Dees v. Commissioner of Social Security

Filing 21

MEMORANDUM AND ORDER: For the reasons set forth in the attached order, Defendant's February 7, 2018 motion 18 for judgment on the pleadings is GRANTED. The ALJ's decision is affirmed. The Clerk of Court is respectfully requested to mail a copy of this Order to pro se litigant, enter judgment, and close this case. Ordered by Judge LaShann DeArcy Hall on 9/7/2018. (Garrett, Ruby)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TANYA DEES,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
17-CV-01316 (LDH)

-againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
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LASHANN DEARCY HALL, United States District Judge:

Plaintiff Tanya Dees, proceeding pro se, appeals the decision of Defendant
Commissioner of Social Security (the “Commissioner”) denying Plaintiff’s application for
benefits under the Social Security Act (the “Act”). Defendant moves pursuant to Federal Rule of
Civil Procedure 12(c) for judgment on the pleadings, requesting that this Court affirm the
Commissioner’s determination that Plaintiff was not disabled and dismiss the instant action.
Plaintiff neither opposes the Commissioner’s motion nor cross-moves. For the reasons stated
below, Defendant’s motion is granted.
BACKGROUND
On March 4, 2013, Plaintiff, a former administrative clerk, filed an application for
disability insurance benefits, alleging disability commencing August 8, 2012, due to status postbilateral knee replacements, cervical disc disease, and a dislocated patella. (Tr. at 544.)1 The
Social Security Administration (the “SSA”) denied Plaintiff’s application on May 21, 2013, and
Plaintiff requested a hearing with an administrative law judge (“ALJ”). (Tr. at 422–31, 434–47,
442–43.) On August 6, 2014 and February 25, 2015, Plaintiff appeared with counsel before ALJ

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Citations to “Tr.” refer to the certified copy of the administrative record of proceedings.

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Hilton Miller. (Tr. 360–62, 371–73.) By order dated April 9, 2015, the ALJ found that Plaintiff
was not disabled and denied her appeal accordingly. (Tr. at 321–37.) On August 22, 2016, the
Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision final. (Tr. at
103–09.) Plaintiff then filed an appeal to this Court on March 6, 2017. (Pl.’s Compl. ¶ 1, ECF
No. 1.)
Because Defendant’s motion is unopposed, the Court may adopt the facts as presented in
Defendant’s moving brief. 2 (Def.’s Mem. Supp. J. Pleadings at 2–18, ECF No. 19.) (setting
forth relevant non-medical and medical evidence); Jackson v. Fed. Exp., 766 F.3d 189, 197 (2d
Cir. 2014) (noting that in the case of an unopposed motion, “there is no need for a district court
to robotically replicate the defendant-movant’s statement of undisputed facts and references to
the record or otherwise serve as an assistant to our law clerks”).
STANDARD OF REVIEW
A motion for judgment on the pleadings is reviewed under the same standard as a motion
to dismiss under Rule 12(b)(6). Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922
(2d Cir. 2010) (“The same standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss
applies to Fed. R. Civ. P. 12(c) motions for judgment on the pleadings.”). Even where a motion
for judgment on the pleadings is unopposed, the court must still review the entire record and
ensure that the moving party is entitled to judgment as a matter of law. See Martell v. Astrue,
No. 09-CV-1701, 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct. 20, 2010) (recognizing a court’s
obligation to review the entire record before deciding an unopposed motion for judgment on the
pleadings in a social security benefits case); McDowell v. Comm’r of Soc. Sec., No. 08-CV-1783,
2010 WL 5026745, at *1 (E.D.N.Y. Dec. 3, 2010) (“Even where such a motion is unopposed, the

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The ALJ’s specific findings of fact and conclusions of law are discussed below where pertinent. See infra at 4–10.

