Dirisio v. Commissioner of Social Security

Filing 15

DECISION AND ORDER denying # 9 Plaintiff's motion for judgment on the pleadings; and granting # 13 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 12/20/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
ANGELA DIRISIO,
Plaintiff,
v.

5:15-CV-1181
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF STEVEN R. DOLSON
Counsel for Plaintiff
126 North Salina Street, Suite 3B
Syracuse, NY 13202

STEVEN R. DOLSON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL
– REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

MICHELLE L. CHRIST, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Angela Dirisio
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 9, 13.) For the reasons set forth below, Plaintiff’s motion for judgment
on the pleadings is denied and Defendant’s motion for judgment on the pleadings is granted.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on April 21, 1976. (T. 185.)1 Plaintiff completed two years of college,
and has past work as a cashier and an insurance company service representative. (T. 189-90.)
Generally, Plaintiff’s alleged disability consists of bipolar disorder and carpal tunnel syndrome.
(T. 189.)
B.

Procedural History

On February 9, 2012, Plaintiff applied for a period of Disability and Disability Insurance
Benefits, alleging disability beginning April 18, 2011. (T. 19.) Plaintiff’s application was
initially denied on June 6, 2012, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). (Id.) On September 12, 2013, Plaintiff appeared in a video
hearing before the ALJ, John P. Ramos. (T. 31-63.) On February 10, 2014, the ALJ issued a
written decision finding Plaintiff not disabled under the Social Security Act. (T. 11-30.) On
September 3, 2015, the Appeals Council denied Plaintiff’s request for review, rendering the
ALJ’s decision the final decision of the Commissioner. (T. 1-6.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 21-29.) First, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2016, and has not engaged in
substantial gainful activity since April 18, 2011, the alleged onset date. (T. 21.) Second, the
ALJ found that Plaintiff’s residuals of bilateral carpal tunnel releases, obesity, and bipolar

1

Page citations refer to the page numbers used on CM/ECF rather than the page numbers contained
in the parties’ respective motion papers.

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disorder are severe impairments, but that Plaintiff’s back pain and headaches are not severe
impairments. (T. 21-22.) Third, the ALJ found that Plaintiff’s severe impairments, alone or in
combination, do not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, App. 1 (the “Listings”). (T. 22-24.) The ALJ considered Listings 12.04 and 12.06.
(Id.) Fourth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to
perform
light work as defined in 20 CFR 404.1567(b)2 and she retains the
ability to understand and follow simple instructions and directions;
perform simple tasks with supervision and independently; maintain
attention/concentration for simple tasks; regularly attend to a routine
and maintain a schedule; relate to and interact with others to the
extent necessary to carry out simple tasks, but she should avoid work
requiring more complex interactions or joint efforts with other
coworkers to achieve work goals, and she should have no more than
occasional, brief interaction with the public. The claimant can handle
reasonable levels of simple, work-related stress, in that the can make
decisions directly related to the performance of simple work and she
can handle usual workplace changes and interactions associated with
simple work.
(T. 24-28.) Fifth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T.
28). Sixth, and finally, the ALJ determined that there are jobs that exist in significant numbers in
the national economy that Plaintiff could perform. (T. 28-29.)
D.

The Parties’ Briefings on Their Cross-Motions

Plaintiff essentially argues that the ALJ committed reversible error by failing to include
the full range of Plaintiff’s nonexertional limitations in the RFC, including limitations in
reaching, handling, fingering, and feeling. (Dkt. No. 9, at 3-7 [Pl.’s Mem. of Law].) Within this
argument, Plaintiff argues that the ALJ’s step five determination was not supported by
substantial evidence. (Id., at 6.)
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Light work requires the abilities to sit for six hours, stand or walk for six hours, lift up to 20
pounds at a time, and frequently lift or carry up to ten pounds during an eight-hour workday. 20 C.F.R. §
404.1567(b); SSR 83-10, 1983 WL 31251 (1983).

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Defendant argues that the ALJ’s RFC determination was supported by substantial
evidence. (Dkt. No. 13, at 7-11 [Def.’s Mem. of Law].) Within this argument, Defendant argues
that the ALJ’s step five determination was also supported by substantial evidence. (Id., at 11.)
II.

RELEVANT LEGAL STANDARD
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
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, 91 S. Ct. 1420, 1427 (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,
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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).
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. The
Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (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
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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).
III.

ANALYSIS
A.

