Call v. Commissioner of Social Security

Filing 18

MEMORANDUM-DECISION AND ORDER that Pltf's 9 motion for judgment on the pleadings is denied; Deft's 12 motion for judgment on the pleadings is granted. Deft's unfavorable determination is affirmed. Pltf's 1 complaint is dismissed. Signed by Magistrate Judge William B. Carter on 5/16/17. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DOROTHY CLAIRE HOULE CALL,
Plaintiff,
v.

1:16-CV-1003
(WBC)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER MARGOLIUS
Counsel for Plaintiff
7 Howard St.
Catskill, NY 12414

PETER MARGOLIUS, ESQ.

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

OONA M. PETERSON, ESQ.

William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 15, 16.).
Currently before the Court, in this Social Security action filed by Dorothy Claire
Houle Call (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-

motions for judgment on the pleadings. (Dkt. Nos. 9, 12.) For the reasons set forth
below, it is ordered that Plaintiff’s motion is denied and Defendant’s motion is granted.
I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1966. (T. 248.) She completed the 9th grade. (T. 254.)
Generally, Plaintiff’s alleged disability consists of addiction, bi-polar disorder, and
obesity. (T. 253.) Her alleged disability onset date is May 8, 2009. (T. 248.) Her date
last insured is September 30, 2013. (T. 109.) She previously worked as a house
cleaner. (T. 254.)
B.

Procedural History

On February 5, 2010, Plaintiff applied for a period of Disability Insurance Benefits
(“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title XVI, of the
Social Security Act. (T. 248.) Plaintiff’s applications were initially denied, after which
she timely requested a hearing before an Administrative Law Judge (“the ALJ”). On
August 22, 2014, Plaintiff appeared before the ALJ, Arthur Patane. (T. 40-62.) On
October 23, 2014, ALJ Patane issued an unfavorable decision. (T. 19-39.) On June 13,
2016, the Appeals Council (“AC”) denied Plaintiff’s request for review, rendering the
ALJ’s decision the final decision of the Commissioner. (T. 1-6.) Thereafter, Plaintiff
timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following findings of fact and
conclusions of law. (T. 24-33.) First, the ALJ found that Plaintiff met the insured status
requirements through September 30, 2013, and Plaintiff had not engaged in substantial

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gainful activity since May 7, 2011, her established onset date. (T. 24.) 1 Second, the
ALJ found that since the alleged onset date Plaintiff had the severe impairments of
affective disorder, alcohol abuse in remission, and marijuana abuse. (Id.) Third, the
ALJ found that since her alleged onset date Plaintiff did not have an impairment that
meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404,
Subpart P, Appendix. 1. (T. 26-28.) Fourth, the ALJ found Plaintiff had the residual
functional capacity (“RFC”) to perform work at all exertional levels; however, Plaintiff
could have “semi-low contact with coworkers and public, defined as having frequent, but
not constant interaction.” (T. 28.) Fifth, the ALJ determined that Plaintiff was capable of
performing her past relevant work as a house/business cleaner as generally and
actually performed. (T. 33.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes one argument in support of her motion for judgment on the
pleadings. Plaintiff argues the ALJ’s RFC determination is not supported by substantial
evidence in the record. (Dkt. No. 9 at 3-6 [Pl.’s Mem. of Law].)
B.

Defendant’s Arguments

In response, Defendant makes one argument. Defendant argues substantial
evidence supports the ALJ’s RFC determination. (Dkt. No. 12 at 5-18 [Def.’s Mem. of
Law].)
III.

RELEVANT LEGAL STANDARD

1
Plaintiff filed prior applications. (T. 283.) On May 6, 2011, an ALJ issued an unfavorable decision
and the AC denied review. (T.63-78, 79-84.) Therefore, the May 6, 2011 decision is binding and in the
current case the ALJ only considered the issue of disability since May 7, 2011, the day after the date of
the prior ALJ’s decision.

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A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed 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.”); 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 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. See 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).

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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. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this
sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
IV.

ANALYSIS
A.

The ALJ’s RFC Determination

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Plaintiff’s RFC is the most she can do despite her limitations. 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1).
Plaintiff argues that the ALJ’s RFC determination cannot be supported by
substantial evidence because the ALJ did not accord controlling weight, great weight, or
significant weight to any medical opinion. (Dkt. No. 9 at 5 [Pl.’s Mem. of Law].) Plaintiff
essentially argues that an ALJ cannot determine Plaintiff’s RFC without the support of at
least one medical opinion concerning those limitations. Further, although Plaintiff
outlines medical evidence in the record, Plaintiff’s brief fails to specify which limitations
in the record she contends the ALJ failed to incorporate in his RFC determination and
how Plaintiff was harmed by the omission.
The Second Circuit has held that an RFC determination need not align with a
specific medical opinion and may be based on the record as a whole. See Monroe v.
Comm'r of Soc. Sec., No. 16-1042-CV, 2017 WL 213363, at *3 (2d Cir. Jan. 18, 2017)
(where the record contains sufficient evidence from which an ALJ can assess the
plaintiff’s RFC a medical source statement or formal medical opinion is not necessarily
required); see Tankisi v. Comm'r of Soc. Sec., 521 Fed.App’x. 29, 34 (2d Cir. 2013)
(“the record contains sufficient evidence from which an ALJ can assess the [claimant's]

