Lajoy v. Commissioner of Social Security
Filing
21
DECISION AND ORDER: that plaintiff's motion for judgment on the pleadings (Dkt. No. 12 ) be Denied, and that the Commissioner's cross motion for judgment on the pleadings (Dkt. No. 20 ) be Granted, the Acting Commissioner's determina tion be Affirmed, and judgment be entered Dismissing plaintiff's complaint in this action and that the clerk of the court serve a copy of this decision and order upon the parties in accordance with this court's local rules. Signed by Magistrate Judge David E. Peebles on 09/20/2018. (Copy of this Decision and Order was served upon pro se plaintiff at 780 Youngs Corners Road, Amsterdam, NY 12010 via regular and certified mail on 9/20/2018.)(hmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MARK ROBERT L.
Plaintiff,
Civil Action No.
1:17-CV-0142 (DEP)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
MARK ROBERT L., Pro se
780 Youngs Corners Road
Amsterdam, NY 12010
FOR DEFENDANT:
HON. GRANT C. JAQUITH
United States Attorney for the
Northern District of New York
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261
FERGUS J. KAISER, ESQ.
JOSHUA L. KERSHNER, ESQ.
Special Assistant U.S. Attorney
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
DECISION AND ORDER
Plaintiff Mark Robert L., who is proceeding pro se, has commenced
this action pursuant to 42 U.S.C. § 405(g), challenging a determination by
the Acting Commissioner of Social Security ("Commissioner"), finding that
he was not disabled at the relevant times and thus is ineligible to receive
disability insurance benefits ("DIB") pursuant to Title II the Social Security
Act. In his brief, which was prepared by his now-deceased counsel,
plaintiff argues that the administrative law judge ("ALJ") who heard and
decided the matter failed to consider the impact of migraine headaches on
his ability to work, and selectively relied upon certain opinions of plaintiff's
treating physicians, while disregarding more limiting portions of their
medical source statements.
Having carefully reviewed the record that was before the agency and
applied the requisite deferential standard, I find that the Commissioner's
determination resulted from the application of proper legal principles and is
supported by substantial evidence. Accordingly, for the reasons that
follow, the Commissioner's determination is affirmed, and plaintiff's
complaint is dismissed.1
1
This matter is before me on consent of the parties pursuant to 28 U.S.C. §
636(c) and General Order No. 18 of this court. See Dkt. No. 4.
2
I.
BACKGROUND
Plaintiff was born in August 1966, and is currently fifty-two years old.
Administrative Transcript at 80, 92, 286, 297.2 At the time of his alleged
disability onset date of January 1, 2012, plaintiff was forty-five years of
age. AT 92, 286. Plaintiff, who is single and does not have any biological
children, lives in a house that he shares with a friend. AT 92-93, 102. He
graduated from high school and took vocational classes in the field of
automotive mechanics. AT 93.
Before being laid off from his job as a sales consultant with an
automobile dealership, plaintiff last worked in January 2012. AT 94. Prior
to that, plaintiff spent his career in automotive sales and service, at one
point owning his own used car dealership. 3 AT 96-97.
Plaintiff's medical records reflect that he suffers from both physical
and mental impairments, including, inter alia, lumbar degenerative disc
disease and degenerative joint disease, chronic obstructive pulmonary
disease ("COPD"), left shoulder arthritis status post-surgery, and affective
2
The administrative transcript, which consists of a compilation of medical records
and other evidence that was before the agency at the time of its determination in this
matter, and was filed by the Acting Commissioner on June 29, 2017, Dkt. No. 9, will be
hereinafter cited as "AT ___."
3
Plaintiff's medical records also contain passing references to his ownership of
"private poker club." See, e.g., AT 519, 646.
3
disorder. Physically, he experiences daily, constant lower back pain that
radiates into his right leg and causes tenderness to palpitation, spasms,
and stiffness. AT 97-101; see AT 1276 ("single level degenerative disc and
joint disease at L4-5 producing mild degrees of central and forminal
stenosis"). Plaintiff has been seen by an orthopedic physician and a pain
management doctor, has engaged the services of a physical therapist, and
has undergone lumbar medial branch block injections and lumbar epidural
steroid injunctions. AT 97-101; see AT 407, 419-25, 655-57, 1019.
Plaintiff's back pain is generally managed with the use of hydrocodone as
needed. AT 97-99; see AT 1035, 1147.
Orthopedist Gerald Ortiz ("Dr. Ortiz") 4 performed left shoulder
surgery on plaintiff on November 1, 2013, as well as left carpal and cubital
tunnel releases on December 3, 2014. AT 106-07; see AT 990-91, 113334. Plaintiff described his left shoulder as being "a lot better" since the
surgery, with only occasional pain and limited left hand mobility. AT 10607. However, plaintiff testified that as a result of those interventions, he
would be unable to lift anything heavier than a coffee cup from overhead.
Id. At the time of the hearing, plaintiff anticipated that he would be
4
Both ALJ Farrell and plaintiff refer to Dr. Gerald Ortiz as "Dr. Gerald." See AT
78; see also Dkt. No. 12 at 1.
4
undergoing a right carpal tunnel release in the future. AT 107; see e.g., AT
355 (noting the presence of bilateral mild carpal tunnel syndrome).
