Johnson v. Commissioner of Social Security
MEMORANDUM-DECISION & ORDER: It is Ordered that the Commissioner's decision is AFFIRMED, Plaintiff's # 1 Complaint is DISMISSED. Judgment shall be entered in favor of the defendant. Signed by US Magistrate Judge Andrew T. Baxter on 1/11/2017. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KATHY JEAN JOHNSON,
COMMISSIONER OF SOCIAL SECURITY,
CHRISTOPHER CADIN, ESQ., for Plaintiff
FERGUS J. KAISER, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y.G.O. # 18, in accordance with
the provisions of 28 U.S.C. § 636 (c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1 and
the consent of the parties. (Dkt. Nos. 2, 4, 8).
On July 1, 2009, plaintiff protectively filed a Title II application for a period of
disability and disability insurance benefits (“DIB”) and a Title XVI application for
Supplemental Security Income (“SSI”), alleging disability beginning May 29, 2009.
(Transcript (“T”) at 112-19, 120-26, 180). The applications were denied initially on
October 22, 2009, and plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”). (T. 22, 60-66, 68). A hearing was held on January 18, 2011, before ALJ
Elizabeth W. Koennecke. (T. 31-47). Plaintiff appeared and testified in Utica, New
York.1 On March 18, 2011, ALJ Koennecke found that plaintiff was able to perform
her previous work and was not disabled. (T. 22-30, 658-66 (duplicate)). The ALJ’s
decision became the final decision of the Commissioner when the Appeals Council
denied plaintiff’s request for review of the ALJ’s decision on June 14, 2012. (T. 1-4).
Plaintiff appealed the Commissioner’s final decision to the United States District
Court for the Northern District of New York, and on November 21, 2013, the Court
reversed the June 14, 2012 decision and remanded the case to the agency for further
proceedings. (T. 674, 675-91). On remand, by order dated March 27, 2014, the Appeals
Council sent plaintiff’s case back to ALJ Koennecke for a new hearing and decision.
(T. 694-95). The Appeals Council also noted that the plaintiff had filed a subsequent
application for SSI benefits on July 20, 2012, which resulted in an initial denial and an
unfavorable decision on December 2, 2013, after a hearing before ALJ Julia Gibbs. (T.
694, 700-710). The Appeals Council ordered ALJ Koennecke to consider reopening
the “subsequent unfavorable decision as appropriate.”2 (Id.) ALJ Koennecke was
directed to “offer the claimant the opportunity for a hearing,” and was ordered to
“address the additional evidence submitted, take any further action needed to complete
the administrative record, and issue a new decision.” (T. 695).
ALJ Koennecke held a video hearing on October 29, 2014 and a supplemental
The first paragraph of the hearing transcript states that the hearing was held in Syracuse, while
the second paragraph states that the hearing was held in Utica. (T. 33). The ALJ’s decision specifically
states that the hearing was held in Utica. (T. 22). The location of the hearing is not relevant to the
“Reopening” is appropriate if the claimant is asking to review a decision that has already
become final, but that the claimant failed to challenge within the stated time period for a direct
challenge. 20 C.F.R. §§ 404.987-404.989, 416.1487-416.1489.
hearing on September 1, 2015. (T. 624-47, 648-54). Plaintiff testified at the October
29th hearing, and Vocational Expert (“VE”) Christine Ditrinco testified at both
hearings.3 On September 25, 2015, ALJ Koennecke issued another unfavorable
decision, finding that, although plaintiff was unable to perform her previous work, she
could engage in occupations that existed in substantial numbers in the national
economy. (T. 717-29). On November 5, 2015, the Appeals Council notified the parties
that it was reviewing ALJ Koennecke’s September 25, 2015 decision on “own motion”4
review based upon an error of law by the ALJ.5 (T. 878-81). On January 17, 2016, the
Appeals Council issued a written decision, “consolidating” plaintiff’s claims filed on
“July 1, 2009 and July 20, 2012.” (T. 609-12).
The Appeals Council adopted the ALJ Koennecke’s ultimate determination that
plaintiff was not disabled and adopted her determination at steps one, two, and three of
the sequential evaluation. (T. 610). However, the Appeals Council specifically
disagreed with ALJ Koennecke’s finding at step four of the sequential evaluation that
plaintiff was not capable of performing her past relevant work. (Id.) The Appeals
Council also noted that, when it remanded the case to ALJ Koennecke to determine
whether to “reopen” the subsequent ALJ’s decision dated December 2, 2013, the
The September 1st hearing was held in order to allow the plaintiff’s representative to ask the
VE additional questions. (T. 648-54).
20 C.F.R. §§ 404.969, 416.1469.
The regulations provide that the Appeals Council will review a case on its own motion in five
circumstances: (1) the ALJ abused his or her discretion; (2) there is an error of law in the ALJ’s
decision; (3) the findings of the ALJ are not supported by substantial evidence; (4) there is a “broad
policy or procedural issue that may affect the general public interest;” and (5) if new and material
evidence is submitted. 20 C.F.R. §§ 404.970(a)(1)-(a)(4) and 404.970(b), 416.1470(a)(1)-(a)(4) and
Appeals Council was “unaware” that plaintiff had also filed a request for review of ALJ
Gibbs’s decision. (T. 610). Because plaintiff had filed a request for review of ALJ
Gibbs’s December 2, 2013 denial, there was no need to “reopen” the 2012 application.
The Appeals Council noted that ALJ Koennecke’s opinion did not specifically
address ALJ Gibbs’s December 2, 2013 decision, in which the ALJ Gibbs found that
plaintiff did not have a severe mental impairment and had the RFC to perform her past
relevant work. (T. 610). The Appeals Council then “associated” the plaintiff’s request
to review the December 2, 2013 decision with “the case file remanded by the district
court,” together with ALJ Koennecke’s September 25, 2015 denial. (Id.)
The Appeals Council reviewed the two ALJs’ decisions and determined that ALJ
Koennecke should not have felt “compelled” by the District Court’s order6 to limit
plaintiff to “unskilled” tasks because this finding was “inconsistent with the findings of
‘no’ to ‘mild’ limitations that ALJ Koennecke found when reviewing the case under the
“special technique.”7 (T. 610). Accordingly, the Appeals Council found (as ALJ
Koennecke found in her original decision), and as ALJ Gibbs found in her December 2,
2013 decision, that plaintiff was not disabled at step four of the sequential evaluation
because she could perform her past relevant work, notwithstanding her severe physical
impairments. (T. 611-12). The Appeals Council decision became the final decision of
the Commissioner, and plaintiff filed this timely federal court action.8
The Appeals Council stated that “the District Court did not direct the [ALJ] to limit the
claimant to unskilled tasks . . . .” (T. 610).
20 C.F.R. §§ 404.1520a, 416.920a.
When plaintiff filed the complaint in this action, she was pro se. (Dkt. No. 1). According to
the court’s standing order, the plaintiff is required to file her memorandum of law first. However,
GENERALLY APPLICABLE LAW
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that he is “unable 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 period of not less than twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In
addition, the plaintiff’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.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
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 meets or equals the criteria of an impairment listed in Appendix 1 of
the regulations. If the claimant has such an impairment, the
because of plaintiff’s pro se status, the court ordered the defendant to file her memorandum of law first.
After the defendant filed a memorandum of law, plaintiff obtained counsel, and plaintiff’s counsel filed
a memorandum of law on December 22, 2016. The case is now ready for this court’s review.
