Milano Kearney v. Commissioner of the Social Security Administration
Filing
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MEMORANDUM-DECISION & ORDER ON SOCIAL SECURITY APPEAL: that Plaintiff's Motion for Judgment on the Pleadings is DENIED; that Defendant's Motion for Judgment on the Pleadings is GRANTED; and that Defendant's Motion denying Plaintiff disability benefits is AFFIRMED and the Complaint is DISMISSED. Signed by Magistrate Judge Daniel J. Stewart on 3/27/2024. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
JENNIFER M.K.,
v.
Plaintiff,
1:23-CV-724
(DJS)
MARTIN O’MALLEY 1,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
DENNIS KENNY LAW
Attorney for Plaintiff
288 North Plank Road
Newburgh, New York 12550
JOSEPHINE GOTTESMAN, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
HEETANO SHAMSOODAR, ESQ.
DANIEL J. STEWART
United States Magistrate Judge
Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Martin O’Malley should be substituted for Kilolo Kijakazi as the
Defendant in this action.
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MEMORANDUM-DECISION AND ORDER 2
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), seeking review of a
decision by the Commissioner of Social Security that Plaintiff was not disabled. Dkt.
No. 1. Currently before the Court are Plaintiff’s Motion for Judgment on the Pleadings
and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 12, 16, 17. For the
reasons set forth below, Plaintiff’s Motion for Judgment on the Pleadings is denied and
Defendant’s Motion is granted. The Commissioner’s decision is affirmed and the
Complaint dismissed.
I. RELEVANT BACKGROUND
A. Factual and Procedural Background
Plaintiff was born in 1974. Dkt. No. 8, Admin. Tr. (“Tr.”), p. 239. Plaintiff
reported that she completed high school. Tr. at p. 232. She has past work experience
as a cashier, claims representative, and in food service. Id. Plaintiff alleges disability
due to post thoracotomy pain syndrome, anxiety disorder, migraine headaches,
hypertension, depression, diabetes, and arthritis. Tr. at p. 231. Plaintiff applied for
disability insurance benefits in September 2020. Tr. at p. 62. She alleged a disability
onset date of August 28, 2018, which was later amended to February 7, 2020. Tr. at pp.
12 & 64. Plaintiff’s application was initially denied on March 31, 2021 and upon
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Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this District’s General Order
18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73. See Dkt. No. 7 & General Order 18.
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reconsideration on June 21, 2021, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). Tr. at pp. 97-102, 112-116, & 121-122. Plaintiff
and a vocational expert testified at a hearing before ALJ Laura Olszewski on February
7, 2022. Tr. at pp. 34-61. On July 19, 2022, the ALJ issued a written decision finding
Plaintiff was not disabled under the Social Security Act. Tr. at pp. 12-27. On April 17,
2023, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. Tr. at pp. 1-6.
B. The ALJ’s Decision
In her decision, the ALJ made the following findings of fact and conclusions of
law. First, the ALJ found that Plaintiff met the insured status requirements of the Social
Security Act through September 30, 2021. Tr. at p. 15. Second, the ALJ found that
Plaintiff had not engaged in substantial gainful activity between her amended onset date
and September 30, 2021. Id. Third, the ALJ found that Plaintiff had the following
severe impairments: obesity, osteoarthritis of the right knee, right knee medial and
lateral meniscus tear, status post right knee arthroscopy, carpal tunnel syndrome, post
thoracotomy pain syndrome, migraines, generalized anxiety disorder, sarcoidosis, and
ganglion of the wrist. Id. Fourth, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the
listed impairments in 20 C.F.R. § 404, Subpart P, App. 1. Tr. at pp. 15-16. Fifth, the
ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform less
than the full range light work with the following additional limitations:
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the claimant could lift and or carry twenty pounds occasionally and ten
pounds frequently. She could sit for six hours in an eight-hour workday, and
stand and or walk for six hours in an eight hour workday. She could
occasionally climb ramps and stairs but never climb ladders and scaffolds.
She could occasionally stoop, kneel, crouch and crawl. She could work in a
low stress environment defined as occasional use of judgment, occasional
decision-making, and occasional changes in work setting. She could have
occasional interactions with supervisors, coworkers and the public. She could
perform simple and routine tasks.
Tr. at p. 18.
Next, the ALJ found that Plaintiff was incapable of performing her past relevant
work. Tr. at p. 25. However, the ALJ found that there was work, existing in sufficient
numbers in the national economy that Plaintiff could perform. Tr. at pp. 25-26.
Therefore, the ALJ found that Plaintiff was not disabled. Tr. at p. 26.
II. RELEVANT LEGAL STANDARDS
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
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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 accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (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).
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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 (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 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).
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III. ANALYSIS
Plaintiff makes several arguments in favor of remand. First, she argues that the
ALJ’s RFC determination was not supported by substantial evidence. Dkt. No. 12, Pl.’s
Mem. of Law, pp. 19-23. She then makes a related argument that as a result of the error
in the RFC determination, answers provided by the vocational expert cannot be relied
upon. Id. at p. 23. Finally, Plaintiff contends that the ALJ’s Step Five determination is
erroneous. Id. at pp. 24-25. In response, Defendant asserts that the ALJ properly
evaluated the record and that the analysis and ultimate decision were both supported by
substantial evidence. Dkt. No. 16, Def.’s Mem. of Law, pp. 4-11.
A. The RFC Determination
Residual functional capacity is defined as “‘what an individual can still do
despite his or her limitations . . .. Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary work setting on a regular
and continuing basis.’” Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). “In making a residual
functional capacity determination, the ALJ must consider 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. (citing 20 C.F.R. §
404.1545(a)).
“Ultimately, ‘[a]ny impairment-related limitations created by an
individual’s response to demands of work . . . must be reflected in the RFC assessment.’”
Hendrickson v. Astrue, 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting
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SSR 85-15, 1985 WL 56857, at *6 (Jan. 1, 1985)). 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 v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984).
“[I]it is well-established that it is a plaintiff’s burden to show that the ALJ
committed legal error or failed to support his or her findings with substantial evidence.”
Daniel E. v. Kijakazi, 2022 WL 602533, at *10 (N.D.N.Y. Mar. 1, 2022); see also
Romak v. Colvin, 2017 WL 923298, at *5 (N.D.N.Y. Mar. 7, 2017). Here much of
Plaintiff’s arguments involve recitation of medical evidence that supports her view that
she is unable to perform work at the level determined by the ALJ. Pl.’s Mem. of Law
at pp. 19-22. Such an argument is insufficient to carry her burden. As noted above, “the
relevant question is not whether substantial evidence supports plaintiff’s position, but
whether ‘substantial evidence supports the ALJ’s decision.’” Zacharopoulos v. Saul,
516 F. Supp. 3d 211, 220 (E.D.N.Y. 2021) (quoting Bonet ex rel. T.B. v. Colvin, 523 F.
App’x 58, 59 (2d Cir. 2013)) (emphasis in original). In addition, “Plaintiff’s objection
relates not to what evidence the ALJ considered, but how she weighed that evidence. To
the extent Plaintiff’s arguments ask the Court to do so, I decline the invitation to reweigh
the evidence before the ALJ.” Shawn A. v. Kijakazi, 2023 WL 2242085, at *4 (N.D.N.Y.
Feb. 27, 2023).
The single specific objection lodged to the ALJ’s finding – the purported failure
to “review or take testimony on Plaintiff’s demonstrated work-related limitations at the
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hearing, including her demonstrated hand impairments,” Pl.’s Mem. of Law at p. 22, is
not a basis for remand. “In deciding whether the [ALJ’s] conclusions are supported by
substantial evidence, we must first be satisfied that the claimant has had a full hearing
under the Secretary’s regulations and in accordance with the beneficent purposes of the
Act.” Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (internal quotations and citations
omitted). “The circumstances of each case dictate what information is relevant or
necessary to fully develop the record.” Vittini v. Shalala, 1995 WL 555757, at *4
(S.D.N.Y. Sept. 19, 1995) (internal quotations omitted).
In this case, unlike Cruz, Plaintiff had the assistance of a representative at her
administrative hearing who could have asked Plaintiff questions about her hand
impairments during the hearing. Tr. at pp. 34-61. In addition, “[i]t was not necessary
for the ALJ to question plaintiff extensively, as almost all of the information necessary
to [her] decision was previously provided in doctors’ statements [and] treatment
records.” Vittini v. Shalala, 1995 WL 555757, at *4. Those records, as Plaintiff points
out, extensively discussed issues related to her hand, Pl.’s Mem. of Law at p. 22 (citing
Tr.), and the ALJ’s decision discussed those records at length. Tr. at pp. 20-23. The
record viewed as a whole does not reflect that the ALJ’s determination was unsupported.
For example, the ALJ found the opinion of Dr. Sheran, a treating provider, persuasive
and that opinion noted no significant limitations with handling or fingering. Tr. at p.
547. The ALJ also favorably cited the consultative report of Dr. Jenouri that found
Plaintiff “had intact hand and finger dexterity and full grip strength bilaterally.” Tr. at
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p. 22; see also Tr. at p. 404. The ALJ’s decision not to impose greater limitations on
hand use was well-supported by these opinions. It is well established that “the ALJ is
free to resolve conflicts in the evidence and choose among properly submitted medical
opinions.” Brown v. Colvin, 2013 WL 3384172, at *5 (N.D.N.Y. July 8, 2013). She
clearly did so here.
More generally, the Court notes that a review of the records demonstrates
substantial evidence in support of the RFC determination here. Substantial evidence
supports the RFC finding when it derives from medical opinions relied upon by the ALJ.
See, e.g., Carl D. v. Comm’r of Soc. Sec., 2019 WL 1115704, at *6 (N.D.N.Y. Mar. 11,
2019). Here, the ALJ discussed the medical record and numerous opinions in detail.
Tr. at pp. 18-25. The specific limitations identified in the RFC find ample support in
the record and were, in fact, often more limiting than some opinions indicated were
necessary. See Tr. at p. 24 (discussing findings of state agency consultants regarding
mental limitations). Given that, the Court finds that Plaintiff has failed to demonstrate
that the RFC finding was not supported by substantial evidence.
B. The Step Five Determination
At Step Five, the ALJ found Plaintiff could perform a number of different jobs
existing in the national economy. Plaintiff contends that this was error because the ALJ
improperly relied on the Dictionary of Occupational Titles (“DOT”) which is, in her
opinion, outdated. Pl.’s Mem. of Law at p. 24. Instead, Plaintiff contends that the ALJ
should have relied upon a different guide to occupational capabilities – the O*NET. Id.
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at pp. 24-25. And, using that source, Plaintiff contends, she could not perform the jobs
identified by the ALJ. Id. at p. 25. This claim is not a basis for remand.
The DOT “remains an accepted vocational resource per Social Security
Administration policy.” Waldvogel v. Comm’r of Soc. Sec., 2017 WL 3995590, at *14
(N.D.N.Y. Sept. 11, 2017). And “Plaintiff does not point to any caselaw from within
the Second Circuit holding the VE’s reliance on the DOT’s job descriptions is
improper.” Strong v. Berryhill, 2019 WL 2442147, at *6 (W.D.N.Y. June 12, 2019). In
fact, numerous courts have rejected the notion that ALJs must discount the DOT in favor
of O*NET. See, e.g., Dennison v. Berryhill, 2019 WL 2088506, at *9 (W.D.N.Y. May
13, 2019) (citing cases); Ryan v. Astrue, 650 F. Supp. 2d 207, 218 (N.D.N.Y. 2009).
The Court finds the reasoning in these decisions persuasive, particularly because “unlike
the DOT, O*NET does not appear in the Social Security Rulings as an approved source
nor one with which the VE’s testimony must be consistent.” Strong v. Berryhill, 2019
WL 2442147, at *6 (W.D.N.Y. June 12, 2019).
Despite not raising this issue in its opening brief, Plaintiff’s Reply Brief suggests
that the error at Step Five is not reliance on the DOT, but that the jobs identified by the
ALJ could not, in fact, be performed by Plaintiff. Dkt. No. 17 at pp. 6-7. 3 This is also
not a basis for remand. The vocational expert specifically testified that a person with
the RFC identified by the ALJ could perform the jobs at issue, officer helper, mail clerk,
Plaintiff’s Motion clearly does make the argument that reliance on the DOT was error. Pl.’s Mem. of Law at p.
24.
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and marker. Tr. at p. 56. “The ALJ may rely on such testimony from the VE.” Kelly
D. v. Saul, 2019 WL 6683542, at *5 (N.D.N.Y. Dec. 6, 2019).
When utilizing a VE, the ALJ poses hypothetical questions which must
reflect the full extent of the claimant’s capabilities and impairments to
provide a sound basis for the VE’s testimony. When a hypothetical question
meets that requirement, and is supported by substantial evidence, VE
testimony suffices as substantial evidence to support a step five finding.
Boyer v. Berryhill, 2017 WL 1207833, at *5 (N.D.N.Y. Mar. 31, 2017) (citations
omitted). As noted above, the ALJ’s RFC, which formed the basis for the hypothetical,
was supported by substantial and so the VE’s testimony provides substantial evidence
in support of the Step Five determination.
IV. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings is DENIED;
and it is further
ORDERED, that Defendant’s Motion for Judgment on the Pleadings is
GRANTED; and it is further
ORDERED, that Defendant’s Motion denying Plaintiff disability benefits is
AFFIRMED and the Complaint is DISMISSED; and it is further
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ORDERED, that the Clerk of the Court shall serve copies of this MemorandumDecision and Order on the parties.
Dated: March 27, 2024
Albany, New York
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