Bertram v. Astrue

Filing 14

MEMORANDUM-DECISION and ORDER - That the Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social Security, for defendant Michael J. Astrue, and amend the caption accordingly. That the decision of the Commissioner is AFFIRMED and Bertram's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 5/31/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MICHELLE L. BERTRAM,
Plaintiff,

6:11-cv-1505
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter W. Antonowicz
148 West Dominick Street
Rome, NY 13440
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

PETER W. ANTONOWICZ, ESQ.

DAVID L. BROWN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

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The Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social
Security, for defendant Michael J. Astrue, and amend the caption accordingly. See Fed. R.
Civ. P. 25(d).

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Michelle L. Bertram challenges the Commissioner of Social
Security’s denial of a period of disability and Disability Insurance Benefits
(DIB), seeking judicial review under 42 U.S.C. § 405(g). (See Compl., Dkt.
No. 1.) After reviewing the administrative record and carefully considering
Bertram’s arguments, the court affirms the Commissioner’s decision and
dismisses the Complaint.
II. Background
On February 17, 2009, Bertram filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since October 19, 2008.
(See Tr.2 at 61, 116-24.)3 After her application was denied, (see id. at 6267), Bertram requested a hearing before an Administrative Law Judge
(ALJ), which was held on August 24, 2010, (see id. at 38-59, 68-70). On
2

Page references preceded by “Tr.” are to the Administrative Transcript. (See Dkt.

No. 9.)
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Bertram also filed an application for Supplemental Security Income on February 18,
2009, but in her Complaint, she only appeals the ALJ’s decision denying DIB. (See Compl.;
Tr. at 60, 125-27.)
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September 22, 2010, 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.
(See id. at 1-5, 16-37.)
Bertram commenced the present action by filing her Complaint on
December 21, 2011 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. (See Dkt. Nos. 8, 9.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 11, 12.)
III. Contentions
Bertram contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (See Dkt. No. 11
at 8-15.) Specifically, Bertram claims that the ALJ erred in: (1) failing to
find that her mental retardation was a severe impairment; and (2)
improperly evaluating whether her condition met listing 12.05(C). (See id.)
The Commissioner counters that the appropriate legal standards were
used by the ALJ and his decision is also supported by substantial
evidence. (See Dkt. No. 12 at 15-20.)
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IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 11 at 3-5; Dkt. No. 12 at 2-11.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) 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 Impairment Findings
Bertram first contends that remand is required because the ALJ

failed to find that her mild mental retardation was a severe impairment.
(See Dkt. No. 11 at 8-9.) The court disagrees.
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
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activities.” 20 C.F.R. § 404.1520(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:
“[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.”
20 C.F.R. § 404.1521(b)(3)-(6). “The ‘mere presence of a disease or
impairment, or establishing that a person has been diagnosed or treated
for a disease or impairment’ is not, itself, sufficient to deem a condition
severe.” Bergeron v. Astrue, No. 09-CV-1219, 2011 WL 6255372, at *3
(N.D.N.Y. Dec. 14, 2011) (quoting McConnell v. Astrue, No. 6:03-CV-0521,
2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008)). Indeed, when “medical
evidence establishes only a slight abnormality or a combination of slight
abnormalities,” a finding of “not severe” is warranted. SSR 85-28, 1985
WL 56856, at *3 (1985); see 20 C.F.R. § 404.1521(a). 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 his residual functional capacity (RFC)
determination. See Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 398952,
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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, at step two, the ALJ determined that Bertram suffered from
several severe impairments including bipolar disorder, NOS, lumbar
degenerative disc disease, and fibromyalgia. (See Tr. at 21.) In making
his determination, the ALJ noted the IQ scores Bertram achieved on a
consultative exam, and that she appeared capable of reading, writing, and
doing arithmetic at a below age appropriate level. (See id. at 23.) During
the subsequent RFC determination, the ALJ explicitly considered Bertram’s
cognitive functioning, including weighing the opinion of the consultative
examiner who had tested Bertram’s IQ. (See id. at 27-29, 272-76, 329-31.)
As the ALJ proceeded with the disability analysis and included Bertram’s
severe and non-severe impairments in the RFC determination, there is no
basis to remand this matter based upon his step two analysis. See Tryon,
2012 WL 398952, at *4.
B.

Listing 12.05(C)
Bertram also contends that the ALJ erred in determining that she did

not meet Listing 12.05(C). (See Dkt. No. 11 at 9-15.) According to
Bertram, because she had a valid IQ score within the required parameters
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and suffered other significant physical and mental impairments, the ALJ
erred in failing to address whether the listing was met, and there is no
evidence to overcome the “rebuttable presumption” that her mild mental
retardation predated age twenty-two. (Id. at 13-15; see id. at 8-12.) The
Commissioner counters, and the court agrees, that Bertram’s impairments
did not satisfy the listing. (See Dkt. No. 12 at 15-16.)
At the third step of the disability evaluation, the ALJ is required to
determine whether the claimant’s impairment(s) meet or equal an
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. See 20 C.F.R.
§ 404.1520(d). To establish disability under section 12.05, which pertains
to mental retardation, Bertram had to first make a threshold showing that
she possessed “significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested during the
developmental period” prior to age twenty-two. 20 C.F.R. pt. 404, subpt. P,
app. 1 § 12.05; see id. § 12.00(A). “[D]eficits in adaptive functioning
‘denotes an inability to cope with the challenges of ordinary everyday life.’”
Carrube v. Astrue, No. 3:08-CV-0830, 2009 WL 6527504, at *4 (N.D.N.Y.
Dec. 2, 2009) (quoting Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 2007));
see also Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir. 2012). This
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includes consideration of a “claimant’s effectiveness in areas such as
social skills, communication, and daily living skills.” West v. Comm’r of
Soc. Sec. Admin., 240 F. App’x 692, 698 (6th Cir. 2007). To satisfy listing
12.05(C), Bertram was required to further demonstrate that she suffers
from “[a] valid verbal, performance, or full scale IQ of [sixty] through
[seventy] and a physical or other mental impairment imposing an additional
and significant work-related limitation of function.” 20 C.F.R. pt. 404,
subpt. P, app. 1 § 12.05(C).
Here, the ALJ found that Bertram “does not have an impairment or
combination of impairments that meets or medically equals one of the
listed impairments.” (Tr. at 26.) The ALJ explicitly considered listings
12.02, 12.04, 12.06, 12.08 and 12.09 in his determination. (See id.) He
did not explicitly consider listing 12.05. (See id.) However, in his RFC
assessment the ALJ permissibly found that Bertram “is capable of the
basic mental demands of competitive, remunerative, unskilled work
including the abilities (on a sustained basis) to understand, carry out and
remember simple instructions, to respond appropriately to supervision,
coworkers and usual work situations; and to deal with changes in a routine
work setting.” (Tr. at 26.) This determination is supported by the March
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2010 opinion of treating psychiatrist K.G. Kamath, which stated that
Bertram was only mildly restricted in her ability to understand, remember,
and carry out simple and complex instructions, and make judgments on
simple and complex work-related decisions. (See id. at 422, 424.)
According to Dr. Kamath’s March 2010 opinion, Bertram was also only
mildly restricted in her ability to interact appropriately with supervisors and
co-workers, and respond appropriately to usual work situations and
changes in a routine work setting, but moderately limited in her ability to
interact appropriately with the public. (See id. at 423.) The ALJ’s RFC
determination was further supported by the opinions of consultative
examiner Dr. Dennis Noia, and state agency review psychiatrist H. Tzetzo.
(See id. at 267-76, 308-31.)
Notably, a listing determination may be upheld despite “the absence
of an express rationale,” where “portions of the . . . decision and the
evidence . . . indicate that [the ALJ’s] conclusion was supported by
substantial evidence.” Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir.
1982). Here, the ALJ provided additional support for his listing decision in
his RFC assessment. (See Tr. at 27-29.) He explicitly stated that there
was no evidence to suggest that Bertram’s low IQ was an ongoing problem
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that began prior to age twenty-two. (See id. at 29.) The ALJ noted that
Bertram was in regular education classes in school, had a driver’s license
and is able to drive, and is independent in her activities of daily living,
including caring for her two young children. (See id. at 29, 192-95, 202.)
The ALJ also noted that Bertram’s prior work history included full time work
as a machine operator at the substantial gainful activity level, and work as
a convenience store worker where she was able to perform all of the
activities required. (See id. at 29, 42-43, 154, 156.) Thus, in spite of the
brevity of the ALJ’s listing analysis, his examination of the evidence
provides substantial support for the determination that Bertram’s mild
mental retardation did not meet or medically equal a listing. Because a
determination that Bertram did not possess the requisite deficits in
adaptive functioning precludes a finding that Bertram met listing 12.05(C),
the ALJ’s failure to explicitly analyze Bertram’s qualification under that
listing does not require remand. See Schaal v. Apfel, 134 F.3d 496, 504
(2d Cir. 1998) (“Where application of the correct legal standard could lead
to only one conclusion, we need not remand.” (citation omitted)); see also
Talavera, 697 F.3d at 153 (“[T]he regulations recognize that persons with
an IQ in the 60s (or even lower) may still be able to hold a full-time job, and
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are therefore not disabled, if their adaptive functioning is sufficiently intact.”
(internal quotation marks and citation omitted)).
C.

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
ORDERED that the Clerk is directed to substitute Carolyn W. Colvin,
Acting Commissioner of Social Security, for defendant Michael J. Astrue,
and amend the caption accordingly; and it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Bertram’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.
May 31, 2013
Albany, New York

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