[Commissioner] will consider him disabled without considering vocational
factors such as age, education, and work experience . . . . 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 can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that her impairment prevents her from performing
her past work, the burden then shifts to the Commissioner to prove the final step. Id.
Scope of Review
In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative record. Id.
However, this standard is a very deferential standard of review “ – even more so than
the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“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 on behalf of Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence
in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ
explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz
v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
At the time of ALJ Koennecke’s October 29, 2014 hearing, plaintiff was 57 years
old. (T. 625). The ALJ questioned plaintiff about her mental impairment. Plaintiff
testified that the “symptoms” of her depression were “panic attacks, isolation, [and]
feelings of hopelessness.” (T. 626). She testified that her memory was “so bad,” and
she could not remember exactly what year she began going to Mental Health
Connections (“MHC”) for treatment, but at the time of the hearing, she had returned to
MHC for her therapy. (T. 626-27).
Plaintiff testified that between 2010 and 2012, she had suicidal thoughts, and had
trouble leaving her home. (T. 627). She told the ALJ that she would not leave her home
unless she had an appointment – once per week or once every two weeks. (Id.) Plaintiff
testified that the providers at MHC gave her “therapy exercises” so that she would be
able to leave her home. The “therapy exercises” consisted of plaintiff keeping a journal
in which he wrote down her daily “feelings.” She stated that they “talked” about
medication, but it was never prescribed because she “stopped going.” (T. 627-28).
Plaintiff stated that she had been living in subsidized housing for seven years,
and that, in order to live in her apartment, she had to “qualify as disabled.” (T. 628).
She was required to submit a “medical form” as proof. (T. 628-29). Plaintiff testified
that from 2010 until the time of the hearing, she also had “back problems.” (T. 629).
Her back problems prevented her from “long-term” sitting, standing, and walking. (T.
630). She stated that her back problems had gotten worse since 2012, that she had lost
mobility, and that “it” could “just give out” unexpectedly when she stood up. (Id.)
Plaintiff stated that she never knew how long her back pain was going to last, and
the intensity would vary from a “five . . . up to a ten.” (Id.) Plaintiff stated that she also
had pain in her hips and knees, but she had a difficult time remembering which medical
professionals she saw for her particular impairments. (T. 631). In response to
questioning by the ALJ, plaintiff agreed that her pain affected her “concentration,”
although she needed prompting from the ALJ regarding what she meant. (T. 633).
Plaintiff stated that the pain affected “anything that required a lot of thought” and
affected her ability to “pay attention.” (Id.)
Plaintiff described her prior work as a customer service representative for MetLife. (T. 633-34). She stated that she spent the majority of her time sitting, “with the
exception of lunch and breaks.” (T. 634). Her duties included “servicing [plans],”
sitting at the computer, receiving calls, and inputting information. (Id.) Plaintiff stated
that she could not perform the customer service job because of the “long-term sitting,”
even if she was given the option to alternate between sitting and standing. (Id.)
Plaintiff stated that the pain and her medication “side effects” would interfere with her
ability to work. (T. 634-35). Plaintiff stated that her medications caused nausea,
sleepiness, headaches, and some dizziness. (T. 635).
Plaintiff stated that she left the Met-Life job when she began having pain, she
was diagnosed with back problems, and she began missing work due to her impairment.
(Id.) Plaintiff stated that she initially got “disability” from the company, but after she
exhausted all her disability, she quit her job because she could not return to work. (Id.)
Plaintiff was then asked to describe all her prior work for the VE Christine Ditrinco.9
(T. 638-39). VE Ditrinco then described each of plaintiff’s prior jobs in terms of the
vocational requirements contained in the Dictionary of Occupational Titles (“DOT”).
(T. 639). The ALJ Koennecke then asked the VE a hypothetical question which took
into consideration plaintiff’s age, education, prior work experience, and plaintiff’s
physical limitations for sedentary work. In addition, the ALJ limited plaintiff to the
“mental demand[s] of unskilled work at the lower levels of semi-skilled.” (T. 640).
In response to the first hypothetical question, based on the addiional mental
limitation, the VE testified that plaintiff could not perform her previous work, but could
perform other jobs in the national economy. (T. 641-42). The ALJ then added a
requirement that plaintiff be able to alternate sitting and standing every hour. (T. 642).
The VE testified that, even with the additional limitation, plaintiff would still be able to
do all three jobs that the VE proposed after the first hypothetical. (Id.) Plaintiff’s
attorney asked the VE to assume that the plaintiff would have “occasional” problems
with attention and concentration and would be “absent” more than three times per
The transcript mistakenly refers to the VE as Christine “Dadrinkle.” (See e.g. T. 637).
month. (T. 644). The VE testified that no more than “one day per month would be
tolerated.” (T. 646).
After the October hearing, plaintiff’s representative reviewed the jobs proposed
by the VE, and noted that some of them required “transferable skills,” which would
have been inconsistent with an individual who was limited to “simple” tasks. (T. 652).
Plaintiff’s representative asked for a supplemental hearing to further question the VE.
(T. 650). The ALJ granted the request and convened a hearing on September 1, 2015.
(Id.) Counsel asked some further questions, assuming that plaintiff was limited to
“simple” tasks. (T. 652). The VE testified that she still believed that plaintiff could
perform the jobs that she discussed at the October 29, 2014 hearing. (Id.) However, the
VE also stated that if the plaintiff were to be “off-task” thirty percent of the day, it
would “disqualify” her from any full-time competitive work. (T. 653).
THE ALJ’S SEPTEMBER 25, 2015 DECISION
The ALJ began by noting that plaintiff was seeking disability from May 29,
2009, but stated that res judicata required dismissal of cases involving the same parties,
issues, and facts as were involved in a previous application. (T. 717). Plaintiff filed a
previous application for both DIB and SSI dated June 28, 2006. (T. 51). Plaintiff’s
2006 application resulted in a denial of benefits after a hearing before ALJ F. Patrick
Flanagan. (T. 51-57). ALJ Flanagan’s decision was dated June 2, 2009. (T. 57).
Plaintiff apparently did not appeal ALJ Flanagan’s decision. Thus, plaintiff’s period of
disability could not begin prior to June 3, 2009, unless ALJ Koennecke “reopened” the
2006 application. ALJ Koennecke stated that a previous final determination may be
“reopened” in certain circumstances. (T. 717-18). The ALJ then considered whether to
reopen the 2006 application, but determined that plaintiff had not met the standard for
reopening, and thus found that res judicata applied to prevent the ALJ from addressing
disability prior to June 3, 2009, the date of ALJ Flanagan’s decision.10 (T. 718)
The ALJ found that plaintiff met the insured status for DIB through December
31, 2009 and had not engaged in substantial gainful activity since May 29, 2009. (T.
720). The ALJ found that plaintiff had the following severe impairments: degenerative
disc disease of the lumbar spine, bilateral knees, and hips. (T. 721). In addition, the
ALJ found that plaintiff had the following “non-severe” impairments: hiatal hernia,
gastroesophageal reflux disease, and medically determinable mental impairments. (Id.)
However, the ALJ found that none of plaintiff’s non-severe impairments would impose
“more-than-minimal” limitations on the plaintiff’s ability to perform basic work
activities. Finally, ALJ Koennecke found that plaintiff also had “nonmedically
determinable impairments:” scleroderma11 and Raynaud’s Disease12 in her hands. (T.
Plaintiff’s brief contains a footnote, stating that plaintiff had requested reopening of the prior
application, and that “significant relevant and material evidence was obtained” after June 2, 2009 that
was presented to ALJ Koennecke and the Appeals Council. (Pl.’s Br. at 2 n.5). Plaintiff notes that ALJ
Koennecke “denied reopening,” and that “[g]ood cause for reopening has been shown.” However, the
denial of a request to reopen is not subject to further review, absent a colorable constitutional claim.
Califano v. Sanders, 430 U.S. 99, 108 (1977); Waldbillig v. Chater, No 95-CV-1851, 1997 WL 3252,
at *2 (N.D.N.Y.) (citing 20 C.F.R § 404.903(1) (1995)) (Rep’t-Rec), adoped, 1997 WL 3252
(N.D.N.Y. Jan. 3, 1997). Plaintiff is not referring to “good cause” or “new and material evidence” that
was presented to the district court in support of a sentence six remand. 20 U.S.C. § 405(g). In any
event, plaintiff does not elaborate on this statement, there is no case law or further explanation, and the
Appeals Council did not mention this argument in its decision. Thus, the court does not consider the
“denial of reopening” of plaintiff’s 2006 application a specific issue in this case.
Scleroderma is a group of rare disorders that involve the tightening of the skin and connective
Raynaud’s Disease causes some of the areas of the body, such as fingers and toes, to feel
numb and cold in response to cold temperatures or stress. http://www.mayoclinic.org/diseases
-conditions/raynauds-disease/basics/definition/con-20022916. Smaller arteries, supplying blood to the
With respect to plaintiff’s “mental impairments,”13 the ALJ found that they would
not cause more-than-minimal limitations on plaintiff’s ability to perform basic mental
work activities. (Id.) The ALJ found that plaintiff had no limitation in the activities of
daily living, only mild limitation in social functioning, no limitations in concentration,
persistence, or pace and no episodes of decompensation. (T. 722). The ALJ commented
that the “diagnosis” of a mental impairment was of “no real consequence,” rather the
issue was how the impairment affected plaintiff’s “mental functioning.” (Id.) The ALJ
then stated that she found no evidence of a “severe” mental impairment in all the
medical evidence. (T. 722-23). The ALJ also found that plaintiff’s “problems” with her
hands and the scleroderma were “undiagnosed,” and there was no evidence to support
any functional restrictions based on these alleged impairments. (T. 723).
At step three of the sequential analysis, the ALJ found that plaintiff did not have
a Listed Impairment, considering Listings 1.02 (Major Dysfunction of a Joint) and 1.04
(Major Dysfunction of the Spine). (Id.) At step four of the disability analysis, the ALJ
found that plaintiff had the RFC for less than the full range of sedentary work. Plaintiff
could lift and carry up to ten pounds occasionally and less than ten pounds frequently;
sit for six hours in an eight-hour workday; stand/walk for two hours in an eight-hour
day; and push/pull without limitation beyond those imposed on lifting and carrying.
(Id.) Plaintiff could perform occasional twisting at the waist. She retained the ability to
understand and follow simple instructions and directions; perform simple tasks with
skin narrow, limiting blood circulation to the affected areas. Id.
The mental impairments were listed as “anxiety and depression.” (T. 721).
supervision and independently; maintain attention and concentration for simple tasks;
regularly attend to a routine and maintain a schedule; relate to, and interact
appropriately with others to the extent necessary to perform simple tasks; and handle
levels of simple, repetitive work-related stress, making occasional decisions directly
related to the performance of simple tasks in a position with “consistent job duties” that
does not require the plaintiff to supervise or manage the work of other people. (T. 72324).
In making the above RFC determination, the ALJ took plaintiff’s alleged
symptoms into consideration, but found that her statements concerning the intensity,
persistence, and limiting effects of her symptoms were not credible. (T. 724). The ALJ
cited to objective medical evidence, indicating that plaintiff’s examinations revealed
normal range of motion, gait, and strength. (Id.) Furthermore, the ALJ stated that
plaintiff described daily activities that were not limited to the extent that one would
expect, given her complaints of disabling symptoms and limitations. (T. 725). The ALJ
discussed the weight that she gave to various medical sources. (T. 725, 726).
The ALJ specifically mentioned the District Court’s order to “consider nonsevere mental limitations in the residual functional capacity . . . .” (T. 726). The ALJ
pointed out that the Agency has instructed that “there should be no limit in the residual
functional capacity found for a singular mental impairment that does not impose any
functional limitations. It is unclear how a mental impairment can be viewed in
combination with the physical limitations since there are no mental limits.” (Id.) After
making this statement the ALJ stated that she felt “compelled” by the court’s order to
consider the non-severe mental impairment and accordingly limited plaintiff to
unskilled mental demands “to address any (unfounded) report of anxiety or workplace
pressure issues.” (Id.) (parenthetical in original).
ALJ Koennecke found that plaintiff could not perform her previous work.
However, based on the relevant factors, including the VE’s testimony, and plaintiff’s
acquisition of transferable work skills from her previous job, plaintiff could perform
other work which existed in significant numbers in the national economy. (T. 726-27).
The ALJ found that plaintiff could perform the jobs of identification clerk, data
examination clerk, and appointment clerk. (T. 727-28). Therefore, the ALJ found that
plaintiff was not disabled. (T. 728-29).
THE APPEALS COUNCIL DECISION
As stated above, the Appeals Council reviewed ALJ Koennecke’s September 15,
2015 decision on its own motion to correct a perceived error of law, consolidating this
review with the requested review of ALJ Gibbs’s December 2, 2013 decision. (T. 609).
The Appeals Council issued a “combined decision” on January 7, 2016. (T. 609-612).
The Appeals Council adopted “most of” ALJ Koennecke’s findings. The
Appeals Council adopted the ALJ Koennecke’s “B” criteria findings, and then
determined that plaintiff had the RFC to perform sedentary work, but she had to have
the option to alternate sitting and standing at will.14 (T. 611). With respect to plaintiff’s
mental impairment, the Appeals Council found that her “non-severe” mental
impairment “results in a limitation that she is unable to perform complex tasks and
duties,” but that “she retains the mental capacity to perform detailed work related tasks
This was a finding made by ALJ Gibbs, but not ALJ Koennecke. (Compare T. 723
(Koennecke) with T. 705 (Gibbs)).
and duties . . . consistent with semi-skilled work.” (Id.) The Appeals Council found
that this determination would be “consistent” with the District Court’s order. The
Appeals Council adopted all of ALJ Koennecke’s other findings, including those with
respect to plaintiff’s credibility, and determined that plaintiff could perform her former
work as a customer service representative. (Id.) The Appeals Council’s January 7, 2016
“combined” decision is the final decision of the Commissioner from which plaintiff
appeals to this court.
ISSUES IN CONTENTION:
Plaintiff makes the following claims:
The mental status findings of the Appeals Council are inaccurate and
beyond the scope of the evidence. (Pl.’s Br. at 15-17) (Dkt. No. 19).
Plaintiff is not able to return to her past relevant work. (Pl.’s Br. at 17-20).
The ALJ failed to develop or consider the record based upon an error of
law. (Pl.’s Br. at 20-22).
Defendant argues that the ALJ’s determination is supported by substantial evidence,
and the complaint should be dismissed. (Def.’s Br. at 10-15) (Dkt. No. 12). For the
following reasons, this court agrees with the defendant and will order dismissal of the
VII. SEVERE IMPAIRMENT
The claimant bears the burden of presenting evidence establishing severity at
Step Two of the disability analysis. Briggs v. Astrue, No. 5:09–CV–1422 (FJS/VEB),
2011 WL 2669476, at *3 (N.D.N.Y. Mar. 4, 2011) (Rep.-Rec.), adopted, 2011 WL
2669463 (N.D.N.Y. July 7, 2011). A severe impairment is one that significantly limits
the plaintiff’s physical and/or mental ability to do basic work activities. See 20 C.F.R.
