De Gonzalez v. Colvin
Filing
28
MEMORANDUM & ORDER: For the foregoing reasons (PLEASE SEE ORDER FOR FURTHER DETAILS), the Court DENIES plaintiff's motion for judgment on the pleadings and GRANTS Commissioner's motion for judgment on the pleadings. The Clerk of the court is directed to enter judgment in favor of defendant and close the case. So Ordered by Judge Joan M. Azrack on 12/28/2018. (Ortiz, Grisel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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VIRGILIA PERALTA DE GONZALEZ,
Plaintiff,
-against-
FILED
CLERK
12/28/2018 3:24 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
For Online Publication Only
MEMORANDUM & ORDER
16-CV-06723 (JMA)
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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APPEARANCES
Sharmine Persaud
Law Office of Sharmine Persaud
675 Broadway
Massapequa, NY 11758
631-777-5440
Attorney for Plaintiff
Sean P. Greene
United States Attorney's Office, EDNY
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
718-254-6484
Attorney for Defendant
AZRACK, United States District Judge:
Plaintiff Virgilia Peralta De Gonzalez (“plaintiff” or “De Gonzalez”) seeks review of the
final determination by the Commissioner of Social Security, reached after a hearing before an
administrative law judge, denying plaintiff disability insurance benefits under the Social Security
Act. The case is before the Court on the parties’ cross-motions for judgment on the pleadings.
Because the administrative law judge’s decision was supported by substantial evidence and applied
the proper legal standards, plaintiff’s motion for judgment on the pleadings is DENIED, and
defendant’s cross-motion is GRANTED.
I. BACKGROUND
A. Procedural History
On July 23, 2015, plaintiff filed for disability insurance benefits with the Social Security
Administration (“SSA”), alleging disability as of August 15, 2014 due to systemic lupus
erythematosus (“SLE”); postinflammatory pulmonary fibrosis; rheumatoid arthritis in the hands,
shoulders, knees, hips and back; gastroesophageal reflux disease (“GERD”); hypertension; and
calcium deficiency. (See Tr. 124–125, 182. 1) Following denial of her claim, plaintiff requested a
hearing and appeared with her attorney for an administrative hearing before Administrative Law
Judge Alan B. Berkowitz (the “ALJ”) on May 2, 2016. (Tr. 514–47.)
In a decision dated July 5, 2016, the ALJ denied plaintiff’s claim, finding that although
plaintiff suffers from severe, non-listing level impairments of lupus, rheumatoid arthritis, and
pulmonary fibrosis, she was not disabled because she still retained the residual functional capacity
(“RFC”) to perform sedentary work that would allow for “a repositioning break of 2 minutes after
30 minutes of sitting”; occasional postural activity; no more than occasional exposure to
temperature extremes, humidity, and concentrated fumes; and no work in proximity to heights or
dangerous machinery. (Tr. 23–32.) The ALJ determined that these limitations would preclude
performance of plaintiff’s previous employment, but there are jobs that exist in significant numbers
in the national economy that she can perform. (Tr. 30–31.)
Plaintiff filed a timely request for review before the Appeals Council. (Tr. 14–16.) The
ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied
plaintiff’s request for review on November 9, 2016. (Tr. 1–5.) This appeal followed.
Citations to “Tr.” refer to pages of the certified administrative record filed by the Commissioner at Docket Numbers
24 and 25.
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B. Plaintiff’s Background and Testimony
Plaintiff was born in the Dominican Republic on December 24, 1966 and was 48 years old
when she filed the instant application for benefits. (Tr. 124, 520.) She completed high school in
the Dominican Republic and had past work experience as a sewing machine operator and a home
health aide. (Tr. 176, 195–98, 520, 523–25.) She left her job as a home health aide in August
2014 and has not worked since. (Tr. 175, 182, 195–98, 524–25.)
As part of her application for disability insurance benefits, plaintiff filled out two function
reports, dated October 26, 2014 and August 11, 2015. (Tr. 153–60, 247–57.) Therein plaintiff
described her daily activities like cooking, cleaning, shopping, watching television, reading, and
sewing; and functional limitations such as becoming tired when walking up one flight of stairs or
walking a lot, and reaching due to pain in her shoulders. (Id.) She further indicated that when she
is in pain, she finds it difficult to dress herself, shower, bathe, dry her hair, sit and stand from the
toilet, sew, or hold newspapers or magazines. (Tr. 154–55, 157, 248.)
At the May 2, 2016 administrative hearing, Plaintiff testified through a Spanish interpreter
but indicated that she understood and could read some English, and that she spoke English at one
of her past jobs. (Tr. 519–20, 533–34.) She testified that she left her last job at Utopia Home Care
because “[she] wasn’t feeling well, [she] was tired, in pain and [she] had pain in [her] hands.” (Tr.
524.) Prior to her work as a home health aide, plaintiff worked in a factory sewing clothes, but
she testified she could no longer perform that job because she had to sit for eight to ten hours and
pull fabric through a machine. (Tr. 525–26, 538–39.)
