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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 1 of 32

_______________________________________

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ALICE DOWD,

-vs-

Plaintiff

COMMISSIONER OF SOCIAL SECURITY,

________________________________________

Defendant.

DECISION AND ORDER

12-CV-6244 CJS

For the Plaintiff:

For the Defendant:

APPEARANCES

William J. McDonald, Jr.
Bond, McDonald and Lehman, P.C.
91 Genesee Street
Geneva, New York 14456

Kathryn L. Smith, A.U.S.A.
United States Attorney’s Office
100 State Street
Rochester, New York 14614

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final

determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),

denying the application of Alice Dowd (“Plaintiff”) for Social Security Disability Insurance

benefits and Supplemental Security Income benefits. Now before the Court is

Defendant’s motion (Docket No. [#3] for judgment on the pleadings and Plaintiff’s cross-

motion [#5] for judgment on the pleadings. Defendant’s motion is denied, and Plaintiff’s

motion is granted to the extent that this matter is remanded to the Commissioner for a

new hearing.

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 2 of 32

STANDARDS OF LAW

42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the Commissioner

of Social security as to any fact, if supported by substantial evidence, shall be

conclusive.” The issue to be determined by this Court is whether the Commissioner’s

conclusions “are supported by substantial evidence in the record as a whole or are based

on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).

Substantial evidence is defined as “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

For purposes of the Social Security Act, disability is the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.

The SSA has promulgated administrative regulations for determining when a
claimant meets this definition. First, the SSA considers whether the claimant is
currently engaged in substantial gainful employment. If not, then the SSA
considers whether the claimant has a “severe impairment” that significantly limits
the “ability to do basic work activities. If the claimant does suffer such an
impairment, then the SSA determines whether this impairment is one of those
listed in Appendix 1 of the regulations. If the claimant’s impairment is one of those
listed, the SSA will presume the claimant to be disabled. If the impairment is not
so listed, then the SSA must determine whether the claimant possesses the
“residual functional capacity” to perform his or her past relevant work. Finally, if
the claimant is unable to perform his or her past relevant work, then the burden
shifts to the SSA to prove that the claimant is capable of performing “any other
work.”


Schaal, 134 F.3d at 501 (Citations omitted).

At step five of the five-step analysis above, the Commissioner may carry his

burden by resorting to the Medical Vocational Guidelines or “grids” found at 20 C.F.R. Pt.

404, Subpart P, Appendix 2. Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996)(citation

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 3 of 32

omitted); see also, SSR 83-10 (Stating that in the grids, “the only impairment-caused

limitations considered in each rule are exertional limitations.”) However, if a claimant has

nonexertional impairments which “significantly limit the range of work permitted by his

exertional limitations,” then the Commissioner cannot rely upon the grids, and instead

“must introduce the testimony of a vocational expert [“(VE”)](or other similar evidence)

that jobs exist in the economy which claimant can obtain or perform.” Pratts v. Chater,

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94 F.3d at 39; see also, 20 C.F.R. § 416.969a(d) ; see also, Bapp v. Bowen, 802 F.2d

2

601, 605 (2d Cir. 1986) (“If the guidelines adequately reflect a claimant's condition, then

their use to determine disability status is appropriate. But if a claimant's nonexertional

impairments significantly limit the range of work permitted by his exertional limitations

then the grids obviously will not accurately determine disability status because they fail to

take into account claimant's nonexertional impairments.”) (citation and internal quotation

marks omitted).

Under the regulations, a treating physician’s opinion is entitled to controlling

weight, provided that it is well-supported in the record:

If we find that a treating source’s opinion on the issue(s) of the nature and

1

“Exertional limitations” are those which affect an applicant’s ability to meet the strength demands
of jobs, such as sitting, standing, walking, lifting, carrying, pushing, and pulling. 20 C.F.R. § 416.969a(a).
“Non-exertional limitations” are those which affect an applicant’s ability to meet job demands other than
strength demands, such as anxiety, depression, inability to concentrate, inability to understand, inability to
remember, inability to tolerate dust or fumes, as well as manipulative or postural limitations, such as the
inability to reach, handle, stoop, climb, crawl, or crouch. 20 C.F.R. 416.969a(c).

2

20 C.F.R. § 416.969(d) provides, in relevant part, that, “[w]hen the limitations and restrictions
imposed by your impairment(s) and related symptoms, such as pain, affect your ability to meet both the
strength [exertional] and demands of jobs other than the strength demands [nonexertional], we consider
that you have a combination of exertional and nonexertional limitations or restrictions. . . . [W]e will not
directly apply the rules in appendix 2 [the grids] unless there is a rule that directs a conclusion that you are
disabled based upon your strength limitations; otherwise the rule provides a framework to guide our
decision.”

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 4 of 32

severity of your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record, we will give it controlling
weight.

20 C.F.R. § 416.927(c)(2); 20 C.F.R. § 404.1527(c)(2). However, “[w]hen other

substantial evidence in the record conflicts with the treating physician's opinion . . . that

opinion will not be deemed controlling. And the less consistent that opinion is with the

record as a whole, the less weight it will be given.” Snell v. Apfel, 177 F.3d 128, 133 (2d

Cir. 1999)(citing 20 C.F.R. § 404.1527). Nevertheless,

[a]n ALJ who refuses to accord controlling weight to the medical opinion of
a treating physician must consider various ‘factors’ to determine how much
weight to give to the opinion. 20 C.F.R. § 404.1527(d)(2). Among those
factors are: (i) the frequency of examination and the length, nature and
extent of the treatment relationship; (ii) the evidence in support of the
treating physician's opinion; (iii) the consistency of the opinion with the
record as a whole; (iv) whether the opinion is from a specialist; and (v)
other factors brought to the Social Security Administration's attention that
tend to support or contradict the opinion. Id. The regulations also specify
that the Commissioner ‘will always give good reasons in [her] notice of
determination or decision for the weight [she] give[s] [claimant's] treating
source's opinion.’ Id.; accord 20 C.F.R. § 416.927(d)(2); see also Schaal,
134 F.3d at 503-504 (stating that the Commissioner must provide a
claimant with “good reasons” for the lack of weight attributed to a treating
physician's opinion).

