- Bookmark
- Share
- CaseIQ
FORD v. ASTRUE
JAMES BROWNING, District Judge
THIS MATTER comes before the Court on: (i) the Letter from Clifford K. Atkinson, Douglas A. Baker, and Justin D. Rodriguez to the Court (dated October 18, 2010), filed October 18, 2010 (Doc. 169); and (ii) the Letter from Gavin W. Skok to the Court (dated October 18, 2010), filed October 18, 2010 (Doc. 170). The Court held a hearing on October 19, 2010. The primary issues are: (i) whether the Court should order Defendant Christian Brothers of the College of New Mexico d/b/a the College of Santa Fe ("CSF") to provide detailed discovery; (ii) whether the Court should bifurcate and partially stay discovery until after it decides Plaintiff Radian Asset Assurance, Inc.'s forthcoming motion to dismiss; (iii) whether the Court should extend the expert deadlines; (iv) whether the Court should mandate mediation; and (v) whether the Court should order corporate plaintiffs to travel to New Mexico for depositions. The Court will grant some requests and deny others.
PROCEDURAL BACKGROUNDOn October 15, 2010, CSF filed six new counterclaims and asserted ten new affirmative defenses. CSF's counterclaims seek actual damages, special damages, punitive damages, statutory treble damages, and attorney fees and costs. CSF's counterclaims and new affirmative defenses raise an array of allegations regarding matters that occurred after the Bonds were issued,e.g., Radian Asset's conduct in 2008 and 2009. Radian Asset maintains that it is apparent from CSF's counterclaims and defenses that CSF had these allegations under consideration and development for a substantial time, and that they could have been asserted much earlier in the case. Radian Asset intends to promptly test CSF's counterclaims and certain of its affirmative defenses through motions practice.
CSF requests the Court to order mandatory mediation. CSF also seeks clarification and extension of the expert deadlines and an extension of the trial setting. CSF further requests the Court to order Radian Asset to bring its witnesses to Albuquerque, New Mexico for their depositions.
Radian Asset and CSF sent separate letters to the Court on October 18, 2010. Radian Asset requested the Court to order CSF to provide the same detailed discovery on its counterclaims the Court previously ordered Radian Asset to provide on Radian Asset's claims. Radian Asset also requested the Court stay discovery on "post-issuance" allegations, e.g., allegations of improper conduct by Radian Asset in 2008 or 2009 against CSF, until after the Court decides Radian Asset's forthcoming motion to dismiss. Finally, Radian Asset requests the Court to order that the depositions of its officers, employees, and agents be taken where they are located, in New York and New Jersey. Radian Asset agrees to CSF's proposed expert deadlines and trial setting.
ANALYSISThe parties request that the Court issue a number of orders. For matters on which the parties agree, the Court obliges. For matters on which the parties disagree, the Court finds some requests are well-taken, but others are premature or not well-founded in the law or in the facts of this case.
I. THE COURT WILL NOT, AT THIS TIME, ORDER DISCOVERY REGARDING NEW AFFIRMATIVE DEFENSES AND COUNTERCLAIMS BEYOND WHAT THE INITIAL DISCLOSURES REQUIRE.
Radian Asset asks the Court to order CSF to provide Radian Asset the same detailed discovery on CSF's new counterclaims and defenses as the Court ordered Radian Asset to provide CSF on Radian Asset's claims. Radian Asset pledges to identify the specific defenses and allegations for which such discovery is necessary. Accordingly, and because of upcoming deadlines, Radian Asset asks that its new discovery into CSF's counterclaims and defenses be expedited with CSF's complete objections and responses due within two weeks. CSF responds with a suggested time limit of two or three weeks to make initial disclosures.
Pursuant to rule 26(1)(a), both parties are required to produce initial disclosures in response to CSF's counterclaims. The Court admonishes both parties to strictly adhere to rule 26's discovery requirements, and CSF should provide the same level of detail in its disclosures that the Court required of Radian Asset. The Court will not, however, require CSF to produce information beyond the initial disclosure until there is a request for production or interrogatories, and the Court cannot deal with any objections or responses until those are made and served. The Court will order both parties to make initial disclosures by October 29, 2010.
II. THE SCOPE OF DISCOVERY BY RADIAN ASSET ON CSF CANNOT MIRROR THAT OF CSF ON RADIAN ASSET, BECAUSE THE CLAIMS ARE NOT THE SAME.Radian Asset seeks guidance from the Court on how CSF should respond to Radian Asset's forthcoming discovery requests, arguing that CSF should provide detailed damages information and disclosures — including attorney fees — for its counterclaims, just as the Court ordered Radian Asset to provide on Radian Asset's claims. Radian Asset requests that the Court require CSF, like it required Radian Asset, to: (i) describe each category of CSF's damages in detail; (ii) state the amount for damages in each category; (iii) state how each amount was calculated; (iv) disclose the elements or components of each, including the amounts and detail for any attorney fees and costs; (v) identify the witness who will have knowledge to testify at trial about that specific damages claim; and (vi) identify each document that CSF believes supports a specific damages claim.
CSF responds that it recognizes its obligation to produce a detailed analysis of its damages as part of its initial disclosure. CSF argues that, unlike Radian Asset, CSF has not pled a count that has an element of damages of attorney fees, and thus no count requires the disclosure for its attorney fees. CSF further argues that Radian Asset has made no relevant discovery requests and that its request is thus not properly before the Court.
For the reasons stated on the record at the hearing, the Court again admonishes CSF to provide the same detailed information the Court has required of Radian Asset. The Court will require that CSF, as part of it disclosure under rule 26, to: (i) describe each category of damages in detail; (ii) state the amount for damages in each category; (iii) state how each amount was calculated; (iv) disclose the elements or components of each, including the amounts and detail for any attorney fees and costs; (v) identify the witness or witnesses who will have knowledge to testify at trial about that specific damages claim; and (vi) identify each document that CSF believes supports a specific damages claim. The Court also requires CSF to state the amount of its attorney fees, and update the amount from time to time, but no itemization is required. The Court will move the date for the production information about of attorney fees for both parties to January 31, 2010.
Radian Asset further argues that, because CSF asserts in its counterclaims that CSF was misadvised or misled by Radian Asset at various times when CSF was represented by counsel, CSF has put in dispute the advice CSF was receiving from its own counsel during that time, and CSF's reliance on such advice. Because of reliance on counsel, CSF should be required, Radian Asset asserts, to disclose documents and communications with its four prior lawyers — Perry Bendicksen, Nancy Long, Richard Virtue, William Arland. CSF responds that Bendicksen, Long, and Virtue's documents have been produced or privilege logged. CSF argues that Arland was not involved pre-issuance, nor was he involved in negotiations of the sale of the College or the actions or conduct at issue in this case. CSF further argues that it has not raised advice of counsel as a defense, or otherwise placed its advice in dispute.
