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Palaschak v. Astrue

November 13, 2009



I. Introduction

Plaintiff Ronald J. Palaschak brings this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB").*fn1 Specifically, Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") was not supported by substantial evidence and contrary to the applicable legal standards. The Commissioner argues that the decision was supported by substantial evidence and made in accordance with the correct legal standards.

II. Background

Plaintiff filed for DIB on August 12, 2004, alleging on onset date of June 1, 2002 (R. at 26).*fn2 This application was denied initially on December 24, 2004 (R. at 41-43). Plaintiff alleges disability due to severe depression, anxiety, bipolar disorder, psychotic episodes and arthritis. Plaintiff filed a timely request for a hearing on February 11, 2005 (R. at 45).

On October 4, 2005, Plaintiff appeared before the ALJ (R. at 357). The ALJ considered the case de novo and on March 27, 2006, issued a decision finding Plaintiff not disabled (R. at 40). On August 28, 2006, the Appeals Council remanded the case to the ALJ to "[o]btain evidence from a vocational expert" (R. at 83). A second hearing was held on November 21, 2007, and a VE testified telephonically (R. at 387, 389). On January 24, 2008, the ALJ issued a decision finding Plaintiff not disabled (R. at 25). The ALJ's decision became the Commissioner's final decision in this case when the Appeals Council denied Plaintiff's request for review on September 5, 2008 (R. at 6-9). On November 3, 2008, Plaintiff filed this action.

Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.*fn3

III. Discussion

A. Legal Standard and Scope of Review

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 only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. 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."); 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 evidence that 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. 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. See 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 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 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).

The Commissioner has established the following five-step sequential evaluation process*fn4 to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

While the claimant has the burden of proof as to 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 (2d Cir.1984).

The final step of the inquiry is, in turn, 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(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

For the reasons that follow, it is respectfully recommended that Defendant's Motion for Judgment on the Pleadings be GRANTED.

B. Analysis

1. The Commissioner's Decision

The ALJ followed the sequential analysis and concluded that Plaintiff was not disabled within the meaning of the Act (R. at 25). At step one, the ALJ found that Plaintiff "did not engage in substantial gainful activity during the period from his alleged onset date of June 1, 2002[,] through his last date of insured of December 31, 2004" (R. at 16). The ALJ then found, at step two, that Plaintiff had the following severe impairments: "depressive disorder, bipolar disorder and anxiety disorder." Id. At step three, the ALJ found that Plaintiff's impairments did not either individually or in combination meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 18). The ALJ found the following for Plaintiff's residual functional capacity ("RFC"): lift and carry 20 pounds occasionally and 10 pounds frequently; sit six hours in an eight-hour work day but would need to change his posture frequently, for more than momentarily, every hour; stand and walk six hours in an eight-hour work day but would need to change his posture hourly; and occasionally climb, stoop, kneel, crouch and crawl. He could understand and follow simple instructions and directions; perform simple and some complex tasks with supervision and independently; maintain attention and concentration for those tasks; attend to and maintain a schedule; learn new tasks; make appropriate decisions; and occasionally interact with the public and co-workers (R. at 19). Based on the testimony of a VE, the ALJ found that Plaintiff's RFC allowed him to perform the following positions in the national economy: small assembler, sub-assembler of electrical parts, and night cleaner (R. at 24). Therefore, the ALJ found that Plaintiff was not disabled within the meaning of the Act at any point through the date of last insured, December 31, 2004 (R. at 25).

2. Plaintiff's Claims:

A. The ALJ Did Not Err In Analyzing Plaintiff's Treating Physicians

Plaintiff argues that the ALJ erred in i) ignoring the opinions of Dr. Cook; ii) granting the opinions of Dr. Desai "little weight;" and iii) granting the opinions of the Social Security Administration ("SSA") consultative physicians "great weight." Plaintiff's Brief, pp. 6-9.

i. The ALJ Did Not Err in Considering Dr. Cook's Opinions

Plaintiff argues that the ALJ ignored the opinions of Dr. Cook. Plaintiff's Brief, pp. 8-9. Dr. Cook did not supply an assessment of either Plaintiff's physical or mental limitations. Thus, any medical opinions Dr. Cook offered would be found in his treatment notes. While Plaintiff argues that "the RFC opined by the [ALJ] clearly excludes the opinions of Dr. Cook," he fails to state to which opinions he is referring. Id.

According to the "treating physician's rule,"*fn5 the ALJ must give controlling weight to the treating physician's opinion when that opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, 335 F.3d 99, 105 (2d Cir. 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). "Failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).

Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. Under 20 C.F.R. § 404.1527(d)(1)-(6), the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. See de Roman, 2003 WL 21511160, at *9 (citing C.F.R. § 404.1527(d)(2)); see also Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

The following encompasses the ALJ's discussion of Dr. Cook: "[t]he claimant received medical treatment from Thomas J. Cook, M.D., from at least March 2002. The physician made the diagnoses of hypertension, GERD,*fn6 renal listhiasis (kidney stones) and arthritis and prescribed treatment with medications including Lotrel, Vicodin, Mobic, Urocit, and Nervasc. According to treatment notes, these medical conditions remained stable" (R. at 17).

