United States District Court, N.D. New York
TONYA N. STOTTLAR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,  Defendant.
DECISION AND ORDER
THOMAS J. McAVOY, Senior District Judge.
Tonya N. Stottlar ("Plaintiff" or "the claimant") brought this suit under the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c) to review a final determination of the Commissioner of Social Security ("Commissioner") denying her applications for disability and disability insurance benefits ("DIB") under Title II, and supplemental security income under Title XVI. Plaintiff argues that the decision of the ALJ denying her applications for benefits was not supported by substantial evidence and was 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. Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs with a motion for judgment on the pleadings.
II. PROCEDURAL HISTORY
On January 23, 2008, Plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits. Plaintiff also protectively filed a Title XVI application for supplemental security income on January 23, 2008. In both applications, Plaintiff alleged disability beginning July 4, 2006. These claims were denied initially on May 30, 2008. Thereafter, Plaintiff filed a written request for hearing on June 16, 2008 (20 CFR 404.929 et seq. and 416.1429 et seq.). Subject to informal remand, the application was returned to the State Agency level for further development and determination. The State Agency determined that the claim could not be approved and returned it to the hearing level. On January 7, 2010, a hearing was held at which Plaintiff's testimony was taken. The Administrative Law Judge ("ALJ") issued a "Notice of Decision-Unfavorable" on June 7, 2010, denying Plaintiff's applications. Plaintiff appealed this decision by filing an administrative Request for Review of Hearing Decision/Order, dated August 6, 2010, with the Appeals Council. The Appeals Council denied Plaintiff's request for review on November 13, 2012. The instant appeal to this Court followed.
III. FACTUAL BACKGROUND
The parties do not dispute the underlying facts of this case as set forth by Plaintiff in her memorandum of law. Accordingly, the Court assumes familiarity with these facts and will set forth only those facts material to the parties' arguments.
IV. THE COMMISSIONER'S DECISION
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2011.
2. The claimant has not engaged in substantial gainful activity since July 4, 2006, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following "severe" impairments: bilateral de Quervain's tenosynovitis; major depressive disorder; and anxiety disorder, not otherwise specified (20 CFR 404.1520(c) and 416.920(c)).
The ALJ found that Plaintiff's allegation of disabling symptoms from back pain is not supported by the record; that Plaintiff's obesity is not "severe" in that it does not more than minimally affect her ability to engage in work activity; and that Plaintiff's borderline diabetes is not a "severe" impairment.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
The ALJ considered listing 1.02(B), which requires involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand) resulting in inability to perform fine and gross movements effectively, however he found the severity of Plaintiff's impairment did not rise to the level contemplated by the listing as shown by her ability to prepare simple meals and feed herself and perform personal hygiene.
The ALJ also found Plaintiff's mental impairment did not meet or medically equal the criteria of listing 12.04. In making this finding, the ALJ considered whether the "paragraph B" criteria were satisfied. The ALJ adopted the determination of the psychology consultant who reviewed the file at the State agency level, and determined:
In activities of daily living, the claimant has mild restriction. The claimant's treating psychiatrist, Thomas Schwartz, M.D., observed that the claimant appeared her stated age when presenting for appointments (Exhibits 7F and 28F). The claimant told Jeanne Shapiro, Ph.D., who examined her for the Administration in April 2008 that she was able to work, depending on the position (Exhibit 12F). On examination, the claimant looked her stated age and was appropriately dressed with good hygiene and grooming. The claimant reported that she was able to bathe, dress and groom on a daily basis. The claimant said that she did limited food preparation, cooking, cleaning, laundry, and shopping, drove a little, and did not use public transportation. However, the claimant independently maintained herself and her three children in the community.
In social functioning, the claimant has moderate difficulties. Dr. Schwartz found the claimant cooperative during evaluations, with normal speech and no abnormal movements and good eye contact, although her affect was sometimes dysphoric, constricted and congruent (Exhibits 7F and 28F). The claimant told Dr. Shapiro that she did not like being around people very much and would need a job where she was away from people (Exhibit 12F). The claimant said that socially she got along well with friends and family some of the time. On examination, the claimant's demeanor and responsiveness to questions was cooperative. Her manner of relating, social skills, and overall presentation were adequate. Her gait, posture, and motor behavior were normal. Her eye contact was appropriate. Her expressive and receptive language skills were adequate. In September 2009, Dr. Schwartz indicated that the claimant was experiencing panic attacks and agoraphobia (Exhibit 28F); however, other than the claimant's subjective reports to the doctor, there is no evidence in the record.