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).

Administrative Law Judges are required to evaluate a claimant’s credibility

concerning pain according to the factors set forth in 20 C.F.R. § 404.1529, which states

in relevant part:

In determining whether you are disabled, we consider all your symptoms,
including pain, and the extent to which your symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence. By objective medical evidence, we mean medical signs and
laboratory findings as defined in § 404.1528 (b) and (c). By other evidence,
we mean the kinds of evidence described in §§ 404.1512(b) (2) through (6)

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 5 of 32

and 404.1513(b) (1), (4), and (5) and (e). These include statements or
reports from you, your treating or examining physician or psychologist, and
others about your medical history, diagnosis, prescribed treatment, daily
activities, efforts to work, and any other evidence showing how your
impairment(s) and any related symptoms affect your ability to work. We will
consider all of your statements about your symptoms, such as pain, and
any description you, your physician, your psychologist, or other persons
may provide about how the symptoms affect your activities of daily living
and your ability to work.

In evaluating the intensity and persistence of your symptoms, including
pain, we will consider all of the available evidence, including your medical
history, the medical signs and laboratory findings and statements about
how your symptoms affect you. (Section 404.1527 explains how we
consider opinions of your treating source and other medical opinions on the
existence and severity of your symptoms, such as pain.) We will then
determine the extent to which your alleged functional limitations and
restrictions due to pain or other symptoms can reasonably be accepted as
consistent with the medical signs and laboratory findings and other
evidence to decide how your symptoms affect your ability to work.

***

20 C.F.R. § 404.1529(a); 20 C.F.R. § 416.929(a). The regulation further states, in

relevant part:

Factors relevant to your symptoms, such as pain, which we will consider
include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief
of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due
to pain or other symptoms.

20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3).

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 6 of 32

VOCATIONAL HISTORY

Plaintiff was age 53 at the time of the hearing. (Tr. 47). Plaintiff’s formal

3

education consists of high school and one year of college. Id. Plaintiff also completed

specialized training in 1986 and 1998 to work as a Certified Nursing Aide. (Tr. 156).

Plaintiff has an extremely spotty work history. Specifically, Plaintiff began working in

1978, but did not work between 1979-1986 and 1992-1996, purportedly because she

was taking care of her mother. (Tr. 132). Plaintiff was laid off in 2002 and did not work

again until 2004. Id. Plaintiff was laid off again in 2006 and did not work in 2007. Id.

Plaintiff worked “very little” in 2008 and worked only part-time in 2009. Id. Plaintiff

indicated that she stopped working in 2009 because funding for her job ran out, not

because of any disabling condition. (Tr. 156). Overall, Plaintiff did not work at all during

fifteen of the thirty-two years prior to the alleged onset of her disability. (Tr. 140). The

record indicates that Plaintiff “raised” her now-adult niece in her home during this period,

and it is unclear what effect, if any, that activity had on Plaintiff’s decision not to work.

(Tr. 352). More recently, Plaintiff moved to live near her niece, and is now helping to

care for the niece’s child. (Tr. 385-386).

Plaintiff’s recent work history consists of three jobs: Certified Nursing aide,

between 1999 and 2002; secretarial office worker, between 2004 and 2006; and

transportation van driver, between 2008 and 2009. (Tr. 157). The nursing and secretarial

jobs were essentially full-time, but the van-driving job was only sixteen hours per week.

Id. At the secretarial job, Plaintiff was able to stand and/or walk for “around two or three”

3

Unless otherwise noted, references are to the administrative record.

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 7 of 32

hours per day, and was able to lift and carry items weighing twenty pounds. (Tr. 60). It is

noteworthy that Plaintiff’s obesity, which is her chief physical complaint, has existed

relatively unchanged since 1995, and therefore pre-dates all of her past relevant work.

(Tr. 50-51).

Plaintiff states, vaguely, that since 2009, she has looked for other work through a

temporary agency, but “usually” the jobs are “production jobs” that require more standing

than she can do. (Tr. 48). However, a note by Plaintiff’s psychologist in May 2010

indicates that Plaintiff was “unemployed - not seeking [work].” (Tr. 352).

ACTIVITIES OF DAILY LIVING

Plaintiff is morbidly obese and claims to have trouble standing and walking for

long periods, due to shortness of breath, but otherwise does not claim to be very limited

in her activities of daily living. In that regard, Plaintiff is single, has no children of her

own, lives by herself, and is able to perform the normal daily activities, such as caring for

herself, cooking and cleaning, without assistance. (Tr. 47). Plaintiff’s niece, whom

Plaintiff raised, helps Plaintiff with grocery shopping, by driving Plaintiff to the store and

4

putting items in the grocery cart. (Tr. 60). Plaintiff has a driver’s license but does not own

a car. (Tr. 55). Plaintiff is nevertheless able to travel, by using transportation arranged by

social services,(Tr. 55), or by obtaining rides from her niece. (Tr. 58, 60). Plaintiff

volunteers at a local “food closet” two or three times a week, and helps provide care for

her niece’s son. (Tr. 385-386). Plaintiff’s hobbies are watching television and solving

crossword puzzles. (Tr. 353).

4

See, medical note, indicating that Plaintiff raised the niece in Plaintiff’s home. (Tr. 352).

