The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES ZYCH,
Plaintiff, 18-CV-742Sr
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #14.
BACKGROUND
Plaintiff applied for disability insurance benefits with the Social Security
Administration (“SSA”), on October 13, 2016, alleging disability beginning September 1,
2015, at the age of 30, due to migraines, back issues, depression and anxiety. Dkt. #7,
pp.71, 82-83 & 134.
On November 3, 2017, plaintiff appeared with counsel and testified, along
with an impartial vocational expert (“VE”), Jay Steinbrenner, at an administrative
hearing before Administrative Law Judge (“ALJ”), William M. Weir. Dkt. #5, pp.36-78. At
the outset of the hearing, plaintiff’s counsel advised that records of three or four
treatment sessions at Suburban Psychiatric Associates beginning in the Spring of 2017
remained outstanding. Dkt. #5, p.39. The ALJ afforded counsel time to submit these
records. Dkt. #5, p.39.
Plaintiff testified that he was an electro-environmental specialist with the
Air Force for more than five years before his honorable discharge on March 31, 2011.
Dkt. #5, p.46. He has a 100% disability rating due to a combination of impairments,
including migraines, back, knees and psychiatric issues. Dkt. #5, p.46. Plaintiff has
completed a number of college credits but has not obtained a degree because of his
anxiety. Dkt. #5, pp.47 & 61. He resides with his wife and three children, ages 10, 9 and
5. Dkt. #5, p.44. Plaintiff restricts his driving to appointments because being out on the
road provokes anxiety. Dkt. #5, p.45. Plaintiff works 3-4 days per week for a total of
approximately 20 hours per week as a service technician at Dave & Busters. Dkt. #5,
p.47. He prefers to work three 8-hour days rather than 4 six hour days. Dkt. #5, p.48.
Plaintiff testified that he could probably work full-time at Dave & Busters if he didn’t
have to duck into machines the entire time. Dkt. #5, p.50. Mentally, he was unsure if he
would be able to work there full-time because it can get very stressful dealing with
people there. Dkt. #5, p.50.
Plaintiff testified that he frequently suffers from migraines which can last
several days and normally occur more than once per month. Dkt. #5, p.51. Plaintiff’s
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migraines make him sensitive to light and prevent him from focusing. Dkt. #5, p.51.
Plaintiff also experiences constant back pain which is exacerbated by crawling around
or underneath video games at work. Dkt. #5, p.53. He can generally walk around for a
couple of hours, but is limited in his ability to stand in one place for more than 15
minutes or sit for more than 30 minutes at a time. Dkt. #5, p. 54. He can carry two
regular sized grocery bags and estimated that he could lift 20 pounds. Dkt. #5, pp.54-
55. He does not generally sleep more than three hours per night because of his back
pain. Dkt. #5, p.62. Plaintiff fights depression every day and experiences bad anxiety
when he is out with his children due to a fear that something bad could happen at any
given moment. Dkt. #5, pp.56-57. He does not like to be in social situations because of
his anxiety and has to manage his symptoms while working at Dave & Busters. Dkt. #5,
p.57. He can go to movies or stores if they are not crowded. Dkt. #5, pp.65-66. He does
play board games with friends approximately once per week. Dkt. #5, pp.65-66.
The VE was asked to assume an individual with the residual functional
capacity (“RFC”), to perform light work1 with occasional social contact and occasional
crouching, crawling and kneeling, but who could not drive a motor vehicle or use foot
controls or pedals as an essential part of the job. Dkt. #5, p.75. The VE testified that
1 Light work involves lifting no more than 20 pounds at a time and
occasionally lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of dexterity or
inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
such an individual would be able to work as a hydraulic assembler as plaintiff previously
performed that skilled job, and could also work as an electronics assembler and
electronics tester, each of which were semi-skilled positions. Dkt. #5, pp.73 & 75-76.
The ALJ rendered a decision that plaintiff was not disabled on January 17,
2018. Dkt. #5, pp.16-31. The Appeals Council denied review on May 10, 2018. Dkt. #7,
p.5. Plaintiff commenced this action seeking review of the Commissioner’s final
decision on July 5 2018. Dkt. #1.
DISCUSSION AND ANALYSIS
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence in
the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).
