Winbush v. Commissioner of Social Security

Filing 22

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Winbush's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 8/30/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TAMRA M. WINBUSH,
Plaintiff,

7:12-cv-427
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Conboy, McKay Law Firm
307 State Street
Carthage, NY 13619
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

LAWRENCE D. HASSELER,
ESQ.

JEREMY A. LINDEN
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
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Tamra M. Winbush 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).
(See Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Winbush’s arguments, the court affirms the
Commissioner’s decision and dismisses the Complaint.
II. Background
On January 19, 2010, Winbush filed applications for DIB and SSI
under the Social Security Act (“the Act”), alleging disability since December
5, 2008. (See Tr.1 at 50, 57, 115-26.) After her applications were denied,
(see id. at 64-69), Winbush requested a hearing before an Administrative
Law Judge (ALJ), which was held on June 30, 2011, (see id. at 27-49, 72).
On July 12, 2011, 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 1-4, 6-26.)
1

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

8.)
2

Winbush commenced the present action by filing her Complaint on
March 9, 2012 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. 7, 8.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 14, 20.)
III. Contentions
Winbush contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (See Dkt. No. 14
at 13-20.) Specifically, Winbush claims that the ALJ erred in: (1) finding
that her lower back pain and musculoskeletal impairments were not
severe; (2) failing to consider that her psychogenic non-epileptic seizure
disorder met the requirements of listing 12.07; (3) failing to identify the
significant limitations caused by her psychogenic seizure disorder,
depression, and panic disorder and include those limitations in his residual
functional capacity (RFC) determination; and (4) relying on the MedicalVocational Guidelines to establish that there are jobs in the national
economy that she is capable of performing. (See id.) The Commissioner
counters that the appropriate legal standards were used by the ALJ and his
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decision is also supported by substantial evidence. (See Dkt. No. 20 at 419.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 14 at 2-11; Dkt. No. 20 at 1.)
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 *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Severity Determination
First, Winbush claims that the ALJ failed to properly assess the

severity of her low back pain and other musculoskeletal complaints. (See
2

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the Regulations
governing SSI are omitted.
4

Dkt. No. 14 at 13-15.) The Commissioner counters, and the court agrees,
that as the ALJ found that Winbush suffered other severe impairments, and
the sequential analysis continued, any error at step two is harmless. (See
Dkt. No. 20 at 4-7.)
At step two of the sequential analysis, the ALJ must determine
whether the claimant has a “severe medically determinable physical or
mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). A finding of not
severe is appropriate when an impairment, or combination of those
impairments “does not significantly limit [the claimant’s] physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1521(a). The term
“basic work activities” refers to “the abilities and aptitudes necessary to do
most jobs,” including functions such as “walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling.” 20 C.F.R. § 404.1521(b).
Here, as noted by the ALJ, the objective medical evidence of record
did not reveal significant abnormalities in Winbush’s right knee, right hip,
left shoulder, and left hip. (See Tr. at 13, 307-08, 501, 505, 731.) Further,
diagnostic images of her cervical and lumbar spine revealed only minimal
abnormalities, and, throughout the record, upon examination the only
remarkable findings were often tenderness and, at times, limited range of
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motion of the lumbar spine. (See id. at 13, 229, 234, 237, 242, 248, 259,
283, 294-95, 391, 393, 396, 398, 400, 402, 404, 406-07, 409, 411, 413,
419, 421, 423, 500, 507-08, 526-27, 568, 661-63, 742, 757-58, 760, 762,
764, 766, 768, 770, 772, 780, 782-83, 789, 803, 817, 819.) Finally, despite
suffering a cartilage tear to her left wrist, her symptoms improved after
arthoscopic surgery. (See id. at 13, 825-30, 869-71.) In any event, in
making his RFC determination, the ALJ considered Winbush’s complaints
of pain, including evidence from her treating sources of tenderness over
her lumbar spine. (See id. at 17-18.) As the disability analysis continued
and the ALJ considered claimant’s severe and non-severe impairments in
his RFC determination, any error at step two is, at most, harmless. See
Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 398952, 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).
B.

Listing 12.07
Next, Winbush contends that the ALJ failed to consider that her

psychogenic non-epileptic seizure disorder is a listed mental impairment.
(See Dkt. No. 14 at 16-17.) On the other hand, the Commissioner argues
that the ALJ properly concluded that Winbush’s impairments did not meet
6

or equal a listing level impairment. (See Dkt. No. 20 at 8-11.) Again, the
court agrees with the Commissioner.
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 12.07, pertaining to
somatoform disorders,3 a claimant must meet or equal the criteria of both
12.07(A) and (B). See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.07. To
satisfy the demands of 12.07(B), a claimant must prove that she suffers “at
least two of the following: 1. [m]arked restriction of activities of daily living;
or 2. [m]arked difficulties in maintaining social functioning; or 3. [m]arked
difficulties in maintaining concentration, persistence, or pace; or 4.
[r]epeated episodes of decompensation, each of extended duration.” Id.
§ 12.07(B).
Here, the ALJ found that Winbush “does not have an impairment or
combination of impairments that meets or medically equals one of the
listed impairments.” (Tr. at 14.) The ALJ explicitly considered listings

3

Somatoform disorders are defined as “[p]hysical symptoms for which there are no
demonstrable organic findings or known physiological mechanisms.” 20 C.F.R. pt. 404, subpt.
P, app. 1 § 12.07.
7

11.02 and 11.03, pertaining to seizures, as well as 12.04 and 12.06,
pertaining to affective disorders and anxiety related disorders. (See id.)
He did not explicitly consider listing 12.07. (See id.) However, in
evaluating listings 12.04 and 12.06, the ALJ explicitly found that Winbush’s
mental impairments “do not cause at least two ‘marked’ limitations or one
‘marked’ limitation and ‘repeated’ episodes of decompensation, each of
extended duration.” (Id.) Because a determination that Winbush did not
possess the requisite marked limitations or episodes of decompensation
precludes a finding that Winbush met listing 12.07, the ALJ’s failure to
explicitly analyze Winbush’s impairments 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)).
Moreover, substantial evidence supports the ALJ’s determination that
Winbush suffered moderate restrictions in performing activities of daily
living, moderate difficulties in maintaining social functioning, mild difficulties
in maintaining concentration persistence and pace, and no episodes of
decompensation. (See Tr. at 13); Berry v. Schweiker, 675 F.2d 464, 468
(2d Cir. 1982) (explaining that a listing determination may be upheld
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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”). In making his determination, the ALJ
explicitly considered the results of Winbush’s consultative psychiatric
exam, Winbush’s global assessment of functioning (GAF) score,4 as
assessed by her treating licensed mental health counselor and treating
psychiatrist, and the opinion of the state agency medical consultant. (See
Tr. at 12-13, 453, 670-74, 691-707.) With respect to activities of daily
living, Winbush reported that she cooks, cleans, provides childcare, shops,
attends to her personal hygiene, although she receives help washing her
hair, drives a vehicle, watches television, listens to the radio, reads, writes
book reviews, and crochets. (See id. at 47, 162-65, 661.) Notably, on
April 9, 2010, she reported that she did not take her sleeping medication
because she was busy “out and about doing things.” (Id. at 838.) Further,
although she reported difficulty being around crowds, Winbush also
reported getting along well with friends and family some of the time. (See
4

The GAF Scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d
Cir. 2004). A 2010 assessment from Winbush’s treating sources indicated a GAF of fifty-five.
(See Tr. at 450-53.) A GAF score between fifty-one and sixty indicates moderate symptoms or
moderate difficulty in social, occupational, or school functioning. See Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed., Text Rev. 2000).
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id. at 166, 673.) Moreover, on examination, Winbush was repeatedly found
to be pleasant, friendly, and cooperative, with good eye contact. (See id.
at 452, 461, 464-65, 672.) Her attention and concentration and recent and
remote memory were consistently found to be intact. (See id. at 229, 234,
248, 283, 385, 452, 672.) Finally, Winbush had not experienced an
episode of decompensation during the relevant period. (See id. at 670);
See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00(C)(4).
C.

Nonexertional Limitations
Winbush also argues that the ALJ failed to “identify what limitations

render [her] psychogenic non-epileptic seizures, depression and panic
disorder severe.” (Dkt. No. 14 at 18-19.) Further, Winbush contends that
in determining her RFC, the ALJ failed to consider the nonexertional
limitations attributable to her mental health impairments. (See id. at 1920.)5 The court disagrees.

5

According to Winbush, the ALJ also erred in concluding at step four that she could
not perform her past relevant work, when the exertional level of such work is less than the
ALJ’s RFC finding. (See Tr. at 19-20.) The Commissioner counters that the ALJ did not err,
as her nonexertional limitations prevented Winbush from performing her past relevant work.
(See Dkt. No. 20 at 17.) Besides being unfavorable to her disability claim, Winbush's
assertions regarding a deficiency in the step-four analysis do not require remand. See
Johnson v. Astrue, No. 07-CV-647, 2009 WL 1650415, at *6 (W.D.N.Y. June 12, 2009)
(explaining that failure to properly examine past relevant work is harmless when the ALJ
makes a correct ruling at step five).
10

An ALJ’s evaluation of a claimant’s mental impairments must reflect
his application of the “special technique” set out in 20 C.F.R. § 404.1520a,
which necessitates his consideration of “four broad functional areas” that
include: “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R.
§ 404.1520a(c)(3). The first three areas are rated on a five-point scale:
“[n]one, mild, moderate, marked, and extreme.” Id. § 404.1520a(c)(4). “[I]f
the degree of limitation in each of the first three areas is rated ‘mild’ or
better, and no episodes of decompensation are identified, then the [ALJ]
generally will conclude that the claimant’s mental impairment is not
‘severe.’” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (quoting 20
C.F.R. § 404.1520a(d)(1)). If the ALJ determined that the claimant suffers
a severe mental impairment that neither meets nor is equivalent in severity
to any listing, he will then assess the claimant’s RFC. See 20 C.F.R.
§ 404.1520a(d)(3). The mental RFC assessment used at steps four and
five of the sequential evaluation process requires the ALJ to, among other
things, engage in a more detailed assessment of various functions
contained in the broad categories found in paragraphs B and C of the adult
mental disorders listings in § 12.00 of the Listing of Impairments. See SSR
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96-8p, 61 Fed. Reg. 34,474, 34,477 (July 2, 1996).
Here, as discussed above, the ALJ explained that he found Winbush
to suffer moderate restrictions in performing activities of daily living,
moderate difficulties in maintaining social functioning, mild difficulties in
maintaining concentration persistence and pace, and no episodes of
decompensation. (See Tr. at 13.) Thus, he properly found that her mental
health impairments were severe under the Regulations, and Winbush’s
assertion that he did not identify the limitations that made the impairments
severe is false. See 20 C.F.R. § 404.1520a(d)(1).
In determining Winbush’s RFC, the ALJ considered her mental
impairments and concluded that she retained the ability to understand,
carry out, and remember simple instructions, respond appropriately to
supervisors, coworkers, and usual work situations, and to deal with
changes in a routine work setting. (See Tr. at 15.) Due to her psychogenic
non-epileptic seizure disorder, the ALJ limited Winbush from working at
heights and operating dangerous machinery. (See id. at 15-16.) The ALJ
based his determination on the results of the consultative mental status
examination and the opinion of state agency medical consultant L.
Hoffman, who opined that Winbush could understand and remember
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instructions, sustain attention and concentration, respond and relate
adequately to others, and adapt to changes. (See id. at 16, 670-74, 707.)
In addition, the ALJ relied on the recommendation of physicians Michele
Scully and Michel Berg that Winbush should not operate heavy machinery.
(See id. at 16, 720-21.) The ALJ explained that, because Winbush testified
that, despite her seizures, she continued to drive, he did not adopt Drs.
Scully and Berg’s recommendation that Winbush not drive. (See id. at 16,
47.) The ALJ also noted that Winbush’s treatment for mental problems has
been conservative and the mental status clinical findings in the record were
largely benign. (See id. at 18, 450-53, 461-62, 463-65, 672.) The ALJ
pointed out that Winbush testified that her medications helped some of her
symptoms and her anti-depressant was being decreased. (See id. at 19,
43.) In fact, in April 2011, it was noted that her “passing out,” was not “as
prolific as it was before,” although “it continue[d] to be bothersome.” (Id. at
859.)
Thus, the ALJ properly considered Winbush’s nonexertional
limitations attributable to her mental health impairments and his
determination that she could not work at heights or operate heavy
machinery, and was limited to unskilled work, is supported by substantial
13

evidence. See 20 C.F.R. § 404.1568.
D.

Vocational Expert
Lastly, Winbush contends that, due to the nonexertional limitations

caused by her mental health impairments, the testimony of a vocational
expert (VE) was required at step five of the sequential evaluation. (See
Dkt. No. 14 at 20.) Again, the court disagrees.
In making a step-five ruling, an ALJ may rely on the MedicalVocational Guidelines found in 20 C.F.R. pt. 404, subpt. P, App. 2, as long
as the claimant’s age, education, work experience, and RFC coincide with
the criteria of a rule contained in those Guidelines. See 20 C.F.R.
§ 404.1569; see also Calabrese v. Astrue, 358 F. App’x 274, 275 n.1 (2d
Cir. 2009). However, “if a claimant’s nonexertional impairments
‘significantly limit the range of work permitted by her exertional limitations’
then the grids obviously will not accurately determine disability status
because they fail to take into account claimant’s nonexertional
impairments.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (quoting
Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)). In that case,
the ALJ should consult with a VE before making a determination as to
disability. See id.
14

Here, at step five, the ALJ concluded that, because she maintained
the ability to meet the basic mental demands of unskilled work, and
because the inability to be on unprotected elevations and near dangerous
moving machinery does not significantly limit the range of work at all
exertional levels, under the Medical Vocational Guidelines Winbush is not
disabled. (See Tr. at 20-21); SSR 85-15, 1985 WL 56857 at *4, 8 (1985).
As the ALJ’s RFC determination was supported by substantial evidence,
and Winbush’s nonexertional limitations do not significantly limit the range
of work permitted by her exertional limitations, consultation with a VE was
not required by the Regulations. See Bapp, 802 F.2d at 605-06.
E.

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 decision of the Commissioner is AFFIRMED and
Winbush’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.
15

IT IS SO ORDERED.
August 30, 2013
Albany, New York

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