Whether the ALJ’s Physical RFC Determination is Supported by Substantial
Evidence

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. Dkt. No. 13, at 7-11 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
Residual functional capacity (“RFC”) 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, and the RFC assessment must include a discussion
of the individual’s abilities on that basis. A “regular and continuing
basis” means 8 hours a day, for 5 days a week, or an equivalent work
schedule.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2
[July 2, 1996]). Social Security regulations define medical opinions as “statements from
physicians and psychologists or other acceptable medical sources that reflect judgments about the
nature and severity of . . . [a plaintiff’s] impairment(s), including . . . [a plaintiff’s] symptoms,
diagnosis and prognosis, what . . . [a plaintiff] can still do despite impairment(s), and . . . [a
plaintiff’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).

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“In assessing a claimant’s RFC, the ALJ must consider all of the relevant medical and
other evidence in the case record to assess the claimant’s ability to meet the physical, mental,
sensory and other requirements of work.” Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at
*8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider
opinions from acceptable medical sources to show how a claimant’s impairments may affect his
or her ability to work. 20 C.F.R. § 404.1513(a)(1)-(5) (identifying the five types of acceptable
medical sources as: (1) licensed physicians, (2) licensed or certified psychologists, (3) licensed
optometrists, (4) licensed podiatrists, and (5) qualified speech-language pathologists).
In formulating a plaintiff’s RFC, an ALJ is not required to adhere to the entirety of one
medical source’s opinion. See Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) (“Although
the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources
cited in his decision, he was entitled to weigh all of the evidence available to make an RFC
finding that was consistent with the record as a whole.”); Zongos v. Colvin, 12-CV-1007, 2014
WL 788791, at *9 (N.D.N.Y. Feb. 25, 2014). Moreover, an ALJ is not required “explicitly to
reconcile every conflicting shred of medical testimony.” See Miles v. Harris, 645 F.2d 122, 124
(2d Cir. 1981) (finding that the ALJ was not required to reconcile two apparently inconsistent
medical opinions; it was sufficient that the ALJ noted that he carefully considered the exhibits
presented in evidence in reaching his decision). Finally, an ALJ’s 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).
Plaintiff argues that the ALJ’s RFC failed to include limitations in reaching, handling,
fingering, feeling. (Dkt. No. 9, at 3-7 [Pl.’s Mem. of Law].) However, Plaintiff does not cite, and
the record does not contain, a medical opinion indicating that Plaintiff had limitations performing
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these functions. (Id.) First, the Court notes that the ALJ is entitled to rely not only on what the
record says, but also on what it does not say in determining a plaintiff’s RFC. See Diaz v.
Shalala, 59 F.3d 307, 315 (2d. Cir. 1995) (“The Secretary is entitled to rely not only on what the
record says, but also on what it does not say.”). Second, the Court finds that the ALJ’s physical
RFC determination was supported by the only medical opinion of Plaintiff’s work-related
physical limitation in the record, provided by consultative examiner, Kalyani Ganesh, M.D. (T.
432-35.)
On May 4, 2012, Dr. Ganesh examined Plaintiff and provided an opinion of her physical
abilities and limitations. (T. 432-35.) Dr. Ganesh opined that Plaintiff had mild limitation in
lifting, carrying, pushing, and pulling; and had no gross limitation in sitting, standing, and
walking. (T. 435.) Upon examination, Dr. Ganesh observed that Plaintiff had a normal gait, was
able to walk on her heels and toes without difficulty, was able to rise from a chair without
difficulty, and needed no help changing for the examination or getting on and off the examination
table. (T. 25, 433.) Dr. Ganesh observed that Plaintiff had full range of motion of the spine, as
well as her shoulders, elbows, forearms, and wrists bilaterally. (T. 429.) Dr. Ganesh further
observed that Plaintiff’s hand and finger dexterity were intact, and her right hand grip strength
was three out of five. (Id.) Dr. Ganesh diagnosed Plaintiff with status post carpal tunnel release
surgery, noting that Plaintiff had carpal tunnel surgery on her left hand in January 2012, and on
her right hand in March 2012. (T. 432, 435.)
The ALJ discussed Dr. Ganesh’s examination findings and noted that, while Dr. Ganesh
found diminished grip strength on the right, the examination occurred only two months after
Plaintiff’s right carpal tunnel release surgery. (T. 25.) In determining Plaintiff’s physical RFC,
the ALJ afforded “significant weight” to Dr. Ganesh’s opinion, reasoning that the opinion was
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consistent with Dr. Ganesh’s examination findings and Plaintiff’s treatment notes in the record.
(Id.) For the following reasons, and for the reasons set forth in Defendant’s memorandum of law,
the Court finds that substantial evidence supports the ALJ’s assessment of Dr. Ganesh’s opinion
and Plaintiff’s physical RFC. Dkt. No. 13, at 7-11 [Def.’s Mem. of Law].)
First, the ALJ properly applied the regulations in assessing Dr. Ganesh’s opinion by
considering Dr. Ganesh’s professional credentials, examination of Plaintiff and examination
notes, and the consistency of Dr. Ganesh’s opinion with the record as a whole. (T. 25); 20 C.F.R.
§ 404.1527(c)(1)-(6); see also Suttles v. Colvin, 654 F. App’x 44, 46 (2d Cir. 2016) (summary
order) (listing factors for evaluating a consultative examiner’s opinion); Fuimo v. Colvin, 11-CV0339, 948 F. Supp.2d 260, 267 (N.D.N.Y. 2013) (listing factors). Where, as here, an ALJ’s
reasoning and adherence to the regulations are clear, the ALJ is not required to review each and
every factor of the regulation. Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (holding
that, where a plaintiff challenged the ALJ’s failure to review each factor provided for in 20 C.F.R.
§ 404.1527[c], “no such slavish recitation of each and every factor [was required] where the ALJ's
reasoning and adherence to the regulation [was] clear”).
Second, in determining a plaintiff’s RFC, an ALJ is entitled to rely on opinions from both
examining and non-examining State agency medical consultants because these consultants are
qualified experts in the field of social security disability. 20 C.F.R. §§ 404.1512(b)(1)(vi),
404.1513(c), 404.1527(e); see also Frey ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir.
2012) (summary order) (“The report of a State agency medical consultant constitutes expert
opinion evidence which can be given weight if supported by medical evidence in the record.”);
Little v. Colvin, 14-CV-0063, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency
physicians are qualified as experts in the evaluation of medical issues in disability claims. As
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such, their opinions may constitute substantial evidence if they are consistent with the record as a
whole.”) (internal quotation marks omitted).
For the foregoing reasons, the Court find that the ALJ’s physical RFC assessment was
supported by substantial evidence.
B.