§ 404.1520(c); see also 20 C.F.R. § 404.1521(a) (noting that an impairment is not
severe at Step Two if it does not significantly limit a claimant’s ability to do basic work
The Regulations define “basic work activities” as the “abilities and aptitudes
necessary to do most jobs,” examples of which include, (1) physical functions such as
walking, standing, lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers and usual work situations; and (6) dealing with changes in a
routine work setting. 20 C.F.R. § 404. 1521(b). “Severity” is determined by the
limitations imposed by an impairment, and not merely its by diagnosis. The mere
presence or diagnosis of a disease or impairment is not, by itself, sufficient to deem a
condition severe. Hamilton v. Astrue, No. 12-CV-6291, 2013 WL 5474210, at *10
(W.D.N.Y. Sept. 30, 2013) (quoting McConnell v. Astrue, No. 6:03-CV-521, 2008 WL
833968, at *2 (N.D.N.Y. Mar. 27, 2008)).
An ALJ should make a finding of “‘not severe’ . . . if the medical evidence
establishes only a ‘slight abnormality’ which would have ‘no more than a minimal
effect on an individual’s ability to work.’” Rosario v. Apfel, No. 97 CV 5759, 1999 WL
294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Social Security Ruling (“SSR”)
85-28, 1985 WL 56856, at *3 (1985)). Although an impairment may not be severe by
itself, the ALJ must also consider “the possibility of several such impairments
combining to produce a severe impairment . . . .” SSR 85-28, 1985 WL 56856, at *3.
However, a combination of “slight abnormalities,” having no more a minimal effect on
plaintiff’s ability to work will not be considered severe. Id. The ALJ must assess the
impact of the combination of impairments, rather than assessing the contribution of
each impairment to the restriction of activity separately, as if each impairment existed
The Second Circuit has held that the Step Two analysis “may do no more than
screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). If
the disability claim rises above a de minimis level, then the ALJ must undertake the
remaining analysis of the claim at Step Three through Step Five. Id. at 1030.
Often, when there are multiple impairments, and the ALJ finds some, but not all
of them severe, an error in the severity analysis at step two may be harmless because the
ALJ continued with the sequential analysis and did not deny the claim based on the lack
of a severe impairment alone. Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 398952, at
*3 (N.D.N.Y. Feb. 7, 2012) (citing Kemp v. Commissioner of Soc. Sec., No. 7:10-CV1244, 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011)). This is particularly true
because the regulations provide that combined effects of all impairments must be
considered, regardless of whether any impairment, if considered separately, would be of
sufficient severity. 20 C.F.R. §§ 404.1523, 416.923; Dixon, 54 F.3d at 1031.
Although plaintiff’s first argument states that the mental status findings of the
Appeals Council are inaccurate and beyond the scope of the evidence, the discussion of
this claim must begin with the determination made by ALJ Koennecke in her March 18,
2011 opinion which was reversed by the District Court. In the 2011 decision, ALJ
Koennecke found that plaintiff’s mental impairment was not severe, but then erred in
failing to “consider” the non-severe impairment when she was analyzing plaintiff’s
As stated above, any error in the severity determination at step two would have
been harmless if the ALJ had mentioned plaintiff’s mental impairment in her step four
determination. The District Court reversed because of this error. The court did not find
that the ALJ’s severity determination regarding plaintiff’s mental impairment was not
supported by substantial evidence. In fact, the court found that the ALJ properly
considered the “special technique,” and that her findings were supported by the record.
(T. 685-87). Judge Sharpe stated that “[u]ltimately, substantial evidence supports the
ALJ’s determination that Johnson’s mental impairment, GERD, and hand impairment
were not severe.” (T. 688). “Moreover, because the disability analysis continued, any
error at step two is, at most, harmless.” (Id.) (citing Tryon v. Astrue, No. 5:10-CV-537,
2012 WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012)).
As stated above, the legal error, causing the remand of ALJ Koennecke’s 2011
decision was her failure to “consider” plaintiff’s non-severe mental impairment in her
RFC determination at step four of the sequential analysis. (T. 688-91). ALJ Koennecke
never even mentioned plaintiff’s mental impairment in her 2011 RFC determination.
Judge Sharpe stated that “[t]he ALJ’s failure to consider Johnson’s mental impairments
and abilities in assessing her RFC is legal error. Accordingly, the ALJ’s decision is
reversed and remanded.” (T. 690-91). However, the term “consider” did not indicate
that the ALJ was required to make any particular finding on remand, and Judge Sharpe
did not imply that plaintiff’s mental impairment would in any way affect or change the
ultimate RFC determination.
On remand, ALJ Koennecke again found that plaintiff’s mental impairments of
anxiety and depression were not severe because they did not cause “more than minimal
limitation in the claimant’s ability to perform basic work activities.” (T. 721-23). ALJ
Koennecke reviewed the “special technique” and considered plaintiff’s limitations in
the four broad functional areas, known as the “paragraph B criteria.”15 (T. 722). The
regulations provide that if “we rate the degree of your limitation in the first three
functional areas as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally
conclude that your impairment(s) is not severe.” 20 C.F.R. §§ 404.1520a(d)(1),
416.920a(d)(1). If the impairment is found to be severe, then the ALJ will consider that
impairment at step three and determine whether the severity is sufficient to meet the
other criteria contained in the various Listed Impairments. 20 C.F.R. §§ 1520a(d)(2),
The “paragraph B” criteria are taken from the four broad functional areas set out in the
disability regulations for evaluating mental impairments as stated in section 12.00C of the Listing of
Impairments. (T. 722) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00C). The evaluation of a
claimant’s limitations in the four functional areas is used to determine whether plaintiff’s mental
impairment is “severe” as well as whether the claimant’s impairment meets the criteria for a Listed
Impairment under step three of the disability analysis. 20 C.F.R. § 404.1520a(c)(3), 416.920a(c)(3).
The four functional areas are: activities of daily living; social functioning; concentration, persistence,
or pace; and episodes of decompensation. Id.
On remand, ALJ Koennecke again found that plaintiff had no limitations in
activities of daily living, mild limitations in social functioning, no limitations in
concentration, persistence, or pace, and no episodes of decompensation. (T. 722). The
Appeals Council agreed with this finding (T. 610), and this court finds that the Appeals
Council’s decision is supported by substantial evidence.16 While plaintiff’s physical
impairments may cause some limitation of her daily activities, there is no indication in
the record that plaintiff’s mental impairments impose any such limitation.
As the ALJ pointed out, plaintiff lived alone, went shopping, handled all of her
household chores, and was able to engage in other activities of daily living. The ALJ
found that plaintiff’s social functioning was only “mildly” limited by her mental
impairments because she was able to go out, go shopping, attend college classes, and
use public transportation. (T. 722). Plaintiff’s concentration, persistence, or pace were
not limited by her mental impairment.17 Plaintiff was able to attend college and obtain a
business certificate. Plaintiff’s physicians assessed plaintiff’s attention and
concentration as normal. (See e.g. T. 1032 - on Nov. 9, 2011, plaintiff denied problems
with concentration; T. 1038 - on June 21, 2011, Dr. Hall finds “normal attention span
and concentration). There is no evidence that plaintiff had any episodes of
decompensation. She had no psychiatric hospitalizations. Thus, the Commissioner
The Appeals Council also noted that ALJ Gibbs determined that plaintiff’s mental
impairments were not severe in her December 2, 2013 decision, which the Appeals Council was
reviewing at the same time as it was reviewing ALJ Koennecke’s September 25, 2015 decision. (T.
