Summary
rejecting argument that Commissioner's decision should be reversed because there was no medical opinion addressing her alcohol abuse
Summary of this case from Canter v. SaulOpinion
6:15-CV-00278 EAW
08-25-2016
Laura A. WETTLAUFER, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
Sarah A. Frederick, Buffalo, NY, for Plaintiff. Joanne Jackson, Prashant Tamaskar, Social Security Administration, Office of General Counsel, New York, NY, for Defendant.
Sarah A. Frederick, Buffalo, NY, for Plaintiff.
Joanne Jackson, Prashant Tamaskar, Social Security Administration, Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Plaintiff Laura A. Wettlaufer ("Plaintiff"), through counsel, brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security ("the Commissioner"), denying Plaintiff's application for Disability Insurance Benefits ("DIB"). (Dkt. 1). Plaintiff contends that the decision of Administrative Law Judge ("ALJ") David S. Lewandowski was not supported by substantial evidence. (Dkt. 6–1 at 18–21). Plaintiff further contends that the ALJ erred by not recontacting Plaintiff's treating physicians and by ignoring the testimony of a lay witness. (Dkt. 6–1 at 21–23).
Presently before the Court are the parties' opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 6; Dkt. 14). For the reasons set forth below, the Commissioner's motion is GRANTED and Plaintiff's motion is DENIED.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Overview
On December 16, 2011, Plaintiff applied for social security disability benefits, alleging disability beginning on April 4, 2011 due to major depression, anxiety, and post-traumatic stress disorder ("PTSD"). (Administrative Transcript (hereinafter "Tr.") 147-55, 165).
Plaintiff's application was denied on April 20, 2012. (Tr. 95). Plaintiff requested a hearing and appeared, represented by counsel, to testify at a hearing held on July 11, 2013, before ALJ Lewandowski in Buffalo, New York. (Tr. 49-82, 103-04). Plaintiff's husband, Brian Wettlaufer, and Vocational Expert ("VE") Esperanza J. DiStefano also appeared and testified. (Tr. 68-82).
On June 26, 2013, the ALJ issued a decision determining that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 21-39). The Appeals Council denied review on January 30, 2015; accordingly, the ALJ's decision became the final decision of the Commissioner. (Tr. 4-6). Plaintiff commenced this action on March 31, 2015. (Dkt. 1).
B. The Non-Medical Evidence
1. Plaintiff's Testimony
Plaintiff alleged severe impairments of major depression, PTSD, anxiety, and alcohol dependence. On the date of the hearing, Plaintiff was 49 years old and lived with her husband and daughter. (Tr. 49). She had a history of mental health issues; her primary care physician, Dr. David A. Lawton, diagnosed Plaintiff with depression in 1995, and she became dependent on alcohol in 2010. (Tr. 53, 62).
Plaintiff testified that she had last been employed as a registered nurse. (Tr. 49-51). She stopped working on April 4, 2011, when she was admitted to the emergency room at Mercy Hospital because of her depression, anxiety, and alcohol abuse. (Tr. 50). Her hospitalization was brought about by a visit from her biological mother, who abused Plaintiff as a child and revealed during the visit that the man who raised Plaintiff was not actually her father. (Tr. 52-53). While Plaintiff anticipated that she would return to work after her hospitalization, she did not do so because her employment was terminated after her short-term disability ended; moreover, her treating psychiatrist, Dr. Oscar Lopez, M.D., advised her not to return to work after her short-term disability ended. (Tr. 54-55).
Plaintiff testified that, following her hospitalization, she was transferred to BryLin Hospital. (Tr. 54). While at BryLin, she began treatment with Dr. Lopez for her PTSD, major depression, anxiety, and alcohol dependence; she was still under his care at the time of the hearing. (Tr. 55). Dr. Lopez's treatment included counseling appointments, psychotherapies, and prescription medications. (Tr. 55, 57).Plaintiff stated that, in addition to Dr. Lopez's treatment, she attended Alcoholics Anonymous ("AA") meetings daily until she had a gallbladder surgery in April 2013; thereafter, she attended AA meetings three to five times each week. (Tr. 55-56). Plaintiff explained that she had not completed rehabilitation for alcohol abuse because she could not afford it. (Tr. 56-57).
Plaintiff explained that, since the onset of her disability, she had been unable to abstain completely from drinking alcohol, but she had reduced the frequency and amount of her consumption. (Tr. 58). She used to consume one liter to one-and-a-half liters of wine each day; at the time of the hearing, she consumed three to four glasses of wine every two to three days. Id. She claimed that stress, anxiety, and "what happens in [her] home" caused her drinking. Id.
Plaintiff stated that her anxiety caused her to experience "severe insomnia" daily and to avoid social situations. (Tr. 59-60). Her depression resulted in hopelessness and fatigue, causing her to put off her daily activities, sometimes for three to four days at a time. (Tr. 60). Her PTSD symptoms interfered with her sleep. (Tr. 61). Her mental health issues limited her desire or ability to perform household chores, shop, and be in social settings or large groups of people. (Tr. 67). Plaintiff also stated that her symptoms had improved since she began treatment with Dr. Lopez in April 2011. (Tr. 61-62).
Plaintiff was taking the following medications to treat various symptoms: Ambien for sleep disturbances, Xanax for anxiety, Pristiq for depression, and Atenolol for inappropriate sinus tachycardia. (Tr. 64-66). She stated that, in additional to her mental health issues, she suffered various physical problems that interfered with her ability to function. Those physical problems included irritable bowl syndrome, colitis, reflux, hiatal hernia, and gastrointestinal distress. (Tr. 63-64).
2. Witness's Testimony
Plaintiff's husband, Brian Wettlaufer, also testified. When Plaintiff's disability began, Mr. Wettlaufer observed that Plaintiff was exhibiting "some very difficult behaviors," including a lack of responsibility and poor reasoning. (Tr. 68, 72). While she previously had exhibited milder forms of those behaviors, those behaviors had escalated in April 2011 such that they affected her ability to interact with her family. (Tr. 69). He also had observed Plaintiff drinking and abusing alcohol, but he maintained that, at the time of the hearing, she had "accomplished a great deal where she drinks very little." (Tr. 69-70). He believed that her alcohol abuse "really accelerated at the revelation of some of these difficulties that she had in childhood," (Tr. 70), and that "the alcohol is not the issue, but ... the post-traumatic stress and the depression and the history of the abuse ... are the issues." (Tr. 74). Mr. Wettlaufer participated in Plaintiff's treatment by attending some of Plaintiff's appointments with her psychiatrist and counseling sessions. (Tr. 69). He did not believe Plaintiff could return to work. (Tr. 75).
2. Vocational Expert's Testimony
VE DiStefano testified that Plaintiff was employed previously as an office registered nurse. (Tr. 79). The ALJ instructed VE DiStefano to assume an individual of Plaintiff's age, education, and work experience, who ( l) had no exertional limitations; (2) could understand, remember, and carry out simple instructions; and (3) could occasionally interact with coworkers and supervisors, but not the general public. (Tr. 80). VE DiStefano testified that a hypothetical person with those characteristics could not perform Plaintiff's past work as a registered nurse, but could perform other jobs available in the national economy, including hand packer, assembler, and vehicle washer. (Tr. 80-81).
The ALJ also instructed VE DiStefano to assume the same hypothetical individual with the additional limitations of being unable to maintain regular attendance and being off task for at least 20% of the time. (Tr. 81-82). VE DiStefano replied that "the individual may be able to perform the jobs," but "the individual would not be able to maintain employment." (Tr. 82).
C. Summary of the Medical Evidence
The Court assumes the parties' familiarity with the medical record, which is summarized below.
As noted above, on April 4, 2011, Plaintiff was admitted to Mercy Hospital for alcohol abuse and depression. (Tr. 298-304). She had consumed alcohol that day and had been drinking one to one-and-a-half liters of wine daily during the preceding months. (Tr. 303). According to a mental status examination, Plaintiff showed a depressed mood; anxiousness; organized and goal-directed thinking; intermittent suicidal ideation without a plan; preoccupation with alcohol; intact abstract reasoning and memory; and fair insight and judgment. (Tr. 301). Because Plaintiff feared that she immediately would resume drinking and act on her suicidal impulses if discharged, a hospital doctor recommended transferring Plaintiff to BryLin Hospital for inpatient psychiatric treatment. (Tr. 302).
Plaintiff received inpatient treatment for depression and alcoholism at BryLin Hospital from April 7, 2011 until April 19, 2011. (Tr. 262). According to a mental status examination performed at the time of her admission, she said she felt depressed, anxious, and hopeless; moreover, she admitted having suicidal thoughts. (Tr. 263). Upon discharge from BryLin, Plaintiff was referred to Reflections Inpatient Treatment Facility for an alcohol dependency treatment program. (Tr. 263, 442). She signed out of Reflections after one day, against medical advice. (Tr. 369, 442).
On April 29, 2011, Plaintiff went to Sheehan Health Network for alcohol detoxification. (Tr. 252-61). There, she received tapering doses of Valium and was diagnosed with alcohol withdrawal and dependence, as well as benzodiazepine dependence. (Tr. 258). On May 2, 2011, she was deemed stable, discharged, and instructed to follow up at Stutzman Addiction Treatment Center. (Tr. 252). Plaintiff left Stutzman after one day, against clinical advice. (Tr. 442).
On August 4, 2011, Plaintiff was again hospitalized at Mercy Hospital due to suicidal thoughts and alcohol intoxication. (Tr. 329). Plaintiff reported that she had been intoxicated for a few days and had been drinking wine and beer daily. (Tr. 329). She felt anxious and described her depression as a seven, on a scale of one (mild) to ten (severe). (Tr. 332). She was diagnosed with suicidal ideation ; alcohol intoxication and dependence; anxiety; depression; and insomnia. (Tr. 334).
On April 26, 2011, Plaintiff began treatment with Dr. Lopez and reported to him that she had resumed drinking since her discharge, sometimes as much as one liter of alcohol per day. (Tr. 369-70). Dr. Lopez conducted a medical examination of Plaintiff, observing that she was on time, made good eye contact, and wore adequate attire; that she spoke clearly and coherently; that she admitted she had relapsed and could not abstain from alcohol; and that she was not suicidal. (Tr. 370). Dr. Lopez diagnosed Plaintiff with major depression, recurrent, severe; generalized anxiety disorder ; and alcohol dependence. Id. His progress notes for that day also stated that Plaintiff would remain out of work, and that he "filled out a form regarding her job." Id. Throughout 2011, Plaintiff reported to Dr. Lopez that she continued drinking, albeit at varying rates. On May 24, 2011, Plaintiff reported that she was "[s]till drinking." (Tr. 367). On June 7, 2011, Plaintiff reported that she had "[n]o urge to drink" for two days, and that, when she did drink, she consumed only two servings of wine. (Tr. 266). On June 21, 2011, Plaintiff reported that she had "[a]ctually now diminished drinking." (Tr. 365). On August 2, 2011—two days before her second hospitalization for suicidal thoughts and alcohol intoxication—Plaintiff told Dr. Lopez that she was drinking less. (Tr. 364). On August 23, 2011, after being discharged from the hospital, Plaintiff reported that she had suicidal ideas, especially when she was drinking. (Tr. 363). Dr. Lopez observed that Plaintiff "ha[d] really been trying and had been compliant with all of her medications, but just could not stop drinking." (Tr. 364). On August 30, 2011, Plaintiff reported that her drinking was "intermittent." (Tr. 362). On September 13, 2011, she reported that her alcohol cravings were "less" but "still present." (Tr. 361). Two weeks later, she reported that she had "[s]purts of drinking." (Tr. 360). On October 18, 2011, Plaintiff reported that she was "overly dark regarding her ability to stop drinking," and that "[s]he still drinks, but certainly less than before." (Tr. 359). She explained that "[a]lcohol has a very strong pull on her." Id.
In November 2011, Dr. Lopez completed a medical source statement, a form showing his assessment of Plaintiff's abilities to perform basic mental activities of work on a sustained basis, independent of her alcohol addiction. (Tr. 347-49). Dr. Lopez checked the box rating Plaintiff's abilities as "poor to none" in each of the 14 listed mental abilities critical for performing unskilled work. Id. Dr. Lopez also checked the box indicating that Plaintiff could manage her benefits in her own best interest. (Tr. 354). The basis for his assessment was set forth in an accompanying narrative statement. (Tr. 349). In it, Dr. Lopez recounted Plaintiff's medical and treatment history, as well as her diagnoses of PTSD, depression, and alcohol abuse. (Tr. 350-51). He noted that Plaintiff "remain[ed] severely depressed and anxious. In addition, there have been occasional binges of alcohol, but this has been minimal since her admission to BryLin Hospital." Id. Dr. Lopez concluded that Plaintiff "remain[ed] disabled and unable to work." (Tr. 351).
On October 31, 2011, Plaintiff's primary care physician, Dr. David Lawton, M.D., completed the same medical source statement form and also reached the same conclusion as Dr. Lopez: Dr. Lawton found that Plaintiff had poor-to-no abilities in the 14 listed criteria. (Tr. 352-54). In an accompanying narrative statement, Dr. Lawton stated that "[w]hen going over the mental impairment form with [Plaintiff] and her husband, answers were poor to none to the questions listed and this was done primarily because of [Plaintiff]'s history of [PTSD]." (Tr. 722). He concluded that Plaintiff was "no longer able to maintain gainful employment" because her PTSD "would involve [Plaintiff] losing the ability to cope with reality and the ability to perform her job duties." Id.
On March 12, 2012, Dr. Hongbiao Lu, M.D., performed a consultative internal medicine examination of Plaintiff. (Tr. 406-09). Plaintiff's chief complaints were PTSD, depression, and anxiety. (Tr. 406). Plaintiff told Dr. Lu that she was "occasionally drinking." Id. She stated that she could cook and clean the house daily and do the laundry and shopping two or three times per week. Id. She also stated that she cared for her teenage daughter, showered four to five times per week, dressed herself, and liked to read, watch television, and listen to the radio. (Tr. 407). Dr. Lu opined that "there are no limitations for the routine activities," but noted that a psychiatrist would evaluate Plaintiff's PTSD, depression, and anxiety. (Tr. 409).
That same day, Renee Baskin, Ph.D., performed a consultative psychiatric examination of Plaintiff. (Tr. 410-14). Plaintiff's anxiety symptoms included waking once or twice each night, fluctuations in her weight and appetite, worrying excessively, and flashbacks. (Tr. 411). She also had panic attacks that resulted in palpitations and breathing difficulties. Id. Dr. Baskin noted that Plaintiff had "short-term memory deficits and concentration difficulties." Id. Dr. Baskin also noted that Plaintiff was an alcoholic and drank daily. Id. Plaintiff reported that she was "capable of doing all activities of daily living by herself," depending on her energy level. (Tr. 413). Dr. Baskin described Plaintiff's limitations as follows:
[Plaintiff] would have minimal to no limitations being able to follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, learn new tasks, [and] perform complex tasks independently. She would have moderate limitations being able to maintain a regular schedule [and] relate adequately with others. She would have marked limitations being able to make appropriate decisions and appropriately deal with stress.
Id. Dr. Baskin concluded that "the results of the examination appear to be consistent with psychiatric and substance abuse problems and this may significantly interfere with the claimant's ability to function on a daily basis." Id. Dr. Baskin diagnosed Plaintiff with the following conditions: major depressive disorder, recurrent, without psychotic features; anxiety disorder; PTSD; and alcohol dependence/abuse. Id. Dr. Baskin also concluded that Plaintiff would "not be able to manage her own funds due to her continued use of alcohol." (Tr. 413-14).
On April 19, 2012, Dr. Mangold, a psychiatric medical consultant, completed a medical summary assessment and a functional capacity assessment at the Commissioner's request. (Tr. 446-63). Based on medical evidence, including Dr. Baskin's consultative psychiatric examination, Dr. Mangold concluded that Plaintiff's alcoholism was material to her impairments, and that she would be "mentally capable of performing simple competitive work" if she abstained from alcohol. (Tr. 459).
Throughout the summer of 2012, Plaintiff reported to Dr. Lopez that her drinking, depression, and anxiety had diminished. (See Tr. 685-91). For example, on May 16, 2012, Plaintiff reported that she was "happy, up and down," was doing "better re[garding] her alcohol am[ount]," was attending AA meetings, and had a "length[y]" period of sobriety. (Tr. 687). On June 20, 2012, she reported that her drinking was "[s]till minimal." (Tr. 686). On June 25, 2012, Plaintiff told Dr. Lopez that she "fe[lt] better with fewer episode[s] of depression[,]" that her "[a]nxiety has diminished," and that her drinking had decreased. (Tr. 685).
Later that year, however, Plaintiff's drinking increased. On August 28, 2012, she told Dr. Lopez that she had been "backsliding," her "[a]lcohol use ha[d] increased," and she felt "hopeless." (Tr. 786). On September 11, 2012, Dr. Lopez noted that Plaintiff "continues to use [alcohol] to minimize the effects of [PTSD]." (Tr. 783). On January 10, 2013, she told Dr. Lopez that she was drinking one bottle of wine per day; she used the alcohol to relieve abdominal pain and her anxiety. (Tr. 780).
On January 17, 2013, Plaintiff reported that she was "still drinking, but it is now controlled and continues to decrease." (Tr. 779). That day, Dr. Lopez performed a mental status examination, which revealed the following: Plaintiff's mood was good; she spoke clearly and coherently; she was positive in her goals; she wanted to improve; and she was not having hallucinations or delusions. Id.
On March 14, 2013, Dr. Lopez conducted another mental status examination of Plaintiff. (Tr. 775). The examination showed that Plaintiff's mood was irritable, depressed, anxious, and fearful. Id. However, she was fully oriented, and she had normal speech, and logical thought processes, and good concentration, insight, and judgment. (Tr. 776). Moreover, she denied suicidal ideation. Id. At that time, Plaintiff had "minimize[d] her drinking." (Tr. 775).
On April 22, 2013, Plaintiff told Dr. Lopez that her drinking was only "periodic" and had improved; moreover, she was "learning to deal with her anxiety level, which often increases, without resorting to alcohol." (Tr. 723). She also stated that she was still "extremely depressed." Id. Dr. Lopez directed her to continue her medications and AA meetings and to remain abstinent from alcohol. (Tr. 724).
On April 22, 2013, Dr. Lopez completed a second medical source statement. (Tr. 772-74). Whereas in his first medical source statement Dr. Lopez had rated Plaintiff as having poor-to-none of the 14 listed mental abilities critical for performing unskilled work, in the second medical source statement, Dr. Lopez rated Plaintiff "fair" or "good" in all of those same mental abilities, except three. Id. Those three abilities, in which Dr. Lopez still rated Plaintiff "poor to none," were the abilities to complete a normal workday or workweek and perform at a consistent pace; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and respond appropriately to changes in a routine work setting. (Tr. 772.) Like the first medical source statement, Dr. Lopez concluded that Plaintiff was capable of managing her own benefits. (Tr. 774). Dr. Lopez noted that Plaintiff continued to suffer from severe anxiety and depression, which "markedly reduce[d] her ability to function in a work setting." Id.
In a letter dated April 29, 2013, Dr. Lopez stated that Plaintiff was able to function better, that her symptoms had improved noticeably, and that she had complied with treatment. (Tr. 726). He concluded, however, that Plaintiff remained disabled and unable to work. (Tr. 727).
III. DISCUSSION
A. Standard of Review
This Court has jurisdiction to review the final decision of the Commissioner under 42 U.S.C. §§ 405(g) and 1383(c)(3). "In reviewing a decision of the Commissioner, a court may ‘enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.’ " Rehr v. Barnhart , 431 F.Supp.2d 312, 317 (E.D.N.Y.2006) (quoting 42 U.S.C. § 405(g) ). Section 405(g) directs the Court to accept findings of fact made by the Commissioner, so long as the findings are supported by substantial evidence in the record. Substantial evidence is "more than a mere scintilla," and "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). It is "a very deferential standard of review—even more so than the ‘clearly erroneous' standard." Brault v. Soc. Sec. Admin., Comm'r , 683 F.3d 443, 448 (2d Cir.2012).The Court also reviews the Commissioner's determination for legal error.
Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.
Johnson v. Bowen , 817 F.2d 983, 986 (2d Cir.1987).
