United States District Court, N.D. New York
The Stanley Law Offices Jaya Shurtliff, Esq., Syracuse, New York, Attorney for Plaintiff.
Sixtina Fernandez, Esq., Special Asst. U.S. Attorney, Social Security Administration, Office of General Counsel, New York, NY, Attorney for Defendant
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff Jamie McGill, brings the above-captioned action pursuant to 42 U.S.C. § 405(g) seeking a review of the decision from the Commissioner of Social Security ("Commissioner") that denied her application for disability insurance benefits ("DIB").
On September 28, 2009, plaintiff protectively filed an application for DIB benefits. (T. 148-153). Plaintiff was 30 years old at the time of the application with prior work experience as an optical assistant and "seasonal help/counter help" in the rental car and retail industry. (T. 165). Plaintiff was a member of the U.S. Military from July 1998 until June 1999. (T. 150). Plaintiff claimed that she became unable to work beginning on May 4, 2010 due to post traumatic stress disorder; borderline personality disorder; asthma; herniated disc; nerve damage, high blood pressure and radiculitis. (T. 177).
On February 16, 2011, plaintiff's application was denied and plaintiff requested a hearing by an Administrative Law Judge ("ALJ"), which was held on March 5, 2012. (T. 57, 10-24). Plaintiff appeared with an attorney. On March 30, 2012, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 10-24). The Appeals Council denied plaintiff's review on March 26, 2013, making the ALJ's decision the final determination of the Commissioner. (T. 1-5). 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).
The ALJ found at step one that plaintiff has not engaged in substantial gainful activity since May 4, 2010. (T. 12). At step two, the ALJ concluded that plaintiff suffered from the following severe impairments: asthma, degenerative disc disease with related symptoms; post-traumatic stress disorder; depression and borderline personality disorder. (T. 12). At step three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in the Listing of Impairments. The ALJ then found the plaintiff had the Residual Functional Capacity ("RFC") to "perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can never climb ladders ropes or scaffolds and can only occasionally balance, stoop, kneel, crouch, crawl or climb ramps and stairs. With regards to her non-dominant hand, she can only frequently handle, finger or grasp and occasionally push and pull. She is to avoid concentrated exposure to fumes, odors, dust, gases and poor ventilation. Furthermore, the claimant is limited to unskilled work, i.e., simple routine repetitive tasks, involving only simple work related decisions with few, if any, work place changes, and only occasional interaction with supervisors, coworkers and the public". (T. 14). At step four, the ALJ concluded that plaintiff was not capable of performing any past relevant work. (T. 22). 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 surveillance system/alarm monitor, addresser/mail sort clerk and clerical sorter. (T. 23-24). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 24).
In seeking federal judicial review of the Commissioner's decision, plaintiff alleges that: (1) the ALJ failed to comply with the Regulations relating to the medical opinion evidence; (2) the ALJ's credibility analysis is flawed; and (3) the vocational expert was presented with an incomplete hypothetical due to the ALJ's errors in evaluating the RFC and plaintiff's subjective complaints. (Dkt. No. 8).
I. MEDICAL OPINION EVIDENCE
The Second Circuit has defined a treating physician as one "who has provided the individual with medical treatment or evaluation and who has or had an ongoing treatment and physician-patient relationship with the individual." Coty v. Sullivan, 793 F.Supp. 83, 85, 86 (S.D.N.Y.1992) (quoting Schisler v. Bowen, 851 F.2d 43 (2d Cir.1988)). 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); see also Rosa, 168 F.3d at 78, 79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). 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). The Regulations also specify that the Commissioner "will always give good reasons in [her] notice of determination or decision for the weight [she] give[s] [claimant's] treating source's opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004) (citing 20 C.F.R. § 404.1527(d)(2)); see also Schaal v. Apfel, 134 F.3d 501, 503, 504 (2d Cir.1998).
The opinion of a treating physician is not afforded controlling weight where the treating physician's opinion contradicts other substantial evidence in the record, such as the opinions of other medical experts. See Williams v. Comm'r of Soc. Sec., 236 F.App'x 641, 643-44 (2d Cir. 2007); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing 20 C.F.R. § 404.1527(d)(2)). "Similarly, treating source opinion can be rejected for lack of underlying expertise, or when it is brief, conclusory and unsupported by clinical findings, or when it appears overly sympathetic such that objective impartiality is doubtful and goal-oriented advocacy is reasonably suspected." Orts v. Astrue, 2012 WL 6803588, at *5 (N.D.N.Y. 2012) (citations omitted). "While the final responsibility for deciding issues relating to disability is reserved to the Commissioner, the ALJ must still give controlling weight to a treating physician's opinion on the nature and severity of a plaintiff's impairment when the opinion is not inconsistent with substantial evidence. See Martin v. Astrue, 337 F.App'x 87, 89 (2d Cir. 2009).
Pursuant to 20 C.F.R. § 404.1527(1), every medical opinion, regardless of its source, must be evaluated. However, the treating physician rule does not apply to consulting doctors. See Jones v. Shalala, 900 F.Supp. 663, 669 (S.D.N.Y. 1995); see also Limpert v. Apfel, 1998 WL 812569, at *6 (E.D.N.Y.1998). An ALJ may "rely upon the opinions of both examining and non-examining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of Social Security disability." Williams v. Astrue, 2011 WL 831426, at *11 (N.D.N.Y.2011) (citing 20 C.F.R. §§ 404.1512(b)(6), 404.1513(C), 404.1527(f)(2), 416.912(b)(6), 416.913, and 416.927(f)(2)). The weight afforded a consultative opinion depends upon the thoroughness of the underlying medical examination and the degree of light the opinion sheds on the conflicting assessment of the treating physician. Gray v. Astrue, 2009 WL 790942, at *10-11 (N.D.N.Y.2009) (citation omitted). While an ALJ must give "good reasons" if he does not give a treating physician's opinion sufficient weight, there is no similar requirement for consulting physicians. Id. (citing ...