The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Linda A. Lefever, 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 her application for disability benefits ("DIB") and supplemental security income ("SSI").
On December 30, 1998, plaintiff protectively filed an application for DIB and SSI. (T. 243-247).*fn1 Plaintiff was 32 years old at the time of the application. (T. 57). Plaintiff claimed that she became disabled on November 6, 1998 due to muscle spasms, low back pain and pain in her shoulders, left arm and left leg. (T. 25). On June 16, 1999, plaintiff's application was denied. (T. 44). On August 24, 1999, on reconsideration, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on December 7, 1999. (T. 50, 262). On April 19, 2000, ALJ Joseph Medicis Jr. issued a decision denying plaintiff's claim for benefits. (T. 271-284). On May 18, 2000, plaintiff requested a review of the ALJ's decision by the Appeals Council. (T. 285). On January 11, 2001, while plaintiff's claim was pending with the Appeals
Council, plaintiff filed a new application for DIB and SSI alleging back pain, leg pain and spasms. (T. 339). On June 5, 2001, plaintiff's second application was denied and plaintiff requested a hearing. (T. 629). On June 6, 2004, the Appeals Council issued a decision on plaintiff's 1998 application and remanded to the ALJ to re-evaluate plaintiff's mental impairment; re-evaluate plaintiff's residual functional capacity including the opinions of examining and treating sources; re-evaluate plaintiff's subjective complaints; and to obtain evidence from a vocational expert, if necessary. (T. 324).
Plaintiff's applications were consolidated and a hearing was held before ALJ Medicis on November 16, 2004. (T. 650). On January 13, 2005, the ALJ issued a decision finding that plaintiff was disabled since January 1, 2002, but not disabled from November 6, 1998 until December 31, 2001. (T. 38). Plaintiff requested a review of the portion of the ALJ's decision relating to the period from November 6, 1998 until December 31, 2001. (T. 19). The Appeals Council denied plaintiff's request for review on May 23, 2007 making the ALJ's decision the final determination of the Commissioner. (T. 8). 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, 221 F.3d at 131. 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).
On January 13, 2005, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since her alleged onset date. (T. 26). At step two, the ALJ concluded that plaintiff suffered from cervical and lumbosacral strain/sprain and affective disorder which qualified as "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 37). 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. 37). The ALJ found, from November 6, 1998 through December 31, 2001, that plaintiff had the residual functional capacity ("RFC") to, "lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently, stand and walk six hours and sit six hours in an eight-hour work day and occasionally climb, balance, stoop, knee, crouch and crawl. Furthermore, she had the ability to understand, carry out and remember simple instructions, use judgment, respond appropriately to supervision, co-workers, and the usual work situations and deal with changes in a routine work setting". (T. 37). At step four, the ALJ concluded, from November 6, 1998 through December 31, 2001, that plaintiff did not have the residual functional capacity to perform any of her past relevant work. (T. 38). Relying on the medical-vocational guidelines ("the grids") set forth in the Social Security regulations, 20 C.F.R. Pt. 404, Subpt. P, App.2, the ALJ found, from November 6, 1998 through December 31, 2001, that plaintiff had the exertional capacity to perform the demands of the full range of light work. (T. 38). Therefore, the ALJ concluded, from November 6, 1998 through December 31, 2001, plaintiff was not under a disability as defined by the Social Security Act.*fn2 (T. 38).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) the ALJ erred when he failed to follow the Appeals Council remand order with regard to plaintiff's mental impairment; (2) the ALJ failed to properly apply the treating physician rule; (3) the RFC determination by the ALJ is not supported by substantial evidence; and (4) plaintiff presents non-exertional impairments which require the use of a vocational rehabilitation expert rather than reliance upon the grids. (Dkt. No. 13).
A. Plaintiff's Mental Impairments and Appeals Council Remand
Plaintiff argues that the ALJ failed to follow the Appeals Council directive with respect to plaintiff's mental impairments. (Dkt. No. 13, p. 21). Plaintiff claims that the ALJ should have ordered a consultative psychological examination and/or requested a retrospective opinion from plaintiff's mental health providers. The Commissioner contends that the ALJ reasonably concluded that plaintiff failed to prove that she had a disabling mental impairment. (Dkt. No. 17, p. 7).