To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months. 20 C.F.R. § 404.1505(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is disabled within the meaning of
the Act. 20 C.F.R. § 404.1520(a). At step one, the claimant must demonstrate that he is
not engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the
claimant must demonstrate that he has a severe impairment or combination of
impairments that limits the claimant’s ability to perform physical or mental work-related
activities. 20 C.F.R. § 404.1520(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled to
disability benefits. 20 C.F.R. § 404.1520(d). If the impairment does not meet the criteria
of a disabling impairment, the Commissioner considers whether the claimant has
sufficient RFC for the claimant to return to past relevant work. 20 C.F.R. § 404.1520(e)-
(f). If the claimant is unable to return to past relevant work, the burden of proof shifts to
the Commissioner to demonstrate that the claimant could perform other jobs which
exist in significant numbers in the national economy, based on claimant’s age,
education and work experience. 20 C.F.R. § 404.1520(g).
In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) although plaintiff worked part-time, he had not
engaged in substantial gainful activity since the alleged onset date of September 1,
2015; (2) plaintiff’s migraine headaches, degenerative disc disease with lumbago,
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anxiety disorder and depressive disorder constitute severe impairments; (3) plaintiff’s
impairments did not meet or equal any listed impairment; (4) plaintiff retained the
residual functional capacity to perform light work with the following limitations: no use of
foot controls or pedals, no driving required and occasional crouching, crawling, kneeling
and social contact; and (5) plaintiff was not capable of performing his past relevant work
as a hydraulic assembler but could work as an electronic assembler and electronics
tester, both of which constitute light work. Dkt. #5, pp. 59-31.
Failure to Develop the Record
Plaintiff argues that the ALJ failed to develop the record to include
evidence of treatment from Suburban Psychiatric Associates even though counsel
made the ALJ aware that these treatment records were outstanding and improperly
cited to the gap in mental health treatment as evidence that plaintiff’s mental health
condition was not severe. Dkt. #8-1, pp.25-27.
The Commissioner responds that there was sufficient evidence regarding
plaintiff’s mental health for the ALJ to determine plaintiff’s RFC. Dkt. #11-1, pp.21-22.
In any event, the ALJ afforded plaintiff sufficient time to provide the mental health
records from Suburban Psychiatric Associates, yet plaintiff failed to do so. Dkt. #11-1,
p.22-23.
In light of the essentially non-adversarial nature of a social security
proceeding, it is well accepted that an ALJ has an affirmative duty to develop the
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administrative record. See, e.g., Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
Due to the difficulty in determining whether individuals suffering from mental illness will
be able to adapt to the demands or stress of the workplace, the duty to develop the
record is particularly important where mental illness is present. Marcano v. Berryhill, 17
Civ. 4442, 2018 WL 5619749, at * 11 (S.D.N.Y. July 13, 2018). This duty exists even
when the claimant is represented by counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996). However, the ALJ is required to seek out additional evidence only where there
are obvious gaps in the record. Eusepi v. Colvin, 595 Fed. App’x 7, 9 (2d Cir. 2014).
The ALJ is not obligated to seek additional medical records where the record evidence
is sufficient for the ALJ to make a disability determination. Johnson v. Comm’r of Soc.
Sec., 16-CV-831, 2018 WL 1428251, at *5 (W.D.N.Y. March 22, 2018).
On August 8, 2015, one month prior to his alleged onset of disability, a
Clinical Psychologist at the Veteran’s Administration (“VA”), reviewed plaintiff’s medical
record and conducted an examination of plaintiff in response to his request for an
increase in service-connection for mental disorder. Dkt. #5, pp.324-331. Plaintiff was
working full-time and reported that his work performance was “good enough” even
though he felt his employer was “horrible” to him. Dkt. #5, p.328. He was observed to
be disheveled and poorly groomed with intermittent eye contact, slowed thought
process and aprosodic speech with a flat affect. Dkt. #5, p.329. He was diagnosed with
major depressive disorder and generalized anxiety disorder which the psychologist
opined would cause moderate social and occupational impairment. Dkt. #5, p.329.
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At the time of this examination, plaintiff was receiving treatment at
Horizon, where he was diagnosed with major depression and generalized anxiety. Dkt.
#5, p.233. The treatment provider determined that given plaintiff’s failure to take his
medication consistently, he should stop his medication to obtain a baseline of his
mental health symptoms and functional capacity, but such a baseline was never
established because of his chronic use of marijuana and lack of consistent treatment.
Dkt. #5, p.241. Plaintiff discontinued further treatment on October 26, 2015 after
attending eight appointments. Dkt. #5, pp.240-241.
