OPINION AND ORDER
The parties consented to the exercise of jurisdiction by a United States Magistrate Judge, see Consent to the Exercise of Jurisdiction by a United States Magistrate Judge (Doc. No. 6), and the Order of Reference was entered on August 13, 2009 (Doc. No. 7).
JAMES KLINDT, Magistrate Judge
I. Status
Marilyn Johnson ("Plaintiff") is appealing the Commissioner of the Social Security Administration's final decision denying her claim for disability insurance benefits ("DIB"). Her alleged inability to work is based on the impairments of "Back fibromy[al]gia, fainting disorder[, and] essential tremor[.]" Transcript of Administrative Proceedings (Doc. No. 8; "Tr.") at 122. On June 15, 2006, Plaintiff filed an application for DIB, alleging an onset date of disability of February 3, 2006. Tr. at 98-103. On January 24, 2008, an Administrative Law Judge ("ALJ") held a hearing at which Plaintiff and a vocational expert ("VE") testified. Tr. at 23-42. On February 26, 2008, the ALJ issued a Decision finding Plaintiff not disabled through the date of the Decision. Tr. at 9-22. On April 17, 2009, the Appeals Council denied Plaintiff's request for review. Tr. at 5-7. On June 3, 2009, Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1) seeking judicial review of the Commissioner's final decision. Plaintiff has exhausted the available administrative remedies, and the case is properly before the Court.
Plaintiff, who was sixty-one years old at the time of her hearing before the ALJ, Tr. at 26, argues the ALJ erred in two ways: (1) "by improperly stating the residual functional capacity [("RFC")] of the Plaintiff," which was determined after the ALJ erroneously discounted the opinion of Plaintiff's treating physician; and (2) "by failing to include all the limitations [in the hypothetical] that w[as] presented to the [VE]." Memorandum in Support of Complaint (Doc. No. 12; "Pl.'s Mem.") at 5, 8-10, 11 (emphasis and capitalization omitted). After a thorough review of the entire record and consideration of the parties' respective memoranda, the undersigned finds that the Commissioner's final decision is due to be reversed and remanded for further proceedings consistent with this opinion.
II. The ALJ's Decision
When determining whether an individual is disabled, an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations ("Regulations"), determining as appropriate whether the individual: 1) is currently employed; 2) has a severe impairment; 3) has an impairment that meets or medically equals one listed in the Regulations; 4) can perform past relevant work; and 5) retains the ability to perform any work in the national economy. See 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). The ALJ performed the required five-step sequential inquiry. Tr. at 14-22. At step one, the ALJ observed that Plaintiff "has not engaged in substantial gainful activity since February 3, 2006, the alleged onset date." Tr. at 14. At step two, the ALJ found Plaintiff suffers from the following severe impairments: "headache; myalgias; seizure disorder, NOS; tremors of upper extremities; disorders of spine; and status post motor vehicle accident (December of 2005)." Tr. at 14. The ALJ found Plaintiff's "anxiety represents a non-severe impairment." Tr. at 17 (emphasis omitted). At step three, the ALJ stated Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ( 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). Tr. at 18.
The ALJ determined Plaintiff has the RFC "to perform sedentary work[,] except she must be able to sit/stand at will." Tr. at 18. In addition, "[s]he must avoid ladders or unprotected heights and operation of heavy moving machinery. She can occasionally bend, crouch, kneel, stoop, squat, or crawl. She must avoid unusual stress." Tr. at 18. At step four, the ALJ found that Plaintiff is able to perform her "past relevant work as a financial analyst/loan officer and loan processor/loan closer," because "[t]his work does not require the performance of work-related activities precluded by [Plaintiff's RFC.]" Tr. at 21. The ALJ noted that Plaintiff's past relevant work "is sedentary, skilled work." Tr. at 21. The ALJ did not proceed to step five because of the determination that Plaintiff could perform past relevant work "as actually and generally performed." Tr. at 21-22. The ALJ concluded that Plaintiff was not under a disability from February 3, 2006 through the date of the Decision. Tr. at 22.
III. Standard of Review
This Court reviews the Commissioner's final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ's conclusions of law, findings of fact "are conclusive if . . . supported by `substantial evidence'. . . ." Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). "Substantial evidence is something `more than a mere scintilla, but less than a preponderance.'" Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met when there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether "the decision reached is reasonable and supported by substantial evidence."Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence-even if the evidence preponderates against the Commissioner's findings. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
Plaintiff argues the ALJ erred in two ways: (1) by improperly determining Plaintiff's RFC; and (2) by failing to include all of Plaintiff's limitations in the hypothetical presented to the VE. Pl.'s Mem. at 5, 11. Each argument is addressed in turn.
A. ALJ's Determination of Plaintiff's RFC
Plaintiff first contends the ALJ erred by "improperly stating the [RFC] of the Plaintiff." Pl.'s Mem. at 5 (emphasis and capitalization omitted). Within this argument, Plaintiff contends that the opinion of her treating physician, Claudio E. Vincenty, M.D., was inappropriately discounted in the assessment of Plaintiff's RFC. Id. at 8-10.
Dr. Vincenty began treating Plaintiff for neck and back pain on March 3, 2006. Tr. at 383. At the time, Plaintiff was "a 59-year-old, white female status post remote cervical fusion now presenting status post motor vehicle accident with increased neck pain, left radicular pain as well as low back pain." Tr. at 385. After being advised by Plaintiff that "[p]revious attempts with physical therapy, massage therapy, heat, ice, and biofeedback have failed to improve her symptoms," Tr. at 383, Dr. Vincenty discussed with Plaintiff performing "cervical epidural steroid injections[.]" Tr. at 385. Thereafter, over the course of about five weeks, Plaintiff received three cervical epidural steroid injections. Tr. at 382, 381, 380. At a follow up visit on April 20, 2006, Plaintiff reported continuing to have "a significant amount of neck pain which was not relieved with cervical epidural steroid injective therapy." Tr. at 379. The epidural steroid injection procedures were "delay[ed]" at Plaintiff's request. Tr. at 379.
On May 1, 2006, Dr. Vincenty completed an "Attending Physician's Statement" in connection with Plaintiff's claim for income protection benefits through a private insurance company. Tr. at 377-78. Dr. Vincenty opined Plaintiff's "Degenerative Disc Disease" was preventing Plaintiff from working. Tr. at 377. He noted Plaintiff had "severe neck pain w/Radiation of pain into arms[, as well as] low back pain." Tr. at 377. He also noted Plaintiff had undergone a "CESI series w/o [i]mprovement," and was currently on "[n]arcotic medication mgmt." Tr. at 377.
