Dolan v. Nancy A. Berryhill, Acting Commissioner of Social Security
Filing
17
MEMORANDUM DECISION AND ORDER adopting 16 Report and Recommendations re:d 12 Motion for Judgment on the Pleadings filed by Robert Dolan; 14 Motion for Judgment on the Pleadings filed by Nancy A. Berryhill: Magistrate Judge Pitman's Report is ADOPTED in full. The Commissioner's motion for judgment on the pleadings is GRANTED. Plaintiffs motion for judgment on the pleadings is DENIED. The Clerk of Court is directed to close the motions at ECF Nos. 12 and 14, and this case. (Signed by Judge George B. Daniels on 8/21/2018) (jwh) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
ROBERT DOLAN,
Plaintiff,
MEMORANDUM DECISION
AND ORDER
-against-
17 Civ. 4202 (GBD) (I-IBP)
NANCY A. BERRYHILL,
Acting Commissioner o/Social Security,
Defendant.
------------------------------------x
GEORGE B. DANIELS, United States District Judge:
Plaintiff Robert Dolan brings this action under the Social Security Act ("SSA"), 42 U.S.C.
§§ 405(g), seeking review of a determination by the Commissioner of Social Security that he does
not qualify for disability insurance benefits.
(See Compl., ECF No. 1.)
Plaintiff and the
Commissioner both move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c). (See Pl.'s Mot., ECF No. 12; Comm'r's Mot., ECF No. 24.)
This matter was referred to Magistrate Judge Henry B. Pitman. (ECF No. 5.) Before this
Court is Magistrate Judge Pitman's July 24, 2018 Report and Recommendation ("Report," ECF No.
16), recommending that the Commissioner's motion be granted and Plaintiffs motion be denied. 1
(Id. at 60.) In his Report, Magistrate Judge Pitman advised the parties that failure to file timely
objections to the Report would constitute a waiver of those objections on appeal. (Id. at 60-61 ); see
also 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b). No objections have been filed.
A court may accept, reject, or modify, in whole or in part, the findings set forth in a report and
recommendation.
1
28 lJ.S.C. § 636(b)(l)(C).
Where no party files objections to a report and
The relevant procedural and factual background is set f01th in detail in the Report and is incorporated by
reference herein.
recommendation, as here, the court may adopt it if "there is no clear error on the face of the record."
Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250,253 (S.D.N.Y. 2005) (quoting Nelson v. Smith,
618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). Clear error is present only when "upon review of the
entire record, [the court is] left with the definite and firm conviction that a mistake has been
committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted).
Having reviewed the Report for clear error and finding none, this Court ADOPTS the Report
in full. The Commissioner's cross-motion for judgment on the pleadings is GRANTED. Plaintiffs
motion for judgment on the pleadings is DENIED.
I.
LEGAL ST AND ARD
This Court has the "power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing." 42 U.S.C. § 405(g). This Court may set aside a
decision by the Commissioner only if it is not supported by substantial evidence or if it is based upon
legal error. 42 U.S.C. § 405(g); Selian v. Astrue, 708 F.3d 409,417 (2d Cir. 2013); Talavera v. Astrue,
697 F.3d 145, 151 (2d Cir. 2012); Burgess v. Astrue, 537 F. 3d 117, 127 (2d Cir. 2008). "Substantial
evidence means more than a mere scintilla." Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)
(citation and internal quotation marks omitted). Under the substantial evidence standard, facts found
by an administrative law judge ("ALJ") can be rejected "only if a reasonable factfinder would have
to conclude otherwise." Brault v. Soc. Sec. Admin., Comm 'r, 683 F.3d 443, 448 (2d Cir. 2012)
(citation omitted).
Under the SSA, an individual is considered "disabled" for purposes of obtaining benefits when
she 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
2
expected
to
last
for
a
continuous
period
of
not
less
than
12
months."
42 U.S.C. § 423(d)(l)(A). In addition, the individual's "physical or mental impairments [must be] of
such severity that [sJhe ... cannot, considering [her] age, education, and work experience, engage in
any ... kind of substantial gainful work which exists in the national economy." Id § 423(d)(2)(A).
The Commissioner's regulations outline a five-step sequential framework to guide the
presiding
ALJ
in
evaluating
claims
for
benefits
under
the
SSA.
See
20
C.F.R.
§ 416. 920. The Second Circuit has described the first four steps of the analysis as follows:
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. Where the claimant is not, the Commissioner next
considers whether the claimant has a "severe impairment" that significantly limits her
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 that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1.
Assuming the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant's severe impairment, she has the residual functional
capacity ["RFC"] to perform her past work. 2
Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted). The claimant bears the
burden of proof at each of these steps of the analysis. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir.
1999).
If he can demonstrate that he is disabled and that his severe, medically determinable
impairments prevent him from performing his past work, "the burden shifts to the Commissioner to
show there is other gainful work in the national economy which the claimant could perform." Butts
v. Barnhart, 388 F.3d 377,381 (2d Cir. 2004) (citation omitted).