Plaintiff presented to his primary care provider at the VA on February 11,
2016, reporting that since he stopped taking his mental health medication, he was
more awake, interactive and overall feeling better. Dkt. #5, p.315. The primary care
provider observed that plaintiff “looks great!” Dkt. #5, p.315. Plaintiff denied being
depressed or anxious and reported that he really liked his job and co-workers at Dave &
Busters and no longer experienced the migraines and mood swings that he had as a
machinist. Dkt. #5, pp.315 & 316. Two weeks later, a staff psychiatrist at the VA
Behavioral Health Clinic assessed plaintiff with chronic anxiety with panic attacks and
depression and referred him to individual therapy. Dkt. #5, p.311.
On March 15, 2016, plaintiff was observed to be mildly depressed with an
anxious mood. Dkt. #5, p.307. On March 30, 2016, plaintiff reported that he had ceased
his mental health medications three months prior as they made him feel tired all the
time and that he was missing less work as his new job at Dave & Busters was less
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stressful. Dkt. #5, p.303. A treatment note from VA Behavioral Health Clinic dated April
5, 2016 noted that plaintiff presented with a mildly depressed and anxious mood and
reported difficulty dealing with family stressors. Dkt. #5, pp.301-302. Plaintiff was
counseled on relaxation exercise and strategies for dealing with his children and
encouraged to obtain a consult for a sleep study. Dkt. #5, p.302. Plaintiff cancelled his
next appointment and failed to reschedule. Dkt. #5, p.302.
A consulting psychiatric examination conducted on January 3, 2017
revealed that plaintiff was well groomed, cooperative, maintained appropriate eye
contact and expressed a full range and appropriate affect. Dkt. #5, pp.747-749. Plaintiff
was diagnosed with an adjustment disorder with mixed anxious and depressed mood
and determined to possess the capacity to
follow and understand simple directions and instructions,
perform simple tasks independently, maintain attention and
concentration, maintain a regular schedule, learn new tasks,
make appropriate decisions, relate adequately with others,
and appropriately deal with stress within normal limits. Mild
impairment is demonstrated in performing complex tasks
independently.
Dkt. #5, p.749. It was recommended that plaintiff continue his current employment and
consider individual psychological therapy to assist with positive compensatory skills.
Dkt. #5, p.750.
In light of the relative consistency of plaintiff’s mental health symptoms,
diagnoses and treatment recommendations during the relevant time frame, the absence
of three or four additional mental health treatment records from the Spring of 2017 does
not constitute a gap in the administrative record which the ALJ was required to fill
before he could render a determination as to plaintiff’s mental RFC.
Substantial Evidence for RFC
Plaintiff argues that the ALJ erred in his assessment of plaintiff’s credibility
with respect to his mental condition and emphasizes that plaintiff’s disability was rated
100% by the VA. Dkt. #8-1, p.27. Plaintiff also argues that the ALJ failed to properly
consider that plaintiff’s improvement was due to his reduction in work hours and failed
to properly assess plaintiff’s capacity for stress. Dkt. #8-1, pp.21-24.
The Commissioner responds that the ALJ is not bound by the VA disability
rating, as the burden of proof for Social Security is more stringent and that the ALJ
appropriately evaluated the objective medical evidence and plaintiff’s subjective
complaints in determining plaintiff’s RFC. Dkt. #11-1, pp.10-11.
. Dkt. #11-1, p.19.
“Disability decisions by other governmental agencies are not binding on
the ALJ, but are entitled to some weight and should be considered.” Rivera v. Colvin,
592 Fed App’x 32, 33 (2d Cir. 2015) (internal quotation omitted). The Department of
Veterans Affairs has determined that plaintiff has one or more service-connected
disabilities with a combined evaluation of 100%. Dkt. #5, p.177. A progress note from
the VA Behavioral Health Center dated February 25, 2016 states that plaintiff “was
service connected 100%/70% for anxiety.” Dkt. #5, p.310. The ALJ recognized plaintiff’s
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service-connected disability evaluation, but determined that a finding of 100 percent
disability was generally inconsistent with the plaintiff’s conservative treatment history,
generally normal physical examinations, generally only mild mental deficits, and the
plaintiff’s ability to work at near substantial gainful activity levels. Dkt. #5, p.29. Thus,
the ALJ considered the VA’s disability rating and sufficiently explained the basis for
affording little weight to that assessment. The ALJ further determined that plaintiff’s
anxiety disorder and depressive disorder warranted a limitation to occasional social
interaction but otherwise did not interfere with his ability to engage in substantial gainful
activity. Dkt. #5, p.29. This determination is supported by the opinion of the consulting
psychiatric examiner that plaintiff could appropriately deal with stress within normal
limits as well as plaintiff’s sustained part-time employment in a public work place,
regular social engagement with friends, engagement with his family and management
of his mental health symptoms by accessing supportive therapy as needed.