Dr. Vincenty opined Plaintiff could sit for three hours intermittently throughout the workday, Plaintiff could stand for one hour intermittently throughout the workday, and Plaintiff could walk one hour intermittently throughout the workday. Tr. at 378. Plaintiff could never climb, twist, bend, stoop, or operate heavy machinery. Tr. at 378. Plaintiff could reach above her shoulder level "33%" of the time. Tr. at 378. Plaintiff could never lift or carry more than ten pounds, but she could lift or carry up to ten pounds "1-33%" of the time. Tr. at 378. Finally, Plaintiff could perform fine finger movements and pushing/pulling "1-33%" of the time, and could perform hand/eye coordinated movements "34-66%" of the time. Tr. at 378. Dr. Vincenty indicated it was "unknown" when, if ever, Plaintiff's capabilities would improve. Tr. at 378. Dr. Vincenty also indicated he had not advised Plaintiff that she could return to work. Tr. at 378.
On May 25, 2006, Dr. Vincenty performed another epidural steroid injection on Plaintiff. Tr. at 376. For about six months after the May 25, 2006 injection, Plaintiff "was unable to continue with the treatment plan" because she had an "insurance change and recurrent ear infections[.]" Tr. at 373. Thereafter, beginning November 27, 2006, Plaintiff underwent another series of epidural steroid injections. Tr. at 372, 370, 369. On January 29, 2007, Plaintiff reported being "pleased with her results," and she was told she would be seen again in two months "for reevaluation[,] or sooner if symptomology worsens." Tr. at 366. It was noted at that time Plaintiff was "utiliz[ing] Lortab on a p.r.n. basis" for pain. Tr. at 366.
On March 15, 2007, Dr. Vincenty wrote a letter to Plaintiff's counsel at the time, indicating that despite "improvement of her low back pain," Plaintiff "continue[d] to experience difficulty with standing for greater than 10 minutes or with prolonged sitting." Tr. at 362, 363. "Extension and rotation maneuvers tend to exacerbate her pain." Tr. at 363. Dr. Vincenty also wrote Plaintiff had "decreased range of motion with flexion, extension, and rotation of both her neck and back." Tr. at 363. Dr. Vincenty noted Plaintiff was "placed at maximal medical improvement as of January 29, 2007, with a 15% impairment rating." Tr. at 363.
At a follow up visit on March 26, 2007, Plaintiff reported being "pleased with her results." Tr. at 361. Plaintiff was directed to continue with her medication regimen and to come back in three months for a follow up visit. Tr. at 361. On June 25, 2007, Plaintiff complained of "bilateral low back and buttock pain." Tr. at 359. Plaintiff reported using or taking the following medications: "Duragesic patch 50 meg, Lortab, Soma, Lunesta, and Wellbutrin as well as Lipitor," which were all being prescribed by Plaintiff's primary care physician. Tr. at 359. Plaintiff was informed that "the next appropriate step would be bilateral diagnostic and theraputic lumbar facet injections." Tr. at 359. Plaintiff was asked to advise Dr. Vincenty prior to her next follow up visit regarding her intended course of treatment. Tr. at 359. On July 31, 2007, Plaintiff reported having "severe low back pain with radiation into the left leg all the way down into the foot." Tr. at 357. Dr. Vincenty prescribed "Lyrica 75 mg . . . to try to minimize her neuropathic pain symptoms," as well as "Opana ER 5mg[.]" Tr. at 357. "[L]eft lumbar facet injective series times two" was to be scheduled. Tr. at 358. The last treatment note in the record from Dr. Vincenty documents a lumbar facet injection on August 3, 2007. Tr. at 355.
The Regulations instruct ALJs how to weigh the medical opinions of treating physicians properly. See 20 C.F.R. § 404.1527(d). Because treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s)," a treating physician's medical opinion is to be afforded controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 C.F.R. § 404.1527(d)(2). When a treating physician's medical opinion is not due controlling weight, the ALJ must determine the appropriate weight it should be given by considering factors such as the length of treatment, the frequency of examination, the nature and extent of the treatment relationship, as well as the supportability of the opinion, its consistency with the other evidence, and the specialization of the physician. Id.
Medical opinions are statements from physicians that reflect judgments about the nature and severity of a claimant's impairment, including symptoms, diagnosis, prognosis, and what the claimant can still do despite the impairment. 20 C.F.R. § 404.1527(a)(2).
A treating physician is a physician who provides medical treatment or evaluation to a claimant and who has, or has had, an ongoing treatment relationship with the claimant, as established by medical evidence showing that the claimant sees or has seen the physician with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for the medical condition. See 20 C.F.R. § 404.1502.
If an ALJ concludes the medical opinion of a treating physician should be given less than substantial or considerable weight, he or she must clearly articulate reasons showing "good cause" for discounting it. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause exists when (1) the opinion is not bolstered by the evidence, (2) the evidence supports a contrary finding, or (3) the opinion is conclusory or inconsistent with the treating physician's own medical records. Phillips, 357 F.3d at 1240-41;see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that a treating physician's medical opinion may be discounted when it is not accompanied by objective medical evidence). The ALJ must "state with particularity the weight he [or she] gave the different medical opinions and the reasons therefor." Sharfarz v. Bowen, 825 F.2d 278, 279-80 (11th Cir. 1987); see also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
Here, the ALJ discounted the opinion of Dr. Vincenty, giving the opinion "little weight" because it "is not consistent with the evidence of the record when considered in its entirety." Tr. at 21. The only other support for discounting Dr. Vincenty's opinion provided by the ALJ was that Dr. Vincenty is Board Certified in Anesthesiology, as opposed to treating neurosurgeon Dr. Zeal, who is Board Certified in Neurological Surgery and whose opinion the ALJ assigned "controlling weight." Tr. at 21.
The first reason for discounting Dr. Vincenty's opinion is that the opinion is inconsistent with the rest of the evidence in the record. Tr. at 21. Although the ALJ articulated a reason for discounting the opinion of the treating physician which is recognized as a "good cause" reason, see Lewis, 125 F.3d at 1440, the ALJ did not explain this reason with any specificity, and he did not provide any evidentiary support for his reason. Cf. Gayler v. Astrue, No. 5:07-cv-121-Oc-GRJ, 2008 WL 4327050, at *6 (M.D. Fla. Sept. 18, 2008) (unpublished) (reversing and remanding ALJ's decision to discount a treating physician's opinion when "the ALJ failed to explain or even provide a clue as to how [the treating physician's] opinion was inconsistent with other record medical evidence"); Russ v. Astrue, No. 3:07-cv-1213-J-MCR, 2009 WL 764516, at *10 (M.D. Fla. Mar. 20, 2009) (unpublished) (finding an ALJ's "dismissal" of a treating physician's opinion was "deficient" when the ALJ noted the opinion "was `not supported by objective findings,'" but did not provide any explanation for the reason) (quoting ALJ's Decision). The lack of specific explanation or evidentiary support for the ALJ's reason to discount Dr. Vincenty's opinion frustrates judicial review.
