Paduani v. Colvin
ORDER: The Court held oral argument on August 3, 2017. Christopher Bowes appeared on behalf of Plaintiff; Arthur Swerdloff appeared on behalf of Defendant. For the reasons stated on the record, the Court denied Plaintiff's motion for judgment on the pleadings 20 ; and granted Defendant's motion for judgment on the pleadings 22 . (See attached order for details). The Clerk of Court is respectfully requested to enter judgment accordingly. (Court Reporter Holly Driscoll.) Ordered by Judge LaShann DeArcy Hall on 9/29/2017. (Figueroa, Tiffani)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
-againstCAROLYN W. COLVIN
as Commissioner of Social Security,
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Angela Paduani appeals, pursuant to 42 U.S.C. § 405(g), the final decision of
Defendant Carolyn W. Colvin, the Acting Commissioner of Social Security (the “Defendant”)
denying her Social Security Disability (“SSD”) benefits under Title II of the Social Security Act
(“SSA”). On May 1, 2017, Plaintiff moved for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c), requesting that the Court reverse Defendant’s decision and find
Plaintiff disabled and entitled to disability benefits. That same day, Defendant cross-moved for
judgment on the pleadings, requesting that the Court affirm the Defendant’s final decision
finding that Plaintiff was not disabled from November 17, 1986, her alleged onset date, through
December 31, 1992, Plaintiff’s date last insured.
Plaintiff filed her application for SSD benefits on December 29, 1994. (Tr. 81-84.) 1
Plaintiff’s application has been denied multiple times despite several hearings, requests for
review by the Appeals Council, and appeals to the United States District Court for the Eastern
District of New York over the past thirty years. (See generally Tr.) After the last remand from
Citations to “Tr.” refer to the certified copy of the administrative record of proceedings filed by the Commissioner
as part of her answer.
this Court, the administrative law judge (“ALJ”) found the following: (1) Plaintiff was insured
under the SSA through December 31, 1992; (2) Plaintiff had not engaged in substantial gainful
activity during the period from November 17, 1986 to December 31, 1992; (3) Plaintiff’s right
knee impairment status post-surgery, major depressive disorder, lumbar degenerative disc
disease, personality disorder, and obesity qualified as “severe impairments”; (4) Plaintiff’s
impairments and/or combination of impairments did not meet or medically equal the severity of a
listed impairment; and (5) Plaintiff had the residual functional capacity (“RFC”) to perform
sedentary work, except she was limited to occasional climbing, balancing, stooping, crouching
and crawling and could perform a job with no close interpersonal contact with the general public.
For the reasons stated on the record at the August 3, 2017 oral argument and set forth
below, the Court denied Plaintiff’s motion for judgment on the pleadings, and granted
Defendant’s motion for judgment on the pleadings affirming Defendant’s findings that Plaintiff
was not disabled.
Exclusion of Plaintiff’s Depressive Disorder
Plaintiff’s primary argument on appeal was that the ALJ erred in assessing her mental
RFC. (Pl.’s Mem. Supp. of Mot. J. Pleadings, ECF No. 21, 17-22.) Specifically, Plaintiff
maintained that the ALJ’s reliance on the opinion of one consulting expert to the exclusion of
another was in error. (Id. at 17-22.) The Court disagreed.
The record in this case contains no opinion from a treating physician regarding Plaintiff’s
alleged mental impairments. Instead, the ALJ had before him only the opinions of two
consultative medical experts, Dr. Sharon Grand and Dr. Alfred Jonas. “When there is no treating
physician’s opinion, the Commissioner must still consider whether the consultative opinions are
supported by and consistent with the other evidence in the record.” Daniels v. Colvin, No. 14CV-02354, 2015 WL 1000112, at *17 (S.D.N.Y. Mar. 5, 2015). That is exactly what occurred
Dr. Jonas did not examine Plaintiff, but he conducted a review of Plaintiff’s medical
record. The record demonstrated that Plaintiff was diagnosed with dysthymia and personality
disorder not otherwise specified (“NOS”). (Tr. 451-52, 465.) The record further revealed that
Plaintiff took care of her niece and mother, could drive for a half hour to an hour without
difficulty, climbed the stairs to her house, washed dishes, watered plants, and did laundry, spent
three to five hours per day reading, watched television for about three hours, attended church
regularly, and volunteered from 6:00 a.m. to 6:00 p.m. or 9:00 p.m. (Tr. 41-43, 49, 55-56, 67-68,
72-73.) Ultimately, Dr. Jonas found that Plaintiff’s only limitation with regard to her mental
impairment was a moderate restriction in her ability to work with the public due to a personality
disorder. (Tr. 1003-11, 1112.) The ALJ assigned “some weight” to Dr. Jonas’ opinion that
Plaintiff’s only real limitation was social, that she “could function when she wanted to,” and that
she was “limited in her ability to deal with the general public and perform teamwork with coworkers.” (Tr. 1112.)
Unlike Dr. Jonas, Dr. Grand found that Plaintiff had marked limitations caused by a
diagnosis of major depressive disorder. (Tr. 812-14, 1111-12.) Specifically, Dr. Grand found
that Plaintiff had “severe major depressive disorder” from the alleged onset date to July 1991,
and “had anhedonia, appetite and sleep disturbance, decreased energy, difficulty concentrating,
marked restrictions in activities of daily living, moderate difficulties in concentration and no
periods of decompensation,” as well as “trouble working with others.” (Tr. 814-19, 1111-12.)