residual functional capacity”); see Pellam v. Astrue, 508 Fed.App’x. 87, 90 (upholding
ALJ's RFC determination where he “rejected” physician's opinion but relied on
physician's findings and treatment notes); Matta v. Astrue, 508 Fed.App’x. 53, 56-57 (2d
Cir. 2013) (although the ALJ's conclusion may not perfectly correspond with any of the
medical source opinions cited in the decision, he was entitled to weigh all of the
evidence available to make an RFC finding that was consistent with the record as a

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whole); see also Veino v. Barnhart, 312 F.3d 578, 588-89 (2d Cir. 2002) (ALJ did not err
in crediting only a small part of treating physician's report). Therefore, the ALJ did not
commit legal error in formulating an RFC that did not mirror a medical opinion in the
record. The ALJ’s RFC determination was ultimately supported by the totality of the
evidence in the record.
To be sure, Shannon Gearhart, M.D., opined that Plaintiff should avoid smoke,
dust, or other known respiratory irritants (T. 757); however, the ALJ’s RFC did not
provide environmental limitations (T. 28). In his determination the ALJ discussed
Plaintiff’s asthma and ultimately determined that it was not a severe impairment
because it did not result in more than minimal limitations in her ability to perform basic
work related activity. (T. 25.) The ALJ relied on Plaintiff’s “persistent smoking” and
examinations which documented generally good lung sounds and good air movement.
(Id.) The ALJ also discussed Dr. Gearhart’s opinion and diagnostic testing. (Id.) The
ALJ afforded Dr. Gearhart’s respiratory limitations “little weight” because they were nonspecific and not consistent with objective evidence. (Id.) The ALJ stressed that
pulmonary tests concluded that despite moderate obstruction, Plaintiff had significant
improvement with treatment. (Id.)
Indeed, the record indicated that despite her asthma, and against medical
advice, Plaintiff continued to smoke cigarettes and marijuana. (T. 661, 664-665, 667,
668, 673, 674, 676, 678, 680-681, 684-685, 776, 779, 785, 789, 791-792, 827-828.)
Examinations in the record also generally indicated clear lungs. (T. 661-662, 664-665,
667-668, 673, 676, 678, 785, 791-792, 827.) The ALJ’s physical RFC determination did
not provide for respiratory limitations; however, the ALJ properly determined at step two

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that Plaintiff’s asthma did not result in more than minimal limitations in her ability to
perform basic work related activities. Therefore, despite Dr. Gearhart’s opinion,
substantial evident in the record supported the ALJ’s determination.
Plaintiff also appears to suggest that evidence in the record supported greater
mental limitations than imposed by the ALJ. (Dkt. No. 9 at 3-5 [Pl.’s Mem. of Law].) In
formulating Plaintiff’s mental RFC the ALJ considered mental health treatment notations
from Columbia County Mental Health Center where Plaintiff received counseling from
Jennifer Samuels, LCSW; treatment notations from Plaintiff’s primary care provider
Daniel Patel, M.D.; consultative examiner Alex Gindes, Ph.D.; State agency medical
consultant, H. Ferrin; and Plaintiff’s testimony. (T. 30-32.) As previously stated herein,
an ALJ’s RFC determination need not track one medical opinion.
The ALJ determined that Plaintiff could perform her past relevant work as a
house/business cleaner. (T. 33.) This work is classified as unskilled work. DOT
323.687-014. Unskilled work is work which “needs little or no judgment to do simple
duties that can be learned on the job in a short period of time. . . . and a person can
usually learn to do the job in 30 days, and little specific vocational preparation and
judgment are needed.” SSR 83-10, 1983 WL 31251, at *7. Additionally, basic mental
work activities include the ability to: understand, carry out, and remember simple
instructions; use judgment; respond appropriately to supervision, co-workers and usual
work situations; and deal with changes in a routine work setting. 20 C.F.R. §§
404.1521(b)(3)-(6), 416.921(b)(3)-(6), see also SSR 85-15, 1985 WL 56857. The ALJ’s
determination that Plaintiff could perform unskilled work is supported by substantial
evidence in the record.