When ALJ Terence Farrell observed during the hearing that plaintiff
was "coughing a lot" and had used an inhaler, plaintiff responded that it
was a normal day for him. AT 107-09. Plaintiff described his breathing
problems as lifelong, dating back to a tracheotomy that he had as an
infant, and his issues with COPD are well-documented in his records. AT
97; see AT 356, 583 ("Patient with long standing history of COPD."), 59394. When plaintiff has a "coughing episode," it can result in a loss of
oxygen, which makes him feel as though he might "black out." AT 109110. Plaintiff has used several different types of medication to manage his
respiratory symptoms, and at the time of the hearing he was using
Ventolin, Symbicort, and Spiriva. AT 101-02; see AT 593-600. Plaintiff is
also a smoker, and smokes anywhere from "less than a pack" to two
packs of cigarettes per day. AT 111-12, 301, 322, 347.
In addition to his physical conditions, plaintiff also suffers from an
affective disorder, which manifests itself as depression and anxiety.
Plaintiff receives mental health treatment from St. Mary's Healthcare,
including from Jessica Terwilliger, Psy. D. ("Dr. Terwilliger"). AT 102, 11011, 603-54. Although plaintiff is taking Remeron, he believes that despite
5
the use of that medication, his symptoms interfere with his ability to work.
AT 102-03.
According to plaintiff's testimony, he is frequently unable to get out of
bed and otherwise tend to his basic hygiene needs. AT 103-07. Despite
that testimony, the record reflects that he partakes in a fairly wide range of
daily activities, including light cooking, watching television, using his laptop
computer, sitting on the deck of his house, caring for his friend's two dogs,
light housekeeping, and occasional driving. AT 103-07; but see AT 347
(noting that plaintiff "can do some cooking, laundry, and shopping" and
that he can "shower, bathe, and dress"). His medical records also indicate
that he engages in grocery shopping, working in his yard, mowing his
lawn, light mechanical work, and chopping, lifting, and moving wood. AT 8,
22, 235-36, 317, 321, 361, 599. Plaintiff's other hobbies and interests
include watching television, playing poker, fishing, playing football, and
drag racing. AT 236, 361, 520.
II.
PROCEDURAL HISTORY
A.
Proceedings Before the Agency
Plaintiff applied for DIB pursuant to Title II of the Act on July 13,
2013.5 AT 197-202; see AT 203-05. In his application, plaintiff alleged a
5
On January 18, 2017, the Social Security Administration ("SSA") published a
6
disability onset date of January 1, 2012. Id. Plaintiff's claim was initially
denied on November 6, 2013. AT 126.
On April 21, 2015, ALJ Farrell conducted a hearing at which both
plaintiff and a vocational expert testified. AT 87-125. On July 25, 2015,
ALJ Farrell issued a written decision in which he found that plaintiff was
not disabled at the relevant times and therefore not entitled to the benefits
sought. AT 73-86.
After determining that plaintiff was insured for disability benefits
under Title II through December 31, 2014, ALJ Farrell went on to apply the
well-settled, five-step sequential test for determining disability. 6 AT 73-86.
At step one, he concluded that plaintiff did not engage in substantial
gainful activity between January 1, 2012, his alleged onset date, and
December 31, 2014, his date of last insured. AT 75. ALJ Farrell then
concluded, at step two, that plaintiff suffers from several severe
impairments which limit his ability to perform basic work activities,
final rule that changed the protocol evaluation of medical opinion evidence. See
Revisions to Rules Regarding the Evaluation of Medical Opinion Evidence, 82 Fed.
Reg. 5844 (Jan. 18, 2017) (codified at 20 C.F.R. §§ 404 & 416). Those new regulations
apply only to claims filed with the SSA on or after March 27, 2017. Because plaintiff's
claims were filed prior to that date, to the extent that the regulations are cited, the court
is referring to the versions of the regulations that were in effect prior to March 27, 2017.
6
That test is described further on in this opinion. See pp. 13-15, post.
7
including lumbar degenerative disc disease and degenerative joint
disease, COPD, left shoulder arthritis status-post surgery, and an affective
disorder. Id. ALJ Farrell further noted that plaintiff suffered from several
non-severe impairments, including sleep apnea, hypertension,
gastroesophageal reflux disease ("GERD"), and a history of bilateral
carpal tunnel and left cubital tunnel syndrome, but found that those
conditions did not impose any limitation on plaintiff's ability to perform
work-related functions. AT 75-76. At step three, ALJ Farrell concluded that
plaintiff's conditions, whether taken alone or in combination, did not meet
or medically equal in severity any of the presumptively disabling
impairments listed in the Commissioner's regulations, 20 C.F.R. Pt. 404,
Subpt. P, App. 1. AT 76.