The scope of the Court's review is limited to determining whether the Commissioner applied the appropriate legal standards in evaluating Plaintiff's claim, and whether the Commissioner's findings were supported by substantial evidence on the record. See Mongeur v. Heckler , 722 F.2d 1033, 1038 (2d Cir.1983) (stating that a reviewing Court does not examine a benefits case de novo ). If the Court finds no legal error, and that there is substantial evidence for the Commissioner's determination, the decision must be upheld, even if there is also substantial evidence for the plaintiff's position. See Perez v. Chater , 77 F.3d 41, 46 (2d Cir.1996).
Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc ., 842 F.2d 639, 642 (2d Cir.1988).
B. Determining Disability Under the Social Security Act
The Social Security Act ("the Act") provides that a claimant will be deemed to be disabled "if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A) ; see Rice v. Comm'r of Soc. Sec ., 114 F.Supp.3d 98, 106 (W.D.N.Y.2015). A disabling impairment is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostics techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The claimant bears the burden to demonstrate that she is disabled within the meaning of the Act. See Draegert v. Barnhart , 311 F.3d 468, 472 (2d Cir.2002). The claimant will be declared disabled only if her impairment is of such severity that she is unable to do her previous work and cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination of disability at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). The five steps are as follows:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors
such as age, education, and work experience.
4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.
Shaw v. Chater , 221 F.3d 126, 132 (2d Cir.2000) ; see 20 C.F.R. §§ 404.1520, 416.920.
The disability determination does not end with the five-step sequential analysis when the medical evidence shows alcohol abuse. See Cage v. Comm'r of Soc. Sec ., 692 F.3d 118, 123 (2d Cir.2012). If the ALJ determines that a claimant is disabled and there is medical evidence of alcoholism, then the ALJ must determine whether the alcoholism is "a contributing factor material" to the determination that the claimant is disabled. 20 C.F.R. § 404.1535. An individual "shall not be considered to be disabled ... if alcoholism ... would ... be a contributing factor material to the ... determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C). In determining whether the claimant's alcoholism is material, the "key factor" is whether the claimant would still be found disabled if she stopped using alcohol. 20 C.F.R. §§ 404.1535(b)(1), 416.935(b). If the ALJ determines that the claimant's remaining limitations would not be disabling in the absence of alcohol use, alcoholism will be found to be a contributing factor material to the determination of disability. Id. "[T]he claimant bears the burden of proving that her [alcoholism] is not material to the determination that she is disabled." Cage , 692 F.3d at 123.
C. The ALJ's Decision
In applying the five-step sequential evaluation in this matter, ALJ Lewandowski made the following determinations. At step one, the ALJ found that Plaintiff was not engaged in substantial gainful activity during the relevant timeframe. (Tr. 26). At step two, the ALJ determined that Plaintiff had the following severe impairments: alcohol dependence, major depression, anxiety-related disorder, and PTSD. (Tr. 26-28). At step three, the ALJ determined that Plaintiff did not meet or equal any listed impairment. (Tr. 28-29). At step four, the ALJ evaluated Plaintiff's residual functional capacity ("RFC") and found that Plaintiff could "perform a full range of work at all exertional levels," but with non-exertional limitations. (Tr. 29). Specifically, Plaintiff was "limited to understanding, remembering and carrying out simple instructions and performing simple tasks and only occasional interaction with others and occasional changes in the work setting," and she could not "maintain regular attendance ... and would otherwise be off task 20% of the time." (Tr. 29-34). The ALJ also determined at step four that Plaintiff was incapable of performing her past relevant work as a registered nurse, and that there were no jobs that existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 35-36).
The ALJ then considered Plaintiff's alcoholism and concluded that it was a contributing factor material to the disability determination, such that Plaintiff would not be disabled if she stopped using alcohol. (Tr. 36-39). The ALJ found that if Plaintiff stopped her alcohol abuse, she would still have a severe impairment or combination of impairments that did not meet or equal any listed impairment. (Tr. 36-37). The ALJ found that Plaintiff would have the RFC to perform a full range of work at all exertional levels, with the non-exertional limitations of understanding, remembering and carrying out simple instructions and performing simple tasks; only occasionally interacting with co-workers and supervisors; and no interaction with the general public. (Tr. 37-38). The ALJ also found that, if Plaintiff stopped her alcohol abuse, she would still be unable to perform her past work as a registered nurse. (Tr. 38). But, based on VE DiStefano's testimony, the ALJ found that Plaintiff would be able to perform the jobs of hand packer, assembler, and vehicle washer; accordingly, the ALJ concluded that Plaintiff was not disabled, and her alcoholism was a contributing factor material to the disability determination. (Tr. 38-39).
D. Plaintiff's Challenges to the ALJ's Decision
Plaintiff advances four arguments challenging the ALJ's decision. First, Plaintiff argues that the ALJ's decision failed to give appropriate weight to the medical evidence in the record and was based on legal error. (Dkt. 6–1 at 17–21). Second, Plaintiff argues that the ALJ only considered evidence that supported a no-disability finding while ignoring evidence to the contrary. Id. at 21. Third, Plaintiff argues that the ALJ failed to recontact Plaintiff's treating sources regarding purported inconsistencies in the medical evidence, thus failing to fulfill his duty to develop the administrative record. Id. at 21–22. Fourth, Plaintiff argues that the ALJ failed to assess or acknowledge the lay witness testimony of Plaintiff's husband. Id. at 23.
