Opinion

Brown v. Commissioner of Social Security

Court
District Court, W.D. New York
Filed
Aug 4, 2020
Cited by
0 cases
Authority
More cited than 27.8%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

VALERIE DORI BROWN,

Plaintiff,

v. DECISION AND ORDER

19-CV-508S

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________

1. Plaintiff Valerie Brown brings this action pursuant to the Social Security Act

(“the Act”), seeking review of the final decision of the Commissioner of Social Security

that denied her applications for disability insurance benefits under Title II and Title XVI of

the Act. (Docket No. 1.) The Court has jurisdiction over this action under 42 U.S.C. §

405(g).

2. Plaintiff protectively filed her application for benefits under Title II of the Act

with the Social Security Administration on March 16, 2015. (R.1 at 153.) She then filed for

benefits under Title XVI of the Act on August 30, 2016. (R. at 235.) Plaintiff alleged

disability beginning on May 1, 1998, due to borderline personality disorder, chronic

depression and anxiety, PTSD, and some OCD. (R. at 154.) Plaintiff’s application was

denied. Plaintiff thereafter requested a hearing before an administrative law judge (“ALJ”).

ALJ Stephen Cordovani held a hearing on October 2, 2017, at which he determined that

medical opinion evidence was needed and rescheduled the hearing (R. at 58-85.) The

ALJ held a further hearing on March 29, 2018, at which Plaintiff, represented by her

1 Citations to the underlying administrative record are designated as “R.”

attorney, appeared and testified. (R. at 86-152.) Vocational Expert Timothy Janikowski

also appeared and testified. (R. at 86.) At the time of the hearing, Plaintiff was 59 years

old, with a high school diploma, and prior work experience as a library technician. (R. at

102, 263.)

3. The ALJ considered the case de novo and, on July 5, 2018, issued a written

decision denying Plaintiff’s application for benefits. (R. at 13-25.) On February 25, 2019,

the Appeals Council denied Plaintiff’s request to review the ALJ’s decision. (R. at 1.)

Plaintiff then filed the current action on April 18, 2019, challenging the Commissioner’s

final decision.2

4. Both parties moved for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure. (Docket Nos. 12, 15.) Plaintiff filed a response on March

5, 2020 (Docket No. 16), at which time this Court took the motions under advisement

without oral argument. For the reasons that follow, Plaintiff’s motion is denied, and

Defendant’s motion is granted.

5. A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); 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 it is not supported by substantial evidence or there

has been a legal error. See 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 that which amounts to

“more than a mere scintilla,” and it has been defined as “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v.

2 The ALJ’s July 5, 2018, decision became the Commissioner’s final decision in this case when the Appeals

Council denied Plaintiff’s request for review.

Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where

evidence is deemed susceptible to more than one rational interpretation, the

Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,

62 (2d Cir. 1982).

6. “To determine on appeal whether an ALJ’s findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the

evidence from both sides, because an analysis of the substantiality of the evidence must

also include that which detracts from its weight.” Williams ex rel. 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, this Court must afford the Commissioner’s determination considerable

deference and will 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).

7. The Commissioner has established a five-step sequential evaluation

process to determine whether an individual is disabled under the Act. See 20 C.F.R.

§§ 404.1520, 416.920. The Supreme Court of the United States recognized the validity

of this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing

whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed.

2d 119 (1987).

8. The five-step process is as follows:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity. 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. 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

disabled without considering vocational factors such as age,

education, and work experience; the [Commissioner]

presumes that a claimant who is afflicted with a “listed”

impairment is unable to perform substantial gainful activity.

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. 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.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original);

see also 20 C.F.R. § 416.920; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

9. Although the claimant has the burden of proof on the first four steps, the

Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.

at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is divided

into two parts. First, the Commissioner must assess the claimant's job qualifications by

considering his or her physical ability, age, education, and work experience. Second, the

Commissioner must determine whether jobs exist in the national economy that a person

having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20

C.F.R. § 416.920(a)(4); Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954,

76 L. Ed. 2d 66 (1983).

10. The ALJ analyzed Plaintiff’s claim for benefits under the process set forth

above. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful

activity since her alleged disability onset date of May 1, 1998. (R. at 15.) At step two, the

ALJ found that Plaintiff has the following severe impairments: depression; anxiety; and

PTSD. (Id.) At step three, the ALJ found that Plaintiff does not have an impairment or

combination of impairments that meets or medically equals any impairment(s) listed in 20

C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926). (R. at 17.)

