Della M. v. Comm'r of Soc. Sec.

        Robert M. Tharp, Mesquite, TX, for Plaintiff.

        Stephen J. Zayler, Lufkin, TX, for Defendant's chronic obstructive pulmonary disease, hypertension, morbid obesity, orbital myositis, chronic fibromyalgia, and chronic back pain. (T. 449.) Dr. Denzien indicated these conditions would cause pain, fatigue, diminished concentration and work pace, and the need to rest at work with Plaintiff being off-task more than 33 percent of the day and absent more than four days per month. (T. 449-50.) She opined Plaintiff could sit for approximately two hours out of an eight hour day, should change positions every 15 minutes, could stand/walk for approximately one hour out of an eight hour day, and could occasionally lift up to ten pounds with the limitations present since September 2014. (T. 450.)

It appears Dr. Denzien also submitted an assessment of Plaintiff's mental limitations related to depression in June 2015, though it is not clearly dated. (T. 453-55.) Dr. Denzien indicated medium limitation in maintaining attention and concentration, performing activities within a schedule, maintaining regular attendance and/or being punctual within customary tolerances, completing a normal work day and work week without interruptions from psychologically based symptoms, performing at a consistent pace without an unreasonable number and length of rest periods, and getting along with coworkers; more than slight limitation in interacting appropriately with the general public; and marked limitation in accepting instructions and responding appropriately to criticism from supervisors, and responding appropriately to ordinary stressors in a work setting with simple tasks. (T. 454.) She opined Plaintiff would be off-task more than 15 percent but less than 20 percent of the day and absent two days per month with limitations present since April 2015. (T. 455.)

The ALJ afforded limited weight to these assessments from Dr. Denzien, noting they were not supported by objective evidence and they were "merely checkbox form responses without adequate narrative explanation or references to clinical and diagnostic findings to support the conclusions." (T. 22, 448-55.) The ALJ also indicated Dr. Denzien's assessments were based in part on impairments that had not been established as severe and pointed out Dr. Denzien noted Plaintiff was treating her back pain with ibuprofen. (T. 22, 358.) The ALJ further noted Plaintiff stated her asthma was good, her blood pressure was controlled, she reported improvement in her depression, and she denied experiencing any migraines. (T. 22, 324.) The ALJ indicated progress notes described Plaintiff's orientation, mood and affect as normal and that these findings did not support the degree of functional limitations provided by Dr. Denzien. (T. 22, 364.)

In July 2015, as part of the initial determination, consultant Dr. Harding noted there was a record source statement opining marked limitation in maintaining a regular schedule. (T. 74, 82, 87, 90-91.) Dr. Harding opined Plaintiff had mild restriction in activities of daily living, moderate difficulties in maintaining social functioning and concentration, persistence or pace, and no repeated episodes of decompensation of extended duration. (T. 76-77, 80-82, 89-91, 93-95.) More specifically, Dr. Harding indicated a moderate limitation in maintaining regular attendance and further noted the marked limitation in maintaining a regular schedule was not well-supported by objective evidence. (T. 80, 82, 93, 95.) The ALJ afforded significant weight to Dr. Harding's opinion based on her programmatic expertise and its consistency with Dr. Slowik's evaluation. (T. 22.)

3. Analysis

Plaintiff argues the ALJ's analysis of the medical opinions and Plaintiff's RFC and impairments is not supported by substantial evidence because of various alleged errors. (Dkt. No. 9 at 8-17.) The Court does not find these arguments persuasive for the following reasons.

First, Plaintiff argues the opinions from Dr. Denzien, Dr. Slowik, and Dr. Harding all assess limitations to maintaining a regular schedule/attendance and the ALJ rejected these limitations without relying on any contrary supporting medical opinion or including any limitations to maintaining regular attendance. (Dkt. No. 9 at 8-14.) Plaintiff claims the ALJ's analysis is also not sufficiently overwhelmingly compelling to allow him to reject these opinions and "Plaintiff's mental conditions are too complex to permit the ALJ to substitute his lay opinion for that of three competent medical opinions." (Id. at 10-11.)

