Soto v. Commissioner of Social Security

Filing 11

MEMORANDUM-DECISION AND ORDER: It is ORDERED that Daniel's motion for judgment on the pleadings is DENIED; The Commissioner's motion for judgment on the pleadings is GRANTED; The Commissioner's decision is AFFIRMED; and Daniel's complaint is DISMISSED. The Clerk of the Court is directed to enter a judgment accordingly and to close the file. Signed by Judge David N. Hurd on 5/22/2019. (meb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DANIEL ESTRELLA S.,
Plaintiff,
-v-

5:17-CV-838

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

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

STEVEN R. DOLSON, ESQ.

OFFICE OF REGIONAL GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION
REGION II
Attorneys for Defendant
26 Federal Plaza, Room 3904
New York, NY 10019

JOANNE JACKSON
PENGELLY, ESQ.
Special Ass't United States Attorney

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiff Daniel Estrella S.1 ("Daniel" or "plaintiff") brings this action seeking review of
defendant Commissioner of Social Security's ("Commissioner" or "defendant") final decision

1

In accordance with a May 1, 2018 memorandum issued by the Judicial Conference's Committee on
Court Administration and Case Management and adopted as local practice in this District, only claimant's first
name and last initial will be used in this opinion.

denying his application for Disability Insurance Benefits ("DIB"). Both parties have filed their
briefs, and defendant has filed the Administrative Record on Appeal. The motions will be
considered on the basis of these submissions without oral argument.2
II. BACKGROUND
On April 22, 2016, Daniel filed an application for DIB alleging that his various mental
impairments rendered him disabled beginning on June 23, 2015. R. at 144-50. 3 Plaintiff's
claim was initially denied on July 1, 2016. Id. at 69-78.
At Daniel's request, a hearing was held before Administrative Law Judge ("ALJ")
Elizabeth W. Koennecke on September 26, 2016. R. at 39-53. Plaintiff, represented by
non-attorney Matthew F. Nutting, appeared and testified. Id. The ALJ conducted a
supplemental hearing on December 20, 2016, at which time she heard additional testimony
from Vocational Expert ("VE") David A. Festa. Id. at 30-36.
Thereafter, the ALJ issued a written decision denying Daniel's application for benefits
through January 11, 2017. R. at 12-23. The ALJ's decision became the final decision of the
Commissioner when the Appeals Council denied plaintiff's request for review. Id. at 1-4.
III. DISCUSSION
A. Standard of Review
A court's review of the Commissioner's final decision is limited to determining 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). "Substantial

2

Pursuant to General Order No. 18, consideration of this matter will proceed as if both parties had
accompanied their briefs with a motion for judgment on the pleadings.
3

Citations to "R." refer to the Administrative Record. Dkt. No. 6.
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evidence means 'more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (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
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 (1951)). If the Commissioner's
disability determination is supported by substantial evidence, that determination is
conclusive. See id. Indeed, where evidence is deemed susceptible to more than one
rational interpretation, the Commissioner's decision must be upheld—even if the court's
independent review of the evidence may differ from the Commissioner's. Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982); Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992).
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 v.
Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987)).
B. Disability Determination—The Five-Step Evaluation Process
The Act defines "disability" as 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
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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 ALJ must follow a five-step evaluation process in deciding whether an individual is
disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ m ust determine
whether the claimant has engaged in substantial gainful activity. A claimant engaged in
substantial gainful activity is not disabled, and is therefore not entitled to
benefits. Id. §§ 404.1520(b), 416.920(b).
If the claimant has not engaged in substantial gainful activity, then step two requires
the ALJ to determine whether the claimant has a severe impairment or combination of
impairments which significantly restricts his 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 or combination of
impairments, then step three requires the ALJ to determine whether, based solely on medical
evidence, the impairment or combination of impairments meets or equals an impairment
listed in Appendix 1 of the regulations (the "Listings"). Id. §§ 404.1520(d), 416.920(d); see
also id. Pt. 404, Subpt. P, App. 1. If the claimant's impairment or combination of impairments
meets one or more of the Listings, 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)).
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If the claimant is not presumptively disabled, step four requires the ALJ to assess
whether—despite the claimant's severe impairment—he has the residual functional capacity
("RFC") to perform his past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The burden
of proof with regard to these first four steps is on the claimant. Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d
Cir. 1983)).
If it is determined that the claimant cannot perform his past relevant work, the burden
shifts to the Commissioner for step five. Perez, 77 F.3d at 46. This step requires the ALJ 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, physical ability,
education, and previous work experience should be evaluated to determine whether a
claimant retains the RFC to perform work in any of five categories of jobs: very heavy,
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; [she] need not provide additional evidence of the claimant's residual
functional capacity." Poupore, 566 F.3d at 306 (citing 20 C.F.R. § 404.1560(c)(2)).
C. ALJ's Decision
Applying the five-step disability determination process, the ALJ found that: (1) Daniel
had not engaged in any substantial gainful activity since June 23, 2015, the alleged onset
date; (2) plaintiff's mental impairment was "severe" within the meaning of the Regulations;
(3) this mental impairment, however characterized, did not meet or equal any of the Listings.
R. at 14-17.
As the ALJ explained, "[d]uring any given encounter, mental health professionals have
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given the claimant various diagnoses and characterized his mental impairment in various
ways (posttraumatic disorder, personality disorder, depressive disorder, anxiety disorder, and
polysubstance use disorder, in sustained remission). In determining whether an individual is
disabled, what the impairment is called is of no real consequence: rather how a given
impairment affects mental functioning is the central inquiry under the Act." R. at 15.
At step four, the ALJ determined that while Daniel had no exertional limitations, his
mental impairment limited his ability to do work-related mental activities. R. at 17. After
analyzing the evidence in the record, the ALJ found that plaintiff retained the RFC to:
understand and follow simple instructions and directions; perform
simple tasks independently; maintain attention and concentration for
simple tasks; regularly attend to a routine and maintain a schedule;
handle simple, repetitive work-related stress in that he can make
occasional decisions directly related to the performance of simple
tasks in a position with consistent job duties that does not require
him to supervise or manage the work of others; should avoid work
requiring more complex interaction or joint effort to achieve work
goals; and can tolerate superficial contact with the public.
R. at 17.
Based on these findings, the ALJ determined that Daniel could not perform any of his
past relevant work. R. at 21. However, the ALJ found that plaintiff could still perform jobs
such as "industrial cleaner," "hand packager," and "hospital cleaner." R. at 22. Because
these jobs fit in with plaintiff's assessed limitations and were present in sufficient numbers
within the national economy, the ALJ concluded plaintiff was not disabled during the relevant
time period. Id. at 22-23. Accordingly, the ALJ denied plaintiff's application for benefits.
D. Daniel's Appeal
Daniel does not challenge any of the ALJ's findings about his mental impairment or
any of her conclusions about its limiting effect on his ability to sustain work-related
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activities. Instead, plaintiff's appeal faults the ALJ for failing to assess any physical
limitations linked to his "messed up back, knee, thumb, and right shoulder."
Daniel's claim of exertional limitations is based on a September 2016 medical source
statement completed by Iram Siddiqui, M.D. R. at 390-92. Plaintiff contends that Dr.
Siddiqui is one of his "treating" physicians at the Department of Veterans Affairs ("VA") in
Syracuse, the clinic where plaintiff has received ongoing health care since 2013. See Pl.'s
Mem. at 5.4
Dr. Siddiqui's medical source statement indicates that Daniel suffers from several
musculoskeletal problems: "lumbosacral spondylosis; chronic knee pain; [and] chronic
shoulder pain." R. at 390. According to this document, these diagnoses cause a panoply of
significant functional limitations and prevent plaintiff from performing the full range of physical
work-related activities. Id.
The exertional restrictions assessed by Dr. Siddiqui include limits on the amount of
weight Daniel can lift (never more than 50 lbs.), the frequency with which he can do so (fewer
than 10 lbs., but even then only occasionally), the frequency with which he can use his neck
to look up or down (rarely), the frequency with which he can twist (never), stoop (never),
crouch (never), climb ladders (never), or climb stairs (rarely), and even how frequently he can
manipulate objects with his hands or fingers (rarely, in either case). R. at 390-91.
Daniel accuses the ALJ of giving short shrift to Dr. Siddiqui's findings at every relevant
stage of the sequential disability analysis. In plaintiff's view, Dr. Siddiqui's opinion about
plaintiff's physical limitations stands uncontradicted in the record and theref ore the ALJ was

4

Pagination corresponds with CM/ECF.
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required to incorporate his findings into her RFC calculation.
Upon review, this argument must be rejected. It is true, as Daniel argues, that the ALJ
chose to discount Dr. Siddiqui's September 2016 opinion—the ALJ assigned Dr. Siddiqui's
findings only "limited weight" during her narrative discussion of the medical opinion evidence,
R. at 20, and then failed to incorporate any of Dr. Siddiqui's assessed physical limitations into
her RFC calculation at step four, id. at 17.
However, under the particular circumstances of this case, this does not amount to
error, reversible or otherwise. A thorough discussion of the facts helps to illustrate why the
ALJ acted permissibly in this case. First, it bears noting that Daniel's initial, self-reported
disability application listed only "PTSD," "Major Depressive Disorder," and "ADD" as disabling
conditions in response to the document's instruction that he should "[l]ist all of the physical
and mental conditions . . . that limit your ability to work." R. at 186 (emphasis added).
Elsewhere, the record indicates that up until Daniel f iled this disability application, he
had worked various physical jobs, most recently as a welder, a job which required him to lift
up to seventy pounds. R. at 41, 276. Plaintiff claimed to have left that job not because of
physical problems, but because "he was having significant and persistent work disruptions"
attributable to "PTSD symptoms." Id. at 276. In fact, plaintiff readily acknowledged that his
"poor work performance and recurring problems" were attributable to "behavior
problems." Id.
Daniel's self-reported assertions roughly track a supporting document submitted by
plaintiff's girlfriend, who indicated "none" in response to a section of a disability questionnaire
that asked whether the disabled applicant was at all limited in lifting, standing, walking,
sitting, climbing stairs, kneeling, squatting, reaching, or using their hands. R. at 198. Instead
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of claims of physical limitation, plaintiff's girlfriend's responses on this document further
support plaintiff's underlying claim of disabling mental impairments. Id. at 193-200.
The various medical records in Daniel's file also confirm a history of serious and
possibly disabling mental impairments, not physical ones. For instance, a VA health
summary from April 25, 2015 reported plaintiff had "no difficult with walking and moving." R.
at 292. A May 17, 2016 physician's note indicates plaintiff had "no muscle, back pain, joint
pain or stiffness," Id. at 345, and notes from a day later show that a nurse again documented
that plaintiff had "no" musculoskeletal issues, and that he "ambulates with a steady gait." Id.
at 316-17.
Both parties point out that Daniel underwent a chest x-ray on October 27, 2014 to
investigate the cause of his dyspnea, medical jargon for shortness of breath. R. at 364-65.
As relevant here, this imaging study noted "mild degenerative changes" in plaintiff's
spine. Id. And a few years later, on February 22, 2016, Daniel underwent another X-ray, this
time to evaluate the cause of his "right shoulder pain." R. at 360.
This later study noted that Daniel had experienced a history of "right shoulder pain,"
and compared the current X-ray to a previous X-ray taken on July 31, 2013. R. at 360. The
study noted "degenerative disease of the right acromioclavicular joint" that resulted in a
"slight widening of the joint which is unchanged." Id. In all, though, the study concluded
there was "no significant change compared to the prior x-rays." Id. at 361.
Later that year, on May 11, 2016, Dr. Siddiqui's name does appear in one of these VA
health summaries as a "referring provider" for physical therapy. R. at 350. According to this
document, Daniel's primary care provider referred him to physical therapy to alleviate some
right shoulder pain he was experiencing after an incident where he "slipped on the snow
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getting out of his truck." Id.
Notably, however, this document indicates that "0" minutes of physical therapy were
provided—Daniel cancelled future appointments because, according to him, he was
scheduled to undergo surgery to repair the affected shoulder. R. at 350. Strangely, and as
the Commissioner notes in opposition, the surgical procedure plaintiff actually underwent was
not to his shoulder but is instead labeled as a " right breast lumpectomy." Id. at 352.
Against this backdrop of mostly normal physical findings, Daniel testified at the first
ALJ hearing that he stopped working because of his "PTSD" and the medication he took to
help alleviate its symptoms. R. at 44. At that time, plaintiff went on to testify to a series of