In addition to the mental health treatment set forth above, the medical
record reveals treatment for migraine headaches and back issues. Plaintiff established
care with United Memorial Medical Center on January 4, 2016. Dkt. #5, p.794. He was
counseled to use his TENS Unit and to strengthen his core and improve his posture
and counseled on use of Imitrex for migraines. Dkt. #5, p.794. Plaintiff presented to his
primary care provider at the VA on February 11, 2016, reporting that he no longer
experienced the migraines and mood swings that he had as a machinist. Dkt. #5, p.315.
Plaintiff’s chronic lower back pain was deemed “not problematic enough for
intervention.” Dkt. #5, p.318. On March 15, 2016, plaintiff underwent an initial
consultation with the VA Behavioral Health Clinic and reported a long history of sleep
disturbance and back pain which he successfully managed through stretching and
home exercise. Dkt. #5, p.306. On March 30, 2016, plaintiff presented to the VA Health
Care System with complaints of recent migraines occurring on average once every two
weeks as well as headaches of lesser severity occurring sometimes three times per
week. Dkt. #5, p.303. Plaintiff reported that Imitrex helped if he took it early enough.
Dkt. #5, p.303.
Plaintiff underwent a consultative physical examination on January 3,
2017. Dkt. #5, p.751. His gait was normal, he was able to walk on heels and toes
without difficulty and squat. Dkt. #5, p.752. He had full flexion, extension, lateral flexion
and rotary movement bilaterally of both his cervical and lumbar spine. Dkt. #5, p.753.
He had full range of motion of hips, knees and ankles bilaterally. Dkt. #5, p.753.
Straight leg raise was negative. Dkt. #5, p. 753. He had full strength in his upper and
lower extremities and grip. Dkt. #5, p.753. Plaintiff was assessed to have no physical
limitations. Dkt. #5, p.753.
At his annual physical on February 10, 2017, plaintiff complained of head
and back pain and was prescribed Motrin. Dkt. #5, pp.796 & 799. On July 10, 2017,
plaintiff presented to the emergency room with back pain and resulting incontinence but
left before receiving treatment. Dkt. #5, p.803. On July 11, 2017, plaintiff called the VA
to report that he hurt his back while cleaning his basement but declined to be seen. Dkt.
#5, p.814. He was advised to take Motrin and use heat/ice therapy. Dkt. #5, p. 814. He
denied bladder or bowel incontinence. Dkt. #5, p.814.
On August 4, 2017, plaintiff presented to Mercy Hospital following a motor
vehicle accident. Dkt. #5, p.821. A CT of his lumbar spine revealed some mild
degenerative changes. Dkt. #5 p.829. An MRI of plaintiff’s spine on August 28, 2017
revealed a broad central L5-S1 disc herniation impinging on the S1 nerve roots
bilaterally as well as a central T7-8 and T8-9 disc herniation and a small right-sided C5-
6 disc herniation and bulging of the disc at C4-5. Dkt. #5, pp.864-866. Plaintiff was
excused from work from August 15, 2017 through September 8, 2017 and received
chiropractic care through October, 2017. Dkt. #5, pp. 840 & 852-861.
These medical records provide substantial evidence for the ALJ’s
determination that with continued treatment, medication and reduced stress, plaintiff’s
migraine headaches had become episodic and intermittent with only infrequent
exacerbations that would not interfere with work activities on a sustained, ongoing
basis. Dkt. #5, p.26. With respect to his back issues, the ALJ determined that plaintiff’s
ability to manage his condition with NSAIDs, heat, ice and stretching weighed against a
finding of disability. Dkt. #5, p.26. This determination is further supported by the opinion
of the consulting physical examiner that plaintiff had no physical limitations, as well as
plaintiff’s activities of daily living, including his part-time work at Dave & Busters and his
post-motor vehicle accident hearing testimony that he could lift 20 pounds and walk for
1-2 hours at a time, sit for 30 minutes and stand for 15 minutes, which comfortably fits
within the ALJ’s restriction to light work with additional limitations.
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CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #8), is denied and the Commissioner’s motion for judgment on the pleadings (Dkt.
#11), is granted.
The Clerk of the Court is directed to close this case.
SO ORDERED.
DATED: Buffalo, New York
January 3, 2020
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge