Woodmancy v. Astrue
Filing
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MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Woodmancy's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 10/9/2013. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BARBARA LYNNE
WOODMANCY,
Plaintiff,
5:12-cv-991
(GLS)
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security.
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Law Offices of Kenneth Hiller, PLLC
6000 North Bailey Avenue - Suite 1A
Amherst, NY 14226
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
JAYA A. SHURTLIFF, ESQ.
KENNETH R. HILLER, ESQ.
SANDRA M. GROSSFELD
Special Assistant U.S. Attorney
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Barbara Lynne Woodmancy 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
Woodmancy’s arguments, the court affirms the Commissioner’s decision
and dismisses the complaint.
II. Background
On June 15, 2009, Woodmancy filed an application for SSI under the
Social Security Act (“the Act”), alleging disability since April 4, 2001. (Tr.1 at
45, 97-100.) After her application was denied, (id. at 52-56), Woodmancy
requested a hearing before an Administrative Law Judge (ALJ), which was
held on October 28, 2010, (id. at 21-43, 58-60). On January 27, 2011, 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 1-5, 8-20.)
1
Page references preceded by “Tr.” are to the Administrative
Transcript. (Dkt. No. 9.)
2
Woodmancy commenced the present action by filing her complaint
on June 19, 2012 wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (Dkt. Nos. 8, 9.) Each
party, seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 12.)
III. Contentions
Woodmancy contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 11 at 923.) Specifically, Woodmancy argues that the ALJ: (1) improperly
determined the severity of her impairments; (2) erred in determining her
residual functional capacity (RFC); (3) incorrectly evaluated her credibility;
and (4) failed to obtain the testimony of a vocational expert (VE). (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. 12 at 2-17.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 11 at 3-8; Dkt. No. 12 at 1-2.)
V. Standard of Review
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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.
Severe Impairments
First, Woodmancy claims that the ALJ failed to properly assess the
severity of her anemia, sleep apnea, and pancreatitis. (Dkt. No. 11 at 913.) The Commissioner counters, and the court agrees, that as the ALJ
found that Woodmancy suffered other severe impairments, and the
sequential analysis continued, any error at step two is harmless. (Dkt. No.
12 at 6-8.)
At step two of the sequential analysis, the ALJ must “determine
whether the claimant has a severe impairment.” Christiana, 2008 WL
2
42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial
review of SSI claims.
4
759076, at *3; see 20 C.F.R. § 416.920(a)(4)(ii), (c). A claimant has the
burden of establishing that she has a “severe impairment,” which is “any
impairment or combination of impairments which significantly limits [her]
physical or mental ability to do basic work activities.” 20 C.F.R.
§ 416.920(c); see Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003). As pertinent here, 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,” 20 C.F.R. § 416.921(b)(1), and “[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)(3)-(6).
Notably, 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 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).
Here, the ALJ determined that Woodmancy suffered mild restrictions
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in activities of daily living, mild difficulties in maintaining social functioning,
moderate difficulties in maintaining concentration, persistence, and pace,
and only one episode of decompensation. (Tr. at 14-15.) Thus, she
concluded that Woodmancy’s substance abuse, depression, and facet
arthropathy were severe, but her anemia, sleep apnea, and pancreatitis
were not severe. (Id. at 13-14.) The ALJ based her decision primarily on
Woodmancy’s treatment records. (Id. at 14, 215-46, 291-307, 308-16, 317,
328.)
Woodmancy contends that her anemia, sleep apnea, and
pancreatitis should have been found to be severe impairments. (Dkt. No.
11 at 11.) The ALJ determined that these impairments were not severe,
and this determination was supported by substantial evidence. (Tr. at 14.)
Specifically, the record demonstrates that Woodmancy’s symptoms from
her anemia, sleep apnea, and pancreatitis have either been lessened with
treatment, or have not been recurring, and therefore have not been shown
to be more than minimally limiting. (Tr. at 215-46, 308-16, 317).
Moreover, as the disability analysis continued and the ALJ
considered claimant’s severe and non-severe impairments in her RFC
determination, any error at step two is, at most, harmless. See Tryon,
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2012 WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012); see also Plante, 2011 WL
6180049, at *4 (D. Vt. Dec. 13, 2011).
B.
RFC Determination3
1.
Evaluation of Opinion Evidence
With respect to the ALJ’s RFC4 determination, Woodmancy argues
that the ALJ improperly evaluated the opinion evidence. (Dkt. No. 11 at
13-18.) Specifically, Woodmancy contends that the opinion of her treating
physician, Dr. Debra Buchan, and nurse practitioner Sharlene Nemitz,
indicating that she had decreased physical stamina, could sit five to ten
minutes and stand ten to fifteen minutes, could sit and stand/walk less than
3
The court notes Woodmancy’s contention that the ALJ’s findings
are internally inconsistent and therefore in error. (Dkt. No. 11 at 13.)
