Breyette v. Commissioner of Social Security

Filing 20

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Breyette's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 6/5/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LAURIE BREYETTE,
Plaintiff,

8:13-cv-366
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Anderson Lamb and Associates PC
PO Box 1624
Burlington, VT 05402-1624
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
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

ARTHUR P. ANDERSON, ESQ.

SIXTINA FERNANDEZ
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Laurie Breyette challenges the Commissioner of Social
Security’s denial of 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 Breyette’s arguments, the
Commissioner’s decision is affirmed and Breyette’s complaint is dismissed.
II. Background
On May 26, 2009, Breyette filed an application for SSI under the
Social Security Act (“the Act”), alleging disability since July 14, 2003. (Tr. 1
at 124, 167-70.)2 After her application was denied, (id. at 125-30), Breyette
requested a hearing before an Administrative Law Judge (ALJ), (id. at 13233), which was held on May 20, 2011, (id. at 100-23). On August 15, 2011,
the ALJ issued an unfavorable decision denying the requested benefits, ( id.
at 85-99), which became the Commissioner’s final determination upon the
Social Security Administration Appeals Council’s denial of review, (id. at 11

Page references preceded by “Tr.” are to the Administrative
Transcript. (Dkt. No. 10.)
2

At the hearing, Breyette amended her onset date to May 26, 2009.
(Tr. at 117-18.)
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4).
Breyette commenced the present action by filing her complaint on
April 1, 2013, 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. (Dkt. Nos. 9, 10.)
Each party, seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 17,
18.)
III. Contentions
Breyette contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 17,
Attach. 1 at 4-6.) Specifically, Breyette claims that: (1) the ALJ’s
determination of Breyette’s residual functional capacity (RFC) was
unsupported by substantial evidence because she failed to make a finding
on the frequency and duration of Breyette’s need to use the bathroom; and
(2) the ALJ committed legal error by failing to obtain the opinion of a
vocational expert (VE) in making her step four determination. (Id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and her decision is also supported by substantial evidence. (Dkt.
No. 18 at 6-9.)
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IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt. No.
17, Attach. 1 at 4; Dkt. No. 18 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)3 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.

RFC Determination
First, Breyette contends that, in light of her irritable bowel syndrome

(IBS),4 the ALJ’s RFC determination is tainted by legal error and
3

42 U.S.C. § 1383(c)(3) renders § 405(g) applicable to judicial
review of SSI claims.
4

Despite her claim that she has also has been diagnosed with
Crohn’s disease, (Tr. at 111-12), the ALJ found that the record only
supported a confirmed diagnosis of IBS, and not Crohn’s disease;
Breyette does not challenge that finding. (Tr. at 94, 95; Dkt. No. 17,
4

unsupported by substantial evidence because she failed to make a finding
as to the frequency and duration of Breyette’s bathroom visits. (Dkt. No.
17, Attach. 1 at 4-6.) The Commissioner counters, and the court agrees,
that the ALJ’s RFC determination is supported by substantial evidence.
(Dkt. No. 18 at 6-7.)
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(a)(1). In assessing a claimant’s RFC, an
ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 416.945(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence 5 in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Charter, 77 F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ found that Breyette retained the RFC to perform a full
range of work at all exertional levels, but that her nonexertional limitations