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 8 of 32

MEDICAL EVIDENCE

Plaintiff’s medical records are primarily from two sources – her primary care

physician, Rebecca Wadsworth, M.D. (“Wadsworth”), and her mental health therapist,

Eileen Ersteniuk, LCSW-R (“Ersteniuk”). Wadsworth’s opinions are eligible to receive

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controlling weight under the “treating physician rule,” but Ersteniuk’s are not since “social

workers do not qualify as “acceptable medical sources.” Bliss v. Commissioner of Social

Sec., 406 Fed.Appx. 541, 2011 WL 227583 at *1 (2d Cir. Jan. 19, 2011) (citing 20 C.F.R.

§ § 404.1513(a) & 404.1527(a)(2)). However, the opinions of a licensed clinical social

worker “may provide highly relevant evidence bearing upon the severity of an individual's

impairments and how it may affect an individual's ability to function.” Davis ex rel.

Maitland v. Colvin, Civ. Action No. 6:11–CV–0658 (MAD/DEP), 2013 WL 1183000 at *9

(N.D.N.Y. Feb. 27, 2013) (citations omitted). The record contains some additional

6

medical notes and reports, such as reports by a cardiologist and an orthopedic

specialist, but test results from those doctors were essentially normal, and indicated that

Plaintiff’s complaints of back pain and shortness of breath were the result of her obesity

and lack of physical exercise.

5

According to the New York State Office of the Professions’ website, the designation LCSW-R pertains to

licensed clinical social workers with an “R” “psychotherapy privilege.” See,
http://www.op.nysed.gov/prof/sw/lcswprivilege.htm “Psychotherapy in the conte[x]t of licensed clinical social work
practice is the use of verbal methods in interpersonal relationships with the intent of assisting a person or persons to
modify attitudes and behavior which are intellectually, socially, or emotionally maladaptive.” Id.

6

“When determining the weight, if any, to be given to opinions from such [“]other sources,[“] an ALJ
should consider the same factors that inform the decision of what weight to accord to treating source opinions,
including (1) the frequency of which the relationship with which the source has seen the individual; (2) the
consistency of the opinion with other evidence in the record; (3) the degree to which the source supports his or her
opinions; (4) how well the source explains the opinion; (5) whether the source has a speciality or area of expertise
related to the impairment; and (6) any other factors tending to support or refute the opinion.” Davis ex rel. Maitland
v. Colvin, 2013 WL 1183000 at *9 (N.D.N.Y. Feb. 27, 2013) (citations omitted).

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 9 of 32

For the period of 2001 through 2009, Dr. Wadsworth’s office notes are generally

concerned with Plaintiff’s high blood pressure, elevated cholesterol and thyroid condition.

The notes indicate that Plaintiff was often non-compliant with Wadsworth’s

recommendations about taking medications. There is no mention of depression or back

pain, except that an entry dated January 30, 2008, expressly stated that Plaintiff had no

signs of depression. Tr. 202 (“No depression on screening done.”). Curiously, a cardiac

specialist’s report dated March 27, 2001, refers to Plaintiff as being “mildly retarded” (Tr.

260), and an office note, apparently from Wadsworth, indicates that Plaintiff has a

“probable cognitive impairment. (Tr. 198). However, it does not appear that Wadsworth

performed any testing to confirm whether Plaintiff actually has any cognitive impairment. 7

Moreover, as discussed below, Ersteniuk subsequently conducted a full mental status

examination and made no mention of any cognitive impairments.

In 2009 plaintiff complained of shortness of breath, but cardio-pulmonary testing

was negative, and the cardiologist attributed Plaintiff’s shortness of breath to her morbid

obesity and lack of conditioning. (Tr. 310-311). On December 4, 2009, when interviewed

by her cardiologist, Plaintiff denied having any psychiatric symptoms. (Tr. 321).

On November 23, 2009, shortly after Plaintiff stopped working, Wadsworth noted

that Plaintiff’s last office visit had been one year earlier. (Tr. 364). On that point, Plaintiff

8

claims that she had not been to Wadworth’s office for a year because she “didn’t have

7

As far as mental impairment, Plaintiff only claims to have limitations related to her alleged depression.

See, Tr. 46 (Plaintiff’s attorney told the ALJ that Plaintiff is “sort of limited by the intellectual limitations from
depression.”).

8

Wadsworth’s notes also refer to Plaintiff having numerous teeth pulled, as a result of failing to obtain

dental care over a period of decades.

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 10 of 32

any way to get there,” but does not explain why she could not obtain a ride through social

services, or from her niece, who lives nearby and takes Plaintiff grocery shopping. (Tr.

58, 60). In any event, Plaintiff told Wadsworth that she experienced shortness of breath

upon exertion, which made it difficult for her to walk far. (Tr. 364). There is no indication

that Plaintiff complained of depression or back pain at that time.

In May 2010, Plaintiff went to Wayne Behavioral Health Network for a mental

health evaluation, upon the referral of her former employer, Wayne County Action

Program. (Tr. 379). On May 18, 2010, Ersteniuk completed a diagnostic form, in which

9

she stated her “diagnostic impressions/concusions” as follows: “No prior history of mental

health treatment, ongoing low grade depressive symptoms, client denies [suicidal

ideation or homicideal ideation].” (Tr. 346-347). Ersteniuk’s particular diagnosis was

“dysthymic disorder,” and she recorded these observations:

[C]lient reports she has been out of work and has been depressed since
her mother died [fifteen years earlier, in 1995].
She has low motivation
and over eats and over sleeps. She has not [sic] social life and few friends.
. . . [O]bese, chronic pain . . . never married, still grieving mother’s death,
few supports no work.

10

(Tr. 346). Ersteniuk, though, specifically indicated that she found no evidence of mental

retardation, such as impaired “general intellectual functioning” or “adaptive functioning.”

(Tr. 346).

On June 30, 2010, Ersteniuk completed an “Assessment for Services” form. (Tr.

9

Although, as mentioned earlier, when Plaintiff was interviewed by the Commissioner at around this same
time, on May 22, 2010, Plaintiff indicated that she had no new mental illnesses or limitations since she applied for
disability benefits. (Tr. 166, Ex. 4E).

10

Plaintiff’s mother died in 1995. (Tr. 385).

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 11 of 32

348). Ersteniuk reported that Plaintiff saw her siblings “a few times a year” and “got

along” with them, though they were not close. (Tr. 350). Ersteniuk noted that Plaintiff’s

“current support systems” consisted of “family support and involvement.” (Tr. 350).

When asked to check off any “handicapping conditions” that Plaintiff had, Ersteniuk did

not check any category, including “learning disability,” “behavior problems,” “emotional

disability” or “mental retardation.” (Tr. 351). Ersteniuk stated that Plaintiff’s employment

status was “unemployed – not seeking.” (Tr. 352). When asked to describe Plaintiff’s

strengths, Ersteniuk stated that Plaintiff was motivated for treatment, was able to care for

herself and/or others, and had “good intellectual skills.” (Tr. 352). When asked to list any

potential barriers to treatment, Ersteniuk stated that Plaintiff had “physical problems” and

was “socially withdrawn.” (Tr. 353). Ersteniuk, though, did not check boxes indicating

that Plaintiff had any problems with intellectual functioning, communication skills,

learning difficulties, limited attention span or memory impairment. (Tr. 353).

Ersteniuk reportedly performed a mental status examination, and found that

Plaintiff was well-groomed, cooperative, calm, focused, and had an appropriate affect,

although she was “sad.” (Tr. 354). Plaintiff’s orientation, memory and concentration were

intact, though her insight and judgment were “limited.” Id. Plaintiff’s primary complaint

was “sadness.” (Tr. 355). Ersteniuk recorded the following comments:

52 y[ear old] female presents with a history of depression which she never
sought treatment for. She is alone and recently unemployed. She states
she is lonely and sad most of the time. She lost her mother in ‘95 and still
is grieving that loss. She has some friends and her niece who she raised
and [the niece’s] son that she helps care for.

(Tr. 355). Ersteniuk assigned Plaintiff a Global Assessment of Functioning (“GAF”) score

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 12 of 32

of “50,” based on “serious impairment in social functioning” and “serious impairment in

occupational/school functioning.” Id.

Ersteniuk’s treatment plan was to see Plaintiff two-to-four times per month, “to

address coping skills, decrease symptoms and maintain stability.” (Tr. 356). However,

on October 19, 2010, Ersteniuk completed a “discharge summary,” indicating that

Plaintiff was being discharged “due to non-compliance.” (Tr. 367). Specifically, Ersteniuk

reported that Plaintiff did attend at least one session, but failed to attend her July, 2010,

appointment and also failed to respond to the agency’s correspondence in September,

2010. (Tr. 368); see also, id. at (Tr. 369) (“Client was non-compliant with treatment,

withdrew.”).

In late 2010,
11

Plaintiff had another office visit with Wadsworth, at which time she

claimed to be feeling “sad all the time.” (Tr. 392). Plaintiff reportedly told Wadsworth that

she “was seeing a counselor,” referring to Ersteniuk, and that she had been told she

“needed pills for depression.” Id.

12

There is no indication, though, that Wadsworth had

personally seen any report from Wayne County Behavioral Health to corroborate

Plaintiff’s statement, nor any indication that Wadsworth herself conducted any type of

interview or testing concerning Plaintiff’s alleged depression. Moreover, as noted above,

Plaintiff had not seen Ersteniuk since before July 2010, and there is no indication in

Ersteniuk’s notes that she actually ever told Plaintiff that she needed medication.

11

The exact date of the office note is unclear, but it appears to be either October 15, 2010 or December 15,

2010. (Tr. 392).

12

Of course, as of that date, Plaintiff had not been treating with Ersteniuk since prior to July. Moreover,

since it appears that Ersteniuk was treating Plaintiff under the supervision of psychiatrist Ronald Biviano, M.D., it is
unclear why Ersteniuk would have advised Plaintiff to ask Wadsworth for an antidepressant prescription. (Tr. 362).

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Nevertheless, Wadsworth apparently accepted Plaintiff’s statement at face value and

wrote in the office note: “depression - probably a large part of the problem - begin

13

Zoloft.” Id.

On January 27, 2011, Wadsworth noted that she had received “mult[iple] pieces

of paperwork for depression, AODM [diabetes], [and high blood pressure] for SSD, SSI,”

apparently from Plaintiff’s disability attorney. (Tr. 393). In other words, less than a month

after Plaintiff told Wadsworth that she was feeling depressed, her attorney asked

Wadsworth to complete medical paperwork relating to Plaintiff’s conditions, including the

depression, in support of an application for disability benefits. At that time, Wadsworth’s

only treatment of the depression consisted of prescribing Zoloft.

Nevertheless, on January 27, 2011, Wadsworth, who is apparently a general

practitioner and not a psychiatrist, completed a mental RFC assessment using a form

provided by Plaintiff’s attorney. (Tr. 374-377). In that regard, Wadsworth’s diagnosis of

Plaintiff was as follows: “depression, ? mild cognitive impairment” [sic]. (Tr. 377).

Curiously, when asked to state, to a reasonable degree of medical certainty, when

Plaintiff’s limitations started, Wadsworth wrote “2004,” without explanation. Id.

Wadsworth also stated, without any explanation, that Plaintiff’s “limitations” had been

continuous since September 2009. (Tr. 377). Wadsworth stated that Plaintiff had an

“unlimited” ability to respond appropriately to supervision, to respond appropriately to co-

workers, to exercise good judgment and to follow occupational rules. Wadsworth

reported that Plaintiff had a “good” ability to remember detailed instructions, to remember

13

It is unclear as to what “problem” Wadsworth was referring.

