Freitas v. Colvin

Filing 19

ORDER denying 8 plaintiff's motion to reverse the decision of the Commissioner and granting 9 defendant's motion to affirm the decision of the Commissioner. See attached ruling. Signed by Judge Donna F. Martinez on 12/22/16. (Brierley, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSE FREITAS,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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CASE NO.3:14CV789(DFM)

RULING ON PENDING MOTIONS
Plaintiff, Jose Freitas, seeks judicial review of the
denial of his applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”).1 (R. 10-22.)

1Plaintiff

filed an application for DIB on March 8, 2011,
and an application for SSI on March 14, 2011. Both applications
allege a disability onset date of March 6, 2011. (R. 176-86.)
His applications were denied initially and upon reconsideration.
(R. 54-101.)
The ALJ found at step 1 that plaintiff has not engaged in
substantial gainful activity since his alleged onset date. (R.
12.) At step 2, the ALJ found that plaintiff has the following
severe impairment: organic mental disorder (status post
cerebrovascular accident). (R. 12.) He found at step 3 that
plaintiff’s condition did not meet or medically equal a listed
impairment. (R. 14.) He determined that plaintiff retained the
residual functional capacity (“RFC”) to perform a full range of
work at all exertional levels, except that plaintiff is limited
to performing unskilled jobs involving simple, routine and
repetitive tasks, with short, simple instructions and few
workplace changes. (R. 16.) The ALJ concluded that plaintiff
has the attention span to perform simple tasks for two-hour
intervals during an eight-hour workday. (R. 16.) At step 4, the
ALJ determined that plaintiff is unable to perform his past
relevant work. (R. 20.) At step 5, considering plaintiff’s age,
education, work experience, and RFC, the ALJ found that jobs
exist in significant numbers in the national economy that
plaintiff could perform. (R. 20.) He thus concluded that

Currently pending are plaintiff’s motion to reverse the decision
of the Commissioner of Social Security (“Commissioner”) (doc.
#8) and defendant’s motion to affirm the decision of the
Commissioner. (Doc. #9.)

On July 31, 2015, pursuant to the

court’s order, counsel filed a joint stipulation of facts and
medical chronology, which I incorporate by reference. (Doc.
#13.)

For the following reasons, plaintiff’s motion is DENIED

and defendant’s motion is GRANTED.2
I.

Legal Standard
The standards for determining an individual’s entitlement

to DIB and SSI, the Commissioner’s five-step framework for
evaluating disability claims, and the district court’s review of
the final decision of the Commissioner are well-settled.

I am

following those standards, but do not repeat them here.
II.

Discussion

Plaintiff makes several arguments.

He contends that the

ALJ erred by (a) not finding plaintiff’s right-sided weakness to
be a severe impairment; (b) failing to consider plaintiff’s nonsevere impairment in his physical RFC determination; (c) making

plaintiff was not disabled within the meaning of the Social
Security Act. (R. 21.) Plaintiff appealed the ALJ’s decision to
the Appeals Council, which denied his request for review on
April 15, 2014. (R. 1-4.)
2This is not a recommended ruling.
On January 6, 2016, the
parties consented to the jurisdiction of a magistrate judge.
(Doc. #16.) See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b).
2

internal inconsistencies in his mental RFC determination; (d)
incorrectly evaluating the medical opinion evidence; (e) failing
to support his credibility assessment with substantial evidence;
and (f) improperly relying on the testimony of the vocational
expert.

I consider each argument in turn.
A. Step Two Determination

Plaintiff suffered a stroke on March 6, 2011. (R. 279.)

At

step 2, the ALJ determined that plaintiff’s resulting organic
mental disorder is a severe impairment. (R. 12.)

Although the

ALJ recognized that plaintiff experienced right-sided weakness
after his stroke, he explained that “there is no convincing
evidence” that the right-sided weakness caused “more than
minimal limitations in terms of [plaintiff’s] ability to perform
basic work activities,” and therefore did not find it to be a
severe impairment. (R. 13.)

