Rivera v. Commissioner of Social Security

Filing 20

DECISION AND ORDER denying # 15 Plaintiff's motion for judgment on the pleadings; and granting # 17 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 9/6/17. (lmw) (Copy served upon pro se plaintiff via regular and certified mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MARISOL RIVERA,
Plaintiff,
v.

1:16-CV-0454
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

MARISOL RIVERA
Pro Se
P.O Box 637
Plattekill, NY 12568
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

DAVID B. MYERS, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Marisol Rivera
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 15, 16, 17.) For
the reasons set forth below, Plaintiff’s motion for judgment on the pleadings is denied, and
Defendant’s motion for judgment on the pleadings is granted. The Commissioner’s decision
denying Plaintiff’s disability benefits is affirmed, and Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1962, making her 50 years old at the alleged onset date and 51 years
old at the date of the ALJ’s decision. Plaintiff reported completing the 8th grade. Plaintiff has
past work as a housekeeper/cleaner, institutional cook, and personal care aide. Generally,
Plaintiff alleges disability due to limited mobility, lumbar pain, cervical pain, diabetes, high
blood pressure, high cholesterol, and obesity.
B.

Procedural History

Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on
June 13, 2014, alleging disability beginning February 11, 2013. Plaintiff’s applications were
initially denied on October 3, 2013, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). Plaintiff appeared at a video hearing before ALJ Michael A.
Rodriquez on August 5, 2014. On November 7, 2014, the ALJ issued a written decision finding
Plaintiff was not disabled under the Social Security Act. (T. 8-14.) 1 On December 30, 2015, the
Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner. (T. 1-4.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 10-14.) First, the ALJ found that Plaintiff is insured for disability
benefits under Title II until December 31, 2017. (T. 10.) Second, the ALJ found that Plaintiff

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The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
system.
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has not engaged in substantial gainful activity since the alleged onset date. (Id.) Third, the ALJ
found that Plaintiff’s degenerative joint disease of the lumbar and cervical spine, diabetes
mellitus, vitamin D deficiency, hypertension, obesity, and spinal neoplasm are severe
impairments. (Id.) Fourth, the ALJ found that Plaintiff’s severe impairments do not meet or
medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”). (T. 10-11.) Fifth, the ALJ found that Plaintiff has the residual functional capacity
(“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b). The
claimant is capable of lifting and carrying occasionally 20 pounds
(10 pounds frequently), and standing, walking, and sitting 6 hours
during an 8-hour workday except no climbing ropes, ladders, and
scaffolds, limited to occasional kneeling and crouching but no
crawling; and limited to frequent reaching (overhead/distance and
direction), frequent dexterity/fingering (fine manipulation) and
frequent grip/handling (gross manipulation).
(T. 11.) Sixth, and finally, the ALJ found that Plaintiff remains able to perform her past relevant
work as a cleaner/housekeeper both as generally performed and as actually performed, and
therefore is not disabled. (T. 13-14.)
D.

The Parties’ Briefings on Their Cross-Motions

Plaintiff, proceeding pro se, did not file a formal brief in support of her motion for
judgment on the pleadings. However, she did submit multiple opinion statements from treating
neurosurgeon Michael Cho, M.D., that this Court construed as Plaintiff’s brief for these
purposes. (Dkt. Nos. 15, 16.) Plaintiff submitted statements from Dr. Cho completed in
September 2014, May 2015, October 2015, April 2016, and November 2016. (Dkt. Nos. 15, 16)
All of these contain essentially the same opined limitations, namely that Plaintiff is “very

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limited” in her abilities to walk, stand, sit, lift, carry, push, pull, bend, see, hear, speak, and
climb, as well as “moderately limited” in her ability to use her hands. (Id.)
Generally, Defendant argues that the statements from Dr. Cho that Plaintiff submitted in
lieu of a memorandum do not warrant remand. (Dkt. No. 17, at 5-10 [Def. Mem. of Law].)
More specifically, Defendant argues that these statements are not new because they provide little
more information than the opinion from Dr. Cho that was before the ALJ, that they are not
material because some of them are from after the date of the ALJ’s decision and there is no
indication that any of these reports would have influenced the ALJ or the Appeals Council to
reach a different conclusion, and that there is no good reason as to why Plaintiff failed to submit
the opinions from the relevant period at an earlier stage of the appeal process. (Id.)
II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the
correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a
mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
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accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
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impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of the proof as
to the first four steps, while the [Commissioner] must prove the final
one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
After carefully considering the question of whether the evidence submitted for the first

