Golden v. Colvin

Filing 17

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Golden's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/16/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RASHIDA GOLDEN,

Plaintiff,

3:13-cv-1227
(GLS)

v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Lachman, Gorton Law Firm
P.O. Box 89
1500 East Main Street
Endicott, NY 13761-0089
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

PETER A. GORTON, ESQ.

ELIZABETH D. ROTHSTEIN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Rashida Golden challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. §§ 405(g) and 1383(c)(3). (Compl., Dkt. No. 1.)
After reviewing the administrative record and carefully considering
Golden’s arguments, the court affirms the Commissioner’s decision and
dismisses the complaint.
II. Background
On April 4, 2011, Golden filed an application for SSI under the Social
Security Act (“the Act”), alleging disability since February 1, 2011. (Tr. 1 at
53, 125-32.) After her application was denied, (id. at 62-65), Golden
requested a hearing before an Administrative Law Judge (ALJ), which was
held on June 21, 2012, (id. at 25-52, 69-71). On August 14, 2012, the ALJ
issued an unfavorable decision denying the requested benefits which
became the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (Id. at 1-6, 9-24.)

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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

2

Golden commenced the present action by filing her complaint on
October 2, 2013 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 9, 10.) Each party,
seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 14, 15.)
III. Contentions
Golden contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 14 at 9-15.)
Specifically, Golden claims that the ALJ erred in: (1) assessing her severe
impairments; (2) failing to include any non-exertional limitations in her
residual functional capacity (RFC) determination; and (3) improperly
accounting for the effects of her obesity. (Id.) The Commissioner counters
that the appropriate legal standards were used by the ALJ and her decision
is also supported by substantial evidence. (Dkt. No. 15 at 4-14.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt. No.
14 at 1-9; Dkt. No. 15 at 2.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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42 U.S.C. § 405(g)2 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Severity Determination
According to Golden, the ALJ erred in failing to find her macromastia 3

and mental impairments severe under the regulations. (Dkt. No. 14 at 910, 14-15.) The Commissioner, on the other hand, argues that the ALJ
correctly determined the severity of Golden’s impairments, and any error is,
at most, harmless because the ALJ found Golden to have other severe
impairments and continued beyond this step of the sequential evaluation.
(Dkt. No. 15 at 4-9.) The court agrees with the Commissioner.
At step two of the sequential analysis, the ALJ must determine

2

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI

claims.
3

Macromastia is the “oversize of the breasts or mammae.” Dorland’s Illustrated
Medical Dictionary 977 (28th ed. 1994).