Plaintiff contends that this

finding is erroneous.
A review of the ALJ’s assessment of the severity of
plaintiff’s impairments reveals no error.

The ALJ relied on the

medical source statement completed by plaintiff’s treating
physician, Dr. Evan Schiff, in which he opined that plaintiff’s
right-sided weakness improved within three months of his stroke
and since that time has been no more than “mild.”
citing R. 394.)

(R. 13,

Dr. Schiff’s opinion is consistent with other

evidence of record revealing normal physical examination
3

results.

For example, in August 2011, consultative examiner Dr.

Yacov Kogan observed that plaintiff walked independently with a
normal gait. (R. 328-29.)
were normal. (Id.)

His motor strength and reflexes also

Based on his examination, Dr. Kogan opined

that plaintiff had no functional limitations. (Id.)

In addition

to Dr. Kogan’s report, the ALJ also considered the opinion of
state agency medical consultant Dr. Katherine Tracy, who
reviewed the evidence of record and opined that plaintiff does
not have a physical impairment resulting in more than minimal
functional limitations in his ability to perform basic work
activities. (R. 13, citing R. 95.)

There is no error here.3

B. Physical RFC Determination
Plaintiff next argues that even if his right-sided weakness
is a non-severe impairment, the ALJ erred by not considering the
potential functional limitations associated with this impairment
when making his RFC assessment.

See SSR 96-8P, 1996 WL 374184,

at *5 (July 2, 1996) (“In assessing RFC, the adjudicator must

3Even

if the ALJ had erred in determining that plaintiff’s
right-sided weakness is not a severe impairment, any error is
harmless because he continued the sequential analysis and
considered plaintiff’s non-severe impairments when making his
RFC determination. See, e.g., Reices-Colon v. Astrue, 523 F.
App’x 796, 798 (2d Cir. 2013) (“At step two, the ALJ identified
other ‘severe impairments’ . . . and therefore proceeded with
the subsequent steps. And, in those subsequent steps, the ALJ
specifically considered [plaintiff’s non-severe impairments].
Because these conditions were considered during the subsequent
steps, any error was harmless.”).
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consider limitations and restrictions imposed by all of an
individual’s impairments, even those that are not ‘severe.’”).
Contrary to plaintiff’s assertion, the ALJ did consider
plaintiff’s right-sided weakness, but ultimately found that it
did not cause any functional limitations.

He recounted that

during plaintiff’s interview with state-agency physician Dr.
Wendy Underhill, plaintiff “stated that he believed himself
capable of working, even while he had some difficulties due to
weakness in his right leg . . . .

[T]he claimant reported doing

a considerable amount of walking throughout the day, and
reported no difficulty handling household chores.” (R. 14.)

The

ALJ also considered plaintiff’s own treating physician’s
statement that his right-sided weakness improved within three
months of his stroke and since that time has been no worse than
mild. (R. 13, 18; citing R. 95, 394.)

The ALJ’s physical RFC

assessment properly accounted for both severe and non-severe
impairments and is supported by substantial evidence.
C. Mental RFC Determination
Plaintiff also takes issue with the ALJ’s mental RFC
determination, arguing that it is internally inconsistent.

The

ALJ gave “great weight” to state agency psychologist Dr. Kirk
Johnson’s opinion that plaintiff has “moderate limitations in
terms of the ability to maintain concentration, persistence and
pace,” but proceeded to find that plaintiff “has the attention
5

span to perform simple work tasks for two-hour intervals
throughout an eight-hour workday.” (R. 19.)

Plaintiff argues

that this inconsistency is grounds for remand.
Plaintiff’s argument conflates two distinct assessments.
“It is well established that a step three determination is not
an RFC assessment, but instead is used to rate the severity of
mental impairment . . . .

Therefore, a determination made at

step three need not carry over verbatim to the ultimate RFC
determination because the two determinations require their own
distinct analysis and conclusion.”