time to this Court merits remand for consideration by the Agency, the Court answers in the
negative for the reasons stated in Defendant’s memorandum in support of her motion for
judgment on the pleadings. (Dkt. No. 17, at 5-10 [Def. Mem. of Law].) To those reasons, the
Court adds the following discussion.
“A remand pursuant to sentence six of [42 U.S.C.] section 405(g) is warranted if new,
non-cumulative evidence proffered to the district court should be considered at the agency level.”
Pardee v. Astrue, 631 F. Supp. 2d 200, 217 (N.D.N.Y. 2009) (citing Lisa v. Sec’y of Dep’t of
Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991)). However, in order to qualify for a
remand on this basis, the evidence must be new, material, and there must have been “good cause
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for the failure to incorporate such evidence into the record in a prior proceeding.” Davidson v.
Colvin, No. 1:12-CV-0316, 2013 WL 5278670, at *5 (N.D.N.Y. Sept. 18, 2013) (quoting 42
U.S.C. § 405(g) (sentence six)). All three prongs of this test must be met to warrant a remand
pursuant to sentence six of 42 U.S.C. § 405(g). First, evidence is “new” where it is “not merely
cumulative of evidence in the administrative record.” Davidson, 2013 WL 5278670, at *5
(citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (citations omitted)). Second, evidence
is “material” where it is “relevant to the claimant’s condition during the time period for which
benefits were denied and probative” and “there is a reasonable possibility that the new evidence
would have materially changed the outcome before the Commissioner.” Id. (citing Tirado, 842
F.2d at 597) (citations omitted); Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991)). Lastly,
Plaintiff must demonstrate that there was good cause for failing to present the evidence at an
earlier stage of the adjudication of her claim. Id. (citing Lisa, 940 F.2d at 43).
Defendant argues that the more recent opinions from Dr. Cho that Plaintiff submitted for
the first time to this Court meet none of the above criteria. Each will be discussed in turn.
First, Defendant argues that these opinion were not “new” because they did not provide
any new information from that which was contained in the opinion Dr. Cho provided in January
2014, an opinion that was in the record before the ALJ. (Dkt. No. 17, at 7 [Def. Mem. of Law].)
Defendant argues that these opinions are essentially cumulative of the January 2014 opinion
because that opinion was more functionally specific than the more recent opinions, and the ALJ
would not have been able to glean anything additional from the new reports. (Id.) As noted
above, evidence is considered to be “new” under the law in this context where it is not
cumulative of other evidence in the record. Davidson, 2013 WL 5278670, at *5. Typically,
evidence is found to be cumulative where the same or very similar evidence already exists in the
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record. While the January 2014 opinion differs from the opinions Plaintiff now submits to this
Court, Defendant is correct in noting that not only is the January 2014 opinion more specific as
to functional limitations than the more recent opinions that merely indicated Plaintiff was “very
limited” or “moderately limited,” but also that all these opinions seem to suggest a similar level
of functioning. (T. 291-92; Dkt. Nos. 15, 16.) Consequently, there is a question as to whether
these more recent reports should be considered “new” since they provide little more information
than the opinion that was already in the record before the ALJ. However, the ALJ did note that
one of the reasons for affording little weight to the January 2014 opinion was because it “was
completed just four days after the surgery making it unreliable as a functional assessment.” (T.
12.) Since the more recent opinions from Dr. Cho were from a time period further after
Plaintiff’s surgery, such rationale would not apply for rejecting those opinions, something which
argues against a finding that this evidence was not “new.” However, the Court need not
concretely decide this specific issue, as Plaintiff failed to show that this evidence meets the other
factors required to merit a sentence six remand.
Second, Defendant argues that this evidence is not “material” because some of the
opinions were rendered at a time after the ALJ’s decision and therefore have no bearing on
whether Plaintiff was disabled during the relevant period, as well as because there is no evidence
to suggest that there was a reasonable possibility that Dr. Cho’s additional opinions would have
materially changed the outcome of Plaintiff’s claim. (Dkt. No. 17, at 7-9 [Def. Mem. of Law].)
Whether or not the opinions from 2015 and 2016 could be considered relevant to determining
Plaintiff’s functioning prior to the ALJ’s decision on November 7, 2014, this Court agrees with
Defendant that there is no indication that consideration of any of these opinions would have
