The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CLEVELAND S.,
Plaintiff, 21-CV-6742Sr
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. #11.
BACKGROUND
Plaintiff applied for supplemental security income (“SSI”), benefits with the
Social Security Administration (“SSA”), on September 4, 2018, at the age of 40, alleging
disability due to bipolar disorder, social anxiety disorder, anger issues, auditory
hallucinations and a learning disability. Dkt. #5, pp.275 & 279.
On April 28, 2020, plaintiff appeared by telephone conference call with
counsel and testified, along with an impartial vocational expert (“VE”), Martina
Henderson, at an administrative hearing before Administrative Law Judge (“ALJ”),
David Neumann. Dkt. #5, pp.41-55. Plaintiff testified that he graduated from high school
with a special education diploma and that he has a low reading and spelling level. Dkt.
#5, pp.47 & 49. His speech is not good due to a stutter and he has difficulty
understanding people talking to him. Dkt. #5, p.49. Plaintiff hears things and sometimes
talks to himself. Dkt. #5, pp.49 & 55-60. He has difficulty remembering things. Dkt. #5,
p.53. He has a temper and doesn’t feel comfortable around groups of people. Dkt. #5,
pp.49 & 60-61. When he is angry, he needs to be alone to calm down. Dkt. #5, p.62. It
is difficult for him to concentrate when he is angry. Dkt. #5, p.64. He was fired from a
job because he yelled back at his boss who was criticizing him. Dkt. #5, p.63. He has
anxiety attacks sometimes and starts shaking. Dkt. #5, p. 64. He does not sleep much.
Dkt. #5, p.65. Plaintiff lives with his mother and socializes with his children. Dkt. #5,
pp.46 & 61. He found therapy was helpful, but was not attending due to the pandemic.
Dkt. #5, p.65. He grocery shops at the corner store, does laundry, cooks meals and
watches television. Dkt. #5, pp.68-69.
When asked to assume an individual with plaintiff’s age, education and
lack of relevant work experience who was limited to occasional interaction with the
public, no more than occasional changes in the work setting, and no production rate or
pace work who should avoid climbing ropes, ladders and scaffolds, the VE testified that
such an individual could work as a hand packager, industrial cleaner, or dishwasher,
each of which were unskilled, medium exertion positions. Dkt. #5, p.71.
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On March 24, 2021, plaintiff appeared by telephone conference call with
counsel along with an impartial medical expert, Chukwuemeka Efobi, M.D., at a
supplemental hearing before ALJ Neumann to address the conflict between forms
submitted to the Monroe County Department of Human Services indicating very limited
functioning and the results of consultative examinations conducted in October 2018 and
October 2020. Dkt. #5, pp.75-110. Dr. Efobi, a board certified psychiatrist, testified that
he had reviewed the limited medical records, which the ALJ confirmed were all the
records available, and opined that they lacked any concrete diagnosis. Dkt. #5, pp.85-
86 & 90.
Dr. Efobi noted that although the medical records contained subjective
reports of symptoms, and occasional observations of anxious or irritable mood and
tangential thoughts or impaired judgment, mental status examinations were within
normal limits. Dkt. #5, pp.91 & 99. Dr. Efobi explained that an individual’s complaints
upon initial presentation generate a working diagnosis which carries forward throughout
treatment regardless of improvements in presentation. Dkt. #5, pp.100-101. As a result,
Dr. Efobi testified that it was important to assess the severity and persistence of an
individual’s historic symptoms through objective findings such as mental status
examinations. Dkt. #5, p.101. Dr. Efobi further noted that plaintiff was discharged from
treatment after having met his treatment goals with a notation that plaintiff denied
having any anger outbursts or anxiety and felt that he could manage his depression.
Dkt. #5, p.91.
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Based upon plaintiff’s border range intellectual ability, Dr. Efobi opined
that plaintiff would have mild to moderate limitations in understanding, remembering or
applying information; mild to moderate limitations in interacting with others; mild
limitations in concentration, persistence or maintaining pace; and mild limitations in his
ability to adapt or manage himself. Dkt. #5, pp.92-93. Despite these limitations, Dr.