The Court finds the waiver issue is premature and will not address it at this time. The Court finds that Bendicksen, Long, and Virtue's documents have been produced or privilege logged, and no more is required at this time. The Court will order that Arland's files will need to be produced or privilege logged.
III. THE COURT WILL ALLOW RADIAN ASSET SOME ADDITIONAL INTERROGATORIES.
Radian Asset requests leave to serve additional twenty interrogatories in light of CSF's counterclaims and the additional affirmative defenses. The Defendants did not object to allowing Radian Asset a reasonable number of additional interrogatories, but disagreed on the number. The Court gives Radian Asset leave to serve fifteen additional interrogatories on CSF, and ten on other Defendants.
IV. THE COURT WILL NOT ALTER THE TIMING AND SEQUENCE OF DISCOVERY ON CSF'S COUNTERCLAIMS AND DEFENSES.
Radian Asset contends that the majority of the post-issuance allegations are, on their face, either factually infirm or lack legal bases. Because Radian Asset intends to challenge CSF's post-issuance claims through forthcoming dispositive motions, Radian Asset suggests (i) that discovery should go forward on pre-issuance and issuance matters now, but (ii) that the Court should stay discovery with respect to the post-issuance allegations until the Court determines whether CSF has stated a claim on such matters. CSF responds that Radian Asset is seeking to improperly amend the scheduling order. CSF further argues that issues and witnesses cannot be cleanly separated, and that Radian Asset includes post-issuance events in its First Amended Complaint, and CSF's counterclaims and affirmative defenses parallel those events.
The Court finds the post-issuance issues have been floating around in this litigation as part of the affirmative defenses for some time, although the counterclaims may have brought nuances into relief. After carefully looking at what Radian Asset wants to allow discovery on and what it does not want discovery on, the Court is convinced that the proposed bifurcation will create endless discovery disputes and not advance the litigation. While the Court acknowledges that the rules create some unfairness to counterdefendants — the plaintiff cannot do discovery until the defendant's motion to dismiss is decided, but the reverse is not true — the Court does not believe that it can cure any unfairness with bifurcation of discovery.
For this reason, and for reasons stated on the record at the hearing, the Court will deny the request to bifurcate and stay part of the discovery. The Court will, however, set a briefing schedule Radian Asset's dispositive motion on CSF counterclaims. Radian Asset shall file its motion by 5:00 p.m. on October 29, 2010; CSF shall file its response by 5:00 p.m. on November 16, 2010; Radian Asset shall file its reply by November 23, 2010; and the Court will hold a hearing at 9:00 a.m. on November 29, 2010.
V. THE COURT WILL CLARIFY AND EXTEND THE EXPERT DEADLINES.
CSF asks for clarification of what reports are due on each of the two expert disclosure deadlines, and requests that the Court move back the expert report and expert deadlines. Radian Asset agrees to CSF's proposal that the Court order the parties to disclose experts and to provide reports relating to the parties' affirmative claims in support of the Radian Asset's First Amended Complaint and CSF's counterclaims by the end of day on January 10, 2011 and to disclose rebuttal expert witnesses and reports by the end of the day on January 31, 2011. Additionally, Radian Asset agrees to CSF's proposal to move the deadline for deposing experts to February 25, 2011. The Court orders the expert deadline extended in accord with the parties' agreement.
At the hearing, the parties disagreed on what qualified as a "rebuttal expert" in the February 26, 2010, Scheduling Order. The parties had submitted that language earlier in the case, and the Court adopted this language. CSF's current counsel was not involved in drafting the language, and Radian Asset represented that the parties at the time intended rebuttal experts to be limited to issues that could not have been reasonably foreseen, in accordance with rule 26(a)(2)(C)(ii), which allows the disclosure of additional expert testimony "if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party['s]" expert report. Fed.R.Civ.P. 26(a)(2)(C)(ii). After reviewing the Scheduling Order, the Court concludes the most reasonable interpretation of what the parties meant at the time was to limit rebuttal expert testimony to matters that parties could not have reasonably addressed beforehand. The rebuttal expert witness disclosure, therefore, will be limited to issues that could not have been reasonably anticipated, in accordance with rule 26(a)(2)(C)(ii) of the Federal Rule of Civil Procedure.
VI. THE COURT WILL NOT ORDER MANDATORY MEDIATION.
CSF requests that the Court order that the parties to attend mediation. CSF asserts that it understands that informal efforts have occurred, but that there has been no opportunity for Radian Asset's principals and CSF and its insurer to address the issues involved. Radian Asset opposes attending mediation at this time. Because Radian Asset opposes mediation, and for reasons stated on the record at the hearing, the Court will not order the parties to attend mediation at this time. There is no purpose to be served ordering mediation, except a slavish adherence to that out-of-court process, before Radian Asset is ready, but the Court will not, by entering the Order, restrict in any way the Magistrate Judge from setting a mediation and requiring all parties and their principals to attend.
VII. THE COURT WILL EXTEND THE TRIAL SETTING.
CSF requests that the Court move the trial date be moved back one week to June 20, 2011. Radian Asset agrees with CSF's proposal. With the parties' understanding that the Court cannot guarantee a particular date so far in advance, the Court will keep the case on its June 13, 2010 trailing docket, but not schedule the trial before June 20, 2011.
All parties agreed to this change, and the parties expressed that a August 2011 trial date would be acceptable.
VIII. THE COURT WILL GIVE THE PARTIES SOME GUIDANCE ABOUT THE LOCATION OF THE DEPOSITIONS OF RADIAN ASSET'S OFFICERS, EMPLOYEES, AND AGENTS.The Court will order that Radian Asset, a corporate plaintiff, bring its current officers and agents to New Mexico for deposition. CSF served notices on Radian Asset of deposition for three individuals — two former Radian employees and one current Radian employee — and for a Rule 30(b)(6) deposition of Radian. All four notices purport to require Radian Asset to produce the witnesses in Albuquerque for deposition. Radian Asset is located in New York; the three individuals reside and work in New York and New Jersey. CSF argues that, because Radian Asset filed its lawsuit in the District of New Mexico, it should be required to bring its witnesses to New Mexico for deposition. Radian Asset responds that CSF should take these four depositions where the witnesses reside or work, just as Radian deposed the individual defendants in their own judicial districts. Radian Asset further argues that the two former employees are not under Radian Asset's control.
The Court will require that Radian Asset's agents, officers, and current employees travel to Albuquerque for depositions. The Court will offer guidance on moving forward with depositions of former employees. Because Radian Asset, a corporate plaintiff, chose the litigation forum, the Court finds it reasonable to require Radian Asset to produce its officers, employees, and agents in the forum for depositions. Radian Asset has not shown good cause why the Court should order the depositions to be performed in New York and New Jersey.