Whether the ALJ’s Step Five Determination Was Supported by Substantial
Evidence

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 11 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
At step five of the sequential process, the burden shifts to the Commissioner to establish
that there is other work that exists in significant numbers in the national economy that a plaintiff
can perform based on the plaintiff’s RFC, age, education, and past relevant work. Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). The Commissioner can usually establish that there is
other work that a plaintiff can perform by reliance on the Medical-Vocational guidelines
contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the Grids.”
Baldwin v. Astrue, 07-CV-6958, 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009).
When a plaintiff suffers from nonexertional limitations that significantly limit the
plaintiff’s employment opportunities, exclusive reliance on the Grids is inappropriate. Baldwin,
2009 WL 4931363, at *27 (citing Bapp v. Bowen, 802 F.2d 601, 605 [2d Cir. 1986]). However,
“the mere existence of a non-exertional limitation does not automatically preclude reliance on the
guidelines.” Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (citing Bapp, 802 F.2d at
603.) A plaintiff’s range of potential employment is significantly limited when the plaintiff
“suffers from the additional loss of work capacity beyond a negligible one or, in other words, one

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that so narrows a claimant’s possible range of work as to deprive him of a meaningful
employment opportunity.” Baldwin, 2009 WL 4931363, at *27.
Plaintiff argues that the ALJ’s step five determination was unsupported by substantial
evidence because it was based on the ALJ’s flawed physical RFC determination that failed to
include limitations in reaching, handling, fingering, and feeling. (Dkt. No. 9, at 6 [Pl.’s Mem. of
Law].) However, as discussed above in Part III.A. of this Decision and Order, the ALJ’s physical
RFC determination was supported by substantial evidence, including the opinion of consultative
examiner Dr. Ganesh. (T. 435.) Moreover, the ALJ properly found that Plaintiff’s physical
limitations had little or no limiting effect on the occupational base of unskilled light work at step
five. (T. 28.) Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
For these reasons, the ALJ’s step five determination was supported by substantial
evidence, and remand is not necessary on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: December 20, 2016
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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