Schifano v. Commissioner of Social Security
DECISION AND ORDER GRANTING Defendant's 6 Motion for Judgment on the Pleadings; DENYING Plaintiff's 9 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 5/25/2013. -CLERK TO FOLLOW UP - (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Plaintiff challenges an Administrative Law Judge’s (“ALJ”) decision, dated
September 21, 2010, wherein the ALJ determined that Plaintiff was not disabled under
section 216(i) and 223(d) of the Social Security Act. Plaintiff protectively filed an application
for disability insurance benefits alleging that he became disabled beginning January 31,
2007. He thereafter modified his claim for disability to a closed period from January 31,
2007 to October 20, 2009. Plaintiff now contends that the ALJ’s determination is not based
upon substantial evidence, and reversal is warranted.
On August 31, 2010, the ALJ held a hearing at which Plaintiff and a
vocational expert testified. After consideration of the evidence, including Plaintiff’s medical
records, the ALJ denied Plaintiff’s application for disability benefits. The Appeals Council
denied Plaintiff’s request for review on March 23, 2012, after receipt of additional
evidence.1 Plaintiff filed the current civil action challenging Defendant’s final decision in
this Court on May 23, 2012.
The additional evidence is a single em ployer letter stating Plaintiff’s last day of work in 2007.
This letter was discussed at Plaintiff’s hearing and requested by the ALJ. (R. 32-33, 147-49.)
Defendant filed a Motion for Judgment on the Pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure on November 29, 2012. Plaintiff also moved
for such judgment in his favor on December 6, 2012. This Court finds the matter fully
briefed and oral argument unnecessary. Judgment on the pleadings is appropriate where
material facts are undisputed and where a judgment on the merits is possible based on
consideration of the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842
F.2d 639, 642 (2d Cir. 1988).
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 and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).
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,” and 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), cert denied, 459 U.S. 1212 (1983).
“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, and will 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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
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.
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) (quotations in original);
see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
Although the claimant has the burden of proof as to the first four steps, 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). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his physical ability, age, education and work
experience. Second, the Commissioner must determine whether jobs exist in the national
economy that a person having the claimant's qualifications could perform. See 42 U.S.C.
§ 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.
Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
In this case, the ALJ made the following findings with regard to the five-step
process set forth above: (1) Plaintiff did not engage in substantial gainful activity during the
period of alleged disability (R. 16);2 (2) Plaintiff had the following severe impairments:
“discogenic lumbar spine; status post intradiscal electrothermic therapy; and obesity,” as
well as non-severe impairments such as migraines (R. 16-17); (3) neither these
impairments nor any combination of these impairments met or medically equaled a
recognized disabling impairment under the regulations (R. 17); (4) Plaintiff retained the
residual functional capacity (“RFC”) to perform light work with certain limitations (R. 17-21);
and (5) although Plaintiff could not perform any of his past relevant work, he retained the
ability to perform other jobs, such as mailroom clerk or cashier. (R. 21-22.)
Citations to the adm inistrative record will be designated as “R.”
Plaintiff first contends that remand is required because the ALJ erred in
determining that his migraine headaches were a non-severe impairment. (Pl’s Mem of Law
at 14-15, Docket No. 9.) An impairment is severe if it causes more than a de minimus
limitation to a claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §
416.920(c); Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). Plaintiff argues that the
fact that he “had migraines during the closed period that occurred at least twice a week,
lasting an hour, and required him to lie down and sleep afterwards,” and received treatment
for the same, is more than a de minimus limitation. (Pl’s Mem of Law at 14; R. 37.)
Plaintiff’s medical records, however, establish that the migraine headaches were more
limited in frequency. Although the alleged period of disability was from January 2007 to
October 2009, he received treatment for his headaches in an approximately one-month
period from mid-December 2007 to the beginning of January 2008. (R. 166-172.) Even
at that time, Plaintiff was reporting “an overall improvement with a decrease in headaches.”
(R. 167.) By October 2008, Plaintiff was reporting that his headaches were “not really a
problem” due to medication. (R. 339.) Accordingly, there is substantial evidence in the
record to support the ALJ’s determination that Plaintiff’s migraines, considered alone, were
not a durational impairment having more than a minimal impact on his ability to work during
the alleged period of disability. (R. 17.)