Ordinarily, plaintiff will be required to make himself or herself available for examination in the district in which suit was brought. Since plaintiff has selected the forum, he or she will not be heard to complain about having to appear there for a deposition. But this is at best a general rule, and is not adhered to if plaintiff can show good cause for not being required to come to the district where the action is pending. For example, the examination has been ordered held elsewhere when plaintiff was physically and financially unable to come to the forum, when to do so would cause hardship to the plaintiff, and when it would be simpler and fairer to take his or her deposition at his or her place of residence. The court may order the deposition taken on written interrogatories, when the circumstances are such that this would provide adequate discovery.
The basis for requiring plaintiff to come to the forum for the taking of his or her deposition in most cases is that plaintiff has selected the forum Because of the weight given plaintiff's choice of forum, at least when he or she has had a choice, courts are more willing to protect defendant from having to come to the forum for the taking of his or her deposition than they are in the case of plaintiffs.
The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business. This customary treatment is subject to modification, however, when justice requires.
8A C. Wright, A. Miller, M. Kane R. Marcus, Federal Practice and Procedure § 2112, at 533 (3d ed. 2010) (footnotes omitted). "The party noticing the deposition usually has the right to choose the location. However, certain ground rules may create obligations or limitations regarding deposition location. For example, if the party deposed is a plaintiff or its agent, deposition is generally appropriate at the litigation forum." 7 J. Moore, et al., Moore's Federal Practice ¶ 30.20[1][b][ii] (3d ed. 1997).
This Court has previously held that, pursuant to basic deposition principles, an L.L.C. plaintiff's owner may be deposed where the trial will be located, because the plaintiff "knew that there was a high likelihood that she would be deposed and that the trial would be in Albuquerque." Res. Assoc. Grant Writing and Evaluation Serv., LLC v. Maberry, No. CIV 08-0552 JB/LAM, 2009 WL 1311465, at *1 (D.N.M. Jan. 16, 2009). Based on this observation, the Court concluded that "Albuquerque is thus not presumptively an unreasonable site for the deposition." Id.
Similar principles have led other courts to require that litigants travel to the litigation forum to be deposed. InSugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166 (S.D.N.Y. 1985), the United States District Court for the Southern District of New York rejected the defendant's argument that it should be disposed at its principle place of business in California instead of in the litigation forum in New York. The defendants argued in reliance on the "general rule that corporate defendants are deposed at the location of their principal place of business." 105 F.R.D. at 171 (citing Buryan v. Max Factor Co., 41 F.R.D. 330, 332 (S.D.N.Y. 1967); Haymes v. Columbia Pictures Corp., 16 F.R.D. 118, 123 (S.D.N.Y. 1954)). The district court noted that it had discretion to determine where the deposition would take place, and that the general rule is not without exceptions:
Corporate defendants are frequently deposed in places other than the location of the principal place of business, especially in the forum, for the convenience of all parties and in the general interests of judicial economy. The location of the deposition is in my discretion. Tomingas Iv. Douglas Aircraft Co.], 45 F.R.D. 94, 97 (S.D.N.Y. 1968). In this case, I feel it should be conducted, as noticed, within the forum. Motown is a large corporation and cannot seriously contend that travel on behalf of the corporation by one of its managing agents is unexpected or that such travel to New York for deposition imposes a severe burden on it. See Reliable Volkswagen Sales and Service Co. v. World-wide Automobiles Corp., 26 F.R.D. 592, 594 (D.N.J. 1960). Moreover, Motown does not allege, nor do I think it could, that the absence of Boyce, or another individual witness, from the work place for a brief period imposes a substantial hardship on the corporation. See Tomingas, 45 F.R.D. at 97.105 F.R.D. at 171.
In Turner v. Prudential Ins. Co. of America, 119 F.R.D. 381, 384 (M.D.N.C. 1988), the United States District Court for the Middle District of North Carolina required a corporate defendant to travel to the litigation forum for deposition because the defendant sold insurance policies there, and could therefore have foreseen being deposed there. See 119 F.R.D. at 384 ("Under these circumstances, plaintiff's request to depose defendant concerning the policy in the state where the policy issued is both reasonable and expected, and defendant's claim of hardship in having to submit itself, through its officers, for deposition in the forum district is entitled to less sympathetic consideration.").
Other federal courts have required agents of corporate plaintiffs to travel to the district where the plaintiffs brought the suit. In Mercantum (U.S.) Corp. v. Chilean Line Inc., No. 90 Civ. 1103 (KTD), 1991 WL 143492 (S.D.N.Y. July 23, 1991), the district court required an officer of a foreign corporate plaintiff to travel to New York to be deposed. The court reasoned:
Although the Court recognizes that it may be inconvenient for Mr. Christovao III to attend a deposition in the United States, his principal residence is in Queens, New York, he does travel to the United States for other reasons and as the president and director of the corporate plaintiffs he must be prepared to make himself available in the jurisdiction where plaintiffs chose to bring this action.1991 WL 143492, at *2 (emphasis added).
Similarly, the Court has discretion to determine where depositions will take place. Radian Asset has not shown physical and financial inability, or other hardship. Because Radian Asset did business in the forum, chose the litigation forum, knew the trial would take place here, and could reasonably have foreseen being deposed here, and for the reasons stated on the record at the hearing, the Court orders that Radian Asset's officers, employees, and officers shall travel to Albuquerque for their depositions. Regarding former employees, the Court guides the parties to consider who will represent the person at the deposition. If Radian Asset will represent the person at the deposition, and insist that it has an attorney-client relationship with the former employee and that it will be the one through whom the deposition is set up, then the former employee should travel to Albuquerque for the deposition. If, however, the employee left under bad circumstances, or is not represented by Radian Asset, and Radian Asset has no control over the former employee, then the person is a true third party witness, and CSF will have to travel to the witness's location to depose him or her.
IT IS ORDERED that: (i) both Defendant Christian Brothers of the College of New Mexico d/b/a the College of Santa Fe ("CSF") and Plaintiff Radian Asset Assurance, Inc. shall strictly adhere to the discovery requirements under rule 26, and CSF shall provide the same level of detail in its disclosures the Court required of Radian Asset; (ii) CSF shall, as part of its initial disclosure: (a) describe each category of damages CSF seeks in detail; (b) state the amount for damages in each category; (c) state how each amount was calculated; (d) disclose the elements or components of each, including the amounts and detail for any attorney fees and costs; (e) identify the witness or witnesses who will have knowledge to testify at trial about that specific damages claim; and (f) identify each document that CSF believes supports a specific damages claim; (iii) CSF shall state the amount of its attorney fees, and update the amount from time to time, but it need not itemize the fees; (iv) the Court extends the date for the production of information about attorney fees for both parties to January 31, 2010; (v) CSF shall produce or privilege log William Arland's documents; (vi) Radian Asset shall have leave to issue fifteen additional interrogatories on CSF and ten on other Defendants; (vii) the parties shall make initial disclosures on CSF's counterclaims by October 29, 2010; (viii) the timeline for Radian Asset's forthcoming dispositive motions shall be as follows: (a) Radian Asset shall file its motion or motions by 5:00 p.m. on October 29, 2010; (b) CSF shall file its response or responses by 5:00 p.m. on November 16, 2010; (c) Radian Asset shall file its reply or replies by November 23, 2010; and (d) the Court will hold a hearing at 9:00 a.m. on November 29, 2010; (ix) regarding expert witnesses, the parties shall: (a) disclose experts and provide expert reports relating to the parties' affirmative claims in support of the Radian Asset's First Amended Complaint and CSF's counterclaims by 5:00 p.m. on January 10, 2011; (b) disclose rule 26(a)(2)(C)(ii) rebuttal expert witnesses and reports by the end of day on January 31, 2011; and (c) the Court extends the deadline for deposing experts to February 25, 2011; and (x) the Court will keep this case on its June 13, 2011 trailing docket, but will not schedule the trial before June 20, 2011.