Efobi opined that plaintiff could perform simple, routine, repetitive work with occasional
interactions with supervisors, coworkers and the general public. Dkt. #5, pp.93-95.
The ALJ rendered a decision that plaintiff was not disabled on April 23,
2021. Dkt. #5, pp.14-25. The Appeals Council denied review on October 22, 2021. Dkt.
#5, p.5. Plaintiff commenced this action seeking review of the Commissioner’s final
decision on December 15, 2021. 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
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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. § 416.905(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. § 416.920(a). At step one, the claimant must demonstrate that she is
not engaging in substantial gainful activity. 20 C.F.R. § 416.920(b). At step two, the
claimant must demonstrate that she 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. § 416.920(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. § 416.920(d). If the impairment does not meet the criteria
of a disabling impairment, the Commissioner considers whether the claimant has
sufficient Residual Functional Capacity (“RFC”), for the claimant to return to past relevant
work. 20 C.F.R. § 416.920(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. § 416.920(g).
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In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful
activity since the application date of September 4, 2018; (2) plaintiff’s unspecified
schizophrenia spectrum disorder, unspecified depressive disorder - rule out persistent
depressive disorder/dyshthymic disorder, unspecified anxiety disorder - rule out
generalized anxiety disorder and panic disorder, impulse control disorder, and
marijuana and alcohol use disorder - in remission, constitute severe impairments; (3)
plaintiff’s impairments did not meet or equal any listed impairment; (4) plaintiff retained
the RFC to perform a full range of work at all exertional levels with no more than
occasional interaction with supervisors and the public in a low stress job defined as
having no more than occasional changes in the work setting and without production rate
or pace work; and (5) plaintiff was capable of working as a hand packager, dish washer
or industrial cleaner, each of which were unskilled, medium exertion positions, and was
not, therefore, disabled within the meaning of the SSA. Dkt. #5, pp.16-25
Plaintiff argues that the ALJ did not properly evaluate the persuasiveness
and supportability of opinion evidence from plaintiff’s mental health counselor (“MHC”),
Michelle Squicciarini. Dkt. #7-1, pp.9-13. Specifically, plaintiff argues that the ALJ
overlooked portions of treatment notes that supported MHC Squicciarini’s opinions
regarding plaintiff’s limitations; failed to address her August 2018 opinion; and failed to
discuss other evidence that supported her opinion. Dkt. #7-1, pp.13-14. Plaintiff also
argues that the ALJ erred in relying upon Dr. Efobi, a non-examining source, over
plaintiff’s treatment provider. Dkt. #5, p.16. Finally, plaintiff argues that although the ALJ
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found Dr. Deneen’s opinion persuasive, the RFC did not account for Dr. Deneen’s
opinion that plaintiff had moderate limitations for sustaining concentration and
performing tasks at a consistent pace, as well as regulating emotions, controlling
behavior and maintaining well being. Dkt. #5, pp.17-21.
The Commissioner responds that the ALJ properly considered opinions
from plaintiff’s treating therapist, but reasonably declined to rely upon them because
they were not adequately supported by contemporaneous treatment notes of clinical
observations. Dkt. #9-1, pp.2 & 14-17. The Commissioner further responds that the ALJ
properly accounted for Dr. Deneen’s opinion of moderate limitations in regulating
emotions and maintaining concentration and pace by restricting plaintiff to unskilled, low
stress jobs with no more than occasional changes in the work setting and no production
rate or pace work. Dkt. #9-1, pp.19-21.
Plaintiff replies that it is clear that the ALJ did not analyze all of MHC
Squicciarini’s opinions and did not properly address supportability and consistency. Dkt.
#10, p.2. Plaintiff further replies that the moderate limitations identified by Dr. Deneen
with respect to sustaining concentration and performing tasks at consistent pace, as
well as regulating emotions, controlling behavior and maintaining well-being, were not
addressed by the ALJ. Dkt. #10, p.4.