Plaintiff testified that she was diagnosed with lupus in 2003 and that she has rheumatoid
arthritis in all her joints. (Tr. 526–27.) She sees Dr. Andrew Lin (an internist) and Dr. Alpa Desai
(a pulmonologist), as well as a gastroenterologist and a rheumatologist. (Tr. 527–28.) Plaintiff
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takes the following medications: Aleve for pain; Amlodipine for hypertension; Azathioprine
(Imuran) to prevent liver damage from lupus medications; as well as calcium, Nexium, and
Plaquenil (hydroxychloroquine) for rheumatoid arthritis and lupus. (Tr. 185–89, 256–57, 526–
27.)
Plaintiff further testified about her physical conditions. She stated that she could neither
sit nor stand for more than two hours at a time. (Tr. 531.) She has difficulty walking on stairs
because her “knees hurt and [she] get[s] tired.” (Tr. 521.) She feels pain in her hands, elbows,
arms, legs, and hands, which she described as a “constant,” “stabbing pain” that she feels every
day. (Tr. 526–27, 530.) Due to Raynaud’s syndrome, plaintiff testified that she cannot be in the
cold or touch cold things without gloves, and in the hot weather her hands turn colors, swell, and
the tips of her fingers are painful. (Tr. 536–37.) She also testified that she has difficulty gripping
with her hands and reaching overhead. (Tr. 531.)
Finally, regarding her daily activities, plaintiff testified that she does a little housework,
including “cook[ing], wash[ing] the dishes just little by little, sweep[ing] the floor, [and] mak[ing]
[her] bed.” (Tr. 531–32.) She mostly shops for food alone but needs to get a cart and sometimes
gets dizzy. (Tr. 532.) She is able to use her cellphone, knows how to use a computer “a little,”
and can access the internet from her cellphone. (Tr. 534–35.)
C. Medical Evidence
1. Dr. Andrew Lin – Internal Medicine
Dr. Andrew Lin is the plaintiff’s treating physician at Hudson River Health Care (“HRH”)
and the Court reviewed his records, together with those of associated physicians and nurse
practitioners at HRH. Plaintiff’s active problems are listed as GERD, body aches, chills (without
fever), otisis media, cough, rhinitis, Raynaud’s syndrome, Lupus, and essential (primary)
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hypertension. (Tr. 456.) For dates during the relevant period that plaintiff saw Dr. Lin, he found
that she was in “no acute distress,” was “well appearing,” that she had regular lung capacity, and
that she was “alert and oriented.” (Tr. 355, 367, 460.) However, some of Dr. Lin’s prior treatment
notes, from what appears to be 2013, are handwritten and illegible. (Tr. 502–05.)
Plaintiff also had various appointments at HRH between November 2014 and February
2016 for routine gynecological exams, individual maladies like sore throats, breast cancer
screenings, and prescription refills. (Tr. 269–71, 289–99, 300–05, 353–64; 465–67, 480–83.)
On April 21, 2016, Dr. Lin examined plaintiff and she complained of chronic joint pain
from lupus, with current pain of 4 on a scale of 0-10. (Tr. 459–61.) He found tenderness over the
distal interphalangeal (DIP) and PIP joint, but systems examinations were otherwise normal. (Tr.
460.) On that same date, Dr. Lin filled out a “Lupus (SLE) Medical Source Statement,” (“MSS”)
indicating that plaintiff’s condition met the American College of Rheumatology criteria for SLE.
(Tr. 451–55.) He gave her a “fair to poor prognosis” and opined that she was moderately limited
in her activities of daily living, social functioning, and ability to complete tasks in a timely manner
due to deficiencies in concentration, persistence, or pace. (Tr. 452.) Dr. Lin then estimated various
functional limitations plaintiff would have if placed in a competitive work situation, including
certain limitations on sitting and standing, lifting and climbing, as well as the need to take breaks
and be off-task during the work day. (Tr. 453–55.) Dr. Lin did not opine on any limitations in
plaintiff using her hands, fingers, or arms. (Tr. 454.)
2. Dr. Alpha Desai – Pulmonologist
There is one treatment note from plaintiff’s pulmonologist, Dr. Desai, dated July 15, 2014.
(Tr. 346–49.) Therein, Dr. Desai summarized plaintiff’s medical history of Lupus and Raynaud’s
disease and indicated that she was “doing well from an exercise perspective” and “maintained on
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Azathiaprine/Plaquenil for joint symptoms.” (Tr. 346.) Dr. Desai took note of her present
complaints of dizziness and a headache wrapping around her head, which started recently. (Id.)
Her breathing was “fine” and she reported that plaintiff “continues to have occasional left sided
chest pain when ‘doing lots of things’ (eg. busy day at work and running the household).” (Id.)
Dr. Desai also reviewed various prior tests and continued plaintiff’s medications of
Plaquenil and Azthriaprine, advising that she follow up with “her PCP if dizziness and headache
persist.” (Tr. 349.) She ordered another pulmonary function study, which produced normal results
with a mildly decreased diffusion capacity. (Tr. 350–52.)
Plaintiff returned to Dr. Desai on July 28, 2015 to have her fill out an RFC Questionnaire.