In March 2006, Plaintiff sought mental health treatment from Unity Health Systems, complaining of depression, anxiety, medical problems, and family problems. (581). Prior to that, Plaintiff's mental health treatment was primarily through Wilmot, her primary care physician. (587) Plaintiff indicated that her mood had considerably worsened in the last two months, with increased crying and irritability. (582) Plaintiff appeared to be moderately depressed, with a poor to fair range of affect. (585) Plaintiff was referred for treatment, but it appears that within a few months she stopped attending appointments, and in July 2006 she was discharged from treatment. (622)
In or about August 2006, Plaintiff resumed mental health treatment with Unity Health Systems, consisting primarily of therapy with Lynne Wheeler, MS Ed CAS ("Wheeler"), under the supervision of psychiatrist Dinesh Nanavati, M.D. ("Nanavati"). (696) Initially, the primary diagnosis was "major depression, recurrent, moderate" (696), but later that diagnosis was changed to "mood disorder, not otherwise specified." (710, 712) In November 2006, Wheeler and Nanavati reported that Plaintiff had made good progress and attended all of her sessions, and that she reported "a big improvement in her behavior and attitude." (699) In February 2007, Wheeler and Nanavati reported that Plaintiff had "ups and downs during this assessment period." (712) Plaintiff stated that she was frustrated because she was having more pain, which her doctors were not able to alleviate. (712) In May 2007, Wheeler and Nanavati reported that Plaintiff had attended most of her appointments, and that her medications were having good results. (716) Plaintiff complained, though, of sleep disturbances due to pain. (716) In August 2007, Wheeler and Nanavati reported that Plaintiff had "not done well" during the past three months. (720) Plaintiff had been to the emergency room twice for overdoses. (720) It was noted that Plaintiff had "responded best to mood stabili[zing]" medication, specifically Trazodone, which prompted Wheeler and Nanavati to consider bipolar disorder as a diagnosis. (721) In November 2007, Wheeler and Nanavati reported that Plaintiff was taking her medication with good results, and seemed to have a renewed commitment to getting well. (725)
Master of Science in Education, Certificate of Advanced Study.
On June 5, 2006, Plaintiff had an MRI of her lumbar spine. The MRI report stated, in pertinent part:
There is degenerative disc disease with disc narrowing and ventral osteophytes at T10-11 and T11-12. There are Schmorl's nodes in the lower thoracic spine and at multiple lumbar levels. There is facet and ligamental hypertrophy at L2-3 with impression on the underlying thecal sac. There is mild narrowing of the AP sac dimension at this level. At L3-4, there is mild facet and ligamental hypertrophy with minimal impression on the underlying subarachnoid space. At L4-5, there is mild facet and ligamental hypertrophy with very mild impression on the underlying subarachnoid space. At L5-S1, there is no significant posterior disc herniation stenosis. . . . IMPRESSION: Mild degenerative changes at several lumbar levels with mild stenosis at L2-3.
(326) On June 12, 2006, Everett reviewed the MRI report, and reported that it showed "mild lumbar spondylosis." (328)
"Spondylosis" "is a general term for age-related wear and tear affecting the disks." MayoClinic.com, http://www.mayoclinic.com/health/cervical-spondylosis/DS0069.
In October 2006, Wilmot's nurse practitioner, Phyllis Ruetz, NP ("Ruetz") noted that Plaintiff "definitely has stenosis symptoms." (495) In January 2007, Plaintiff complained to Ruetz that her back pain had not improved, and that she was experiencing "bilateral posterior leg pain." (514) Also in January 2007, Ruetz, under the supervision of Glenn Rechtine, M.D. ("Rechtine"), examined Plaintiff and noted that she was complaining of increased back pain and weakness in both legs. (516) Ruetz noted that Plaintiff was alert, with normal affect, had a normal gait, and negative straight leg test bilaterally. (517) Ruetz stated, "she has no deficits on exam." (518)
On February 27, 2007, Michael Stanton, M.D. ("Stanton") performed a neurological exam at Wilmot's request. (525-527). In his notes, Stanton referred to Plaintiff's MRI report, stating,
MRI of the lumbosacral spine has shown facet hypertrophy and ligamentous hypertrophy at L2-L3, L3-L4, and L4-L5, without central canal or foraminal stenosis. She has some mild degenerative disc changes.
***
She has facet hypertrophy and ligamentous change from L2 through L5. There is no central canal stenosis. She has a congenitally narrow spine from congenitally short pedicles. The foramen do not shown stenosis.
(525, 527) Stanton indicated that he could find no cause for Plaintiff's back pain. (527) ("Musculoskeletal low back pain. It is non-radicular. It is non-neuropathic. I do not have anything to offer on this complaint. . . . She has a normal neurological exam."). On March 16, 2007, Ruetz reported that she had reviewed Plaintiff's EMG report, which showed "no lumbar radiculopathy, plexopathy, or neuropathy bilaterally." (532) On August 28, 2007, Wilmot examined Plaintiff and reported that she was "less depressed." (563)
Plaintiff has smoked cigarettes since age 15. (455). As of 2004, Plaintiff indicated that she had no intention of quitting smoking, despite the fact that she was experiencing a raspy cough and difficulty breathing with exertion. (437) On March 11, 2005, Michael C. Kallay, M.D. ("Kallay") indicated that Plaintiff had "a remarkable amount of obstructive lung disease considering her age of 44," but showed "little interest" in quitting. (456) On September 17, 2005, pulmonary function testing performed by Ramon Medalle, M.D. ("Medalle") showed "moderately severe obstruction." (277) In September 2006, Plaintiff began participating in a "Smoker's Health Project," to stop smoking. (492)
In November 2007, Plaintiff's mental health therapist, Wheeler, completed an "Employability Assessment" form for the New York State Office of Temporary and Disability Assistance. (392-393, Exhibit 17F) Wheeler purported to evaluate Plaintiff both as to her physical and mental condition. Wheeler stated that Plaintiff's diagnoses included depression, alcohol abuse, anxiety, bipolar, low self-esteem, self-defeating behavior, and mood instability. (392) With regard to mental functioning, Wheeler stated that Plaintiff was moderately limited with regard to understanding and remembering instructions, carrying out instructions, maintaining attention and concentration, and moderately-to-very limited as to interacting appropriately with others. (392) Wheeler further stated that Plaintiff "cannot work in any capacity." (393) Unlike the notes by Wheeler described earlier in this Decision, which were co-signed by Dr. Nanavati, this Employability Assessment was signed only by Wheeler.