1. Sufficiency of the Medical Evidence Regarding Materiality of Plaintiff's Alcohol Abuse
First, Plaintiff argues that the ALJ could not find that Plaintiff's alcohol abuse was a contributing factor in the absence of any medical opinion addressing the issue. Id. at 18. Plaintiff contends that the Court should follow the approaches to the materiality determination set forth in Salazar v. Barnhart , 468 F.3d 615 (10th Cir.2006), and Brueggeman n v. Barnhart , 348 F.3d 689 (8th Cir.2003). (Dkt. 6–1 at 18; Dkt. 15 at 3). In Salazar , the Tenth Circuit held that the ALJ could not find that drug or alcohol abuse was a contributing material factor when no medical opinion addressed the issue. 468 F.3d at 624. Accordingly, the Tenth Circuit requires a finding of immateriality "where the record is devoid of any medical or psychological report, opinion, or projection about the claimant's remaining limitations if she stopped using drugs or alcohol." Id. at 624. In Brue g g e ma nn , the Eighth Circuit held that the claimant bears the burden to prove that her alcohol abuse is not material to the disability determination; however, when the ALJ cannot determine if alcoholism is a contributing factor material to the disability, "the claimant's burden has been met and an award of benefits must follow." 348 F.3d at 693.
Plaintiff's argument is unpersuasive for two reasons. First, it is contrary to the law of this Circuit. Plaintiff fails to discuss or cite to Cage , the Second Circuit decision that explicitly rejected Salazar. 692 F.3d at 125–26 & n. 3. In Cage , the Second Circuit held that the claimant bears the burden to prove that her alcohol abuse is not material, id. at 123, and an ALJ may find that drug or alcohol abuse is a contributing factor, even where the record does not contain a medical opinion predicting the claimant's impairment in the absence of the substance abuse, see id. at 126–27. Second, Brueggeman n did not hold that the ALJ must support the materiality finding with such predictive medical evidence. 348 F.3d at 693–94. Rather, Brueggeman n held that "the tie goes to the claimant" in cases where the ALJ cannot disentangle the limitations attributable to the claimant's substance abuse from those limitations attributable to his or her disability. Id.
Accordingly, as in Cage , the issue is whether substantial evidence in the record supports the ALJ's conclusion that Plaintiff's alcohol abuse was a contributing factor material to the disability determination. It does. As observed by the ALJ, the record shows that Plaintiff's reports of abusing alcohol coincide with her hospitalizations, depressed moods, and suicidal ideations. The record also shows that when Plaintiff either abstains from drinking or diminishes her consumption, her mood improves and she feels "better" and "happy." (Tr. 687, 685). Dr. Baskin's examination revealed that Plaintiff had "psychiatric and substance abuse problems and this may significantly interfere with the claimant's ability to function on a daily basis." (Tr. 413). Dr. Mangold concluded that Plaintiff's alcoholism was material to her impairments, and that she would be "mentally capable of performing simple competitive work" if she abstained from alcohol. (Tr. 459). Accordingly, there is substantial evidence in the record that supports the ALJ's determination that Plaintiff's alcohol abuse was a key factor contributing to her disability. See Perez , 77 F.3d at 46.
2. The ALJ's Weighing of the Medical Opinions in the Record
Plaintiff argues that the ALJ gave insufficient weight to the opinions of Plaintiff's treating sources, Dr. Lawton and Dr. Lopez, and too much weight to the opinions of Dr. Lu, Dr. Basker, and Dr. Mangold. (Dkt 6–1 at 19–20). Specifically, Plaintiff argues that Dr. Lawton's opinion was entitled to greater weight because he had treated Plaintiff since 1995 and had concluded that Plaintiff would have no ability to perform the mental abilities critical to unskilled work, even setting aside any impairment from alcohol abuse. Id. She argues that Dr. Lopez's opinion should have been afforded greater weight because he similarly concluded that Plaintiff had a substantial loss of ability to perform several mental abilities critical for performing unskilled work, even setting aside any impairment from alcohol abuse. Id. Plaintiff argues, on the other hand, that the opinions of Dr. Lui, Dr. Basker, and Dr. Mangold were not entitled to "great" or "significant" weight because those doctors either never independently treated Plaintiff or only performed one independent medical exam. Id. As discussed below, Plaintiff's arguments are unpersuasive.
"If [an ALJ finds] that a treating source's opinion on the issue(s) of the nature and severity of [the plaintiff's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the plaintiff's] case record, [the ALJ] will give it controlling weight." 20 C.F.R. § 404.1527(c)(2). When an ALJ does not afford controlling weight to the opinion of a treating source, the ALJ must consider various factors to determine how much weight to give the opinion. 20 C.F.R. § 404.1527(c). Those factors include the following:
(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.
Halloran v. Barnhart , 362 F.3d 28, 32 (2d Cir.2004). An ALJ does not have to mechanically recite those factors, as long as the Court can "conclude that the ALJ applied the substance of the treating physician rule ... and provide[d] ‘good reasons' for the weight [he gave] to the treating source's opinion." Id. (quotation omitted).