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Case 6:12-cv-06244-CJS Document 11 Filed 07/10/13 Page 14 of 32

and carry out simple instructions and to remember work procedures. Wadsworth stated,

though, that Plaintiff had only a “fair” ability to complete a normal workday on a sustained

basis, to concentrate and attend to a task over an 8-hour workday, to make simple work-

related decisions, to maintain social functioning, to be aware of normal hazards and to

tolerate work pressures. On those points, the form indicates that a “fair” ability means

“[t]he ability to function in this area is seriously limited and will result in periods of

unsatisfactory performance at unpredictable times.” (Tr. 374). As for specific problems,

Wadsworth wrote: “has an issue [with] sleep during [the] day”; “[ability to function

independently on a job] depends on physical limitations”; “gets easily depressed, cries”;

“stress causes decompensation.” Wadsworth was further asked whether Plaintiff’s

condition had “deteriorated” under stress, such as job stress, and if so, when it happened

last, and Wadsworth stated: “December 20, 2010,” indicating that Plaintiff had some type

of “deterioration” at her volunteer job, about which the record contains no further

information. (Tr. 376-377). When asked how many days per month Plaintiff might miss

work due to her alleged problems, Wadsworth checked the box indicating “about four

days per month,” but then inconsistently indicated that Plaintiff could only work two days

per week, apparently because Plaintiff was then-currently spending only two days per

week at her volunteer “job.” (Tr. 377).

Wadsworth also completed a physical RFC form provided by Plaintiff’s attorney.

(Tr. 371-373). Wadsworth indicated that Plaintiff’s medical problems consisted of

diabetes, low-back pain, high blood pressure, morbid obesity and “noncompliance.” (Tr.

371). Wadsworth opined that Plaintiff could occasionally reach, but could never climb,

balance, stoop, crouch, crawl, climb stairs, push or pull. (Tr. 372). Wadsworth reported

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that, during an 8-hour workday, Plaintiff could sit for a total of seven hours, sit for up to

two hours continuously, walk for a total of fifteen minutes, and stand for a total of fifteen

minutes. (Tr. 372). Wadsworth stated that Plaintiff could lift and carry less than ten

pounds. Id. Wadsworth indicated that Plaintiff’s pain and other symptoms would

frequently interfere with her attention and concentration. (Tr. 373). Finally, Wadsworth

stated that Plaintiff could work only two days per week. Id.

In March, 2011, Plaintiff returned to Wayne Behavioral Health Network, after

having been discharged for noncompliance. On March 7, 2011, Ersteniuk signed a

“Assessment for Services” form for Plaintiff, that was apparently written on March 4,

2011. (Tr. 379-389). Ersteniuk reported that Plaintiff had taken the medication Sertraline

(Zoloft), apparently prescribed by Wadsworth, which was not effective. Id. at 379. Most

of the other information on the form was the same information that Ersteniuk had written

in 2010. Ersteniuk reportedly conducted a mental status exam, and found that Plaintiff

seemed well groomed, cooperative, calm, and sad, and her thoughts seemed focused.

Id. at 386. Plaintifff’s orientation, memory and concentration were all intact, though her

insight and judgment were limited. Id. Plaintiff denied any suicidal ideation. Id. Overall,

Plaintiff reported that since her mother’s death, she chronically felt “down,” “lonely” and

“sad,” but was able to function. Id. (“functions, sleeps eats all ok but just feels down.”).

Plaintiff stated that she was taking Zoloft, but it did not help her symptoms. Id. Similar to

her earlier report, Ersteniuk’s diagnosis was “dysthymic disorder,” and she noted

Plaintiff’s “ongoing low grade depressive symptoms.” Id. at 389 (emphasis added).

Moreover Ersteniuk again gave Plaintiff a GAF score of “50.” Ersteniuk stated that her

treatment plan was to see Plaintiff two or four times per month, to help improve Plaintiff’s

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“coping skills” and decrease her symptoms. Id.

On March 16, 2011, Plaintiff reportedly told Wadsworth that she was having

trouble sleeping at night, and was falling asleep during the day. (Tr. 393). It appears

that Wadsworth indicated that Plaintiff should be tested for obstructive sleep apnea

(“OSA”). Id. It does not appear that Plaintiff said anything concerning depression at that

time.

On June 17, 2011, Plaintiff reportedly told Wadsworth that she “need[ed her]

disability paperwork done,” and indicated that she had been feeling-low back pain for five

days, especially when changing positions. (Tr. 398). Plaintiff stated that she took the

over-the-counter pain medication Aleve, which helped, but that she “avoid[ed] it.” Id.

Upon physical examination, Plaintiff seemed tender in her lower back. Id. Wadsworth

diagnosed “low back spasm,” prescribed Flexeril, and told Plaintiff to take Aleve as

needed. Id. Apparently, nothing was said on that occasion concerning depression.

PROCEDURAL HISTORY



On February 23, 2010, Plaintiff applied for disability insurance benefits, claiming

that she became disabled on September 1, 2009. Plaintiff claimed to be disabled due to

six conditions: High blood pressure, diabetes, “thyroid,” “pain in back,” obesity and high

cholesterol. (Tr. 155). With regard to obesity, Plaintiff indicated that her height was 5' 6"

and her weight was 356 pounds. Id. Plaintiff did not claim to have any mental or

emotional impairments, and she indicated that she had never sought treatment for “any

mental condition(s) (including emotional or learning problems).” (Tr. 152). While being

interviewed in connection with her initial application for disability benefits, Plaintiff did not

display any problem understanding or concentrating. (Tr. 152, 134). On May 22, 2010,

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Plaintiff was again interviewed by the Commissioner, and denied having any new mental

illnesses or limitations since she applied for disability benefits. (Tr. 166, Ex. 4E).

On April 6, 2010, the Commissioner had Plaintiff undergo an internal medical

examination by Harbinder Toor, M.D. (“Toor”), an non-treating independent examiner.

