Stock v. Astrue

Filing 18

DECISION AND ORDER GRANTING Defendant's 9 Motion for Judgment on the Pleadings; DENYING Plaintiff's 11 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 3/28/2013. - CLERK TO FOLLOW UP - (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JULIE A. STOCK,
Plaintiff,
v.

DECISION AND ORDER
11-CV-903S

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff, Julie Stock, challenges an Administrative Law Judge’s (“ALJ”)

determination that she is not disabled within the meaning of the Social Security Act (“the
Act”). Stock alleges that she has been disabled since June 1, 2008. She alleges that pain
and fatigue from fibromyalgia, arthritis, and osteoarthritis render her unable to work. She
therefore asserts that she is entitled to benefits under the Act.
2.

Stock, 39 years old at the time, filed an application for disability insurance

benefits under Title II of the Act on September 3, 2009. The Commissioner of Social
Security (“Commissioner”) denied her application, and as result, she requested an
administrative hearing. She received that hearing before ALJ Robert T. Harvey on May 12,
2011. The ALJ considered the case de novo, and on May 24, 2011, he issued a decision
denying Stock’s application for benefits. Stock filed a request for review with the Appeals
Council, but the Council denied that request, prompting her to file the current civil action
on October 26, 2011, challenging Defendant’s final decision.1
3.

On April 10, 2012, the Commissioner and Stock both filed motions for

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The ALJ’s May 24, 2011 decision becam e the Com m issioner’s final decision in this case when
the Appeals Council denied Plaintiff’s request for review.

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judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Briefing on the motions concluded May 29, 2012, at which time this Court took the motions
under advisement without oral argument. For the reasons set forth below, the
Commissioner’s motion is granted and Stock’s motion is denied.
4.

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 be reversed only if it is not supported by substantial evidence or there
has been a legal error. See 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 that which amounts to
“more than a mere scintilla”; it 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, 28 L. Ed. 2d 842 (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).
5.

“To determine on appeal whether the ALJ's findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams on Behalf of 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,
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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).
6.

The Commissioner has established a five-step sequential evaluation process

to determine whether an individual is disabled as defined under the Social Security Act.
See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291,
96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a
claimant is disabled.
7.

This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe impairment" which significantly
limits his 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 which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering vocational
factors such as age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a "listed" impairment is unable
to perform substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520. The claimant has the
burden of proof as to the first four steps, but the Commissioner has the burden of proof on
the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d
582, 584 (2d Cir. 1984).

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8.

In this case, the ALJ made the following findings with regard to the five-step

process set forth above: (1) Stock has not engaged in substantial gainful activity since her
alleged onset date (R. 20);2 (2) Stock suffers from two severe impairments, namely
fibromyalgia and irritable bowl syndrome (id.); (3) Stock does not have an impairment or
combination of impairments that meets or medically equals the criteria necessary for
finding a disabling impairment under the regulations (id.); (4) Stock has past relevant work
that she is unable to perform because of the presence of dangerous machinery (R. 26);
and (5) she retains the residual functional capacity (“RFC”) to perform sedentary work.
Specifically, the ALJ found that she can lift/carry ten pounds, stand and/or walk for two
hours and sit for six hours in an eight-hour workday. (R. 21.) She is limited, however, in that
she cannot work in areas with heavy or dangerous machinery, or climb ropes, ladders, or
scaffolds. (Id.) Further, she has occasional limitations in bending, climbing, stooping,
squatting, kneeing, crawling, and in reach, handling, pulling and pushing. (Id.) She cannot
be exposed to cold or heat. (Id.) Ultimately, the ALJ concluded that Stock was not under
a disability as defined by the Act from her onset date through the date of the decision. (R.
27.)
9.

Stock raises three challenges to the ALJ's decision: First, she argues that

the ALJ improperly discredited the opinion of her treating physician. Second, she contends
that the ALJ failed to weigh her non-exertional limitations when assessing her RFC. Last,
she maintains that the ALJ erred by failing to consult a vocational expert. Each argument
will be discussed, and rejected, in turn.
10.

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ALJ Harvey assigned “some, but not great weight” to the opinion of Stock’s

Citations to the underlying adm inistrative record are designated “R.”

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treating physician, Dr. John Stubenbord. (R. 23.) Stock contends the ALJ should have
assigned Dr. Stubenbord’s opinion controlling weight under the “treating physician’s rule.”3
Under this rule, the ALJ must give controlling weight to a treating physician's opinion when
that opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] record.” 20
C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003);
Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
11.