possible physical impairments as well. Id. at 44-46, 49-51.
Following the hearing, the ALJ's written decision acknowledges that Daniel's hearing
testimony broadened the scope of his allegedly disabling conditions beyond just the mental
impairments he claimed in his application. See R. at 15 (citing plaintiff's testimony as
justification for considering his "back pain, right knee pain, right shoulder pain, and arthritis in
thumb").
Even so, the ALJ concluded that Daniel's physical limitations were not "severe" within
the meaning of the Regulations. She reasoned:
Although progress notes reference[ ] issues associated with the
claimant's shoulder, knee, thumb, and back (Exhibit 3F, page 64),
the physical examination did not identify any abnormal clinical
findings associated with these conditions, and instead indicated that
he had no musculoskeletal deficits present (Exhibit 3F, page 75). A
subsequent evaluation indicated that the claimant had no muscle
pain, back pain, joint pain, stiffness, or numbness or tingling in his
extremities (Exhibit 3F, page 107). A CT Scan from October 2014
showed only incidental findings of mild degenerative changes of the
spine (Exhibit 3F, page 126). The claimant was also able to drive
around in his truck, which suggests his musculoskeletal impairments
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are not as limiting as alleged (Exhibit 3F, page 112). The claimant
sustained a right shoulder injury, and an x-ray of his right shoulder
from February 2016 showed evidence of degenerative disease of
the right acromioclavicular joint (exhibit 3F, page 122). The claimant
reported that he was going to undergo right shoulder surgery in May
2016 (exhibit 3F, page 112). However, the record does not
document any ongoing treatment for his right shoulder injury.
R. at 16.
As this block quotation from the ALJ's step two determination makes clear, she
carefully considered the relevant portions of the medical record; that is, the portions of the
record on which Daniel relies to sustain this appeal. The ALJ determined that although
plaintiff has (or had) treatment for one or more physical diagnoses, the record failed to
establish that any of these physical conditions significantly limited his ability to complete any
basic work activities.
There was no error in this conclusion. See, e.g., Zenzel v. Astrue, 993 F. Supp. 2d
146, 152 (N.D.N.Y. 2012) (Kahn, J.) (holding the "mere presence of a disease or impairment,
or establishing that a person has been diagnosed or treated for a disease or impairment," is
insufficient to render a condition "severe" within the meaning of the Regulations (quoting
Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995))).
At step four, the ALJ analyzed Dr. Siddiqui's September 2016 opinion as part of her
narrative discussion of the medical opinion evidence. R. at 20. The ALJ discounted Dr.
Siddiqui's findings because they were undermined by a series of progress notes and by other
medical records in the file. In addition, the ALJ noted that Dr. Siddiqui rendered his
conclusions without any kind of discussion of objective findings. Instead, his medical source
statement is a series of short fill-in-the-blanks and check-mark boxes.
To be sure, an ALJ is not a medical doctor, and "may not arbitrarily substitute his own
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judgment for a competent medical opinion." Barringer v. Comm'r of Soc. Sec., 358 F. Supp.
2d 67, 80 (N.D.N.Y. 2005) (Sharpe, J.) (citing Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.
1999)). At the same time, however, the "ultimate finding of whether a claimant is disabled
and cannot work [is] 'reserved to the Commissioner.'" Id. (quoting Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999)).
In keeping with that responsibility, the ALJ cannot simply adopt a physician's findings
without scrutinizing how they fit in with the entire record of each case. Butts v. Barnhart, 388
F.3d 377, 386 (2d Cir. 2004) ("[I]t is the ALJ's duty to investigate and develop the facts and
develop the arguments both for and against the granting of benefits."). In other words, "the
Social Security Administration considers the data that physicians provide but draws its own
conclusions." Snell, 177 F.3d at 133.
There was no error in the conclusion drawn by the ALJ in this case. Where, as here,
underlying treatment notes are inconsistent with more severe limitations assessed in
connection with a medical source statement, an ALJ may properly conclude the provider's
opinion should be partially or totally discounted. See, e.g., Woodmancy v. Colvin, 577 F.
App'x 72, 75 (2d Cir. 2014) (summary order).
Daniel further claims that the ALJ was obligated to point to some contradictory medical