(Tr. 445–48.) In summary, Dr. Desai listed plaintiff’s only symptom as “chest pain on occasion
with heavy exertion” and indicated that her prognosis was guarded, as there had been a slight
decline in diffusion capacity over the year. (Tr. 445–46.) She opined that plaintiff could tolerate
moderate work stress, walk several city blocks without rest, and stand or walk about four to six
hours in an eight-hour workday. (Tr. 446–47.) Dr. Desai assessed no limitation in plaintiff’s
ability to sit, lift, or carry, nor any restrictions for working around dust, high humidity, or extreme
heat or cold. (Tr. 447–48.) However, Dr. Desai opined that plaintiff likely would be absent from
work about two days per month, and sometimes would need to take unscheduled breaks during the
workday without specifying the duration or frequency of the breaks. As an explanation, Dr. Desai
wrote that plaintiff “gets chest pain with trying to do multiple tasks sequentially.” (Id.)
3. Other Records
The administrative record includes medical records from other doctors and facilities,
including an emergency room visit on October 8, 2014. (Tr. 372–87.) During this visit plaintiff
complained about chest pain and reported occasional lightheadedness.
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(Id.)
The hospital
performed various tests and diagnosed plaintiff with nonspecific chest pain, releasing her the same
day. (Id.) In addition, there are some rheumatology records from 2013 and 2014 that identify
plaintiff’s SLE, Vitamin D deficiency, and Raynaud’s syndrome. (Tr. 331–39.) At both visits,
plaintiff’s rheumatologist determined that her SLE was “stable with minimal disease activity.” 2
(Tr. 332, 335.) There is also an office record from an ophthalmologist, Dr. Faye Knoll, who
provided plaintiff with a new glasses prescription in January 2016. (Tr. 512–13.) Finally, plaintiff
underwent an upper endoscopy and colonoscopy, performed by Dr. Ellen Li on April 4, 2016,
which showed an entirely normal colon. (Tr. 449–50.)
4. Dr. Andrea Pollack – Consultative Examination
At the request of the Commissioner, plaintiff underwent an Internal Medicine Examination
by Andrea Pollack, D.O., on November 12, 2014. (Tr. 262–68.) Plaintiff reported that she had
lupus since 2003, which caused generalized pain that “comes and goes and is achy,” fatigue and
chronic chest pain that also “comes and goes,” and occasional shortness of breath. (Tr. 262.) Her
Raynaud’s disease causes pain and discoloration of her hands in cold weather, for which she takes
medication. (Id.) Plaintiff indicated she can: shower and dress daily; cook and shop four times
per week; clean five times per week; and do laundry twice per week. (Id.) She also “watches tv,
listens to the radio, reads, goes shopping and socializes with friends.” (Tr. 262–63.)
As part of her physical examination, Dr. Pollack noted that plaintiff used no assistive
devices and needed no help changing for the exam or getting on or off the exam table. (Tr. 263.)
Her hand and finger dexterity was intact and her grip strength was 5/5 bilaterally. (Tr. 264.) There
were no identified issues in plaintiff’s musculoskeletal, neurologic, or extremities. (Id.) The only
identified physical limitation was that plaintiff was only able to squat “3/4 of full.” (Tr. 263.) In
There is one additional rheumatology record from September 23, 2006, well before the relevant period. (Tr.
238-45.)
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addition, plaintiff’s vision without glasses was 20/40 on the right, 20/50 on the left, and 20/40 for
both eyes on a Snellen chart at twenty feet. (Id.)
Dr. Pollack diagnosed plaintiff with decreased visual acuity of the left eye, lupus, fatigue,
chronic chest pain, pulmonary fibrosis, and Raynaud’s with a stable to fair prognosis. (Tr. 264.)
She then opined:
On the basis of this evaluation, [plaintiff] is restricted in activities which require
fine visual acuity of the left eye. She should avoid heights, operating heavy
machinery, activities which require heavy lifting, heavy carrying, or heavy
exertion, and activities which may put her at risk for a fall. She should avoid smoke,
dust, and known respiratory irritants. She should avoid cold temperatures as well
and has a mild restriction in squatting.
(Tr. 265.)
5. Dr. S Ali – Consultative Examination
On September 25, 2015, Plaintiff underwent a second Commissioner-requested Internal
Medicine Examination by Dr. Shehzad Ali. (Tr. 228–37.) Plaintiff indicated that her lupus
symptoms were “significantly at bay.” (Tr. 228.) However, she stated that she still felt tired and
fatigued after activities and could stand for no more than one hour before needing to sit down, rest,
and lie down. (Id.) She further reported that she can lift about half a gallon of milk and sit for
approximately one hour at a time. (Id.) In addition, she gets shortness of breath after climbing
one flight of stairs, walking two blocks, or standing for about an hour, at which time she needs to
sit down and rest which seems to help. (Id.) Finally, plaintiff complained about lower back pain
that is “pretty much there all the time,” and knee discomfort that hurts with activity but resolves
with rest. (Tr. 228–29.)
Plaintiff reported very similar daily activities: cooking four times a week; cleaning and
laundry once a week; shopping two to three times per week; and showering and dressing herself
daily. (Tr. 229.) She still watches television, reads, and listens to the radio. (Id.)
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Dr. Ali noted that plaintiff’s vision without glasses was 20/70 on the right, 20/70 on the
left, and 20/30 for both eyes on a Snellen chart at twenty feet. (Tr. 230.) Dr. Ali’s musculoskeletal
examination also revealed “mild discomfort and mild spasm in the paraspinal muscles in the
lumbar region bilaterally”; sitting feels some pulling sensation of the lower back;” and “crepitus
in bilateral knees.” (Tr. 230–31.) The findings were otherwise normal, again including intact hand
and finger dexterity with 5/5 bilateral grip strength. (Id.)
Dr. Ali diagnosed plaintiff with a history of lupus, pulmonary fibrosis, and knee pain, as
well as back pain. (Tr. 232.) He determined her prognosis was stable and she has “mild restriction
for climbing, walking, standing, bending, lifting, and carrying because of back pain.” (Id.)
D. Vocational Evidence
Yaakov Taitz, Ph.D., a vocational expert (the “VE”), testified at the administrative hearing.
(Tr. 540–46; see also Tr. 199–201.) The ALJ asked the VE to consider an individual of the same
age, education, and work experience as plaintiff who has a residual functional capacity to perform
sedentary work, with the following limitations:
The individual can sit for a total of 30 minutes at which point would require a twominute repositioning break, can occasionally bend, occasionally stoop, crouch,
kneel, squat, climb. The individual would only occasionally be exposed to extreme
cold, extreme heat, extreme humidity, concentrated fumes and other respiratory
irritants, would not be exposed to heights or dangerous machinery.
(Tr. 541–42.) The VE testified that such a person could not perform plaintiff’s past work, but
she could perform sedentary jobs as a counter, document preparer, or order clerk. (Tr. 542–43.)
The ALJ then asked the VE to consider additional hypothetical limitations of occasional
reaching, handling, fingering, and feeling with both hands. The VE testified that such a person
could perform sedentary jobs as a surveillance system monitor, information clerk, and call out
operator. (Tr. 544–45.) All of these jobs have at least 70,000 jobs in the national economy. (Tr.
542–45.)
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E. The ALJ’s Decision
The ALJ issued his decision on July 5, 2016, applying the five-step process described
below, pursuant to 20 C.F.R. § 404.1520. (Tr. 23–32.) At the first step of the analysis, the ALJ
concluded that plaintiff had not engaged in substantial gainful activity since her alleged onset date
of August 15, 2014. (Tr. 25.) At the second step, the ALJ found that plaintiff has severe
impairments of lupus, rheumatoid arthritis, and pulmonary fibrosis. (Id.) Turning to the third step,
the ALJ determined that plaintiff’s impairments, alone or in combination do not meet or medically
equal the severity of any of the regulation’s listed impairments. (Tr. 25–27.) Specifically, the ALJ
considered Listing 14.02 for systemic lupus erythematosus (“SLE”) and Listing 14.09 for
inflammatory arthritis. (Id.)
The ALJ then addressed step four, first considering plaintiff’s RFC. An RFC determination
identifies what work a claimant can still perform, despite her limitations. See C.F.R. § 404.1545.
The ALJ found that plaintiff had the RFC to perform sedentary work, except that she (1) requires
“a repositioning break of 2 minutes after 30 minutes of sitting”; (2) can occasionally engage in
postural activity; (3) can have no more than occasional exposure to temperature extremes,
humidity and concentrated fumes; and (4) can never work in proximity to heights or dangerous
machinery. (Tr. 27.)
In considering plaintiff’s limitations, the ALJ made various observations about plaintiff’s
testimony and reviewed plaintiff’s medical records. (Tr. 27–30.) The ALJ afforded “limited
weight” to the MSS furnished by Dr. Andrew Lin, plaintiff’s primary care physician because
treatment notes advised that plaintiff could perform at a higher level of exertion than what the MSS
identified. (Tr. 28.) He afforded “some weight” to the Questionnaire furnished by plaintiff’s
pulmonologist, Dr. Alpha Desai, because she did not identify any respiratory limitations, but given
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plaintiff’s need for pulmonologist, the ALJ determined it seemed unlikely that she would not have
respiratory limitations. (Tr. 28–29.) The ALJ also afforded “good weight” to the opinions of the
two consultative examiners, Dr. Andrea Pollack and Dr. S. Ali. (Tr. 29–30.)
Upon consideration of the evidence, the ALJ found that the plaintiff’s medically
determinable impairments could reasonably be expected to cause her alleged symptoms, but that
her statements concerning the intensity, persistence, and limiting effects of the symptoms were not
entirely consistent with the evidence. (Tr. 30.) Based on the RFC, the ALJ concluded at step four
that plaintiff could not perform her past relevant work as a home health aide or sewing machine
operator. (Id.)
Finally, the ALJ relied on the testimony of the vocational expert to determine at step five
that there are jobs that exist in significant numbers in the national economy that the claimant can
perform. (Tr. 31.) Accordingly, the ALJ found that plaintiff was not under a disability as defined
in the Social Security Act from August 15, 2014 through the date of his decision. (Id.)
II. DISCUSSION
A. Social Security Disability Standard
Under the Social Security Act, “disability” is defined as “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). An individual is
disabled when his “physical or mental impairment or impairments are of such severity that he is
not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy . . . .” 42 U.S.C. § 423(d)(2)(A).
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The Commissioner’s regulations set out a five-step sequential analysis by which an ALJ
determines disability. 20 C.F.R. § 404.1520. The analysis is summarized as follows:
[I]f the Commissioner determines (1) that the claimant is not working, (2) that he
has a ‘severe impairment,’ (3) that the impairment is not one [listed in Appendix 1
of the regulations] that conclusively requires a determination of disability, and
(4) that the claimant is not capable of continuing in his prior type of work, the
Commissioner must find him disabled if (5) there is not another type of work the
claimant can do.
Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (second alteration in original) (quoting Green–
Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)).
As part of the fourth step, the
Commissioner determines the plaintiff’s RFC before deciding if the claimant can continue in his
prior type of work. 20 C.F.R. § 404.1520(a)(4)(iv). The claimant bears the burden at the first four
steps, but at step five, the Commissioner must demonstrate “there is work in the national economy
that the claimant can do.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); see also Campbell
v. Astrue, No. 12-CV-5051, 2015 WL 1650942, at *7 (E.D.N.Y. Apr. 13, 2015) (citing Melville
v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
B. Scope of Review
In reviewing a denial of disability benefits by the SSA, it is not the function of the district
court to review the record de novo, but instead to determine whether the ALJ’s conclusions “‘are
supported by substantial evidence in the record as a whole, or are based on an erroneous legal
standard.’” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Beauvoir v. Chater, 104
F.3d 1432, 1433 (2d Cir. 1997)).
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.’” Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “‘To determine
whether the findings are supported by substantial evidence, the reviewing court is required to
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examine the entire record, including contradictory evidence and evidence from which conflicting
inferences can be drawn.’” Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)).
Thus, the Court will not look at the record in “isolation but rather will view it in light of
other evidence that detracts from it.” State of New York ex rel. Bodnar v. Sec. of Health and
Human Servs., 903 F.2d 122, 126 (2d Cir. 1990). An ALJ’s decision is sufficient if it is supported
by “adequate findings . . . having rational probative force.” Veino v. Barnhart, 312 F.3d 578, 586
(2d Cir. 2002).
C. Analysis
Plaintiff puts forth four arguments in support of her appeal of the ALJ’s decision. First,
she argues that the ALJ erred in determining her impairments were not medically equivalent to a
listed impairment. (Pl.’s Br. 13–19.) Next, plaintiff contends that the ALJ’s RFC finding is not
based on substantial evidence. (Id. at 19–23.) She further argues that the ALJ failed to properly
evaluate her subjective complaints. (Id. at 23–24.) Finally, plaintiff asserts that the Commissioner
failed to sustain her burden of establishing that there is other work in the national economy that
plaintiff could perform. (Id. at 25.) These arguments are unavailing.
1. The ALJ did not Err in Finding that Plaintiff’s Impairments Did Not Medically
Equal a Listed Impairment.
At step three in the analysis, plaintiff bears the burden to establish that her impairments
meet or medically equal a listed impairment. See Campbell, 2015 WL 1650942, at *7 (citing
Melville, 198 F.3d at 51) (noting that plaintiff bears the burden of proof at the first four steps); see
also Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (requiring plaintiff to present medical findings
to prove symptoms equal a listing). Plaintiff contends that the evidence may support a finding that
her SLE equals Listing 14.02(B), which provides:
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Repeated manifestations of SLE, with at least two of the constitutional symptoms
or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the
following at a marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in
concentration, persistence, or pace.
20 C.F.R. Part 404, Subpart P § 14.02B. In support of this argument, plaintiff points to Dr. Lin’s
MSS wherein he opined that plaintiff has constitutional symptoms of severe fatigue, involuntary
weight loss, and malaise; is moderately limited in all three areas considered in Listing 14.02; and
that her SLE met the American College of Rheumatology criteria for SLE. (Tr. 451–55.) In her
papers, plaintiff contends that moderate limitation in all three areas “may well support a finding of
medical equivalency” and that the ALJ failed to provide “good reasons” for not crediting Dr. Lin’s
opinion. (Pl.’s Br. 16–17.)
“For a claimant to qualify for benefits by showing that his unlisted impairment, or
combination of impairments, is equivalent to a listed impairment, he must present medical findings
equal in severity to all the criteria for the one most similar listed impairment.” Sullivan, 493 U.S.
at 531 (internal quotations omitted; emphasis in original); see also 20 C.F.R. § 404.1525(c)(3).
Plaintiff’s bare contention that Dr. Lin’s findings “may well support” this finding fails to satisfy
this burden. Moreover, plaintiff points to nothing in the record that establishes she had “repeated”
manifestations of two of the constitutional symptoms, and the Court finds nothing in the record to
support this argument. 3
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The Listing defines “repeated” as:
“[T]he manifestations occur on an average of three times a year, or once every 4 months, each lasting 2 weeks or
more; or the manifestations do not last for 2 weeks but occur substantially more frequently than three times in a year
or once every 4 months; or they occur less frequently than an average of three times a year or once every 4 months
but last substantially longer than 2 weeks. Your impairment will satisfy this criterion regardless of whether you have
the same kind of manifestation repeatedly, all different manifestations, or any other combination of manifestations;
for example, two of the same kind of manifestation and a different one.”