Rather than substituting his own lay opinion, the Court finds that the ALJ relied on the evidence of record in finding significant limitations in maintaining a regular schedule/attendance were not supported. (T. 20-24.) The ALJ's RFC determination explicitly indicates Plaintiff retains the ability to regularly attend to a routine and maintain a schedule and the Court finds that the ALJ's analysis sufficiently explains his reasonable conclusions regarding the opined limitations in maintaining regular attendance. (T. 20-21.) Specifically, the ALJ explained he afforded partial weight to Dr. Slowik's opinion, but rejected the marked limitations for maintaining a regular schedule, and pointed to Plaintiff's ability to care for three children and her elderly parents, drive, shop, and attend her medical appointments. (T. 21, 313-18, 320, 488, 506.) The ALJ indicated these activities showed Plaintiff could maintain a schedule. (T. 21.) Indeed, Plaintiff's counseling records and May 2015 function report indicated she cooked simple meals four times a week, drove, went grocery shopping with her son, paid bills, went to arts and crafts activities at least twice a week, and cared for multiple pets by providing water and food and cleaning cages. (T. 21, 245-49, 744.) Further, Dr. Slowik's opined limitation "did not bind the ALJ . . . who was entitled to exercise discretion in reviewing the record evidence in its totality[.]" Barry v. Colvin, 606 F. App'x. 621, 624 (2d Cir. 2015) (citing 20 C.F.R. §§ 404.1527(d)(2), 404.1529(c)(4); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); SSR 96-7p, 1996 WL 374186, at *5).

Second, Plaintiff maintains Dr. Denzien's treating opinion is supported by the objective evidence and the ALJ did not have a substantial basis to reject her opinion because Dr. Harding's opinion (on which the ALJ relied) found the same or more severe limitations as Dr. Denzien and did not define the term "moderate." (Dkt. No. 9 at 15-16.) However, as Defendant points out, the marked limitation in maintaining a regular schedule cited by Plaintiff was not opined by Dr. Harding, but rather "Dr. Harding's recitation of the opinion offered by the consultative examiner, Dr. Slowik." (Dkt. No. 9 at 10, n. 1, 13-14; Dkt. No. 10 at 11; T. 82, 316.) As Defendant indicates, Dr. Harding actually then stated this opinion was not well supported by objective evidence. (Dkt. No. 10 at 11; T. 82.)

The ALJ explained Dr. Harding's opinion was given significant weight because of her programmatic expertise and its consistency with Dr. Slowik's evaluation. (T. 22, 313-18.) Although the ALJ did not explicitly discuss Dr. Harding's indication that the record source statement from Dr. Slowik opining a marked limitation in maintaining a regular schedule was not well-supported by objective evidence, the ALJ's analysis of Dr. Harding's opinion is consistent with his analysis of Dr. Slowik's opinion and clearly reflects that the opined marked limitation was not found to be supported by the evidence. (T. 74, 82, 87, 90-91, 95.) The ALJ's analysis indicates he relied on the opinions from Dr. Slowik and Dr. Harding in determining Plaintiff's mental RFC, and he explained why only partial weight was given to Dr. Slowik's opinion and why significant weight to Dr. Harding's opinion. (T. 21.) The ALJ's analysis further explained multiple reasons why he afforded limited weight to Dr. Denzien's opinions. (T. 22, 324, 364, 448-55.)

It was the ALJ's responsibility to weigh the various opinions along with the other evidence and determine which limitations were supported by the overall evidence of record. See Bliss v. Colvin, 13-CV-1086 (GLS/CFH), 2015 WL 457643, at *7 (N.D.N.Y., Feb. 3, 2015) ("It is the ALJ's sole responsibility to weigh all medical evidence and resolve material conflicts where sufficient evidence provides for such."); Petell v. Comm'r of Soc. Sec., 12-CV-1596 (LEK/CFH), 2014 WL 1123477, at *10 (N.D.N.Y. Mar. 21, 2014) (same); Quinn v. Colvin, 199 F. Supp. 3d 692, 712 (W.D.N.Y. 2016) ("'Although [an] ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he [is] entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.'") (quoting Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013)); West v. Comm'r of Soc. Sec., 15-CV-1042 (GTS/WBC), 2016 WL 6833060, at *5 (N.D.N.Y. Oct. 18, 2016), Report and Recommendation adopted by 2016 WL 6833995 (N.D.N.Y. Nov. 18, 2016) (citing Matta, 508 F. App'x at 56); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."). The ALJ's analysis here reflects a full consideration of the evidence including the medical opinions to determine Plaintiff's RFC. (T. 20-24.)

Third, although Plaintiff argues her performance of daily activities is not consistent with full time work or the type of strict, routine, schedule required in the workplace, the ALJ's analysis adequately explains why the record does not support the scheduling limitations opined by Dr. Slowik and Dr. Denzien. (Dkt. No. 9 at 11-12; T. 21-24.) This analysis includes the ALJ's summary of Plaintiff's treatment records such as progress notes from March and May 2015 indicating "her depression was better, as evidenced by her ability to join a support group and leave her home more frequently" and that her depression improved with treatment, which the ALJ found undermined Dr. Denzien's conclusion that Plaintiff had medium-to-marked mental limitations. (T. 23-24, 324, 336.) The ALJ further summarized counseling records indicating Plaintiff was making some improvement in reaching her treatments goals in April 2016 and that she reported she was doing "okay" in May 2017. (T. 24, 615.)