4

whether the claimant has a “severe medically determinable physical or
mental impairment.” 20 C.F.R. § 416.920(a)(4)(ii). A finding of not severe
is appropriate when an impairment, or combination of those impairments
“does not significantly limit [the claimant’s] physical or mental ability to do
basic work activities.” Id. § 416.921(a). Basic work activities are “the
abilities and aptitudes necessary to do most jobs,” including: “[p]hysical
functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling” as well as “[u]nderstanding, carrying out,
and remembering simple instructions; [u]se of judgment; [r]esponding
appropriately to supervision, co-workers and usual work situations; and
[d]ealing with changes in a routine work setting.” Id. § 416.921(b). “The
‘mere presence of a disease or impairment, or establishing that a person
has been diagnosed or treated for a disease or impairment’ is not, itself,
sufficient to deem a condition severe.” Bergeron v. Astrue, No. 09-CV1219, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting
McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y.
Mar. 27, 2008)). The omission of an impairment at step two may be
deemed harmless error, particularly where the disability analysis continues
and the ALJ later considers the impairment in her RFC determination. See
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Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 398952, at *4 (N.D.N.Y. Feb.
7, 2012); see also Plante v. Astrue, No. 2:11-CV-77, 2011 WL 6180049, at
*4 (D. Vt. Dec. 13, 2011).
With respect to mental impairments, an ALJ’s decision must reflect
her application of the “special technique” set out in 20 C.F.R. § 416.920a,
which necessitates her consideration of “four broad functional areas” that
include: “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R.
§ 416.920a(c)(3). The first three areas are rated on a five-point scale:
“[n]one, mild, moderate, marked, and extreme.” Id. § 416.920a(c)(4). “[I]f
the degree of limitation in each of the first three areas is rated ‘mild’ or
better, and no episodes of decompensation are identified, then the [ALJ]
generally will conclude that the claimant’s mental impairment is not
‘severe.’” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (quoting 20
C.F.R. § 404.1520a(d)(1)).
Here, at step two, the ALJ determined that Golden suffered from the
following severe impairments: lumbrosacral degenerative disc disease and
obesity. (Tr. at 14.) The ALJ did not specifically mention Golden’s
macromastia, but as the Commissioner points out, (Dkt. No. 15 at 4),
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Golden’s treating physician, Darlene Denzien, did not indicate macromastia
as a diagnosis upon which she based her opinion of Golden’s functional
limitations. (Tr. at 408.) Further, although Dr. Denzien’s treatment notes
indicate that Golden’s macromastia contributed to her upper back pain, the
ALJ thoroughly considered Golden’s back pain in determining her RFC.
(Id. at 16-19, 309-10.)
Turning to Golden’s mental impairments, the ALJ concluded that
Golden suffered mild restrictions in her activities of daily living, mild
difficulties in maintaining social functioning, mild difficulties in
concentration, persistence, and pace, and no episodes of decompensation.
(Id. at 15.) The ALJ based her determination on Golden’s own reports of
her daily activities, her lack of treatment, and the opinion of consulting
examiner Mary Ann Moore. (Id. at 14-16.) Golden claims that the ALJ
discounted portions of Dr. Moore’s opinion that are consistent with her
allegations due to an error of fact. (Dkt. No. 14 at 6, 10.) According to
Golden, the ALJ mistakenly believed that Dr. Moore’s opinion was based
on Golden’s receipt of counseling from social worker Heidi Brown, which
the ALJ determined Golden did not receive. (Id.) A thorough reading of
the ALJ’s decision, however, reveals that the ALJ discounted certain
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portions of Dr. Moore’s opinion that were inconsistent with Golden’s own
reports and the clinical findings of record. (Tr. at 15-16.)
Dr. Moore opined that Golden could follow, understand, and
remember simple instructions, maintain attention and concentration for rote
tasks, attend to a routine and maintain a schedule, and deal with low stress
and perform simple tasks. (Tr. at 469.) However, Dr. Moore also
concluded that Golden was moderately limited in her ability to maintain
basic standards of hygiene and grooming and use public transportation.
(Id. at 469.) Dr. Moore further indicated that Golden could not work a job
that entailed “a great deal of social interactions with large groups of
customers.” (Id. at 470.) The ALJ explained that she gave “great weight”
to the portions of Dr. Moore’s opinion that were consistent with her clinical
findings and Golden’s treatment history. (Id. at 15.) On the other hand,
Golden reported to her examining sources that she was independent in her
personal care, cooked, cleaned, did laundry, shopped, provided childcare,
watched television, read, and went to the park. (Id. at 15, 275.) On
examination by Dr. Moore, Golden’s general appearance was normal, her
thought processes were coherent and goal directed, mood euthymic, affect
appropriate to thought content, attention and concentration intact, memory
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mildly impaired, and insight and judgment fair. (Id. at 467.) Dr. Moore
noted that Golden laughed and smiled appropriately. (Id.) On adaptive
behavior testing, Golden rated an average skills score in personal daily
living skills, including her hygiene regimen. (Id. at 468.) Although
intelligence testing revealed scores in the borderline range, Golden could
read at a twelfth grade level, received her GED and certification as a nurse
aid, completed one semester of college, and successfully engaged in
competitive employment as a nursing assistant, leaving her most recent
employer due to complications with her pregnancy. (Id. at 14-15, 31, 465.)
With respect to Golden’s receipt of counseling from Brown, as the
ALJ correctly pointed out, Golden did not receive psychiatric treatment from
Brown. (Id. at 15.) In a July 2010 letter to Golden’s counsel, Brown
asserted that she is not a medical provider offering psychiatric evaluations
or prescribing medication to Golden, but, rather, offered “support and
educational assistance” to Golden with respect to raising a child under the
age of five years through a program with Catholic Charities. (Id. at 47374.) Although Brown did “counsel” Golden on developing habits and
routines that foster emotional and financial independence, parenting her
children, and ways to cope with her emotional and physical challenges, the
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ALJ did not err in her conclusion that Brown did not receive psychotherapy
to treat her mental impairments during the relevant period. (Id. at 474.)
Moreover, in June 2011, Golden reported to the Social Security
Administration that she had received treatment for postpartum depression
after the birth of her daughter in August 2009, but her depression had since
improved a great deal, she had not received psychiatric outpatient
treatment since 2007, and she did not feel that her mental impairments
limited her ability to function on a daily basis. (Id. at 159.) Golden stated
that she was able to concentrate and focus, and her problems were
physical, as opposed to mental. (Id.)
Ultimately, the ALJ’s determination that Golden’s mental impairments
caused only mild limitations of functioning, and were, therefore, not severe
under the regulations, is supported by substantial evidence. 4
B.

Non-Exertional Limitations
Next, Golden argues that the ALJ erred in failing to include non-

exertional limitations in her RFC determination. (Dkt. No. 14 at 9-13.)
Specifically, Golden asserts that the ALJ should have included limitations

4

“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).

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resulting from her emotional problems, intellectual deficits, and the side
effects of her medication. (Id.) The court disagrees.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(a)(1). In assessing a claimant’s RFC, an
ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 416.945(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996). As relevant here, “[t]he basic mental
demands of competitive, remunerative, unskilled work include the abilities
(on a sustained basis) to . . . respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in a routine
work setting.” SSR 85-15, 1985 WL 56857 at *4 (1985) .
In this case, as discussed above, the ALJ thoroughly considered the
evidence of record with respect to Golden’s mental impairments, and
determined that they caused no more than mild functional limitations. See
supra Part VI.A. Notably, Dr. Moore’s opinion largely supports the ALJ’s
RFC determination. (Tr. at 468.) Further, Golden’s own reports of her
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functional capabilities provide substantial evidence to support the ALJ’s
mental RFC determination. (Id. at 159, 275.) As the Commissioner points
out, Golden failed to complain to her treating or examining sources of the
medication side effects she now argues limit her functional abilities. (Dkt.
No. 15 at 12; Dkt. No. 14 at 12-13; see generally Tr. at 274-75, 288, 309,
311, 339-40.) In April 2011, Golden failed to report any side effects of her
prescribed medications, but noted that they provided some relief. ( Id. at
226.) In addition, on the only mental status examination of record,
Golden’s attention and concentration were intact, and her memory was
only mildly impaired. (Id. at 467.) The ALJ’s decision is, therefore,
affirmed.
C.

Obesity
Finally, Golden contends that the ALJ failed to properly consider the

functional effects of her obesity. (Dkt. No. 14 at 13-14.) In particular,
Golden complains that the ALJ based her RFC determination on the lack of
objective evidence supporting Golden’s lumbar impairments, ignoring her
treating sources’ opinions that her condition is caused by her obesity and
macromastia. (Id.) Again, the court disagrees.
Controlling weight will be given to a treating source’s opinion on the
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nature and severity of a claimant’s impairments where it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 416.927(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. See 20 C.F.R. § 416.927(c)(2)-(6). The
ALJ must provide “good reasons for the weight given to the treating
source’s opinion.” Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011)
(internal quotation marks and citations omitted). “Nevertheless, where the
evidence of record permits [the court] to glean the rationale of an ALJ’s
decision,” it is not necessary that the ALJ “have mentioned every item of
testimony presented to h[er] or have explained why [s]he considered
particular evidence unpersuasive or insufficient to lead h[er] to a conclusion
of disability.” Id. (internal quotation marks and citation omitted).
Here, the ALJ considered the treating records and November 2011

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opinion of Dr. Denzien with respect to Golden’s functional limitations. 5 (Tr.
at 17-19.) However, as noted by the ALJ, Dr. Denzien’s treatment notes on
the date that she completed her opinion indicate far greater clinical findings
than Golden’s previous exams. (Id. at 17, 288-89, 309-11, 427-28.)
Specifically, one month prior to Dr. Denzien’s November 2011 examination,
which revealed an antalgic gait, slightly decreased deep tendon reflexes,
positive straight leg raising on the right side, decreased range of motion of
the back, and tenderness in the thoracic and lumbar spine, an examination
by treating neurosurgeon Daniel Galyon revealed “fairly fluid” lumbar
movements, “totally negative” straight leg raising, 5/5 strength in all tested
muscle groups, and intact sensation to pinprick throughout. (Id. at 288-89.)
Dr. Galyon explained that Golden’s MRI revealed disc deterioration with a
protrusion towards the left side, but concluded that “she really does not
seem to be actively symptomatic,” and surgery was not recommended. ( Id.
at 288.) The ALJ also noted that the record contained no reports of an
intervening injury or diagnostic evidence of any deterioration. ( Id. at 17.)
Thus, in determining that Golden retained the RFC to perform
5

According to Dr. Denzien, due to thoracic pain and a herniated disc, Golden could not
stand for two hours or sit for six hours in a work day. (Tr. at 406-09.) In addition, Golden could
not lift more than five pounds, her concentration was severely diminished because she needed
to reposition often, and her work pace would be severely impaired. (Id. at 407.)

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sedentary work, the ALJ discounted the opinion of Dr. Denzien, and,
instead, relied on the May 2011 opinion of consulting examiner Karl
Eurenius that Golden was limited in her ability to stand for prolonged
periods, perform frequent bending, walk more than one-quarter of a mile,
climb or descend more than one flight of stairs, and lift, carry, push and
pull. (Id. at 17-18.) The ALJ also considered Golden’s ability to lift her
child, inconsistencies in her testimony and her reports to treating and
examining sources, and Golden’s failure to attend physical therapy, despite
her report to Dr. Denzien that she attended twice a week. (Id. at 18-19.)
The court notes that Dr. Denzien’s opinion indicated that Golden’s
herniated disc, and not the thoracic pain caused by her macromastia, was
her disabling condition. (Id. at 309-10, 408.) Thus, Golden’s argument that
her treating providers “very specifically and over and over again instructed”
the ALJ that Golden’s limitations were caused by her obesity and
macromastia, is without merit. (Dkt. No. 14 at 13-14.) Further, as the
Commissioner points out, the ALJ’s determination that Golden was
restricted to performing sedentary work fully accounts for the limitations

15

stemming from her obesity. 6 (Dkt. No. 15 at 13.)
In sum, The ALJ considered all the relevant evidence, and her RFC
determination is supported by substantial evidence.
D.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Golden’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
September 16, 2014
Albany, New York

6

Under the regulations , “[s]edentary work involves lifting no more than [ten] pounds at
a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20
C.F.R. § 416.967(a). Further, a sedentary job is defined as one which involves sitting, and,
thus, “periods of standing or walking should generally total no more than about [two] hours of
an [eight]-hour workday, and sitting should generally total approximately [six] hours of an
[eight]-hour workday.” SSR 83-10, 1983 WL 31251, at *5 (1983).

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