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
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Plaintiff also advances a conclusory argument that because the ALJ failed to provide “good
reasons” for not crediting Dr. Lin’s opinion on equivalence, her case must be remanded. (Pl.’s Br.
17–18.) However, Dr. Lin did not opine on whether plaintiff’s symptoms might medically equal
the listing. Plaintiff herself acknowledges that Dr. Lin’s MSS only identified moderate limitations
in the three areas of limitations. (Pl.’s Br. 16.) He made no finding that such moderate limitations
medically equals one of the listed limitations at a marked level. And nothing in his MSS indicates
that he found that plaintiff has “repeated” manifestations of any of the three constitutional
symptoms he identified. (See Tr. 451–55.) Thus, even fully crediting Dr. Lin’s opinion, it would
not support a finding that her symptoms equaled the listing.
Moreover, at the third step of his analysis, the ALJ specifically considered Listing 14.02.
(Tr. 25–26.) Contrary to plaintiff’s assertion, the ALJ considered ample medical evidence outlined
elsewhere in his opinion that supports his finding that Listing 14.02 was not equaled. See Solis v.
Berryhill, 692 F. App’x 46, 48 (2d Cir. 2017) (summary order) (citing Berry v. Schweiker, 675
F.2d 464, 468 (2d Cir. 1982) (per curiam)) (upholding a finding that a listing was not met even
though the ALJ did not explicitly discuss the listing because the ALJ’s decision as a whole and
record before him supported the conclusion); see also Section II.C.2, infra. Accordingly, the ALJ’s
determination that plaintiff’s limitations did not equal a listed impairment is supported by
substantial evidence.
Finally, the Court rejects plaintiff’s argument that the ALJ was required to call a medical
expert to opine on whether plaintiff equaled Listing 14.02(B). “For cases at the Administrative
Law Judge or Appeals Council level, the responsibility for deciding medical equivalence rests with
the Administrative Law Judge or Appeals Council.” 20 C.F.R § 404.1526(e). Plaintiff cites to
various cases outside of this Circuit that interpret the language in Social Security Ruling (“SSR”)
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96-6p to require such a consulting opinion. (Pl.’s Br. 18–19.) However, “[n]either the Second
Circuit nor any district court within it has imposed such a requirement.” Colavito v. Comm’r of
Soc. Sec., No 15-CV-4657 (E.D.N.Y. Aug. 11, 2016) (Cogan, J.). Indeed, in Colavito, Judge
Cogan squarely rejected this requirement.
I agree with Judge Cogan that plaintiff’s argument misreads the applicable regulations and
would add an unnecessary burden to the process. See id. This is not an unusual case and the Court
will not impose a requirement to obtain a medical expert opinion on equivalence every time an
ALJ in a single decisionmaker (SDM) state, such as New York, determines that impairments are
not equivalent. A proper reading of the applicable regulations and the ruling itself indicates that
an ALJ only needs to obtain a medical expert opinion when, in the opinion of that ALJ, the record
supports equivalence. See 20 C.F.R §§ 404.1526(e), 404.906(b); SSR 96-6p (S.S.A. July 2, 1996),
1996 WL 374180. See also Oakes v. Barnhart, 400 F. Supp. 2d 766, 776 (E.D. Pa. 2005) (finding
that the introduction of the SDM model “altered the longstanding policy that an ALJ is required to
seek a medical opinion on the issue of equivalence”); cf. Clanton v. Comm’r of Soc. Sec., No.
14-CV-1039, 2016 WL 74421, at *8 (W.D. Mich. Jan. 6, 2016) (rejecting opinions that remanded
cases where the ALJ did not consult a medical expert on equivalence because they failed to
correctly place the burden at step three on the plaintiff). 4
Accordingly, the ALJ’s determination that plaintiff’s impairments were not medically
equivalent to any of the listings in the Appendix was based on substantial evidence and correct
legal principles.
4
Notably, as part of the new SSA regulations that came into effect on March 27, 2017 (but are not applicable to this
appeal), the Commissioner rescinded SSR 96-6p and replaced it with SSR 17-2p. (S.S.A. Mar. 27, 2017), 2017 WL
3928306. SSR 17-2p recognizes that in SDM-states, medical experts need not be consulted at the initial stage. Id. n.
7. SSR 17-2p also makes clear that an ALJ does not need to obtain a medical expert opinion to determine that
impairments are not medically equivalent to a listing, whether or not the initial determination was made by an SDM.
Id. at *4.
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2. The ALJ’s RFC Determination is Based on Substantial Evidence.
An RFC determination specifies the “most [a claimant] can still do despite [the claimant’s]
limitations.” Barry v. Colvin, 606 F. App’x 621, 622 n.1 (2d Cir. 2015) (summary order); see
Crocco v. Berryhill, No 15-CV-6308, 2017 WL 1097082, at *15 (E.D.N.Y. Mar. 23, 2017) (stating
that an RFC determination indicates the “nature and extent” of a claimant’s physical limitations
and capacity for work activity on a regular and continuing basis) (citing 20 C.F.R. § 404.1545(b)).