The ALJ assigned “little weight” to Dr. Grand’s opinion because the record was devoid of
evidence to support her conclusions about Plaintiff’s limitations. (Tr. 1111-12.) Moreover, the
ALJ found that Dr. Grand incorrectly noted that Plaintiff terminated treatment for her mental
impairments in July 1991, when she actually terminated treatment on December 2, 1990.
The ALJ was entitled to rely on Dr. Jonas’ opinion. This is particularly so given the
absence of a functional opinion regarding Plaintiff’s mental abilities from any treating physician,
Dr. Jonas’ specialization in psychiatry, and the consistency of his opinion with the record.
Vargas v. Comm’r of Soc. Sec., No. 16-CV-0484, 2017 WL 2838165, at *6 (N.D.N.Y. June 29,
2017) (finding ALJ was entitled to rely on consulting physician’s opinion “given the absence of
a functional opinion regarding Plaintiff's mental abilities from any treating physician or other
Conversely, Dr. Grand’s opinion is not supported by substantial evidence in the record.
There is only one document, an intake form from St. John’s University Psychological Services
Center from July 1989, that lists “major depression” as the diagnostic impression. (Tr. 488.).
However, other documents during the same period indicate that Plaintiff was actually diagnosed
with dysthymia and personality disorder NOS. (Tr. 451-52, 465.) In other words, Dr. Grand’s
conclusion that Plaintiff had a major depressive disorder is inconsistent with substantial evidence
in the record. Dr. Grand’s opinion that Plaintiff had marked limitations in areas such as activities
of daily living and moderate difficulties in concentration is similarly unsupported by the record
as evidenced by the activities in which Plaintiff engaged as discussed above. (Tr. 41-43, 49, 5556, 67-68, 72-73.)
It is well settled that the court must defer to the Commissioner’s conclusions regarding
the weight of conflicting evidence. See Cage v. Comm’r of Social Sec., 692 F.3d 118, 122 (2d
Cir. 2012) (citing Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)). If the
Commissioner’s findings are supported by substantial evidence, which is “more than a mere
scintilla,” then they are conclusive and must be affirmed. Ortiz v. Comm’r of Soc. Sec., No. 15CV-3966, 2016 WL 3264162, at *3 (E.D.N.Y. June 14, 2016) (citing 42 U.S.C. § 405(g)). This
is so, even if substantial evidence could support a contrary conclusion or where the court’s
independent analysis might differ from the Commissioner’s. See Rosado v. Sullivan, 805 F.
Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982)). Against this standard, the Court affirms the ALJ’s findings regarding Plaintiff’s mental
impairment and his assessment of Dr. Jonas’ and Dr. Grand’s opinions.
Reliability of Vocational Expert Testimony
Plaintiff also argued that the ALJ erred in relying on the unreliable testimony of
vocational expert, Pat Green. (Pl.’s Mem. 22-24.) Ms. Green testified that given the set of
functional limitations presented, Plaintiff could work as an addresser, a sorter, and a stuffer.
Plaintiff argued that Ms. Green’s testimony was unreliable because she failed to perform any
independent analysis of job data for the positions she cited, but instead relied on a computer
program. (Pl.’s Mem. 23-24.) Plaintiff also argued that Ms. Green’s testimony was unreliable
because a study commissioned by the SSA concluded that there were drastically fewer results for
the job of an addresser than Ms. Green noted. (Pl.’s Mem. 24.) Plaintiff’s arguments are
“[A] vocational expert is not required to identify with specificity the figures or sources
supporting h[er] conclusion, at least where [s]he identified the sources generally.” McIntyre v.
Colvin, 758 F.3d 146, 152 (2d Cir. 2014); see also Galiotti v. Astrue, 266 F. App’x 66, 68 (2d
Cir. 2008) (rejecting plaintiff’s argument that the ALJ erred in “finding the vocational expert
credible because he was unable to specify how he arrived at the number of jobs available in the
economy for [certain] positions” and stating that “[t]he vocational expert identified the sources
he generally consulted to determine such figures” and plaintiff “[did] not point to any
applicable regulation or decision of this Court requiring a vocational expert to identify with
greater specificity the source of his figures or to provide supporting documentation”); Frazier v.
Comm’r of Soc. Sec., No. 16 CIV 4320, 2017 WL 1422465, at *19 (S.D.N.Y. Apr. 20, 2017)
(finding the ALJ had “an adequate basis for relying on [the vocational expert’s testimony]”
regarding the numbers of jobs existing in the national economy, where the vocational expert
testified that “his job number estimates were provided by a private company called SkillTRAN,
which derived its numbers from the 10-year Census”). Plaintiff cited to no authority, and the
Court is aware of none, that provides that only one method of analysis of job data is preferred
compared to others.
As to Plaintiff’s argument regarding the number of jobs in the national economy as an
addresser, the Court acknowledges Plaintiff’s concern and is indeed sympathetic to this point.
The Court recognizes that the position of addresser does not exist in the economy at the level it
once did. However, even excluding the job of an addresser, the vocational expert found a
number of other positions existed in significant numbers in the national economy that Plaintiff
could perform. Bavaro v. Astrue, 413 F. App’x 382, 384 (2d Cir. 2011) (“the Commissioner
need show only one job existing in the national economy that [Plaintiff] can perform” at the fifth
step of the social security benefits analysis). Accordingly, Plaintiff’s arguments regarding the
reliability of Ms. Green’s testimony fail.
For the foregoing reasons and as stated on the record at oral argument, Plaintiff’s motion
for judgment on the pleadings is denied, and the Defendant’s motion is granted. The Clerk of
Court is respectfully requested to enter judgment accordingly and close this case.
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
September 29, 2017
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