In fact, plaintiff claimed that her physical impairment occasionally affected her concentration
due to pain, but did not allege that her mental impairment affected her concentration at all.
properly found that plaintiff’s mental impairment was not severe.
RFC is “what [the] 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. . . .” A “regular
and continuing basis” means eight hours a day, for five days a week, or an equivalent
work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2
(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(quoting SSR 96–8p, 1996 WL 374184, at *2)).
In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must
specify the functions plaintiff is capable of performing, and may not simply make
conclusory statements regarding a plaintiff’s capacities. Martone v. Apfel, 70 F. Supp.
2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v.
Bowen, 737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F. Supp. 456, 460
(W.D.N.Y. 1987)). The RFC assessment must also include a narrative discussion,
describing how the evidence supports the ALJ’s conclusions, citing specific medical
facts, and non-medical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL
3825629 at *6 (N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling (“SSR”) 96-8p,
1996 WL 374184, at *7).
“An [ALJ] may properly reject [subjective complaints] after weighing the
objective medical evidence in the record, the claimant's demeanor, and other indicia of
credibility, but must set forth his or her reasons ‘with sufficient specificity to enable us
to decide whether the determination is supported by substantial evidence.’” Lewis v.
Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (quoting Gallardo v. Apfel, No. 96
CIV 9435, 1999 WL 185253, at *5 (S.D.N.Y. March 25, 1999)). To satisfy the
substantial evidence rule, the ALJ’s credibility assessment must be based on a two-step
analysis of pertinent evidence in the record. See 20 C.F.R. § 416.929; see also Foster
v. Callahan, No. 96-CV-1858, 1998 WL 106231, at *5 (N.D.N.Y. Mar. 3, 1998).
First, the ALJ must determine, based upon the claimant’s objective medical
evidence, whether the medical impairments “could reasonably be expected to produce
the pain or other symptoms alleged . . . .” 20 C.F.R. § 416.929(a). Second, if the
medical evidence alone establishes the existence of such impairments, then the ALJ
need only evaluate the intensity, persistence, and limiting effects of a claimant’s
symptoms to determine the extent to which it limits the claimant’s capacity to function.
20 C.F.R. § 416.929(c). When the objective evidence alone does not substantiate the
intensity, persistence, or limiting effects of the claimant’s symptoms, the ALJ must
assess the credibility of the claimant’s subjective complaints by considering the record
in light of the following symptom-related factors: (1) claimant’s daily activities; (2)
location, duration, frequency, and intensity of claimant’s symptoms; (3) precipitating
and aggravating factors; (4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment received to relieve
symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any
other factors concerning claimant’s functional limitations and restrictions due to
symptoms. 20 C.F.R. § 416.929(c)(3).
On remand, ALJ Koennecke believed that the District Court had ordered her to
find that plaintiff’s mental impairment caused more limitations than she originally
found. In her September 15, 2015 decision, ALJ Koennecke stated that
[t]he error identified by the District Court was a failure to
consider non-severe mental limitations in the residual
functional capacity found. We have been instructed by the
Agency that there should be no limit in the [RFC] found for a
singular mental impairment that does not impose any
limitations. It is unclear how a mental impairment can be
viewed in combination with the physical limitations since
there are no mental limits. However, I feel compelled by the
Court’s order to consider the non-severe mental impairment
and [have] limited the claimant to unskilled mental demands
to address any (unfounded) report of anxiety or workplace
(T. 726) (one parenthetical in original). Because ALJ Koennecke made this
determination, and plaintiff’s previous work was semi-skilled, the ALJ was also
compelled to find that plaintiff would be unable to perform her previous sedentary
work. (T. 726). Based on the finding that plaintiff could not do her previous work and
because she had other physical limitations on her ability to perform the full range of
sedentary work, ALJ Koennecke considered the testimony of a VE, who determined
that plaintiff could perform other “unskilled” sedentary work in the national economy.
The Appeals Council disagreed with ALJ Koennecke’s finding that plaintiff’s
mental impairment would limit her to “unskilled” work. Such a finding was also
inconsistent with ALJ Gibbs’s December 2, 2013 finding that plaintiff could perform
her past relevant semi-skilled work.18 Essentially, the Appeals Council found that
plaintiff’s non-severe mental impairment placed such minor limitations on plaintiff’s
ability to work that notwithstanding the impairment, plaintiff was able to perform her
prior work. The Appeals Council stated that “her non-severe mental status results in a
limitation that she is unable to perform complex tasks and duties, and that she retains
the mental capacity to perform detailed work-related tasks and duties . . . consistent
with semi-skilled work.” (T. 611). Plaintiff argues that the Appeals Council erred in
determining that plaintiff could perform her past relevant work.
The court finds that the Appeals Council determination is supported by
substantial evidence. Many of the medical records deal with plaintiff’s severe physical
impairments or a combination of the physical and mental impairments when being
examined by her primary care providers. However, during these examinations, plaintiff
often “denied” depression and anxiety. (T. 493 -denies depression and emotional
This finding related to the same or overlapping time periods.
problems (12/2009); 497- denies anxiety and depression (11/2009); 530 - denies
depression (6/2010); 534- denies depression and anxiety (5/2010); 535 -denies
depression (3/2010); 538- denies depression (1/2010); 585 - denies depression
(8/2010); 1070, 1075, 1089 - denies depression and/or emotional problems (11/2011,
4/2012, 7/2012); 1095 - denies depression and anxiety (1/2011).
On March 3, 2011, plaintiff was examined at Faxton-St. Lukes Hospital Clinic by
a treating physician assistant (“PA”), Monica Davis. (T. 1048-56). The reason for the
examination is listed as a “f/u panic, anxiety.” (T. 1048). During this examination,
plaintiff complained of anxiety, but denied sense of great danger, mental problems and
depression.19 (T. 1050). PA Davis also noted that plaintiff was taking Seroquel at
bedtime, which was “helping with sleep and anxiety.” (Id.) PA Davis noted that
plaintiff was alert, cooperative, had a normal mood and affect, normal attention and
concentration, was pleasant, and well groomed. (Id.) Plaintiff had “good intellect and
insight, but questionable compliance at times.” (Id.) PA Davis also noted that plaintiff
had a “PMHx”20 which was “tumultuous and contributes to a FEAR affect most of the
time 6/10.” (Id.) She noted that MHC gave plaintiff a diagnosis of “GAD,” Panic, and
Agoraphobia 1/11. While plaintiff “appeared somewhat anxious, she was not
hypervigilant, had no tremor, was “Rational 3/11,” calm, and articulate. (Id.) PA Davis
listed all of plaintiff’s “Existing Problems” as “Improved.” (Id.) There is no indication
The court notes that on January 12, 2011, plaintiff told PA Davis that she did have a “sense of
great danger and anxiety.” (T. 1061).
“PMHx” refers to “Past Medical History.”
that plaintiff’s mental impairment interfered with her ability to perform work-related
The record also contains plaintiff’s mental health records. On January 6, 2011,
Linda Troutman-Zellows, a Licensed Social Worker from Mental Health Connections
(“MHC”) wrote to Marjorie Bazan, RN from the Legal Aid Society. (T. 599). In the
letter, LCSW Zellows explained that she met with plaintiff three times since September
of 2010, and that although plaintiff had two psychiatric evaluations scheduled, she
canceled them both, so she had never undergone an evaluation by a psychiatrist.
LCSW Zellows then stated that plaintiff only attended eight out of fourteen
appointments. (Id.) Although the “diagnosis” was “major depression with severe
psychosis,” at that time, there was no indication that a psychiatrist or any acceptable
medical source made that diagnosis.
The record does contain a subsequent “Psychiatric Evaluation,” which is signed
by Dr. Stephen Hudyncia, M.D., dated February 11, 2011. (T. 1002-1003). Plaintiff’s
diagnosis was only “Depressive Disorder,” and “Substance Abuse, in remission.” (T.
1003). Dr. Hudyncia stated that plaintiff was polite, “relatively calm, and nonchalant
with the interview.” (Id.) She responded positively to questions, and there was no
Plaintiff cites the one sentence in PA Davis’s report which states that plaintiff’s past medical
history was “tumultuous” which contributed to a “FEAR affect” most of the time. Although it is
unclear why the word “FEAR” is capitalized, the court notes that there are no examinations in which
plaintiff’s “affect” was listed as anything other than “normal,” including in the same paragraph of PA
Davis’s report. (T. 1050). The court would also point out that, even though on January 12, 2011,
plaintiff complained of a sense of great danger and anxiety, her physical examination states that she
was alert, cooperative, had a normal mood and affect, appeared “somewhat anxious,” but was not
hypervigilant, had no tremor, and was rational. (T. 1061).
distress or anguish in her affect. She was “very relaxed,” even when describing
potentially troubling symptoms.” (Id.) Dr Hudyncia stated that plaintiff presented
“somewhat atypically.” He stated that she was very isolated and felt “primarily sad and
lonely,” but it was “extremely difficult to make a case for any primary psychiatric
condition at this time. It may be that she has partially treated depression.” (Id.) There
is no mention of “psychosis” in Dr. Hudyncia’s report.
In addition, the MHC “pre-screening” report, dated June 10, 2010, written by a
social worker, stated that plaintiff’s Global Assessment of Functioning22 Score was 55
(T. 1005). The pre-screening report also stated that plaintiff was “on waiting list for
psychiatric eval.” (Id.) However, in February of 2011, Dr. Hudyncia listed plaintiff’s
Axis V score as 70/70. (T. 1003). Psychiatric impairments are often recorded with a
multi-axial evaluation system. DSM-IV-TR at 27-35. Axis V is the GAF described
above. Id. at 32-34. “Axis V is for reporting the clinician's judgment of the individual's
overall level of functioning.” Id. The GAF is listed as GAF on admission/GAF on
discharge. Id. A score of 70/70 indicates that Dr. Hudyncia found that plaintiff had
only “some mild symptoms,” even though she had some depression and psychosocial
stressors. This finding is entirely consistent with the Appeals Council assessment that
The Global Assessment of Functioning (“GAF”) is a 100 point scale. A score of 41-50
indicates “serious symptoms,” 51-60 indicates “moderate symptoms,” and 61-70 indicates “some mild
symptoms.” AMERICAN PSYCHIATRIC ASSN., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 32-34 (4th Ed. Text Revision 2000) (“DSM-IV-TR”). However, the court must also note
that the use of GAF scores is no longer favored, and this instrumentality has been eliminated from the
current Diagnostic and Statistical Manual. See Evans v. Comm’r of Soc. Sec., 110 F. Supp. 3d 518, 536
(S.D.N.Y. 2015) (noting that use of GAF has been eliminated, but given that the GAF scale was in use
at the time that plaintiff was assessed, there was no error in the ALJ’s reliance on the scores).
plaintiff’s mental impairment would not affect her ability to perform semi-skilled work.
In her September 25, 2015 decision, ALJ Koennecke mentioned that “[d]uring
any given encounter, mental health professionals have given the claimant various
diagnoses and characterized her mental impairment in various ways.” (T. 722). The
ALJ then stated that “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.” (Id.) The ALJ was correct. The MHC records also list plaintiff’s impairment
simply as “Depressive Disorder” and R/O Mood disorder. (T. 998). She was discharged
from treatment in November of 2011 because she “did not return/was nonresponsive to
outreach attempts.” (T. 997).
Genuine conflicts in the evidence are for the Commissioner to resolve. Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Thus, the Appeals Council properly
resolved conflicts in the medical evidence of record, and its determination that
plaintiff’s non-severe mental impairment did not prevent plaintiff from performing
detailed work-related tasks and duties, consistent with semi-skilled work, even though
she might not be able to perform “complex” tasks and duties, was supported by
ALJ Koennecke agreed that plaintiff experienced pain, and that her severe
musculoskeletal impairments, including her symptoms, limited her to sedentary work at
which she could alternate from sitting to standing at will, but found that the objective
evidence did not support the level of severity alleged by plaintiff. (T. 723-24). The ALJ
noted that, even though plaintiff complained of pain, her treating sources consistently
observed her with no spine deformities, no spine tenderness, no difficulty or problems
with her gait, and full range of motion in her joints, with no sensory, motor, or
On June 21, 2011, plaintiff’s treating primary care physician, Dr. William Hall,
M.D. stated that plaintiff “maintains good functionality, but because of pain is unable to
work.” (T. 1036). However, Dr. Hall also stated that plaintiff was “working with
VESID to try and get back to some work.”23 (Id.) Dr. Hall’s physical examination
stated that the range of motion in plaintiff’s back was “good,” straight leg raising was
60 degrees bilaterally, but there was no atrophy, no focal deficits neurologically, and
plaintiff had normal sensation, reflexes, coordination, muscle strength and tone. (T.
1038). In addition, in an RFC evaluation, dated June 25, 2010, signed by both Dr. Hall
and Dr. Sajid Kahn, M.D.24 “sedentary” was circled as the “category which best
conforms to the patient’s limitations if placed in a competitive work situation: (8 hrs
day, 40 hrs per week), even though “less than sedentary” was also an option. (T. 1098).
On the next page of the RFC evaluation, the doctors indicated that plaintiff would be
absent about three times per month and would have to “lie down at unpredictable
intervals during a work shift.” (T. 1098-99). If this were true, the VE testified that
plaintiff would not be able to perform any competitive work. (T. 646 - not more than
“VESID” stands for Vocational and Educational Services for Individuals with Disabilities.
Currently VESID is known as “ACCES-VR.” http://www.nybi.org/acces-vr.html.
Plaintiff was referred to Dr. Sajid Kahn in 2008 for “pain management.” (T. 329-31).
one absence per month would be tolerated, and more than 15% off-task would not be
tolerated in a work environment).
The treating physicians were asked to explain the statements in his RFC
evaluation in a document entitled “Request for Clarification on Musculoskeletal
Questionnaire.” (T. 1097). Dr. Hall submitted the competed “clarification.” (Id.) His
response to the question about plaintiff having to “lie down” at unpredictable intervals
was that “[t]his is part of therapy and our medical advice when having more than her
constant low back pain that can be unpredictable during her day.” (Id.)
The ALJ specifically considered Dr. Hall’s and Dr. Kahn’s assessment, together
with Dr. Hall’s “clarification.” (T. 726). The ALJ read the clarification and determined
that “some weight” would be given to these treating physicians, but that their
statements regarding the side effects of medications and the requirement of lying down
at unpredictable intervals were “pertaining to people generally and not this specific
individual.” (T. 726). Dr. Hall stated that depression and anxiety as well as pain
medication are “well-known to impact one’s ability to concentrate and attend.” (T.