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). A ranking of no or "mild" limitation in all of these areas would generally warrant a finding that the claimant's mental impairments are not severe. Rosado, 290 F.Supp.2d at 437. To satisfy Paragraph B criteria, plaintiff must demonstrate at least two of the following criteria: marked restriction of activities of daily living; or marked difficulties in maintaining social functioning; or marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04; Paratore v. Comm'r of Soc. Sec. Admin., 2008 WL 541156, at *5 (N.D.N.Y. 2008); Rodriguez v. Barnhart, 2005 WL 643190, at *11 (S.D.N.Y. 2005).
A diagnosis of depression, without more, does not severely impair a plaintiff's performance of any major life activity. See Torres v. Astrue, 550 F.Supp.2d 404, 411 (W.D.N.Y. 2008). The medical evidence must show that depression precludes a plaintiff from performing basic mental work activities. See Snyder v. Astrue, 2009 WL 2157139, at *4 (W.D.N.Y. 2009). Moreover, evidence that medication provides relief from the severity of a mental condition can provide substantial evidence to support a finding that a plaintiff is not disabled. Pennay v. Astrue, 2008 WL 4069114, at *5 (N.D.N.Y. 2008).
In the April 2000 decision, the ALJ did not engage in a "Paragraph B" analysis and concluded:
Although the claimant mentioned depression, she has not been hospitalized nor has she had any therapy for a mental condition. (T. 279).
Upon review, the Appeals Council found:
The medical evidence shows that the claimant may have a mental impairment, but the hearing decision does not contain an evaluation of this impairment pursuant to 20 CFR §§ 404.1520a and 416.920a. Treating physician Graves noted on August 5, 1999 that the claimant reported depressive symptoms. She prescribed treatment with Zoloft. On November 30, 1999, Dr. Graves indicated the claimant's depression was only minimally responsive to Zoloft. Dr. Ganesh examined the claimant on February 4, 1999 and reported some testing was halted because the claimant was "sobbing violently". The decision states the claimant has had no therapy for depression, but does not mention she was treated unsuccessfully with Zoloft. The decision found no severe mental impairment. However, the record does not contain a psychological evaluation and there is no indication of any attempt to obtain a consultative psychological examination. (T. 322).
Accordingly, the Appeals Council directed the ALJ to:
Evaluate the claimant's mental impairment in accordance with the special technique described in CFR §§ 404.1520a and 416.920a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described in 20 §§ CFR 404.1520a(c)*fn3 and 416.920a(c). (T. 323-324).
In the January 2005 decision, the ALJ evaluated plaintiff's mental disorders pursuant to 20 CFR §§ 404.1520a and 416.920a. The ALJ stated:
... the claimant's mental disorders have been evaluated pursuant to 20 CFR 404.1520a and 416.920a... The evidence shows that the claimant's activities of daily living have been quite limited but the overall record shows that such limitations are due to physical complaints, not depression. Therefore, it is concluded her depression does not result in marked limitation of activities of daily living.
Claimant's social functioning also appears to be limited. However, because she is able to go out for appointments, attend counseling sessions, have visitors and relate to her children and a fiancé, it is concluded she does not have marked restriction in social functioning. Claimant's ability to maintain concentration, persistence and pace has reportedly been poor since January 2002. Yet, prior to that, she was able to concentrate well enough to watch television, listen to the radio, read and manage her own money. Hence, the evidence fails to show that her depression has caused marked deficiencies in concentration, persistence or pace at all times since her alleged onset date. Finally, there is no evidence to establish that the claimant has had episodes of deterioration or decompensation, each of extended duration. (T. 28). Moreover, prior to determining plaintiff's RFC, the ALJ again addressed the Appeals Council order and stated:
[Plaintiff] did not even allege any problems with, or limitations related to, depression when she filed her applications for benefits in 1999 and 2001. Her primary treating physician, Dr. Graves, while diagnosing depression, focused on claimant's back impairment, never made any mental status findings and did not prescribe medication until August 1999. There is also no other evidence to indicate a mental impairment, causing limitation of function, prior to January 2002, when claimant began treatment with mental health professionals. (T. 33).
The ALJ further determined that no consultative examination was required given the, "little proof of a mental impairment" and also concluded that plaintiff's "violent sobbing" was plaintiff's "modus operandi when examined by other non-treating WC insurance carrier consultants". (T. 33).