EXPERT TESTIMONY INTRODUCED AT THE HEARING
At the administrative hearing, a medical expert ("the ME"), Dr. Plotz, testified, based on his review of the medical records and his observation of Plaintiff's testimony. The ME stated that Plaintiff had good heart function following placement of a stent in 2007, a history of difficulty breathing, with moderate impairment of pulmonary function, modest restriction in her use of her hands following successful CTS surgery, minor shoulder pain following successful treatment, and only minimal osteoarthitis in her back "that comes with aging." (79-80: "She has no disc disease, she has no arthritis, she has no nerve —" [sic]); ( see also, id. at 85: "[T]hat is about as normal as you can get in your 40s.") When Plaintiff's counsel asked the ME about an MRI of Plaintiff's spine performed on June 5, 2006, the ME stated that the MRI was "normal." (85: "She has almost nothing.") The ME indicated that Plaintiff would not be limited as to sitting, standing, or walking. (84-85) The ME stated that Plaintiff would be limited to lifting twenty pounds or less on a regular basis, with mild limitations in "fine fingering." (81) The ME indicated that Plaintiff's heart condition would not limit her ability to work. (81) ("[S]he's got excellent cardiac functioning, remarkably good.") The ME stated that Plaintiff did "not have any significant asthma," and would only need to avoid heavy smoke and fumes. (83) The ME stated that Plaintiff might have "mild emphysema," which would definitely worsen if she continued to smoke. (86)
A psychiatric expert ("the PE"), Dr. Fine, also testified at the hearing. The PE discussed Plaintiff's psychiatric records, and that the fact that, at various times, Plaintiff had been described as having mood disorder not otherwise specified, aggressive disorder, bi-polar disorder, anxiety disorder, and alcohol dependence. (88) The PE also noted that one therapist had described obsessive compulsive personality disorder, though the PE found "no rationale" for such a diagnosis. (88) The PE observed that Plaintiff had been given GAF scores of 55 and 60, "which would indicate a moderate degree of dysfunction and moderate symptomatology." (88) The PE opined that Plaintiff had a depressive mood disorder not otherwise specified, and alcohol dependence. (89, 96) The VE stated that Plaintiff's symptoms appeared to be "somewhat alleviated" by her medications. (89) The PE stated that Plaintiff probably had the mood disorder as early as 2003. (90) The PE stated that, prior to 2007, Plaintiff's activities of daily living, socialization, concentration, and ability to function in a work setting, would have been moderately impaired by her psychiatric symptoms. (91) From 2007 onward, the PE stated, Plaintiff's activities of daily living, socialization, and concentration, would have improved to a mild-to-moderate level of impairment. The PE stated that prior to 2007, and disregarding the effects of Plaintiff's use of drugs and alcohol during that period, Plaintiff would have been capable of "low levels of concentration, low stress types of work, limited contact with other people." (94) The PE added that, since 2007, Plaintiff would be capable of the same type of work, but with more social interaction. (94)
Neither Fine nor Plotz examined Plaintiff, and their testimony at the hearing was based on their review of the medical record and their observation of Plaintiff during the hearing.
At the administrative hearing, the ALJ also took testimony from a vocational expert ("the VE"). The ALJ posed this question:
If I consider a person of the claimant's age, education and prior work who is limited to nonexertional, to jobs that are low in stress, require low levels of concentration, that require limited amounts of social interaction but which does not limit the claimant's ability to sit or stand or walk, allows her to lift and carry 20 pounds occasionally, ten pounds frequently with mild fine fingering limitations in the right, which is the dominant, hand and by mild I mean no continuous use of the right hand for fine [INAUDIBLE] Can you identify jobs at the light and sedentary levels for such a person?
(101) The VE responded that there were several unskilled jobs that such a person could perform, such as machine tender, marker, and surveillance system monitor. (101-102) The VE stated that all of those jobs have a sit/stand option, to allow workers to change position. (104) The VE indicated, in response to questioning by Plaintiff's attorney, that an individual would not be able to perform those jobs if she was "off task" 20% of the time because she "couldn't pay attention or keep on pace or focus." (102) Similarly, the VE stated that the hypothetical person would not be able to perform those jobs if she needed to lie down twice during the workday, for up to thirty minutes each time. (102) The VE further indicated that such a person could not perform those jobs if she missed three-to-four days of work per week. Additionally, the VE stated that two of the jobs that she identified, surveillance system monitor and bench hand, did not require lifting. (103-104)
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
For purposes of the Social Security Act, disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.
The SSA has promulgated administrative regulations for determining when a claimant meets this definition. First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a "severe impairment" that significantly limits the "ability to do basic work activities. If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the "residual functional capacity" to perform his or her past relevant work. Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing "any other work."Schaal, 134 F.3d at 501 (Citations omitted). At step five of the five-step analysis above, the Commissioner may carry his burden by resorting to the Medical Vocational Guidelines or "grids" found at 20 C.F.R. Pt. 404, Subpart P, Appendix 2. Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996) (citation omitted); see also, SSR 83-10 (Stating that in the grids, "the only impairment-caused limitations considered in each rule are exertional limitations.") However, if a claimant has nonexertional impairments which "significantly limit the range of work permitted by his exertional limitations," then the Commissioner cannot rely upon the grids, and instead "must introduce the testimony of a vocational expert ["(VE")] (or other similar evidence) that jobs exist in the economy which claimant can obtain or perform." Pratts v. Chater, 94 F.3d at 39; see also, 20 C.F.R. § 416.969a(d).
"Exertional limitations" are those which affect an applicant's ability to meet the strength demands of jobs, such as sitting, standing, walking, lifting, carrying, pushing, and pulling. "Non-exertional limitations" are those which affect an applicant's ability to meet job demands other than strength demands, such as anxiety, depression, inability to concentrate, inability to understand, inability to remember, inability to tolerate dust or fumes, as well as manipulative or postural limitations, such as the inability to reach, handle, stoop, climb, crawl, or crouch. 20 C.F.R. 416.969a.
20 C.F.R. § 416.927(d) provides, in relevant part, that, "[w]hen the limitations and restrictions imposed by your impairment(s) and related symptoms, such as pain, affect your ability to meet both the strength [exertional] and demands of jobs other than the strength demands [nonexertional], we consider that you have a combination of exertional and nonexertional limitations or restrictions. . . . [W]e will not directly apply the rules in appendix 2 [the grids] unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations; otherwise the rule provides a framework to guide our decision."
