United States District Court, N.D. New York
March 13, 2015
SAMANTHA ISOLINA YOUNES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
EARL S. HINES, Magistrate Judge.
Samantha Isolina Younes ("Younes") seeks review of an adverse decision on her applications for child's and disability insurance benefits and supplemental security income available under the Social Security Act. See 42 U.S.C. § 402(d), 423(d)(1)(A), 1382c(a)(3).
I. Judicial Review
A reviewing court's limited role under 42 U.S.C. § 405(g) is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 42 U.S.C. § 405(g). Courts cannot retry factual issues de novo or substitute their interpretations of administrative records for that of the Commissioner when substantial evidence supports the decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). Neither can they overturn administrative rulings because they would have reached a different conclusion had the matter come before them in the first instance. See Campbell v. Astrue, 465 Fed.App'x 4, 5 (2d Cir. 2012) (summary order).
Congress further directs reviewing courts to take "due account" of "the rule of prejudicial error." 5 U.S.C. § 706; see also 28 U.S.C. § 2111 (directing that judgments given upon examination of records be "without regard to errors or defects which do not affect the substantial rights of the parties"); see also FED. R. CIV. P. 61 (stating that "the court must disregard all errors and defects that do not affect any party's substantial rights").
Younes, born in 1990, attended regular education classes, but dropped out of school in the eleventh grade. (T. 30, 37, 117). She subsequently obtained a GED certificate. (T. 30, 37).
Younes's longest term of employment was for about eight months as a cashier. She stopped working in 2010 after being fired for excessive absenteeism. (T. 30, 161-62). She has not worked since 2010. (T. 161).
Younes smokes cigarettes, and uses "1 bowl pack" of marijuana once a week. (T. 502). During the period between 2005 and 2008, she was arrested on various minor criminal charges including criminal trespassing, petty larceny, and possession of a forged instrument. (Id. ) She performed community service. (Id. ). Her last arrest was for domestic harassment, and those charges were dropped. (Id. ).
In 2010, when Younes was twenty years old, she applied for child's insurance benefits; thereafter, in 2011, she also applied for disability insurance benefits and supplemental security income, claiming that she became unable to work as of November 1, 2007, due to anxiety, depression and irritable bowel syndrome ("IBS"). (T. 161). After early administrative denials, she requested an evidentiary hearing, and her claim was assigned to administrative law judge, Thomas Grabeel ("ALJ Grabeel").
ALJ Grabeel conducted an evidentiary hearing in October, 2012. (T. 25-41). Younes, represented by legal counsel, attended and testified. (Id. ). The remaining sources of evidence included medical records, educational records, and medical consultant reports (both examining and nonexamining).
ALJ Grabeel denied Younes's applications in a written decision dated December 6, 2012. (T. 12-20). The Appeals Council denied Younes's request for review. (T. 1-6). Younes then instituted this proceeding.
III. Commissioner's Decision
Initially, ALJ Grabeel found that Younes met the insured status requirements of the Social Security Act through June 30, 2012, and that she did not engage in "substantial gainful activity" after her alleged onset of disability (even though she worked briefly). Next, ALJ Grabeel found that Younes has severe impairments consisting of irritable bowel syndrome, depression, and anxiety. (T. 15). Third, ALJ Grabeel found that Younes's impairments, singly or in combination, are not so extreme in degree as to be presumptively disabling under the Commissioner's listings of presumptively-disabling mental and physical impairments. (T. 15).
ALJ Grabeel then made a predicate finding of "residual functional capacity." He found that Younes remains physically capable of performing a full range of work at all exertional levels, but her mental impairments create nonexertional limitations that restrict her to performing only "simple unskilled work." (T. 16).
ALJ Grabeel found that Younes has no past relevant work history to contrast with her current residual functional capacity. (T. 19). Hence, ALJ Grabeel proceeded to the final step of sequential evaluation (Step 5) to determine whether there is available work that a person with Younes's residual functional capacity can perform. As an evidentiary basis for that finding, ALJ Grabeel consulted Medical-Vocational Guidelines, commonly referred to as "the grids." (T. 19). He concluded that a finding of "not disabled" was appropriate under the framework of Rule 204.00. (T. 19). Thus, Younes's application was denied. (T. 19-20).