Attach. 1 at 5.)
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“Substantial evidence is defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)
(internal quotation marks and citations omitted).
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required that she have regular access to a bathroom. (Tr. at 92.) Contrary
to Breyette’s assertions, in determining Breyette’s RFC, the ALJ did
consider the frequency and duration of Breyette’s bathroom visits. Indeed,
the ALJ noted that Breyette claimed that “she had incontinence of stools
and explosive bowel movements on the average three to four per day,” and
that “[d]uring diarrhea flare-ups, she is in the bathroom three to four hours.”
(Id. at 94, 95.) Ultimately, however, the ALJ concluded that the record
medical evidence indicated that, with medication, Breyette “only has two
bowel movements a day,” and that “regular bathroom breaks should
accommodate her bathroom needs.” (Id. at 94.)
These findings are supported by substantial evidence. First, as the
ALJ noted, the record medical evidence is devoid of complaints of
incontinence. (Id. at 94.) As relevant to the time period at issue, a March
2008 consultation letter from Dr. Jeffrey Gretz, Breyette’s treating
gastroenterologist, to Dr. John Miller, Breyette’s primary physician,
indicates that Breyette was complaining of abdominal pain, as well as loose
bowel movements occurring two times per day; Dr. Gretz also indicated a
probable diagnosis of IBS. (Id. at 357-58.) Breyette next saw Dr. Gretz in
June 2008, again complaining about diarrhea four to five times per day, ( id.
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at 347), but findings from a May 2008 colonoscopy and a June 2008 CT
scan of Breyette’s abdomen were normal, and a treatment note from Dr.
Miller in September 2008 stated that Breyette’s IBS was stable on her
current therapy, (id. at 348, 350, 353, 362).
The record does not reflect any further treatment until April 2010. 6
Throughout 2010, Breyette continued to complain about abdominal pain
and diarrhea, (id. at 335, 336), but the medical record evidence indicates
that Breyette’s condition was improving with increased fiber supplements
and medication, her weight was stable, and she did not have any
gastrointestinal bleeding, (id. at 336, 345). Additionally, another CT scan of
Breyette’s abdomen in October 2010 was normal. (Id. at 333.) Also in
2010, Dr. Nader Wassef performed a consultative internal medicine
examination on Breyette and provided a medical source statement
concluding only that Breyette “should have access to [a] handicap[ped]

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At the hearing, the ALJ commented on and asked questions
regarding this gap in the record. (Tr. at 108-10.) Breyette did not have an
explanation for the gap in treatment, but did not indicate that her counsel
failed to obtain treatment records for this time period. (Id.) A September
2008 letter from Dr. Gretz to Dr. Miller indicates that Breyette did not
complete labs, and that Breyette was to follow-up as needed. (Id. at 346.)
Additionally, a 2010 treatment note from Dr. Shahanaz Begum implies that
the gap in treatment was attributable to a lack of insurance. (Id. at 360.)
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bathroom.” (Id. at 299.) By 2011, treatment notes indicate that Breyette’s
condition was “[s]table with occasional bouts,” (id. at 366), and treatment
records from Dr. Gretz reveal that, with increased fiber supplements, “[s]he
has less watery bowel movements, which are somewhat more formed no
more than two times per day,” she continues to have no gastrointestinal
bleeding, and that she would follow up only on an as-needed basis, ( id. at
370).7
Significantly, the medical record evidence does not reflect complaints
from Breyette that she was experiencing incontinence. Nevertheless, at
the hearing, Breyette stated that she suffers from incontinence because, in
a previous surgery, there was damage done to her sphincter muscle, ( id. at
111, 112, 119); the ALJ specifically requested additional documentation
regarding these complaints, (id. at 121-22). Despite Breyette’s assertions
at the hearing, treatment records from Dr. George Boolukos, Breyette’s