Specifically, Woodmancy points to the ALJ classifying her restrictions in
activities of daily living as both “mild” and “moderate.” (Id.; Tr. at 15.)
However, the ALJ’s RFC determination was otherwise supported by
substantial evidence and Woodmancy has failed to argue how this
constituted legal error warranting remand.
4
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.
Charter, 77 F.3d 41, 46 (2d Cir. 1996).
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two hours in an eight-hour work day, and had “no useful ability to function
in regard to understanding and remembering very short and simple
instructions” should have been given at least “significant weight.” (Id. at
14-15.) According to Woodmancy, Dr. Buchan’s opinion was entitled to
controlling weight because it was “more specific and detailed” than the
findings in other record evidence. (Id. at 17-18.) The Commissioner
asserts that Dr. Buchan’s opinion was not entitled to controlling weight
because it was inconsistent with other evidence of record. (Dkt. No. 12 at
8-12.) The court agrees with the Commissioner.
Controlling weight will be given to a treating source’s opinion on the
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).
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Here, the ALJ explained that she “cannot give much weight to the
Nemitz/Buchan opinion” because it was inconsistent with treatment notes
and other medical opinions, namely the opinions of Dr. Kalyani Ganesh
and Dr. Kristen Barry, consultative examiners. (Tr. at 17-18.) The ALJ
properly acknowledged that Dr. Buchan, whose “first contact” with
Woodmancy was in 2004, (id. at 439), opined in December 2010 that
Woodmancy could not sit, stand or walk more than two hours in an eighthour workday. (Id. at 17, 439-42.) Dr. Buchan also indicated that
Woodmancy had no useful ability to understand and remember very short
and simple instructions, and was significantly limited in, but not precluded
from, carrying out simple instructions. (Id. at 441.)
Because Dr. Buchan’s opinion regarding the severity of
Woodmancy’s limitations was inconsistent with substantial evidence5 of
record, however, the ALJ did not err in giving less than controlling weight to
her opinion. In particular, Dr. Ganesh was of the opinion that there was
“no gross physical limitation noted to sitting, standing, walking, or the use
5
“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 citation omitted).
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of upper extremities.” (Id. at 253.) Moreover, Dr. Barry conducted a
psychiatric evaluation of Woodmancy in September 2009. (Id. at 255-259.)
After her examination, Dr. Barry opined that Woodmancy “is able to follow
and understand simple directions and instructions, and she is able to
maintain her attention and concentration fairly well,” and that she “should
be able to perform simple tasks independently.” (Id. at 258.)
Consistent with the requirements of 20 C.F.R. § 416.927, which was
specifically cited by the ALJ, she determined that the more restrictive
opinion of Dr. Buchan and Nurse Practitioner Nemitz was not supported by
other medical opinions and treatment notes, (id. at 17-18), a legitimate
basis for discounting opinion evidence, see 20 C.F.R. § 416.927(c)(3). For
these reasons, the ALJ did not err in weighing the opinions of record, and
this argument is without merit.
2.
Failure to perform function-by-function analysis
Woodmancy also contends that the ALJ failed to provide functional
findings relating to her exertional RFC. (Dkt. No. 11 at 19-20); see 20
C.F.R. § 416.945(b); Crysler v. Astrue, 563 F. Supp. 2d 418, 436 (N.D.N.Y.
2008). Although the ALJ could have provided further clarification with
respect to Woodmancy’s capabilities, as the ALJ’s decision examined the
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relevant factors in reaching an RFC determination, and the ultimate
determination was supported by substantial evidence, this shortcoming
does not amount to legal error. (Tr. at 15-19); see Cichocki v. Astrue, No.
12-3343-CV, 2013 WL 4749644, at *4 (2d Cir. Sept. 5, 2013); Irizarry v.
Astrue, No. 5:09-cv-1370, 2012 WL 177969, at *2 (N.D.N.Y. Jan. 23,
2012).
The court also notes Woodmancy’s contention that the ALJ erred
because she failed to “make any accommodation for Woodmancy’s
impaired ability to cope with work stress.” (Dkt. No. 11 at 18.) However,
this argument is belied by the ALJ’s reliance on the opinion of Dr. Barry,
who opined that Woodmancy could still perform basic work tasks despite
her “difficulty handling stressors.” (Tr. at 18, 258.)
C.
Credibility
Woodmancy next argues that the ALJ improperly evaluated her
credibility. (Dkt. No. 11 at 20-22.) As to this argument, Woodmancy
simply states that “[t]he ALJ did not . . . engage in applying the other
factors such as precipitating factors of symptoms, medications, or other
methods Woodmancy uses to alleviate her symptoms.” (Id. at 22.) The
court disagrees.
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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-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
§ 416.929(c)(3)(i)-(vi)).