As an initial matter, Dr. Stubenbord’s opinion, even if assigned controlling

weight, would not necessarily compel a conclusion that Stock is disabled. In fact, Dr.
Stubenbord twice evaluated Stock’s RFC, and his findings are not dissimilar to those of the
ALJ. The ALJ, for instance, found that Stock could lift/carry ten pounds, stand and/or walk
for two hours and sit for six hours in an eight-hour workday. In October of 2009, Dr.
Stubenbord similarly found that Stock could carry a maximum weight of ten pounds, stand
and walk for less than two hours per day and sit for six hours per day. Like the ALJ, he also
noted limitations in pushing and pulling. This is largely consistent with sedentary work as
defined by the Act:
Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally
and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). A subsequent ruling has clarified that sedentary work generally

3

“The ‘treating physician’s rule’ is a series of regulations set forth by the Com m issioner in 20
C.F.R. § 404.1527 detailing the weight to be accorded a treating physician’s opinion.” de Rom an v.
Barnhart, No. 03-Civ.0075(RCC)(AJP), 2003 W L 21511160, at *9 (S.D.N.Y. July 2, 2003).

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involves periods of standing or walking for a total of two hours in an eight hour work day,
with sitting up to a total of approximately six hours in a similar period. SSR 83–10.
12.

To be sure, there are some differences between the ALJ’s RFC and the

October 2009 assessment of Dr. Stubenbord. In his assessment, for example, Dr.
Stubenbord found that Stock exhibited symptoms of depression “secondary to fatigue” and
had pain throughout the day. But these are relatively minor deviations, and do not compel
a finding of disabled.
13.

A more significant difference, however, arises in Dr. Stubenbord’s May of

2011 RFC assessment, which is similar to his earlier assessment except that Dr.
Stubenbord noted that Stock required half an hour to an hour of time to lie down during the
course of an eight-hour day. The ALJ assigned this specific opinion “little weight.” (R. 23.)
Stock objects to the determination, but this Court finds no error in this aspect of the ALJ’s
decision.
14.

Initially, it is not clear that, as Stock argues, her required rest period would

preclude work. See Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980) (affirming a finding
of “not disabled” despite need for half-hour afternoon rest). But even if it would, the ALJ’s
assignment of little weight to that opinion was not in error, as it conflicts with other evidence
on record. Treatment notes from Dr. Robert Kaprove, a rheumatologist, indicate that
Stock’s fibromyalgia had improved (R. 318), and later that it was only “mildly active” (R.
338–39). Other notes indicate that she exercised four times a week with yoga and step
aerobics. (R. 362.)4 Her daily activities also suggest that Stock could perform a sedentary
job. She cleans, cooks three times per day, washes dishes, mops, and generally cares for
her family. (R. 170–77.) Treatment notes reflect an unlimited capacity to perform daily
4

This conflicts with Stock’s testim ony at the hearing. There she stated that she perform ed step
aerobics only once, for three m inutes, before quitting because it caused too m uch fatigue. (R. 59–60.)

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activities. (R. 318.) As such, this is not case where there is simply a lack of objective tests
which could conclusively confirm her disease; rather, her own testimony and reports to her
physicians serve as evidence on which the ALJ could rely in rejecting her application for
benefits.
15.

In the end, Dr. Stubenbord’s RFC assessment differs with the ALJ’s on only

two points: the number of hours she can stand and the required rest period. Given the
conflicting evidence listed above it cannot be said that the ALJ’s assessment, which
assigns Stock only slightly more capabilities than Dr. Stubenbord’s, was not supported by
substantial evidence.
16.

In her next challenge, Stock maintains that the ALJ did not properly account

for fatigue, joint pain, and tenderness from her fibromyalgia when assessing her RFC. This
Court cannot agree.
First, the RFC assigns Stock the ability to perform sedentary work, which as
described above, involves only limited lifting and up to six hours of sitting. It is the least
fatigue-inducing level work available. Stock asserts that the ALJ “failed to explore [her]
limitations by fatigue” and she points to various parts of the record that indicate she suffers
from fatigue and lethargy. But there is no indication that these reports were ignored by the
ALJ. To the contrary, the ALJ explicitly notes that in rendering his RFC assessment he
considered all the symptoms. Moreover, he notes that her “medically determinable
impairments could reasonably be expected to cause the alleged symptoms.” (R. 22.) He
even gave “the claimant the benefit of the doubt in assigning a sedentary residual
functional capacity.” (R. 26.) The ALJ therefore properly accounted for her fatigue in
rendering the RFC and, considering the evidence as a whole, this Court finds that it is
supported by substantial evidence.
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17.

Stock also argues that the ALJ should have explored Stock’s mental

limitations and rendered a separate mental RFC. There is, however, a dearth of evidence
in the record establishing any significant mental limitation. Stock points to her testimony
that sometimes she has trouble “think[ing]’ straight” and Dr. Stubenbord’s single notation
in October 2009 that she has “problems concentrating.” (R. 271.) But this is insufficient
to diminish her RFC or require a mental RFC. See SSR 85-16 (limitation must impose a
“significant restriction” to require a RFC). There is no indication that her problem in thinking
or concentration result in limitations in “understanding, remembering, and carrying out
instructions, and in responding appropriately to supervision, co-workers, and work
pressures in a work setting.” Id. The ALJ, therefore, did not err in failing to include a mental
RFC.
18.

Last, Stock argues that the ALJ’s failure to consult a vocational expert

constitutes reversible error. She argues that her additional “nonexertional” limitations
preclude the evaluation of her claim solely pursuant to the medical-vocational guidelines.
19.

As described by the Supreme Court, the purpose of the medical-vocational

guidelines is “[t]o improve both the uniformity and efficiency of th[e disability] determination.
Heckler v. Campbell, 461 U.S. 458, 461, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
The Court went on to explain:
These guidelines relieve the Secretary of the need to rely on
vocational experts by establishing through rulemaking the
types and numbers of jobs that exist in the national economy.
They consist of a matrix of the four factors identified by
Congress—physical ability, age, education, and work
experience—and set forth rules that identify whether jobs
requiring specific combinations of these factors exist in
significant numbers in the national economy. Where a
claimant's qualifications correspond to the job requirements
identified by a rule, the guidelines direct a conclusion as to
whether work exists that the claimant could perform. If such
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work exists, the claimant is not considered disabled.
Id.

But when a claimant suffers from additional “nonexertional” impairments, the

guidelines, or “grid” rules may not be controlling because they do not account for these
additional limitations. Indeed, the Social Security regulations provide that use of the grids
may not be appropriate where “an individual has an impairment or combination of
impairments resulting in both strength limitations and nonexertional limitations.” 20 C.F.R.,
Pt. 404, Subpt. P, App. 2 § 200.00(e)(2).
20.

In this case, ALJ Harvey found that Plaintiff’s additional limitations have little

effect on her RFC. He therefore utilized the grids, and given Stock’s physical ability, age,
education, and work experience, they directed a conclusion of “not disabled.” See 20
C.F.R. Pt. 404, Subpt. P, App 2, Rule 201.27.
Pointing to the non-exertional limitation that ALJ Harvey identified as “handle (gross
manipulation)”, Stock argues that the ALJ’s use of the grids was inappropriate and that a
vocational expert was necessary. This Court disagrees.
21.

“Application of the grid guidelines and the necessity for expert testimony must

be determined on a case-by-case basis.” The use of a vocational expert is only necessary
where the claimant’s limitations “significantly limit the range of work permitted by h[er]
exertional limitations.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986). Here, the ALJ
properly concluded that this gross-manipulation limitation, and the other limitations, he
identified in his making his RFC, did not significantly limit her range of work so as to require
a vocational expert.
22.

Stock argues that because most sedentary jobs require the ability to “handle,”

or “gross manipulation,” this limitation must be significant, rendering the grids inapplicable.
But even accepting Stock’s assertion that gross manipulation is necessary for many
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sedentary jobs, this does not mean any limitation in this area, no matter what degree, is
ipso facto significant. The ALJ found that she has only “occasional limitations” in gross
manipulation. He did not find, and the evidence does not support a finding, that she has
a more severe limitation. Instead, like the rest of Stock’s appeal, there is simply not enough
evidence indicating a significant disability that would allow this Court to determine that the
ALJ erred. Although she testified that she requires help from her husband when cutting
foods for an extended period (R. 56), and her hands and wrists can “tire” and become
“achy” (R. 242), locking up “once or twice a month” (R. 42), this Court cannot conclude that
the ALJ’s finding – that these relatively minor limitations do not significantly diminish the
full range of sedentary work that she can perform – was in error.
This challenge is therefore rejected.
****
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 9) is GRANTED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No.11) is
DENIED.
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
Dated: March 28, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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