11. Next, the ALJ found that Plaintiff retains the residual functional capacity

(“RFC”) to perform a full range of work at all exertional levels, but with the following

nonexertional limitations:

she can understand, remember and carry out simple

instructions and tasks; she is able to work in a low stress

environment with only simple instructions and tasks, no

supervisory duties, no independent decision-making, no strict

production quotas, and minimal changes in work routine and

processes; she can have frequent interaction with

supervisors, co-workers, and the general public.

(R. at 19.)

12. At step four, the ALJ found that Plaintiff has no past relevant work. (R. at

23.) At step five, the ALJ found that there are jobs that exist in significant numbers in the

national economy that Plaintiff could perform. (R. at 24.) Accordingly, the ALJ found that

Plaintiff was not disabled at any time between the alleged disability onset date of May 1,

1998, and the date of the decision. (R. at 25.)

13. Plaintiff argues that the ALJ’s final determination is not supported by

substantial evidence because the ALJ failed to properly consider the medical evidence of

record and the ALJ improperly assessed her credibility.

14. Plaintiff first argues that the ALJ failed to properly consider the opinions of

Plaintiff’s treating physician, Dr. Michael Slater and her mental health counselor, Kim

Leiker. Defendant argues that the ALJ reasonably gave Dr. Slater’s opinion less weight

due to the inconsistency of his opinion with the rest of the medical record, and that the

ALJ appropriately incorporated Ms. Leiker’s opinions into Plaintiff’s RFC determination.

15. Plaintiff treated with Dr. Slater from 2015 through 2018. On June 2, 2015,

Dr. Slater diagnosed Plaintiff with knee and joint problems, possible psychiatric issues

requiring follow up, esophageal reflux; osteoarthritis (R. at 533-34.) On August 27, 2015,

Dr. Slater noted that anxiety, depression, and lumbago were “resolved.” (R. at 538.) On

September 30, 2015, and February 10, 2016, Dr. Slater indicated a negative finding for

psychiatric issues. (R. at 542, 557.)

16. On December 20, 2016, Dr. Slater filed out a medical screening form for

Plaintiff. He rated her as “very limited” (the most limited category) in all of the applicable

categories: walking; standing; sitting; lifting; pushing; seeing; hearing; speaking; using

hands; stairs; understanding and remembering instructions; carrying out instructions;

maintaining attention; making simple decisions; interacting appropriately with others;

maintaining socially appropriate behavior; maintaining basic standards of hygiene and

grooming; and being able to function in a work setting at a consistent pace. (R. at 603;

same form at R. at 798-99.) He opined that Plaintiff’s “chronic pain and depression”

prevented her from working.

17. At an August 8, 2017, visit to Dr. Slater, Plaintiff denied depression,

insomnia, mood changes, hearing change and hearing difficulty, and substance abuse.

(R. at 760.) On examination, she was alert, oriented, with grossly intact memory, an

appropriate attitude, clear thought process, and no delusions, hallucinations, obsessions,

preoccupations, or obsessive thoughts. (Id.) Her vision was grossly normal, and her

hearing was grossly normal for conversation. (R. at 761.) Her current medications were

Linzess, NP Thyroid, and clotrimazole. (Id.) Dr. Slater assessed Plaintiff with dental

caries, hypothyroidism, and nicotine dependence. (R. at 762.) At a visit with Dr. Amy Lynn

Wnek on August 28, 2017, Plaintiff denied anxiety and depression. (R. at 607.)

18. Plaintiff underwent consultative medical examinations on November 28,

2017. Dr. Trevor Litchmore noted that Plaintiff claimed depression and anxiety and stated

she was taking Linzess, Bisacodyl, bupropion,3 and Ibuprofen. (R. at 716.) Dr. Lichtmore

noted that Plaintiff could shop, do laundry, cook, and clean. (Id.) Dr. Lichtmore diagnosed

Plaintiff with depression and anxiety disorder, and Hashimoto’s thyroiditis. (R. at 708.)

Psychologist David Scheich assessed Plaintiff on the same day. He noted that Plaintiff

could NOT cook, prepare food, clean, do laundry, or shop. (R. at 720.) Dr. Scheich noted

that Plaintiff had an “odd eccentric personality.” (R. at 727). He diagnosed her with major

depressive disorder, recurrent, mild, generalized anxiety disorder, PTSD, and rule out

schoziod type personality disorder. (R. at 721.) He considered her prognosis to be fair,

“given the lack of severe psychiatric symptoms.” (Id.) He opined that she had mild

limitations in many areas of functioning, but that this would not interfere with her ability to

function on a daily basis. (R. at 726.)

