interact appropriately with supervisors on the check box form but noted only mild limitations in the body of the report. Id. Despite these alleged limitations, Plaintiff's current level of functioning at the time of the report showed he was independent for activities of daily living. Id.
State consultative examiner Dr. Franco determined from her review of the record Plaintiff did not have a severe mental impairment. (T. 89-90.) Dr. Franco relied on medical records which documented Plaintiff's mental health treatment through 2016. Id. Dr. Franco noted Plaintiff had complained of anxiety and stress and had discussed not taking medications with his healthcare provider. (T. 80.) Moreover, while Plaintiff was tense and anxious, he was cognitively intact. Id. Dr. Franco opined that most of his mental status examinations did not indicate ADHD symptoms. Id. Finally, she opined that Plaintiff did not have any restrictions of activities of daily living or difficulties in maintaining social functioning but did have mild difficulties in maintaining concentration, persistence, or pace. Id.
The courts have long recognized an ALJ has discretion to rely on a non-examining medical consultant's opinion. See Baszto v. Astrue, 700 F.Supp.2d 242, 249 (N.D.N.Y. 2010) (“[A]n ALJ is entitled to rely upon the opinions of both examining and non-examining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of social security disability.”); see Leach v. Barnhart, No. 02-CV-3561, 2004 WL 99935, at *9 (S.D.N.Y. Jan. 22, 2004) (“State agency physicians are qualified as experts in the evaluation of medical issues in disability claims. As such, their opinions may constitute substantial evidence if they are consistent with the record as a whole.”). Here, after reviewing Dr. Franco's opinion, the ALJ found, “[i]n an abundance of caution,” Plaintiff's mental conditions were severe despite “minimal evidence” related to a mental health impairment and noted Plaintiff was not taking any mental health medication due to his remote location. (T. 21.)
As part of his evaluation, the ALJ reviewed Plaintiff's testimony, medical records, and history of mental health treatment dating back to at least 2014, and found the record was not consistent with and did not support more than mild to moderate work-related limitations. (T. 15.)
According to Plaintiff's testimony, he last worked in 2016 at UCSF, although it is unclear to this Court whether Plaintiff stopped working there because he did not pass the probation period, because of an issue with a supervisor, or some combination of both, or something else. (T. 17, 20, 43, 56, 57, 285, 438.) Plaintiff claimed to have trouble sleeping and was afforded accommodations at UCSF where he could work from home and overnight at the office. (T. 17, 34, 35, 57, 58, 438.) He also claimed that he had a reputation at work as a troublemaker. (T. 17, 35, 42, 57, 450.) Plaintiff testified he could not keep jobs due to the number of errors he makes and often clashed with supervisors. (T. 17, 34, 35, 58.) He testified he currently was living with his ex-wife, their child, and his ex-wife's parents in Thailand. (T. 17, 39.) He had taken medication in the past to try to better himself and do a better job, but he has limited access to medication and mental health treatment where he resides in Thailand. (T. 17, 35, 40-43, 58, 6062.) Plaintiff claimed his mental health was about the same as before but his current stressors were different. (T. 17, 60.) He testified he is alone most of the day-he sleeps, tries to read, and watches TV he has already seen. (T. 17, 40-41, 62.) He claimed he did not do chores where he resides and mostly sees his son at dinnertime. (T. 17, 61-62.)
Plaintiff's June 8, 2016, Adult Function Report indicated he had problems squatting, standing, walking, sitting, talking, stair-climbing, maintaining concentration, completing tasks, following instructions, understanding things, and poor memory. (T. 17, 316, 319, 320, 323.) Plaintiff reported pain and fatigue limited his ability to walk, stand, or sit more than 20 minutes. (T. 320.) Plaintiff further reported he had problems handling stress and had been fired from 15 jobs due to problems with supervisors. (T. 321.)
Plaintiff had initially alleged disability due to ADHD, depression, anxiety, panic disorder, psoriatic arthritis, motor skill impairment, and cognitive difficulties, but in his brief noted disability due to anxiety and depression which would cause too many workplace absences to sustain a full-time job. (T. 284-85; Dkt. No. 30 at 2, 3, 4.) The ALJ found Plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms, but Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were “not entirely consistent” with the medical record and other evidence. (T. 16-18.)
To that end, Plaintiff's mental status examinations were generally benign. Id. He was typically alert, oriented, amiable, and cooperative with adequate attention, concentration, fund of knowledge, and memory. (T. 395, 420, 427, 430, 438, 452.) Moreover, his judgment and insight were fair, he had intact thought process and cognitive functioning, and he had unremarkable thought content. (T. 452.) Finally, as the ALJ noted, Plaintiff himself reported that while on medication for his ADHD, he was able to work through the day without constantly looking at the time and specifically noticed an improvement on Dexedrine but stopped taking medication in 2016 because he lost insurance. (T. 19-20; 392-94.)
Moreover, the ALJ found Plaintiff's activities do not support more than mild to moderate mental limitations. (T. 15.) At his consultative examination in 2018, Plaintiff arrived on time to his appointment having walked there. (T. 450.) He could attend to personal hygiene, prepare meals, drive, take public transportation, go out alone, shop, and make change at the store. (T. 316-20; 429-30; 438; 450-52.) He continued to enjoy trips to the beach, out-of-town adventures, and watching movies on Hulu. (T. 429-30.) While Plaintiff did not work in 2015, he was able to move across the country to New York to live with a family friend. (T. 438.) Plaintiff was also able to travel from Thailand to attend his consultative exam in the United States. (T. 450.) Despite Plaintiff's testimony that he did not do household chores and he only spent limited time with his son, the ALJ found there were no additional medical records to support any greater limits than those found in the RFC. (T. 20.)
As a general matter, moderate limitations are not an impediment to the ability to perform gainful activity, particularly when an RFC has already limited a claimant to unskilled or low-stress work. Elizabeth B. v. Comm'r of Soc. Sec., No. 8:21-CV-00100 (TWD), 2022 WL 17721254, at *16 (N.D.N.Y. Dec. 15, 2022); see also Melisa G. v. Berryhill, No. 3:18-CV-508 (DJS), 2019 WL 2502726, at *5 (N.D.N.Y. June 17, 2019) (holding “moderate limitations are not prohibitive of performing unskilled work”). Thus, the ALJ identified substantial evidence to reasonably conclude Plaintiff's mental impairments did not prevent him from working in unskilled positions involving simple, repetitive tasks in a routine work environment, only occasional interaction with the general public, and requiring concentration for two-hour increments. (T. 16.)
Finally, as to Plaintiff's argument the ALJ did not consider Plaintiff's history of depression, his adverse reaction to sertraline, the onset of hypertension, and his negative experience with his supervisor at his last job, the Court notes it is the province of the ALJ to resolve genuine conflicts in the record. (Dkt. No. 30 at 1, 2, 6.); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). However, the Commissioner need not “reconcile explicitly every shred of medical testimony.” Galiotti v. Astrue, 266 Fed.Appx. 66, 67 (2d Cir. 2008) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)); see also Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (“When, as 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.”).
Accordingly, the ALJ had substantial evidence to support his RFC determination related to Plaintiff's mental impairments, and there is no basis for remand with regard to the step four determination.
B. Substantial Evidence Supports the Commissioner's Step Five Determination Regarding Plaintiff's Ability to Perform Jobs Existing in Significant Numbers in the National Economy
At step five, the burden shifts to the Commissioner “to show there is other work that [the claimant] can perform.” McIntyre, 758 F.3d at 150 (quoting Brault v. Soc Sec. Admin, Comm'r, 683 F.3d 443, 445 (2d Cir. 2012). “If a claimant has non-exertional limitations that ‘significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert.” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)).
If the ALJ utilizes a VE at the hearing, the VE is generally questioned using a hypothetical incorporating Plaintiff's limitations. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981). The ALJ may rely on a VE's testimony regarding the availability of work as long as the hypothetical facts the expert is asked to consider are based on substantial evidence and accurately reflect Plaintiff's limitations. Calabrese v. Astrue, 358 Fed.Appx. 274, 276 (2d Cir. 2009). Where the hypothetical is based on an ALJ's RFC analysis which is supported by substantial facts, the hypothetical is proper. Id. at 276-77.
Here, the VE's hearing testimony included a response to a hypothetical question based upon Plaintiff's RFC, where she identified three occupations a similarly situated individual could perform. (T. 65-67.) Because this Court has found the ALJ's RFC determination was supported by substantial evidence, it also finds the ALJ's hypothetical to the VE was proper, and his step five determination was supported by substantial evidence. Plaintiff's reliance on the VE's answers to hypotheticals which the ALJ ultimately determined were not part of the RFC to support his claim the ALJ erred at the step five determination is unavailing. Therefore, there is no basis for remand with regard to the ALJ's step five determination.
VI. CONCLUSION
For all the reasons discussed above, the Court finds the ALJ properly applied the correct legal standards and considered the evidence of record including the medical opinion evidence, the treatment notes, and the objective findings, as well as Plaintiff's range of daily activities. The ALJ's findings are supported by substantial evidence. Accordingly, the Court finds no error.
WHEREFORE, based on the foregoing, it is hereby
RECOMMENDED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 30) be DENIED; and it is further
RECOMMENDED that Defendant's motion for judgment on the pleadings (Dkt. No. 31) be GRANTED; and it is further
RECOMMENDED that the Commissioner's decision denying Plaintiff's application for DIB be AFFIRMED; and it is further
ORDERED that the Clerk of the Court serve copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk of the Court serve copies of this Report-Recommendation on the parties in accordance with the Local Rules. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
IT IS SO ORDERED.