1097). This statement does not indicate that plaintiff is specifically affected in this
way. In addition, the ALJ is correct when she states that there was no indication in any
of the doctors’ contemporaneous progress notes that he advised plaintiff to “lie down”
during the day.
On December 8, 2009, plaintiff saw Dr. Kahn for “severe low back pain,
radiating to plaintiff’s left leg and ankle.” (T. 493). However, upon physical
examination, Dr. Kahn found normal reflexes and 5/5 strength in her arms and legs.
Sensation was intact, and her gait was normal. (T. 494). Straight leg raising was
negative bilaterally, and her spinal range of motion, including flexion, extension, lateral
bending, and rotation were “slightly limited with pain.” (Id.) There was “mild
tenderness” of the paraspinal muscles on both sides. (Id.) Patrick’s25 test did reveal
pain in her lower lumbar spine, and a lumbar facet loading test was positive bilaterally.
On June 4, 2010, Dr. Kahn continued to find only mild tenderness in plaintiff’s
paraspinal muscles. (T. 531). Straight leg raising was negative, and her range of motion
was only “slightly” limited with pain. (Id.) The same findings were made in September
of 2010 when Dr. Nathaniel Gould, M.D. signed a report authored by PA Rebecca
Hosey in which she found that plaintiff’s gait was normal, she had mild to moderate
tenderness in her low back, but her range of motion was only “slightly” limited by pain.
(T. 578). She was able to walk on her heels and toes. (Id.) On August 9, 2010, Dr.
Kahn stated that plaintiff could stand and walk without motor weakness or instability.
(T. 583). Dr. Kahn made the same physical findings in January and March of 2010. (T.
536, 539). In March of 2012, Dr. Hall stated that he had not seen plaintiff since “last
June,” and that she was at his office for new pain medication and an update on her
disability forms. (T. 1024). Plaintiff told Dr. Hall that she was walking twice a week
for exercise. (T. 1026). Although Dr. Hall did not mention plaintiff’s back or knees in
this examination, he did note that plaintiff was in no acute distress, and neurologically,
Patrick’s Test is a test to determine the presence or absence of sacroiliac disease. http://
she had normal sensation, reflexes, muscle strength and tone. (Id.)
The Appeals Council also adopted ALJ Koennecke’s credibility determination,
finding that the plaintiff’s subjective complaints were “not fully credible.” (T. 611).
The ALJ’s credibility determination is supported by substantial evidence. ALJ
Koennecke modified the sedentary RFC by providing that plaintiff could sit or stand at
will, which would take into account plaintiff’s complaints of pain and inability to sit for
long periods of time. Plaintiff argues that the ALJ should have specified how
frequently plaintiff would be able to alternate positions. (Pl.’s Br. at 17-18). Plaintiff
argues that the “RFC assessment . . . must be specific as to the frequency of the
individual’s need to alternate sitting and standing.” (Id.) (citing POMS DI 25015.020
and SSR 96-9p).
However, the cases cited by plaintiff involve situations in which the court held
that the ALJ should have consulted “a vocational resource to determine whether the
individual can make an adjustment to other work.” (Pl.’s Br. at 18) (citing SSR 96-9p).
In this case, the ALJ did consult a VE to determine whether plaintiff could perform her
previous work or any other work in the national economy. Plaintiff argues that the ALJ
“agreed” with the VE, who testified that plaintiff could not perform her prior work.
However, the reason that the VE found that plaintiff could not perform her prior work
was not based on the necessity to alternate positions, but was because the ALJ’s
hypothetical limited plaintiff to “unskilled/lower level semi-skilled” work because of
her mental impairment.26 (T. 641). The Appeals Council rejected that finding and
determined that plaintiff could mentally perform semi-skilled work, consistent with her
previous work experience. Thus, the VE’s statement that plaintiff could not perform
her previous work is no longer valid. It is true that the VE never specifically discussed
plaintiff’s previous job in relation to the ability to alternate positions because the VE
was already beyond that determination when the ALJ asked about the sit/stand
requirement. The only reason that the VE was no longer considering plaintiff’s
previous work was the ALJ’s inappropriate limitation to unskilled work.27
In any event, the court must point out that, even assuming that plaintiff’s
previous work would not have allowed her to alternate sitting and standing, the VE
testified that plaintiff would be able to perform three different unskilled/lower level
semi-skilled jobs at which she would be allowed to alternate between sitting and
At the September 1, 2015 hearing, the ALJ told the VE that the past relevant work was an
insurance customer representative and an office clerk. (T. 640). The ALJ then asked a hypothetical
question, based on an individual who could physically perform sedentary work (with no requirement of
alternating positions), and who could perform “unskilled” or lower level semi-skilled work. (T. 640).
The VE initially stated that this person could perform both past relevant jobs, until the ALJ reminded
the VE that the customer service representative job had an SVP of 4 (semi-skilled). Then the VE
answered that the SVP of 4 would take the past relevant work out. (T. 641). The VE then proposed
three unskilled/lower level of semi-skilled jobs that plaintiff could perform, and also testified that there
would be “tolerance in those jobs . . . for someone changing from sitting to standing when they want to,
assuming they remain on task.” (T. 642). The ALJ then specified that the “person would be able to
change from a sitting to a standing [sic] every hour.” (Id.) The VE answered that “every hour would be
reasonable.” At the supplemental hearing, the VE testified that even though the three jobs that she
proposed were “lower level semi-skilled” jobs, an individual who was limited to “simple” tasks would
still be able to perform the work. (T. 652). The VE testified that if the individual were “off task” for
30% of the time, then no work was possible. (T. 653). The ALJ and the Appeals Council rejected any
finding that plaintiff would be off task for that amount of time during the day.
The court assumes that if plaintiff can perform her previous semi-skilled work, she could also
perform the unskilled jobs that were listed by the VE.
standing every hour. The ultimate result of the ALJ’s decision would have been the
same even if plaintiff could not perform her prior relevant work. Given the evidence in
the record, any error in this regard would have been harmless. See Hawkey v.
Commissioner of Soc. Sec., No. 5:15-CV-996, 2016 WL 6833059, at *4 (N.D.N.Y. Oct.
24, 2016) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (administrative
legal error is harmless when the same result would have been reached had the error not
VII. FAILURE TO DEVELOP THE RECORD
Given the remedial intent of the Social Security statute and the non-adversarial
nature of benefits proceedings, an ALJ has an affirmative duty, even if the claimant is
represented by counsel, to develop the medical record if it is incomplete. Tejada v.
Apfel, 167 F.3d 770, 774 (2d Cir. 1999); Batista v. Barnhart, 326 F. Supp. 2d 345, 353
(E.D.N.Y. 2004) (although an ALJ’s obligation to develop the record is heightened
where the claimant appears pro se, the duty still exists even where the claimant is
represented by counsel during the administrative proceedings); 20 C.F.R. §§
404.1512(d), 416.912(d) (“We will make every reasonable effort to help you get
medical reports from your own medical sources when you give us permission to request
the reports.”). Furthermore, “[t]he duty of an ALJ to develop the record is ‘particularly
important’ when obtaining information from a claimant’s treating physician due to the
‘treating physician’ provisions in the regulations.” Dickson v. Astrue, No. 1:06-CV-511
(NAM/GHL), 2008 WL 4287389, at *13 (N.D.N.Y. Sept.17, 2008) (citing Devora v.