Under the regulations, a treating physician's opinion is entitled to controlling weight, provided that it is well-supported in the record:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 416.927(d)(2); 20 C.F.R. § 404.1527(d)(2). However, "[w]hen other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ( citing 20 C.F.R. § 404.1527(d)(4)). Nevertheless,
[a]n ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various `factors' to determine how much weight to give to the opinion. 20 C.F.R. § 404.1527(d)(2). Among those factors are: (i) the frequency of 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. Id. 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.' Id.; accord 20 C.F.R. § 416.927(d)(2); see also Schaal, 134 F.3d at 503-504 (stating that the Commissioner must provide a claimant with "good reasons" for the lack of weight attributed to a treating physician's opinion).Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Administrative Law Judges are required to evaluate a claimant's credibility concerning pain according to the factors set forth in 20 C.F.R. § 404.1529, which states in relevant part:
In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. By objective medical evidence, we mean medical signs and laboratory findings as defined in § 404.1528(b) and (c). By other evidence, we mean the kinds of evidence described in §§ 404.1512(b)(2) through (6) and 404.1513(b)(1), (4), and (5) and (e). These include statements or reports from you, your treating or examining physician or psychologist, and others about your medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how your impairment(s) and any related symptoms affect your ability to work. We will consider all of your statements about your symptoms, such as pain, and any description you, your physician, your psychologist, or other persons may provide about how the symptoms affect your activities of daily living and your ability to work.
***
In evaluating the intensity and persistence of your symptoms, including pain, we will consider all of the available evidence, including your medical history, the medical signs and laboratory findings and statements about how your symptoms affect you. (Section 404.1527 explains how we consider opinions of your treating source and other medical opinions on the existence and severity of your symptoms, such as pain.) We will then determine the extent to which your alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how your symptoms affect your ability to work.20 C.F.R. § 404.1529(a); 20 C.F.R. § 416.929(a). The regulation further states, in pertinent part:
Factors relevant to your symptoms, such as pain, which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3).
THE ALJ'S DECISION
At the first step of the five-step sequential analysis described above, the ALJ found that plaintiff was not engaged in substantial gainful employment. At the second step of the analysis, the ALJ found that plaintiff had the following severe impairments: right hand CTS, COPD, shoulder pain, alcohol abuse and dependency, mood disorder not otherwise specified, and personality disorder, not otherwise specified. (25-26). The ALJ found that Plaintiff's complaint of back pain lacked "any acceptable medical diagnosis" and was not severe. (25). At the third step of the analysis, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At the fourth step of the analysis, the ALJ found that Plaintiff's past relevant work consisted of "book paster" and "meat clerk." (27) The ALJ found that Plaintiff could not perform such past relevant work (27-28), and in that regard, he found that Plaintiff had the following RFC: "[N]eed to avoid exposure to very strong smoke, fumes and chemicals . . . further limited to work that [is] simple, low in stress, low in required concentration, and limited in required interpersonal interaction . . . [with the] only exertional restriction [being] that of no lifting or carrying in excess of twenty pounds." (27). The ALJ reiterated this RFC in connection with hypothetical that he posed to the VE:
See also, id. at 28.
I asked [the VE] to assume a person of claimant's age, education and prior work experience, who could lift/carry up to 20 pounds even frequently, and had no limits on sitting, standing or walking. Furthermore, she would have mild limitations on fine fingering with the right hand only. In addition, she should avoid heavy smoke, fumes or chemicals, and could perform only simple, low stress tasks requiring low levels of concentration and limited interaction with other people.
(28).
In making his determination regarding Plaintiff's nonexertional mental impairments, the ALJ noted that he gave "no probative value" to Wheeler's RFC assessment. (27). On this point, the ALJ explained:
The record contains a report and mental functional assessment from claimant's Unity therapist (i.e. clinical social worker) dated November 20, 2007, stating that claimant is not capable of working, but including in this consideration not only the claimant's mental health problems (including alcohol and drug abuse) but also her purported medical problems. (see Ex. 17-F). I note that the opinion of a social worker therapist would not be entitled to special weight even if based on psychiatric conditions alone, but since such a therapist has not expertise whatever about physical conditions (and obviously does not treat them), the inclusion of such conditions into consideration (let alone the substance abuse) reduces the evidentiary value of the therapist's conclusions to basically nil.
(23-24).
At the fifth step of the sequential analysis, based on the testimony of the VE, the ALJ determined that Plaintiff could, even with the aforementioned restrictions, perform the following four jobs: machine tender; marker; surveillance system monitor; and bench hand. Consequently, the ALJ found that Plaintiff was not disabled.
ANALYSISPlaintiff essentially maintains that the ALJ erred in two respects. First, she contends that the ALJ did not properly apply the treating physician rule. And second, she argues that the ALJ did not properly evaluate her credibility.
Treating Physician Rule
With regard to the treating physician rule, Plaintiff maintains that the ALJ gave greater weight to the opinions of non-treating physicians, Toor and Plotz, concerning her physical limitations, than he did to Plaintiff's treating physician, Wilmot. For example, Plaintiff indicates that the ALJ improperly failed to give controlling weight to Wilmot's opinion that Plaintiff could lift only ten pounds. (229, Wilmot report from June 2005). Similarly, with regard to Plaintiff's mental impairments, Plaintiff contends that the ALJ improperly disregarded the opinions of Wheeler and Nanavati, Plaintiff's treating therapist and psychiatrist, respectively, and instead relied upon the opinions of non-treating physicians Zax and Fine.
With regard to Plaintiff's ability to lift, the ALJ found that Plaintiff could "lift/carry up to 20 pounds even frequently." (28) Plaintiff contends that this was error, since Wilmot indicated that Plaintiff could not lift more than ten pounds. On this point, on April 2005, Wilmot stated, as part of a report prepared for the New York State Officer of Temporary and Disability Assistance, that Plaintiff could "occasionally" lift ten pounds. (229). Plaintiff states that the ALJ was apparently "unpersuaded" by Wilmot's opinion on this point. (Pl. Memo of Law at 7). In making his RFC determination concerning Plaintiff's ability to lift, the ALJ did not actually refer to Wilmot's RFC report. The Court notes, however, that Wilmot's report does not provide any explanation for the ten-pound lifting restriction, and does not even list CTS as one of his "treating diagnoses." (220) Nor is Wilmot's statement on this point supported by the rest of the medical record. In any event, the ALJ based his finding on a number of factors. First, the ALJ noted that Wilmot's office notes made no mention of Plaintiff's CTS since 2004. (21: "Her primary care physician (Dr. Wilmot), who keeps excellent notes, reports not a single word about symptoms of CTS or hand problems over the years since 2004."). Additionally, the ALJ observed that Plaintiff's prior job as a book binder required her to lift from "ten to twenty pounds," and that following her CTS surgery, Plaintiff believed that she could return to that job. Further, the ALJ referred to the opinion of the "independent medical expert" (21), Andre LeFebvre, M.D. ("LeFebvre"), who examined Plaintiff in connection with her worker's compensation claim for CTS. (187-197). LeFebvre stated that Plaintiff could work, and that she had the following ability to lift twenty pounds frequently: "In terms of lifting a bimanual lift should be at 50 pounds, 20 pounds frequently, and 10 pounds on a constant basis." (192) The ALJ also referenced the testimony of Plotz, who indicated that Plaintiff could lift up to twenty pounds frequently (24), as well as the report of Toor, who indicated that Plaintiff had full grip strength, and had only a "mild" limitation on lifting. (268-269). On these facts, the Court declines to find that the ALJ failed to follow the treating physician rule. The Court further finds that the ALJ's determination, regarding Plaintiff's ability to lift, is supported by substantial evidence.