Dr. Cook was Plaintiff's treating physician dating back to March 8, 2002 (R. at 269). Dr. Cook originally treated Plaintiff for both his physical and mental impairments. See (R. at 269, 165, 168, 281, 273). Beginning in March 2004, Dr. Cook believed Plaintiff's mental impairments had become too severe for him to treat (R. at 174). In May of that year Dr. Cook sent Plaintiff to psychiatrist, Dr. Desai (R. at 176). Dr. Cook continued to treat Plaintiff's physical impairments. See (R. at 300, 305, 335). Dr. Cook also remained somewhat involved in Plaintiff's psychiatric treatment. For example, Dr. Desai noted that Dr. Cook had changed Plaintiff's medication from Lexapro*fn7 to Effexor*fn8 because Effexor was causing side effects (R. at 316).

Dr. Cook did not supply an assessment of Plaintiff's physical or mental limitations. The diagnoses Dr. Cook made in his treatment notes, as well as various symptoms resulting from those diagnoses, are the only medical opinions that he offered.

20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) ("Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.").

Plaintiff stated at both hearings that he was not arguing disability based on his physical impairments (R. at 372, 396). Despite these statements by Plaintiff, the ALJ engaged in a thorough analysis of several of Plaintiff's physical impairments, ultimately finding them not severe (R. at 17). Notably, the ALJ considered Plaintiff's arthritis, the sole physical impairment Plaintiff now alleges is disabling. Id. As for Plaintiff's mental impairments, Dr. Cook's medical opinions consisted entirely of three diagnoses: depression, anxiety, and a bipolar disorder. See (R. at 269, 287). The ALJ failed to address Dr. Cook's medical opinions explicitly. However, the ALJ found that Plaintiff had the following severe impairments: "depressive disorder, bipolar disorder and anxiety disorder" (R. at 16). Clearly, the ALJ did not discredit these diagnoses and in fact found them all to be severe. Thus, although the ALJ failed to state the weight he granted to Dr. Cook's diagnoses, both physical and mental, the Court finds the error harmless. See Jones v. Barnhart, 2003 WL 941722, at *10 (S.D.N.Y. Mar. 7, 2003) (internal citations omitted) (finding harmless error in the ALJ's failure to grant weight to Plaintiff's treating physicians because "he engaged in a detailed discussion of their findings, and his decision does not conflict with them"); Walzer v. Chater, 1995 WL 791963, at *9 ("[T]he ALJ's failure to [discuss a report completed by Plaintiff's treating physician] was harmless error, since his written consideration of [the] report would not have changed the outcome of the ALJ's decision."); Pease v. Astrue, 2008 WL 4371779, at *8 (N.D.N.Y. Sept. 17, 2008) (internal citations omitted) ("The ALJ provided a detailed summary and analysis of the reports and records of all treating and examining physicians . . . . Therefore, the ALJ's failure to comment on the weight of evidence was harmless error, and does not provide a basis for a remand to the Commissioner.").

ii. The ALJ Did Not Discount Dr. Desai's Opinions Because They Were Retrospective

Plaintiff argues that the ALJ improperly discounted Dr. Desai's opinions because they were "dated after the Plaintiff's date of last insured." Plaintiff's Brief, p. 8. Plaintiff argues this was error because "Dr. Desai's opinions are actually from both before and after the date of last insured status." Id.

Plaintiff began seeing psychiatrist Dr. Desai on May 5, 2004, after a referral from Dr. Cook (R. at 191-3, 176). Plaintiff continued to regularly see Dr. Desai through the second hearing (R. at 191-7, 233-8, 316-7, 343-52, 397). Dr. Desai supplied several assessments of Plaintiff's mental limitations.

The ALJ found the following when assessing and granting weight to Dr. Desai's various opinions:

Dr. Desai's opinions, which are all dated after claimant's date last insured, are not consistent from one medical assessment to another. Interestingly, the most recent and least restrictive assessment is the only assessment that Dr. Desai supported with clinical findings. The other medical source statements contain only brief notes indicating claimant is asocial and isolative with impaired attention and concentration and limited interactions or do not include any explanation whatsoever. Therefore, the November 2007 assessment is given the most weight of the three. This assessment, however, is given very limited weight because it is not consistent with Dr. Desai's treatment notes or the other medical evidence of record pertaining to the period prior to claimant's date last insured. For example, Dr. Desai's assessment is reportedly based on findings of poor concentration, limited ability to tolerate frustration, severe depression, forgetfulness, isolation, poor communication, asocial personality and poor retention and recall. Dr Desai also noted claimant had been homebound for many years. Yet, Dr. Desai's treatment notes from May 2004 to December 31, 2003 reflect little other than worrisome affect, depressed mood and complaints of anxiety, decreased energy, limited concentration and forgetfulness and occasional bad days. All other aspects of claimant's mental status examinations were apparently within normal limits and ...

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