With regard to concentration, persistence or pace and giving the claimant the benefit of doubt, the claimant has mild to moderate difficulties. The claimant complained of difficulty concentrating. Dr. Schwartz stated that the claimant's attention and concentration were normal and that her thought processes were fully organized (Exhibit 7F and 28F). The claimant told Dr. Shapiro that she obtained a G.E.D. and was in regular education in school (Exhibit 12F). On examination, the claimant's thought processes were coherent and goal-directed, attention, concentration, and memory skills were intact. The claimant said that she could manage money.
As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended duration. The claimant told Dr. Shapiro that she had no psychiatric hospitalizations (Exhibit 12F). There is no evidence of any psychiatric admissions in the record.
Because the claimant's mental impairment does not cause at least two "marked" limitations or one "marked" limitation and "repeated" episodes of decompensation, each of extended duration, the "paragraph B" criteria are not satisfied.
The ALJ also found that the evidence failed to establish the presence of the "paragraph C" criteria. (Tr. 32-33). The ALJ concluded:
The limitations identified in the "paragraph B" criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of Impainnents (SSR 96-8p). Therefore, the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the "paragraph B" mental function analysis.
5. The claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can perform handling and fingering frequently, defined as up to two-thirds of the workday, but not continuously (repetitively). Mentally, the claimant can understand, remember, and carry out simple instructions, respond appropriately to supervision, coworkers and usual work situations, on a sustained basis, and deal with changes in a routine work setting.
In making this determination, the ALJ indicated that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." (Tr. 33). The ALJ also indicated:
In considering the claimant's symptoms, the undersigned must follow a two-step process in which it must first be determined whether there is an underlying medically determinable physical or mental impairment(s)-i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, the undersigned must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must make a finding on the credibility of the statements based on a consideration of the entire case record.
In his decision, the ALJ noted that Plaintiff testified that the most significant condition that kept her from working was her wrist impairment that caused pain, swelling, and difficulty grasping. Plaintiff stated that her wrists went weak and numb sometimes causing inability to feel the object in her hand and, consequently, she dropped the object. She said that she tried several different types of splints; however, they didn't help and she no longer wore them. She confirmed that she prepared meals, performed light housework, and could take care of her personal hygiene. She said that she could tie shoelaces, but not button a coat. She asserted that she could not write a full sentence and was limited in computer use. She contended that her medications did not help but she continued to take them because she feared her condition would be worse without them. She stated that at the onset of her impairment she could not lift eight to ten pounds and her condition progressed since then. She testified that she could stand one hour and walk one mile on level ground. She further testified that she had anxiety and depression and had received mental health counseling for five or six years. When questioned regarding improvement in symptoms during that time period, Plaintiff responded that she went from being suicidal to non-suicidal. She said that her anxiety interfered at times with driving. She stated that there were days when she would not leave the house and did not go anywhere except appointments, and that she tended to hibernate and hide from everybody. She testified that she had difficulty sleeping. She said that she had no drug and alcohol history.
The ALJ found that "[t]he claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the  residual functional capacity assessment." (Tr. 34). The ALJ noted:
The records indicate that the claimant walked her dog, although complaining that it exacerbated her symptoms (Exhibit 1F, page 7), suggested computer online courses, which her doctor thought was an "excellent" idea, and engaged in reading, all of which requires use of the hands for gross and fine motor skills. Symptom exaggeration was noted by treating and examining sources. The claimant's occupational therapist noted symptom exaggeration was evident since the claimant was independently driving and independently completing activities of daily living (Exhibit 1F, page 8). The therapist also noted that the claimant's symptoms were not changing with therapy services and the complaints were "very generalized." Also noted was that there was no discernible pattern for the claimant's symptoms. When examined by Daniel Carr, M.D., for the purposes of Workers' Compensation in December 2006, the claimant stated that after an hour of work, her hands would be swollen and painful, which progressed to burning and aching up to her elbows (Exhibit 4F). The doctor asked what activities at work caused these symptoms. The claimant responded that she could not specify the activities and stated that, because the symptoms occurred at work, she assumed it was work-related. The claimant stated that her symptoms were worsening. The doctor stated that the claimant had chronic nonspecific upper extremity symptoms that made no sense from any orthopedic abnormality because her symptoms did not follow any known anatomic pattern. He stated that she had "obvious submaximal effort" on exam, demonstrated by her grip testing with a grip dynamometer showing she generates zero grip strength with both hands. Dr. Carr stated that there was no explanation from an orthopedic or organic point of view as to why her symptoms would be worsening when she had not been working. The claimant presented for a functional capacity evaluation in February 2010 which was deemed invalid because of very poor effort on the ...