provider's opinion about his physical limitations before she could permissibly reject Dr.
Siddiqui's opinion about their severity. But that is not necessarily always the case.
Most of the time, the ALJ's written decision is an exercise in picking through the
various medical opinions in the record to cobble together a final picture of the claimant's
functional limitations that is expressed in the RFC. See, e.g., Robles v. Colvin, 2016 WL
814926, at *4 (N.D.N.Y. Feb. 29, 2016) ("Ultimately, it is the ALJ's responsibility to 'choose
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between properly submitted medical opinions and other competent evidence to piece
together an overall [RFC] assessment.'" (quoting Crofoot v. Comm'r of Soc. Sec., 2013 W L
5493550, at *8 (N.D.N.Y. 2013))).
However, "it is not per se error for an ALJ to make the RFC determination absent a
medical opinion." Lewis v. Colvin, 2014 WL 6609637, at *6 (W.D.N.Y. Nov. 20, 2014). In
certain circumstances, "especially where the medical evidence shows relatively minor
physical impairments, 'an ALJ permissibly can render a common sense judgment about
functional capacity even without a physician's assessment.'" Id. (quoting House v. Astrue,
2013 WL 442058, at *4 (N.D.N.Y. Feb. 1, 2013) (Sharpe, J.)).
Finally, Daniel contends the ALJ "failed to fill the gaps in the record" she created by
discounting Dr. Siddiqui's opinion. In other words, plaintiff argues the ALJ should have
ordered a consultative physical examination, or perhaps developed the record in some other
way, so that she had a medical opinion to work from in determining the nature and extent of
his exertional limitations.
This argument is also rejected. Although the non-adversarial nature of disability
benefits hearings impose upon an ALJ a heightened duty to develop the record, that duty is
not without limit. See, e.g., Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008) ("Although
the ALJ has the duty to develop the record, such a duty does not permit a claimant, through
counsel, to rest on the record—indeed to exhort the ALJ that the case is ready for
decision—and then later fault the ALJ for not performing a more exhaustive investigation.").
In this case, Daniel initially alleged disability based on various mental impairments, the
combined effects of which eventually caused him to stop working and apply for
disability. Evidence of those impairments, and the possible limiting effects of those
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impairments, is present throughout the medical and administrative record.
At Daniel's ALJ hearing, his representative indicated to the ALJ that the record was
complete and ready for a decision on plaintiff's claim that his mental impairments rendered
him disabled. Then, when plaintiff raised for the first time his claim that physical limitations
also rendered him disabled, the ALJ parsed the record for evidence that might substantiate
this new component of plaintiff's claim.
In her written opinion, the ALJ thoroughly explained why the record evidence on this
issue was insufficient to warrant further exploration. Nevertheless, the ALJ properly
referenced plaintiff's assertions of physical limitations at various points in her sequential
evaluation. Eventually, after considering the record at length and properly focusing on the
mental impairments that brought plaintiff into the disability office in the first place, the ALJ
concluded plaintiff was not disabled within the meaning of the Act.
This is how the disability review process is supposed to work. Indeed, Daniel does not
now claim that the ALJ erred at any point in her evaluation of his mental impairment or her
conclusion about how this impairment limited his ability to perform a full range of
work. Instead, plaintiff is asking for a remand to develop a completely different5 issue, and
one he failed to raise until the eleventh hour. Under the peculiar circumstances of this case,
there is no basis on which to second-guess the ALJ's decision.
IV. CONCLUSION
The ALJ applied the appropriate legal standards and supported her written decision
with substantial evidence in the record.

5

In making this statement, the Court recognizes that it is the combined effect of a claimant's
exertional and non-exertional limitations that governs the RFC finding.
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Therefore, it is
ORDERED that
1. Daniel's motion for judgment on the pleadings is DENIED;
2. The Commissioner's motion for judgment on the pleadings is GRANTED;
3. The Commissioner's decision is AFFIRMED; and
4. Daniel's complaint is DISMISSED.
The Clerk of the Court is directed to enter a judgment accordingly and to close the file.
IT IS SO ORDERED.

Dated: May 22, 2019
Utica, New York.

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