Smiley v. Commissioner of Social Security

Filing 24

MEMORANDUM-DECISION AND ORDER that Pltf's 15 motion for judgment on the pleadings is denied. Deft's motion for judgment on the pleadings is granted. Deft's unfavorable determination is affirmed. Pltf's 1 Complaint is dismissed. Signed by Magistrate Judge William B. Carter on 1/10/18. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SARAH L. SMILEY,
Plaintiff,
v.

7:16CV-1263
(WBC)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF CHRISTINE SCOFIELD
Counsel for Plaintiff
506 East Washington St., Ste. D
Syracuse, NY 13202

CHRISTINE A. SCOFIELD, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278

SUSAN J. REISS, ESQ.

William B. Mitchell Carter, 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. General Order No. 18, and 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, 21.).
Currently before the Court, in this Social Security action filed by Sarah L. Smiley
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-

motions for judgment on the pleadings. (Dkt. Nos. 15, 18.) For the reasons set forth
below, Plaintiff’s motion is denied and Defendant’s motion is granted.
I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1969. (T. 88.) She completed high school. (T. 93.)
Generally, Plaintiff’s alleged disability consists of anxiety, high blood pressure, “fluid
around heart,” high cholesterol, and asthma. (T. 92.) Her alleged disability onset date
is May 31, 2012. (T. 28.) She has no past relevant work.
B.

Procedural History

On October 15, 2012, Plaintiff applied for a period of Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act. (T. 88.) Plaintiff’s application
was initially denied, after which she timely requested a hearing before an Administrative
Law Judge (“the ALJ”). On October 15, 2014, Plaintiff appeared before the ALJ,
Elizabeth J. Koennecke. (T. 562-590.) On January 20, 2015, ALJ Koennecke issued a
written decision finding Plaintiff not disabled under the Social Security Act. (T. 14-26.)
On August 16, 2016, the Appeals Council (“AC”) denied Plaintiff’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (T. 8-12.)
Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 19-26.) First, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since October 15, 2012. (T. 19.) Second, the ALJ found that
Plaintiff had the severe impairments of degenerative disc disease of the cervical spine,

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mild degenerative joint disease of the shoulder, and a mental impairment (variously
characterized). (Id.) Third, the ALJ found that Plaintiff did not have an impairment that
meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404,
Subpart P, Appendix. 1. (T. 20.) Fourth, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform the exertional demands of light work with
additional limitations. (T. 22.)1 The ALJ determined that Plaintiff could occasionally
kneel, squat, bend, and reach. (Id.) The ALJ determined Plaintiff could not work at a
job that required holding her head in a fixed position. (Id.) The ALJ determined that
Plaintiff could understand and follow simple instructions and directions; perform simple
and some complex tasks with supervision and independently; maintain
attention/concentration for simple and some complex tasks; regularly attend to a routine
and maintain a schedule; relate to and interact with others to the extent necessary to
carry out simple tasks but should avoid work requiring more complex interaction or joint
effort to achieve work goals; and handle reasonable levels of simple work-related stress
in that she could make occasional simple decisions directly related to the completion of
tasks in a stable, unchanging work environment. (Id.) Fifth, the ALJ determined that
Plaintiff had no past relevant work; however, there were jobs that existed in significant
numbers in the national economy Plaintiff could perform. (T. 25-26.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

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Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. §
416.967(b).

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Plaintiff essentially argues that the ALJ erred in her RFC determination because
she failed to account for Plaintiff’s inability to maintain attention, concentration and/or
attendance and failed to account for her respiratory limitations. (Dkt. No. 15 at 3-5 [Pl.’s
Mem. of Law].) Plaintiff also appears to argue that she was prejudiced at the hearing
and AC level because she proceeded pro se and did not know how to “address” the
post hearing vocational expert testimony. (Id.)
B.

Defendant’s Arguments

In response, Defendant makes two arguments. First, Defendant argues
substantial evidence supported the ALJ’s RFC finding. (Dkt. No. 18 at 7-10 [Def.’s
Mem. of Law].) Second, and lastly, Defendant argues the ALJ properly sent
interrogatories to the vocational expert. (Id. at 10-12.)
III.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct

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legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and has been defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be
sustained “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable
deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R. §

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416.920. The Supreme Court has recognized the validity of this sequential evaluation
process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The
five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
IV.

ANALYSIS
A. RFC Determination
The RFC is an assessment of “the most [Plaintiff] can still do despite [his or her]

limitations.” 20 C.F.R. § 416.945(a)(1). The ALJ is responsible for assessing Plaintiff’s
RFC based on a review of relevant medical and non-medical evidence, including any
statement about what Plaintiff can still do, provided by any medical sources. Id. at §§
416.927(d), 416.945(a)(3), 416.946(c).
Plaintiff appears to argue that she was unable to “attend [a] job on a reliable
basis because the symptoms of [her] disability make it impossible to be certain to show
up on a regular schedule.” (Dkt. No. 15 at 3-4 [Pl.’s Mem. of Law].) Plaintiff’s argument
fails. First, Plaintiff does not cite to any evidence in the record to support her contention
that her mental impairments caused greater limitations than accounted for in the ALJ’s
RFC determination. Second, the ALJ’s mental RFC determination, that Plaintiff could

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regularly attend to a routine and maintain a schedule, was supported by substantial
evidence in the record.
In formulating her mental RFC determination, the ALJ relied on the medical
opinion of consultative examiner, Christine Ransom, Ph.D. and non-examining State
agency medical consultant Dr. J. Echervarria, treatment notations in the record, and
Plaintiff’s testimony. (T. 24-25.)
On March 27, 2013, Dr. Ransom performed a psychiatric evaluation. (T. 254257.) Based on her examination, she opined that Plaintiff would have “moderate
difficulty following and understanding simple directions and instructions, performing
simple tasks independently, maintaining attention and concentration for simple tasks,
maintaining a simple regular schedule and learning simple new tasks.” (T. 256-257.)
She further opined, Plaintiff would have “moderate to marked difficulty performing
complex tasks, relating adequately with others and appropriately dealing with stress.”
(T. 257.) The ALJ afforded Dr. Ransom’s opinion “great weight.” (T. 24.)
Dr. Echervarria reviewed Plaintiff’s record on April 3, 2013, including Dr.
Ransom’s examination and opinion. (T. 37.) He opined that based on his review of the
record, Plaintiff was “not significantly limited” in her ability to: remember locations and
work-like procedures; understand and remember very short and simple instructions;
sustain an ordinary routine without special supervision; work in coordination with or in
proximity to others without being distracted by them; make simple work-related
decisions; interact with the public; ask simple questions or request assistance; and get
along with coworkers or peers without distracting them or exhibiting behavioral
extremes. (T. 35-36.) He opined that Plaintiff was “moderately limited” in her ability to:

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understand and remember detailed instructions; maintain attention and concentration
for extended periods; perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest periods; accept
instructions and respond appropriately to criticism from supervisors; and maintain
socially appropriate behavior and to adhere to basic standards of neatness and
cleanliness. (Id.) The ALJ afforded “great weight” to Dr. Echervarria’s opinion. (T. 25.)
The ALJ also relied on treatment notations from Plaintiff’s therapist, Toby K.
Davis and Plaintiff’s activities. (T. 25.) Indeed, Mr. Davis noted Plaintiff missed several
appointments because she was “feeling better.” (T. 252.) Mr. Davis further noted that
Plaintiff’s mood was consistent and her medication was helping her mood. (Id.) He
suggested that Plaintiff seek work “to become more self-sufficient.” (Id.)
It is well settled that an ALJ is entitled to rely upon the opinions of both examining
and non-examining State agency medical consultants, since such consultants are
deemed to be qualified experts in the field of social security disability. See 20 C.F.R. §§
416.912(b)(6), 416.913(c), 416.927(e); Baszto v. Astrue, 700 F. Supp. 2d 242, 249
(N.D.N.Y. 2010) (“[A]n ALJ is entitled to rely upon the opinions of both examining and
non-examining State agency medical consultants, since such consultants are deemed
to be qualified experts in the field of social security disability.”); see also HeagneyO'Hara v. Comm'r of Soc. Sec., 646 F. App'x 123, 126 (2d Cir. 2016); see also Monette
v. Colvin, 654 F. App’x 516 (2d Cir. 2016); see also Snyder v. Colvin, 667 F. App’x 319
(2d Cir. 2016).

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In addition, “moderate” limitations in work related functioning does not preclude
the ability to do basic work activities. See McIntyre v. Colvin, 758 F.3d 146, 151-52 (2d
Cir. 2014); see Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010). Basic mental work
activities include the ability to: understand, carry out, and remember simple instructions;
use judgment; respond appropriately to supervision, co-workers and usual work
situations; and deal with changes in a routine work setting. 20 C.F.R. § 416.921(b)(3)(6), see also SSR 85-15 (S.S.A. 1985) (“The basic mental demands of competitive,
remunerative, unskilled work include the abilities (on a sustained basis) to understand,
carry out, and remember simple instructions; to respond appropriately to supervision,
co-workers, and usual work situations; and to deal with changes in a routine work
setting. A substantial loss of ability to meet any of these basic work-related activities
would severely limit the potential occupational base.”) Therefore, the ALJ’s
determination that Plaintiff could maintain a routine and schedule was supported by
substantial evidence in the record as outlined above.
Plaintiff also appears to argue the ALJ failed to adopt the opinion of consultative
examiner Elke Lorenson, M.D., that Plaintiff should avoid respiratory irritants. (Dkt. No.
15 at 5 [Pl.’s Mem. of Law].) At step two the ALJ determined that Plaintiff’s asthma was
not a severe impairment. (T. 20.) Plaintiff does not argue the ALJ erred in her step two
determination. Further, Plaintiff fails to provide any evidence in the record establishing
a need to avoid respiratory irritants.
As stated by Defendant, a review of the record reveals a single treatment note
dated December 19, 2013, which indicated that Plaintiff experienced a cough, chest
tightness, shortness of breath, and wheezing. (T. 282.) Other than that one notation,

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the record contains numerous notations of normal pulmonary examinations. (T. 160,
169, 193, 195, 204, 206, 208, 268, 271, 273, 277, 279, 295, 302, 305, 307, 309, 311,
313, 330, 333, 335, 338, 341, 344, 348, 350, 353, 359, 362, 365, 369, 371, 378, 382,
385, 429, 433, 477, 487, 489.) Notations further indicated Plaintiff’s asthma was
“stable” and objective medical imaging was normal. (T. 211, 214, 455.) Substantial
evidence in the record supported the ALJ’s determination to not include respiratory
limitations in her RFC determination. Therefore, Plaintiff failed to prove that her asthma
provided greater limitations than imposed by the ALJ in her RFC determination.
B. Waiver of Representation
Plaintiff appears to argue that because she proceeded pro se at the hearing and
at the AC level she was disadvantaged because she did not have the benefit of an
attorney to assist her with the post-hearing vocational expert interrogatories. (Dkt. No.
15 at 4 [Pl.’s Mem. of Law].)
Although a plaintiff does not have a constitutional right to counsel at a social
security disability hearing, she does have a statutory and regulatory right to be
represented should she choose to obtain counsel. 42 U.S.C. § 406; 20 C.F.R. §
404.1705; see Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009).
The Commissioner is required to notify plaintiffs in writing of the option to retain
an attorney to be present at hearings, and of the availability of free legal services. 42
U.S.C. § 1383(d)(2)(D); see also 20 C.F.R. §§ 404.1705, 404.1706. The ALJ must also
ensure, at the hearing itself, that the plaintiff is aware of these rights. Lamay, 562 F.3d
at 507.

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However, “[e]ven if an ALJ does not sufficiently inform a plaintiff of his/her rights,
the lack of counsel, in and of itself, is not a sufficient ground upon which remand or
reversal may be based.” Grant v. Astrue, No. 5:05-CV-1138, 2008 WL 2986393, at *5
(N.D.N.Y. July 31, 2008) (citing Alvarez v. Bowen, 704 F.Supp. 49, 53 (S.D.N.Y. 1989)).
Rather, a “[p]laintiff must show prejudice or unfairness in the proceeding.” Grant, 2008
WL 2986393, at *5 (citing Evangelista v. Sec'y of Health and Human Servs., 826 F.2d
136, 142 (1st Cir. 1987)). Additionally, “[t]he Commissioner of Social Security is not
obligated to provide a claimant with counsel,” though where a plaintiff proceeds pro se,
“the ALJ has a duty ‘to scrupulously and conscientiously probe into, inquire of, and
explore all relevant facts.’ ” Lamay, 562 F.3d at 509 (quoting Hankerson v. Harris, 636
F.2d 893, 895 (2d Cir. 1980)).
Prior to the hearing the Social Security Administration informed Plaintiff of her
right to be represented and provided her a list of organizations to contact for
representation. (T. 45-52, 53-62.) At the hearing the ALJ informed Plaintiff that she
could adjourn the hearing to allow her time to find representation. (T. 564-565.) Plaintiff
informed the ALJ that she “prefer[ed] to just keep going without the rep.” (T. 565.) The
ALJ also informed Plaintiff of her rights regarding any evidence or testimony that may
be received after the hearing. (T. 568-570.)
After the hearing the ALJ requested vocational expert (“VE”) testimony by way of
written interrogatories. (T. 147-148.) Plaintiff concedes that the ALJ “properly provided
a copy” of the VE resume “as well as the written questions she posed to the [VE] and
gave [plaintiff] the opportunity to respond.” (Dkt. No. 15 at 4 [Pl.’s Mem. of Law].) As
indicated by Defendant, it is unclear from Plaintiff’s brief exactly what she is arguing with

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regard to the VE’s written testimony. (Dkt. No. 18 at 11 [Def.’s Mem. of Law].) Plaintiff
appears to argue that because she did not have representation she was unable to
meaningfully respond to the interrogatories.
To be sure, as stated by Plaintiff, VE testimony “tends not to be understandable
by an unrepresented claimant.” (Dkt. No. 15 at 4 [Pl.’s Mem. of Law].) For precisely
such reasons the Commissioner is required to notify plaintiffs in writing of the option to
retain an attorney to be present at hearings, and of the availability of free legal services,
and the ALJ must also ensure, at the hearing itself, that the plaintiff is aware of these
rights. 42 U.S.C. § 1383(d)(2)(D); see also 20 C.F.R. §§ 404.1705, 404.1706; see
Lamay, 562 F.3d at 507. Here, Plaintiff was properly informed of her right to
representation prior to the hearing and at the hearing. Plaintiff voluntarily and knowingly
waived her right to counsel.
Further, Plaintiff fails to show that she was prejudiced by lack of counsel. Plaintiff
asserts that had she had representation, the VE would have been properly cross
examined regarding Plaintiff’s inability to maintain attention and concentration. (Dkt.
No. 15 at 3-4 [Pl.’s Mem. of Law].) However, as stated herein, the ALJ properly
assessed Plaintiff’s mental RFC, specifically her ability to maintain attention and
concentration. Because the ALJ did not err in her RFC assessment, the ALJ did not err
in posing a hypothetical question to the vocational expert that was based on that
assessment. See Dumas v. Schweiker, 712 F.2d 1545, 1553-1554 (2d Cir.1983)
(approving a hypothetical question to a vocational expert that was based on substantial
evidence in the record). In other words, even if Plaintiff had representation at the time
of the VE interrogatories, and representation posed a more restrictive hypothetical to

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the VE, the ALJ’s step five determination would still be upheld for the reasons stated
herein. Therefore, the ALJ did not err in her request and reliance on written
interrogatories provided by the VE. Plaintiff proceeded pro se voluntarily and knowingly.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 15) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 18) is
GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated:

January 10, 2018

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