The record of evidence indicates that plaintiff presented to the Evelyn
Brandon Health Center for a mental health evaluation on February 20, 2018, reporting a
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history of aggression and violence and difficulties managing anger. Dkt. #5, p.460.
Depression screening revealed moderate depression and anxiety screening revealed
moderate anxiety. Dkt. #5, p.467. MHC Squicciarini noted that plaintiff demonstrated
high level of motivation for treatment and interest in continued individual psychotherapy.
Dkt. #5, p.462.
MHC Squicciarini completed a Monroe County Department of Human
Services Psychological Assessment for Determination of Employability (“DHS
Employability Assessment”), on March 21, 2018, indicating that plaintiff was very limited
(unable to function 25% or more of the time), in his ability to maintain attention and
concentration for role tasks and moderately limited (unable to function 10-25% of the
time), in his ability to follow, understand and remember simple instructions and
directions; perform simple and complex tasks independently; and regularly attend to a
routine and maintain a schedule. Dkt. #5, p.541.
On August 13, 2018, plaintiff presented as depressed and irritable, with
the theraply session focusing on processing recent conflicts with the Monroe County
Department of Human Services. Dkt. #5, pp.472-473. His mental status examination
was otherwise within defined limits, with fair insight and judgment and full range affect.
Dkt. #5, p.473.
On August 28, 2018, MHC Squicciarini noted that plaintiff presented to a
therapy session as euthymic and cooperative. Dkt. #5, p.476. His mental status
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examination was within defined limits, with fair insight and judgment and full range
affect. Dkt. #5, pp.476-477.
On September 10, 2018, MHC Squicciarini observed plaintiff to be
depressed and cooperative, with tangential coherency. Dkt. #5, p.479. The therapy
session focusing on processing an upcoming anniversary of his deceased brother, to
which plaintiff responded positively. Dkt. #5, p.479. His mental status examination was
otherwise within defined limits, with fair insight and judgment and full range affect. Dkt.
#5, p.480.
On October 1, 2018, plaintiff presented as depressed and anxious, with
tangential coherency and preoccupation. Dkt. #5, pp.482-483. His mental status
examination was otherwise within defined limits, with fair insight and judgment and full
range affect. Dkt. #5, pp.482-483.
On October 30, 2018, Todd Deneen, Psy.D., conducted an independent
consultative psychiatric examination which noted plaintiff’s cooperative demeanor, fair
social skills, coherent thought process, mildly impaired attention and concentration,
intact recent and remote memory skills, and borderline intellectual functioning. Dkt. #5,
pp.491-92. Plaintiff reported that he uses public transportation, manages his own
money, occasionally sees his friends, attends programs for probation, shops monthly,
and cleans, cooks and washes laundry weekly. Dkt. #5, p.492. Dr. Deneen opined that
plaintiff would have no limitation understanding, remembering, and applying simple
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directions and instructions and maintaining personal hygiene and appropriate attire;
mild limitation sustaining an ordinary routine and regular attendance at work; and
moderate limitation using reason and judgment to make work related decisions,
interacting adequately with supervisors, coworkers and the public, sustaining
concentration and performing a task at a consistent pace, and regulating emotions,
controlling behavior and maintaining well being. Dkt. #5, p.493.
On November 8, 2018, O. Fassler, Ph.D., completed a state agency
review and determined that plaintiff would have a mild limitation in his ability to
understand, remember or apply information and a moderate limitation in his ability to
interact with others; concentrate, persist or maintain pace; and adapt or manage
himself. Dkt. #5, p.115.
Plaintiff was successfully discharged from chemical dependency
treatment at the Evelyn Brandon Health Center on December 13, 2018. Dkt. #5, p.517.
MHC Squicciarini completed a second DHS Employability Assessment on
February 14, 2019, indicating that plaintiff was moderately limited in his ability to
perform simple and complex tasks independently and to maintain attention and
concentration for role tasks. Dkt. #5, p.546. She opined that plaintiff could work
approximately 10 hours per week, recommending independent work with clear
instructions and a flexible schedule, and noting that plaintiff does not do well in crowds
or groups. Dkt. #5, p.547.