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Indeed, Ms. Samuels opined Plaintiff had “moderate” limitations understanding,
remembering, and carrying out simple instructions. (T. 834.) 2 Plaintiff appears to argue
that Ms. Samuels’s opinion, that Plaintiff had moderate limitations, is indicative of
greater restrictions than imposed by the ALJ. (Dkt. No. 9 at 4 [Pl.’s Mem. of Law].)
However, the Second Circuit has held that moderate limitations in work related
functioning does not significantly limit, and thus prevent, a plaintiff from performing
unskilled work. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (“None of the
clinicians who examined [plaintiff] indicated that she had anything more than moderate
limitations in her work-related functioning, and most reported less severe limitations.”).
Dr. Gindes opined that Plaintiff could follow, understand, and perform simple tasks
independently. (T. 766.) Dr. Ferrin opined Plaintiff could understand and remember
instructions, and sustain attention and concentrations for tasks. (T. 106.) Although the
ALJ afforded the various opinions “some” weight, the ALJ’s determination that Plaintiff
could perform unskilled work is clearly consistent with, and supported by, the totality of
the opinions in the record.
Plaintiff summarizes evidence in the record indicating she had marked limitations
in performing complex tasks (Dkt. No. 9 at 3-4 [Pl.’s Mem. of Law]); however, the ALJ
limited Plaintiff to unskilled work which does not require Plaintiff to perform complex
tasks. Therefore, the ALJ’s RFC determination limiting Plaintiff to unskilled work is not
inconsistent with opinions that Plaintiff had marked limitation in performing complex
work.

2

“Moderate” is defined as “more than a slight limitation in this area but the individual is still able to
function satisfactorily.” (T. 834.)

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The ALJ further limited Plaintiff to “semi-low contact with coworkers and the
public, defined as having frequent, but not constant interaction.” (T. 28.) The ALJ
determined that the record as a whole, including Plaintiff’s activities, clinical findings and
medical treatment supported his conclusion that Plaintiff had adequate social skills. (T.
32.) Although Ms. Samuels opined Plaintiff had marked limitations in her ability to deal
with the public and supervisors, and Dr. Gindes opined Plaintiff was “not likely” able to
relate adequately with others or deal with stress, the ALJ properly relied on other
opinion evidence and Plaintiff’s testimony in making his determination. (Id.); see Domm
v. Colvin, 579 F. App’x 27 (2d Cir. 2014) (ALJ had properly pointed to substantial
evidence to support RFC determination including the conclusion of medical sources and
plaintiff’s testimony regarding her daily functioning).
Indeed, the ALJ stated he incorporated Ms. Samuels’s opinion that Plaintiff had
“moderate” limitations in her ability to interact appropriately with the public and interact
appropriately with supervisors in his RFC determination. (T. 32.) As stated herein, a
moderate limitation would not necessarily preclude the ability to perform unskilled work.
The ALJ’s determination is also consistent with the opinion of Dr. Ferrin who stated that
Plaintiff “would benefit from an environment where she is precluded from intensive
interaction with the public or tasks involving a high degree of stress, but appears
capable of routine interactions with coworkers and supervisors, and able to manage
basic changes and make routine decisions.” (T. 106.)
Plaintiff’s testimony also supports the ALJ’s RFC determination regarding social
interaction. Plaintiff reported that although she tried to do everything on the phone, she
was able to manage administrative details for her aunt’s estate and deal with Social

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Services for her son. (T. 664.) Plaintiff testified at the hearing that she was able to
work with others to advocate for her disabled son. (T. 57.) Plaintiff also reported that
her anxiety was more manageable and she was able to “get off the couch and do
things” even though she did not have the focus she would like to. (T. 687.)
Overall, substantial evidence in the record supported the ALJ’s determination
that despite difficulties maintaining appropriate social interactions, Plaintiff could have
“frequent” but not “constant” contact with coworkers, supervisors and the public. Of
note, according to the DOT, interaction with people in the occupation of housekeeper is
listed as “Level 8 -Taking Instructions - Helping” and the degree is listed as “not
significant.” DOT 323.687-014. Level 8 is defined as “attending to the work assignment
instructions or orders of supervisor. No immediate response required unless clarification
of instructions or orders is needed. Helping applies to non-learning helpers.” DOT, App.
B, 1991 WL 688701 (internal quotations omitted). Therefore, based on the information
provided in the DOT, the occupation of housekeeper requires an even lesser degree of
social interaction than accounted for in the ALJ’s RFC.
Therefore, for the reasons stated herein, and further outlined in Defendant’s brief,
the ALJ’s RFC determination was supported by substantial evidence in the record and
the ALJ’s determination is upheld.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12)
GRANTED; and it is further

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ORDERED that Defendant’s unfavorable determination is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated:

May 16, 2017

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