Ciarla v. Berryhill

Filing 13

MEMORANDUM-DECISION and ORDER Granting 11 Report and Recommendations which is accepted in its entirety. It is Ordered that Defendant's final decision is Affirmed, that Plaintiff's motion for Judgment on the Pleadings is Denied and that Defendant's motion for Judgment on the Pleadings is Granted. Judgment shall be entered in favor of Defendant.. Signed by Senior Judge Frederick J. Scullin, Jr on 7/9/2018. (bjw, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
TIFFANY C.,
Plaintiff,
v.

5:17-CV-878
(FJS/DJS)

NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
_________________________________________________
APPEARANCES

OF COUNSEL

OLINSKY LAW GROUP
300 South State Street
Suite 420
Syracuse, New York 13202
Attorneys for Plaintiff

HOWARD D. OLINSKY, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Attorneys for Defendant

ANDREEA L. LECHLEITNER, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff applied for child's disability insurance benefits on November 7, 2013, and for
Supplemental Security Income the same date, alleging disability beginning June 30, 2008. See
Administrative Record ("AR") at 43, 46.1 Defendant initially denied these claims on February 24,

1

References to page numbers in the Administrative Record are to the page numbers that
(continued...)

2014, see id. at 140-151, after which Plaintiff timely requested a hearing before an Administrative
Law Judge ("ALJ"). Plaintiff initially appeared for a hearing before ALJ Hamel on August 11,
2015, at which time her parents accompanied her; however, she had no legal representative. At
Plaintiff's request, the ALJ postponed the hearing so that Plaintiff could obtain legal counsel. See
id. at 96-113. On December 7, 2015, the ALJ issued a written decision, in which he found that
Plaintiff was not disabled under the Social Security Act. See id. at 43-59. On June 15, 2017, the
Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Defendant
Commissioner's final decision. See id. at 1-5.
On August 9, 2017, Plaintiff commenced this action, seeking review of Defendant's final
decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). Plaintiff filed her brief in support of her
motion for judgment on the pleadings on December 21, 2017, see Dkt. No. 9; and Defendant filed
her brief in support of her motion for judgment on the pleadings on December 28, 2018, see Dkt.
No. 10.
On June 20, 2018, Magistrate Judge Stewart issued his Report-Recommendation and Order,
in which he recommended that this Court deny Plaintiff's motion, grant Defendant's motion, affirm
Defendant's decision, and dismiss Plaintiff's complaint. See generally Dkt. No. 11. On July 5,
2018, Plaintiff filed objections to Magistrate Judge Stewart's recommendations. See Dkt. No. 12.

1

(...continued)
appear at the bottom right of those pages. References to page numbers in all other documents in
the record are to the page numbers that appear at the top right of those pages, which the Court's
Electronic Case Filing system generates.
-2-

II. DISCUSSION
A.

The ALJ's Decision
In his decision, after careful consideration of the entire record, the ALJ made the following

"Findings of Fact and Conclusions of Law":
(1) Plaintiff "had not attained age 22 as of June 30, 2008, the alleged
onset date (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5))."
(2) Plaintiff had "not engaged in substantial gainful activity since
June 30, 2008, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.)."
(3) Plaintiff had "the following severe impairments: anxiety disorder,
panic disorder, dysthymia, and learning disability (20 CFR
404.1520(c) and 416.920(c))."
(4) Plaintiff did "not have an impairment or combination of
impairments that [met] or medically equal[ed] the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926)."
(5) Plaintiff had "the residual functional capacity to perform a full
range of work at all exertional levels but with the following nonexertional limitations: she can do routine and repetitive tasks only.
[Plaintiff] is unable to do tasks requiring more than occasional public
contact either in person or over the phone and is unable to do tasks
that require more than occasional interactions with co-workers. She
is also unable to perform tasks with a strong production pace
element."
(6) Plaintiff had "no past relevant work (20 CFR 404.1565 and
416.965)."
(7) Plaintiff "was a younger individual on the alleged disability onset
date (20 CFR 404.1563 and 416.963)."
(8) Plaintiff had "at least a high school education and [was] able to
communicate in English (20 CFR 404.1564 and 416.964) (Ex. 4E/1,
3)."