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In her brief, Breyette contends that “[r]ecords submitted to the
Appeals Council after the ALJ’s decision show that . . . Breyette reported
[fifteen] flares per month in July 2010.” (Dkt. No. 17, Attach. 1 at 6.) A
review of the cited document, however, indicates that the physician to
whom Breyette made this complaint stated that “[t]his lady with chronic
condition of inflammatory bowel disease seems to be dependent on
Oxycodone. I doubt very much that she has [fifteen] flares per month
while she is under Gastroenterology care.” (Tr. at 18.)
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surgeon, document that, in 1993, Breyette underwent a left sigmoid
resection with open end to end anastomosis, and that there were no
complications or abnormalities during surgery. (Id. at 401-02.) Further,
colonoscopies performed in later years never indicate any abnormalities
with Breyette’s sphincter. (Id. at 353, 373-74.) This supports the ALJ’s
conclusion that “[t]he evidentiary record simply does not corroborate
[Breyette’s] allegation” of incontinence. (Id. at 95.)
Breyette, however, contends that the court in Jackson v. Astrue, No.
11-CV-6470, 2012 WL 5423708 (W.D.N.Y. Nov. 6, 2012), “found that a
claimant’s need to use a bathroom for explosive diarrhea was sufficient for
it to direct a finding of disability.” (Dkt. No. 17, Attach. 1 at 6.) As an initial
matter, this is an oversimplification of the court’s logic in Jackson. There,
the court found that the ALJ erred in assessing the claimant’s credibility
because the record demonstrated that the claimant “consistently reported
disabling symptoms of abdominal pain, nausea, vomiting, and diarrhea to
her doctors,” and that “she experienced these symptoms with a frequency
she described as disabling.” Jackson, 2012 WL 5423708, at *8-10. More
importantly, Jackson is distinguishable from this case. Unlike in Jackson,
here, as discussed above, the medical record evidence simply does not
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support or corroborate Breyette’s statements regarding the frequency,
duration, or predictability of her bathroom visits. Accordingly, Breyette’s
contention is without merit, and the ALJ’s RFC determination is legally
sound and supported by substantial evidence.
B.

Step Four Determination
Next, Breyette argues that the ALJ erred by failing to obtain VE

testimony. (Dkt. No. 17, Attach. 1 at 6.) Specifically, Breyette contends
that “[w]hile[] the ALJ found . . . that [Breyette] could return to her former
work, there is no vocational evidence that [she] would be able to do so
considering the unpredictable nature of her need to use the bathroom.”
(Id.) The Commissioner counters, and the court agrees, that the ALJ was
not obligated to obtain VE testimony. (Dkt. No. 18 at 7-9.)
Under the fourth step of the five-step analysis, “the claimant has the
burden to show an inability to return to her previous specific job and an
inability to perform her past relevant work generally.” Jasinski v. Barnhart,
341 F.3d 182, 185 (2d Cir. 2003) (emphasis omitted). While an expert “is
often called upon to explain the requirements of particular jobs, step four of
the analysis does not require that an ALJ consult an expert.” Petrie v.
Astrue, 412 F. App’x 401, 409 (2d Cir. 2011) (internal quotation marks and
10

citation omitted); see 20 C.F.R. § 416.960(b)(2) (“[A] vocational expert or
specialist may offer expert opinion testimony . . . about whether a person
with the physical and mental limitations imposed by the claimant’s medical
impairment(s) can meet the demands of the claimant’s previous work,
either as the claimant actually performed it or as generally performed in the
national economy.” (emphasis added)). A vocational expert is necessary
only if a claimant’s nonexertional impairments “significantly limit[ ] the range
of work permitted by [the claimant’s] exertional limitations to the point that
the medical-vocational guidelines did not adequately reflect [the claimant’s]
condition.” Whipple v. Astrue, 479 F. App’x 367, 371 (2d Cir. 2012); see
Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986); see also Torres v.
Astrue, No. 11-CV-05260, 2013 WL 802440, at *14-15 (E.D.N.Y. Mar. 5,
2013).
Here, as discussed above, see supra Part VI.A, Breyette failed to
establish that her need to use the bathroom was unpredictable, or that her
bathroom visits were exceptionally frequent or of long durations. Thus,
even though Breyette suffers from a nonexertional impairment, the ALJ
was not required to call a VE because Breyette did not prove that the
impairment “significantly diminish[ed her] ability to work . . . so that [she] is
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unable to perform the full range of employment indicated by the medical
vocational guidelines.” Bapp, 802 F.2d at 603 (noting that “the mere
existence of a nonexertional impairment does not automatically require the
production of a vocational expert”). Accordingly, the ALJ did not err in
finding that Breyette is capable of performing her past relevant work in the
absence of a VE’s opinion.

C.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Breyette’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.
June 5, 2014
Albany, New York

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