Defendant contends in his memorandum that "[s]ubtantial evidence supports the ALJ's decision to give little weight to the opinion of Dr. Vincenty," Memorandum in Support of the Commissioner's Decision (Doc. No. 13; "Def.'s Mem.") at 7, and goes on to provide a number of reasons why the record allegedly supports such a conclusion. Id. at 7-12. Even if Defendant's reasons were accepted as true, however, the Court "cannot uphold a decision by an administrative agency . . . if, while there is enough evidence in the record to support the decision, the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result, or the reasons are not included in the decision." Austin v. Astrue, No. 5:07cv52/MCR/EMT, 2008 WL 2385520, at *8 (N.D. Fla. June 9, 2008) (unpublished) (recognizing the Commissioner's arguments in support of the ALJ's discounting of a treating physician's opinion, but stating "[w]hile [the arguments] may be true, the ALJ did not make these findings") (citing Green v. Shalala, 51 F.3d 96, 100-01 (7th Cir. 1995); Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994); Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1984); Cline v. Sullivan, 939 F.2d 560, 563-69 (8th Cir. 1991)).
The ALJ's second reason for discounting the opinion of Dr. Vincenty is that Dr. Vincenty is only Board Certified in Anesthesiology, as opposed to Plaintiff's treating neurosurgeon, Dr. Zeal, who is Board Certified in Neurological Surgery. Tr. at 21. However, this is not a "good cause" reason recognized by the United States Court of Appeals for the Eleventh Circuit. See Lewis, 125 F.3d at 1440 (stating good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating physician's own medical records). Rather, specialization is a factor to be considered in determining how much weight an opinion should be given if it is given anything less than controlling weight. See 20 C.F.R. § 404.1527(d)(5). Dr. Vincenty's specialization is irrelevant to whether good cause exists to discount it.
Plaintiff seems to take some issue with the ALJ's handling of the opinion of Dr. Zeal. See Pl.'s Mem. at 5-10. The ALJ assigned "controlling weight" to the opinion of Dr. Zeal, noting that "Dr. Zeal had the opportunity to examine [Plaintiff] and that his opinion is supported by objective medical findings." Tr. at 21. Further, the ALJ stated the opinion "is also consistent with the evidence of record when considered in its entirety." Tr. at 21. Finally, the ALJ concluded Dr. Zeal is board certified in Neurological Surgery, "which is of the appropriate medical specialty to assess [Plaintiff's] impairments and the limitations they impose on her ability to perform work-related activities." Tr. at 21. Plaintiff does not specifically challenge any of these reasons as not supported by substantial evidence; rather, she contends Dr. Zeal's opinion is not the most recent one and is "based on a single evaluation in April 2006." Pl.'s Mem. at 9 (emphasis in original). Plaintiff concedes, however, that "[i]t is not surprising to have a single evaluation by Dr. Zeal because he is a surgeon and if surgery is not indicated, there is generally no need to continue to be treated by Dr. Zeal." Id. Frequency of examination is only a factor to be considered if the ALJ does not give the opinion controlling weight. See 20 C.F.R. § 404.1527(d)(2). Because the ALJ here gave Dr. Zeal's opinion controlling weight, the Court does not find compelling Plaintiff's observation that the opinion is based on a single evaluation.
The Court notes that had the ALJ articulated with the requisite specificity a good cause reason to discount Dr. Vincenty's opinion, it would have been proper for the ALJ to consider Dr. Vincenty's specialization, along with the other factors identified in 20 C.F.R. § 404.1527(d)(5), in determining the weight to afford the opinion. The Court also notes that Plaintiff relies on a letter from Dr. Vincenty (see Pl.'s Mem. at 7), submitted after the hearing and after the ALJ's Decision, in which Dr. Vincenty indicated he is "board certified in interventional pain management." Tr. at 399. Defendant contends that because Plaintiff did not specifically challenge the Appeals Council's actions in denying review, Plaintiff has waived the opportunity in this Court to rely on evidence submitted to the Appeals Council. Def.'s Mem. at 11. The Court need not address this issue, given the finding that the ALJ's reasons for discounting Dr. Vincenty's opinion are inadequate.
The ALJ failed to explain with the requisite specificity how Dr. Vincenty's opinion is inconsistent with the record evidence. Because the ALJ determined Plaintiff's RFC, at least in part, by discounting the opinion of Dr. Vincenty, the lack of adequate explanation for the discounting makes it impossible for the Court to determine whether the RFC was correctly stated. Therefore, this matter is due to be remanded. On remand, the Commissioner shall clearly articulate reasons showing "good cause" for discounting the opinion of Dr. Vincenty, if the Commissioner chooses to do so. Lewis, 125 F.3d at 1440. Additionally, the Commissioner shall reconsider Plaintiff's RFC.
B. Hypothetical to VE
Plaintiff contends the ALJ "fail[ed] to include all limitations in the hypothetical" that was presented to the VE. Pl.'s Mem. at 11. Specifically, Plaintiff argues the ALJ did not include the effects of Plaintiff's anxiety and the use of an assistive device. Id. at 11-12. In the fifth step of the sequential evaluation process, an ALJ may pose a hypothetical question to a VE as part of his determination of whether the claimant can obtain work in the national economy. See 20 C.F.R. § 416.920(a)-(f). When an ALJ relies on the testimony of a VE, "the key inquiry shifts [from the RFC assessment in the ALJ's written decision] to the adequacy of the RFC description contained in the hypothetical posed to the VE." Corbitt v. Astrue, No. 3:07-cv-518-J-HTS, 2008 WL 1776574, at *3 (M.D. Fla. Apr. 17, 2008) (unpublished). In determining an individual's RFC and later posing a hypothetical to a VE which includes the RFC, the ALJ "must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not `severe.'" SSR 96-8P, 1996 WL 374184 at *5; see also 20 C.F.R. § 404.1545(a)(2); Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (stating "the ALJ must consider a claimant's impairments in combination") (citing 20 C.F.R. § 404.1545; Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984)); Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985) (stating that, "[w]here a claimant has alleged a multitude of impairments, a claim . . . may lie even though none of the impairments, considered individually, is disabling") (internal quotation and citation omitted). "In order for a [VE]'s testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments." Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)); see also Loveless v. Massanari, 136 F. Supp. 2d 1245, 1250 (M.D. Ala. 2001).
1. Anxiety
Plaintiff contends the ALJ "never included any limitations with regard to her mental health issues and more specifically the `mild restrictions of activities of daily living, mild difficulties in maintaining social functioning[,] and mild difficulties in maintaining concentration, persistence, or pace.'" Pl.'s Mem. at 11 (quoting ALJ's Decision).