Fourth, the Court is not persuaded by Plaintiff's assertion that the ALJ made a major factual error in first stating Plaintiff could attend her medical appointments but subsequently indicating she had difficulties maintaining her appointments. (Dkt. No. 9 at 12; T. 23.) The ALJ noted Plaintiff's progress notes from January 2015 indicated that, although she reported worsening depression, she acknowledged she had stopped taking her medications and failed to attend scheduled appointments. (T. 23, 349.) The ALJ then cited subsequent treatment notes from March and May 2015 indicating Plaintiff reported her depression improved with treatment. (T. 23, 324, 336.) As Defendant argues, the record does not document chronic absences despite Plaintiff's citation to a January 2015 missed appointment. (Dkt. No. 10 at 12, n. 4; T. 354, 446.)

Finally, the Court finds the ALJ properly considered and accounted for Plaintiff's migraines in determining her RFC. (T. 20-24; Dkt. No. 9 at 17.) Plaintiff maintains the ALJ did not address the frequency and/or duration of her migraines, but the ALJ's RFC analysis includes explicit discussion of Plaintiff's treatment for migraine headaches including that progress notes indicated they were stable and even improved on their own without use of medication with neurology records noting the majority of Plaintiff's issues appeared to be related to noncompliance. (T. 23, 324, 332, 336, 677, 688.) As Defendant argues, the ALJ cited evidence contradicting any claims that Plaintiff's migraines were severe enough to require additional limitations than those included in the RFC; and the RFC included limitations specifically designed to account for Plaintiff's migraines, which the record did establish were associated with photophobia and phonophobia. (Dkt. No. 10 at 15; T. 23, 299, 324, 332, 336, 338, 636, 640, 677, 687-88, 694.)

For the reasons above, the Court finds the ALJ's analysis of Plaintiff's RFC, her impairments, and the medical opinions is supported by substantial evidence. Remand is therefore not required on these bases.

B. The ALJ's Step Five Determination

1. Applicable Law

The burden shifts to the Commissioner at Step Five "'to show there is other work that [the claimant] can perform.'" McIntyre, 758 F.3d at 150 (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). An ALJ may rely on a vocational expert's testimony "regarding a hypothetical [question] as long as 'there is substantial record evidence to support the assumption[s] upon which the vocational expert based his opinion' [and]. . . [the hypothetical question] accurately reflect[s] the limitations and capabilities of the claimant involved." McIntyre, 758 F.3d at 151 (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983); citing Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)). "If a hypothetical question does not include all of a claimant's impairments, limitations, and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability." Pardee v. Astrue, 631 F. Supp. 2d 200, 211 (N.D.N.Y. July 7, 2009) (citing Melligan v. Chater, 94-CV-0944, 1996 WL 1015417, at *8 (W.D.N.Y. Nov. 14, 1996)).

2. Analysis

At Step Five, the ALJ found, based on vocational expert testimony, that Plaintiff can perform jobs existing in significant numbers in the national economy including document preparer, addresser, and lens block gauger. (T. 24-25, 63-64.) Plaintiff contends the RFC determination and Step Five determination are not supported by substantial evidence because the RFC failed to account for the full extent of her physical and non-exertional limitations including those in staying on task/work pace (caused by migraines and psychiatric impairments) and maintaining a regular schedule/attendance. (Dkt. No. 9 at 17-18.) The Court is not persuaded by these arguments. As indicated in Section III.A. of this Decision and Order, the Court finds the ALJ's analysis of the opinion evidence, Plaintiff's impairments, and the RFC is supported by substantial evidence. The hypothetical question posed to the vocational expert reflected the ALJ's RFC determination and Plaintiff has not established further limitations beyond those included in the RFC. (T. 20, 63-64.)

For the reasons above, the Court finds the ALJ's Step Five determination is supported by substantial evidence and remand is therefore not required on this basis. ACCORDINGLY, it is

ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is DENIED ; and it is further

ORDERED that Defendant's motion for judgment on the pleadings (Dkt. No. 10) is GRANTED ; and it is further

ORDERED that Defendant's decision denying Plaintiff disability benefits is AFFIRMED , and it is further

ORDERED that Plaintiff's Complaint is DISMISSED. Dated: March 3, 2020

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge