Champion v. Commissioner of Social Security

Filing 17

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Michael's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 9/28/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MICHAEL C.,
Plaintiff,

6:17-cv-920
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Meggesto, Crossett & Valerino, LLP
313 East Willow Street, Suite 201
Syracuse, NY 13203
FOR THE DEFENDANT:
HON. GRANT C. JACQUITH
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Nahid Sorooshyari
Assistant Regional Counsel
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge

KIMBERLY A. SLIMBAUGH,
ESQ.

EMILY M. FISHMAN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Michael C. challenges the Commissioner of Social Security’s
denial of Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI), seeking judicial review under 42 U.S.C. § 405(g). (Compl.,
Dkt. No. 1.) After reviewing the administrative record and carefully
considering Michael’s arguments, the court affirms the Commissioner’s
decision and dismisses the complaint.
II. Background
On December 11, 2012, Michael filed an application for DIB, alleging
a disability onset date of March 1, 2012. (Tr.1 at 102, 276-79.) On
December 12, 2012, he filed an application for SSI, alleging the same
disability onset date. (Id. at 103, 280-89.) Both claims were denied on
April 10, 2013, (id. at 157-64), and Michael requested a hearing before an
Administrative Law Judge (ALJ) on May 9, 2013, (id. at 166-67). On June
9, 2014, Michael appeared with his attorney and testified before ALJ John
P. Ramos (hereinafter “the ALJ”). (Id. at 66-101). The ALJ denied his

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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

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claims in a decision dated October 15, 2014. (Id. at 132-52.) Michael filed
a request for review, (id. at 219-20), and the Appeals Council remanded his
case back to the ALJ on February 17, 2016, (id. at 153-56).
The ALJ held a second hearing on November 10, 2016, (id. at 3465), and he issued a decision denying Michael’s claims on January 6,
2017, (id. at 8-33). This decision became the Commissioner’s final
decision when the Appeals Council denied Michael’s request for review.
(Id. at 1-5, 271-75).
Michael commenced the instant action on August 21, 2017 by filing
his complaint, wherein he seeks review of the Commissioner’s decision.
(Compl. at 1.) Thereafter, the Commissioner filed a certified copy of the
administrative transcript. (Dkt. No. 9.) Each party filed a brief seeking
judgment on the pleadings. (Dkt. Nos. 10, 14.)
III. Contentions
Michael contends that the ALJ erred by: (1) failing to appropriately
evaluate the opinions of Michael’s orthopedist and therapist, (Dkt. No. 10 at
10-11); (2) improperly assessing Michael’s residual functional capacity
(RFC), (id. at 12-13); (3) substituting his own opinion for a consultative
examiner’s (CE) opinion regarding Michael’s postural limitations, (id. at 133

14); (4) failing to resolve a conflict in the vocational expert’s (VE)
testimony, (id. at 14-16); and (5) failing to find that Michael’s back and
carpal tunnel syndrome are severe impairments, (id. at 16-18). The
Commissioner makes various counterarguments that the ALJ’s decision is
supported by substantial evidence and not based on legal error. (Dkt. No.
14 at 6-18.)
IV. Facts
The facts in Michael’s brief, (Dkt. No. 10 at 2-9), are adopted as
supplemented in the Commissioner’s brief, (Dkt. No. 14 at 2).
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 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 *1-3 (N.D.N.Y.
Mar. 19, 2008).
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The section 405(g) standard of review in DIB proceedings under Title II of the Act also applies
to SSI proceedings under Title XVI of the Act. See 42 U.S.C. § 1383(c)(3). Similarly, the analysis of SSI
claims under Title XVI parallels, in relevant part, the statutory and regulatory framework applicable to DIB
claims under Title II. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

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VI. Discussion
A.

Whether the ALJ Failed to Appropriately Evaluate the Opinions
of Michael’s Treating Sources
First, Michael argues that the ALJ erred by failing to give controlling

weight to his treating orthopedist, Dr. Frederick Lemley. (Dkt. No. 10 at 10,
11.) Specifically, Michael argues that he underwent a functional capacity
evaluation (FCE), which “found [he] was capable of performing work at the
‘sub sedentary’ strength level and he demonstrated a positional tolerance
for only three hours per day,” and Dr. Lemley agreed with these findings.
(Id. at 10.) Michael also argues that the ALJ erred in evaluating the opinion
of his treating therapist, Dan Silverman, that he would miss four days of
work a month. (Id. at 11.) As explained below, the court disagrees with
Michael for the reasons articulated by the Commissioner. (Dkt. No. 14 at
11-13, 15-16.)
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 404.1527(c).
Controlling weight will be given to a treating source’s opinion that is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.” Id.

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§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Unless controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length, and nature of a treatment relationship; the
frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. See 20 C.F.R.
§ 404.1527(c). The ALJ must provide “‘good reasons’ for the weight given
to the treating source’s opinion.” Petrie v. Astrue, 412 F. App’x 401, 407
(2d Cir. 2011) (internal citations omitted). “Nevertheless, where the
evidence of record permits [the court] to glean the rationale of an ALJ’s
decision,” it is not necessary that the ALJ “mention[] every item of
testimony presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion of
disability.” Id. (internal quotation marks and citations omitted).
First, the ALJ’s RFC is consistent with Dr. Lemley’s opinion that
Michael can do sedentary work. (Tr. at 476.) More importantly, the ALJ’s
decision explains why he gave only some weight to the FCE that Dr.
Lemley adopted. (Id. at 18-19.) That is, the ALJ rejected the FCE’s
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conclusion that Michael could work only three hours per day “because it is
contradicted by the fact that [he] responded well to a spinal cord stimulator,
and EMG/nerve conduction studies of his lower extremities from December
2012 were normal.” (Id. at 19, 499, 692.) In other words, Dr. Lemley’s
adopted opinion was inconsistent with the other substantial evidence.3 The
failure to explicitly address Dr. Lemley’s letter is therefore harmless. (Dkt.
No. 14 at 11.) Moreover, in any event, the statement that Michael could
work only three hours per day is a statement on an issue reserved to the
Commissioner. See Savage v. Comm’r of Soc. Sec., Civil Action No.
2:13–cv–85, 2014 WL 690250, at *5 (D. Vt. Feb. 24, 2014); Rinker v.
Chater, No. 95 Civ. 3923, 1997 WL 47791, at *5 & n.7 (S.D.N.Y. Feb. 6,
1997).
Michael also argues that the ALJ erred in evaluating Silverman’s
opinion that he would miss four days of work a month. (Dkt. No. 10 at 11.)
Specifically, he argues that the ALJ erred in discounting this opinion based
on Michael’s benign mental status examinations. (Id.) However, the ALJ
explained that he did not adopt Silverman’s conclusion because it was not

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The court also notes that the FCE was completed, in the first instance, by a physical
therapist, who is not an acceptable medical source. (Dkt. No. 14 at 11-12 (citing Genier v.
Astrue, 298 F. App’x 105, 108-09 (2d Cir. 2008)).)

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fully supported by objective evidence in the record. (Tr. at 20.) The ALJ
noted that Silverman “indicated that the limitations he identified have
existed since 2004; yet, [Michael] was capable of working after 2004 at
levels indicative of substantial gainful activity in spite of his psychological
symptoms.” (Id.) The treatment notes described by the ALJ—including
that Michael’s “affect was appropriate to thought content, . . . no delusions
or hallucinations were present, thought content was normal and
appropriate, no suicidal or homicidal ideations were present, . . . and
insight and judgment were good”—also support his decision not adopt
Silverman’s conclusion. (Id.)
B.

Whether the ALJ Improperly Assessed Michael’s RFC
Michael makes two arguments that the ALJ’s RFC is not supported

by substantial evidence. (Dkt. No. 10 at 12-13.)4 First, he argues that the
ALJ’s reliance on the state agency medical consultant, Dr. Echevarria, was
in error because of his use of the term “moderate.” (Id. at 12.) But the
case Michael relies on, Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000),
has been superseded by regulations, and case law holds that moderate

4

Michael makes an additional argument based on postural limitations, which is
addressed in Part C, infra.

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limitations do not prevent a claimant from performing unskilled work, as the
ALJ found regarding Michael. (Dkt. No. 14 at 14-15 (citing cases).)5
Michael’s second argument is that “when the VE was asked a hypothetical
question qualifying this opinion, he responded that the limitations of work
were preclusive. This inconsistently [sic] is not resolved in the decision.”
(Dkt. No. 10 at 12.) Without any citation to the record or explanation, the
court is unable to decipher this inchoate argument. Cf. DeSilva v.
DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) (noting impropriety of asking
the court “to play archaeologist with the record”).
C.

Whether the ALJ Substituted His Own Opinion for a CE’s
Opinion Regarding Postural Limitations
Michael argues that the ALJ improperly declined to consider the

postural limitations noted by a CE, Dr. Tanya Perkins-Mwantuali (“the CE”),
and the FCE. (Dkt. No. 10 at 13-14.) Specifically, Michael takes issue with
the ALJ’s statement that the postural limitations referred to his
back—which was not found to be a severe impairment—and not his
complex regional pain syndrome (CRPS), which was found to be a severe
impairment. (Id.; Dkt. No. 14 at 3.) He argues that the ALJ erred in doing
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Michael’s misguided reliance on Curry also dooms his vagueness argument as it
pertains to depression and anxiety. (Dkt. No. 10 at 13.)

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so, and “[a]t the very least, there is an inconsistency with regard to the
opinion that should have been clarified and was not addressed.” (Dkt. No.
10 at 14.)
The court disagrees. To begin with, Michael again fails to provide a
single citation to the record in support of his argument. (Id. at 13-14.) To
wit, there is nothing in the CE’s report to suggest that the limitations were
related to Michael’s CRPS and not his back. (Tr. at 17-18; 655-59.)
Indeed, as the Commissioner argues, the ALJ “rejected the [CE]’s opinion
that [Michael] had moderate to marked limitation with squatting, walking,
standing[,] and climbing (Tr. at 659), because the opinion was not based
on an underlying ‘severe’ impairment.” (Dkt. No. 14 at 9 (quoting Tr. at
18).) Moreover, as explained by the Commissioner, even if the CE’s
opinion on Michael’s postural limitations was based on his CRPS, such
opinion is inconsistent with the CE’s physical examination findings. (Dkt.
No. 14 at 9-10.) To that end, the ALJ explained that the postural limitations
in the FCE were “contradicted by the fact that [Michael] was able to change
for the [CE], get on and off [the] examination[] table, and rise from the chair
without noted difficulty or assistance.” (Tr. at 18-19.) Finally, as explained
by the Commissioner, even if the ALJ had accepted the CE’s opinion
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regarding postural limitations, Michael would still be capable of performing
the ALJ’s RFC. (Dkt. No. 14 at 10.)
D.

Whether the ALJ Failed to Resolve a Conflict in the VE’s
Testimony
Michael also argues that the VE did not provide for GED reasoning in

response to a hypothetical question, and the VE did not provide a
reasonable explanation that is supported by the evidence in the record on
which the ALJ relied. (Dkt. No. 10 at 14-15.) Specifically, Michael argues
that “an individual limited to simple routine repetitive tasks, by definition, is
incapable of carrying out detailed written and oral instructions,” which is
required by the jobs identified by the VE—all three of which have a GED
reasoning level of three. (Id. at 14, 15.) Michael also argues that the
Social Security Administration’s (SSA) own policy statement indicates that
GED reasoning level three jobs are inappropriate where there is a limitation
to unskilled work. (Id. at 15.)
The court agrees with the Commissioner’s arguments to the contrary.
(Dkt. No. 14 at 16-17.)6 As the ALJ’s RFC was based on substantial
evidence, the ALJ was correct to rely on the VE’s testimony that a

6

Yet again Michael fails to provide any citation to the record. (Dkt. No. 10 at 14-15.)

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hypothetical person with Michael’s RFC, age, education, and work
experience, could perform jobs that exist in significant numbers in the
national economy. (Tr. at 54-56); see Salmini v. Comm’r of Soc. Sec., 371
F. App’x 109, 114 (2d Cir. 2010) (citing Dumas v. Schweiker, 712 F.2d
1545, 1553-54 (2d Cir. 1983)). Specifically, Michael’s contention that
unskilled work is incompatible with a GED reasoning level of three is
mistaken. See Maenza v. Colvin, 14-CV-6596, 2016 WL 1247210, at *14
(W.D.N.Y. Mar. 24, 2016) (holding plaintiff limited to unskilled work could
perform work with a GED level of three) (citing cases); Healy v. Colvin, No.
3:15-cv-01579, 2016 WL 4581403, at *7 (D. Conn. Sept. 2, 2016) (holding
limitation to unskilled work “not inconsistent with either jobs requiring GED
level 2 or 3 reasoning”) (internal quotation marks and citation omitted).
The court also finds the SSA memorandum cited by Michael, (Dkt. No. 10,
Attach. 3), unpersuasive for the reasons argued by the Commissioner,
(Dkt. No. 14 at 17). Finally, Michael’s educational background—he has his
GED and had a CDL, (Tr. at 73)—is consistent with the requirements of a
GED reasoning level three job. See Maenza, 2016 WL 1247210, at *14.
E.
Whether the ALJ Erred in Finding that Michael’s Back and
Carpal Tunnel Syndrome Are Not Severe Impairments

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Michael finally argues that the ALJ should have found that his back
and his carpal tunnel syndrome were severe impairments. (Dkt. No. 10 at
16-18.) However, Michael bore the burden of proving that his impairments
were severe. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
The court agrees with the Commissioner that Michael failed to prove that
his back and carpal tunnel syndrome were severe impairments. (Dkt. No.
14 at 6-8.) The ALJ cited to substantial evidence in the record showing
that Michael’s back pain was non-severe and a symptom of his CRPS, and
treatment for his back pain was to alleviate his CRPS. (Tr. at 14-15, 68081, 1352.) Regarding his carpal tunnel syndrome, the ALJ noted that the
CE’s physical examination found intact hand and finger dexterity, as well as
a grip strength of five out of five. (Id. at 18, 658.) As the ALJ explained,
although Michael testified to ongoing stiffness, pain, and cramping in his
hands and wrists, the objective medical evidence—including an EMG,
electrodiagnostic study, and a second EMG—showed largely normal
findings. (Id. at 15, 436, 1005.) Finally, even if the ALJ erred in classifying
Michael’s back and carpal tunnel syndrome as non-severe, it would be
harmless error because the ALJ proceeded past step two and considered
the effects of all of his symptoms. (Id. at 17); see Reices-Colon v. Astrue,
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523 F. App’x 796, 798 (2d Cir. 2013); Stanton v. Astrue, 370 F. App’x 231,
233 n.1 (2d Cir. 2010).
F.

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 and not
based on legal error.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Michael’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.
September 28, 2018
Albany, New York

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