(Tr. 327-330). Plaintiff reportedly told Toor that she had been experiencing chronic low-

back pain for seven years, following an injury while she was working as a nurse’s aide.

(Tr. 327). However, there is no mention of such an injury or of such a history of pain in

Wadsworth’s notes. Plaintiff further told Toor that she had difficulty standing, walking,

sitting, bending and lifting, due to back pain. Id. Toor observed that Plaintiff was obese

and that she declined to lie down on the exam table, purportedly because of obesity and

back pain. (Tr. 328). Plaintiff also declined to perform the straight leg raising test for

back pain. Toor’s physical examination was essentially unremarkable, in that Plaintiff

had full range of motion in her cervical spine, shoulders, elbows, forearms, wrists, hips,

knees and ankles, full strength in her upper and lower extremities, and full grip strength

and dexterity in her hands. (Tr. 329). Plaintiff did have some limitation of movement in

her lumbar spine. Id. Toor concluded that Plaintiff

has moderate limitations standing, walking, sitting, or lying down because
of back pain and obesity. She has moderate to severe limitations bending
or heavy lifting because of obesity and back pain. She should avoid
irritants or other factors which can precipitate asthma.

(Tr. 330).

On April 12, 2010, an agency medical consultant, “D. Valla,” whose credentials

are not indicated, completed a residual functional capacity assessment, stating that

Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, stand about six

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hours, sit about six hours, with unlimited ability to push and/or pull. (Tr. 333).

On April 12, 2010, the Commissioner denied Plaintiff’s application. On August 4,

2011, a hearing was held before an Administrative Law Judge (“ALJ”). At that time, in

addition to her physical complaints, Plaintiff claimed to be disabled due to depression.

Plaintiff was represented by her attorney and testified at the hearing. The ALJ also took

testimony from a medical expert, Jose Rolon-Rivera, M.D. (“the ME”), and from a

vocational expert, Hector Puig (“the VE”).

At the hearing, Plaintiff indicated, in pertinent part, that Wadsworth had

recommended that she go on a “strict diet,” and that Plaintiff had done so for awhile and

had lost twenty to thirty pounds, but then “leveled out.” (Tr. 59). Plaintiff further indicated

that she does not eat much anyway, although the record indicates that she previously

complained about the fact that she overeats. Id. The ME indicated, inter alia, that

Plaintiff could occasionally lift and carry twenty-five pounds, frequently carry ten pounds,

and stand and/or walk for up to two hours. (Tr. 62-63). The ME acknowledged, though,

that he never examined Plaintiff and that he was primarily basing his opinion on the

report of Valla, who did not examine Plaintiff and whose medical credentials are not

stated in the record. (Tr. 66). The VE testified that despite the limitations on Plaintiff’s

ability to sit and stand, and despite the need for her to change position and for the work

to be simple, she could still perform her past relevant secretarial work, which is

considered semi-skilled light work. (Tr. 71-73, 76).
14

The VE further stated that if Plaintiff

was limited to sedentary, simple, unskilled work, she could still perform certain jobs, such

14

The VE indicated that since Plaintiff’s prior secretarial job was light work, it would ordinarily require the

ability to stand for up to six hours during an eight-hour workday. (Tr. 77). However, Plaintiff testified that, as she
actually performed the job, it did not require that amount of standing.

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as office support work, DOT # 209.582-018 and order clerk, DOT # 209.567-014. (Tr. 73-

74).

On August 23, 2011, the ALJ issued a decision finding that Plaintiff was not

disabled. (Tr. 24-37). In that regard, at the first step of the familiar five-step sequential

analysis, the ALJ found that Plaintiff had not engaged in substantial gainful employment

since September 1, 2009.(Tr. 26).

At the second step of the analysis, the ALJ found that Plaintiff has the following

severe impairments: “morbid obesity, low back pain, and history of asthma.” (Tr. 26).

The ALJ found, however, that Plaintiff’s claimed depression was not severe. (Tr. 27). On

this issue, the ALJ found that, according to Ersteniuk’s mental status examination,

Plaintiff was sad about her mother’s death fifteen years earlier, but otherwise her

examination was unremarkable. Id. The ALJ found that Ersteniuk’s diagnosis of

dysthymia was supported by the record, and entitled to significant weight, but that the

GAF score was not, because it was unsupported in the record. Id. On that point, the ALJ

observed that Plaintiff claimed to have friends and family support, and that she was able

to care for herself and others. Id. Accordingly, the ALJ did not give the GAF score

significant weight. The ALJ further noted that Plaintiff’s dysthymia did not appear to

significantly impact her ability to care for herself or to relate to others, and that it had not

resulted in any significant episode of decompensation. (Tr. 28).



At step three of the five-step analysis, the ALJ found that Plaintiff does not have a

listed impairment or combination of impairments that meets or equals a listed

impairment. (Tr. 28).

At step four of the five-step analysis, the ALJ determined Plaintiff’s RFC as

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follows:

[C]laimant has the residual functional capacity to perform less than the full
range of light work as defined in 20 CFR 404.1567(b). She is able to
lift/carry 20 pounds occasionally and 10 pounds frequently. She is able to
sit for 6 hours during an 8-hour workday and to stand/walk for up to 2 hours
during the same 8-hour period, but she needs to change her position at will.
The claimant can perform occasional climbing, balancing, stooping,
kneeling, crawling, and crouching. She has to avoid respiratory irritants,
fumes and extreme temperatures. Finally, she is able to perform simple
work and follow simple tasks.

(Tr. 29). In finding that Plaintiff could perform some light work, the ALJ noted that

Plaintiff’s obesity could reasonably affect her exertional activity, but that Plaintiff’s weight

had essentially remained constant since 1995, and that Plaintiff had previously been able

to perform medium work at that same weight. (Tr. 30). In making this RFC

determination, the ALJ further noted that Toor’s examination was essentially normal,

except for Plaintiff’s obesity, some limited range of movement in the lumbar spine, and

claimed pain in the lower back. The ALJ determined that she could not give controlling

weight to most of Wadsworth’s RFC assessments, though she gave significant weight to

Wadsworth’s opinion regarding Plaintiff’s ability to sit for up to seven hours in a workday,

and to sit for up to two hours at a time. (Tr. 32). The ALJ gave “little weight” to the rest

of Wadsworth’s opinions, finding that they were inconsistent with Wadsworth’s own

treatment notes. Id. In that regard, the ALJ stated that Wadsworth’s notes showed

essentially no support for any musculoskeletal or neurological abnormalities, except for

one exam in which she found evidence of a lower-back spasm. Id. The ALJ gave some

weight, but not controlling weight, to Wadsworth’s mental RFC assessment, and found

that Plaintiff should be restricted to “simple tasks and instructions,” due to her affective

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disorder. (Tr. 33).

Based on her RFC determination, the ALJ concluded that Plaintiff is not disabled,

because she can perform her past relevant secretarial work, which, as she actually

performed it, requires less than the full range of light exertional ability. On that point, the

ALJ noted that while light work ordinarily requires the ability to stand for six hours,

Plaintiff testified that such job actually required her “to stand or walk 2-3 hours during the

day.” (Tr. 36). The ALJ did not explain, however, how Plaintiff could presently perform

that past work, if she was limited to standing and walking for only two hours per day.

Alternatively, the ALJ found that even if Plaintiff is limited to sedentary unskilled

work, and therefore cannot perform any of her past relevant work, she can still perform

the job of “order clerk,” as identified by the VE, which is sedentary unskilled work. (Tr.

36). Consequently, the ALJ found that Plaintiff was not disabled.

On September 8, 2011, Plaintiff requested review by the Appeals Council. On

April 6, 2012, the Appeals Council denied Plaintiff’s request for review. On May 4, 2012,

Plaintiff commenced this action. On October 29, 2012, Defendant filed the subject

motion [#3] for judgment on the pleadings. On November 15, 2012, Plaintiff filed the

subject cross-motion [#5] for judgment on the pleadings. On June 13, 2013, counsel for

the parties appeared before the undersigned for oral argument of the subject motions.

The ALJ’s Assessment of Plaintiff’s Credibility

ANALYSIS

Plaintiff contends that when the ALJ assessed her credibility, she erred in two

respects. First, Plaintiff contends that it was improper for the ALJ to make a negative

credibility determination based on Plaintiff’s non-compliance with Wadsworth’s

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recommendation to go on a diet. In that regard, the ALJ stated that she could not

“disregard the fact that [Plaintiff] is not following a medically advised diet, particularly in a

case like this, as most of her limitations are secondary to her obesity.” (Tr. 35). The

Court agrees with Plaintiff that such observation was improper, since Wadsworth did not

specifically state either that she had prescribed a diet, or that Plaintiff was non-compliant

with such prescription. Instead, Wadsworth stated only that Plaintiff was generally

“concompliant,” without specifying how. (Tr. 371). Moreover, Plaintiff did not testify that

she was not complying with Wadsworth’s diet recommendation, but rather, she stated

that she did follow the diet, and initially lost weight, but that she then “leveled out.” (Tr.

59).

Plaintiff also contends that the ALJ improperly doubted her credibility based on

her activities of daily living. Specifically, the ALJ stated that Plaintiff’s daily activities,

including housework and caring for her niece’s son, contradicted her claimed inability to

perform basic work activities. (Tr. 34). Plaintiff contends that such “limited daily activities”

are not inconsistent with disability. However, the Court believes that the ALJ could

permissibly draw a negative inference regarding credibility from Plaintiff’s daily activities,

including the fact that Plaintiff raised her niece and now cares for her niece’s child. In

that regard, it is arguably inconsistent for Plaintiff to be able to maintain her house and

care for a child while at the same time claiming to be unable to lift ten pounds.

Wadsworth’s Mental RFC Evaluation

Plaintiff next contends that the ALJ erred by “failing to adopt Dr. Wadsworth’s

uncontradicted mental RFC evaluation.” Pl. Memo of Law at p. 7. Plaintiff states that the

ALJ was essentially required to accept Wadsworth’s mental RFC evaluation, “[b]ecause

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there is no medical opinion to contradict that evaluation.” Id. at p. 8. Plaintiff also argues

that the ALJ did not properly apply the treating physician rule, because in considering the

weight to give to Wadsworth’s mental RFC evaluation, the ALJ did not consider the long

treating relationship between Wadsworth and Plaintiff, as required by 20 CFR §

404.1527(c)(2). Id. Additionally, Plaintiff contends that the ALJ should have accepted

Wadsworth’s mental RFC evaluation because it was consistent with Ersteniuk’s findings,

and particular with Ersteniuk’s GAF score of 50. Id. at 9. Plaintiff further contends that,

according to the VE, a person with all of the mental limitations described in Wadsworth’s

mental RFC evaluation would be unable to work at any job.

At the outset, the Court disagrees that the ALJ failed to consider 20 CFR §

404.1527(c)(2). On that point, the ALJ specifically stated that she had “considered [the]

opinion evidence in accordance with the requirements of 20 CFR 404.1527,” and her

discussion of Wadsworth’s treating notes shows that she was familiar with the long

treating relationship between Plaintiff and Wadsworth. The ALJ’s decision to give only

“some weight” to Wadsworth’s mental RFC evaluation was based on other factors, such

as the fact that it was inconsistent with Ersteniuk’s mental status exams and Plaintiff’s

own description of her daily activities. In any event, Plaintiff’s reliance upon her long

treating history with Wadsworth seems misplaced as to her depression, since Wadsworth

never reported observing any signs of depression during the years that she treated

Plaintiff. Moreover, it was not until late 2010 that Plaintiff informed Wadsworth that she

was feeling depressed.
15

Therefore, while there is a long treating history between

15

Consequently, the statement in Plaintiff’s brief, that Wadsworth treated her “on over forty occasions for a
number of impairments including depression,” while perhaps technically true, is misleading insofar as it suggests that
Wadsworth treated Plaintiff for depression over a long period. See, Pl. Memo of Law at p. 7.

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Plaintiff and Wadsworth generally as to Plaintiff’s physical ailments, there is not a long

treating history with regard to Plaintiff’s claimed depression.

The Court also disagrees with Plaintiff’s contention that Wadsworth’s mental RFC

assessment is “uncontradicted,” since, as noted above, it is inconsistent with Ersteniuk’s

mental status exams. Wadsworth’s notes do not indicate that she ever performed a

mental status examination of Plaintiff. Ersteniuk, on the other hand, whose specialty is in

the area of mental health, performed such examinations and found that Plaintiff had only

“low grade depressive symptoms.” Unlike Wadsworth, Ersteniuk did not find that

16

Plaintiff had impairments related to understanding, remembering, concentrating, making

decisions or being aware of normal hazards. To the contrary, Ersteniuk reported that

one of Plaintiff’s strengths was her “good intellectual skills.” (Tr. 352). And although

Wadsworth prescribed Plaintiff Zoloft, after Plaintiff reportedly told Wadsworth that

Ersteniuk had said Plaintiff needed such medication, Ersteniuk’s own notes and

treatment plans do not reference any need for medication.

Plaintiff nevertheless insists that Wadworth’s opinions are consistent with

Ersteniuk’s, since Ersteniuk gave Plaintiff a GAF score of 50, suggesting “serious”

symptoms or impairments. In that regard, a GAF score of 50 can reflect either “serious

symptoms” or “serious impairments in social, occupational or school functioning,” and

Ersteniuk based her score on the latter category of “serious impairments” in occupational

and social functioning. (Tr. 355). However, the ALJ explained that she did not give

16

As to the apparent non-severity of Plaintiff’s symptoms, it is worth reiterating that Plaintiff’s entire past

relevant work was satisfactorily performed during the fifteen years after her mother died, while Plaintiff was
reportedly depressed about that event.

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significant weight to the GAF score, since Plaintiff admittedly had friends and cared for

17

herself and her niece’s son, and since Ersteniuk’s exam basically showed only that

Plaintiff was sad over her mother’s death fifteen years earlier. (Tr. 27).
18

Although

Ersteniuk’s GAF score suggests that Plaintiff has serious impairments in social

functioning, the ALJ found that “the record fails to show any particular problem in

[Plaintiff’s] ability to relate adequately to others,” (Tr. 28), and that observation is

supported by substantial evidence.

The Court also notes that while Ersteniuk apparently interpreted the fact that

Plaintiff is not currently working as suggesting that she is seriously impaired in her

occupational functioning, there is no indication in the record that Plaintiff’s unemployment

is directly related to any of her claimed impairments, including her alleged depression. In

that regard, Plaintiff worked at three different jobs during the fifteen years following her

mother’s death, and the reason she stopped working in September 2009 was not due to

her impairments, but was because funding for the job ran out.

The Court further notes that despite the aforementioned shortcomings in

Wadsworth’s mental RFC assessment, the ALJ still gave it some weight, and as a result,

found that Plaintiff should be limited to simple tasks and instructions. Based on that

finding, Plaintiff contends that the ALJ subsequently erred by finding that she could

17

See, Tr. 346 (Plaintiff has “few friends”); Tr. 355 (Plaintiff has “some friends”).

18

Even assuming, arguendo, that it was error for the ALJ to give less than significant weight to the GAF
score, such error would seem to be relatively harmless since the GAF score is just one factor to be considered, and
because, at most, the GAF score tells us that Plaintiff has “serious” impairments in occupational and social
functioning, without specifying or quantifying any limitations flowing from that term. In an analogous situation,
discussed below, Plaintiff contends that Toor’s report is essentially meaningless, since, she contends, his use of the
terms “moderate” and “severe” are ambiguous. See, Pl. Memo of Law at p. 11 (“This information is not sufficiently
specific to provide any useful information about Ms. Dowd’s capabilities.”). Plaintiff cannot have it both ways.

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perform her past secretarial work, since such work has a specific vocational preparation

(“SVP”) rating of 3, which Plaintiff maintains is inconsistent with simple work.

Regardless of whether that is true, however, the Court cannot see how the ALJ arrived at

her finding of as to the “simple work” limitation in the first place. That is, as already

discussed, the relevant evidence in the record indicates that Plaintiff’s intellectual

functioning is fine. Even Wadsworth indicated that Plaintiff had a good ability to

remember work procedures and detailed instructions and an unlimited ability to exercise

appropriate judgment. (Tr. 375). The Court therefore finds that on the present record,

the ALJ’s determination that Plaintiff is limited to simple work is not supported by

substantial evidence, and Plaintiff’s contention that she cannot perform the mental

demands of her past secretarial work therefore lacks merit.

Wadsworth’s Physical RFC Evaluation

Plaintiff next contends that the ALJ erred by giving greater weight to Toor’s

opinion than she did to Wadsworth’s opinions.

19

On that point, Wadsworth stated, for

example, that Plaintiff could not lift and carry ten pounds or work more than two days per

week.

20

According to Plaintiff, Toor’s opinion is not “substantial evidence to contradict Dr.

Wadsworth’s opinion.” Pl. Memo of Law at p. 10. In this regard, Plaintiff seems to argue

that the ALJ was required to accept Wadsworth’s treating-physician opinion, since Toor’s

19

Plaintiff also contends that the ALJ erred by relying on the ME’s opinion, since that opinion does not

constitute substantial evidence. The Court agrees that the ME’s opinion is of li