In determining a claimant’s RFC, “[t]he Commissioner must consider objective medical
evidence, opinions of examining or treating physicians, subjective evidence submitted by the
claimant, as well as the claimant’s background, such as age, education, or work history.” Crocco,
2017 WL 1097082, at *15; see also Barry, 606 F. App’x at 622 n.1 (“In assessing a claimant’s
RFC, an ALJ must consider ‘all of the relevant medical and other evidence,’ including a claimant’s
subjective complaints of pain.”) (quoting 20 C.F.R. § 416.945(a)(3)). An RFC determination must
be affirmed on appeal where, as here, it is supported by substantial evidence in the record. Barry,
606 F. App’x at 622 n.1.
The ALJ’s decision regarding the weight to be accorded to each medical opinion in the
record and how to reconcile conflicting medical opinions is governed by the treating physician
rule. 20 C.F.R. § 404.1527(c). According to the treating physician rule, if a treating physician’s
opinion regarding the nature and severity of an individual’s impairments is supported by
“medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence” in the record, the ALJ will credit that opinion with “controlling
weight.” 20 C.F.R. § 404.1527(c)(2); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
However, an ALJ may discount a treating physician’s opinion when the opinion is
conclusory, the physician fails to provide objective medical evidence to support his or her opinion,
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the opinion is inconsistent with the record, or the evidence otherwise supports a contrary finding.
See 20 C.F.R. § 404.1527(c). The ALJ is required to give “good reasons” in support of his
determination on the weight given to a treating physician’s opinion. See Schaal v. Apfel, 134 F.3d
496, 503–04 (2d Cir. 1998).
Plaintiff contends that the ALJ failed to give the proper weight to treating physician Dr.
Desai and consultative examiners Drs. Ali and Pollack because he did not include all the limitations
noted by these doctors. (Pl.’s Br. 19–21.) However, the ALJ properly considered and gave weight
to the opinions of Dr. Desai, Dr. Pollack, and Dr. Ali. And, contrary to plaintiff’s contention, the
ALJ did not rely on or even consider the opinions of the non-physician SDMs. Their findings are
not cited in the ALJ’s decision and “the sheer fact that the ALJ’s RFC assessment corresponds
with the disability analyst’s assessment does not establish that the ALJ gave controlling weight to
or otherwise impermissibly relied on the disability analyst’s assessment.” Negron v. Colvin, No.
15-CV-2515, 2017 WL 1194470, at *9 (E.D.N.Y. Mar. 31, 2017) (internal quotations omitted).
As to Dr. Desai, the ALJ reasonably gave only “some weight” to Dr. Desai’s Questionnaire
(Tr. 445–48), crediting her opinion that plaintiff had no limitations regarding sitting and could
stand/walk 4-6 hours, but not crediting her finding that plaintiff had no restriction in lifting or
exposure to environmental irritants. (Tr. 28–29.) The ALJ provided a “good reason” not to credit
that part of Dr. Desai’s opinion—given that plaintiff needed a pulmonologist, she would have some
respiratory limitations. (Tr. 29.)
Plaintiff points out that the ALJ did not expressly address Dr. Desai’s finding that plaintiff
would need to take unscheduled breaks and have work absences of two days a month. (Pl.’s Br.
21; Tr. 28–29, 445–48.) However, “where ‘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
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to him or have explained why he considered particular evidence unpersuasive or insufficient to
lead him to a conclusion of disability.’” Petrie v. Astrue, 412 F. App’x 401, 406 (2d Cir. 2011)
(summary opinion) (quoting Mongeur, 722 F.2d at 1040).
The record supports the ALJ’s decision not to include Dr. Desai’s opinion that plaintiff
would need to take unscheduled breaks. First, Dr. Pollack, who also diagnosed plaintiff with
chronic chest pain did not opine that this pain would require plaintiff to take unscheduled breaks.
(Tr. 262–68.) Second, Dr. Desai based her opinion that plaintiff would need unscheduled breaks
on plaintiff’s reports of chest pain, and the ALJ explicitly considered Dr. Desai’s noted symptom
of “chest pain on occasion with heavy exertion.” (Tr. 29 (emphasis added).) Third, Dr. Desai’s
Questionnaire apparently relies on her single treatment note which states, in part, that plaintiff
“continues to have occasional left sided chest pain when ‘doing lots of things’ (eg. busy day at
work and running the household).” (Tr. 346.) Accordingly, there was substantial evidence for
the ALJ to conclude that plaintiff’s reported symptoms of chest pain do not suggest that she would
be unable to perform a reduced range of sedentary work without unscheduled breaks.
The record similarly supports the ALJ’s decision not to incorporate Dr. Desai’s opinion
that plaintiff would have work absences of two days a month. There is nothing in Dr. Desai’s
notes or the record as a whole that suggests plaintiff’s impairments would prevent her from
attending work, particularly since Dr. Desai’s treatment note, and many of the other treatment
notes, were from before plaintiff left her job as a home health aide and do not document any missed
days. Finally, plaintiff bears the burden of demonstrating her functional limitations, but fails to
point to any other evidence in the record to support her contention that the ALJ should have
incorporated these limitations into the RFC. Accordingly, these limitations were properly not
included in the RFC assessment.