-3-

(9) "Transferability of job skills [was] not an issue because [Plaintiff
did] not have past relevant work (20 CFR 404.1568 and 416.968)."
(10) "Considering [Plaintiff's] age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a))."
(11) Plaintiff had "not been under a disability, as defined in the Social
Security Act, from June 30, 2008, through the date of this decision
[December 7, 2015] (20 CFR 404.350(a)(5), 404.1520(g) and
416.920(g))."
See AR at 46-59.

B.

Magistrate Judge Stewart's recommendations
In her motion for judgment on the pleadings, Plaintiff raised four issues: (1) the ALJ erred at

step three of his analysis in finding that she did not meet Paragraph C of the Listing 12.06 criteria;
(2) the ALJ's residual functional capacity ("RFC") determination was not supported by substantial
evidence because it failed to account for Plaintiff's need for special supervision or additional
explanation of instructions; (3) the ALJ's step five finding was not supported by substantial
evidence because it was based on an incomplete hypothetical to the vocation expert ("VE"); and (4)
the Appeals Council erred when it failed to consider new and material evidence that Plaintiff
submitted to it for review. See generally Dkt. No. 9.
After thoroughly reviewing the record, Magistrate Judge Stewart concluded that there was
substantial evidence in the record to support each of the ALJ's conclusions to which Plaintiff
objected. Furthermore, with regard to Plaintiff's argument that the Appeals Council had erred by
failing to consider new and material evidence that she had submitted for its review, Magistrate
Judge Stewart noted that it was "difficult to see how the material [that Plaintiff] submitted for the

-4-

first time to the Appeals Council could be considered new and material, i.e. likely to have led to a
different result, when by Plaintiff's own argument it merely serve[d] to show a lack of
improvement." See Dkt. No. 11 at 15. Specifically, Magistrate Judge Stewart concluded that the
letter from Ashley Lawton, a counselor, which was not accompanied by any treatment notes or
records "offer[ed] no basis for finding [that] the ALJ would have reached a different determination
had this information been available to him." See id. at 16 (citation omitted). Finally, with regard to
Nurse Practitioner Amy Casale's treatment therapy notes, Magistrate Judge Stewart concluded that
her records "demonstrate[d] little that could be considered new information . . . [and, in fact,] this
information [was] consistent with the information the ALJ relied upon in reaching his conclusion."
See id. Thus, Magistrate Judge Stewart found that, "[b]eyond suggesting that the records show 'that
Plaintiff is not getter [sic] better' Plaintiff . . . fail[ed] to articulate what [was] new, rather than
merely cumulative, in these records." See id. at 16-17 (citation omitted).

C.

Plaintiff's objections to Magistrate Judge Stewart's recommendations
1. Standard of review
Plaintiff objects to two of Magistrate Judge Stewart's findings: (1) that there is substantial

evidence in the record to support the ALJ's RFC determination and (2) that there is substantial
evidence in the record to support the ALJ's Step 5 finding. See generally Dkt. No. 12.
When a court reviews a magistrate judge's recommendations, its review is de novo as to
those recommendations to which a party objects, see Pizzaro v. Bartlett, 766 F. Supp. 815, 817
(S.D.N.Y. 1991), and for clear error or manifest injustice as to those recommendations to which a
party does not object or makes only conclusory or general objections, see Linares v. Mahunik, No.

-5-

9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted);
McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). After conducting its review,
"the Court may 'accept, reject, or modify, in whole or in part, the . . . recommendations made by the
magistrate judge.'" Linares, 2009 WL 3165660, at *10 (quoting 28 U.S.C. § 636(b)(1)(C)).

2. The ALJ's RFC determination
As noted, the ALJ found that Plaintiff had "the residual functional capacity to perform a full
range of work at all exertional levels" with some non-exertional limitations, including that Plaintiff
could "do routine and repetitive tasks only," was "unable to do tasks requiring more than occasional
public contact either in person or over the phone," was "unable to do tasks that require[d] more than
occasional interactions with co-workers," and was "unable to perform tasks with a strong
production pace element." See Dkt. No. 8 at 50. To support his determination, the ALJ stated that
he had "considered all symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p." See id.
The ALJ also noted that, at the hearing, Plaintiff had testified that she experienced panic
attacks every day; was sensitive to any criticism; needed help remembering and following
instructions at work; was told that she did not work fast enough, which upset her; was afraid to
drive; did not socialize much although her parents talked to her; and needed special attention at
school because of her learning disability. See id. at 51. Plaintiff also testified that, during the day,
she "did chores around the house like cleaning the dishes, vacuuming, doing the laundry, and
helping cook meals." See id.

-6-

The ALJ concluded that, "[a]fter careful consideration of the evidence, [he found] that
[Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting
effects of these symptoms [were] not entirely credible . . . ." See id.
Noting that Plaintiff claimed that the ALJ's RFC determination did not account for her need
to have special supervision, Magistrate Judge Stewart found that, although the ALJ's RFC
determination "did not specifically require particular supervision, the ALJ did place limits on
Plaintiff's functional capacity that properly reflected her needs[, for example,] the RFC limited
Plaintiff to routine and repetitive tasks only . . . [and] [t]he ALJ further limited Plaintiff's RFC by
restricting her from performing tasks with a strong production pace element." See Dkt. No. 11 at 11
(citations omitted).
Magistrate Judge Stewart also noted that, to support his findings, the ALJ relied on Dr.
Inman-Dundon's assessment that Plaintiff could perform unskilled work and his notation that there
was a moderate limitation in Plaintiff's ability to remember detailed instructions and attend for
extended periods. See id. (citing [AR} at 121; 120). Likewise, Dr. Caldwell, who also assessed
Plaintiff, "found similar, though more mild, limitations." See id. at 11-12 (citing [AR] at 362-65).
Magistrate Judge Stewart explained that "[t]he ALJ [had] considered these reports in the context of
the other record evidence and accorded each of these findings partial weight, concluding that
Plaintiff [had] moderate difficulties maintaining concentration." See id. (citing [AR] at 54).
Magistrate Judge Stewart also noted that the ALJ had addressed that finding "by limiting Plaintiff to
routine and repetitive tasks where the need for instruction and supervision [was] presumably at a
minimum." See id. at 12. For these reasons, Magistrate Judge Stewart determined that the ALJ's

-7-

"conclusion drew an appropriate balance between Plaintiff's functional limitations and the concern
identified by multiple sources that Plaintiff would have difficulty working routinely with others and
would have a heightened level of anxiety when regularly in contact with supervisors and offered
criticism of her work." See id. (citing [AR] at 53-54 & 374).
Magistrate Judge Stewart also explained that "[t]he ALJ's decision not to include a
requirement regarding special supervision . . . dr[ew] support from the fact that none of the medical
or other source evidence in the record, apart from Dr. Mohabir, articulated a specific need for
Plaintiff to have special supervision." See id. at 12. The ALJ afforded little weight to Dr.
Mohabir's opinion because she had started treating Plaintiff only one month before she provided
this opinion and her opinion was "not well supported by the overall record and was inconsistent
with Plaintiff's own description of her daily activities." See Dkt. No. 8 at 56. The ALJ also noted
that, although Plaintiff "had test anxiety, problems completing timed tasks, difficulties processing
auditory information and handling criticism, she was able to solve math problems, use visual aides
and a computer, cook, bake, count change, graduate with a Regents high school diploma, be
cooperative and maintain familial relationship." See id.
For all of these reasons, Magistrate Judge Stewart concluded that there was substantial
evidence in the record to support the ALJ's RFC determination. See Dkt. No. 11 at 13.
In her objections, Plaintiff argues that the Court should reject Magistrate Judge Stewart's
findings with regard to this issue and remand the case to the ALJ so that he can properly consider
Plaintiff's need for special supervision. See Dkt. No. 12 at 1.
Plaintiff acknowledges that, in finding that she was capable of performing the job of
dishwasher, the ALJ did limit her "to routine and repetitive tasks without a strong production pace