Race v. Comm’r of Soc. Sec.,

Docket No. 114CV1357(GTS)(WBC), 2016 WL 3511779, at *3 (N.D.N.Y.
May 24, 2016) (citations omitted).
First, at step 3, when considering the severity of
plaintiff’s organic mental disorder, the ALJ explained:
[T]he claimant’s psychiatric impairment of Organic
Mental Disorder does not meet the criteria of section
12.04A or B of 20 CFR Part 404, Subpart P, Appendix 1 .
. . . In making this finding, I have considered whether
the “Paragraph B” criteria are satisfied. To satisfy
the “Paragraph B” criteria, the mental impairments must
result in at least two of the following: marked
restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence,
or pace; or repeated episodes of decompensation, each of
extended duration.
(R. 15.)
The ALJ determined that plaintiff has not had any episodes
of decompensation and has only mild limitations in activities of

6

daily living and social functioning.

As to deficiencies in

concentration, persistence and pace, the ALJ concluded that
plaintiff has moderate limitations and “may have problems
understanding, remembering and carrying out complex or detailed
instructions.”

(R. 15.)

The ALJ continued, however, that

plaintiff “retains the ability to remember, understand and
complete simple, routine and repetitive tasks on a sustained
basis . . . [and] remains capable of sustaining concentration
and pace for 2-hour intervals and complete assigned simple
tasks.” (R. 15-16.)
Separate from the step 3 determination is the mental RFC
assessment, in which the ALJ considered plaintiff’s ability to
understand, remember, and carry out instructions.

The ALJ

summarized the evidence of record, including plaintiff’s own
statements and testimony, before concluding that he “is limited
to performing unskilled jobs involving simple, routine and
repetitive tasks, with short and simple instructions and few
workplace changes.

[He] has the attention span to perform

simple work tasks for two-hour intervals throughout an eighthour workday.” (R. 19.)

The ALJ’s step 3 finding that plaintiff

has moderate limitations in concentration, persistence and pace
is not inconsistent with his mental RFC determination that
plaintiff has the attention span to perform simple work tasks
for two-hour intervals throughout an eight-hour workday.
7

D. Evaluation of Medical Opinion Evidence
Plaintiff next argues that the ALJ did not properly
evaluate the medical opinion evidence, specifically, the
opinions of his treating physician Dr. Schiff; consultative
examiner Dr. Kogan; and state agency document reviewer Dr.
Tracy.
1.

Dr. Schiff

Plaintiff asserts that the ALJ should have given
controlling weight to the opinion of his treating physician, Dr.
Schiff.

Dr. Schiff wrote a brief letter dated June 12, 2012,4

Dr. Schiff’s June 12, 2012 letter reads in its entirety:

4

[Plaintiff] has been my patient since 2009. He has had
elevated blood pressure and which he [sic] has been noncompliant with visits and medication administration in
the past. He also was a 3-pack per day smoker. He was
able to reduce his smoking to 1 pack per day and even
quit in 2011, but subsequently has begun smoking again.
In March of 2011 (March 6th), the patient developed
slurred speech and right upper extremity weakness and
was sent to the emergency room. He was found to have
suffered a stroke in the left thalamic area of the brain
which was confirmed on MRI. At this point he did have
some disability. However, over the next three months
his speech and R sided strength improved.
I have
continued to see him here for his blood pressure which
has now been well controlled on medication. He has a
physical scheduled with me in July. I believe he does
still have some speech impediment and R sided weakness,
although this is mild and I cannot determine solely if
these issues constitute a significant disability or what
percent disability this would entail.
He had a
neurologist Dr. Louis Reik which [sic] he was supposed
to follow up with after his stroke.
I would suggest
getting an opinion from him or another neurologist as to
his disability status.
8

and completed a form medical source statement on March 13, 2013,
limiting plaintiff to light work. (R. 395-401.)

He also signed

a doctor’s note on March 20, 2013 stating that plaintiff is
unable to lift more than 20 pounds. (R. 402.)

Plaintiff argues

that the ALJ ignored Dr. Schiff’s opinion in violation of the
treating physician rule.
Under the treating physician rule, a treating physician’s
opinion is accorded controlling weight when that opinion is
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.”

20 C.F.R. §

404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 31–32 (2d
Cir. 2004).

The ALJ must “give good reasons” for the weight

accorded to the treating physician’s opinion.

See Halloran, 362

F.3d at 32; see also 20 C.F.R. § 404.1527(c)(2) (“We will always
give good reasons in our notice of determination or decision for
the weight we give your treating source’s opinion.”).
Here, the ALJ assigned “little weight” to Dr. Schiff’s
opinion, explaining that
the opinion is not supported in the treatment notes, and
is not supported in the overall evidence of record. Dr.
Schiff provided a brief note simply stating that the
claimant is unable to lift more than 20 pounds due to
his stroke. However, I find this opinion unpersuasive
given the lack of objective findings by Dr. Rosenberg
and by Dr. Kogan. Furthermore, Dr. Schiff reported on
(R. 394.)
9

June 12, 2012, that the claimant’s condition improved
significantly within three months of his stroke, and
estimated that the residual limitations were “mild.”
(R. 19.)
The ALJ considered the supportability of Dr. Schiff’s
opinion against the record as a whole and provided “good
reasons” for his assignment of weight.
2.

There is no error.5

Dr. Kogan

Plaintiff argues that the ALJ erred by failing to
explicitly state the weight he assigned to the opinion of
consultative examiner Dr. Kogan, who made normal physical
examination findings and assessed no functional limitations. (R.
328-29.)

Plaintiff does not offer any controlling case law to

support his argument that an ALJ’s failure to assign specific
weight to a medical source opinion constitutes reversible error.
In any event, the ALJ discussed Dr. Kogan’s opinion at length
(R. 13, 18-19),6 and it is clear that he evaluated her opinion in
accordance with the regulations.

5Plaintiff

also argues that the ALJ erred by not requesting
additional information from Dr. Schiff about plaintiff’s 20
pound lifting restriction, or by scheduling a consultative
examination to evaluate plaintiff’s lifting ability. Where, as
here, “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.” Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).
6The ALJ first summarized Dr. Kogan’s “unremarkable”
examination findings. (R. 13.) He noted that “[m]otor strength
testing was normal, bilaterally. Fine finger movements were
10

3.

Dr. Tracy

Plaintiff next argues that the ALJ erred by giving “great
weight” to non-examining state agency document reviewer Dr.
Tracy, who wrote that plaintiff “states he has leg pain.

He has

not been to a doctor, his [physical examination] was normal and
he can walk two miles.

Pain is not a MDI [medically

determinable impairment] and is subjective – no dx to support
this allegation.” (R. 95.)
The ALJ properly relied on Dr. Tracy’s report, which is
supported by substantial evidence and is consistent with the
other evidence of record, including Dr. Kogan’s opinion that
plaintiff has no physical functional limitations; Dr. Schiff’s

normal, bilaterally. Sensory exam was normal in the upper and
lower extremities. While the claimant brought a cane to the
examination, Dr. Kogan stated that the claimant was able to
ambulate independently without the use of his cane, with a
normal gait.” (R. 13.) In his RFC determination, the ALJ
discussed Dr. Kogan’s mental examination findings:
On mental status examination with Dr. Kogan, the
claimant
denied
any
history
of
psychiatric
hospitalizations, denied any history of suicidal plans,
suicidal attempts, visual hallucinations, and denied any
history of auditory hallucinations. He reported normal
mood, and denied crying spells. He reported fair sleep
and fair appetite.
On examination, the claimant was
alert and oriented, with normal expressive and receptive
language. He was able to recall his date of birth and
Social Security number. He was able to register[] three
out of three objects, and recall three out of three
objects, at 3 minutes.
The claimant had a six-digit
memory span.
His affect was normal.
He did not
demonstrate pressured speech and his thought processes
were organized.
(R. 18.)
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normal examination findings; and Dr. Schiff’s opinion that
plaintiff’s experienced only “mild” symptoms within three months
of his stroke. (R. 328-29, 378, 394.)
E. Credibility Assessment
Plaintiff’s next argument is that the ALJ failed to explain
his determination that plaintiff’s statements concerning the
intensity, persistence, and limiting effects of his symptoms
were not entirely credible.
To the contrary, the ALJ explained that the objective
medical evidence does not support plaintiff’s allegation of
substantial functional limitation.

It is apparent from the

ALJ’s decision that he considered the factors set forth in the
regulations and ruling concerning credibility.
404.1529; SSR 96-7P.

See 20 C.F.R. §

For example, the ALJ explained that while

plaintiff “alleges inability to walk more than a quarter block,”
the “medical progress notes . . . show that the claimant’s
physical exam revealed an individual in no acute distress, that
was well nourished and well developed . . . .

His

musculoskeletal exam revealed normal strength, without any
apparent joint abnormalities.” (R. 18.)

The ALJ also considered

plaintiff’s ability to perform activities of daily living with
little restriction.

In this regard, he is able to independently

care for his personal hygiene, perform household chores, shop

12

for food and clothes, prepare simple meals, take short walks,
and use public transportation. (R. 15, 40, 214, 217.)
The ALJ’s credibility assessment is thorough and supported
by substantial evidence.

The court will not “second-guess the

credibility finding . . . where the ALJ identified specific
record-based reasons for his ruling.”

Stanton v. Astrue, 370 F.

App’x 231, 234 (2d Cir. 2010).
F. Vocational Expert’s Testimony
Finally, plaintiff argues that at step 5, the Commissioner
failed to meet her burden of proof7 that although plaintiff is
unable to perform his past relevant work, he retains the RFC to
perform other work.

Plaintiff’s argument concerns the ALJ’s

reliance on vocational expert’s testimony.
The vocational expert testified that plaintiff could
perform the following jobs: hand packager, production worker,
and production inspector. (R. 21.)

All three have a reasoning

development level of 2, which, according to the Dictionary of
Occupational Titles (“DOT”), requires the application of “common
sense understanding to carry out detailed but uninvolved written
or oral instructions.”

Plaintiff asserts that the ALJ limited

7The

claimant bears the burden of proof as to the first four
steps, while the Commissioner bears the burden of proof at the
fifth step. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008).
13

him to reasoning level 1 jobs8 by virtue of his RFC restriction
to “short and simple instructions,” (R. 16) and that he erred by
accepting the vocational expert’s testimony that plaintiff could
perform reasoning level 2 jobs.
Judges in this district have held that limitations to
“short, simple instructions” are not inconsistent with reasoning
development level 2.

Jones-Reid v. Astrue, 934 F. Supp. 2d 381,

408 (D. Conn. 2012) (explaining that “[a] number of courts have
found that a limitation of simple tasks or instructions is
consistent with . . . level 2 reasoning”); see also Soler v.
Colvin, Docket No. 3:13-CV-1659 (WIG), 2015 WL 4999907, at *14
(D. Conn. Mar. 3, 2015) (“A limitation to work with simple
instructions is consistent with jobs in reasoning levels 1 and
2.”); Lofton v. Colvin, Docket No. 3:13-CV-528 (JBA), 2015 WL
2367692, at *27 (D. Conn. May 13, 2015) (“[A] restriction of
simple tasks or instructions is consistent with both Reasoning
Level Two and Three positions.”).

The Commissioner has met her

burden of proof at step 5.

8The

DOT describes reasoning level 1 as requiring the
application of “commonsense understanding to carry out simple
one or two-stop instructions. Deal with standardized situations
with occasional or no variables in or from these situations
encountered on the job.”
14

III. Conclusion
For these reasons, plaintiff’s motion to reverse the
decision of the Commissioner (doc. #8) is DENIED and defendant’s
motion to affirm the decision of the Commissioner (doc. #9) is
GRANTED.
This is not a recommended ruling.

The consent of the

parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.

Appeals can be made directly to the

appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).
SO ORDERED at Hartford, Connecticut this 22nd day of
December, 2016.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge

15