As an initial matter, as to both Dr. Lopez and Dr. Lawton, their conclusions that Plaintiff was disabled—as opposed to their assessments of the nature or severity of her mental health impairments—are not determinative because "the ultimate finding of whether a claimant is disabled and cannot work—are ‘reserved to the Commissioner.’ ... A treating physician's statement that the claimant is disabled cannot itself be determinative." Snell v. Apfel , 177 F.3d 128, 133 (2d Cir.1999) (citing 20 C.F.R. §§ 404.1527(d)(2), 404.1527(d)(4), 404.1527(e)(1) ); see also Micheli v. Astrue , 501 Fed.Appx. 26, 28 (2d Cir.2012) ("As an initial matter, [the doctor's] assessments of [the plaintiff's] ‘disability status' are not determinative because it is the responsibility of the Commissioner to make the ultimate decision as to whether the claimant has a ‘disability’ under the statute.").
Otherwise, the ALJ fulfilled his requirement to give good reasons for assigning less-than-controlling weight to the opinions of Dr. Lopez and Dr. Lawton. After weighing the relevant factors, the ALJ assigned Dr. Lopez's opinion only "some weight" rather than controlling weight. (Tr. 34). The ALJ recognized that Dr. Lopez had a long-term relationship with Plaintiff and that he specialized in psychiatry. (Tr. 34); see also 20 C.F.R. § 404.1527(c)(2), (5). However, as the ALJ explained, Dr. Lopez's opinion lacked the support of objective medical evidence. (Tr. 34). As the ALJ observed, most of Dr. Lopez's progress notes primarily repeated Plaintiff's subjective complaints without a contemporaneous mental status examinations. (Tr. 33). Even when a mental status examination did accompany Dr. Lopez's notes, the fairly benign results of the mental status examination were at odds with Dr. Lopez's assessments of Plaintiff's impairments. Compare (Tr. 370, 723-24), with (Tr. 347-49, 772-74).
The ALJ also properly weighed the relevant factors and gave "good reasons" for affording "no weight" to Dr. Lawton's opinion. (Tr. 34). The ALJ considered that Dr. Lawton had a long-term relationship with Plaintiff. (Tr. 34). However, as the ALJ noted, Dr. Lawton—a primary care physician—was not a specialist. (Tr. 34). Additionally, Dr. Lawton's assessment was based primarily on Plaintiff's subjective complaints rather than his own medical observations. (Tr. 34). Indeed, Plaintiff and her husband apparently supplied the answer to the questions on the form. (Tr. 722 ("When going over the medical impairment form with [Plaintiff] and her husband, answers were poor to none to the questions listed.")).
Plaintiff's challenge to the ALJ's assignment of weight is based, in the main, on the distinction that Dr. Lopez and Dr. Lawton treated Plaintiff in the long term, whereas Dr. Baskin and Dr. Lui performed only one medical examination of Plaintiff, and Dr. Mangold never examined Plaintiff. (Dkt. 6–1 at 20). But, as discussed, the ALJ need not give controlling weight to the treating source opinions when, as here, the ALJ properly applied the treating physician rule and gave good reasons affording diminished weight. See, e.g., Halloran , 362 F.3d at 32. Moreover, the mere fact that Dr. Baskin, Dr. Liu, and Dr. Mangold were consultative examiners is not enough to discredit their opinions. To the contrary, the opinion of a consultative examiner may constitute substantial evidence supporting an ALJ's decision. See Diaz v. Shalala , 59 F.3d 307, 315 (2d Cir.1995) ; see also Monge u r , 722 F.2d at 1039 (explaining that the report of a consultative examiner may constitute substantial evidence in support of ALJ's decision). Accordingly, the ALJ's weighing of the medical evidence was not erroneous.
Plaintiff next argues that the ALJ arbitrarily relied on medical evidence that supported his position and ignored any evidence that detracted from it, such as the opinions of Dr. Lopez and Dr. Lawton. (Dkt. 6–1 at 21). While the ALJ may not unreasonably reject "all the medical evidence in a claimant's favor," he need not "reconcile explicitly every conflicting shred of medical testimony." Fiorello v. Heckler , 725 F.2d 174, 176 (2d Cir.1983) (quotations and citations omitted). First, particularly with respect to Dr. Lopez, the ALJ may not have given his opinion controlling weight, but the ALJ did not ignore it, as evidenced by the fact that he gave the opinion "some weight." (Tr. 34). Otherwise, no unreasonable rejection of the medical evidence occurred in this case. To the contrary, the ALJ considered all of the evidence in the record and set forth a reasoned basis for his conclusion that Plaintiff would not be disabled if she stopped abusing alcohol. (Tr. 29-39). The ALJ did not need to selectively cite evidence because, as discussed, the record consistently shows that Plaintiff's mental health symptoms lessen when she does not abuse alcohol. In effect, Plaintiff's "cherry-picking" argument is another iteration of her challenge to the ALJ's assignment of weight to the opinions of Dr. Lopez and Dr. Lawton, an argument that, as discussed, lacks merit.
3. The ALJ's Duty to Recontact Plaintiff's Treating Sources
Plaintiff next argues that the ALJ was required to recontact Plaintiff's treating sources to determine whether their medical opinions were based on Plaintiff's subjective statements. (Dkt. 6–1 at 22–23). Specifically, Plaintiff contends that the ALJ needed to contact Dr. Lopez and Dr. Lawton to clarify whether their medical source statements were based on Plaintiff's subjective complaints rather than the doctors' medical expertise. (Id. ). Defendant counters that Plaintiff misunderstands the duty to recontact, and that the current regulations no longer require an ALJ to recontact a treating source; rather, recontact is one permissible option among others for resolving insufficiency or inconsistency in the record. (Dkt. 14–1 at 20). This regulation, paired with what Defendant argues is a complete medical history, left the ALJ with no duty to recontact Dr. Lopez and Dr. Lawton. (Id. ).