In a review of her factual history, Plaintiff explains that on April 5, 2008, after the ALJ's unfavorable Decision, she was admitted to Tenbroeck Hospital because of suicidal ideations. Pl.'s Mem. at 4. According to Plaintiff, after her evaluation, she received a Global Assessment of Functioning Score of 55 and a diagnosis of major depressive disorder. Id. at 4. It is unclear how, if at all, Plaintiff intends for this evidence to be considered by the Court in deciding the instant issues. Because Plaintiff does not rely on this evidence in her argument regarding the failure to incorporate the effects of her anxiety in the hypothetical to the VE, see id. at 11-12, the Court does not deem it necessary to discuss such evidence in the analysis of this issue.
The ALJ determined Plaintiff's anxiety is a non-severe impairment. Tr. at 17. To support this determination, the ALJ stated that "[t]he evidence of record shows that [Plaintiff] is not receiving any type of treatment from a mental health professional," and she "receives medication from her primary care physician[.]" Tr. at 17. The ALJ also noted that Plaintiff's mental status was within normal limits during two visits with her treating physician. Tr. at 17-18 (referring to Tr. at 224, 229). Furthermore, the ALJ relied on the Mental Health Report of Mark St. Lawrence, PA-C, Plaintiff's primary care physician's assistant, see Tr. at 18, in which Mr. St. Lawrence opined Plaintiff's "[m]ood and affect" were "normal"; Plaintiff's "[t]hought process" had "no decline at this time"; Plaintiff's "[c]oncentration" and "[o]rientation" were without "decline"; and Plaintiff's "[m]emory (immediate, recent remote)" was also without "decline[.]" Tr. at 329. According to Mr. St. Lawrence, Plaintiff's mental diagnosis is "mood swings" and her prognosis is "very good[.]" Tr. at 330.
In evaluating a claimant's mental condition, the Regulations direct the use of the psychiatric review technique. See 20 C.F.R. §§ 404.1520a and 416.920a. The psychiatric review technique is embodied in the psychiatric review technique form ("PRTF") and is further described in the preface to section 12.00 of the listing of impairments. See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. In the first step of the psychiatric review technique, it is determined whether a claimant has a medically determinable mental impairment using the criteria in "paragraph A" of the listings. 20 C.F.R. §§ 404.1520a(b)(1) and 416.920a(b)(1); 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. Next, the degree of functional limitation relating to such impairment is ascertained. 20 C.F.R. §§ 404.1520a(c) and 416.920a(c). In determining the degree of functional limitation resulting from a mental impairment, four "broad functional areas" in "paragraph B" of the listings are rated: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3) and 416.920a(c)(3); 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. The first three broad functional areas are rated using a five-point scale: none, mild, moderate, marked, and severe. 20 C.F.R. §§ 404.1520a(c)(4) and 416.920a(c)(4); 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. If the criteria under paragraph B do not establish that the claimant is disabled, depending on the type of mental disorder, the criteria under "paragraph C" are considered. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00.
The medical findings associated with affective disorders, including anxiety, are listed in paragraph A of section 12.04.See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.04.
For affective disorders, the paragraph C criteria are as follows: "Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: 1. Repeated episodes of decompensation, each of extended duration; or 2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or 3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement with an indication or continued need for such an arrangement." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.04(c).
Next, if paragraph C does not establish that the claimant is disabled, the severity of the mental impairment is determined based on the degree of limitations in the four broad functional areas. See 20 C.F.R. §§ 404.1520a(d) and 416.920a(d); 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. If the claimant is determined to have a severe mental impairment that does not meet or medically equal any of the impairments listed, then the claimant's RFC is assessed. 20 C.F.R. §§ 404.1520a(d)(3) and 416.920a(d)(3); 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. The ratings of the claimant's limitations in the four broad functional areas pursuant to the psychiatric review technique "are not an RFC assessment but are used to rate the severity of mental impairments at steps [two] and [three] of the sequential evaluation process." SSR 96-8p, 1996 WL 374184, at *4. "The mental RFC assessment used at steps [four] and [five] of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the [listings]." Id.
When making the more detailed assessment and itemizing the claimant's various functions in assessing RFC at steps four and five of the sequential evaluation process, "[n]onexertional capacity must be expressed in terms of work-related functions." Id. at *6. "Work-related mental activities generally required by competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting."Id.; see also 20 C.F.R. §§ 404.1545(c) and 416.945(c); Pabon v. Barnhart, 273 F. Supp. 2d 506, 515-16 (S.D.N.Y. 2003). The assessment of functional limitations resulting from mental impairments "is a complex and highly individualized process that requires [consideration of] multiple issues and all relevant evidence to obtain a longitudinal picture of [the claimant's] overall degree of functional limitation." 20 C.F.R. §§ 404.1520a(c)(1) and 416.920a(c)(1).
"Nonexertional capacity measures all work-related limitations and restrictions that do not depend on an individual's physical strength; i.e., all physical limitations and restrictions that are not reflected in the seven strength demands, and mental limitations and restrictions." SSR 96-8p, 1996 WL 374184, at *6.
Here, as previously stated, the ALJ found at step two that Plaintiff's anxiety represents a non-severe impairment. Tr. at 17. The ALJ further found that Plaintiff "has mild restrictions of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation." Tr. at 18. The ALJ recognized in his Decision that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ( 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). Tr. at 18.
In assessing the RFC in his Decision, the ALJ performed the required translation of Plaintiff's limitations resulting from her mental impairment from the four broad functional areas to a work-related function: the need to "avoid unusual stress." Tr. at 18. This workrelated function was also conveyed to the VE in the hypothetical. Tr. at 40. Plaintiff argues that "mild restrictions of activities of daily living, mild difficulties in maintaining social functioning and mild difficulties in maintaining concentration, persistence or pace" were not included in the hypothetical, Pl.'s Mem. at 11, but the inclusion of limitations in these functional areas is not required at step five of the sequential evaluation process, see SSR 96-8p, 1996 WL 374184, at *4. Rather, a translation of these limitations into practical workrelated functions is required at this step, see id., which the ALJ performed by limiting Plaintiff to "avoid[ing] unusual stress," Tr. at 40-41. Plaintiff does not challenge whether the need to "avoid unusual stress" adequately accounts for her anxiety. Therefore, the Court finds no error in the ALJ's formulation of the hypothetical with respect to Plaintiff's anxiety.
2. Use of Assistive Device
Plaintiff argues the ALJ did not include in the hypothetical that Plaintiff requires an assistive device to walk. Pl.'s Mem. at 12. Plaintiff emphasizes that "it was never disputed that she had an assistive device." Id. Defendant essentially concedes the assistive device was not considered but argues that "any error the ALJ made in failing to recognize Plaintiff's use of a walker at the time of the hearing was harmless." Def.'s Mem. at 16. The Court need not resolve whether such error was harmless. Because this matter is due to be remanded for other reasons, on remand, the Commissioner shall ensure that the alleged use of an assistive device is adequately considered in framing the hypothetical.
V. Conclusion
Additional explanation from the ALJ is needed to determine whether the ALJ's reasons for discounting the opinion of Dr. Vincenty are supported by substantial evidence. Furthermore, the ALJ shall ensure adequate consideration of Plaintiff's alleged use of an assistive device when formulating the hypothetical to the VE. In accordance with the foregoing, it is
ORDERED:
1. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) REVERSING the Commissioner's final decision and REMANDING this matter with the following instructions:
(a) Reevaluate the opinion of treating physician Dr. Vincenty and state with particularity the weight afforded to Dr. Vincenty's opinion; if the opinion is discounted, adequate reasons showing good cause for discounting it shall be provided and shall be supported by substantial evidence;
(b) Reevaluate Plaintiff's residual functional capacity upon determining the weight to afford Dr. Vincenty's opinion;
(c) Reevaluate the hypothetical question posed to the vocational expert with regard to the effects of Plaintiff's alleged use of an assistive device; and
(d) Take such other action as may be necessary to resolve this claim properly.
2. The Clerk of Court is directed to close the file.
3. If benefits are awarded on remand, Plaintiff's counsel shall have thirty (30) days from receiving notice of the amount of past due benefits to seek the Court's approval of attorney's fees pursuant to 42 U.S.C. § 406(b). See Bergen v. Comm'r Soc. Sec., 454 F.3d 1273 (11th Cir. 2006).
DONE AND ORDERED at Jacksonville, Florida on September 30, 2010.
Gallo, both of whom were incumbent trustees, defeated plaintiff. (Pl.'s Dep. at 330:16-331:23.)
At his deposition, plaintiff testified that Gallo is not a defendant in this case because he is deceased. (Pl.'s Dep. at 332:12-15.)
H. Issues with Plaintiff's Lease and the End of His Coffee Business
Plaintiff's lease with Hollander was due to expire in August 2005. After August 2005, plaintiff continued to operate "Coffee" in Hollander's ice cream shop on a month-to-month tenancy until March 2006, at which point plaintiff no longer operated any coffee shop. (Defs.' 56.1 ¶¶ 29-30.) Hollander told plaintiff that she did not want him leasing the building because his reputation was hurting her business. (Pl.'s Dep. at 27:6-32:5.) Plaintiff asserts that he was unable to find a new location for his shop because of his declining sales and tarnished reputation. ( Id. at 32:6-36:24, 142:4-43:15.)
I. Additional Incidents
After "Coffee" closed, plaintiff began employment as a legislative assistant to State Assemblywoman Patricia Eddington. (Defs.' 56.1 ¶ 104.) Plaintiff alleges that his relationship with Ms. Eddington changed in 2007 after she had a conversation with defendant Terrel. ( Id. ¶ 107.) Ms. Eddington's chief of staff terminated plaintiff's employment on June 18, 2007 and advised plaintiff that Ms. Eddington was "having difficulty with [plaintiff's] employment in her office as it relates to the issues with Bellport Village." ( Id. ¶¶ 106, 109.)
Plaintiff also alleges that he was given various tickets throughout the time in question. (Defs.' 56.1 ¶ 118.) For instance, on April 9, 2007, plaintiff was given a ticket for displaying a "painter wanted" sign on the lawn of his house and alleges that he was the only person who received this violation in 2007. (Pl.'s Exs. R, S.) Plaintiff also claims that various defendants made defamatory statements about plaintiff in connection with his chairmanship of the Bellport Film Society, eventually leading to plaintiff's resignation from that organization. (Defs.' 56.1 ¶¶ 86-96; 101.) Furthermore, plaintiff alleges that defendants made various threatening remarks to him in public. For example, after plaintiff had announced his political candidacy, defendant Orlando allegedly told plaintiff that he was "going to be cut to pieces." (Pl.'s Dep. at 282:18-24.) Defendant Lyons allegedly said that plaintiff "made a mistake by taking on the police. They're an army you cannot beat." ( Id. at 282:24-83:3.)
Plaintiff admits that he was also given about three to five tickets prior to his political candidacy. (Pl.'s Dep. at 288:14-16.)
As a result of all of the above-discussed conduct by defendants, plaintiff alleges that his reputation suffered and he was unable to continue with his coffee shop business. (Defs.' 56.1 ¶¶ 124-25.) When defendant John Orlando was served with process in the instant lawsuit, he allegedly stated to plaintiff: "It was wrong what was done to you." (Pl.'s Ex. X.)
Plaintiff also alleges that defendant Mullins pushed him on the dock at one point in 2001 or 2003. (Pl.'s Dep. at 281:3-13.) He also alleges that defendant Snead threatened plaintiff in 2001 or 2003. ( Id. at 307:9:18.) There is no allegation that any of these acts were connected to the alleged campaign of harassment in response to plaintiff's political candidacy, and, thus, any claim based on these events is time-barred.
Plaintiff also alleges that he was pushed by a person at a Village board meeting in September 2005, but this individual is not named as a defendant in this action. (Pl.'s Ex. N.)
J. Procedural History
Plaintiff filed the complaint in this action on March 4, 2008. Plaintiff filed an amended complaint on October 6, 2008. On October 10, 2008, the Court so-ordered a stipulation between the parties dismissing all of plaintiff's state-law claims, which included abuse of process, false arrest, and malicious prosecution. The stipulation also dismissed any claims arising from the enactment of legislation regarding the boat slip residency requirement as against defendants Frank C. Trotta, Robert Lyons III, John N. Orlando, and J. Lee Snead. The Court so-ordered another stipulation on July 1, 2009, which dismissed all of plaintiff's claims against defendant Adam R. Friedlander.
Defendants submitted a motion for summary judgment on December 7, 2009. Plaintiff submitted an opposition dated January 22, 2010. Defendants replied on March 5, 2010. Oral argument was held on April 8, 2010. The motion is fully submitted.
In connection with his opposition, plaintiff submitted the transcript of an audio recording of a conversation on June 25, 2008 between Jim Datri and defendant John Orlando. (Pl.'s Ex. Y.) Defendants argue that because this audio recording was not provided to them during discovery, despite specific requests for any such recordings, the Court must not consider the exhibit under Rule 37 of the Federal Rules of Civil Procedure. The Court need not decide whether plaintiff's failure to provide the exhibit during discovery should preclude consideration of the evidence because, in any event, even if the Court considered this evidence, the Court concludes that defendants would nevertheless be entitled to summary judgment on all of plaintiff's claims for the reasons discussed infra.
II. STANDARD OF REVIEW
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Reiseck v. Universal Commc'ns of Miami, Inc., 591 F.3d 101, 104 (2d Cir. 2010). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "`must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth "`concrete particulars'" showing that a trial is needed. R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment "`merely to assert a conclusion without supplying supporting arguments or facts.'" BellSouth Telecomms., Inc. v. W.R. Grace Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33).
III. DISCUSSION
At oral argument, the Court asked plaintiff's counsel to clarify what claims he was asserting. Plaintiff's counsel stated that he was asserting a "substantive due process" claim and a "1983 conspiracy" claim. ( See Oral Argument Audio FTR at 3:17-18.) As set forth below, the Court concludes that neither of these claims can survive summary judgment. Additionally, in an abundance of caution, the Court has analyzed plaintiff's claim under a "stigma-plus" procedural due process theory and concludes that defendants are entitled to summary judgment on that claim as well.
Plaintiff brings his claims under 42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 n. 3 (1979). For claims under § 1983, a plaintiff must prove that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted). Here, the parties do not dispute that defendants were acting under color of state law. The question presented, therefore, is whether defendants' conduct deprived plaintiff of the rights he asserts under the Fourteenth Amendment.
Specifically, Section 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . .
42 U.S.C. § 1983.
To succeed on a § 1983 claim, a plaintiff must also establish that a defendant was personally involved in the alleged constitutional deprivation. See Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005) ("Before § 1983 damages are awarded, a plaintiff must show by a preponderance of the evidence that the defendant was personally involved — that is, he directly participated — in the alleged constitutional deprivations."). Here, plaintiff's allegations against a number of the defendants rely purely on conjecture. ( See generally Pl.'s Dep. 305:9-325:2).) As such, although the Court does not reach the issue given the other bases for granting summary judgment, there is a serious question as to whether plaintiff has produced sufficient evidence that most of the defendants were personally involved in any alleged constitutional violations.
A. Substantive Due Process Claim
The Due Process Clause of the Fourteenth Amendment protects persons against deprivations of "life, liberty, orproperty." U.S. Const. amend. XIV, § 1. However, the scope of substantive due process is very limited. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997). The Supreme Court has said that it is "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
To establish a substantive due process violation, a plaintiff must (1) identify the constitutional right at stake and (2) demonstrate that the government's action were conscience-shocking or arbitrary in the constitutional sense. Little v. City of N.Y., 487 F. Supp. 2d 426, 443 (S.D.N.Y. 2007) (citing Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994)). The "shock the conscience" standard is not easily met; the plaintiff must show the government conduct was "`egregious'" and "`outrageous,'" not "not merely incorrect or ill-advised." Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006) (quotation omitted). As set forth below, the Court determines that, even if plaintiff's evidence is credited and all reasonable inferences are drawn in his favor, no rational jury could conclude that plaintiff has established (1) a deprivation of a liberty interest or (2) that defendants' actions shocked the conscience or were constitutionally arbitrary.
Okin v. Village of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)).
See also Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001) ("As we have held numerous times, substantive due process `does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit. . . . [Its] standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.'" (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999))).
1. Liberty Interest
Here, plaintiff argues that he had a liberty interest in running his coffee shop business. He claims that defendants infringed on this interest because, in an effort to undermine plaintiff's political aspirations, they engaged in a campaign to tarnish his reputation by, inter alia, having him arrested. He further alleges that defendants' alleged campaign had the "collateral effect of destroying [his] business." (Pl.'s Opp. Mem. of Law at 3 ("To reduce the probability of [plaintiff] prevailing in the election, the Village undertook a course of conduct to destroy him. It also had the collateral effect of destroying his business.").)
It is well settled that a person has a liberty interest in "`engag[ing] in any of the common occupations of life.'" Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 632 (2d Cir. 1996) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). Case law indicates, however, that a substantive due process claim based on infringement of this or similar rights will succeed only where a person is blocked from participating in a particular field. See Conn v. Gabbert, 526 U.S. 286, 291-92 (1999) (noting the existence of Supreme Court case law supporting "some generalized due process right to choose one's field of private employment" but also noting that cases in this area "all deal with a complete prohibition of the right. . . ."); Rodriguez v. Margotta, 71 F. Supp. 2d 289, 296 (S.D.N.Y. 1999) ("It is well settled that one must have no ability to practice one's profession at all in order to state a claim for deprivation of a liberty interest."); see also Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 404 (3d Cir. 2000) (observing that "[t]he Supreme Court has already held that Meyer may not be read to constitutionalize all executive actions that affect the pursuit of a profession in any way").
Similarly, courts have found that a pattern of harassment directed at a business can constitute a substantive due process violation in some circumstances. See, e.g., State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995) (finding material issues of fact precluded summary judgment on due-process claim where there was evidence that defendant had directly contacted plaintiff's customers and told them that plaintiff was a "habitual law breaker"). See generally Chalfy v. Turoff, 804 F.2d 20, 22 (2d Cir. 1986) ("[A] true pattern of harassment by government officials may make out a section 1983 claim for violation of due process of law." (collecting cases)).
However, because the Supreme Court has cautioned against expansion of the scope of substantive due process rights, see supra, courts are reluctant to convert employment related defamation claims into substantive due process claims. In Boyanowski, for example, an employee of a government-run competitor of plaintiff's school bus company publicly called plaintiff a "crook" and claimed that plaintiff had been a poor manager when he had previously worked for the competitor. The Third Circuit reversed a jury's verdict that had found a substantive due process violation based on the competitor-employee's comments. The court acknowledged such comments would have "some effect on an individual's ability to navigate the often treacherous waters of government contracting, but" declined "to leap to the broad level of generality necessary to classify the harm in substantive due process terms" because to do so "would constitutionalize broad swaths of state tort law." 215 F.3d at 404.
Applying these principles here, there is no evidence from which a rational jury could find that defendants infringed upon plaintiff's liberty interests. Even assuming arguendo that some or all of the defendants caused the injuries to plaintiff's reputation, there is no evidence that their actions, standing alone, directly blocked plaintiff from participating in the coffee shop business, nor is there evidence that they took direct action to undermine plaintiff's business. To use plaintiff's own phrase, the alleged injuries to his business were a "collateral effect" of defendants' alleged political campaign against him. Given the attenuated relationship between defendants' alleged actions and the injury to plaintiff's business, there is, as a matter of law, no basis to find that defendants' alleged actions give rise to a substantive due process claim. As noted at oral argument, to hold otherwise would mean that a substantive due process claim could arise anytime someone receives negative publicity as a result of state action and that publicity adversely effects the person's business or employment.
