Skiba v. Colvin

Filing 21

ORDER - That the decision of the Commissioner is AFFIRMED and Skiba's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 4/20/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PENNY SKIBA,
Plaintiff,

3:13-cv-1361
(GLS)

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Nancy J. Meserow
7540 SW 51st Ave
Portland, OR 97219
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

NANCY J. MESEROW, ESQ.

PETER A. GORTON, ESQ.

JEREMY A. LINDEN
Special Assistant U.S. Attorney

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Penny Skiba challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and 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 Skiba’s arguments, the court affirms the
Commissioner’s decision and dismisses Skiba’s complaint.
II. Background
On May 12 and May 14, 2011, Skiba filed applications for DIB and
SSI under the Social Security Act (“the Act”), alleging disability since May 1
and May 2, 2011. (Tr.1 at 63-69, 70, 140-46, 147-54.) After her
applications were denied, (id. at 71-76), Skiba requested a hearing before
an Administrative Law Judge (ALJ), (id. at 78-79). A hearing was held on
October 1, 2012. (Id. at 28-62.) On November 16, 2012, the ALJ issued a
decision denying the requested benefits, (id. at 14-26), which became the
1

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

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Commissioner’s final determination upon the Appeals Council’s denial of
review, (id. at 2-7).
Skiba commenced the present action by filing her complaint on
November 1, 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, 18.)
III. Contentions
Skiba contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 14 at 9-25.)
Specifically, Skiba argues that the ALJ erred in her determination of
Skiba’s residual functional capacity (RFC), and did not properly assess the
medical opinions of record or Skiba’s credibility, which tainted her ultimate
conclusion that Skiba could return to her past relevant work. (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. 18 at 1-25.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
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No. 14 at 1-9; Dkt. No. 18 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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.

Evaluating Record Evidence
The bulk of Skiba’s brief consists of her argument that the ALJ “did

not properly assess [the] psychiatric opinions of record,” and, therefore, the
finding that she is not disabled is not supported by substantial evidence.
(Dkt. No. 14 at 12-19.) Specifically, Skiba notes that the ALJ did not
expressly consider the opinion of Dr. T. Harding, a state agency
psychological consultant, whose opinion, Skiba argues, supports a more
2

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.

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restrictive RFC than that reached by the ALJ. (Id. at 12-14.) Additionally,
Skiba objects to the relative weight given to various pieces of record
evidence. (Id. at 14-19.) The Commissioner asserts that the ALJ’s
determination is supported by substantial record evidence, and that she
properly weighed the evidence in assessing Skiba’s RFC. (Dkt. No. 18 at
4-20.) The court agrees with the Commissioner.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(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. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence3 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).
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 404.1527(c).
Controlling weight will be given to a treating physician’s opinion that is

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“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).

5

“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.” Id.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Unless controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length and nature of a 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.
§ 404.1527(c). “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 [her] or
have explained why [s]he considered particular evidence unpersuasive or
insufficient to lead [her] to a conclusion of disability.” Petrie v. Astrue, 412
F. App’x 401, 407 (2d Cir. 2011) (internal quotation marks and citation
omitted).
Here, Dr. Nathan Hare, a one-time examining psychologist, opined
that Skiba “is not able to do sustained work-related physical or mental
activities in a work like setting on a regular and continuing basis.” (Tr. at
6