"It is well established in this Circuit that ‘where there are no obvious gaps in the administrative record, and where the ALJ already possesses a "complete medical history," the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.’ " Jennings v. Colvin , No. 13–CV–834, 2014 WL 3748574, at *5 (W.D.N.Y. July 29, 2014) (quoting Rosa v. Callahan , 168 F.3d 72, 79 n. 5 (2d Cir.1999) ). Further, an ALJ is only required to recontact "if the records received were ‘inadequate ... to determine whether [Plaintiff was] disabled.’ " Brogan – Dawley v. Astrue , 484 Fed.Appx. 632, 634 (2d Cir.2012) (quoting Perez , 77 F.3d at 47 )). As the Second Circuit explained,
The mere fact that medical evidence is conflicting or internally inconsistent does not mean that an ALJ is required to re-contact a treating physician. Rather ... the ALJ will weigh all of the evidence and see whether [he] can decide whether a claimant is disabled based on the evidence he has, even when that evidence is internally inconsistent.
Micheli v. Astrue , 501 Fed.Appx. 26, 29–30 (2d Cir.2012) ; see also 20 C.F.R. § 404.1520b(b) ("If any of the evidence in your case record, including any medical opinion(s), is inconsistent, we will weigh the relevant evidence and see whether we can determine whether you are disabled based on the evidence we have."). Additionally, as the Commissioner points out, the controlling regulations in place at the time of the ALJ's June 2013 decision no longer contain the previous directive, on which Plaintiff relies, to first recontact a medical source upon finding a conflict or ambiguity in need of resolving.
The regulations were revised, effective March 26, 2012, to wholesale remove the provision stating:
We will first recontact your physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.
20 C.F.R. § 404.1512(e) (before amendment).
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The Court finds that the ALJ was under no obligation to seek additional information from Dr. Lopez and Dr. Lawton. That the record shows that the opinions of Dr. Lopez and Dr. Lawton were based primarily on Plaintiff's subjective complaints does not mean the record was inconsistent or incomplete. And, even if the ALJ found the record incomplete or insufficient to make a disability determination, the agency had ordered consultative examinations of Plaintiff. Under the regulations, this is a permissible option for addressing insufficiency or inconsistency in the record. See 20 C.F.R. § 404.1520b(c)(1), (3). Accordingly, because the ALJ could make a disability determination on the present record, there was no need for the ALJ to recontact Dr. Lopez or Dr. Lawton.
4. The ALJ's Consideration of the Testimony of Plaintiff's Husband
Plaintiff argues that the ALJ did not assess or acknowledge the testimony of Plaintiff's husband about Plaintiff's mental health treatment, resulting in error. (Dkt. 6–1 at 23). Defendant responds that assuming any such error occurred, it was harmless. (Dkt. 14–1 at 20–21). The Court agrees with Defendant that the ALJ's failure to mention the testimony of Plaintiff's husband was harmless error.
"In evaluating a claim for disability, an ALJ generally must consider any testimony concerning the claimant's physical ailments and resulting RFC offered by lay witnesses during the administrative hearing." McArthur v. Comm'r of Soc. Sec ., No. 3:06–CV–860, 2008 WL 4866049, at *10 (N.D.N.Y. Nov. 7, 2008). If relevant lay testimony is consistent with the record evidence, the ALJ's failure to discuss it can be plain error. Id. at *10. The error is harmless, however, where "application of the correct legal principles to the record could lead to only one conclusion." Johnson v. Bowen , 817 F.2d 983, 986 (2d Cir.1987).
In this case, while the ALJ did not mention the testimony of Plaintiff's husband, that was harmless error. Mr. Wettlaufer's testimony echoed Plaintiff's own testimony. (See Tr. at 24). In her motion, Plaintiff points to no aspect of Mr. Wettlaufer's testimony that would affect the disability determination, and none is apparent. Accordingly, even assuming the ALJ failed to consider Plaintiff's husband's testimony, it had no effect on the ALJ's decision. See Zabala v. Astrue , 595 F.3d 402, 410 (2d Cir.2010) (failure to address evidence is harmless error if consideration of the evidence would not have changed the ALJ's ultimate conclusion); McKinstry v. Astrue , No. 05–10–cv–319, 2012 WL 619112, at *6 (D.Vt. Feb. 23, 2012) (finding harmless error where opinion letter not considered by ALJ provided little information, did not discuss limitations during relevant period, was inconsistent with other evidence, and was otherwise not more favorable to claimant).
IV. CONCLUSION
For the foregoing reasons, substantial evidence supports the Commissioner's determination that Plaintiff was not disabled within the meaning of the Social Security Act. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. 14) is granted, and Plaintiff's motion for judgment on the pleadings (Dkt. 6) is denied. Plaintiff's complaint is dismissed. The Clerk of the Court is directed to close the case.
SO ORDERED.