As noted earlier, Plaintiff contends that the ALJ mischaracterized her testimony regarding her ability to work following her CTS, by stating that she was able to work, when Plaintiff actually stated only that she was going to "try" to work. However, Plaintiff was obviously aware of the demands of the job, and it is undisputed that she was planning to return to that job. Consequently, it is fair to say that Plaintiff felt she was capable of performing the lifting requirements of the job.
Plaintiff further contends that the ALJ failed to apply the treating physician rule, by failing to give controlling weight to Wheeler's report, dated November 20, 2007, which indicated that Plaintiff "cannot work in any capacity." (392-393). However, the Court disagrees. At the outset, it is of course well-settled that Wheeler's statement, that Plaintiff could not "work in any capacity," is a conclusion that is reserved to the Commissioner. Additionally, Wheeler's report purported to express opinions concerning Plaintiff's physical ailments (392), which Wheeler was not qualified to make. And finally, Wheeler, as a clinical social worker/therapist, was not an "acceptable medical source," and the ALJ was not required to give her report controlling weight. See, 20 C.F.R. § 416.913(a) (d). Consequently, the ALJ did not violate the treating physician rule by failing to give controlling weight to Wheeler's report. Nor does the Court find that the ALJ's determination, essentially giving no weight to the report, was erroneous.
See, e.g., Arruda v. Commissioner of Social Sec., No. 08-3128-cv, 363 Fed.Appx. 93, 96, 2010 WL 324002 at *2 (2d Cir. Jan. 29, 2010) ("[A] decision as to whether a claimant is `disabled' is an administrative finding reserved to the Commissioner, and a statement by a treating source that a claimant is disabled should not be disregarded, but is not entitled to controlling weight or special significance.") (citing SSR-96-5p (July 2, 1996)).
Additionally, Wheeler's opinion was based, in part, on Plaintiff's abuse of alcohol and drugs (392), which behavior cannot be relied upon by the Commissioner in making an award of benefits. See, 42 U.S.C.A. § 423(d)(2)(C) ("An individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled."); see also, 20 C.F.R. § 404.1535(b)(1) ("The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol."). The ALJ cited this as a reason for giving Wheeler's report little if any weight. (24)
Plaintiff also contends that the ALJ's determination to give little, if any, weight to Wheeler's November 20, 2007 report was erroneous, since the report was supported by Plaintiff's voluminous mental health records, which were signed by both Wheeler and Nanavati. (Pl. Memo of Law at 8) ("[The ALJ] had over 200 pages of Unity Health records of treatment plaintiff had received since August 2006 wherein Ms. Wheeler was the primary therapist who saw plaintiff the most even though plaintiff had been seen by other therapists and overseen by [Nanavati]."). However, these records provide little, if any, specific information concerning Plaintiff's ability to work. ( See, 679-770, 874-902) Plaintiff was not working during this period, after having been laid off from her last job in or about January 2004, and she apparently was not seeking employment. Plaintiff was, though, providing full-time care for her granddaughter, of whom she had custody. (703, 740, 756-758, 876, 884, 890, 898). These records never mention the prospect of Plaintiff returning to work, but instead, refer, at several points, to the fact that Plaintiff was pursuing a Social Security disability claim. (759)
This Court has previously held that it was error for an ALJ to reject a report by a non-physician that is signed by a treating physician. See, Keith v. Astrue, 553 F.Supp.2d 291, 300 (W.D.N.Y. 2008) ("It was improper for the ALJ to discount office notes and reports signed by [Dr.] Nanavati as being merely the opinions of Kubrich [social worker].") ( citing Santiago v. Barnhart, 441 F.Supp.2d 620, 628 (S.D.N.Y. 2006)). Here, the ALJ did not disregard the records that were signed by both Wheeler and Nanavati.
As to that, some of the records indicate, "OCCUPATIONAL: disabled," but do not indicate a basis for the purported disability. (880, 888, 896).
In any event, Plaintiff's ability or inability to work was not a focus of Wheeler's/Nanavati's notes. In fact, Wheeler's/Nanavati's periodic reports do not express an opinion as to Plaintiff's ability to function in a "work role," and instead, indicate "NA," presumably meaning "not applicable." (See, e.g., 688, 709) Otherwise, Wheeler's/Nanavati's notes indicate only that Plaintiff initially stopped working at her last job due to CTS, and was later laid off. ( See, e.g., 707) Thus, while Wheeler's/Nanavati's records describe Plaintiff's psychological problems, they do not indicate how those problems would affect her ability to work.
However, Wheeler's/Nanavati's notes indicate that, while Plaintiff was often depressed or irritable, mainly about issues involving her family, her intellectual functioning was generally normal. (See: 739 — "clear logical thinking"; 686-"thought form: clear well organized logical"; 880-881-thought form/intellectual functioning "within normal limits"; 877-concentration "fair"; 885-concentration "fair"; 889 — insight/judgment/memory/concentration "fair," intellectual functioning "average"; 893 — concentration "fair"; 897-Insight and judgment "fair," intellectual functioning "average," memory/concentration "fair;" 899 — Appearance, behavior, thought form, and intellectual functioning all "within normal limits," but see also: 704-"concentration: difficult at times.")
At various times, Plaintiff indicated that she was depressed, anxious and/or angry about conflicts with her daughter and daughter's boyfriend, both of whom lived with Plaintiff, problems caring for her grandchildren, and her father's terminal illness.
Moreover, the ALJ clearly gave weight to Wheeler's/Nanavati's treatment notes. See, ALJ's Decision (7, 25-27). In that regard, the ALJ found that Plaintiff had three severe mental impairments — alcohol dependency, mood disorder not otherwise specified, and personality disorder not otherwise specified. (26) Because of these impairments, the ALJ found that Plaintiff was "limited to work that [is] simple, low in stress, low in required concentration, and limited in required interpersonal interaction." (27). These findings are not inconsistent with Wheeler's/Nanavati's notes, and in fact, they are consistent with Wheeler's specific findings, concerning Plaintiff's mental functioning, in Wheeler's November 2007 report. (392) Consequently, the Court does not agree that the ALJ violated the treating physician rule with regard to Wheeler's/Nanavati's opinions.
