Gent v. Berryhill

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          Stefan R. Underhill United States District Judge.

         In the instant Social Security appeal, Carrie Beth Gent (“Gent”) moves to reverse the decision by the Social Security Administration (“SSA”) denying her disability insurance benefits. The Commissioner of Social Security moves to affirm the decision. Because the decision by the Administrative Law Judge (“ALJ”) was supported by substantial evidence, I grant the Commissioner's motion and deny Gent's.

         I. Standard of Review

         The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not working, the Commissioner determines whether the claimant has a “‘severe' impairment, ” i.e., an impairment that limits his or her ability to do work-related activities (physical or mental). Id. (citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does not have a severe impairment, the Commissioner determines whether the impairment is considered “per se disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner determines the claimant's “residual functional capacity” based on “all the relevant medical and other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual functional capacity” is defined as “what the claimant can still do despite the limitations imposed by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant's residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20 C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant work, the Commissioner determines, “based on the claimant's residual functional capacity, ” whether the claimant can do “other work existing in significant numbers in the national economy.” Id. (citing 20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential, ” meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

         The claimant bears the ultimate burden to prove that he or she was disabled “throughout the period for which benefits are sought, ” as well as the burden of proof in the first four steps of the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the Commissioner need only show that “there is work in the national economy that the claimant can do; he [or she] need not provide additional evidence of the claimant's residual functional capacity.” Id.

         In reviewing a decision by the Commissioner, I conduct a “plenary review” of the administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.”). I may reverse the Commissioner's decision “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole.” Greek, 802 F.3d at 374-75. The “substantial evidence” standard is “very deferential, ” but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447-48. Rather, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect interpretation of the law, “[i]f there is substantial evidence to support the determination, it must be upheld.” Selian, 708 F.3d at 417.

         II. Facts

         Gent applied for Social Security disability insurance benefits on February 6, 2015, alleging that she had been disabled since August 1, 2001. Later, she amended the alleged disability onset date to December 10, 2007. ALJ Decision, R. at 11. Gent identified her disabilities as, among other things, “discectomy of the lumbar spine, anxiety, and depression.” Compl., Doc. No. 1 at ¶ 4. The SSA initially denied Gent's claim on June 15, 2015, finding that although Gent's “condition result[ed] in some limitations in [her] ability to perform work related activities, . . . [her] condition [was] not severe enough to keep [her] from working.” Disability Determination Explanation (Initial), R. at 80. The SSA adhered to its decision upon reconsideration on January 12, 2016. Supplemental Security Income Notice of Reconsideration, R. at 144. Gent then requested a hearing before an ALJ, which was held on May 24, 2017. Tr. of ALJ Hr'g, R. at 37. At the hearing, ALJ Edward F. Sweeney questioned Gent and her non-attorney representative about Gent's three pending claims, which included applications for Disability Insurance Benefits, Supplemental Security Income Benefits, and Disabled Adult Child Benefits. Tr. of ALJ Hr'g, R. at 37. During her testimony, Gent voluntarily withdrew both of her Title II claims, leaving only the claim for Supplemental Security Income. Id. at 41.

         The ALJ questioned Gent about her work history, her alleged ailments, and her ability to perform daily working and living functions. From 2002 to 2007, Gent testified that she worked approximately 30 hours per week as a nanny. Id. at 44. She testified that she “took some classes in college, ” but has not worked at all since 2007. Gent also testified that she suffered from “excruciating pain that . . . kept [her] from being able to stand or even get out of bed.” Id. at 45. Gent testified that she underwent back surgery in 2011; however, she could not “sit, stand, or walk for any amount of time.” Id. Gent explained that she experiences panic attacks roughly twice a week, and that each episode lasts approximately 30 minutes. During her testimony, Gent described debilitating bouts of depression that last two or three days. She also testified that she suffers from incontinence, which limits her ability to “do things.” When pressed, Gent clarified that she “[doesn't] have an accident, but [she] could almost have one almost every day, if [she] didn't make it to a bathroom in time.” Id. at 51.

         With respect to her lifestyle, Gent reported that she drives every day, shops for groceries, visits friends, uses a computer, and spends time outside with her dogs. Id. at 43-49. On occasion, Gent babysits for her friends. She also testified that she requires “a lot of assistance with household chores, especially laundry.” Id. at 48. Gent explained that she could only prepare “quick snacks” because she could not stand for long periods in front of a stove. Id. at 49.