2. Shock the Conscience/Constitutionally Arbitrary
Furthermore, even if plaintiff could establish that defendants infringed on his liberty interests, their alleged actions hardly rise to the conscience-shocking level necessary to succeed on a substantive due-process claim.
As a threshold matter, again, the liberty interest at issue involves plaintiff's coffee-shop business. ( See, e.g., Pl.'s Opp. Mem. of Law at 6.) Thus, although plaintiff raises allegations related to, inter alia, a boat slip, his membership in the Bellport Film Society, and threatening comments made by defendants on the street, these actions are unrelated to plaintiff's purported liberty interest in running his business. Second, the remaining incidents do not, as a matter of law, shock the conscience. With respect to plaintiff's arrest for trespassing at the Village Hall, the Suffolk County Police — not any of the defendants — actually conducted the investigation and made the arrest and did so in part based on an admission from the plaintiff.
At oral argument, plaintiff's counsel specifically conceded that there was no connection between the boat slip and plaintiff's occupation. Defendants also argue that the statute of limitations bars recovery for any conduct occurring before March 2005. Plaintiff argues that the conduct was continuing. In order to invoke the "continuing violation" exception, plaintiff must demonstrate that separate incidents were a part of a larger unlawful practice. See AMTRAK v. Morgan, 536 U.S. 101, 115-21 (2002); see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) ("[A] continuing violation may be found `where there is proof of specific ongoing discriminatory polices [sic] or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice'" (quoting Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994))), abrogated in part on other grounds by Morgan, 536 U.S. 101. In this case, plaintiff alleges that defendants engaged in a pattern of harassment based on his political activity beginning in late 2004 or early 2005. Plaintiff does not point to any connection between the alleged conduct prior to March 2005 and the alleged scheme to destroy plaintiff's reputation. In any event, even if the Court considered plaintiff's claims based on the pre-March 2005 conduct to be timely, none of the alleged conduct, as a matter of law, constitutes a deprivation of substantive due process for the reasons discussed infra.
The news article describing the incident does contain statements from defendant Bodnarchuk, who observed plaintiff on the Village Hall grounds, and from defendant Green, the Village Attorney. Defendant Bodnarchuk describes what he observed plaintiff doing outside the Village Hall. His description of the incident is essentially identical to plaintiff's. Plaintiff asserts that Green's comments were "disparaging" and "inaccurate," apparently because Green is quoted as asking why plaintiff would "walk around the building." (Pl.'s Ex. I.)
( See Pl.'s Ex. I.)
( Compare Pl.'s Ex. I (newspaper article quoting Bodnarchuk as saying "We opened the door and there's [plaintiff] with a camera going off. He said `You like watching T.V.?' I said, `Tom, you've got to be kidding me'") with Pl.'s Dep. 96:2-11 ("I asked [the officer] if he enjoyed or liked watching television on taxpayers' time. . . . He kind of shrugged and sighed and slammed the door, the front door of the Village Hall. You know what, he might have said you got to be kidding me. I believe he said that, you got to be kidding me.").)
(Pl.'s Opp. Mem. of Law at 3.)
The Court draws this inference because the copy of the newspaper article filed by plaintiff in opposition to summary judgment contains a hand-written annotation — "walk around building" — with a hand-drawn arrow pointing at Green's quote. ( See Pl.'s Ex. I.) Plaintiff seems to contend that he was not actually walking around the building, although he admits he was on the property.
As to the second incident, plaintiff was given an appearance ticket for trespassing based on his alleged dropping-off of garbage at the municipal yard on Good Friday, when, according to defendants, the yard was actually closed.
In sum, in both of the trespassing incidents, plaintiff was admittedly present on the property either after normal working hours or on what at least plausibly could be called a holiday. Moreover, defendants' role in the arrests was essentially as complaining witnesses; the Suffolk County Police actually made the arrest in the first incident and issued plaintiff an appearance ticket in the second.
Plaintiff also asserts that Village officials attempted to get Hollander — the person from whom plaintiff leased the "Coffee" premises — to obtain a permit for outdoor seating. Plaintiff agrees, however, that Hollander obtained a "favorable resolution" to the situation, and there is no evidence that the permit issue by itself adversely affected plaintiff's business. ( See Pl.'s Dep. 185:12-186:14.) Under the circumstances, no reasonable jury could find that defendants' actions shocked the conscience or were constitutionally arbitrary. Cf. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 252 (2d Cir. 2001) (finding that student and his parents adequately stated substantive due process claim based on allegation that gym teacher had choked student, slammed the back of his head into the bleachers four times, rammed student's head into a metal fuse box, and punched him in the face). See generally Espanola Way Corp. v. Meyerson, 690 F.2d 827, 830 (defendants not entitled to summary judgment in case involving allegation that defendants had violated plaintiff's property interests where, inter alia, 344 building-code violations had been issued for plaintiff's hotel). Thus, plaintiff's substantive due process claim cannot withstand summary judgment.
B. Procedural Due Process Claim
As noted above, plaintiff's counsel explicitly stated at oral argument that he was asserting a " substantive due process" claim. Plaintiff's papers, however, refer to "due process stigma cases." ( See Pl.'s Opp. Mem. of Law at 6.) As explained in more detail below, "stigma-plus" is a theory of relief on a procedural due process claim. See generally Doe v. Mich. Dep't of State Police, 490 F.3d 491, 502 (6th Cir. 2007) ("The stigma-plus test is used to determine whether state action violates an individual's procedural due process rights. . . . Our review of the caselaw has failed to identify any case that applies the stigma-plus test to a substantive due process claim." (internal citations omitted; collecting cases)). Even assuming plaintiff is attempting to assert a procedural due process claim, it cannot survive summary judgment.
1. Applicable Law
Generally, damage to a person's reputation is not enough to invoke the Due Process Clause. See Paul v. Davis, 424 U.S. 693, 701 (1976). These types of injuries usually provide a basis only for state-law defamation claims, not federal constitutional torts. However, a plaintiff can bring a § 1983 due process claim on a so-called "stigma-plus" theory — that is by showing "`a stigmatizing statement plus a deprivation of a tangible interest.'" Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)). "To establish a `stigma plus' claim, a plaintiff must show (1) `the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false,' and (2) `a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights.'" Id. (quoting Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)). Stigma-plus claims often arise in the public-employment context where, for example, an employer is alleged to have made defamatory statements in connection with firing the plaintiff.
See Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994) (describing "defamation in conjunction with termination of government employment" as "the clear situation that satisfies the `stigma plus' test"); Sacco v. Pataki, 114 F. Supp. 2d 264, 271 (S.D.N.Y. 2000) (explaining that the "plus" requirement of a stigma-plus claim "has been met in most cases by dismissal from government employment"); see, e.g., Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 631 (2d Cir. 1996) (reversing district court's grant of summary judgment where comments made in connection with assistant principal's termination were "so harsh as to be likely to persuade any other school board not to hire plaintiff as a supervisor").
Here, no rational trier of fact could find that plaintiff was deprived of procedural due process. As a threshold matter, there is no evidence that any defendants — with the possible exception of defendant Green, see supra — made any false or defamatory statements in connection with plaintiff's arrests or the resulting publicity.
Moreover, plaintiff has presented no evidence from which a rational jury could find that the "plus" portion of the "stigma plus" standard has been met. That is, even assuming defendants made defamatory statements and these statements resulted in a stigma, plaintiff would still need to show something more — i.e., the "plus" — to succeed on a constitutional claim. Reputational injury, standing alone, is insufficient. For example, in Sadallah v. City of Utica, 383 F.3d 34 (2d Cir. 2004), the plaintiffs operated a restaurant on property they leased from the City of Utica. The defendants — city officials — were alleged to have made various false and disparaging statements about, inter alia, the condition of the property and the improper storage of chemicals in the food-preparation area. The plaintiffs sued, asserting, inter alia, a § 1983 stigma-plus due process claim. They claimed that defendants' statements caused reputational and financial harm to their business. The Second Circuit reversed the district court's denial of a motion to dismiss. The court stated that "`deleterious effects [flowing] directly from a sullied reputation,' standing alone, do not constitute a `plus' under the `stigma plus' doctrine." 383 F.3d at 38 (quoting Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994) (alteration in original)). The court went onto explain that, although plaintiffs alleged lost business as a result of defendants' statements, those injuries were not "in addition to" the alleged defamation but instead were a direct result of the defamation. Id. As such, even if the defendants' statements were defamatory, they did not rise to the level necessary to state a due process violation. Id. at 38-39.
See also Valmonte, 18 F.3d at 1001 ("Our prior decisions indicate, as does Paul v. Davis, that defamation is simply not enough to support a cognizable liberty interest. It therefore follows that the deleterious effects which flow directly from a sullied reputation would normally also be insufficient. These would normally include the impact that defamation might have on job prospects, or, for that matter, romantic aspirations, friendships, self-esteem, or any other typical consequence of a bad reputation."). The Court recognizes that a stigma-plus claim may arise where the employer makes statements that "denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his or her profession." Donato, 96 F.3d at 630-31. However, unlike the instant case, Donato arose in the context of the plaintiff's termination from her job as a school assistant principal, and the statements at issue directly impugned plaintiff's abilities as a school administrator. In contrast, statements regarding plaintiff's trespassing arrests did not occur in the context of termination from public employment nor do they directly call into question plaintiff's competence to run a coffee-shop business. Thus, the instant case is much more analogous to the situation in Sadallah than to Donato.
Sadallah is directly on point. Plaintiff complains of injuries resulting from "the deleterious effects . . . of a sullied reputation." Accordingly, although he could potentially have other, state law claims against defendants, he cannot, as a matter of law, succeed on a "stigma-plus" due process theory. Accordingly, any procedural due process claim cannot survive summary judgment.
As noted supra, plaintiff agreed by stipulation to dismiss his state-law claims.
C. Conspiracy Claim
Plaintiff alleges, pursuant to § 1983, that defendants conspired to deprive him of due process. For the reasons set forth below, the Court grants defendants' motion for summary judgment on plaintiff's § 1983 conspiracy claims.
"To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
As a threshold matter, plaintiff has not established that defendants violated his constitutional rights. See supra. Accordingly, his § 1983 conspiracy claim fails as a matter of law. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (explaining that a § 1983 conspiracy claim "will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right"); D'Angelo-Fenton v. Town of Carmel, 470 F. Supp. 2d 387, 397 (S.D.N.Y. 2007) ("[T]o succeed in a § 1983 conspiracy claim, a plaintiff must prove not only a conspiracy, but an actual deprivation of a constitutional right.").
Furthermore, in the alternative, the Court concludes that plaintiff presents no evidence from which a rational jury could find the existence of a § 1983 conspiracy. Although plaintiff testified that village employees told him some of the defendants were discussing his trespass at the Village Hall, this does not establish an agreement to inflict an unconstitutional injury. Cf Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (explaining that evidence of communications between various defendants was not, by itself, sufficient to defeat summary judgment on § 1983 conspiracy claim). Beyond this, plaintiff's conspiracy claim is based on speculation and conjecture. This is plainly insufficient to survive summary judgment. See, e.g., Williams v. Cnty. of Nassau, 684 F. Supp. 2d 268, 290-92 (E.D.N.Y. 2010) (granting summary judgment on § 1983 conspiracy claim).
( See, e.g., Pl.'s Dep. 299:8-11 ("I believe there was a discussion that took place with regard to [plaintiff's arrest] and there were players involved and we need to know who was involved.").)
Defendants also argue that the intra-corporate conspiracy doctrine bars plaintiff's conspiracy claim. Because the Court dismisses the conspiracy claim on multiple other grounds, it does not reach the intra-corporate conspiracy argument.
Accordingly, because there is (1) no underlying constitutional violation and (2) no evidence of an agreement to inflict unconstitutional injury on plaintiff, the Court grants defendants' motion for summary judgment on plaintiff's claims of conspiracy under § 1983.
D. Qualified Immunity
Defendants also argue, in the alternative, that they are entitled to summary judgment on all claims based on qualified immunity. As set forth below, the Court agrees.
According to the Second Circuit, government actors may be shielded from liability for civil damages if their "conduct did not violate plaintiff's clearly established rights, or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights." Mandell v. Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). "A right is clearly established when the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . The unlawfulness must be apparent." Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998) (citations and quotation marks omitted). In addition, the Second Circuit has repeatedly stated that qualified immunity only protects officials performing "discretionary functions." See Simons v. Fitzgerald, 287 F. App'x 924, 926 (2d Cir. 2008) ("`Qualified immunity shields government officials performing discretionary functions from liability for civil damages. . . .'" (quoting Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007))).
Here, with respect to the incidents discussed more fully in Parts III.A and B, qualified immunity protects the defendants. There is no evidence that any defendant violated plaintiff's clearly established constitutional rights in complaining to the police regarding plaintiff's alleged trespasses or in determining that Hollander's building might need an outdoor-seating permit. As such, even if plaintiff could establish a constitutional violation (which he cannot for the reasons discussed above), defendants would be entitled to qualified immunity.
V. CONCLUSION
For the reasons discussed above, the Court grants defendants summary judgment. The Clerk of the Court shall enter judgment accordingly and close the case.
SO ORDERED.
Dated: September 30, 2010
Central Islip, New York