Upon review, the Court finds that the ALJ complied with the Appeals Council's remand order. The Appeals Council did not direct the ALJ to order a consultative examination or obtain a retrospective opinion. Rather, the Appeals Council only instructed the ALJ to consider plaintiff's mental impairment in the context of §§ 404.1520a and 416.920a and to document the application with findings and rationale. The ALJ followed this directive and employed the "special technique". Indeed, plaintiff does not object to the ALJ's application of the "special technique" or to the specific degrees of functional limitation assigned by the ALJ. Instead, plaintiff simply argues, in general terms, that her depression is severe. Plaintiff's vague argument is unpersuasive. Even if the ALJ determined that plaintiff's depression was severe, plaintiff must still satisfy the second prong of the analysis and establish that she suffered from marked limitations to daily activities, social functioning or maintaining concentration or instances of decompensation. See Munn v. Comm'r of Soc. Sec., 2008 WL 2242654, at *10 (N.D.N.Y. 2008); see also Armstrong v. Comm'r of Soc. Sec., 2008 WL 2224943, at *12 (N.D.N.Y. 2008) (holding that even if the ALJ had determined that the plaintiff's depression was a medically determinable impairment, substantial evidence must exist to support a conclusion that the condition was severe and precluded the plaintiff from doing basic work activities).
Moreover, a review of the administrative record reveals substantial evidence to support the ALJ's assessment. In November 1998, plaintiff began treating with J. Michael O'Connell, M.D., after sustaining an injury as a result of a fall at work.*fn4 (T. 141). Dr. O'Connell treated plaintiff three times for complaints of low back pain. Dr. O'Connell's records contain no reference, diagnosis or treatment for depression or any other mental impairment. (T. 141-146). In December 1998, plaintiff began treating with Suzanne Begell, D.C., a chiropractor, for low back pain. Dr. Begell treated plaintiff two or three times a week until February 1999. (T. 154). Dr. Begell's records are similarly devoid of any reference to depression or any other mental impairment. (T. 154 - 165). In December 1998, plaintiff began treating with Niles Greenhouse, M.D., for lumbar spasms and pain, thoracic outlet syndrome and sciatica in both legs.*fn5 (T. 184). Dr. Greenhouse treated plaintiff until June 1999 and his records contain no mention of depression or any other mental impairment. (T. 184-202).
In August 1999, plaintiff began treating with Kristen Graves, M.D., a specialist in "adult medicine" at Syracuse Community Health Center, Inc.*fn6 (T. 204). During the initial visit, Dr. Graves diagnosed plaintiff with "depression secondary to chronic disability" and prescribed Zoloft.*fn7 (T. 204). For the next two months, Dr. Graves noted that Zoloft provided "some" or "minimal" relief. (T. 227, 230, 235). On November 30, 1999, Dr. Graves noted that plaintiff was "tearful" and "sad" and referred plaintiff to Laurie Sanderson, a certified social worker/counselor affiliated with Syracuse Community Health Center for psychosocial support. (T. 237, 510). In January 2000, Dr. Graves noted that plaintiff had not seen Ms. Sanderson as she was, "waiting until after the holidays". (T. 240). In February 2000, Dr. Graves noted that plaintiff's mood was better even though she still had not seen Ms. Sanderson. (T. 439). Dr. Graves examined plaintiff in March and April 2000 but her records contain no mention of depression or mental impairments.
(T. 439, 441). In May 2000, Dr. Graves referred plaintiff and her son to a pastor for counseling as plaintiff indicated that talking in church was helpful. (T. 443, 445). In June 2000, Dr. Graves noted plaintiff was tearful, "restarted" plaintiff on Zoloft and again encouraged plaintiff to make an appointment with Ms. Sanderson. (T. 447). In July 2000, plaintiff's mental status was "better". (T. 449). Dr. Graves examined plaintiff four times from August 2000 through February 2001. These records are devoid of any reference to depression or mental limitations. (T. 449-507). On February 28, 2001, Dr. Graves noted that plaintiff's depression was "worse after discontinuing Zoloft". (T. 507). Dr. Graves prescribed Effexor and indicated that she would refer plaintiff to a therapist closer to her home as plaintiff, "never did commence with Laurie Sanderson through our health center".*fn8 (T. 507). In July 2001, during plaintiff's last visit with Dr. Graves, plaintiff's mood was "ok" and plaintiff stated that she "took a break from seeing doctors".
(T. 508). Dr. Graves noted that plaintiff was not taking Effexor or Zoloft. (T. 508). On September 25, 2002, plaintiff had an initial ...