442.) The ALJ gave this opinion little weight because “it is inconsistent
with the record as a whole and Dr. Hare’s own evaluation notes.” (Id. at
21); see 20 C.F.R. § 404.1527(c)(4). Further, in reaching his opinion, Dr.
Hare did not review any of Skiba’s past medical records, and based his
opinion on Skiba’s own subjective reports. (Tr. at 439); see 20 C.F.R.
§ 404.1527(c)(3). In any event, Dr. Hare also noted that Skiba displayed
adequate grooming, showed no evidence of psychosis or delusional
thinking, demonstrated fair insight and judgment, and showed “at least
average intellectual ability,” (Tr. at 439), and thus the ALJ determined that
these “benign observable findings” did not support Dr. Hare’s more
restrictive functional assessment, (id. at 21).
The ALJ also gave little weight to a questionnaire completed by
social worker Valerie Jones-Guiles. (Id.) In her questionnaire, JonesGuiles indicated “more than slight” or “medium” limitations in several
functional areas, and opined that Skiba would reasonably be expected to
have more than three absences from work per month as a result of the
symptoms of her medical conditions. (Id. at 434-35.) The ALJ noted,
however, that Jones-Guiles, as a social worker, is not an acceptable
medical source under the regulations, see 20 C.F.R. §§ 404.1513,
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404.1527, and found her opinion to be “speculative and unsubstantiated
based on the benign examination findings of record.” (Tr. at 21); see SSR
06-03p, 71 Fed. Reg. 45,593, 45,596 (Aug. 9, 2006) (explaining the factors
relevant to consideration of the opinion of a non-acceptable medical
source, including “[h]ow consistent the opinion is with other evidence”).
Conversely, the ALJ gave “greater weight” to the opinion of Dr. Sara
Long, (Tr. at 21), a consultative examiner, who indicated that Skiba was
“cooperative, with good social skills,” had fair judgment and insight, and
“appear[ed] to be functioning on an average intellectual level,” (id. at 31718). Dr. Long reported that Skiba could follow and understand simple
instructions, perform tasks independently, maintain attention and
concentration, and relate adequately with others. (Id. at 318.) The ALJ
noted that this opinion was consistent with the record as a whole,
particularly treatment notes that indicated relatively normal mental status
examinations. (Id. at 20-21, 275, 308, 314, 336, 429, 439.)
Although Skiba points to evidence that, she argues, supports her
contention that she could not perform light, unskilled work as found by the
ALJ in her RFC determination, “whether there is substantial evidence
supporting the [claimant]’s view is not the question,” and instead, the court
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must “decide whether substantial evidence supports the ALJ’s decision.”
Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013). Here, as
referenced above, the ALJ adequately discussed the substantial evidence
of record supporting her determination that Skiba was capable of unskilled
work. (Tr. at 20-21, 275, 308, 314, 336, 429, 439.)
Lastly, although Skiba argues that the ALJ erred by not explicitly
mentioning the opinion of Dr. Harding, as noted above, “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 [her] or have explained why [s]he considered
particular evidence unpersuasive or insufficient to lead [her] to a
conclusion of disability.” Petrie, 412 F. App’x at 407 (internal quotation
marks and citation omitted). In fact, Harding’s functional assessment was
consistent with the ALJ’s assessment that Skiba could perform unskilled
work, as Harding opined that Skiba “is able to follow and understand
simple directions and instructions,” perform both simple and complex tasks
independently, “maintain a regular schedule,” and “relate adequately with
others.” (Tr. at 18, 336); see SSR 85-15, 1985 WL 56857, at *4 (1985)
(“The basic mental demands of competitive, remunerative, unskilled work
9

include the abilities (on a sustained basis) to understand, carry out, and
remember simple instructions; to respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in a routine
work setting.”). In sum, the weight afforded to the various opinions by the
ALJ, for reasons which are fully articulated in her written decision, is free of
legal error and supported by substantial evidence. (Tr. at 18-22.) The ALJ
also undertook a thorough discussion of the medical and testimonial
evidence of record, which supports her determination that Skiba was
capable of light,4 unskilled work. (Id.) As such, the court affirms the ALJ’s
RFC determination.
B.

Credibility
Similarly, Skiba next argues that “the ALJ [did] not properly assess

[her] credibility,” and points to evidence that, she argues, is consistent with
her allegations regarding the intensity and limiting effects of her symptoms.
(Dkt. No. 14 at 19-23.) In response, the Commissioner asserts that the
ALJ’s credibility determination is supported by substantial evidence. (Dkt.

4

Under the regulations, light work requires lifting no more than twenty pounds at a time
with frequent lifting or carrying of up to ten pounds. See 20 C.F.R. § 404.1567(b). Further,
“the full range of light work requires standing or walking, off and on, for a total of
approximately [six] hours of an [eight]-hour workday.” SSR 83-10, 1983 WL 31251, at *6
(1983).

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No. 18 at 20-23.) The court again agrees with the Commissioner.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” she “must evaluate the intensity and persistence
of those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34,485 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No.
1:10-CV-444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20
C.F.R. § 404.1529(c)(3)(i)-(vi)).
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Here, the ALJ determined that Skiba’s “medically determinable
impairments could reasonably be expected to cause some of the alleged
symptoms,” but that her “statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they
are inconsistent with” the record evidence. (Tr. at 19-21.) In her
argument, Skiba points to evidence that, she argues, is consistent with her
statements regarding her symptoms and their limiting effects. (Dkt. No. 14
at 19-23.) However, the ALJ provided several bases upon which she
justified questioning Skiba’s overall credibility. For example, the ALJ first
noted that Skiba’s daily activities “have been far greater than generally
alleged,” as demonstrated by record evidence and the fact that she has
worked—though not enough to constitute substantial gainful activity which
would disqualify her from benefits—since her alleged onset date. (Tr. at
19); see 20 C.F.R. § 404.1529(c)(3)(i) (indicating that a claimant’s daily
activities are relevant to determining the severity of her symptoms and
impairments). Although Skiba testified that she is in constant pain and
reported a limited ability to walk and bend her fingers, (Tr. at 39-40), the
record indicated that she performed household chores such as cooking,
cleaning, and shopping, and was able to care for her husband, (id. at 4412

45, 313, 318). The record also contains evidence suggesting that Skiba
may have been exaggerating her symptoms during psychological
evaluations. (Id. at 441.)
The ALJ also notes that, during the time period after her alleged
onset date, Skiba collected unemployment benefits—which require her to
be “able to work,” see N.Y. Labor Law § 527—despite her current
allegations of an inability to work. (Tr. at 19-20, 167.) “[C]ourts throughout
the United States have held that the issue of a plaintiff claiming to be
disabled yet drawing unemployment insurance benefits,”—while not “proofpositive that [the] plaintiff was no longer disabled”—“may be considered in
determining a plaintiff’s credibility.” Jackson v. Astrue, No. 1:05-CV-01061,
2009 WL 3764221, at *8 (N.D.N.Y. Nov. 10, 2009). Although Skiba
speculates that it may have been “unclear whether [she] fully understood
the unemployment certification,” (Dkt. No. 14 at 21), she points to no
factual support for this speculative assertion. Thus, after expressly laying
out the applicable regulations and the relevant factors, the ALJ made a
credibility determination which is supported by substantial evidence in the
record and is not patently unreasonable. (Tr. at 18-22); see Pietrunti v.
Director, Office of Workers’ Comp. Programs, 119 F.3d 1035, 1042 (2d Cir.
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1997) (“Credibility findings of an ALJ are entitled to great deference and
therefore can be reversed only if they are patently unreasonable.” (internal
quotation marks and citation omitted)).
C.

Ability to Return to Past Work
Lastly, Skiba contends that, because of errors in the weight given to

the record evidence and the assessment of her credibility, as discussed
above, the ALJ’s RFC determination was erroneous, and tainted the
ultimate determination that Skiba could return to her past relevant work as
a courier/runner—and thus the finding that Skiba is not disabled. (Dkt. No.
14 at 9-12, 23-25.) Specifically, in addition to the arguments made above,
Skiba contends that the ALJ did not adequately consider all of her
impairments when determining her RFC. (Id. at 23-25.) Skiba also argues
that the ALJ made insufficient findings regarding her ability to fulfill the
math requirements of her past work. (Id. at 9-12.) For the following
reasons, the court finds these arguments unavailing.
“[I]n the fourth stage of the [disability] inquiry, the claimant has the
burden to show an inability to return to her previous specific job and an
inability to perform her past relevant work generally.” Jasinski v. Barnhart,
341 F.3d 182, 185 (2d Cir. 2003). In other words, a claimant is not
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disabled if she can perform her past relevant work, either as she actually
performed it, or as it is generally performed in the national economy. See
SSR 82-61, 1982 WL 31387, at *2 (1982); Jock v. Harris, 651 F.2d 133,
135 (2d Cir. 1981). “‘[I]n order to determine at step four whether a claimant
is able to perform her past work, the ALJ must make a specific and
substantial inquiry into the relevant physical and mental demands
associated with the claimant’s past work, and compare these demands to
the claimant’s residual capabilities.’” Kochanek v. Astrue, No. 08-CV-310,
2010 WL 1705290, at *11 (N.D.N.Y. Apr. 13, 2010) (quoting Kerulo v.
Apfel, No. 98 CIV. 7315, 1999 WL 813350, at *8 (S.D.N.Y. Oct. 7, 1999)).
Skiba argues that the ALJ failed to consider all of the limitations
found in the step three listings determination when arriving at Skiba’s RFC,
and that the limitations found by the ALJ at step three in fact preclude a
finding that Skiba is able to return to her past relevant work as a
courier/runner. (Dkt. No. 14 at 24-25.) However, “the limitations identified
in the ‘paragraph B’ and ‘paragraph C’ criteria are not an RFC assessment
but are used to rate the severity of mental impairment(s) at steps [two] and
[three] of the sequential evaluation process.” SSR 96-8P, 61 Fed. Reg.
34,474, 34,477 (July 2, 1996); see Rohey v. Astrue, Civ. No. 5:09-CV15

1063, 2012 WL 4485778, at *5 (N.D.N.Y. Sept. 26, 2012). Instead, “[t]he
mental RFC assessment used at steps [four] and [five] of the sequential
evaluation process requires a more detailed assessment by itemizing
various functions contained in the broad categories found in paragraphs B
and C” of the listings. SSR 96-8P, 61 Fed. Reg. at 34,477. Here, the ALJ
accurately stated the law when she acknowledged that her findings of
Skiba’s moderate difficulties in social functioning and maintaining
concentration, persistence or pace do not, by themselves, constitute an
RFC assessment, but, rather, are only used at steps two and three of the
sequential evaluation process to determine if her impairments meet the
listings. (Tr. at 18.) The ALJ then appropriately proceeded to engage in
an assessment of Skiba’s RFC, considering the entire record and the
degree of limitation Skiba has in the areas of social functioning and
maintaining concentration, persistence, or pace. (Id. at 18-22.) As
discussed above, the ALJ properly weighed the opinion evidence of record
and Skiba’s credibility, and there is substantial evidence supporting her
conclusion that Skiba is capable of performing light, unskilled work.
Skiba also mentions, without much argument, that the ALJ did not
expressly consider the limitations caused by her fibromyalgia, even though
16

it was classified as a severe impairment. (Dkt. No. 14 at 23-24.) However,
it is clear from the ALJ’s discussion of Skiba’s physical impairments and
exertional RFC that the alleged limiting effects of her fibromyalgia were
taken into consideration. The ALJ pointed to treatment notes in the record
regarding Skiba’s physical impairments, which reflected “merely routine
visits with mostly transient complaints.” (Tr. at 20.) These “normal
physical . . . examinations . . . fail to support [Skiba’s] subjective
complaints,” (id.), and during a consultative evaluation shortly after her
alleged onset date, Skiba was found to have no observable physical
limitations. (Id. at 313-14.) Skiba also reported that her fibromyalgia
symptoms were controlled with medications. (Id. at 39-41, 416, 419.)
With respect to Skiba’s remaining argument that the ALJ did not
adequately consider her math limitations when determining her ability to
perform her past work, (Dkt. No. 14 at 11), Skiba has neither alleged nor
pointed to any record evidence indicating that her alleged math issues
were due to a physical or mental disability. To the contrary, Skiba simply
testified at her hearing that she had a long history of difficulties with math,
(Tr. at 32-33), yet the evidence of record supports a finding that her
cognitive abilities are intact and she maintains an average level of
17

intellectual functioning, (id. at 318, 429, 439). Further, Skiba testified that,
although she had a “hard time” with division, she was capable of
performing basic mathematical operations. (Id. at 32-33.) As noted by the
ALJ, Skiba’s past work as a courier/runner, designated in the Dictionary of
Occupational Titles as “office helper,” consists of “[l]ight [w]ork,” and
requires the employee to “[a]pply commonsense understanding to carry out
detailed but uninvolved written or oral instructions,” Dictionary of
Occupational Titles, Code 239.567–010, 1991 WL 672232 (4th ed., 1991),
which is consistent with Skiba’s RFC to perform light, unskilled work. (Tr.
at 18-22); see SSR 85-15, 1985 WL 56857, at *4. Skiba has thus not met
her burden at step four “to show an inability to return to her previous
specific job and an inability to perform her past relevant work generally,”
Jasinski, 341 F.3d at 185. Instead, the ALJ’s determination that Skiba
could perform her past relevant work as a courier/runner, given her RFC to
perform light, unskilled work, is supported by substantial evidence and will
not be disturbed.
D.

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

the ALJ’s decision as it correctly applies the relevant legal standards and is
18

supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Skiba’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.
April 20, 2015
Albany, New York

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