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Turning then to the consultative examiners, the ALJ afforded “good weight” to the opinion
offered by Dr. Pollack, but did not incorporate Dr. Pollack’s finding that plaintiff “is restricted in
activities that require fine visual acuity of the left eye” in his RFC assessment. (Tr. 29–30, 262–
67.) Plaintiff argues this resulted in “harmful error” because all the jobs cited by the VE entail at
least frequent near acuity so his testimony “may well have differed” had this limitation been
included in the ALJ’s hypothetical questioning. (Pl.’s Br. 21.)
However, this restriction—which pertained to fine visual acuity, and of the left eye only—
is based on Dr. Pollack’s examination of plaintiff without her glasses, finding acuity at 20/40 right,
20/50 left, and 20/40 both. (Tr. 263.) Dr. Ali’s examination found plaintiff had slightly worse
vision without glasses, with acuity of 20/70 right, 20/70 left, and 20/30 both, but, critically, he did
not conclude plaintiff had any visual restrictions. (Tr. 228–31.) Similarly, Dr. Desai did not opine
that plaintiff had any visual restrictions. (Tr. 445–48.) Thus, both Dr. Desai’s and Dr. Ali’s
opinions constituted substantial evidence that supported the ALJ’s RFC determination.
Furthermore, plaintiff received a new glasses prescription in January 2016. (Tr. 512–13.) In sum,
the ALJ’s determination not to include a limitation on plaintiff’s visual acuity in his RFC
assessment is supported by substantial evidence.
Finally, regarding the opinion offered by Dr. Ali, plaintiff claims that his findings are too
vague to provide support for the ALJ’s RFC assessment because Dr. Ali opined that plaintiff has
“mild restriction for climbing, walking, standing, bending, lifting and carrying because of back
pain.” (Pl.’s Br. 22; Tr. 30, 232.) However, Dr. Ali did not simply opine that the plaintiff had
“mild restrictions.” He explained that such restrictions were due to plaintiff’s reported back pain.
Moreover, Dr. Ali’s opinion is not the only medical evidence in the record that supports the ALJ’s
decision. When Dr. Ali’s opinion is coupled with all of the other evidence in the record, there is
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certainly sufficient evidence to support the ALJ’s RFC finding. See Tankisi v. Comm’r of Soc.
Sec., 521 F. App’x 29, 34 (2d Cir. 2013) (summary order) (determining that a consultative
physician’s opinion that plaintiff had “mild to moderate limitation for sitting for a long time,
standing for a long time, walking for a long distance” together with other evidence, was sufficient
to support RFC finding); Lewis v. Colvin, 548 F. App’x 675, 677 (2d Cir. 2013) (summary order)
(finding that RFC determination of “light work” was supported by consultative physician’s
assessment that plaintiff had “mild limitations for prolonged sitting, standing and walking,” and
needed to avoid “heaving lifting, and carrying,” together with other evidence in the record).
Accordingly, the ALJ properly weighed the conflicting medical testimony and the RFC
assessment is supported by substantial evidence.
3. The ALJ Properly Evaluated Plaintiff’s Subjective Complaints.
Plaintiff’s argument that the ALJ’s credibility finding was erroneous similarly cannot
prevail. The ALJ followed the two-step inquiry outlined in the regulations and determined that
the plaintiff’s “statements concerning the intensity, persistence and limiting effects of [her]
symptoms are not entirely consistent with the medical evidence and other evidence in the record.”
(Tr. 30.) The ALJ considered the relevant factors, and his finding is supported by substantial
evidence. (Tr. 27–30.) For example, in addition to his consideration of the medical evidence
discussed in detail above, the ALJ considered that Plaintiff’s medication helped maintain her
conditions, that she maintained activities of daily living (including cooking, cleaning, shopping,
sewing and reading), and that she had a longstanding work history. (Id.)
The ALJ has the discretion to evaluate and ultimately not credit plaintiff’s testimony about
the severity of her pain and functional limitations. See Burnette v. Colvin, 564 F. App’x 20, 605,
609 (2d Cir. 2008) (summary order); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984). Here,
21
the ALJ reasonably weighed the applicable evidence—reviewing the medical records and
specifically considering plaintiff’s testimony and statements contained in the record. Accordingly,
he properly evaluated plaintiff’s subjective complaints in determining that plaintiff retained the
ability to perform a range of sedentary work.
4. The Commissioner Sustained Her Burden at Step Five.
Finally, plaintiff contends that the Commissioner failed to sustain her burden to show that
there is other gainful work in the national economy which claimant could perform. This argument
also fails. As discussed herein, the ALJ’s RFC assessment was supported by substantial evidence.
(See Sections II.C.2–3). And as plaintiff acknowledges, the ALJ’s hypothetical questioning of the
vocational expert tracked his RFC assessment. (Pl.’s Br. at 25.) Accordingly, the ALJ properly
relied on the vocational expert in finding at step five that a significant number of jobs existed in
the national economy that plaintiff could perform. Snyder v. Colvin, 667 F. App’x 319, 321 (2d
Cir. 2016) (summary order) (citing Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983)).
III. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s motion for judgment on the
pleadings and GRANTS Commissioner’s motion for judgment on the pleadings. The Clerk of the
court is directed to enter judgment in favor of defendant and close the case.
SO ORDERED.
Dated: December 28, 2018
Central Islip, New York
/s/ JMA
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE
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