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court may not grant the motion by default.”). Furthermore, when a plaintiff proceeds pro se, the
court will read her submissions liberally and “interpret them to raise the strongest arguments that
they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Under the Act, a disability claimant may seek judicial review of the Commissioner’s
decision to deny her application for benefits. See 42 U.S.C. §§ 405(g), 1383(c)(3); see also
Felder v. Astrue, No. 10-CV-5747, 2012 WL 3993594, at *8 (E.D.N.Y. Sept. 11, 2012). In
conducting such review, the court is tasked only with determining whether the Commissioner’s
decision is based upon correct legal standards and supported by substantial evidence. 42 U.S.C.
§ 405(g); see also Burgess v. Astrue, 537 F.3d 117, 127–28 (2d Cir. 2008) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)).
The substantial evidence standard does not require that the Commissioner’s decision be
supported by a preponderance of the evidence. See Schauer v. Schweiker, 675 F.2d 55, 57 (2d
Cir. 1982) (“[A] factual issue in a benefits proceeding need not be resolved in accordance with
the preponderance of the evidence . . . .”). Instead, the Commissioner’s decision need only be
supported by “more than a mere scintilla” of evidence and by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Pollard v. Halter, 377 F.3d
183, 188 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In deciding
whether substantial evidence supports the Commissioner’s findings, the court must examine the
entire record and consider all evidence that could either support or contradict the
Commissioner’s determination. See Jones ex. rel. T.J. v. Astrue, No. 07-CV-4886, 2010 WL
1049283, at *4 (E.D.N.Y. Mar. 17, 2010) (citing Snell v. Apfel, 171 F.3d 128, 132 (2d Cir.
1999)), aff’d sub nom. Jones ex rel. Jones v. Comm’r of Soc. Sec., 432 F. App’x 23 (2d Cir.
2011). Still, the court must defer to the Commissioner’s conclusions regarding the weight of

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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, then they are conclusive and must be affirmed.
Ortiz v. Comm’r of Soc. Sec., No. 15-CV-3966, 2016 WL 3264162, at *3 (E.D.N.Y. June 14,
2016) (citing 42 U.S.C. § 405(g)). Indeed, if supported by substantial evidence, the
Commissioner’s findings must be sustained, 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)); Anderson v. Sullivan, 725 F. Supp.
704, 706 (W.D.N.Y. 1989); Spena v. Heckler, 587 F. Supp. 1279, 1282 (S.D.N.Y. 1984)).
DISCUSSION
I.

The ALJ Correctly Found That Plaintiff Was Not Disabled

In making a disability determination, an ALJ must follow the sequential five-step process
set out in the Code of Federal Regulations for Social Security (“the Regulations”). See 20 C.F.R.
§§ 404.1520(a)–(h). According to the Regulations, the ALJ must first determine whether the
claimant is engaged in substantial gainful activity. Id. § 404.1520(b). If not, the ALJ must
proceed to the second step to determine whether the claimant has a severe medically
determinable impairment or combination of impairments. Id. § 404.1520(c). An impairment is
severe if it significantly limits a claimant’s abilities to perform “basic work activities.” Id. If the
claimant has a medically determinable severe impairment, the ALJ will proceed to step three to
determine whether any identified severe impairments meet or medically equal those identified in
Appendix 1 to the Act. Id. § 404.1520(d). Such impairments are per se disabling if a claimant
meets the duration requirement. Id. If a claimant’s impairments are not per se disabling, the

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ALJ proceeds to step four to assess the claimant’s ability to work in light of her limitations,
otherwise known as her residual functional capacity (“RFC”). Id. §§ 404.1520(a)(4)(iv),
404.1520(e), 404.1545(a)(1). At step five, the ALJ must establish whether the claimant’s RFC
will allow her to perform past relevant work. Id. § 404.1520(f). If the claimant’s RFC precludes
her from performing past relevant work, the ALJ bears the burden of proving that, given her age,
education, work experience, and RFC, the claimant can perform other work that exists in
significant numbers in the national economy. Id. § 404.1520(g)(1). If such work exists, then the
claimant is not disabled. Id.
Defendant maintains that the ALJ correctly applied this sequential five-step process in
finding that Plaintiff was not disabled. (Def.’s Mem. Supp. J. Pleadings at 22–23.) For the
reasons set out below, the Court agrees.
A. Steps One Through Three
Steps one through three are easily satisfied in this case. The record, which included
Plaintiff’s Certified Earnings Records, supports the ALJ’s finding at step one that Plaintiff had
not worked since the alleged onset date of August 8, 2012. (Tr. at 326, 546–63.) Similarly,
Plaintiff’s medical reports are consistent with the ALJ’s finding at step two that Plaintiff’s
bilateral knee disorder with total replacement and internal derangement, advanced arthritis of the
hip, low back disorder, status post-surgery for left shoulder rotator cuff internal derangement,
and cervical spine discogenic disease were severe impairments. (Tr. at 326, 631–830.) Indeed,
each of these impairments lasted for a continuous period of more than twelve months and
significantly affected Plaintiff’s ability to perform basic work activities. (Id.) At step three, the
ALJ properly found that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,

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Subpart P, Appendix 1. (Tr. at 326–27.) In making this determination, consistent with 20 C.F.R.
§ 404.1527(e)(2)(iii),3 the ALJ adopted the opinion of medical expert Dr. John Axline. (Id.) Dr.
Axline reviewed Plaintiff’s entire medical record and determined that Plaintiff’s impairments did
not rise to the level of severity that would warrant a per se finding of disability. (Tr. at 326–27,
399.) Dr. Axline’s finding is supported by the record. (Tr. at 399–404; 803–30.) As such, the
ALJ’s determination is consistent with the medical evidence in the record.
B. Step Four
At step four, the ALJ determined that Plaintiff has the RFC to fully perform “sedentary
exertion.”4 (Tr. at 331–32.) Though not expressly stated, it is apparent from the ALJ’s opinion
that he gave significant weight to the opinions of Plaintiff’s treating physicians.5 (Tr. at 328–31.)
Specifically, the ALJ considered Dr. Edwin Chang’s finding that Plaintiff’s gait was “very
steady” (Tr. at 643.), Dr. Richard Pinto’s report that Plaintiff’s MRIs were normal (Tr. at 667–
68.), and Dr. Lisa Vasanth’s determination that Plaintiff’s neck, shoulder, and lower back pain
had improved with physical therapy (Tr. at 751–53.). This evidence, among other evidence,
substantiates the ALJ’s determination that Plaintiff has the RFC to fully perform “sedentary
exertion.”
The findings of consultative examiner Dr. Mahendra Misra and medical expert Dr.
Axline further substantiate the ALJ’s finding. Specifically, Dr. Misra’s opinion supported the

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The SSA regulations, effective at the time of the ALJ’s determination, permitted the ALJ to consider a medical
expert’s opinion in determining whether Plaintiff’s impairments equaled any of the SSA’s listed impairments. 20
C.F.R. § 404.1527(e)(2)(iii).
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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
5
“Treating physicians” are entitled to a degree of deference, as the ALJ is “required either to give . . . controlling
weight [to such opinions] or to provide good reasons for discounting them.” See Zabala v. Astrue, 595 F.3d 402,
409 (2d Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(2)).

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ALJ’s determination that Plaintiff’s impairments preclude her from performing prolonged
exertional activities.6 (Tr. at 331.) Furthermore, Dr. Axline found that Plaintiff is capable of
performing light exertion,7 and that Plaintiff’s use of her cane is not medically necessary for
ambulation. (Tr. at 399–401.) Accordingly, Dr. Axline’s assessment supported the ALJ’s
determination that Plaintiff is capable of sedentary exertion despite her impairments.
Lastly, in assessing Plaintiff’s RFC, the ALJ properly conducted a two-step credibility
analysis, engaging in a thorough review of the record to analyze Plaintiff’s testimony concerning
her impairments and limitations. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (“[T]he
ALJ must decide whether the claimant suffers from a medically determinable impairment that
could reasonably be expected to produce the symptoms alleged . . . . If the claimant does suffer
from such an impairment . . . the ALJ must consider the extent to which the claimant’s symptoms
can reasonably be accepted as consistent with the objective medical evidence and other evidence
of record.”) (internal citations omitted)). Although the ALJ determined that Plaintiff’s
impairments could reasonably be expected to produce Plaintiff’s alleged symptoms, the ALJ
found Plaintiff’s statements regarding the intensity, persistence, and limiting effects of these
symptoms not entirely credible. (Tr. at 327–31.) In particular, Plaintiff testified that she was
limited to a restricted range of sedentary exertion and experienced substantial ongoing pain. (Tr.

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The ALJ rejected Dr. Misra’s opinion indicating that Plaintiff would need to take breaks every ten minutes from
sitting and standing to relieve pain throughout the workday as inconsistent with the medical record. (Tr. at 330–
31.); see 20 C.F.R. § 404.1527(c)(3)(“The more a medical source presents relevant evidence to support a medical
opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The
better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion.”).
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.” 20 C.F.R. § 404.1567(b).

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at 389–98.) However, Plaintiff’s treating physicians reported that medications and physical
therapy were effective (Tr. at 643, 647, 780–82, 820–21.), and diagnostic scans and tests
consistently reported Plaintiff’s condition as normal, (Tr. at 659, 663, 667–68, 673, 695, 706.).
The ALJ explained that these scans, tests, and medical reports, along with the physical
therapist’s determination, supported a finding that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were not entirely credible. (Tr. at 330.); see
Taub v. Astrue, No. 10-CV-2526, 2011 WL 6951228, at *8 (E.D.N.Y. Dec. 30, 2011) (finding
that “[i]f the ALJ decides to reject subjective testimony concerning pain and other symptoms, he
must do so explicitly and with sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the ALJ’s disbelief and whether his determination is supported by
substantial evidence”) (quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987));
Frias v. Comm’r of Soc. Sec., 225 F. Supp. 3d 125, 135–36 (E.D.N.Y. 2016) (“[A]n
administrative law judge may ‘properly reject claims of severe, disabling pain after weighing the
objective medical evidence in the record, the claimant’s demeanor, and other indicia of
credibility.’”)(quoting Echevarria v. Apfel, 46 F. Supp. 2d 282, 292 (S.D.N.Y. 1999)).
Ultimately the ALJ’s determination that she possessed the RFC to perform sedentary
work was amply supported by substantial evidence in the record, and therefore, there is no basis
for overturning it.
C. Step Five
At step five, the ALJ determined that Plaintiff is unable to perform any past relevant
work, but Plaintiff can perform other work that exists in significant numbers in the national
economy. (Tr. at 331–33.) Specifically, the vocational expert identified four jobs that an
individual of Plaintiff’s age, education, work experience, and RFC could perform: personnel