-8-

element, and no more than occasional contact with the public or coworkers." See id. at 2 (citing
[AR at] 58, 50). Plaintiff also acknowledges that Dr. Inman-Dundon opined that she would be able
to maintain unskilled work. See id. However, she argues that these limitations came with other
limitations that the ALJ did not account for in his RFC determination, including "moderate
limitations accepting instructions and responding appropriately to criticism from supervisors and
setting goals or making plans independently of others." See id. (citing [AR at] 118-21).
Furthermore, Plaintiff contends that the ALJ left out limitations that were demonstrated in
the record and that the ALJ committed legal error by creating an RFC assessment that conflicted
with a portion of a medical source statement to which he accorded weight without explaining the
inconsistency. See id. (citing Dioguardi v. Comm'r of Soc. Sec., 445 F. Supp. 2d 288, 297
(W.D.N.Y. 2006)). Although she acknowledges that "the ALJ is not obligated to reconcile every
shred of medical testimony, [she argues that] he cannot selectively choose to merit certain portions
of opinion evidence that supports his conclusions without explaining why he chose to disregard the
portions that were beneficial to Plaintiff's applications to benefits." See id. (citing Gecevic v. Sec'y
of HHS, 882 F. Supp. 278, 285-86 (E.D.N.Y. 1995)). Plaintiff asserts that she "'is entitled to know
why the ALJ chose to disregard the portions of the medical opinions that were beneficial to her
application for benefits.'" See id. at 2-3 (quoting Dioguardi, 445 F. Supp. 2d at 297). Finally,
Plaintiff contends that, "[w]hen the ALJ fails to explain the inconsistency of a favorably weighed
opinion with his RFC determination, remand is required." See id. at 3 (citing Petersen v. Astrue, 2
F. Supp. 3d 223, 234-35 (N.D.N.Y. 2012)). In other words, "[a]n ALJ is not allowed to 'cherry pick'
evidence from the record that supports [his] conclusions." See id. (citations omitted).
Despite Plaintiff's arguments to the contrary, a review of the record demonstrates that the

-9-

ALJ did not "cherry pick" evidence from the record to support his RFC determination nor did he
disregard portions of the record that supported Plaintiff's application for benefits. To the contrary,
it is clear from the record that the ALJ considered all of the evidence, gave the appropriate weight
to the medical and other source opinions, and reasonably determined Plaintiff's RFC based on the
totality of the evidence. Furthermore, the portion of the record to which Plaintiff points to support
her argument, see AR at 118-21, does not indicate that the ALJ ignored evidence that would support
her application for benefits. The fact that Plaintiff may have moderate limitations in accepting
instructions, responding appropriately to criticism from supervisors and setting goals or making
plans independently of others are not limitations that would adversely affect her ability to work as a
dishwasher and there is nothing in the record to indicate otherwise.
Therefore, after reviewing the record de novo, the Court finds that, for all the reasons stated
herein as well as in Magistrate Judge Stewart's Report-Recommendation and Order, there is
sufficient evidence in the record to support the ALJ's RFC determination.

3. The ALJ's Step 5 determination
Plaintiff argues that there was not substantial evidence in the record to support the ALJ's
Step 5 determination because the hypothetical question he posed to the VE did not include any
questions regarding special supervision or instruction. For this argument to have merit, Plaintiff
must prevail on her argument that the ALJ's RFC determination was in error.
Since the Court has determined, after its de novo review of the record, that there was
substantial evidence in the record to support the ALJ's RFC determination, his reliance on that RFC
determination as the basis for his questions to the VE was not error. See Dkt. No. 11 at 14 (citing

-10-

Salmini v. Commissioner of Soc. Sec., 371 Fed. Appx. 109, 114 (2d Cir. 2010) ("Because we find no
error in the ALJ's RFC assessment, we likewise conclude that the ALJ did not err in posing a
hypothetical question to the [VE] that was based on that assessment")).

III. CONCLUSION
The Court has reviewed the record de novo with regard to Magistrate Judge Stewart's
recommendations to which Plaintiff objected and has reviewed Magistrate Judge Stewart's
recommendations to which Plaintiff did not object for clear error and manifest injustice, and having
completed its review, the Court hereby
ORDERS that Magistrate Judge Stewart's June 20, 2018 Report-Recommendation and
Order is ACCEPTED in its entirety for the reasons stated herein and in Magistrate Judge Stewart's
Report-Recommendation and Order; and the Court further
ORDERS that Defendant's final decision is AFFIRMED; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings, see Dkt. No. 9, is DENIED;
and the Court further
ORDERS that Defendant's motion for judgment on the pleadings, see Dkt. No. 10, is
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close
this case.
IT IS SO ORDERED.
Dated: July 9, 2018
Syracuse, New York

-11-