Clow v. Commissioner of Social Security

Filing 15

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Clow's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 2/19/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DONALD CLOW,

Plaintiff,

1:13-cv-998
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Law Offices of Steven R. Dolson
126 North Salina Street, Suite 3B
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

MAGGIE W. MCOMBER, ESQ.

BENIL ABRAHAM
REBECCA H. ESTELLE
Special Assistant U.S. Attorneys

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Donald Clow challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. § 405(g).
(Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Clow’s arguments, the court affirms the
Commissioner’s decision and dismisses the complaint.
II. Background
On June 28, 2010 and July 8, 2010, Clow filed applications for DIB
and SSI, respectively, under the Social Security Act (“the Act”), alleging
disability since October 1, 2007. (Tr. 1 at 59-60, 127-134.) 2 After his
applications were denied, (id. at 67-74), Clow requested a hearing before
an Administrative Law Judge (ALJ), which was held on June 5, 2012, (id. at
76-83, 42-58). On June 22, 2012, the ALJ issued an unfavorable decision
denying the requested benefits which became the Commissioner’s final
determination upon the Social Security Administration Appeals Council’s

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

2

Thereafter, Clow amended his alleged onset date to February 23, 2010. (Tr. at 57.)

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denial of review. (Id. at 1-4, 7-22.)
Clow commenced the present action by filing his complaint on August
16, 2013 wherein he sought review of the Commissioner’s determination.
(Compl.) The Commissioner filed an answer and a certified copy of the
administrative transcript. (Dkt. Nos. 7, 8.) Each party, seeking judgment
on the pleadings, filed a brief. (Dkt. Nos. 10, 13.)
III. Contentions
Clow contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 10 at 3-7.)
Specifically, Clow claims that the ALJ erred in (1) rendering his residual
functional capacity (RFC) determination; and (2) determining that he was
capable of performing his past relevant work. (Id.) The Commissioner
counters that the appropriate legal standards were used by the ALJ and his
decision is also supported by substantial evidence. (Dkt. No. 13 at 4-9.)
IV. Facts
The court incorporates the factual recitations of the parties and the
ALJ. (Dkt. No. 10 at 1-2; Dkt. No. 13 at 1; Tr. at 12-18.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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42 U.S.C. § 405(g)3 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

RFC Determination
First, Clow argues that the ALJ erred in failing to incorporate all of his

nonexertional limitations into the RFC determination. (Dkt. No. 10 at 7.)
According to Clow, the evidence of record evinces bending and squatting
limitations that would prevent him from performing the full range of light
work. (Id.) The Commissioner counters, and the court agrees, that the
ALJ’s RFC determination is legally sound and amply supported by the
evidence of record. (Dkt. No. 13 at 4-7.)
A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,

3

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.

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an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence 4 in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996).
In this case, the ALJ determined that Clow’s degenerative disc
disease left him with the RFC to perform the full range of light work as
defined in the regulations. 5 (Tr. at 13.) In making this determination, the
ALJ relied on the opinion of consulting examiner Kautilya Puri, who opined
that Clow suffered no exertional limitations as a result of his impairments,
the lack of objective findings, and Clow’s lack of follow through on
treatment. (Id. at 13-17.) The ALJ concluded that Clow was not fully
credible because his use of medications and course of treatment were
inconsistent with his allegations of disabling pain. (Id. at 14-15.) The ALJ

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“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).
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Under the regulations, light work requires lifting no more than twenty pounds at a time
with frequent lifting or carrying of up to ten pounds. See 20 C.F.R. § 404.1567(b). Further,
“the full range of light work requires standing or walking, off and on, for a total of approximately
[six] hours of an [eight]-hour workday.” SSR 83-10, 1983 WL 31251, at *6 (1983).

5

noted the considerable gaps in Clow’s treatment and the fact that additional
testing, more aggressive treatment, or treatment with a specialist were not
recommended. (Id. at 15.) Clow does not argue that the ALJ erred in his
assessment of the evidence of record, but, rather, contends that, because
Dr. Puri’s examination revealed that Clow’s squat was mildly decreased
and the range of motion of his lumbar spine was decreased, and because
he testified that he had difficulty bending, the ALJ was required to include
limitations for bending and squatting in his RFC determination. (Dkt. No.
10 at 7.) For the following reasons, Clow’s argument is meritless.
First, “whether there is substantial evidence supporting the
appellant’s view is not the question,” instead, the court must “decide
whether substantial evidence supports the ALJ’s decision.” Bonet ex rel.
T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013). Here, for all of the
reasons stated by the ALJ, the record indicates that Clow can perform the
demands of light work. (Tr. at 13-18.) Notably, the ALJ’s decision makes
clear that he considered Clow’s testimony that bending was difficult for him,
as well as the results of Dr. Puri’s examination. (Id. at 14-16.) As the
ALJ’s decision was more restrictive than the opinion of Dr. Puri, the only
medical source to offer an opinion as to Clow’s functional limitations, it
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cannot be said that the ALJ was obligated to include additional limitations
based on the results of Dr. Puri’s examination. Cf. Yablonski v. Comm’r of
Soc. Sec., No. 6:03-CV-414, 2008 WL 2157129, at *6 (N.D.N.Y. Jan. 31,
2008) (“When an ALJ’s decision adopts the physical limitations suggested
by reviewing doctors after examining the [claimant], the claimant’s obesity
is understood to have been factored into their decisions.” (internal
quotation marks and citations omitted)). Other than a mildly reduced squat,
and reduced range of motion of Clow’s lumbar spine, Dr. Puri’s
examination results were largely benign. (Tr. at 277-80.) Clow’s gait and
stance were normal, he was able to rise from a chair and get on and off the
examination table without difficulty, he needed no assistive device, straight
leg raising was negative, he had full range of motion of his cervical spine,
hips, knees, and ankles, and he had 5/5 strength in all of his extremities
with no sensory deficits or evidence of muscle atrophy. (Id. at 278-79.)
Moreover, it is not clear to the court that the additional limitations Clow
proposes would have any effect on the occupational base of light work.
See SSR 85-15, 1985 WL 56857 at *7 (1985) (explaining that light work
only requires the ability to stoop, defined as bending the body downward
and forward by bending the spine at the waist, occasionally, that is, from
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very little to up to one-third of the time).
B.

Past Relevant Work
Clow also contends that the ALJ erred in finding that he could

perform past relevant work. (Dkt. No. 10 at 3-7.) Specifically, Clow argues
that the ALJ failed to make a “specific and substantial” inquiry into the
demands of his past relevant work as well as make the required findings of
fact with respect to such work. (Id.) The Commissioner, on the other hand,
posits that the ALJ properly relied on Clow’s responses on a Social
Security Administration form to assess whether Clow could perform his
past relevant work, and further, the Dictionary of Occupational Titles (DOT)
description of Clow’s past relevant work supports the ALJ’s determination.
(Dkt. No. 13 at 7-9.) Again, the court agrees with the Commissioner.
“[I]n the fourth stage of the [disability] inquiry, the claimant has the
burden to show an inability to return to h[is] previous specific job and an
inability to perform h[is] past relevant work generally.” Jasinski v. Barnhart,
341 F.3d 182, 185 (2d Cir. 2003). In other words, a claimant is not
disabled if he can perform his past relevant work, either as he actually
performed it, or as it is generally performed in the national economy. See
SSR 82-61, 1982 WL 31387, at *2 (1982); Jock v. Harris, 651 F.2d 133,
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135 (2d Cir. 1981). “‘[I]n order to determine at step four whether a claimant
is able to perform h[is] past work, the ALJ must make a specific and
substantial inquiry into the relevant physical and mental demands
associated with the claimant’s past work, and compare these demands to
the claimant’s residual capabilities.’” Kochanek v. Astrue, No. 08-CV-310,
2010 WL 1705290, at *11 (N.D.N.Y. Apr. 13, 2010) (quoting Kerulo v.
Apfel, No. 98 CIV. 7315, 1999 WL 813350, at *8 (S.D.N.Y. Oct. 7, 1999)).
Here, the ALJ determined that Clow could perform his past relevant
work as a janitor as it is actually and generally performed. (Tr. at 17.)
Relying on responses provided by Clow on a Work History Report, 6 the ALJ
determined that this work required Clow to stand or walk for the majority of
the day, lift no more than ten pounds, and kneel for two hours in an eighthour work day. (Id. at 17, 170.) The ALJ concluded that “[t]he exertional
level of work described by [Clow] is generally classified as light work
activity.” (Id. at 17.) The ALJ did not, however, provide a DOT listing to
support his conclusion that Clow can perform this work as it is generally
performed. (Id.)

6

Clow completed a form report provided by the Social Security Administration. (Tr. at
159, 170-77.)

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Clow contends that the answers he provided on the Work History
Report were too vague to provide clear details of his past relevant work.
(Dkt. No. 10 at 5-6.) According to Clow, the DOT describes the position of
janitor as medium work, requiring the ability to lift up to fifty pounds
occasionally and twenty-five pounds frequently. (Id. at 4); Dictionary of
Occupational Titles, Code 382.664-010, 1991 WL 673265 (4th ed., 1991).
Relying on Social Security Ruling 82-61, which explains that significant
variations between a claimant’s description of an occupation and the
description in the DOT may be due to a claimant’s incomplete or inaccurate
description of past work, Clow contends that the ALJ should have sought
further information about his past work from Clow or his former employer,
or consulted with a vocational expert. (Dkt. No. 10 at 6); see SSR 82-61,
1982 WL 31387, at *2 (1982).
First, as the Commissioner points out, nothing about Clow’s Work
History Report is particularly vague. (Dkt. No. 13 at 8.) Clow indicated that
he last worked as a “cleaner,” cleaning rooms and discarding trash. (Tr. at
170-71.) According to Clow, this job required him to walk and stand for
most of the day, with sitting only comprising one hour of his workday. ( Id.
at 170.) The job required no climbing, stooping, crouching, or crawling.
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(Id.) Clow reported that the heaviest weight he lifted was ten pounds, and
he was responsible for supervising one other employee. (Id.) Thus, the
ALJ’s conclusion that Clow’s past relevant work required him to perform at
the light exertional level is supported by substantial evidence. See 20
C.F.R. § 404.1567(b); SSR 83-10, 1983 WL 31251, at *6; SSR 82-61, 1982
WL 31387, at *2 (providing that a properly completed Vocational Report my
be sufficient to furnish information about past work). In addition, the
Commissioner points out that the description which Clow provides of his
past work is not significantly different from that of the “cleaner,
housekeeping” occupation described in the DOT. (Dkt. No. 13 at 9); see
Dictionary of Occupational Titles, Code 323.687-014, 1991 WL 672783 (4th
ed., 1991). This occupation, which involves cleaning rooms and halls in
commercial establishments, is categorized as light work. See Dictionary of
Occupational Titles, Code 323.687-014, 1991 WL 672783. Accordingly,
the ALJ’s determination that Clow is capable of performing his past
relevant work as it is actually and generally performed is supported by
substantial evidence.
C.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of
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the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Clow’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
February 19, 2015
Albany, New York

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