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Carvey v. Astrue

September 30, 2009


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff Chauncey D. Carvey brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny his application for disability insurance benefits ("DIB"). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.


Plaintiff filed an application for disability insurance benefits ("DIB") on February 2, 2004. (Administrative Transcript at p. 51).*fn2 Plaintiff claims that he became disabled as a result of a stroke and a hole in his heart. (T. 16). Plaintiff was born on January 13, 1958 and was 46 years old at the time of his application. (T. 16). In 1975 and 1976, plaintiff attended auto body classes at a vocational school. (T. 69, 78, 142). In January 1977, plaintiff completed high school. (T. 523). From May 1985 until May 2003, plaintiff was employed by Niagara Mohawk, a utility company. (T. 94). From 2000 until 2003, plaintiff was employed as a storeroom employee/stock handler with responsibilities that included loading and unloading trucks, putting stock away and driving trucks. (T. 64, 525).

On April 21, 2004, plaintiff's application was denied and plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was held on April 6, 2005. (T. 16). On May 31, 2005, the ALJ issued a decision denying plaintiff's claim for disability benefits. (T. 16-28). The Appeals Council denied plaintiff's request for review on April 26, 2006, making the ALJ's decision the final determination of the Commissioner. (T. 7). This action followed.


The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating disability claims:

"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).

A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). In this case, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since the alleged date of disability onset. (T. 20). At step two, the ALJ concluded that plaintiff suffered from cerebral vascular accident, patent foramen ovale, obesity, diabetes mellitus with neuropathy, sleep apnea, degenerative disc disease and carpal tunnel syndrome which qualified as a "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 20). At the third step of the analysis, the ALJ determined that plaintiff's impairments did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 21). At the fourth step, the ALJ found that plaintiff had the following residual functional capacity ("RFC"): to lift and carry 10 pounds occasionally and 10 pounds frequently; sit for 6 hours during an 8-hour workday and stand and/or walk for 6 hours out of 8 during an 8-hour workday. Occasionally, he can use the right upper extremity to push and pull. The claimant can never climb ladders, ropes or scaffolds; however, he can occasionally perform tasks requiring the ability to climb ramps and stairs, balance, kneel, crouch, crawl and stoop. The claimant should avoid work that would subject him to vibrations or work around hazards. (T. 24).

Accordingly, the ALJ found that plaintiff could perform sedentary work but concluded that he was unable to perform all of his past relevant work. (T. 24). The ALJ obtained the testimony of a vocational expert to determine whether there were jobs plaintiff could perform. Based upon the vocational expert's testimony, the ALJ concluded at step five, that plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy such as work as a security monitor, order clerk, telephone solicitor and general office clerk. (T. 26). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 26).

In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:

(1) the ALJ erred when he determined that plaintiff's mental impairments were not severe; (2) the ALJ failed to properly apply the treating physician rule to the opinions of Dr. Gabris and Dr. Ram; (3) the ALJ erred in evaluating plaintiff's credibility; (4) the RFC determination by the ALJ is not supported by substantial evidence; (5) the ALJ failed to comply with SSR 00-4p; and (6) the ALJ improperly relied upon the testimony of the vocational expert and thus, the Commissioner did not sustain his burden of proof at the fifth step of the sequential evaluation process.

A. Severity of Mental Impairments

Plaintiff argues that the ALJ erred when he determined that plaintiff's adjustment disorder with mixed anxiety and depression were non-severe. (Dkt. No. 6, pp. 14-15). The Commissioner asserts that substantial evidence supports the ALJ's finding that plaintiff's mental condition was not a severe impairment. (Dkt. No. 8, p. 6).

An impairment is severe if it significantly limits physical or mental abilities to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b). An ALJ must use a "special technique" to determine the severity of a claimant's mental impairment. Rosado v. Barnhart, 290 F.Supp.2d 431, 437 (S.D.N.Y. 2003) (citations omitted); 20 C.F.R. §§ 404.1520a(a); 416.920a(a). First, the ALJ must evaluate the claimant's symptoms, as well as other signs and laboratory findings, and determine whether the claimant has a "medically determinable impairment." 20 C.F.R. §§ 404.1520a(b)(1); 416.920a(b)(1). If a medically determinable impairment exists, the ALJ must "rate the degree of functional limitation resulting from the impairment[ ]." 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). The ALJ must rate the degree of the claimant's functional limitation in four specific areas, referred to as "Paragraph B" criteria: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3); 416.920a(c)(3). The ALJ rates the first three areas on a five-point scale of "none," "mild," "moderate," "marked," and "extreme," and the fourth area on a four-point scale of "none," "one or two," "three," and "four or more." 20 C.F.R. §§ 404.1520a(c)(4); 416.920a(c)(4). If the first three areas are rated as "none" or "mild," and the fourth as "none," the ALJ will conclude that the mental impairment is not severe "unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities." 20 C.F.R. §§ 404.1520a(d)(1); 416.920a(d)(1).

In the case at hand, the ALJ employed the "special technique" and rated the degree of plaintiff's functional limitations.*fn3 The ALJ noted that plaintiff "exhibited anxiety and depressive symptomatology since his stroke". (T. 22). The ALJ cited to plaintiff's testimony and noted that plaintiff was able to socialize with friends, reported good sleep, no changes in appetite, exhibited no delusions and reported improved mood with medication. (T. 22). The ALJ also explained that

Dr. Kristen Barry, a consultative examiner, found plaintiff able to follow and understand simple directions and instructions, maintain attention and concentration and exhibited good judgment and insight. (T. 22). The ALJ continued with an analysis of the "Paragraph B" criteria and determined that plaintiff's affective disorder and anxiety "are nonsevere impairments for the purposes of this decision". (T. 23).

A review of the administrative record reveals substantial evidence to support the ALJ's assessment. In May 2003, plaintiff received prescriptions from Dr. Simmons, his primary care physician, for Lexapro and Wellbutrin.*fn4 (T. 169). In subsequent examinations, Dr. Simmons continually noted plaintiff's depression was "better" and "stable". (T. 165-166). Dr. Simmons suggested plaintiff seek treatment for depression, however, plaintiff did not follow this advice.

(T. 338). Plaintiff's treating cardiologist, Dr. Michael Gabris, noted plaintiff had "no physical limitations due to depression, emotional factors or anxiety". (T. 328). Plaintiff did not seek treatment for his alleged mental impairments until May 2004. (T. 325). Plaintiff's social worker was unable to provide a psychiatric assessment. (T. 322). Plaintiff's psychiatrist, Dr. Stanley Porebo, noted that "it is as yet unclear why at this time he seeks mental health services and possible secondary gain showed be kept in mind". (T. 235, 292, 313). The ALJ's decision is further supported by the opinions of: (1) Dr. Barry, who described plaintiff as fairly intelligent and opined that plaintiff could follow and understand simple directions/instructions and maintain attention/concentration; and (2) Dr. Allan Hochberg, a physician who completed a Psychiatric Review Technique at the request of the agency, who noted plaintiff's impairments were not severe and that plaintiff suffered from only mild limitations. (T. 292).

Plaintiff argues that the ALJ failed to acknowledge all of the medical evidence. Specifically, plaintiff claims that the ALJ failed to consider Jeffrey Quinlan's opinion that plaintiff had a GAF score of 50.*fn5 (T. 321). Mr. Quinlan is a CSW. (T. 323). Plaintiff asserts that this score "represents serious impairment in social, occupational or school functioning". (Dkt. No. 6, p. 16).

While the ALJ did not specifically comment on this finding in the decision, the failure to acknowledge and consider Mr. Quinlan's GAF observation was inconsequential. In November 2004, Dr. Stanley Poreba treated plaintiff at the Oswego Hospital Behavioral Services Division. Dr. Poreba concluded plaintiff's "GAF = Current 60 - ".*fn6 (T. 312). The ALJ was not required to assign controlling weight to Mr. Quinlan's assessments as Dr. Poreba's report was more recent and further, Dr. Poreba is a specialist. See 20 C.F.R. § 416.927(d)(5); Matos ex rel. Mota v. Barnhart, 2007 WL 943654, at *11 (S.D.N.Y. 2007) (holding that an ALJ will generally give "more weight to the opinion of a specialist about medical issues related to his or her area of specialty"); see also Tavarez v. Barnhart, 124 Fed.Appx. 48, 49 (2d Cir. 2005) (holding that recent reports are far more relevant to the determination of disability).

The ALJ considered plaintiff's history and found that his mental impairments did not impose any significant functional limitations. The Court finds that the ALJ's determination is supported by substantial evidence. As required, the ALJ then proceeded to assess plaintiff's RFC.

B. Treating Physician Rule

Plaintiff argues that the ALJ erroneously afforded the opinions Dr. Michael Gabris, plaintiff's cardiologist, and Dr. Padma Ram "minimal weight".*fn7 (Dkt. No. 6, p. 16). The Commissioner contends that the ALJ evaluated the opinions of Drs. Gabris and Ram in accordance with the regulations and gave appropriate reasons for concluding that the opinions did not compel a finding of disability. (Dkt. No.8, p. 14).

Under the regulations, a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2) (2001); see also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); see also Filoramo v. Apfel, 1999 WL 1011942, at *7 (E.D.N.Y. 1999) (holding that the ALJ properly discounted the assessment of a treating physician as it was inconsistent with opinions of other treating and consulting physicians). When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including:

(i) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.

20 C.F.R. 404.1527(d)(2). Additionally, the regulations direct the Commissioner to "give good reasons in [his] notice of determination or decision for the weight [he] give[s] [claimant's] treating source's opinion". Id.; accord 20 C.F.R. 416.927(d)(2).

The opinion of the treating physician is not afforded controlling weight where the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts. 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see also Stevens v. Barnhart, 473 F.Supp.2d 357, 362 (N.D.N.Y. 2007) (holding that the less consistent an opinion is with the record as a whole, the less weight it is to be given); see also Otts v. Comm'r of Social Sec., 249 Fed.Appx. 887, 889 (2d Cir. 2007) (an ALJ may reject such an opinion of a treating physician "upon the identification of good reasons, such as substantial contradictory evidence in the record"). Similarly, an ...

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