19. Plaintiff visited Dr. Slater on November 15, 2017, for a follow up visit. Her

medications were listed as Linzess, ibuprofen, NP Thyroid, and clotrimazole. She did not

3 “Bupropion is used to treat depression. …It may work by helping to restore the balance of certain natural

chemicals (neurotransmitters) in your brain.” https://www.webmd.com/drugs/2/drug-13507-155/bupropion-

hcl-oral/bupropion-oral/details, accessed 7/31/2020.

have any psychiatric medications listed, and Dr. Slater did not ask about her psychiatric

status. (R. at 752.) On December 14, 2017, Plaintiff saw Dr. Slater again, upset that her

disability form was incorrect. (R. at 742.) She presented with depression and crying (R.

at 742), but denied a history of mental health problems. (R. at 745.) Dr. Slater now

assessed that she had depressive episodes and generalized anxiety disorder, both of

which “prevent her from working.” (R. at 745.)

20. At a February 13, 2018, Dr. Slater noted no psychological issues in his

system review, did not list bupropion in his list of medications, and assessed Plaintiff’s

generalized anxiety disorder as “stable.” (R. at 815.)

21. Physical therapy notes show that Plaintiff was treated for a shoulder injury,

knee pain, and back pain, between 2015 and 2018. and PT. (R. at 594-95.) She

experienced shoulder and back pain in August 2015, and received physical therapy. (R.

at 665.) She experienced a shoulder injury in early 2016, but by November 9, 2016, Dr.

Brendan Brownell noted that her pain had improved and her range of motion had been

restored. (R. at 595.) On October 1, 2017, she attended physical therapy for “mild dull

achy pain” in her lower mid back. (R. at 661.) On April 10, 2018, Plaintiff went to physical

therapy reporting that she slept on her back wrong and had recurring pain. (R. at 827.)

Her plan of care included functional mobility training, manual therapy, and a home

exercise program. (Id.)

22. The ALJ gave Dr. Slater’s opinion little weight, finding that his opinion that

Plaintiff was “very limited” in all aspects of life was not consistent with the objective

medical findings in the rest of the record. (R. at 22.)

23. Mental Health Counselor Kim Leiker’s letters indicate that Plaintiff had

trouble dealing with triggers arising from past trauma. (R. at 654.) On September 27,

2017, she noted that Plaintiff’s responses to stressors and triggers ranged from

“debilitating” to bouts of mild depression to crying, feeling withdrawn, and wanting to

isolate. (Id.) Ms. Leiker opined that Plaintiff’s symptoms interfered with her ability to

function in daily life, and affected her ability to maintain employment, though she did not

specify the extent of these limitations. (R. at 653-54.) Ms. Leiker noted that Plaintiff was

“making gradual progress” in her therapy. (R. at 654.)

24. In further letters, dated April 9 and April 24, 2018, Ms. Leiker stated that

Plaintiff was making progress, but that she experienced “defragmented memory” and her

cognitive processing time was slowed. (R. at 824.) Ms. Leiker did not assess in detail how

these impairments affected Plaintiff’s ability to work, but stated that they were a “lifelong

struggle.” (R. at 825.) Ms. Leiker advised that Plaintiff continue with counseling three

times a week and follow up with her medical doctor regarding her memory

defragmentation and slowed processing time. (R. at 830-31.)

25. The ALJ gave great weight to Ms. Leiker’s opinion that Plaintiff’s mental

health would cause more than minimal work-related limitations. The ALJ’s RFC indicated

that Plaintiff could work only in low-stress environments, with only simple instructions and

tasks, no supervisory duties, no independent decision-making, no quotas, and minimal

changes in routine, and with frequent interaction with supervisors, co-workers, and the

public. (R. at 19.)

26. The treating physician rule provides that “the 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.’ ” Estrella v. Berryhill, 925 F.3d 90, 95–96 (2d Cir. 2019). If an opinion is

inconsistent with the other substantial evidence in the record, an ALJ need not give the

opinion controlling weight. Id.

27. If the ALJ determines that the opinion is not entitled to controlling weight, it

must determine how much weight, if any, to give it. In doing so, it must 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 v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)).

28. An ALJ need not explicitly walk through these factors, so long as the Court

can “conclude that the ALJ applied the substance of the treating physician rule ... and

provide[d] ‘good reasons' for the weight she gives to the treating source's opinion.”

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (quoting 20 C.F.R. §

404.1527(c)(2)). At both steps, the ALJ must “give good reasons in [its] notice of

determination or decision for the weight [it gives the] treating source's [medical] opinion.”

Id.

29. Having examined the medical record, this Court finds no error in the ALJ’s

decision to give little weight to Dr. Slater’s opinion. It was reasonable for the ALJ find his

opinion inconsistent with the rest of the record, since Dr. Slater’s own treatment notes

from a number of office visits do not support the level of disability he stated on the opinion

forms he filled out. While his opinions state without variation that Plaintiff was very limited

in every possible category listed, he notes few such symptoms in his treatment notes

during the years he treated Plaintiff. His opinions therefore appear to be inconsistent with

the medical evidence, including his own treatment notes. This Court finds that the ALJ

properly applied the treating physician rule in assessing Dr. Slater’s medical opinions.

Lambert v. Commissioner, 2016 U.S. Dist. LEXIS 39833 at *20 (N.D.N.Y. 2016) (ALJ did

not err in implicitly rejecting treating physician’s opinion that plaintiff would miss two days

of work per month, because it was inconsistent with the medical record, and specifically,

with normal physical examinations and objective test results).

30. As to Ms. Leiker’s opinion, this Court finds that the ALJ properly

incorporated the limitations on interpersonal relations and concentration Ms. Leiker noted

into its RFC determination. Plaintiff’s RFC limited her to a low-stress work environment

with minimal changes, simple instructions, no supervisory duties, and no independent

decision-making. This is consistent with Ms. Leiker’s opinion letters, and that the ALJ’s

opinion is therefore supported by substantial evidence.

31. Plaintiff also argues that the ALJ’s mischaracterization of her activities of

daily living led him to incorrectly assess her credibility. Defendant argues that the ALJ

properly assessed the Plaintiff’s subjective complaints against the entire record, including

her alleged activities of daily living, and provided good reasons for not fully crediting her

subjective complaints. This Court finds no error in the ALJ’s determination.

32. “It is the function of the [Commissioner], not the [reviewing courts], to

resolve evidentiary conflicts and to appraise the credibility of witnesses, including the

claimant.” Stanton v. Astrue, 370 F. App'x 231, 234 (2d Cir. 2010) (quoting Aponte v.

Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir.1984) (second

alteration in original) (internal quotation marks omitted). A court has no reason to second-

guess the credibility finding where the ALJ has identified specific record-based reasons

for his ruling. Id.

33. Here, the ALJ found that Plaintiff’s conditions were not as limiting as she

alleged for a number of reasons. For example, the ALJ noted that Plaintiff stopped

working not because of her disability, but because her position was terminated. (R. at 82,

see also R. at 103.) The ALJ also considered Plaintiff’s conservative course of treatment

in his credibility determination. When the record shows minimal treatment for allegedly

disabling conditions, this is a factor that the ALJ may permissibly consider. 20 CFR §

404.1529(c)(3)(iv)-(vi). Here, physical therapy records reveal successful treatment for a

number of discrete conditions and Dr. Slater does not appear to have treated Plaintiff for

most of the issues he claimed were disabling on his opinion form.

34. The ALJ also considered, as it was permitted to do, Plaintiff’s ability to

perform tasks of daily living. See 20 C.F.R. § 404.1529(c)(3)(i). Plaintiff’s activities are

well-documented in the medical record. She was able to walk to the store and post office,

prepare food, follow causes she cared about by email, and research somewhat complex

questions using the internet. (See R. at 135-36.) It was not error for the ALJ to consider

these facts in determining the extent to which Plaintiff was limited.4 This Court finds,

therefore, that ALJ’s credibility determination is supported by substantial evidence.

4 Plaintiff takes issue with the ALJ’s characterization of her involvement with causes she cares about as

“activism,” but this Court notes that Plaintiff herself referred to her activities as activism. (See Docket No.

12-1 at p. 28; R. at 21, R. at 123.)

35. Having reviewed the ALJ’s decision in light of Plaintiff’s arguments, this

Court finds no error in the ALJ’s determination. The decision contains an adequate

discussion of the medical evidence supporting the ALJ’s determination that Plaintiff was

not disabled, and Plaintiff’s aforementioned contentions are unavailing. Plaintiff’s Motion

for Judgment on the Pleadings is therefore denied, and Defendant’s motion seeking the

same relief is granted.

IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings

(Docket No. 12) is DENIED.

FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket

No.15) is GRANTED.

FURTHER, that the Clerk of Court is directed to CLOSE this case.

SO ORDERED.

Dated: August 3, 2020

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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