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MHC Squicciarini completed a third DHS Employability Assessment on
May 13, 2019, indicating that plaintiff was moderately limited in his ability to perform
simple and complex tasks independently and to maintain attention and concentration
for role tasks. Dkt. #5, p.550. She opined that plaintiff could work approximately 5 hours
per week, recommending independent work with clear instructions and a flexible
schedule, and noting that groups and crowds were contraindicated. Dkt. #5, p.551.
MHC Squicciarini’s treatment notes dated June 6, 2019 indicate that
plaintiff “continues to report overall reduction in experience of negative symptoms” and
has “begun to explore options for potential return to work.” Dkt. #5, p.535.
MHC Squicciarini completed a discharge summary for plaintiff on January
3, 2020, indicating that plaintiff “engaged positively in individual therapy;” “identified
primary goals of reducing anger outbursts, challenging anxiety, and reducing
depression symptoms;” and “found success” using skills developed during individual
therapy “to achieve goals.” Dkt. #5, p.563. At the time of discharge, plaintiff “denied
anger outbursts and anxiety and reported confidence in managing symptoms of
depression.” Dkt. #5, p.564.
Christine Ransom, Ph.D., conducted an independent consultative
psychiatric examination of plaintiff on October 7, 2020. Dkt. #5, p.571. Plaintiff denied
all mental health difficulties, including depression, anxiety, panic attacks, manic
symptomatology, thought disorder, cognitive deficits and difficulty reading. Dkt. #5,
p.571. He presented with adequate hygiene and grooming, adequate expressive and
receptive language skills, neutral mood, coherent and goal directed thought processes,
and appropriate affect. Dkt. #5, p.572. His attention and concentration, as well as his
recent and remote memory skills, were intact. Dkt. #5, p.572. His cognitive functioning
was determined borderline. Dkt. #5, p.572. Dr. Ransom opined that plaintiff would show
no evidence of limitation. Dkt. #5, pp.573 & 579-580.
As an initial matter, the ALJ accurately noted that MHC Squicciarini’s
opinions did not constitute an opinion by an acceptable medical source. Dkt. #5, p.23.
In fact, it appears that MHC Squicciarini is a nonmedical source. See David F. v.
Comm’r of Soc. Sec., 6:20-CV-6822, 2022 WL 10510389, at *3 n.8 (W.D.N.Y. Oct. 18,
2022) (“Under the new regulations, therapists and social workers without clinical
designation are not considered medical sources because they are not “licensed . . .
healthcare worker[s].”); 20 C.F.R. § 416.902(i) (“Medical source means an individual
who is licensed as a healthcare worker by a State and working within the scope of
practice permitted under State or Federal law”) & 20 C.F.R. § 416.902(j) (“Nonmedical
source means a source of evidence who is not a medical source” (effective March 27,
2017 to October 14, 2018). While an ALJ is required to consider all relevant evidence,
he is not required to articulate how he evaluated evidence from nonmedical sources as
required for medical source opinions. See Michael K. v. Comm’r of Soc. Sec., 20-CV-
1467, 2022 WL 3346930, at *6 (W.D.N.Y. Aug. 12, 2022) (ALJ was not required to
articulate how he considered vocational counselor’s opinion regarding plaintiff’s
functioning because vocational counselor was a nonmedical source); 20 C.F.R. §
416.920c(d).
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In any event, the ALJ recognized that MHC Squicciarini completed
“several” DHS Employability Assessments, wherein she opined that plaintiff was unable
to perform even simple, unskilled work on a sustained basis. Dkt. #5, p.23. The ALJ
determined that this assessment was “not adequately supported by contemporaneous
psychiatric treatment notes of clinical observations, and appears to place excessive
reliance on the [plaintiff’s] subjective reporting.” Dkt. #5, p.23. The ALJ specifically
noted that depression and anxiety screening conducted by MHC Squicciarini revealed
moderate rather than severe depression and anxiety and that plaintiff was never
prescribed psychiatric medication for his symptoms. Dkt. #5, p.23. The ALJ also
referenced treatment notes from August 13, 2018 indicating that although plaintiff
appeared depressed and irritable, his mental status examination was otherwise within
normal limits. Dkt. #5, p.23. Furthermore, the ALJ noted that plaintiff had accomplished
his goals in therapy with MHC Squicciarini as of December, 2019. Dkt. #5, pp.21 & 23.