ALJ Farrell next proceeded to survey the available evidence,
concluding that despite his conditions, plaintiff retains the residual
functional capacity ("RFC") to perform a full range of light work, subject to
certain limitations, including that he can "occasionally lift, carry, push, and
pull twenty pounds, and can frequently lift, carry, push, and pull ten
pounds." AT 76. He further found that plaintiff can occasionally reach
overhead with his non-dominant, upper extremity; can stand and walk two
hours with some limitations; can sit eight hours in a workday with some
8
limitations; can occasionally balance, crawl, crouch, stoop, and kneel; can
occasionally climb stairs and ramps; and can never climb ladders, ropes,
and scaffolds. AT 75-76. ALJ Farrell determined that plaintiff should also
avoid concentrated exposure to respiratory irritants. AT 77.
Applying that RFC, ALJ Farrell concluded that plaintiff's RFC
prevents him from performing his past, relevant work in automotive sales
and service. AT 79-80. At step five, the ALJ consulted the medical
vocational guidelines set forth in the regulations ("grids"), 20 C.F.R. Pt.
404, Subpt. P, App. 2, and concluded that a finding of no disability would
be required under Medical Vocational Rule 202.21 if plaintiff retained the
RFC to perform a full range of light work. AT 80. After consulting with a
vocational expert to determine the extent of job base erosion resulting
from plaintiff's non-exertional limitations, ALJ Farrell concluded that
despite his conditions, plaintiff is capable of working in positions available
in sufficient numbers in the national economy, including as a final
assembler, an order clerk, and a lens inserter, and therefore held that
plaintiff was not disabled at the relevant times. AT 80-81.
Upon the denial by the Social Security Administration Appeals
Council of plaintiff's request for review of the ALJ's decision on December
9, 2016, the opinion became a final determination of the agency. AT 1-7.
9
B.
Proceedings Before This Court
Plaintiff commenced this action on February 8, 2017, and was
granted leave to proceed in forma pauperis. Dkt. Nos. 1, 6. Following the
filing by the Commissioner of the administrative transcript of proceedings
and evidence before the agency on July 24, 2017, Dkt. No. 9, plaintiff
submitted a counseled brief on September 13, 2017, Dkt. No. 12. The
Commissioner responded with a brief filed on March 16, 2018, Dkt. No.
20. Under General Order No. 18 of this court, the matter is now
considered as having been submitted on cross-motions by the parties for
judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure.
III.
DISCUSSION
A.
Scope of Review
A court's review under 42 U.S.C. § 405(g) of a final decision by the
Commissioner is limited; that review requires a determination of whether
the correct legal standards were applied, and whether the decision is
supported by substantial evidence. Veino v. Barnhart, 312 F.3d 578, 586
(2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal
v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Martone v. Apfel, 70 F. Supp.
2d 145, 148 (N.D.N.Y. 1999) (Hurd, J.) (citing Johnson v. Bowen, 817 F.2d
10
983, 985 (2d Cir. 1987)). Where there is reasonable doubt as to whether
the Commissioner applied the proper legal standards, his decision should
not be affirmed even though the ultimate conclusion reached is arguably
supported by substantial evidence. Martone, 70 F. Supp. 2d at 148 (citing
Johnson, 817 F.2d at 986). If, however, the correct legal standards have
been applied, and the ALJ's findings are supported by substantial
evidence, those findings are conclusive, and the decision should withstand
judicial scrutiny regardless of whether the reviewing court might have
reached a contrary result if acting as the trier of fact. Veino, 312 F.3d at
586; Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988); Barnett v.
Apfel, 13 F. Supp. 2d 312, 314 (N.D.N.Y. 1998) (Hurd, M.J.); see also 42
U.S.C. § 405(g).
The term "substantial evidence" 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(1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Jasinski v.
Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). To be substantial, there must
be " 'more than a mere scintilla' " of evidence scattered throughout the
administrative record. Richardson, 402 U.S. at 401 (quoting Consol.
Edison Co., 308 U.S. at 229); Martone, 70 F. Supp. 2d at 148 (quoting
11
Richardson, 402 U.S. at 401). "To determine on appeal whether an ALJ's
findings are supported by substantial evidence, a reviewing court
considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include
that which detracts from its weight." Williams, 859 F.2d at 258 (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951; Mongeur v.
Hechler, 722 F.2d 1033, 1038 (2d Cir. 1983)).
When a reviewing court concludes that incorrect legal standards
have been applied, and/or that substantial evidence does not support the
agency's determination, the agency's decision should be reversed. 42
U.S.C. § 405(g); see Martone, 70 F. Supp. 2d at 148. In such a case the
court may remand the matter to the Commissioner under sentence four of
42 U.S.C. § 405(g), particularly if deemed necessary to allow the ALJ to
develop a full and fair record or to explain his or her reasoning. Martone,
70 F. Supp. 2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980)). A remand pursuant to sentence six of section 405(g) is warranted
if new, non-cumulative evidence proffered to the district court should be
considered at the agency level. See Lisa v. Sec'y of Dep't of Health &
Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). Reversal without remand,
while unusual, is appropriate when there is "persuasive proof of disability"
12
in the record and it would serve no useful purpose to remand the matter
for further proceedings before the agency. See Parker, 626 F.2d at 235;
see also Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir.
1992); Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 644 (2d
Cir. 1983).
B.
Disability Determination: The Five Step Evaluation Process
The Social Security Act ("Act") defines "disability" to include the
"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). In addition, the Act requires that a claimant’s
physical or mental impairment or impairments
[must be] 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, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
Id. § 423(d)(2)(A).
The agency has prescribed a five-step evaluative process to be
employed in determining whether an individual is disabled. See 20 C.F.R.
13
§§ 404.1520, 416.920. The first step requires a determination of whether
the claimant is engaging in substantial gainful activity; if so, then the
claimant is not disabled, and the inquiry need proceed no further. Id. §§
404.1520(b), 416.920(b). If the claimant is not gainfully employed, then the
second step involves an examination of whether the claimant has a severe
impairment or combination of impairments which significantly restricts his
or his physical or mental ability to perform basic work activities. Id. §§
404.1520(c), 416.920(c). If the claimant is found to suffer from such an
impairment, the agency must next determine whether it meets or equals
an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d),
416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant
is "presumptively disabled." Martone, 70 F. Supp. 2d at 149 (citing Ferraris
v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984)); 20 C.F.R. §§ 404.1520(d),
416.920(d).
If the claimant is not presumptively disabled, step four requires an
assessment of whether the claimant’s RFC precludes the performance of
his or his past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If it is
determined that it does, then as a final matter, the agency must examine
whether the claimant can do any other work. Id. §§ 404.1520(f),
416.920(f).
14
The burden of showing that the claimant cannot perform past work
lies with the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996);
Ferraris, 728 F.2d at 584. Once that burden has been met, however, it
becomes incumbent upon the agency to prove that the claimant is capable
of performing other work. Perez, 77 F.3d at 46. In deciding whether that
burden has been met, the ALJ should consider the claimant’s RFC, age,
education, past work experience, and transferability of skills. Ferraris, 728
F.2d at 585; Martone, 70 F. Supp. 2d at 150.
C.
Analysis
1.
Whether the ALJ Properly Assessed Plaintiff's Severe
Impairments
Plaintiff's medical records contain passing references to headaches
or migraines. See, e.g., AT 1028 ("intense headaches"), 1057, 1098, 1110,
1168-69, 1171; but see, e.g., AT 500 ("[d]enies . . . headache"), 539, 564,
682. Plaintiff argues that in arriving at his RFC, ALJ Farrell failed to
consider the impact of migraine headaches upon his ability to perform
work-related functions, including the documented frequency in which they
occur. Dkt. No. 12 at 1, 3-4. The Commissioner counters that although
plaintiff sought treatment for headaches between September 2014 and
December 31, 2014, his date of last insured, there is no evidence in the
record that migraines significantly impact his ability to work. Dkt. No. 20 at
15
5-6.
At the second step of the sequential evaluation process, an ALJ
must decide whether a plaintiff has a severe impairment, which is defined
as one that "significantly limit[s] [the plaintiff's] physical or mental ability to
do basic work activities." 20 C.F.R. § 404.1522(a). The relevant section of
the regulations defines the phrase "basic work activities" to include "the
abilities and aptitudes necessary to do most jobs.” Id. at § 404.1521(b). As
a result, the severity of an impairment is determined by the limitations
imposed by the impairment, and not merely by diagnosis of the
impairment. Ellis v. Comm'r of Soc. Sec., No. 11-CV-1205, 2012 WL
5464632, at *4 (N.D.N.Y. Sept. 7, 2012) (citing Coleman v. Shalala, 895 F.
Supp 50, 53 (S.D.N.Y. 1995)); see also McConnell v. Astrue, No. 03-CV0521, 2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008). Put another way,
the mere presence of a disease or impairment alone, is insufficient to
establish disability; instead, it is the impact of that impairment, and in
particular any limitations that it may impose upon the ability to perform
basic work functions, that is pivotal to the disability inquiry. See Rivera v.
Harris, 623 F.2d 212, 215-16 (2d Cir. 1980); Durgan v. Astrue, No. 12-CV279, 2013 WL 1122568, at *3 (N.D.N.Y. Feb. 19, 2013) ("[A] diagnosis
alone is insufficient to establish a severe impairment as instead, the
16
plaintiff must show that the medically determinable impairments
significantly limit the ability to engage in basic work activities.").
"The second step requirement under the prescribed disability
analysis is truly de minimis, and intended only to screen out the truly
weakest of cases." Davis v. Colvin, No. 11-CV-0658, 2013 WL 1183000,
at *8 (N.D.N.Y. Feb. 27, 2013) (citing Dixon v. Shalala, 54 F.3d 1019,
1030 (2d Cir. 1995)); see Baneky v. Apfel, 997 F. Supp. 543, 545-46
(S.D.N.Y.1998). At step two, a plaintiff bears the burden to provide
medical evidence demonstrating the severity of a condition. 20 C.F.R. §
404.1520(c); see Bowen v. Yuckert, 482 U .S. 137, 146 (1987); see also
Desmond v. Astrue, No. 11-CV-0818, 2012 WL 6648625, at *3 (N.D.N.Y.
Dec. 20, 2012) (Bianchini, M.J.) (citing Miller v. Comm'r of Soc. Sec., No.
05-CV-1371, 2008 WL 2783418, at *6–7 (N.D.N.Y. July 2008) (Scullin,
J.)). If an ALJ finds that one or more of a plaintiff's impairments are severe,
any error at step two in rejecting as non-severe other conditions may be
harmless if the ALJ continues with " 'the sequential analysis, and does not
deny plaintiff's application based on the second step alone.' " Tryon v.
Astrue, No. 10-CV-537, 2012 WL 398952, at *3 (N.D.N.Y. Feb. 7, 2012)
(D'Agostino, J.) (quoting Kemp v. Comm'r of Soc. Sec., No. 10-CV-1244,
2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011)).
17
As the Commissioner correctly observes, plaintiff never argued
before the agency that migraines contribute to his disability. In his
disability report, plaintiff listed his disabling medical conditions as asthma,
COPD, anxiety, and depression. AT 217. In a function report completed by
plaintiff on August 26, 2013, he mentioned other conditions, including
stress, COPD, and his back condition, but he did not reference
headaches. AT 232-43. In support of his application for benefits, plaintiff
listed asthma, COPD, major depression, and anxiety as the illnesses,
injuries, or conditions that limit his ability to work. AT 200. During the
hearing held on April 21, 2015, when asked what conditions limit his ability
to work, plaintiff discussed other conditions at length, but made no
mention of headaches. AT 97-107. Indeed, migraines are nowhere
mentioned in either plaintiff's memoranda to the Appeals Council in
support of her request for review, see AT 286-95, or in his complaint in this
action, see Dkt. No. 1.
It is true that plaintiff's medical records indicate that he began
complaining of headaches when he presented to Dr. Jamshaid A. Minhas
("Dr. Minhas") on September 30, 2014. AT 1174-75; see AT 1028-29
("intense headaches"). At that time, Dr. Minhas noted that plaintiff's
headaches occurred mostly "in the middle of the night," but that he would
18
have a steady, mild headache during the day. AT 1174. Although the
headaches occurred up to four times per week, they did not result in
plaintiff's nausea, sensitivity to light, or sensitivity to sound. Id. Moreover,
ibuprofen reportedly relieved plaintiff's symptoms. Id. Over the course of
several months, Dr. Minhas prescribed different prescriptions, including
Topamax, Imitrex, and Depakote to relieve plaintiff's headache symptoms.
AT 1168-80.
There is no indication whatsoever among the available medical
evidence that plaintiff's migraines limit his ability to perform work-related
functions. Despite his treatment course, plaintiff has demonstrated, at
best, that he has merely treated for and been diagnosed with migraines,
which is not sufficient to deem a condition severe. Tryon, 2012 WL
398952, at *3. The medical records do not indicate that the migraines,
which plaintiff experiences up to four times per week and are steady and
mild in nature, impose limitations on his ability to perform basic work
functions. See id.; see also Warthan v. Comm'r of Soc. Sec., No. 7:16-CV0036, 2017 WL 79975, at *6 (N.D.N.Y. Jan. 9, 2017) (Suddaby, C.J.). It
was plaintiff's burden to establish limiting affects based on his migraine
headaches. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). Although
plaintiff complained generally of headaches to Dr. Minhas, who was also
19
treating him for other issues, there is no information in the doctor's
treatment notes regarding limitations that resulted exclusively from his
migraines. AT 1168-80.
In sum, I find no error in ALJ Farrell's step two analysis. Simply
stated, plaintiff has failed to carry his burden of demonstrating the
existence of work-related limitations associated with his migraine
headaches. 7
2.
Whether the ALJ Properly Weighed the Medical Opinions
in the Record
In order to evaluate a claim of disability, an ALJ must assess a
claimant's RFC. A claimant's RFC represents a finding of the range of
tasks she is capable of performing notwithstanding the impairments at
issue. 20 C.F.R. § 404.1545(a). An RFC determination is informed by
consideration of a claimant's physical abilities, mental abilities,
symptomology, including pain, and other limitations which could interfere
with work activities on a regular and continuing basis. Id.; Martone, 70 F.
7
ALJ Farrell concluded that plaintiff suffered from several severe impairments,
including lumbar degenerative disc disease and degenerative joint disease, COPD, left
shoulder arthritis status-post surgery, which limited his ability to perform basic work
activities. AT 75. Accordingly, as was noted above, because the ALJ continued with the
sequential analysis and did not deny the claim based on the lack of a severe
impairment alone, any purported error in failing to consider plaintiff's migraines, which
plaintiff did not raise at any point in the proceedings below, was harmless and would
not necessitate remand. Tryon, 2012 WL 398952 at *3.
20
Supp. 2d at 150. " 'Ultimately, [a]ny impairment-related limitations created
by an individual's response to demands of work . . . must be reflected in
the RFC assessment.' " Smith v. Comm'r of Soc. Sec., No. 5:17-CV-0488,
2018 WL 1684337, at *4 (N.D.N.Y. Apr. 5, 2018) (Suddaby, C.J.) (quoting
Hendrickson v. Astrue, No. No. 5:11-CV-0927, 2012 WL 7784156, at *3
(N.D.N.Y. Dec. 11, 2012)); see also SSR 85-15, 1985 WL 56857, at *8
(Jan. 1, 1985). Moreover, the RFC determination "must be set forth with
sufficient specificity to enable [the court] to decide whether the
determination is supported by substantial evidence.” Ferraris, 728 F.2d at
587.
The ALJ is tasked with the responsibility of reviewing all the
evidence before him, resolving inconsistencies, and making a
determination consistent with the evidence as a whole. See Camarata v.
Colvin, No. 6:14-CV-0578, 2015 WL 4598811, at *9 (N.D.N.Y. July 29,
2015) (D'Agostino, J.) ("[I]t is the province of the ALJ to consider and
resolve conflicts in the evidence as long as the decision rests upon
'adequate findings supported by evidence having rational probative
force.' ") (quoting Galiotti v. Astrue, 266 F. App'x. 66, 67 (2d Cir. 2008)).
However, because an ALJ is not required to strictly adhere to the entirety
of one medical source's opinion, the ALJ's conclusion need not "perfectly
21
correspond with any of the opinions of medical sources cited in his
decision, [because an ALJ is] entitled to weigh all of the evidence available
to make an RFC finding that was consistent with the record as a whole."
Matta v. Astrue, 508 F. Appx. 53, 56 (2d Cir. 2013) (summary order); see
Kikta v. Comm'r of Soc. Sec., No. 5:15-CV-0060, 2016 WL 825259, at *9
(N.D.N.Y. Feb. 9, 2016) (Baxter, M.J.) (citing Pellam v. Astrue, 508 F.
App'x 87, 89 (2d Cir. 2013) (summary order)). Consequently, there is no
requirement that an ALJ accept every limitation in an opinion where
portions of that opinion are not supported by the evidence. See, e.g.,
Crumedy v. Comm'r of Soc. Sec., No. 1:16-CV-1261, 2017 WL 4480184,
at *5 (N.D.N.Y. Oct. 6, 2017) (Suddaby, C.J.); Florek v. Comm'r of Soc.
Sec., No. 1:08-CV-0919, 2009 WL 3486643, at *10 (N.D.N.Y. Oct. 21,
2009) (Mordue, C.J., adopting report and recommendation of Peebles,
M.J.) ("the fact that the ALJ did not accept every limitation indicated by Dr.
Payne is not a ground for reversal or remand.").
As the Second Circuit has noted, the plaintiff bears the burden of
demonstrating limitations that must be included in an RFC. Stanton v.
Astrue, 370 F. App'x. 231, 234 (2d Cir. 2010); Poupore, 566 F.3d at 306.
In this instance, having carefully reviewed the available medical evidence,
for the reasons that follow, I conclude that the physical and mental
22
components of the ALJ's RFC finding are supported by substantial
evidence, and plaintiff has failed to carry his burden of demonstrating the
existence of more limited restrictions in his ability to perform work-related
functions.
1.
The Opinion of Dr. Terwilliger
Plaintiff argues first that ALJ Farrell "selectively relied" upon the
opinion of Dr. Terwilliger. Dkt. No. 12 at 1, 4-5. Plaintiff concedes that Dr.
Terwilliger found "mostly mild limitations," but argues that ALJ Farrell failed
to account for her opinion that plaintiff was moderately limited in the ability
to "[a]ccept instructions and respond appropriately to criticism from
supervisors." Id. (citing AT 1152).
In response, the Commissioner contends that plaintiff fails to explain
how the moderate mental limitation would impact the ALJ's decision that
plaintiff can perform unskilled work. Dkt No. 20 at 6-7. The Commissioner
further argues that there is no requirement that the ALJ accept every
limitation contained in a medical opinion. Id. at 7-8. In addition, the
Commissioner argues to extent that ALJ Farrell's failure to discuss the
moderate limitation could be considered an error, that error is harmless
because the vocational expert identified two positions capable of being
performed by plaintiff, despite that additional limitation. Id. at 8-9.
23
At the outset, Dr. Terwilliger opined that a majority of plaintiff's
limitations are mild in nature, including five out of six categories that
involve his social interactions. AT 1152. In the sixth category of social
interactions, she opined that plaintiff is moderately limited with respect to
his ability to, inter alia, "[a]ccept instructions and respond appropriately to
criticism from supervisors." Id.
According to a Function Report, dated August 26, 2013, and
completed by plaintiff, he denied having "any problems getting along with
family, friends, neighbors, or others," see AT 232-42. Dr. Kachigere
Krishnappa ("Dr. Krishnappa"), a treating psychologist in the same
practice as Dr. Terwilliger, assigned plaintiff a global assessment of
functioning ("GAF") score of 65, "which is an indication that treating and
examining source believed that that [plaintiff] had only has mild symptoms
and some difficulty in social . . . functioning." AT 78 (citing AT 343); but
see 523 (documenting a GAF score of 52). In addition, Brett T. Hartman,
Psy. D. ("Dr Hartman"), a consultative psychologist, opined that plaintiff
was only mildly limited in his ability to relate "adequately with others." AT
361; see also AT 133 (observing that plaintiff suffered from mild difficulties
in social functioning), 135.
Additionally, ALJ Farrell observed that plaintiff was "not entirely
24
credible" and that his testimony—particularly with respect to his mental
health symptoms and limitations—was not well-supported by his reported
activities and the evidence contained in his medical record. AT 77. Thus,
mindful of plaintiff's less-than-credible testimony, and despite Dr.
Terwilliger's opinion that plaintiff had a moderate limitation in one area of
his social functioning, the ALJ concluded that opinions of Dr. Krishnappa
and Dr. Hartman, as well as plaintiff's own disclosures during the
proceedings below, indicated that he was not limited in that respect. ALJ
Farrell was entitled to weigh all of the evidence that was available to him
and arrive at an RFC finding, and his finding is both consistent with the
record as a whole, and supported by substantial evidence.
I note, moreover, that a moderate mental limitation—in this case a
moderate limitation on plaintiff's ability to interact with supervisors—does
not necessarily equate to a disabling functional restriction that would
prevent a plaintiff from performing the basic mental demands required for
unskilled work. See Martinez v. Comm'r of Soc. Sec., No. 3:16-CV-0908,
2017 WL 2633532, at *7 (N.D.N.Y. June 15, 2017) (Carter, M.J.)
("moderate limitations in work related functioning does not significantly
limit, and thus prevent, a plaintiff from performing unskilled work) (citing,
inter alia, Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)).
25
Even to the extent that the ALJ's failure to discuss a single moderate
limitation in plaintiff's social functioning could be considered erroneous,
any such error is harmless because it would not have altered the outcome
in light of the vocational expert's testimony at the hearing. See, e.g., Davis
v. Colvin, No. 5:12-CV-641, 2013 WL 4812024, at *3 (N.D.N.Y. Sept. 10,
2013) (Sharpe, C.J.); Jaghamin v. Comm'r of Soc. Sec., No. 1:11-CV-1273
(GLS), 2013 WL 1292061, at *7 (N.D.N.Y. Mar. 28, 2013) (Sharpe, C.J.)
(citing Walzer v. Chater, No. 93-CV-6240, 1995 WL 791963, at *9
(S.D.N.Y. Sept. 26, 1995)). The vocational expert testified there are three
jobs in the national economy that plaintiff can perform, two of which
require only limited social interaction: final assembler (identified as DOT
713.687-018), and a lens inserter (identified as DOT 703.687.026).8
Accordingly, even if the ALJ had accepted the opinion of Dr. Terwilliger
that plaintiff was moderately limited in his ability to "[a]ccept instructions
and respond appropriately to criticism from supervisors," based upon the
vocational expert's testimony, she would nonetheless have found the
existence of a substantial number of jobs in the national economy that
8
The Dictionary of Occupational Titles, which is published by the United States
Department of Labor, "is a comprehensive listing of job titles in the United States.
Detailed descriptions of requirements for each job include assessments of exertional
level and reasoning ability necessary for satisfactory performance of the work.”
Thomas v. Astrue, No. 3:11-CV-589, 2012 WL 5364275, at *3 n.7 (N.D.N.Y. Sept. 19,
2012).
26
plaintiff would be able to perform with all of the supported limitations.
In light of the foregoing, I conclude that the ALJ's determination was
supported by substantial evidence and that, in any event, any errors in
weighing the opinion evidence, are harmless and do not necessitate
reversal and remand.
2.
The Opinion of Physician's Assistant Karen Taft
Plaintiff next argues that ALJ Farrell "selectively relied" upon the
opinion of Dr. Ortiz in that he failed to offer any rationale with respect to
why he did not accept the portion of that opinion that plaintiff could "never
bend or stoop." Dkt. No. 12 at 1, 5-6 (citing AT 1024). The Commissioner
responds that the opinion was not authored by Dr. Ortiz, but instead a
physician's assistant ("PA") who is not an acceptable medical source, and
in any event, the ALJ nonetheless properly weighed all of the available
evidence and arrived at an RFC that was consistent with the entire record.
Dkt. No. 20 at 11-13.
Preliminarily, as the Commissioner noted, the opinion on which
plaintiff bases his argument was not authored by Dr. Ortiz; rather, the
opinion was authored by a PA Karen Taft, who is supervised by Dr. Ortiz.
AT 1018-25. In assessing whether a PA is considered an acceptable
medical source, the filing date of plaintiff’s claim is pivotal as it determines
27
which set of regulations control in light of the new rules. See p. 6, n. 5,
ante. In particular, in claims with a filing date on or after March 27, 2017,
licensed physicians assistants "for impairments within his or her licensed
scope of practice" are considered among the acceptable medical sources.
20 C.F.R. § 404.1502. Prior to that date, the governing regulations
provided that although an ALJ may consider evidence from a PA, such a
provider is not an "acceptable medical source" and therefore cannot
constitute a "treating source." Evans v. Colvin, 649 F. App'x. 35, 38-39 (2d
Cir. 2016); see 20 C.F.R. § 404.1513(a), (d) (2007); see Saxon v. Astrue,
781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011) ("In weighing the opinions of
'other sources', the ALJ must use the same factors for the evaluation of
the opinions from 'acceptable medical sources' enumerated in [the
regulations]."). Because plaintiff applied for benefits on July 13, 2013, see
AT 197-205, the previous version of the regulations dictate that PA Taft's
opinion is not that of a "treating source."
PA Taft's report, which is in the form of a multiple impairment
questionnaire dated March 4, 2014, reflects her opinion that plaintiff
suffers from lumbar degenerative disc disease, which includes moderate
pain, tenderness to palpitation of the right lumbar paraspinal muscles with
spasm, and lumbar spine stiffness. AT 1018. Based upon that condition,
28
PA Taft determined that plaintiff was subject to certain limitations,
including the complete inability to both bend and stoop.9 AT 1024. In that
respect, ALJ Farrell gave "great weight" to the limitations contained in PA
Taft's opinion—which he incorrectly attributed to Dr. Ortiz—and stated:
Though it is based only on an assessment of the
lower back, the claimant's lower back problem
appears to be the claimant's biggest obstacle to
working. Review of the evidence finds details of his
assessment of lumbar degenerative disc disease for
which the claimant has endured lumbar medial
branch block injections. The claimant is also known
to have tenderness to palpation, spasms, and
stiffness. Diagnostic evidence is also reported to
show degenerative disc disease and mild central
and foraminal stenosis. Dr. [Ortiz] also considered
the claimant's pain levels and believed it would
cause interference with high stress jobs, which is
also incorporated into established residual
functional capacity when limiting to the claimant to
simple and unskilled work.
AT 78-79 (internal citations omitted).
Although ALJ Farrell gave slightly less weight to the opinion of Dr.
Kautilya Puri, a consultative examiner who found "only mild limitations,"
9
According to Social Security Ruling ("SSR") 85-15, stooping is among the
"progressively more strenuous forms of bending parts of the body." SSR 85-15, 1985
WL 56857, at *7. "If a person can stoop occasionally (from very little up to one-third of
the time) in order to lift objects, the sedentary and light occupational base is virtually
intact." Id. SSR 96-9p clarifies by explaining that a complete inability to stoop would
erode the unskilled sedentary occupational base such that "a finding that the individual
is disabled would usually apply." SSR 96-9P, 1996 WL 374185, at *8 (Jul. 2, 1996).
However, a "restriction to occasional stooping should, by itself, only minimally erode
the unskilled occupational base of sedentary work." Id.
29
see 79, Dr. Puri's physical examination revealed "flexion/extension to 70
degrees and lateral rotary movements 10 degrees with mild local
tenderness." AT 348. In addition, on each occasion that plaintiff was
examined by Jason H. Steindler, DO, he documented that plaintiff was
"[m]ildly limited extension with no discomfort. Mildly limited flexion with no
pain on extremes. Mildly limited rotation with no pain." See, e.g., AT 421,
494, 660. Physical therapy notes indicate that plaintiff's flexion was sixtyseven degrees and extension was thirteen degrees. AT 568. On July 22,
2014, Dr. Paul Socico noted that "[w]th regard to h[is] lumbar range of
motion, he can achieve pretty good flexion, to about 90 [degrees]," but that
"[e]xtension beyond midline exacerbates his current pain." AT 1041. In
addition, plaintiff's own testimony indicated that his back would "hurt more"
if he was "bending . . . for a long time." AT 100
As was previously indicated, the fact that ALJ Farrell did not accept
every limitation is not a ground for reversal or remand. See Florek v.
Comm'r of Soc. Sec., No. 1:08-CV-0919, 2009 WL 3486643, at *10
(N.D.N.Y. Oct. 21, 2009) (Mordue, C.J.); see also Crumedy, 2017 WL
4480184, at *5. The ALJ was entitled to weigh all of the evidence available
to him and arrive at an RFC finding that was consistent with the record as
a whole. The finding that plaintiff's condition limits him to only occasionally
30
stooping is supported.
I note, moreover, any perceived error is in this regard would also be
harmless, based on the vocational expert's testimony at the hearing. See,
e.g., Davis, 2013 WL 4812024, at *3; Walzer, 1995 WL 791963, at *9. At
the hearing, the vocational expert identified three jobs in the national
economy that plaintiff could perform, none of which, according to the DOT,
involve stooping: final assembler (identified as DOT 713.687-018), lens
inserter (identified as DOT 703.687.026), and order clerk, food and
beverage (identified as DOT 209.567-014). Accordingly, even if the ALJ
had accepted that plaintiff was unable to stoop, as opined by PA Taft,
there would nonetheless be a substantial number of jobs in the national
economy that plaintiff would be able to perform with all of the supported
limitations.
I conclude that the ALJ's RFC determination was supported by
substantial evidence and that, in any event, any claimed errors in weighing
the opinion evidence are harmless and do not necessitate reversal and
remand.
IV.
SUMMARY AND ORDER
Having carefully considered plaintiff's arguments and reviewed the
available evidence, I find that the ALJ applied the proper legal principles
31
and determined plaintiff's RFC, and that his finding of no disability is
supported by substantial evidence in the record. Accordingly, it is hereby
ORDERED that plaintiff's motion for judgment on the pleadings (Dkt.
No. 12) be DENIED, and that the Commissioner's cross motion for
judgment on the pleadings (Dkt. No. 20) be GRANTED, the Acting
Commissioner's determination be AFFIRMED, and judgment be entered
DISMISSING plaintiff's complaint in this action; and it is further
ORDERED that the clerk of the court serve a copy of this decision
and order upon the parties in accordance with this court's local rules.
Dated:
September 20, 2018
Syracuse, New York
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?