IV. Points of Alleged Error
Younes's brief proffers two "issues" recorded verbatim in the note below. As argued, however, Younes identifies three alleged errors restated in logical analytical sequence as follows:
1. ALJ Grabeel erred in failing to consider Younes's obesity when determining severity of her impairments and residual functional capacity;
2. ALJ Grabeel failed to follow the "treating physician rule;" and
3. ALJ Grabeel failed to afford proper weight to opinions of a consultative examining physician.
V. Obesity (Restated Point 1)
If ALJ Grabeel erred in wholly failing to consider obesity, it is likely that none of his subsequent findings could be deemed as supported by substantial evidence. Consequently, this alleged error is examined first.
In November, 2008, Younes underwent a physical examination by her treating source, Louis Ianniello, M.D. Dr. Ianniello's treatment note recorded that Younes was a morbidly obese female weighing 258 pounds. (T. 646). Three years later, in November 2011, Younes submitted to another physical examination by a consulting physician, Kautilya Puri, M.D. At that time, Dr. Puri recorded Younes's height as 5'4" and her weight at 204 pounds. (T. 507). Dr. Puri also observed Younes to be "obese." (Id. ).
B. Governing Legal Principles
Obesity in and of itself is not a disability within the meaning of the Social Security Act. Administrative law judges, nonetheless, must consider whether obesity in combination with other impairments prevents claimants from working. See SSR 02-1p: TITLES II AND XVI: EVALUATION OF OBESITY, 67 Fed. Reg. 57, 859, 57, 860 (Sept. 12, 2002); see also Dutcher v. Colvin, No. 1:12-cv-1662 (GLS), 2014 WL 295776, at *6 (N.D.N.Y. Jan. 27, 2014) ("while obesity is not in and of itself a disability, it is a medically determinable impairment under the regulations, which the ALJ should consider when assessing an individual's RFC").
SSR 02-1p notes that obesity can cause functional limitation, and that functions likely to be limited depend on many factors, including where excess weight is carried, whether it causes sleep apnea/fatigue, whether it impacts social functioning, and any potential problems with ability to sustain work activity. It further instructs that obesity should be evaluated at various stages of sequential evaluation including whether:
The individual has a medically determinable impairment.
The individual's impairment(s) is severe.
The individual's impairment(s) meets or equals the requirements of a listed impairment in the listings.
The individual's impairment(s) prevents him or her from doing past relevant work and other work that exists in significant numbers in the national economy.
SSR 02-1p, 67 Fed. Reg. at 57, 861.
C. Younes's Challenge
ALJ Grabeel's decision does not mention Younes's obesity at any sequential-evaluation step. His residual functional capacity finding contains no obesity-related limitations ( e.g., nonexertional postural limitations relating to climbing, bending, stooping, etc.). Younes asserts, therefore, that ALJ Grabeel failed to apply correct principles of law, and that his Step 2 finding of severe impairments and his subsequent finding of residual functional capacity are fatally flawed.
Younes cites SSR 02-1p and cases listed in the note below for the proposition that administrative law judges have a duty to discuss effects of obesity on individuals' abilities to perform basic work activities. Her brief also quotes SSR 02-1p to demonstrate potential limiting functional effects of obesity. (SSR 02-1p states that " someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from the arthritis alone. ")
ALJ Grabeel's failure to even mention obesity predictably spawned this action for judicial review. That conspicuous omission, however, does not constitute reversible error per se. The fact that a particular factor or evidentiary item is not mentioned does not necessarily mean it was not considered. 
Cases cited by Younes are fact-specific, and do not establish an across-the-board requirement that Younes advocates. In Chavis, an obese patient's treating physician specifically referenced "weight reduction" as a measure to alleviate existing back pain. The court remanded the decision with instructions to clearly articulate findings linking the patient's limitations, if any, to obesity. In Hogan, obesity was found to be a severe impairment, but it was unclear whether obesity was considered subsequently at Steps 4 and 5 of sequential evaluation. Here, no medical source - treating or consultative - has found or suggested that obesity aggravates any of Younes's medically-determinable impairments or affects her ability to perform basic work activities. Hence, the factors warranting remands in Chavis and Hogan are absent.
Clear weight of current authority contravenes Younes's argument. First, there is no hard and fast rule requiring administrative law judges to single out claimants' obesity for discussion in all cases. Especially is that the case when, as here, the evidentiary record is devoid of evidence that medical sources consider obesity a significant factor relative to a claimant's ability to perform basic work activities. Further, reviewing courts recognize that administrative law judges implicitly factor obesity into their decisions when they rely on medical reports that note claimants' obesity and provide overall assessments of work-related limitations.
Here, no medical source identified Younes's obesity as a contributing factor to her impairments. Thus, one is hard-pressed to envision what there was for ALJ Grabeel to discuss. ALJ Grabeel relied on examining and reviewing consultative physicians' overall assessments of Younes's physical abilities. Examining physician, Dr. Puri, noted Younes's weight and characterized her as obese. Dr. Hoffman reviewed Dr. Puri's report as well as references to obesity in Dr. Ianneillo's treatment notes. Both sources implicitly accounted for Younes's weight.
Younes did not claim obesity as a disabling impairment, and even in current briefing before the court Younes fails to identify any limitation occasioned by her obesity. Under these circumstances, ALJ Grabeel's failure to address explicitly Younes's obesity is not an error warranting remand.
VI. Weighting of Medical Opinion (Restated Points 2 and 3)
Younes's remaining arguments challenge ALJ Grabeel's weighting of medical opinion evidence.
As a threshold matter, it is appropriate to note that administrative law judges, when determining existence and severity of medically-determinable impairments, and also when assessing claimants' residual functional capacities, rely principally on medical source opinion. The Commissioner categorizes medical opinion evidence by "sources" described as "treating, " "acceptable" and "other." Evidence from all three sources can be considered when determining severity of impairments and how they affect individuals' ability to function.
A "treating physician rule" requires administrative law judges to give controlling weight to opinions of treating sources regarding the nature and severity of impairments when they are "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence in [the] case record."
State agency medical consultants are recognized experts in evaluation of medical issues in disability claims under the Act. See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). Accordingly, their opinions can constitute substantial evidence. See Russell v. Colvin, No. 5:13-cv-1030 (MAD/CFH), 2015 WL 570828, at *12-13 (N.D.N.Y. Feb. 11, 2015). Consultative opinions can be afforded even greater weight than treating-source opinions when there is good reason to reject treating source opinion, and substantial evidence supports them. The Commissioner instructs:
In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources. For example, the opinion of a State agency medical or psychological consultant or other program physician or psychologist may be entitled to greater weight than a treating source's medical opinion if the State agency medical or psychological consultant's opinion is based on a review of a complete case record that includes a medical report from a specialist in the individual's particular impairment which provides more detailed and comprehensive information than what was available to the individual's treating source.
SSR 96-6p, TITLES II AND XVI: CONSIDERATION OF ADMINISTRATIVE FINDINGS OF FACT BY STATE AGENCY MEDICAL AND PSYCHOLOGICAL CONSULTANTS AND OTHER PROGRAM PHYSICIANS AND PSYCHOLOGISTS AT THE ADMINISTRATIVE LAW JUDGE AND APPEALS COUNCIL LEVELS OF ADMINISTRATIVE REVIEW, 1996 WL 374180, at *3 (SSA July 2, 1996).
Medical evidence at issue here is summarized as follows:
Louis Ianniello, M.D. (treating primary care physician)
Dr. Ianniello, with Capital Care Medical Group, Family Practice Cushing Center, has been treating Younes since at least age 18. (T. 642). His progress notes reflect treatment for a variety of complaints, including asthma, gastrointestinal issues, abdominal pain, irritable bowel syndrome, nausea, diarrhea, herpes simplex, anxiety, and depression. (T. 588, 589, 610, 611, 613, 615, 636, 638, 644, 646, 649, 655, 659, 661, 664, 666, 669, 670, 807). Dr. Ianniello's progress notes are consistent with Younes's emergency room visits for the same complaints during the relevant time period. (T. 226-36, 642, 806). Dr. Ianniello, as her primary care physician, received copies of consultation reports from specialists evaluating her abdominal pain, diarrhea, nausea, and vomiting. (T. 564-68, 897-98, 899-900, 901-02, 903-05).
Toula Georgiou, Psy.D. (psychiatric consultative examiner)
In November 2011, Dr. Georgiou conducted a mental status examination, noting that Younes was cooperative and her manner of relating was adequate; her appearance was observed as disheveled, but well groomed; her speech was clear and expressive and receptive languages were adequate; her thought processes were coherent and goal directed; her mood was neutral; her attention and concentration was mildly impaired, but was able to do counting forward and back and simple calculations; her recent and remote memory skills were mildly impaired; her cognitive functioning was average; and her insight and judgment were fair. (T. 502-03). Dr. Georgiou diagnosed Younes with a mood disorder, personality disorder, and asthma. (T. 503). He gave her a "fair" prognosis. (T. 504). Dr. Georgiou provided the following medical source statement:
She is able to follow and understand simple directions and instructions, perform simple tasks independently, attend and concentrate on simple tasks. She may have difficulty maintaining a regular schedule, having to perform some complex tasks at times, making vocational type decisions, relating with others in a vocational setting, and dealing with stress.
Results of the present evaluation appear to be consistent with psychiatric difficulties that may significantly interfere with the claimant's ability to function on a daily basis.
L. Hoffman, Psychology (state agency reviewing psychologist)
In late-November, 2011, after reviewing Younes's longitudinal medical records, Dr. Hoffman completed a Psychiatric Review Technique form in which he rated Younes's functional limitations as mild in the area of activities of daily living; moderate in the areas of maintaining social functioning; and one or two in the area of repeated episodes of deterioration. (T. 520-21). Additionally, Dr. Hoffman completed a Mental Residual Functional Capacity Assessment, finding Younes "moderately" limited in 10 areas and "not significantly limited in the remaining ten areas. (T. 525-26). Moreover, Dr. Hoffman provided summary conclusions in narrative form as follows:
... [D]espite a severe impairment, clmt [ sic ] is viewed as able to understand and remember simple instructions, sustain attention and concentration for simple tasks, respond and relate adequately to others and adapt to simple changes.
B. ALJ Grabeel's Credibility Assessments
When assessing Younes's residual functional capacity, ALJ Grabeel twice cited "Exhibit 16F" which contained primary care physician Dr. Ianniello's treatment notes. (T. 17). ALJ Grabeel did not mention Dr. Ianniello by name, however. Nor did he assign any quantum of weight to evidence from Dr. Ianniello.
ALJ Grabeel mentioned both Dr. Georgiou and Dr. Hoffman by name, and he also gave their opinions regarding Younes's mental capacity "greatest weight." He "adopted and incorporated by reference" Dr. Georgiou's opinion that Younes can "follow and understand simple directions and instructions, perform simple tasks independently, and attend and concentrate on simple tasks." (T. 18). He stated that he credited both Dr. Hoffman's and Dr. Georgiou's opinions because they were "the only acceptable medical sources to offer a detailed and precise opinion on the claimant's abilities and limitations, and provided specific work-related limitations." Id.
ALJ Grabeel, however, "accorded little value" to Dr. Georgiou's conjectural notations that Younes "may have difficulty maintaining a regular schedule, having to perform some complex tasks at times, making vocational type decisions, relating with others in a vocational setting and dealing with stress." Id. The reasons given for rejecting this aspect of Dr. Georgiou's report was that "these limitations were based on a one-time examination, are not supported by other evidence of record and are not quantified." Id.
C. Younes's Challenge
Younes contends ALJ Grabeel violated the treating physician rule by not mentioning Dr. Ianniello by name or providing his opinions controlling or any weight. Younes concedes that "Dr. Ianniello did not provide a medical source statements ( sic ) specifically outlining claimant's functional limitations, " but argues that Dr. Ianniello's "copious medical records show a lengthy treating relationship with the claimant." (Dkt. No. 12, p. 4). Younes maintains that those records reflect numerous patient-reported complaints consistent with entries in medical records from other providers and treatment centers. Younes argues that ALJ Grabeel had a legal duty to provide good reasons "for not crediting the opinion of Ms. Younes's treating physician, " and instead of doing so, "his decision ignores [Dr. Ianniello] completely." (Id. ).
By inference, Younes argues in passing that it was error for ALJ Grabeel to afford "greatest weight" to opinions of the consultative examiner (Dr. Georgiou) and non-examining state agency medical reviewer (Dr. Hoffman). Younes explicitly argues, however that ALJ Grabeel's reasons for affording only "little value" to some portions of Dr. Georgiou's opinion are nonsensical.
1. Failure to Give Controlling Weight to Treating Physician
Younes's argument that ALJ Grabeel violated the treating physician rule is based on a faulty premise that Dr. Ianniello expressed an opinion presumptively entitled to controlling weight. The only evidence from Dr. Ianniello consists of treatment notes recording Younes's complaints and documenting prescribed medications and other treatments. Those notes do not contain a formal psychiatric review or results of mental-function diagnostic tests. Dr. Ianniello's findings or observations did not evaluate Younes's physical or mental abilities to perform activities generally required by competitive, remunerative work on a regular and continuing basis. In short, they do not constitute a medical opinion presumptively entitled to controlling weight or susceptible to six-factor evaluation prescribed by regulation for weighing forensic medical source opinion.
Given this vacuity, ALJ Grabeel cannot be faulted for failing to give Dr. Ianniello's treatment notes controlling or any specific quantum of weight. Nor was it error for him to give "greatest weight" to opinions of the two state agency consultants who possessed greater degrees of specialization, were highly-qualified experts in Social Security disability evaluation, and were "the only acceptable medical sources to offer a detailed and precise opinion on the claimant's abilities and limitations and provided specific work-related limitations." (T. 18).
2. Incongruous Weighting
ALJ Grabeel afforded "greatest weight" to that portion of consultative-examining psychiatrist Dr. Georgiou's opinion which supported a finding that Younes retains capacity to meet mental demands of unskilled work. He afforded "little value, " however, to the portion of Dr. Georgiou's opinion indicating that Younes may have difficulty with maintaining a regular schedule, performing complex tasks, making vocational type decisions, relating with others in a vocational setting, and dealing with stress. (T. 18).
Reviewing courts decry administrative "cherry picking" of relevant evidence. This term refers to crediting evidence that supports administrative findings while ignoring conflicting evidence from the same source. See Smith v. Bowen, 687 F.Supp. 902, 904 (S.D.N.Y. 1988) (citing Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir. 1983)); see also Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) ("The ALJ is not entitled to pick and choose from a medical opinion, using only those parts that are favorable to a finding of nondisability."). "Cherry picking" can indicate a serious misreading of evidence, failure to comply with the requirement that all evidence be taken into account, or both. Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010).
There is no absolute bar to crediting only portions of medical source opinions. But, when doing so smacks of "cherry picking" of evidence supporting a finding while rejecting contrary evidence from the same source, an administrative law judge must have a sound reason for weighting portions of the same-source opinions differently.
ALJ Grabeel's rationale for giving greatest weight to part of Dr. Georgiou's opinion and little value to the remainder was unsound. It was nonsensical to discredit part of Dr. Georgiou's opinion on the ground that it was "based on a one-time examination" while affording greatest weight to other portions also based on a one-time examination. (T. 18). It was patently unreasonable to infer that the rejected portion was contrary to "other evidence of record" when there was no other evidence of record (except for Dr. Hoffman's subsequent opinion based largely on Dr. Georgiou's report). And, for that matter, one might have said the same about the portion of Dr. Georgiou's opinion that was afforded greatest weight.
ALJ Grabeel thus committed a "cherry picking" error in the weighting of Dr. Georgiou's forensic opinions. Even so, a reviewing court may not reverse and remand the case if that error was harmless. To make that determination, the court must determine whether the result would have been the same absent the error. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("[W]here application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration.").
Here, ALJ Grabeel's error in weighting Dr. Georgiou's opinions was harmless. Had ALJ entirely rejected Dr. Georgiou's opinions, there is no reason for the court to conclude ALJ Grabeel would have made a different decision. Under the specific facts of this case, Dr. Hoffman's separate longitudinal review and opinion (that Younes, despite her severe mental impairment, is able to understand and remember simple instructions, sustain attention and concentration for simple tasks, respond and relate adequately to others, and adapt to simple changes) would constitute substantial evidence of residual functional mental capacity for unskilled work.
Conversely, if Dr. Georgiou's opinions were given "greatest weight" in their entirety (as Younes apparently advocates), there would have been no overarching reason mandating that ALJ Grabeel assess residual functional capacity differently. Dr. Georgiou opined only that Younes "may" have difficulties in performing some work activities and in dealing with stress. This ambivalent, conjectural and unspecific observation connotes only a possibility, not a reasonably-certain medical probability, that Younes has additional mental limitations. ALJ Grabeel would have acted within sound discretion in declining to include them in his residual functional capacity assessment.
Finally, ALJ Grabeel's residual functional capacity finding adequately factored in limitations in maintaining concentration, persistence and pace and difficulties dealing with stress. See, e.g., Bartell v. Commissioner of Soc. Sec., No. 5:13-cv-843 (GLS/ESH), 2014 WL 4966149, at *3 (N.D.N.Y. Sept. 30, 2014) (citing cases holding that residual functional capacity assessments limiting claimants to simple unskilled work adequately account for moderate limitations in concentration, persistence, and pace as well as difficulties with stress).
Taking into account the rule of prejudicial error, Younes's request to remand this action should be DENIED. The Commissioner's decision should be AFFIRMED.
Parties have fourteen (14) days to file specific, written objections to the Report and Recommendation. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THE REPORT, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Graham v. City of New York, 443 Fed.App'x 657, 658 (2d Cir. 2011) (summary order); FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c).