As for the opinion of consultative examiner, Dr. Deneen, the ALJ found
persuasive his determination that plaintiff had moderate limitations making work related
decisions and interacting adequately with others, but could understand, remember and
perform simple work. Dkt. #5, p.20. As plaintiff argues, the ALJ did not specifically
address Dr. Deneen’s determination that plaintiff was moderately limited in his ability to
sustain concentration and perform tasks at a consistent pace and in his ability to
regulate emotions, control behavior and maintain his well-being. Dkt. #5, p.20.
However, the ALJ addressed these functional limitations in his assessment of Dr.
Fassler’s review of the evidence, wherein he found persuasive Dr. Fassler’s opinion
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that plaintiff would experience moderate difficulty maintaining concentration,
persistence or pace and adapting and managing himself. Dkt. #5, p.22. The ALJ noted
that this assessment was more restrictive than the limitations identified by the impartial
medical expert, Dr. Efobi, who opined that plaintiff would have mild difficulties in
maintaining concentration, persistence or pace and in his ability to adapt and manage
himself. Dkt. #5, p.22. The ALJ explained that he “assessed moderate difficulties in the
[plaintiff’s] ability to adapt and manage himself to limit the claimant to occasional
changes in the work setting.” Dkt. #5, p.22. The ALJ further explained that he had
sufficiently accounted for plaintiff’s functional limitations by limiting plaintiff to
“performing no more than simple and routine forms of work that minimize his contact
with supervisors, co-workers and the public with no more than occasional changes in
the work setting.” Dkt. #5, p.22.
“In general, moderate nonexertional limitations are sufficiently
accommodated where a plaintiff is limited to performing simple work with avoidance of
stressors such as production pace work and interaction with coworkers and the public.”
Nunez v. Comm’r of Soc. Sec., 19-CV-6077, 2019 WL 1771489, at *3 (W.D.N.Y. April
23, 2019). More specifically, restricting a plaintiff to simple, routine work at a non-
production pace with only occasional contract with others is sufficient to account for
moderate limitations in concentration, persistence and pace. Pichardo v. Comm’r of
Soc. Sec., 21-CV-6873, 2023 WL 2596970, at *18 (S.D.N.Y. Mar. 22, 2023). Similarly,
limitations in adaptive functioning are often addressed by restrictions in work complexity
and interpersonal interaction. Platt v. Comm’r of Soc. Sec., 588 F. Supp.3d 412, 422
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(S.D.N.Y. 2022). Thus, moderate limitations in adapting onself can be accounted for by
restricting a plaintiff to simple work with no more than occasional interaction with the
public and supervisors or changes to a routine work setting. Hussain v. Comm’r of Soc.
Sec., 22-CV-3880, 2023 WL 8189750, at *8 (E.D.N.Y. Nov. 26, 2023). “There is no
requirement that an ALJ explain exactly which moderate limitation corresponds to which
non-exertional limit in the RFC.” Burton D. v. Comm’r of Soc. Sec., 22-CV-6825, 2024
WL 1332502, at *16 (E.D.N.Y. Mar. 28, 2024). Thus, the Court finds that the ALJ’s
determination to restrict plaintiff to unskilled work with no more than occasional
interaction with supervisors and the public in a low stress job with no more than
occasional changes in the work setting and no production rate or pace work is sufficient
to account for plaintiff’s mental RFC, which is supported by substantial evidence.
CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #7), is denied and the Commissioner’s motion for judgment on the pleadings
(Dkt. #9), is granted.
The Clerk of the Court is directed to close this case.
SO ORDERED.
DATED: Buffalo, New York
March 29, 2024
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge