Jordan v. Astrue

Filing 17

MEMORANDUM-DECISION AND ORDER granting the Commissioner's motion for judgment on the pleadings; affirming the Commissioner's decision denying pltf disability benefits, and dismissing the 1 Complaint in its entirety. Signed by Judge David N. Hurd on 4/17/13. (cbm )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------HEIDE JORDAN,
Plaintiff,
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5:10-CV-1197

CAROLYN W. COLVIN, Acting Commissioner of
Social Security,1
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Attorneys for Plaintiff
300 S. State Street, Suite 420
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.

OFFICE OF REGIONAL GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION REGION II
Attorneys for Defendant
26 Federal Plaza Room 3904
New York, NY 10278

JOANNE JACKSON, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
This matter is brought pursuant to §§ 205(g) & 1631(b)(3) of the Social Security Act,
as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), to review a final determination of the
Commissioner of Social Security denying the plaintiff's claim for Social Security Disability and
Supplemental Security Income benefits. The parties have filed their briefs, including the

1

Carolyn W. Colvin ("Colvin) became Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Fed. R. Civ. P. 25(d), Colvin is substituted for Michael J. Astrue as the defendant in this action.
The Clerk is directed to change the caption to reflect this change.

Administrative Record on Appeal, and the matter has been submitted for decision without
oral argument.
II. BACKGROUND
Plaintiff Heide Jordan ("plaintiff" or "Jordan") filed an application for social security
disability benefits on October 31, 2006, claiming a period of disability beginning on
September 8, 2006. Her claims were denied and she requested a hearing. A hearing was
held before an Administrative Law Judge ("ALJ") on June 25, 2009. The ALJ rendered a
decision on July 30, 2009, denying plaintiff's claim. Plaintiff appealed the ALJ's decision and
submitted additional evidence to the Appeals Council. On September 28, 2010, the Appeals
Council declined further review of the ALJ's decision. Thus, the ALJ's decision became the
final decision of the Commissioner.
III. DISCUSSION
A. Standard of Review
The scope of a court’s review of the Commissioner's final decision is limited to
determinating whether the decision is supported by substantial evidence and the correct legal
standards were applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam)
(citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)); Martone v. Apfel, 70 F. Supp.
2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)).
"Substantial evidence means 'more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566
F.3d at 305 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217
(1938)). "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
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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) (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464 (1951)). If the
Commissioner's disability determination is supported by substantial evidence, that
determination is conclusive. Id.
However, "where there is a reasonable basis for doubting whether the Commissioner
applied the appropriate legal standards," the 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).
A reviewing court may enter "a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g); see Martone, 70 F. Supp. 2d at 148. "Remand is
appropriate where there are gaps in the record or further development of the evidence is
needed," such as where new, material evidence has become available. 42 U.S.C. § 405(g);
Martone, 70 F. Supp. 2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). A
remand for rehearing directing the taking of additional evidence is warranted only if it is
shown that there is new, material evidence "'and that there is good cause for the failure to
incorporate such evidence into the record'" at the administrative hearing. Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 643-44 (2d Cir. 1983) (quoting 42 U.S.C. § 405(g), as
amended in 1980)). Remand may also be appropriate if the Commissioner "misapplies the
law or failed to provide a fair hearing." Id. at 644. However, where the underlying
administrative decision is not supported by substantial evidence, reversal is appropriate
because there would be no useful purpose in remanding the matter for further proceedings.
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Id. (reversing and remanding solely for calculation of benefits, subject to determination by the
district court of any motion by the agency to remand to consider new evidence); Parker, 626
F.2d at 235 (reversing and remanding solely for calculation and payment of benefits);
Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992) (same); Williams,
859 F.2d at 261 (same).
B. Disability Determination—The Five Step Evaluation Process
The Social Security 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 Administrative Law Judge ("ALJ") must follow a five step evaluative process in
determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. In the
first step the ALJ must determine whether the claimant is engaging in substantial gainful
activity. If the claimant is engaging in substantial gainful activity he is not disabled and he is
not entitled to benefits. Id. §§ 404.1520(b), 416.920(b).
If the claimant is not engaged in substantial gainful employment, then step two
requires the ALJ to determine whether the claimant has a severe impairment or combination

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of impairments which significantly restricts his or her physical or mental ability to perform
basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from a
severe impairment, then step three requires that the ALJ determine whether the impairment
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 the ALJ to assess
whether the claimant's residual functional capacity ("RFC") precludes the performance of his
or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
If the opinion of a treating physician is "'well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record'" it is given significant weight. Poupore, 566 F.3d at 307
(quoting 20 C.F.R. § 404.1527(d)(2)). However, where the treating physician's opinion is not
supported by medical evidence, it is not entitled to significant weight. Id.
The burden of proof with regard to the first four steps is on the claimant. Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996); Ferraris, 728 F.2d at 584.
If it is determined that claimant cannot perform past relevant work, the burden shifts to
the agency for the fifth and final step. Perez, 77 F.3d at 46. This step requires the agency
to examine whether the claimant can do any type of work. 20 C.F.R. §§ 404.1520(g),
416.920(g). The regulations provide that "factors such as a claimant's age, education, and
previous work experience" should be evaluated to determine whether a claimant has the
residual functional capacity to perform work in any of five categories of jobs: very heavy,
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heavy, medium, light, and sedentary." Perez, 77 F.3d at 46 (citing 20 C.F.R. § 404, Subpt.
P, App. 2). "[T]he Commissioner need only show that there is work in the national economy
that the claimant can do; he need not provide additional evidence of the claimant's residual
functional capacity." Poupore, 566 F.3d at 306.
A claimant may seek review of an adverse decision by the ALJ from the Appeals
Council. Perez, 77 F.3d at 44. If review is granted, the decision of the Appeals Council is
the final decision of the Commissioner. Id. If review is denied, then the final decision is that
of the ALJ. Id. The final decision is judicially reviewable pursuant to 42 U.S.C. § 405(g).
C. Analysis
Jordan makes five arguments in support of her contention that the Commissioner's
decision should be reversed. First, she argues that the ALJ erred at Step 2 by not evaluating
her obesity and fibromyalgia, and finding her depression and headaches were not severe.
Second, plaintiff contends that the ALJ failed to make a function-by-function finding resulting
in an RFC finding unsupported by substantial evidence. Third she argues that the ALJ failed
to follow the treating physician rule. Fourth, according to Jordan the ALJ did not evaluate her
credibility by the appropriate legal standards. Finally, she asserts that the ALJ erred in not
consulting a Vocational Expert.
1. Step Two determination–obesity, fibromyalgia, depression, headaches
The ALJ did not mention Jordan's obesity and fibromyalgia in his Step 2 analysis.
There was no mention in the medical records of any obesity-related impairment. Further, it
was clear from the office notes or examination reports of Drs. Schaeffer, Noia, Shayevitz,
and Alvarez that these medical providers were aware of her obesity, yet made no comment
about any impairment Jordan suffered as result. See, e.g., Tr. at 240, 183, 187, 194.
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Plaintiff suggested to her treating physician Dr. Schaeffer on February 3, 2009, that she may
have fibromyalgia. Id. at 267. Dr. Schaeffer noted 16/18 palpable trigger points, particularly
in the cervical, lumbar, and thoracic paraspinal areas. Id. He also found that Jordan's
movements were fluid, and her mobility, transfers, ambulation, and station were within
normal limits. Id. Further, his impressions did not include a diagnosis of fibromyalgia. Id.
As for alleged depression, the ALJ recognized that plaintiff apparently had been
diagnosed with some sort of depression. See id. at 38. However, there is no medical
evidence of any depression or other mental health issues. Jordan asserts that Dr. Schaeffer
treated her for depression on November 1, 2006. However, the office notes for that day state
that plaintiff "is feeling depressed due to the ongoing severe pain" and nothing in the
"impression" paragraph indicates a diagnosis of depression. Id. at 239–41. Plaintiff also
points to the report from the consultative psychiatrist Dr. Noia, who found that plaintiff was
depressed. While Dr. Noia found that Jordan was depressed, he also found that her
depression did not interfere with her ability to function. Id. at 185.
According to plaintiff, she has had severe headaches and has been treated for them
with prescription medication. Each part of the record to which plaintiff points for support of
her contention of disabling headaches contains her own reports of headaches and treatment
for them, rather than a medical source making a diagnosis and prescribing medication. See
id. at 105, 114, 186, 194, 230, 250, 268.
Substantial evidence supports the ALJ's determination at Step 2, including not
mentioning obesity and fibromyalgia, as well as finding that Jordan's depression and
headaches were not severe.

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2. Function-by-function finding
The ALJ determined that plaintiff had the RFC to perform light work except for the
need to avoid concentrated exposure to wetness, humidity, and fumes; and a need for simple
work. Jordan argues that this determination failed to comply with SSR 96-8p.
Dr. Shayevitz performed a consultative examination on November 30, 2006. She
opined that Jordan's "multiple moderate problems . . . limit very prolonged sitting, standing,
and walking." Id. at 189. She further opined that plaintiff would have difficulty with rapid
neck movements, heavy lifting, or repetitive flexing or bending of the lumber spine." Id. at
189–90. The ALJ described Dr. Shayevitz's opinions and found them to be supported by
objective clinical and laboratory findings. Id. at 40.
Dr. Alvarez performed an independent orthopedic evaluation on January 19, 2007. He
opined that plaintiff had a "moderate, partial, ongoing orthopedic disability." Id. at 195. He
cleared Jordan for return to light work, stating that she could lift and carry up to twenty
pounds, push and pull occasionally, but must restrict repeated and sustained bending, lifting
and twisting motions of the neck and back. Id. at 196. The ALJ considered Dr. Alvarez's
opinion and found it consistent with Dr. Shayevitz's opinion. Id. at 40.
On November 1, 2006, Dr. Schaeffer found plaintiff with temporary total disability after
her work-related low-back injury of September 8, 2006. Id. at 241. At her next appointment
he discussed returning to work with her. Id. at 237. About six weeks later, on December 13,
2006, he cleared her for light work with no weights over twenty pounds. Id. at 236. On
January 13, 2007, Dr. Schaeffer noted that plaintiff had a partial disability status cleared for
light duty work with no weights over 20 pounds, but she had not returned to work because of
the unavailability of light work. Id. at 231. He reiterated her partial disability status and
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clearance for light work with weight restriction, and current unavailability of light work. Id. at
230. He continued to find her partially disabled, although stopped repeating her clearance
for and the unavailability of light work with weight restriction. See, e.g., 258, 253, 249, 247.
The ALJ reviewed these reports by Dr. Schaeffer in considering plaintiff's RFC.
The ALJ based his RFC upon the evaluations and reports just noted. Although he did
not individually address each function, such as sit, stand, walk, and lift, his review of the
medical evidence of the record accomplished the same assessment as required by SSR 968p. This is particularly so in light of the complete absence in the record of any other
evidence of functional limitations.2 Thus, even if the ALJ made a function-by-function finding,
his conclusion would have remained the same. Failure to discuss each and every functional
limitation, as plaintiff argues is required by SSR 96-8p, need not be determinative of an
appeal, especially where, as here, the record would support no result other than the one
reached by the ALJ. See O'Connor v. Comm'r of Soc. Sec., No. 5:11-CV-1425, 2013 WL
1180963, at *7–8 (N.D.N.Y. Mar. 20, 2013) (McAvoy, J.) (finding that upon review of the
record as a whole ALJ properly assessed evidence to find RFC and recognizing that ALJ's
failure to perform function-by-function analysis could be harmless error if the overall RFC
assessment was susceptible to meaningful review); Dillingham v. Astrue, No. 5:09-CV-236,
2010 WL 3909630, at *11–12 (N.D.N.Y. Aug. 24, 2010) (Bianchini, Mag. J.) (discussing
desirability of function-by-function analysis and the meaningfulness of review of the ALJ's
assessment lacking such analysis), adopted by 2010 WL 3893906 (N.D.N.Y. Sept. 30, 2010)
(Sharpe, J.).

2

The one RFC questionnaire by Dr. Schaeffer indicates severe impairments of function. This is
addressed in the following subsection regarding the treating physician rule.
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The ALJ's assessment of plaintiff's RFC, while not technically meeting the function-byfunction analysis requirement of SSR 96-8p, is supported by substantial evidence.
3. Treating Physician Rule
Jordan argues that the ALJ improperly failed to give controlling weight to the opinion of
her treating physician Dr. Schaeffer. Rather, according to plaintiff, the ALJ gave great weight
to a consultative examiner, Dr. Shayevitz.
Again, Dr. Schaeffer found that, although plaintiff suffered from a partial disability, she
was capable of performing light work as of December 13, 2006, so long as there were no
weight greater than twenty pounds. R. at 236. Dr. Schaeffer's office notes show that he did
not change this finding through at least March 3, 2009. Id. at 230, 231, 246, 263, 262, 258,
253, 252, 251, 250, 249, 248, 247, 269, 268, 267, 266 (record citations in chronological
order). As recognized by the ALJ, these opinions were "well supported by the objective
clinical and laboratory findings and consistent with all evidence in the medical record." Id. at
40. Therefore, the ALJ gave "greatest weight" to these opinions in assessing Jordan's RFC.
Id. The ALJ gave great weight to consulting examining physicians Dr. Shayevitz and Dr.
Alvarez because of their "fundamentally consistent opinions." Id.
The ALJ refused to give credence to an RFC questionnaire by Dr. Schaeffer dated
January 6, 2009.3 This questionnaire indicated that plaintiff could never lift or carry anything,
could sit, stand, or walk less than one hour at one time without interruption, could never climb
ladders, balance, kneel, or crouch, and could occasionally climb stairs and stoop. Id. at
264–65. As stated by the ALJ, if one accepted these limitations plaintiff would be "severely

3

Although the date is illegible on the form, office notes from January 6, 2009, indicate that Dr.
Schaeffer completed the RFC questionnaire on that date. Id. at 268.
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disabled and probably essentially bedridden." Id. at 40. These limitations reflected in the
RFC questionnaire are completely inconsistent with all the medical evidence in the record,
including the consultative examiners and the treating physician Dr. Schaeffer himself. It was
perfectly proper to give little weight to this RFC assessment, as the ALJ did. Id. at 40–41;
see Poupore, 566 F.3d at 307.
The ALJ did not violate the treating physician rule in discounting the treating
physician's RFC opinion because it was inconsistent with all the other evidence in the record
and was not supported by any medical evidence.
4. Credibility of plaintiff
A plaintiff's subjective complaint "of pain is an important factor to be considered
in determining disability." Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984). An ALJ,
although permitted to independently judge subjective complaints of pain, must "'evaluate the
credibility of a claimant . . . in light of medical findings and other evidence, regarding the true
extent of the pain alleged by the claimant.'" Id. at 186 (quoting McLaughlin v. Sec'y of
Health, Educ. & Welfare, 612 F.2d 701, 705 (2d Cir. 1980) (quoting Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979)). The credibility evaluation must also include consideration of
plaintiff's "demeanor, testimony regarding his symptoms and daily activities and other
evidence." Diaz v. Bowen, 664 F. Supp. 725, 730 (S.D.N.Y. 1987) (citing Marcus, 615 F.2d
at 27). If substantial evidence supports the ALJ's assessment of plaintiff's credibility, that
assessment will be given great deference. O'Connor, 2013 WL 1180963, at *9. The ALJ's
assessment of plaintiff's credibility will be rejected only where it is clearly erroneous. Id.
Jordan arrived at the hearing before the ALJ on June 25, 2009, using a cane to
ambulate. R. at 17. She explained that it was prescribed for her during an emergency room
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visit. Id. However, her treating physician Dr. Schaeffer advised her to stop using the can
during an office visit on June 25, 2008. Id. at 249. This inconsistency undermines plaintiff's
credibility.
Further undermining her credibility was plaintiff's testimony at the hearing before the
ALJ regarding her daily activities. See id. at 20–25. According to Jordan's testimony, about
all she can do is take her dog outside—other family members cook, do laundry, vacuum,
sweep, and mop. Id. at 20–21. She rarely goes anywhere alone; for example, she may go
along with her son to the grocery store, but he carries the groceries. Id. at 21. Plaintiff
testified that she lies in bed, watches television, and goes to church and doctors'
appointments, but does no other activities or socializing. Id. at 22–23, 26. She does drive,
but has one of her sons ride up front with her to look to the side because she cannot do it.
Id. at 23.
In addition to plaintiff's testimony that her limitations preclude her from doing virtually
anything, Dr. Shayevitz questioned Jordan's effort during the consultative examination,
although she did note that plaintiff appeared to be guarding. Id. at 188.

As set forth above,

the objective medical evidence supports some limitations in plaintiff's ability to function at
work, but no where near to the extent that she claims. Substantial evidence supports the
ALJ's determination that Jordan was less than credible. Therefore, his determination must
be given great deference. The ALJ's assessment of plaintiff's credibility was not clearly
erroneous and will not be rejected.

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5. Failure to consult a vocational expert
Jordan argues that the ALJ erred in failing to call a vocational expert because she
suffers from significant mental limitations from depression and nonexertional limitations, such
as pain and postural limitations.
When a claimant suffers from a nonexertional limitation that "so narrows a claimant's
possible range of work as to deprive him of a meaningful employment opportunity," the ALJ
should obtain the testimony of a vocational expert to assure that work exists in the national
economy that the claimant can perform. Bapp v. Brown, 802 F.2d 601, 606 (2d Cir. 1986).
As discussed above, there is no evidence in the record indicating "significant mental
limitations" from depression. Dr. Noia noted that plaintiff had difficulty dealing with stress and
depression, but opined that there was no interference with her ability to function. Id. at 185.
Her depression has not narrowed Jordan's possible range of work. Moreover, plaintiff does
not point to any evidence in the record to demonstrate any other nonexertional limitations.
Therefore, a vocational expert was not needed.
IV. CONCLUSION
Substantial evidence supports the ALJ's Step 2 analysis and conclusion. The ALJ
failed to do a function-by-function analysis when determining Jordan's RFC. However, this
failure was harmless error as substantial evidence supports his RFC assessment. The ALJ
properly gave great weight to plaintiff's treating physician Dr. Schaeffer's opinions except his
January 6, 2009, RFC questionnaire which was inconsistent with the other evidence in the
record, including Dr. Schaeffer's own opinions. The ALJ properly found the plaintiff less
than credible. Finally, the ALJ did not err in not consulting a vocational expert.
Accordingly, it is
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ORDERED that
1. The Commissioner's motion for judgment on the pleadings is GRANTED;
2. The Commissioner's decision denying plaintiff disability benefits is AFFIRMED; and
3. The complaint is DISMISSED in its entirety.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.

Dated: April 17, 2013
Utica, New York.

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