presented a reasonable possibility that the Agency would have altered its decision. As Defendant
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notes in her memorandum, the ALJ was able to consider an opinion from Dr. Cho when making
his determination, one which was more detailed and specific than those that Plaintiff now
submits to this Court. (Dkt. No. 17, at 8 [Def. Mem. of Law].) Although the ALJ did reject that
January 2014 opinion in part due to the fact it was provided a mere four days after the surgery to
remove a mass from Plaintiff’s spine, this fact alone does not suggest that an opinion rendered at
a different time would have resulted in the ALJ or the Appeals Council affording more weight to
Dr. Cho’s conclusions. (T. 12.) The ALJ provided other reasons as to why he found Dr. Cho’s
opinion merited little weight, such as that it was “drastically contrary to objective medical
evidence for both before and after the surgery,” and that “post-operative examinations show the
claimant doing well.” (T. 12-13.) Given that the more recent opinions from Dr. Cho suggest a
similar, albeit less detailed, level of functioning as the January 2014 opinion, it is reasonable to
surmise that the ALJ would have found the newer opinions to be just as inconsistent with the
same treatment evidence.
The ALJ’s conclusion that the treatment evidence did not suggest the extent of Dr. Cho’s
opined limitations is supported by substantial evidence. Most notably, the majority of
examinations by Plaintiff’s treating sources showed normal gait, normal motor strength, normal
reflexes, and normal sensation, and did not suggest any restrictions in range of motion related to
Plaintiff’s lumbar spine. (See e.g., T. 258, 264, 278, 280, 281, 283, 287, 304, 310, 315-16, 321,
326-27.) Consultative examiner Gilbert Jenouri, M.D., observed that she could not walk on her
heels without difficulty and could only squat 40 percent of normal range, but was in no acute
distress with a normal gait and stance, and had no use of an assistive device or need for help
moving on and off the chair and examination table. (T. 268.) Dr. Jenouri also observed some
diminished range of motion in the cervical and lumbar spine, shoulders, elbows, wrists, knees,
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and hips, a positive seated straight leg raise test, sciatic notch tenderness to palpation, normal
deep tendon reflexes and motor strength, and normal hand and finger dexterity with full grip
strength. (T. 269-70.) Dr. Jenouri concluded that, based on this examination, Plaintiff had only
mild restrictions in her abilities to walk, stand and sit for long periods, bend, climb stairs, lift,
and carry. (T. 270.) An x-ray from the date of his examination showed only mild degenerative
changes with upper lumbar straightening. (T. 271.) The overall treatment evidence is therefore
consistent with the ALJ’s rejection of the extent of limitations opined by Dr. Cho in the January
2014 opinion, and with his greater reliance on Dr. Jenouri’s opinion. Because no additional
treatment evidence was submitted along with the more recent opinions, it would not be
reasonable to assume that the ALJ would have found these more recent opinions any more wellsupported by the treatment evidence, particularly as they outline a similar level of limitation as
the January 2014 opinion. Consequently, there is no evidence to suggest that these more recent
opinions are material as defined in this context. Davidson, 2013 WL 5278670, at *5.
Third, and last, Defendant is also correct that Plaintiff has not alleged any reasons why
she was unable to submit at least some of these opinions to the Agency, either to the hearing ALJ
or to the Appeals Council, nor does the record suggest a good reason for this omission. (Dkt.
No. 17, at 9-10 [Def. Mem. of Law].) Therefore, Plaintiff has also failed to meet the third
requirement for establishing a basis for remand for the consideration of new evidence.
For all of the above reasons, Plaintiff has not satisfied the criteria for a remand for
consideration of new evidence pursuant to sentence six of 42 U.S.C. § 405(g). Remand therefore
is not warranted on this basis. This Court has also carefully considered the rest of the ALJ’s
findings generally and concludes that they are supported by substantial evidence. The ALJ
assessed the RFC in light of the evidence, provided clear and specific reasons for concluding
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Plaintiff was not entirely credible, and properly determined that Plaintiff had past relevant work
that did not require greater abilities than allowed for in the RFC. Remand therefore is also not
warranted on any alternative basis apart from what was raised in the parties’ motions for
judgment on the pleadings.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 15, 16) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: September 6, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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