Barnhart, 205 F. Supp. 2d 164, 172 (S.D.N.Y.2002)).
In furtherance of the duty to develop the record, an ALJ may re-contact medical
sources if the evidence received from the treating physician or other medical sources is
inadequate to determine disability, and additional information is needed to reach a
determination. 20 C.F.R. §§ 404.1512(e), 416.912(e).28 Although the ALJ must
attempt to fill in any “clear gaps” in the administrative record, “where there are no
obvious gaps . . . and where the ALJ already possesses a ‘complete medical history,’”
the ALJ is under no obligation to seek additional information. Rosa v. Callahan, 168
F.3d 72, 79, n. 5 (2d Cir. 1999).
Plaintiff’s last argument is that the ALJ failed to “develop or consider” the
record. Plaintiff appears to argue that some of the records from the December 2, 2013
ALJ’s decision do not appear in the transcript or note “different dates for medical
records, with different amounts of pages within the exhibits attached.” (Pl.’s Br. at 21).
Plaintiff argues that the record on remand was “developed” with additional medical
records, “yet these appear not to have been considered.” (Id.) (citing T. 957-1099).
There is no indication that the Appeals Council failed to consider the record at T. 9571009. The Appeals Council cited the evidence that it considered in the first part of its
decision and the records at T. 957-1099 were cited therein. (T. 609). The fact that all
Effective March 26, 2012, the Commissioner amended these regulations to remove
former paragraph (e) and the duty it imposed on ALJs to re-contact a disability claimant’s
treating physician under certain circumstances. The version of the regulations in effect when the
ALJ adjudicated plaintiff’s disability claim should be applied, pursuant to Lowry v. Astrue, 474
F. App’x 801, 804 n.2 (2d Cir. 2012) .
the records were not mentioned in the subsequent analysis does not indicate that the
Appeals Council failed to consider the evidence. See Burgess v. Colvin, No. 15-CV9585, 2016 WL 7339925, at *10 (S.D.N.Y. Dec. 19, 2016) (ALJ need not mention
every item of testimony presented or explicitly reconcile every conflicting shred of
medical evidence) (quoting Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010);
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam)).
As an example, the ALJ specifically considered Dr. Hall’s September 5, 2014
explanation of the Musculoskeletal Questionnaire, signed by treating physicians Hall
and Kahn, when determining what weight to give the treating physicians’ assessment.
(T. 726) (citing T. 1097). The ALJ noted that “[o]n September 5, 2014, Drs. Khan and
Hall provided a statement explaining their rationale for the limitations opined above
(Exhibit B37F). However, this statement represents a statement pertaining to people
generally and not this specific individual. Further it is not supported by objective
findings of record for this particular claimant.” (T. 726). The Appeals Council adopted
the ALJ’s findings regarding everything except limitations imposed by plaintiff’s
mental impairment and added the limitation with respect to a sit/stand option. Thus, it
is clear that the Commissioner did consider the exhibits cited by plaintiff’s counsel.29
Plaintiff argues that the exhibit pages do not match. However, plaintiff does not
cite to any information that is contained in the allegedly missing pages that would
The court notes that the original questionnaire was signed by Dr. Kahn, but not dated, and
was signed by Dr. Hall on June 25, 2010 and also appears much earlier in the transcript. (T. 546-47,
1098-99). The “explanation” of the responses in the questionnaire, signed by Dr. Hall only, was dated
in 2014 and only appears at the end of the transcript. (T. 1097).
change the ALJ’s or the Appeals Council’s opinion. In fact, the Appeals Council noted
that plaintiff was given the opportunity to submit additional evidence in addition to
“comments.” (T. 609). The Appeals Council decision states that “[c]omments were
received and considered. (Id.) If plaintiff believed that evidence was missing, or that
the ALJ did not consider the appropriate evidence, plaintiff had the opportunity to
submit it to the Appeals Council. The Commissioner accepted the fact that plaintiff is
in pain. However, based on the medical reports, including the more recent records, and
plaintiff’s stated activities,30 the ALJ and the Appeals Council did not believe that
plaintiff was as limited as she alleged.31 Essentially, the Commissioner was presented
The ALJ noted plaintiff lived alone, handled her own household chores, went shopping, and
even walked to a hearing. (T. 725). As of June 2009, plaintiff was a student, studying accounting, and
any accommodations were minimal. In November of 2009, her “occupation” was listed as student, and
in 2010, she attended a community college to obtain a certificate in “office practices.” (Id.) In
February 2010, plaintiff reported that she did not have time to do her exercises more than once a day
(see T. 524), and she reported working part-time after the alleged onset date and going to VESID to try
to obtain work. (T. 725) (see T. 1036). The ALJ recognized that the level of work plaintiff performed
did not rise to the level of substantial gainful activity, but her ability to work, even part-time was
indicative that the symptoms and her daily activities were not as restricted “at least at times, as she
alleged. (T. 725). The ALJ also noted that plaintiff traveled to visit her family out of state for the
holidays and temporarily left the area to assist her daughter with her health problems. The ALJ stated
that the travel was inconsistent with plaintiff’s stated inability or reluctance to leave her home or to be
around other people. (Id.) These statements by the ALJ are supported by the record. The court also
notes that on March 5, 2010, plaintiff told Dr. Kahn that she had difficulty walking and sitting due to
pain, and that she was doing physical therapy, but had not noticed any improvement yet. (T. 535). Dr,
Kahn’s physical examination of the same day showed only a “slightly limited” range of motion in her
lower back and mild tenderness. (T. 536). On March 8, 2010, she told her physical therapist that “her
legs are feeling stronger,” and the physical therapist reported that plaintiff’s range of motion and
strength improving and that the “pain decreased overall.” (T. 520). This statement was inconsistent
with what she told Dr. Kahn three days before, but consistent with Dr. Kahn’s physical examination.
Counsel argues that plaintiff had “side effects” from medications and plaintiff testified to
such side effects at the hearing. However, on May 8, 2009 and December 8, 2009, plaintiff “denie[d]
any side effects from the medications.” (T. 291, 493). On August 3, 2010, plaintiff told PA Hosey that
although she was taking Percocet for pain, “[s]he denies side effects.” (T. 585). On March 1, 2011,
plaintiff was prescribed Seroquel to help her sleep. (T. 1054). She was told to call if there were any
with conflicting evidence, which is for the Commissioner to resolve. See Veino v.
Barnhart, supra. Where there is substantial evidence to support either position, the
determination is to be made by the fact finder. Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (citation omitted).
WHEREFORE, based on the findings above, it is
ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiff’s
complaint is DISMISSED, and it is
ORDERED, that the Clerk is directed to file a JUDGMENT FOR
Dated: January 11, 2017
side effects from the Seroquel. (T. 1055). On March 17, 2011, PA Davis noted that the Seroquel was
helping with both sleep and anxiety, with no mention of side effects. (T. 1050). PA Davis’s assessment
was that plaintiff’s sleep disorder was “improved,” her “malaise and fatigue” were “improved,” and her
anxiety was “improved.” (T. 1050). Plaintiff was given a shot of B12 vitamin and reported that she felt
less fatigued after the first shot. (T. 1048). On April 17, 2010, plaintiff told Dr. Michael McNulty that
she took Meloxicam “once in a while,” and that it cause nausea. (T. 1074). She also stated that she
“tried” Darvocet, percocet, and oxycodone in the past which caused nausea. (T. 1074). However, as
stated above, when she was taking the Percocet, she denied side effects. (T. 585).
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