Here, the ALJ determined that Woodmancy’s “statements concerning
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the intensity, persistence and limiting effects of [her] symptoms” were “not
credible to the extent they are unsupported by the totality of the record.”
(Tr. at 17.) In particular, the ALJ found “numerous inconsistencies
between [Woodmancy’s] testimony and the evidence of record,” (id. at 19),
and a lack of “a longitudinal work history to bolster her credibility,” (id. at
17). The credibility determination is amply supported, and it reflects a fair
application of the governing regulation.
Despite Woodmancy’s claims at the hearing that she was unable to
sit, stand, or walk for more than five or ten minutes at a time, to lift more
than five pounds, or to dress herself, brush her hair, or cook, (see, e.g., id.
at 35, 37, 38, 41-42), the record is replete with contradictory evidence,
(see, e.g., id. at 47, 252-253, 257, 275). Moreover, it is clear that the ALJ
appropriately considered the factors set forth in 20 C.F.R. § 416.929(c)(3)
by her specific reference to § 416.929, and discussion of Woodmancy’s
daily activities, the intensity of her symptoms, medications, and treatment.
(Tr. at 16-19.)
D.
Vocational Expert Testimony
Lastly, Woodmancy contends that the ALJ should have produced the
testimony of a VE to establish that there is other work that she could
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perform, despite her limitations. (Dkt. No. 11 at 22-23.) The
Commissioner responds that the ALJ’s reliance on the Medical-Vocational
Guidelines to determine that Woodmancy could perform other work was
appropriate. (Dkt. No. 12 at 16-17.) The court agrees with the
Commissioner.
Initially, the Regulations provide that the “mental activities . . .
generally required by competitive, remunerative, unskilled work [include
u]nderstanding, remembering, and carrying out simple instructions[;
m]aking judgments that are commensurate with the functions of unskilled
work—i.e., simple work-related decisions[; r]esponding appropriately to
supervision, co-workers and usual work situations[; and d]ealing with
changes in a routine work setting.” SSR 96-9p, 61 Fed. Reg. 34,478,
34,483 (July 2,1996); see 20 C.F.R. § 416.921(b)(3)-(6). Moreover, in
making a step-five ruling, an ALJ may rely on the Medical-Vocational
Guidelines found in 20 C.F.R. pt. 404, subpt. P, app. 2, as long as the
claimant’s age, education, work experience, and RFC coincide with the
criteria of a rule contained in those Guidelines. See 20 C.F.R. § 416.969;
see also Calabrese v. Astrue, 358 F. App’x 274, 275 n.1 (2d Cir. 2009).
However, when a claimant’s nonexertional impairments “significantly limit
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the range of work permitted by his exertional limitations,” the
Commissioner “must introduce the testimony of a [VE] (or other similar
evidence) that jobs exist in the economy which claimant can obtain and
perform.” Bapp v. Bowen, 802 F.2d 601, 603, 605 (2d Cir. 1986)
Woodmancy argues that because her depression was found to be a
“severe impairment,” the ALJ should have found that she was unable to
carry out the basic mental demands of unskilled work. (Dkt. No. 11 at 23.)
However, despite Woodmancy’s impairment, the ALJ found that
Woodmancy “retain[ed] the ability (on a sustained basis) to understand,
carry out, and remember simple instructions[,] . . . respond appropriately to
supervision, coworkers, and usual work situations and to deal with
changes in a routine work setting.” (Tr. at 16.) This conclusion was
supported by substantial record evidence, namely the opinion of Dr. Barry,
who opined that Woodmancy was “able to follow and understand simple
directions and instructions, and she is able to maintain her attention and
concentration fairly well,” (id. at 258), and that of E. Kamin, state agency
consultant, who opined that Woodmancy was “able to perform basic
demands of competitive, remunerative unskilled work on a sustained
basis,” (id. at 282).
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Thus, after noting the mental abilities required for unskilled work and
concluding that “the evidence establishes that the claimant has no
significant limitations in the performance of these basic mental demands of
work,” the ALJ applied the grid guidelines and found Woodmancy not
disabled. (Tr. at 19-20); see SSR 83-10, 1983 WL 31251, at *3 (1983)
(explaining that the rules contained in the grid guidelines “reflect[] the
presence of nonexertional capabilities sufficient to perform unskilled work
at the pertinent exertional levels”). As the ALJ determined—with the
support of substantial evidence—that Woodmancy’s nonexertional
impairments did not “‘significantly limit the range of work permitted by her
exertional limitations,’” consultation with a VE was not required. Bapp, 802
F.2d at 605 (quoting Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir.
1983)); see SSR 83-14, 1983 WL 31245 at *4-5 (1983); SSR 85-15, 1985
WL 56857 at *7-8 (1985).
E.
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
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ORDERED that the decision of the Commissioner is AFFIRMED and
Woodmancy’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.
October 9, 2013
Albany, New York
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