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clerk (32,000 jobs nationally), credit clerk (32,000 jobs nationally), map clerk (17,000 jobs
nationally), and sorter (35,000 jobs nationally).8 (Tr. at 332–33.) Accordingly, the ALJ
correctly concluded that Plaintiff was not disabled.
II.

Evidence Submitted to the Appeals Council Was Not New and Material

Subsequent to the ALJ’s decision finding Plaintiff not disabled, the Appeals Council
denied Plaintiff’s request for review, which included her submission of additional medical
evidence. (Tr. at 103–09.) Defendant contends that the Appeals Council properly concluded
that the evidence submitted was neither new nor material and therefore does not provide a basis
to alter the ALJ’s decision. (Def.’s Mem. Supp. J. Pleadings at 31.) The Court agrees.
The Regulations permit a claimant to submit new evidence to the Appeals Council when
requesting a review of an ALJ’s determination. Tavarez v. Astrue, No. 11-CV-2784, 2012 WL
2860797, at *4 (E.D.N.Y. July 11, 2012) (quoting Perez v. Chater, 77 F.3d 41, 44 (2d Cir.
1996)). Upon receipt of the new evidence, the Appeals Council is tasked with determining
whether the evidence is “material,” and thereby warrants consideration. Id. Evidence is material
when: (1) it is “relevant to the claimant’s condition during the time period for which benefits
were denied”; (2) it is “probative”; and (3) there is “a reasonable possibility that the new
evidence would have influenced the Commissioner to decide the claimant’s application
differently.” Id. (quoting Pollard, 377 F.3d at 193).

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The vocational expert also testified that an individual who possessed Plaintiff’s characteristics, but who was
additionally limited insofar as she would be off task fifteen percent of the time and absent at least two days monthly
due to pain and fatigue would not be able to find work. (Tr. at 409–10.) Although, the ALJ did not explicitly
discuss this portion of the vocational expert’s testimony, it is apparent that he rejected it as inappropriate as it was
premised on limitations Plaintiff did not possess. (Tr. at 326–33.); see Mongeur v. Heckler, 722 F.2d 1033, 1040
(2d Cir. 1983) (“When, as here, the evidence of record permits us to glean the rationale of an ALJ’s decision, we do
not require that he have mentioned every item of testimony presented to him or have explained why he considered
particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.”). Therefore, the fact that
the ALJ’s decision did not expressly mention this portion of the vocational expert’s testimony does not undermine
the soundness of his determination.

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As a threshold matter, the evidence submitted by Plaintiff that post-dated the relevant
time period and is not reasonably related to the time period adjudicated by the ALJ, is not ripe
for consideration. (Tr. at 104, 110–300.); see e.g., Byrd v. Colvin, No. 15-CV-403, 2016 WL
5678551, at *10 (E.D.N.Y. Sept. 28, 2016) (affirming Appeals Council finding that new
evidence “did not provide a basis for changing the ALJ’s decision because they were ‘about a
later time’ and therefore did ‘not affect the decision about whether [Byrd was] disabled
beginning on or before June 14, 2013’”) (alterations original). With respect to the evidence
dated on or before the ALJ’s decision, it is not new and material. That is, the evidence is either
duplicative of evidence that was before the ALJ or pertains to impairments that were adequately
addressed in the record before the ALJ. As such, the evidence provided no basis upon which the
ALJ’s determination should be altered.
Accordingly, the Appeals Council properly declined to review the new evidence.
CONCLUSION
For the aforementioned reasons, Defendant’s motion for judgment on the pleadings is
granted. The ALJ’s decision is affirmed. The Clerk of Court is respectfully requested to enter
judgment and close this case.

Dated: Brooklyn, New York
September 7, 2018

SO ORDERED:
/s/LDH
LASHANN DEARCY HALL
United States District Judge

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