2
An RFC •'is an assessment of the individual's ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis[]" despite her impairments. SSR 96-8p, 1996 WL
374184, at * l (July 2, 1996). In determining an individual's RFC, the ALJ is required to "'identify the
individual's functional limitations or restrictions and assess ... her work-related abilities on a function-byfunction basis."' Cichocki v. As true, 729 F.3d 172, 176 (2d Cir. 2013) ( quoting SSR 96-8p, 1996 WL 3 74184,
at * l ).
3
II. THE COMMISSIONER'S DENIAL OF BENEFITS IS SUPPORTED BY
SUBSTANTIAL EVIDENCE
Plaintiff contends that the ALJ committed legal error in step four of the sequential analysis by
(1) failing to properly weigh the evidence in determining Plaintiff's RFC and (2) improperly relying
on Vocational Expert ("VE'') Melissa J. Fass-Karlin's testimony in determining that Plaintiff could
perform his past relevant work as either a police sergeant or a narcotics detective. (Pl.' s Mot. at
5~6.) Plaintiff's arguments lack merit.
A. PlaintifPs RFC
Plaintiff argues that the Commissioner failed to properly weigh the evidence in determining
his RFC because the Commissioner improperly considered (1) his daily activities, (2) his ability to
return to work in August 2015, and (3) the conservative nature of his medical treatment. Plaintiff
also argues that the ALJ' s RFC determination is not supported by substantial evidence. (Id.)
The Report properly concluded that the ALJ did not consider Plaintiff's ability to perform
daily activities in determining that Plaintiff had an RFC to perform light work, and that even if he
did, the ALJ would have been permitted to do so since daily activities is one of the many factors that
may be considered in evaluating RFC.
(Report at 47-48.) As for Plaintiff's second argument,
Plaintiff cites no legal authority to support his argument that the ALJ improperly considered his ability
to return to work as a property clerk for the City of Yonkers in August 2015, following his back and
knee injury, in determining his RFC. It is well established that an ALJ may consider a claimant's
ability to work despite allegations of disabling limitations in determining his RFC. See 20 C.F.R. §
404.1529( c )( 4 ). Thus, the ALJ properly considered the fact that Plaintiff returned to work as a
property clerk for two months, and that he left this position due to the approval of his application for
state disability benefits, and not due to any physical health impediments. (Report at 49.) Plaintiff
also cites no legal authority to support his further argument that the ALJ improperly considered the
4
conservative nature of his medical treatment in deciding his RFC.
A claimant's conservative
treatment regimen is a relevant factor in determining RFC. (See id. at 49-50 (collecting cases).)
Thus, the ALJ was entitled to consider the nature and extent of Plaintiffs medical treatment.
Plaintiff also argues that the ALJ's conclusion that Plaintiff had the RFC to perform "light
work" is unsubstantiated because the ALJ allegedly considered the medical opinion and findings of
only one doctor, Dr. Leonard Simpson, a state appointed medical consultant, in reaching his
conclusion. (Pl. 's Mot. at 5-6.) However, it is well established that a consulting physician's opinion
can constitute substantial evidence supporting an ALJ' s decision. (Report at 51 (collecting cases).)
Furthermore, the record demonstrates that the ALJ in fact considered the "the opinions and clinical
findings of multiple consultative physicians from approximately May 2014 through approximately
February 2015, that demonstrate that Dolan was capable of the exertional demands of light level work
through that period of time." (Id. at 52.) The ALJ also considered the clinical findings and diagnostic
testing by Plaintiff's treating physicians in determining that Plaintiff was capable of performing light
work. (See id. at 53-54.) Thus, the ALJ's determination that Plaintiff had the RFC to do light work
is supported by substantial evidence.
B. Plaintiff's Past Relevant Work
Plaintiff also argues that the ALJ improperly relied on the testimony of VE Fass-Karlin in
determining that Plaintiff had the RFC to perform his past relevant work because the hypothetical that
he posed to the expert in reaching such a conclusion did not accurately reflect the limitations and
capabilities of Plaintiff. (Pl.' s Mot. at 4-5.) However, as the Report correctly notes, Plaintiff's
argument is belied by the hearing transcript. VE Fass-Karlin opined that a person of Plaintiff's age,
education, and work history, who had an RFC to perform light work and could only occasionally ( 1)
climb ramps, stairs, ladders, ropes, and scaffolds, and (2) balance, stop, kneel, crouch, and crawl,
5
could perform Plaintiffs past work as a police sergeant or narcotics detective. (See Report at 57.)
This hypothetical accurately captured Plaintiffs RFC. (See id. at 57~58.) As a result, the ALJ's
finding that Plaintiff could perform his past relevant work is supported by substantial evidence, and
the ALJ did not commit legal error in analyzing step four of the sequential analysis.
III. CONCLUSION
Magistrate Judge Pitman's Report is ADOPTED in full. The Commissioner's motion for
judgment on the pleadings is GRANTED.
Plaintiffs motion for judgment on the pleadings is
DENIED.
The Clerk of Court is directed to close the motions at ECF Nos. 12 and 14, and this case.
Dated: New York, New York
August 21, 2018
SO ORDERED.
, g _])OYll~
B. DANIELS
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?