Assessment of Plaintiff's Credibility
Plaintiff contends that the ALJ did not properly evaluate her credibility, particularly with regard to her statements concerning the severity of her pain and its limiting effects on her daily activities. For example, Plaintiff states that the ALJ unfairly suggested that she was exaggerating her back pain and her claimed inability to sit for long periods, based on the fact that she did not appear to be in pain at the hearing, during which she remained seated for more than an hour. In that regard, Plaintiff states that she was able to sit through the hearing because she had taken pain medication. Additionally, Plaintiff states that the ALJ failed to credit her good work history prior to the onset of her disability, and also failed to consider the side-effects of her medications on her ability to work. Plaintiff further alleges that the ALJ failed to consider her inability to stoop when he determined her RFC.
At the outset, the Court observes that, at the hearing, when the ALJ asked Plaintiff what symptoms interfered with her ability to work, she stated: "My back, my breathing, and my hands." (55) As for her back, Plaintiff stated that she had constant "chronic pain" in her lower back (56-57). As for her hand, Plaintiff stated that it bothered her, with pain and numbness, when she did things such as washing dishes. (59-61). Plaintiff also indicated that he shoulder hurt at times, depending on what she lifted. (63). With regard to Plaintiff's complaints about her hand and shoulder, the ALJ obviously credited her, at least in part, because he included limitations on her ability to lift and use her hand as part of his RFC determination. To the extent that the ALJ did not fully credit Plaintiff's testimony concerning her wrist/hand and shoulder pain, he explained his reasoning (21-22), and his reasoning is supported by substantial evidence.
As discussed earlier, in July 2004, Mitten indicated that Plaintiff could return to her usual work, as book binder, which involved lifting and using her hands, four days per week, 4-5 hours per day. (186)
As for Plaintiff's complaint of pain in her lower back, the ALJ essentially found such complaints not credible, since there was "no proven medical impairment to support them." (22); see also, (24) ("[Dr. Plotz] said that while [Plaintiff's complaints of back pain] do appear, subjectively, in many places [in the record], a thorough investigation has not turned up any medical explanation for them. An MRI of claimant's lumbosacral spine showed only minimal degenerative disease consistent with her age, while electrodiagnostic studies were entirely normal.") In finding that Plaintiff's alleged back pain was not a severe impairment, the ALJ stated:
I [find] that Ms. Ford's complaints of back pain boil down to a multitude of subjective complaints (though not with the frequency or severity to which she testified) without any acceptable medical diagnosis to explain them. To be cognizable under Social Security rules, subjective complaints — even if well documented — must be underlain by a proven medically-determinable impairment from which they could reasonably be expected to arise. That essential connection is absent in Ms. Ford's case.
(25) Plaintiff contends that the ALJ's determination on this point was erroneous, because he failed to consider factors including Plaintiff's daily activities; the location, duration, frequency, and intensity of her pain; the type, dosage, effectiveness, and side-effects of her medications; and the treatment she received to relieve her pain. (Pl. Memo of Law at 12). Specifically, Plaintiff contends that the ALJ failed to comply with 20 C.F.R. § 404.1529 and Social Security Ruling ("SSR") 96-7p. However, the Court disagrees.
SSR 96-7p states, in pertinent part, that an ALJ must apply certain factors to evaluate a claimant's credibility, when "there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms." With regard to Plaintiff's back pain, there were no such "medical signs or laboratory findings." Plaintiff argues to the contrary, since "[a]n MRI of [her] lumbar spine performed on June 5, 2006, revealed mild degenerative changes at several lumbar levels with mild stenosis at L2-3." (Pl. Memo of Law at 4). However, Plaintiff's own doctors did not believe that such findings were responsible for Plaintiff's complaints of pain. In February 2003, Everett noted that Plaintiff's MRI showed degenerative changes at L3-L4, but "no significant neural encroachment." (210). Consequently, Everett was " not sure what is causing the right leg symptoms." ( Id.) (emphasis added). Everett ordered a nerve conduction study, which was normal. (211) Additionally, Everett indicated that Plaintiff could work "in a light-duty capacity full time." (329). In June 2005, Wilmot indicated that, although Plaintiff complained of back pain, all laboratory testing was negative. (222) On June 12, 2006, Everett indicated that Plaintiff's MRI showed "mild lumbar spondylosis." (328) On February 27, 2007, Stanton indicated that he could find no cause for Plaintiff's back pain. (527) ("Musculoskeletal low back pain. It is non-radicular. It is non-neuropathic. I do not have anything to offer on this complaint. . . . She has a normal neurological exam.") (emphasis added). On March 16, 2007, Ruetz reported that she had reviewed Plaintiff's EMG report, which showed "no lumbar radiculopathy, plexopathy, or neuropathy bilaterally." (532) And finally, at the hearing, Plotz opined that there was no identified cause for Plaintiff's back pain. (80) ("The only thing she has on MRI is minimal osteoarthritis that comes with aging. She has had electro diagnostic studies which are normal. The doctors have been unable to ascribe anything.") Consequently, the Court finds that the ALJ did not err in evaluating Plaintiff's credibility concerning her back pain. See, SSR 96-7p ("If there is no medically determinable physical or mental impairment(s), or if there is a medically determinable physical or mental impairment(s) but the impairment(s) could not reasonably be expected to produce the individual's pain or other symptoms, the symptoms cannot be found to affect the individual's ability to do basic work activities.").
Lastly, in arguing that the ALJ's determination was erroneous, Plaintiff argued that it was "of most significance" that she had been found disabled by the Commissioner, in connection with a different application for disability benefits, for the period immediately following the period at issue in this action, February 1, 2006 — March 18, 2008. Plaintiff argued that this later determination was based on the same medical evidence as in this case, "as well as medical evidence since the ALJ decision." (Pl. Memo of Law at 9). Plaintiff did not specify the nature of the additional medical evidence that was submitted in connection with the later application. However, following oral argument, and at the Court's request, Defendant's counsel investigated the basis for this later finding of disability, and reported that the later decision was based on different medical evidence. In particular, it seems that the later determination was based, in part, on the fact that Plaintiff's heart condition and COPD had worsened:
Appellate counsel for the SSA closely examined the medical records submitted in Ms. Ford's subsequent application for benefits and found that there was substantially different and stronger evidence in the later application supporting the SSA's disability finding. In particular, her primary care physician, Dr. Wilmot, made a definitive finding in his June 2009 progress notes that Ms. Ford was unable to work in any capacity. Further, a consultative exam performed . . . in June 2009 found that Ms. Ford was limited to walking one block, lifting five pounds, carrying ten pounds, and that her exertional abilities were severely limited due to shortness of breath and severe coronary disease, likely exacerbated by her continued smoking.
Letter of Kathryn L. Smith, Assistant United States Attorney, dated October 13, 2010. The Court finds that the Commissioner's later decision, finding Plaintiff disabled, does not require the reversal of the Commissioner's determination in this action.
CONCLUSION
For the reasons discussed above, Defendant's motion [#6] for judgment on the pleadings is granted, Plaintiff's cross-motion [#9] for the same relief is denied, and this action is dismissed. So Ordered.
Dated: Rochester, New York
November 3, 2010
Alert