Moreover, any error in the ALJ’s finding that the migraines were a non-severe
impairment would be harmless. Where a finding of a severe impairment is improperly
omitted, the error may be deemed harmless where the disability analysis continues and
the ALJ considers the omitted impairment in the RFC determination. Reices-Colon v.
Astrue, – Fed. Appx. –, 2013 WL 1831669, *1 (2d Cir. May 2, 2013) (summary order); Ives
v. Colvin, No. 5:12-cv-471, 2013 WL 2120273, *2 (N.D.N.Y. May 15, 2013); see Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010). Here, the ALJ considered all symptoms, both
severe and non-severe, in reaching the RFC determination. (R. 17, 20.)
Plaintiff next contends that the ALJ failed to sufficiently develop the record
by recontacting one of his treating physicians, Dr. Simmons. (Pl’s Mem of Law at 16-18.)
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ
generally has an affirmative obligation to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Secretary of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982)). This duty exists even where, as here, a claimant
is represented by counsel. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Johnson v.
Astrue, 811 F. Supp. 2d 618, 630 (E.D.N.Y. 2011); see 20 C.F.R. 404.1512(d) (“every
reasonable effort to help you get medical reports from your own medical sources” will be
In his decision, the ALJ found that Dr. Simmons’ stated opinion that Plaintiff was
totally disabled from any work during the alleged period of disability was not entitled to
controlling weight because that decision was reserved to the Commissioner. (R. 20.)
Further, this opinion was not entitled to much weight because it was inconsistent with Dr.
Simmons’ own examination findings, as well as additional objective evidence in the record.
(R. 20-21.) Plaintiff argues that the ALJ erred in failing to “recontact Dr. Simmons to find
out why he indicated that the Plaintiff was totally disabled for all work during the closed
period, and to clarify the discrepancies in prior disability determinations.” (Pl’s Mem of Law
An ALJ is required to recontact a treating physician or other medical source where
the evidence is inadequate for the ALJ to determine whether a claimant is disabled. Perez,
77 F.3d at 47 (citing 20 C.F.R. § 404.1512(e)); Rockwood v. Astrue, 614 F. Supp. 2d 252,
279 (N.D.N.Y. 2009) (an ambiguous or incomplete record triggers a duty to develop the
record). However, “[t]he fact that the record does not support the treating physician's
opinion does not mean that there are administrative gaps in the record triggering a duty to
recontact.” Cichocki v. Astrue, No. 11-CV-755S, 2012 WL 3096428, *6 (W.D.N.Y. July 30,
2012); see Rebull v. Massanari, 240 F. Supp. 2d 265, 272 (S.D.N.Y. 2009). Here there is
no allegation that the ALJ did not have a complete record of Plaintiff’s treatment with Dr.
Simmons, and the Court finds no gaps in the record. Further, there is substantial evidence
in the record to support the ALJ’s determination that Dr. Simmons’ August 2010 opinion
that Plaintiff was “totally disabled with regards to all work” throughout the almost three year
period of alleged disability conflicts with this physician’s own reports from that period. (R.
20-21, 389.) These reports reflect a total disability from Plaintiff’s prior job as a truck driver,
a conclusion with which the ALJ agreed, but only a temporary and limited disability with
respect to all work, which appears to have resolved by February 2008. (R. 21, 334, 337,
377.) Resolution of this and any other inconsistencies in the record is an issue for the ALJ
to resolve, inasmuch as “a credibility determination, in essence, would be rendered
nugatory if, whenever a treating physician's stated opinion is found to be unsupported by
the record, the ALJ were required to summon that physician to conform his opinion to the
evidence.” Rebull, 240 F. Supp. 2d at 273.
For the foregoing reasons, the Court concludes that the ALJ’s determination
that Plaintiff was not disabled within the meaning of the Social Security Act is supported
by substantial evidence. Plaintiff’s Motion for Judgment on the Pleadings is denied, and
Defendant’s motion is granted.
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 6) is GRANTED;
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 9) is
FURTHER, that the Clerk of the Court is directed to take the necessary steps to
close this case.
Dated: May 25, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court
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