Russell v. Commissioner of Social Security
Filing
26
ORDER denying 24 Motion to Reverse the Decision of the Commissioner; granting 25 Motion to Affirm the Decision of the Commissioner for the reasons stated in the attached memorandum of decision. The Clerk is directed to close the case. Signed by Judge Vanessa L. Bryant on 3/27/2019. (Bryan, Kelsey)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JARON R. RUSSELL,
Claimant,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Commissioner.
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No. 3:18-CV-00450 (VLB)
March 27, 2019
MEMORANDUM OF DECISION
Claimant Jaron R. Russell (“Mr. Russell” or “Claimant”) challenges the
Commissioner of Social Security’s final decision to deny his application for
disability benefits pursuant to 42 U.S.C. § 405(g). Mr. Russell moves to reverse or
remand the decision, arguing that Administrative Law Judge I. K. Harrington’s (the
“ALJ” or “ALJ Harrington”) findings are not supported by substantial evidence in
the Record and/or were not rendered in accordance with law. Commissioner Nancy
A. Berryhill, Acting Commissioner of Social Security (the “Commissioner”), moves
to affirm the Commissioner’s final decision. For the reasons stated below, the
Court GRANTS the Commissioner’s motion to affirm and DENIES Claimant’s
motion to reverse.
Background
As a child, Claimant was diagnosed with epilepsy. Claimant stopped having
seizures around age eight but started experiencing them again in March 2011. On
April 7, 2014, Claimant filed for disability benefits and supplemental security
1
income. Claimant is not insured under his own earnings record but filed as the
adult child of an insured wage earner. [R. 21]. His application was denied initially
on April 23, 2014 and reconsideration was denied on September 5, 2014. Claimant
thereafter requested a hearing, which ALJ Harrington held on April 13, 2016. At the
time of the ALJ’s decision, Claimant was twenty-two years old. He had completed
high school and was taking college classes part-time. [Dkt. 24-2 (Stipulation of
Facts) at ¶ 1]. On July 5, 2016, ALJ Harrington issued her decision finding Claimant
is not disabled under the Social Security Act (“SSA”) and denying his application
for benefits. Claimant initiated this action on March 16, 2018 and moved to reverse
the Commissioner’s decision on July 31, 2018. The Commissioner subsequently
moved to affirm the decision of the Commissioner.
In accordance with the standing order on social security appeals, the parties
filed a stipulation of facts, [Dkt. 42-2], which the Court hereby incorporates in full.
I.
Medical History
Claimant had a history of epilepsy as a child. [R. 505]. After no seizures for
a number of years, on March 13, 2011, at age seventeen, Claimant presented to the
emergency room complaining of headache, dizziness, and vomiting following a
suspected seizure. [R. 505, 825-46]. A CT scan of Claimant’s head was normal. [R.
514, 830]. Dr. Ionita started Claimant on an anticonvulsant, Trileptal. [R. 467]. On
April 14, 2011, Claimant saw a neurologist, Dr. David Shiling, for evaluation. [R.
467, 806, 819]. Dr. Shiling agreed with the Trileptal prescription and instructed
Claimant he should continue to avoid driving and other dangerous activities. [R.
2
474]. At a follow-up visit six weeks later, Dr. Shiling reported that the MRI and EEG
of Claimant’s brain were normal. [R. 471].
Claimant presented to the emergency room on July 9, 2011 following another
seizure. [R. 501]. Claimant reported the breakthrough seizure to Dr. Shiling at an
appointment on July 13, 2011. [R. 475]. Dr. Shiling increased Claimant’s dosage
of Trileptal and referred him to Yale Epilepsy Center. [R. 478].
Claimant returned to Dr. Shiling on November 15, 2011 and reported a
nocturnal seizure the night before. [R. 479]. Claimant reported that there were no
precipitating factors, as with his previous seizures. [R. 479]. Dr. Shiling prescribed
Keppra and recommended another appointment with the Yale Epilepsy Center. [R.
482]. An EEG taken that day showed “excessive slowing bilaterally with recurrent
bilateral rhythmic frontal delta occasionally associated with possible very low
amplitude or phantom spikes consistent with an underlying primary seizure
disorder and perhaps some sort of encephalopathy.” [R. 484].
On March 13, 2012, Claimant reported to Dr. Detyniecki, a Yale physician,
that he had a seizure on February 20, 2012. [R. 570]. On February 20, 2012 and
March 5, 2012, Claimant’s urine toxicology screen was positive for cannabis. [R.
486, 519, 705]. Claimant was seen emergently by Dr. Detyniecki on March 28, 2012
following a seizure while Claimant was at school. [R. 569]. On June 19, 2012,
Claimant told Dr. Detyniecki that he continued to have breakthrough seizures
despite escalating doses of Keppra and Trileptal. [R. 565, 598]. Claimant admitted
to forgetting some doses of his medication.
Claimant’s mother had begun
monitoring his medication compliance. [R. 565]. As at each of the previous visits,
3
on examination, Claimant was cooperative, alert, and fully oriented and he was
neurologically intact with full strength throughout and had intact sensation, normal
eye examination, and a normal gait. [R. 566, 599, 904].
Claimant saw Dr. Detyniecki again on January 27, 2013, reporting episodes
of nausea, then feeling hot and sweaty, but not losing consciousness. [R. 561]. Dr.
Detyniecki prescribed Lamictal, another anticonvulsant, for these auras. [R. 561].
Claimant also reported having a seizure in December after being seizure free for
six months. [R. 561]. A February 7, 2012 MRI of Claimant’s brain was normal. [R.
598].
Claimant was taken off of Keppra in April 2013. [R. 549]. Claimant saw Dr.
Pue Farooque at Yale New Haven Hospital for evaluation of his seizures on April
19, 2013. [R. 545, 677]. Dr. Farooque noted that Claimant’s physical examination,
MRI, and EEG were normal. [R. 545-46, 677]. In June, Dr. Detyniecki switched
Claimant to Oxtellar and increased his dosage; Claimant continued with Lamictal.
[R. 676]. Claimant reported that he continued to have seizures. [R. 676].
On September 10, 2013, Claimant presented to the emergency room
following two seizures in the morning.
[R. 487, 868-85].
Claimant had four
additional seizures after an initial emergency room visit. [R. 487, 868-85]. The
attending physician increased Claimant’s Lamictal and instructed him to continue
with his other antiseizure medications. [R. 499]. Claimant’s urine analysis from
the visit was positive for cannabis. [R. 537, 669, 671].
Claimant saw Dr. Detyniecki on September 23, 2013 following the cluster of
seizures earlier in the month. [R. 526]. Dr. Detyniecki suspected that medication
4
noncompliance was an important factor in causing the additional seizures. [R.
528]. Claimant saw Dr. Detyniecki again on January 7, 2014 and reported a seizure
in November and one a week prior to the visit. [R. 534]. Claimant admitted to
smoking marijuana. [R. 524]. Dr. Detyniecki increased Claimant’s Lamictal dosage
but his assessment noted that Claimant’s seizures “appear to be less often and
milder (no sec GTC [general tonic-clonic, or grand mal, seizures]).”
[R. 525].
Claimant had another appointment with Dr. Detyniecki on April 8, 2014. [R. 655].
Claimant reported having two seizures on March 28 and complained of some
headaches and spitting. [R. 655]. Dr. Detyniecki noted that Claimant was compliant
with his medication regimen. [R. 655]. EEG monitoring of Claimant in June 2014
showed two seizures. [R. 620, 638-54, 921].
In connection with Claimant’s disability benefits application, Dr. Maria
Lorenzo reviewed the record evidence and her report dated April 23, 2014 opines
that Claimant has no exertional, postural, manipulative, visual, or communicative
limitations. [R. 245]. She indicated that a residual functional capacity should
reflect seizure precautions. [R. 246]. Dr. Carl Bancoff reviewed the record evidence
in September 2014 and opined that Claimant had no exertional limitations, but
Claimant should avoid exposure to ladders and ropes. [R. 270, 272].
On October 21, 2014, Claimant saw Dr. Detyniecki and complained of
intermittent blurry vision since starting on a low dose of Depakote. [R. 924]. On
February 19, 2015, Dr. Detyniecki increased Claimant’s Depakote dosage upon
Claimant’s report of a seizure the previous month. [R. 789, 927]. In August 2015,
5
Claimant reported having “walking seizures” twice a month and intermittent blurry
vision. [R. 930]. Claimant’s physical examination was normal. [R. 931].
At an appointment with Dr. Detyniecki on January 27, 2016, Claimant
reported only one cluster of seizures since his August visit. [R. 933]. Claimant
used Ativan after the second seizure.
[R. 933].
Dr. Detyniecki’s assessment
reported medically refractory localization-related epilepsy (LRE) and noted that
Claimant was “[d]oing better with the increased dose of Clobazam.” [R. 935].
Dr. Detyniecki completed a Medical Source Statement of Mental Health on
March 14, 2016.
[R. 937-42].
Dr. Detyniecki indicated moderate and extreme
limitations with the ability to understand, remember, and carry out instructions as
well as moderate limitations to the ability to interact appropriately with supervisors,
co-workers, and the public and to respond to changes in the routine working
setting. [R. 938-39]. Dr. Detyniecki stated that Claimant’s epilepsy limited his
educational opportunities, social interactions, and ability to be independent. [R.
941]. He further explained that Claimant “has undergone numerous tests to try and
pinpoint his seizure focus in the hopes that an optimal plan can be made to manage
his seizure disorder. Despite being on multi-modal drug therapy, [Claimant] still
has seizures which are unpredictable and totally disabling.” [R. 941].
II.
ALJ Decision
ALJ Harrington rendered her decision on July 5, 2016, denying Claimant’s
request for disability insurance benefits and supplemental security income. [R. 1126]. ALJ Harrington’s conclusions are as follows.
6
ALJ Harrington first found that Claimant had not engaged in substantial
gainful employment since November 30, 2011, the alleged onset date. [R. 21]. She
next found that Claimant has one severe impairment—epilepsy—and intermittent
diplopia (double vision), which is non-severe. [R. 21].
ALJ Harrington concluded that Claimant does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
[R. 22].
Specifically, she found that “[n]o treating or examining physician has recorded
findings equivalent in severity to the criteria of any listed impairment, nor does the
evidence show medical findings that are the same or equivalent to those of any
listed impairment.” [R. 22].
Next, ALJ Harrington found that Claimant has the residual functional
capacity to perform the full range of exertion, “except that he must avoid all
exposure to climbing ladders, ropes and scaffolds, and unprotected heights; avoid
all exposure to dangerous machinery; and avoid operating automobiles.” [R. 22].
The ALJ noted that “[i]n order to determine the claimant’s residual functional
capacity, the undersigned ALJ has considered the functional limitations resulting
from the claimant’s medically determinable impairments, including those that are
nonsevere.” [R. 21]. The ALJ concluded that “[t]he evidence does not support a
finding of any additional functional limitations other than the epilepsy-related
limitations.” [R. 21].
ALJ Harrington recognized that Claimant had no past relevant work
experience. Claimant was born on December 10, 1993 and was twenty-two years
7
old at the time of the decision, which is defined as a younger individual, and has a
high school diploma and reads English.
[R. 27].
ALJ Harrington considered
Claimant’s age, education, work experience, and residual functional capacity and
found that there are jobs that exist in significant numbers in the national economy
that Claimant can perform. [R. 27]. The ALJ relied on testimony from a vocational
expert who concluded that someone with Claimant’s profile and RFC would be able
to perform the requirements of representative occupations such as hotel
housekeeper, price marker, and laundry worker. [R. 28].
Based on the above findings, ALJ Harrington concluded that Claimant has
not been under disability, as defined by the SSA, from November 30, 2011, through
the date of the decision. [R. 28].
This appeal ensued on March 16, 2018 and was fully briefed on September
17, 2018.
Discussion
“In reviewing a final decision of the SSA, this Court is limited to determining
whether the SSA’s conclusions were supported by substantial evidence in the
record and were based on a correct legal standard.” Lamay v. Comm’r of Soc. Sec.,
562 F.3d 503, 507 (2d Cir. 2009) (citing 42 U.S.C. § 405(g)). “Substantial evidence
is more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (internal quotation
marks and citations omitted). “[A district court] must consider the whole record,
examining the evidence from both sides, because an analysis of the substantiality
of the evidence must also include that which detracts from its weight.” Petrie v.
8
Astrue, 412 F. App’x 401, 403–04 (2d Cir. 2011) (quoting Williams ex rel. Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988)) (internal quotation marks omitted). “Even
if the Commissioner’s decision is supported by substantial evidence, legal error
alone can be enough to overturn the ALJ’s decision.” Ellington v. Astrue, 641 F.
Supp. 2d 322, 328 (S.D.N.Y. 2009) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d
Cir. 1987)).
To be “disabled” under the Social Security Act, a claimant must demonstrate
an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Social Security Administration has promulgated the following five-step
procedure to evaluate disability claims:
1.
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity (“Step One”).
2.
If she is not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits her physical or
mental ability to do basic work activities (“Step Two”).
3.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations (“Step Three”).
4.
If the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant’s severe impairment, she has the Residual
Functional Capacity (“RFC”) to perform her past work (“Step Four”).
5.
Finally, if the claimant is unable to perform her past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform (“Step Five”).
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citing 20 C.F.R. § 404.1520).
9
Here, Claimant first argues that the ALJ erred in according only minimal
weight to the opinion of Claimant’s treating physician. [Dkt. 24-1 at 5-11]. Claimant
next argues that the ALJ did not properly consider the medical opinions and
hearing testimony in determining his RFC and erred in finding that Claimant has
the RFC to perform the full range of exertion. Id. at 11-14. Finally, Claimant
contends that the ALJ erred in concluding that there are substantial jobs in the
national economy which Claimant could perform. Id. at 15-17.
I.
Evaluation of Treating Physician Opinion Evidence
The SSA recognizes a “treating physician” rule of “deference to the views of
the physician who has engaged in the primary treatment of the claimant.” GreenYounger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
“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). However, SSA regulations advise that a
treating source’s opinions “on the issue(s) of the nature and severity of [the
claimant’s] impairment(s)” will be given “controlling weight” if the opinion is “well
supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record.”
20 C.F.R. § 404.1527(d)(r); see also Green-Younger, 335 F.3d at 106.
Thus, “[a]lthough the treating physician rule generally requires deference to
the medical opinion of a claimant’s treating physician, . . . the opinion of the treating
physician is not afforded controlling weight where . . . the treating physician issued
opinions that are not consistent with other substantial evidence in the record.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal citations omitted) (citing
10
Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993); Veino v. Barnhart, 312 F.3d 578,
588 (2d Cir. 2002)). An ALJ who declines to give controlling weight to the medical
opinion of a treating physician must consider various factors to determine how
much weight to give the opinion. Id. (citing 20 C.F.R. § 404.1527(d)(2)). These
factors include: “(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.
Additionally, the ALJ must “comprehensively set forth his reasons for the weight
assigned to a treating physician’s opinion.” Cichocki v. Astrue, 534 F. App’x 71,
75 (2d Cir. 2013) (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)).
Claimant argues that the ALJ erred by not giving substantial weight to the
opinion of Claimant’s treating physician, Dr. Detyniecki, a neurologist /
epileptologist with Yale New Haven Hospital. [Dkt. 24-1 at 6]. ALJ Harrington
explained that she accorded “minimal weight” to Dr. Detyniecki’s opinion because
it was not consistent with the record as a whole and the evidence did not support
the extreme limitations Dr. Detyniecki cited. See [R. 26]. Specifically, the ALJ
explained that Dr. Detyniecki’s recommended limits “are inconsistent with the
detailed, chronological progress notes at Yale epilepsy clinic” and Claimant’s
“varied and robust activities of daily living.” [R. 26]. The Court’s review of the
record indicates that substantial evidence supports ALJ Harrington’s decision to
discount Dr. Detyniecki’s opinion.
11
In the checklist portion of Dr. Detyniecki’s Medical Source Statement, he
indicates that Claimant has moderate and extreme limitations in his ability to
understand and remember simple instruction; carry out simple instructions; make
judgments on simple work-related decisions; understand and remember complex
instructions; carry out complex instructions; and make judgments on complex
work-related decisions. [R. 938]. Next to this section, he noted, “When [Claimant]
has a seizure he can NOT follow directions, does not comprehend[,] cannot
speak[,] does not interact with environment or other people.”
[R. 938].
A
reasonable interpretation of Dr. Detyniecki’s Medical Source Statement is that
Claimant is extremely limited when having a seizure but only moderately limited
when he is not. [R. 938].
Dr. Detyniecki further indicated that Claimant has
moderate limitations in his ability to interact appropriately with the public,
supervisors, and co-workers, and marked limitations in his ability to respond
appropriately to unusual work situations and to changes in a routine work setting.
[R. 939]. In a narrative response, Dr. Detyniecki stated that a neuropsychological
evaluation of Claimant concluded that he has difficulty with attention along with
weakness in visual memory and meets criteria for math and learning disorders. [R.
939]. Dr. Detyniecki further stated that Claimant’s seizures are “unpredictable and
totally disabling.” [R. 941]. Elsewhere in the record, Dr. Detyniecki notes that
Claimant’s seizures “are always in the morning.” [R. 918]. Also in the Statement,
he noted that Claimant’s epilepsy has been “difficult to control” and has “greatly
limited [Claimant’s] educational opportunities, social interactions and ability to be
12
independent due to the safety concerns and embarrassing aspects of his Epileptic
seizure activity.” [R. 941].
The treatment notes generated by Dr. Detyniecki and others over five years,
however, do not indicate such significant physical or mental functioning
limitations.
Claimant’s mental status examinations were generally normal,
indicating that he was alert, cooperative, and oriented to person, place, time and
situation. See e.g., [R. 469, 473, 477, 482, 505, 524, 527, 537, 542, 548, 566, 569, 571,
621, 656].
He was also generally found to have full strength throughout, intact
sensation, normal eye examinations, and a normal gait. See e.g., [R. 469-70, 47374, 477-78, 481-82, 531-32, 534, 537, 542, 545]. Claimant’s MRI and EEG results
were largely normal, with limited exceptions where the abnormality was likely
related to Claimant’s recent seizure activity, according to Dr. Detyniecki. See e.g.,
[R. 471, 541, 545-46, 598, 938]. Additionally, on review of the record, Drs. Lorenzo
and Bancoff, similarly concluded that the evidence indicates occasional seizure
episodes but ability to go to school, go out with friends, and interact with others.
[R. 246, 270-72]. Claimant’s regular physical and mental examinations do not
indicate continual limitations beyond the somewhat unpredictable and disruptive
seizure events, which the ALJ takes into account. As the above shows, substantial
evidence in the record, including Dr. Detyniecki’s treatment notes, contradict Dr.
Detyniecki’s checklist summary opinion.
Claimant argues that testimony from himself and his father support Dr.
Detyniecki’s Medical Source Statement. [Dkt. 24-1 at 7]. In particular, Claimant
points to testimony that he experiences memory issues, requiring daily reminders
13
to take his medication, suffers blurry vision from bright lights, and that his father
had to “Jaron-proof[]” the house to prevent Claimant from hurting himself during
unpredictable “walking seizures.” Id. This testimony does not show that the ALJ
erred in giving minimal weight to Dr. Detyniecki’s Statement. First, the ALJ’s
decision confirms that she took this hearing testimony of Claimant and his father
into account in fully assessing the record and coming to the conclusions. See [R.
25 (noting to specific testimony from Claimant and his “parent”)]. Second, the
hearing testimony, when considered as a whole, does not support the conclusion
that Claimant has moderate to extreme limitations in his ability to understand and
remember simple instruction, carry out simple instructions, or make judgments on
simple work-related decisions and marked limitations in his ability to respond
appropriately to unusual work situations and to changes in a routine work setting.
Claimant and his father testified that Claimant has been taking online
courses at a community college since 2013 and that he recently started attending
two classes in person. [R. 187-89, 218-20]. While Claimant testified that he believes
his ability to perform has lessened as a result of headaches and blurred vision, he
also testified that he is passing these classes. [R. 188, 191, 203-04]. Additionally,
the testimony indicates that the blurred vision is likely a side-effect of Claimant’s
medication and that it has lessened since his doctor took him off Depakote. [R.
194]. Claimant further testified that he is cautious about his activities in case he
has a seizure, no longer playing sports and instead watching sports on television
and “chill[ing] around.” [R. 193, 195, 211-12]. Claimant still goes to friends’ houses
and interacts with other people, though he must rely on others for transportation
14
and has made his friends aware of his condition so that they can assist if he has a
seizure. [R. 197-99]. He uses a light-emitting computer for school work and his
cell phone to communicate with friends and sometimes to search the internet,
though he does not use social media. [R. 209-11]. Claimant and his father also
testified that his seizures now usually occur in the morning, two to three times a
month on average, and that he uses Ativan to stop a cluster of seizures. [R. 195,
222].
This testimony does not support Dr. Detyniecki’s indications of extreme
limitations to such an extent that the ALJ erred in giving the Statement minimal
weight. Rather, the testimony largely indicates that Claimant’s epilepsy has not
limited his daily living activities or functional capabilities to an extreme or even
moderate extent. Regardless, “even where substantial evidence may support the
Claimant’s position” the ALJ’s finding must be sustained when it is supported by
substantial evidence. Niles v. Astrue, 32 F. Supp. 3d 273, 279 (N.D.N.Y. 2012).
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Brown v. Apfel, 174 F.3d 59, 61 (2d
Cir. 1999) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The treatment
notes adequately support the ALJ’s conclusion that Dr. Detyniecki’s checklist
summary overstated Claimant’s limitations and the testimony from Claimant and
his father does not change this, but arguably support the ALJ’s conclusion.
The Court does not find Claimant’s argument regarding the June 2014 and
August 2015 EEG and MRI testing convincing either. See [Dkt. 24-1 at 6-7]. That
this testing showed seizure activity unlike previous diagnostic studies does not
15
change the fact that Dr. Detyniecki’s opinion is inconsistent with the other record
evidence. The EEG and MRI tests only show Claimant’s seizures. The ALJ already
found that Claimant’s epilepsy is a severe impairment. The tests do not show
impairment beyond the seizure episodes themselves.
Thus, the tests are
consistent with the ALJ’s decision to discount Dr. Detyniecki’s opinion to account
for the fact that any extreme limitations are present only during the seizure
episodes, which are infrequent, usually occur in the morning, and last only a few
minutes at the most.
Claimant suggests that, as in Flynn v. Commissioner of Social Security, 729
F. App’x 119 (2d Cir. 2018), the ALJ inappropriately “substituted her own judgment
for the treating physician’s judgment regarding the severity of Claimant’s
epilepsy.”
[Dkt. 24-1 at 9]. In Flynn, the Second Circuit noted that “genuine
conflicts in the medical evidence are for the Commissioner to resolve,” 729 F.
App’x at 121, but found that the other record evidence did not support the ALJ’s
contrary conclusion to the extent necessary and thus did not “override the treating
physician’s evaluation.” Id. at 121-22. Additionally, the Second Circuit concluded
that the ALJ should not have relied on the opinions of the consultative doctors who
did not have the opportunity to examine the patient in discounting the opinion of
the treating physician.
Specifically, the court noted the opinions’ “lack [of]
specificity in key respects” and that the case involved mental health, “which [is]
not susceptible to clear records such as x[] rays or MRIs[;] [r]ather, they depend
almost exclusively on less discretely measurable factors, like what the patient says
in consultations.” Id. at 122.
16
This case is distinguishable from Flynn. First, Claimant’s claim does not
implicate mental health, but epilepsy, which can be, and as the record shows was,
assessed with objective medical tests and records. Thus, the opinion of a treating
physician is not as revealing here as it is in a mental health case. Further, review
of the medical tests and records in this case presents a more accurate view of the
claimant’s condition than would be the case for a mental health claim. Second,
unlike in Flynn, where the Second Circuit concluded that the longitudinal treatment
notes and evidence did not support the ALJ’s findings of less severe symptoms,
the record evidence here does support the ALJ’s conclusion that Dr. Detyniecki’s
Statement overstates Claimant’s limitations. In this case, the medical records and
treatment notes do not indicate the severe limitations that Dr. Detyniecki’s
Statement reports but indicate normal mental and physical examination results and
normal EEGs and MRIs when Claimant is not actively seizing. The opinions of Drs.
Lorenzo and Bancoff are based on and consistent with the medical records, and
thus further support the ALJ’s decision to discount Dr. Detyniecki’s Statement.
Because Dr. Detyniecki’s opinion is inconsistent with substantial evidence
in the record, ALJ Harrington was not required to afford his opinion controlling
weight.
Moreover, because ALJ Harrington comprehensively explained the
reasons for discounting Dr. Detyniecki’s Medical Source Statement, he complied
with the dictates of the treating physician rule. See Cichocki v. Astrue, 534 F. App’x
71, 75 (2d Cir. 2013) (citing Burgess, 537 F.3d at 129)). Accordingly, the Court finds
no legal error in the ALJ’s treatment of Dr. Detyniecki’s medical opinion evidence.
17
II.
RFC Finding
A claimant’s RFC is “what an individual can still do despite his or her
limitations.” SSR 96–8p, Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims (“SSR 96–8p”), 1996 WL 374184, at
*2 (S.S.A. July 2, 1996); Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR
96–8p).
“Ordinarily, RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing
basis, and the RFC assessment must include a discussion of the individual’s
abilities on that basis.”
SSR 96–8p, 1996 WL 374184, at *2.
“A ‘regular and
continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work
schedule.” Id.; Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (defining RFC as
“an individual’s ability to do sustained work-related physical and mental activities
in a work setting on a regular and continued basis”) (quoting SSR 96–8p, 1996 WL
374184, at *1). RFC is “an assessment based upon all of the relevant evidence . . .
[which evaluates a claimant’s] ability to meet certain demands of jobs, such as
physical demands, mental demands, sensory requirements, and other functions.”
20 C.F.R. § 220.120(a).
The SSA explains that, in finding a claimant’s RFC, “[a]lthough we consider
opinions from medical sources on issues such as . . . your residual functional
capacity . . . the final responsibility for deciding these issues is reserved to the
Commissioner.”
20 C.F.R. §§ 404.1527(d)(2), 416,927(d)(2);
see also Matta v.
Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (“Although the ALJ’s conclusion may not
perfectly correspond with any of the opinions of medical sources cited in his
18
decision, he was entitled to weigh all of the evidence available to make an RFC
finding that was consistent with the record as a whole.”). An ALJ must consider
both a claimant’s severe impairments and non-severe impairments in determining
his or her RFC. 20 C.F.R. § 416.945(a)(2); De Leon v. Sec’y of Health & Human
Servs., 734 F.2d 930, 937 (2d Cir. 1984).
Claimant argues that the ALJ erred in her finding of Claimant’s RFC.
Claimant contends that the ALJ based her conclusion strictly on the findings of the
consultative examiners and ignored Dr. Detyniecki’s Medical Source Statement as
well as Claimant’s testimony. [Dkt. 24-1 at 11-14]. At the same time, Claimant
suggests that the RFC is based on “several factual errors concerning Claimant’s
daily activities and his academic achievements.” Id. at 13. Additionally, Claimant
contends that the safety concerns associated with Claimant’s condition require
greater RFC limitations than the ALJ found. Id. at 12.
First, as the decision evidences, ALJ Harrington took into consideration the
full record in determining Claimant’s RFC. See [R. 22-27]. ALJ Harrington found
that Claimant has the RFC “to perform the full range of exertion . . . except that he
must avoid all exposure to climbing ladders, ropes and scaffolds, and unprotected
heights; avoid all exposure to dangerous machinery; and avoid operating
automobiles.” [R. 22]. ALJ Harrington explained that she considered Claimant’s
EEGs and MRIs, [R. 24], and treatment notes indicating that medication, when taken
consistently, helped control Claimant’s epilepsy, [R.25].
ALJ Harrington also
explained that she considered testimony by Claimant and his father from the
hearing, as well as Claimant’s activities of daily living questionnaires. See [R. 25-
19
26, 374-82, 409-17].
The ALJ’s description of Claimant’s activities is largely
consistent with the two 2014 Forms and testimony Claimant provided at the April
2016 hearing. The ALJ found that Claimant “has no problem with personal care . .
. His pertinent hobbies include video games and sports. He took online classes.
He . . . recently resumed taking in-person college classes. He watches television.
He socializes with friends. He uses his smart phone for texting and the internet.”
[R. 25]. While the testimony and questionnaires did not consistently indicate the
same level of ability, ALJ Harrington acknowledged this and explained that
“[o]verall, these self-described activities, including his college level work, show
remarkable improvement” and found that “[h]e functions at a higher level,
physically, psychologically, and even cognitively, than originally alleged in the
earlier disability reports.”
[R. 25].
Thus, the ALJ did not improperly base
Claimant’s RFC only on the opinions of the consulting doctors. Additionally, as
discussed above, ALJ Harrington did not err in giving only minimal weight to Dr.
Detyniecki’s Medical Source Statement in light of the contradictory record
evidence.
Any factual inaccuracies noted in ALJ Harrington’s decision are harmless
error and do not require remand. See Duvergel v. Apfel, 2000 WL 328593, at *11
(S.D.N.Y. Mar. 29, 2000) (citing Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1996)
(harmless error rule applies to review of denial of disability benefits)); Allison v.
Chater, No. 96 C 3007, 1997 WL 211216, at *12 (N.D. Ill. Apr. 21, 1997) (“Since it has
been determined . . . that [Claimant] can still perform work activities, the ALJ’s
misunderstanding of the evidence resulted in harmless error which does not
20
warrant reversal.”). While ALJ Harrington incorrectly noted that Claimant used
social media, she correctly stated that Claimant used his computer for online
coursework and a smartphone to communicate with friends and search the
internet. See [R. 25-26]. Accidental inclusion of social media use does not change
the fact that Claimant acknowledged his ability to use this technology for daily
activities and the ALJ’s assessment of his functionality because accessing social
media is only one type of use to which a computer and a cellular telephone can be
put.
As for Claimant’s academic record, ALJ Harrington acknowledged that
Claimant had been on academic probation because of his low GPA and that his
course load had to be reduced. [R. 25-26]. But as ALJ Harrington noted, Claimant’s
academic performance turned around in 2014. See [R. 455-463]. While Claimant
completed only one course during the Spring 2014 semester, he received an A in
that course, and he completed four courses the following semester, receiving three
As and one C, yielding a B+ G.P.A. for the semester. [R. 458]. Thus, the ALJ’s
emphasis on Claimant’s improved academic performance was not misplaced. That
many of Claimant’s courses have been online rather than in person and that his
course load amounts to part-time does not diminish the evidentiary importance of
his performance. Additionally, Claimant testified that for the Spring 2016 semester
he was taking two courses in person and his attendance and performance had been
satisfactory. [R. 188-89].
Next, Claimant contends that, given the safety related limitations imposed,
“[i]t logically follows that the unpredictability of Claimant’s seizures would then
21
affect the Claimant’s ability to perform other work functions safely and should not
be limited to using ladders and ropes.” [Dkt. 24-1 at 12]. As Claimant suggests,
the nonexertional RFC limitations included—no climbing ladders or operating
machinery or vehicles—aim to address the safety concerns that come with the
unpredictable nature of Claimant’s seizures. These limitations are based on the
medical opinions of Dr. Detyniecki and Dr. Bancoff and are supported by
substantial evidence. See [R. 270, 937-41]. Claimant’s suggestion that it “logically
follows” that additional limitations would be appropriate is insufficient to overturn
the ALJ’s finding.
Additionally, substantial evidence in the record supports the ALJ’s finding
that Claimant can perform the full range of exertional work. Claimant was twentytwo years old at the time of the ALJ’s decision and is a former athlete. Claimant
has been able to complete college level coursework and continues spend time with
friends. Aside from Claimant’s seizures, which generally occur two to three times
and month and in the morning, and occasional blurred vision resulting from bright
light exposure and headaches, Claimant has no other medically documented health
issues. Claimant’s medical records do not indicate that Claimant’s seizures are
triggered by certain activity or otherwise state that Claimant should not physically
exert himself to any extent. Nor does Dr. Detyniecki’s Medical Source Statement
suggest this.
Moreover, Claimant testified that “pushing [him]self” does not
“cause[] [him] too, too much trouble.” [R. 201]. Testimony from Claimant’s father
suggesting otherwise, which is a lay opinion and not medically supported, does
not negate all of this evidence.
22
It is Claimant’s burden to demonstrate medically determinable impairments
which result in functional limitations. 42 U.S.C. § 423(d)(5)(A); 68 Fed. Reg. 51153,
51154-55 (Aug. 26, 2003); 20 C.F.R. §§ 404.1512(a), 404.1545(a)(3), 416.912(a),
416.945(a)(3) (“In general, you are responsible for providing the evidence we will
use to make a finding about your residual functional capacity.”). Claimant argues
that Dr. Detyniecki’s Medical Source Statement provides such evidence. But the
ALJ discounted Dr. Detyniecki’s Statement in accordance with the SSA regulations
to account for the fact that any extreme limitations are limited to the seizure
episodes themselves and substantial evidence in the record supports the absence
of such limitations otherwise. Accordingly, the Court finds that the ALJ’s RFC
determination is supported by substantial evidence and did not involve legal error
and therefore cannot be overturned.
III.
Finding of Employment in the National Economy
“At Step Five, the Commissioner must determine that significant numbers
of jobs exist in the national economy that the claimant can perform.” McIntyre v.
Colvin, 758 F.3d 146, 151 (2d Cir. 2014); see 20 C.F.R. §§ 404.1520(f), 404.1560(c),
404.1563, 404.1564, 404.1565, 404.1566, 416.920(f). While the claimant has the
general burden of proving his or her disability within the meaning of the Act, at
Step Five, the burden shifts to the Commissioner to show that there is other work
that the claimant can perform. McIntyre, 758 F.3d at 150 (citing Brault v. Soc. Sec.
Admin., 683 F.3d 443, 445 (2d Cir. 2012) (per curiam)).
An ALJ may determine whether there are significant numbers of jobs in the
national economy which the claimant can perform “by applying the Medical
23
Vocational Guidelines or by adducing testimony of a vocational expert.” McIntyre,
758 F.3d at 151. “An ALJ may rely on a vocational expert’s testimony regarding a
hypothetical as long as there is substantial record evidence to support the
assumptions upon which the vocational expert based his opinion . . . and
accurately reflect the limitations and capabilities of the claimant involved.” Id.
(internal citations, quotations, and brackets omitted) (quoting Dumas v. Schweiker,
712 F.2d 1545, 1553-54 (2d Cir. 1983); Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d
Cir. 1981)).
Claimant argues that the ALJ’s analysis at Step Five was flawed because she
failed to “reconcile the non-exertional limitations assigned by Dr. Detyniecki and
the vocational expert’s testimony that Claimant could not perform substantial
gainful activity based on these non-exertional limitations.” [Dkt. 24-1 at 16-18]. The
Court does not agree.
At the April 2016 hearing, the ALJ asked a vocational expert1 whether an
individual of Claimant’s age and with his education, past work experience, and RFC
can perform work available in the national economy. [R .230]. The vocational
expert testified that someone with these characteristics could work as a
hotel/motel housekeeper (with 394,300 jobs nationally), a price marker (with 26,400
jobs nationally), or a laundry worker (with 42,681 jobs nationally). [R. 231]. Based
1
The ALJ presented the following hypothetical: “If you can, please assume an
individual of the claimant’s age, education, and past work experience. Further
assume such individual has the capacity for the full range of exertional work; the
avoidance of all exposure to climbing ladders, ropes, and scaffolding, unprotected
heights, dangerous moving machinery, and operating motor vehicles. Can such
an individual perform other work?”
24
on this testimony, the ALJ concluded that Claimant is capable of adjusting to work
within his safety limitations that exists in significant numbers in the national
economy. [R. 28].
The hypothetical presented to the vocational expert accurately represented
Claimant’s characteristics and RFC, as found by the ALJ. The Court has already
affirmed that the ALJ’s RFC finding is supported by substantial evidence and is not
premised on legal error. As such, the analysis leading to the ALJ’s conclusion is
sound.
As Claimant points out, the ALJ presented additional limitations to the
vocational expert at the hearing. See [R. 231-37]. These additional limitations were
based on the checklist assessment in Dr. Detyniecki’s Medical Source Statement.
The ALJ subsequently concluded that it was appropriate to discount Dr.
Detyniecki’s opinion because the extreme limitations indicated are confined to the
discrete seizure episodes and further limitations are not supported by the
longitudinal medical records.
It was proper for the ALJ not to rely on the
hypotheticals which included the limitations she ultimately rejected.
Priel v.
Astrue, 453 F. App’x 84, 87-88 (2d Cir. 2011) (“[T]he ALJ properly declined to
include in his hypothetical question symptoms and limitations that he had
reasonably rejected.”). Accordingly, the Court holds that ALJ Harrington did not
err in concluding that Claimant was capable of performing work available in
significant numbers in the national economy.
25
Conclusion
For the aforementioned reasons, the Court DENIES Claimant’s Motion to
Reverse the Decision of the Commissioner, [Dkt. 24], and GRANTS the
Commissioner’s Motion to Affirm, [Dkt. 25]. The Clerk is directed to close this
case.
IT IS SO ORDERED
__________/s/____________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut this 27th day of March 2019.
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