         The ALJ also heard testimony from a vocational expert, Hank Lerner. The ALJ presented Lerner with a hypothetical of a person who “was limited to a range of work defined as light with occasional . . . balancing, stooping, kneeling, crouching, and crawling, ” and who could “understand, remember, and carry out simple tasks in a setting with occasional public contact and occasional contact with co-workers.” Id. at 57-58. Lerner testified that such a person could be employed in positions that require light levels of exertion, such as “unskilled, simple assembly positions.” Id. at 58. In the second hypothetical, the ALJ asked Lerner to “further assume this individual is limited to a range of work defined as sedentary.” Id. at 59. In response, Lerner listed various positions, classified as sedentary and unskilled, available in the national economy. Id. at 59. Lerner explained that some positions would require “some public contact” but the contact would be “fleeting . . . you know, seconds.” Id. at 59. Lerner further testified that Gent would be unable to perform her past work as a nanny because the position of child monitor is defined by the Dictionary of Occupational Titles as a semi-skilled position requiring medium exertion. Id. at 58. When the ALJ presented the third hypothetical question to the vocational expert, he asked whether there were jobs available for an individual who required “periods of rest or absence or would otherwise have unpredictable periods of time off task.” Id. at 60. Lerner replied that if the hypothetical person required periods of rest or absence “greater than 10%” of a typical workday, then jobs did not exist in the economy for that person. Id.

         After the hearing, on June 7, 2017, the ALJ issued an opinion in which he found that Gent “ha[d] not been under a disability within the meaning of the Social Security Act since February 6, 2015, the date the application was filed.” ALJ Decision, R. at 12. At the first step, the ALJ found that Gent “ha[d] not engaged in substantial gainful activity since February 6, 2015, the application date.” Id. at 14. At the second step, the ALJ found that Gent's “status-post discectomy of the lumbar spine, anxiety, and depression” were “severe impairments” that “significantly limit[ed] [her] ability to perform basic work activities.”^[1] Id.

         At the third step, the ALJ determined that “[Gent's] physical impairments, considered singly and in combination, [did] not meet or medically equal the criteria of any impairment listed in 1.04, 12.04, or 12.06.” Id. at 15. The ALJ then assessed Gent's residual functional capacity and found that she could “perform light work . . . with occasional climbing of ramps and stairs; never climbing of ladders, ropes, or scaffolds; and occasional balancing, stooping, kneeling, crouching, or crawling.” Id. at 17. The ALJ also determined that Gent was “able to understand, remember, and carry out simple tasks in a setting with occasional public contact and occasional contact with co-workers.” Id.

         Although Gent's residual functional capacity would not allow her “to perform any past relevant work, ” ALJ Sweeney determined that “there are jobs that exist in significant numbers in the national economy that [Gent] [could] perform.” Id. at 24. Relying on “the testimony of the vocational expert, ” the ALJ ruled that Gent “[was] capable of making a successful adjustment to other work that exists in significant numbers in the national economy, ” and that “[a] finding of ‘not disabled' [was] therefore appropriate.” Id. at 25.

         Gent requested a review of the ALJ's decision by the SSA's Appeals Council on June 20, 2017. Request for Review of Hearing Decision/Order, R. at 247. Finding that there was “no reason . . . to review the [ALJ]'s decision, ” the Appeals Council “denied [Gent's] request for review” on October 11, 2017. Notice of Appeals Council Action, R. at 6. Gent then filed a complaint in this Court on December 13, 2017, requesting that I reverse the Commissioner's decision. Compl., Doc. No. 1.

         III. Discussion

         On appeal, Gent does not challenge the ALJ's findings that she “ha[d] not engaged in substantial gainful activity since February 6, 2015, ” ALJ Decision, R. at 14; that she suffered from a number of “severe impairments, ” such as “status-post discectomy of the lumbar spine, anxiety, and depression, ” id.; that her impairments did not “meet or medically equal the criteria of any impairment listed in 1.04, 12.04, or 12.06, ” id. at 15; and that “there are jobs that exist in significant numbers in the national economy” that a person with the residual functional capacity found by the ALJ could perform, id. at 24. Instead, she attacks the ALJ's residual functional capacity finding at step four and the process by which the ALJ arrived at it.

         The issues for my review are (1) whether the ALJ properly weighed the medical opinion evidence, (2) and whether the ALJ properly evaluated Gent's testimony. The first issue appears partly to be a legal question subject to de novo review-insofar as it turns on whether the ALJ properly applied SSA regulations-and partly to be a factual question where the ALJ's “findings must be given conclusive effect so long as they are supported by substantial evidence.” See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (internal quotation marks omitted). The second issue is a factual question that must be affirmed if there is substantial evidence supporting the ALJ's determination.

         A. Did the ALJ properly evaluate the medical opinion evidence?

         Gent argues that the ALJ's decision improperly gave only “partial weight” to opinions from Gent's treating physicians in determining Gent's residual functional capacity, and instead assigned “substantial weight” to non-examining state agency physicians. Pl.'s Mem. Supp. Mot. J. Pleadings, Doc. No. 18 at 2. With respect to Gent's physical impairments, the ALJ gave “partial weight” or “little weight” to the opinions of Dr. Phyllis Grable-Esposito, Gent's neurologist, because Dr. Grable-Esposito's conclusion regarding the level of Gent's pain was not supported “with objective medical evidence and she failed to provide a functional assessment of [Gent's] abilities or limitations.” ALJ Decision, R. at 21. Next, the ALJ assigned “partial weight” or “little weight” to the opinions of Dr. Thomas Rockland, Gent's treating physician since March of 2014, because Dr. Rockland's “opinions [were] inconsistent with [Gent's] documented activities.” Id. The ALJ then assigned “significant weight” to the opinions of the State agency consultants because “their findings [were] consistent with the medical evidence . . . [and] the evidence submitted since they rendered their opinions [did] not show that [Gent's] conditions [had] significantly worsened.” Id. at 23. With respect to Gent's mental impairments, the ALJ assigned “partial weight” to the May 2016 opinion of Advanced Practice Registered Nurse (“Nurse”) Kitty Ansaldi because her opinion was only “partially consistent with the medical evidence of record as a whole, ” which supported “some level of limitation in [the] domains of functioning, [but did] not support the moderate-to-marked level of limitation opined” by Nurse Ansaldi. Id. at 22.

         1. Dr. Grable-Esposito and Dr. Thomas Rockland

         Gent contends that the ALJ should have given her treating physicians' opinions “controlling weight” under SSA regulations, Pl.'s Mem. Supp. Mot. J. Pleadings, Doc. No. 18 at 5 (citing 20 C.F.R. § 416.927(c)(2)), or-if the ALJ “did not err by refusing to adopt the physical limitations described by Drs. Grable-Esposito and Rockland”- he should have weighed the opinions “under all of the relevant factors [listed] ¶ 20 C.F.R. § 416.927(c)(2)-(6).” Id. at 6. The Commissioner responds that “the [ALJ] is not compelled to adopt, or even to assign the most weight to, a treating source opinion when there is sufficient contradictory evidence.” Def.'s Mem. Supp. Mot. Affirm, Doc. No. 22 at 4. After examining the record, I agree with the Commissioner.

         “The treating physician rule provides that an ALJ should defer to ‘to the views of the physician who has engaged in the primary treatment of the claimant, '” but need only assign those opinions “controlling weight” if they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record.” Cichocki v. Astrue, 534 Fed.Appx. 71, 74 (2d Cir. 2013) (summary order) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 20 C.F.R. § 404.1527(c)(2)). When the ALJ “do[es] not give the treating source's opinion controlling weight, ” she must “apply the factors listed” in SSA regulations, 20 C.F.R. § 404.1527(c)(2), including “(1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Selian, 708 F.3d at 418. After considering those factors, the ALJ must “comprehensively set forth [his] reasons for the weight assigned to a treating physician's opinion, ” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) and provide “good reasons” for the weight assigned. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008).

         The Second Circuit has held that “not all expert opinions rise to the level of evidence that is sufficiently substantial to undermine the opinion of the treating physician.” Id. at 128. For example, an expert's opinion is “not substantial, i.e., not reasonably capable of supporting the conclusion that the claimant could work where the expert addressed only deficits of which the claimant was not complaining, or where the expert was a consulting physician who did not examine the claimant ...