Dunning v. Commissioner of Social Security
Filing
18
DECISION AND ORDER GRANTING Defendant's 8 Motion for Judgment on the Pleadings; DENYING Plaintiff's 6 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to take the necessary steps to amend the caption of the case to reflect the automatic substitution of Carolyn W. Colvin as the Acting Commissioner of Social Security and close this case. Signed by William M. Skretny, Chief Judge on 6/8/2013. - CLERK TO FOLLOW UP - (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JANE DUNNING,
Plaintiff,
v.
DECISION AND ORDER
12-CV-534S
CAROLYN W. COLVIN
Acting Commissioner of Social Security,
Defendant.
1.
Plaintiff Jane Dunning challenges the determination of Defendant1 that she
was not disabled under section 216(i) and 223(d) of the Social Security Act. Plaintiff filed
an application for disability insurance benefits on June 5, 2009, alleging that she became
disabled beginning January 1, 2008. Plaintiff seeks review of Defendant’s final decision
pursuant to 42 U.S.C. § 405(g).
2.
Plaintiff’s application was initially denied on September 15, 2009. Upon her
request, a hearing was held before an Administrative Law Judge on January 10, 2011, at
which Plaintiff testified. After consideration of the evidence, including Plaintiff’s medical
records, the ALJ denied Plaintiff’s application for disability benefits in a decision dated
February 4, 2011. The Appeals Council denied Plaintiff’s request for review on May 2,
2012, after receipt of additional evidence. Plaintiff filed the current civil action on June 7,
2012.
1
Although this action was com m enced against Com m issioner Michael Astrue, the parties agree
that on February 14, 2013, Carolyn W . Colvin becam e the Acting Com m issioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), a public officer’s successor is autom atically substituted
as a party.
1
3.
Plaintiff filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure on January 25, 2013. Defendant also moved for
such judgment in her favor on the same date. 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).
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 and 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, 44 (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).
5.
“To determine on appeal whether the [Commisioner’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 findings must be sustained “even where substantial evidence may support
the plaintiff's position and despite that the court's independent analysis of the evidence
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may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992); see Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert denied,
459 U.S. 1212 (1983).
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.
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) (quotations in original);
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see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
8.
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).
9.
In this case, the ALJ made the following findings with regard to the five-step
process set forth above: (1) Plaintiff had not engaged in substantial gainful activity since
January 1, 2008, the alleged onset date of disability (R. 14);2 (2) Plaintiff had a severe
impairment of a back disorder, and several non-severe impairments, including high blood
pressure and depression (R. 14-15); (3) neither these impairments nor any combination
of these impairments met or medically equaled a recognized disabling impairment under
the regulations (R. 15); (4) Plaintiff retained the residual functional capacity (“RFC”) to
perform a full range of light work (R. 15-20); and (5) Plaintiff was capable of performing her
past relevant work as a customer service representative. (R. 20.)
10.
Plaintiff, relying on Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999), first contends
that the Appeals Council erred in failing to state good reasons for not affording controlling
weight to the opinion of Plaintiff’s treating psychiatrist, whose reports were submitted after
2
Citations to the adm inistrative record will be designated as “R.”
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the ALJ rendered her decision in this matter. (Pl’s Mem of Law at 10-11, Docket No. 7; R.
4.) Initially, although the Appeals Council made this additional evidence part of the record,
it denied Plaintiff’s request for review. (R. 1-4); see Snell, 177 F.3d at 132 (reviewing
Appeals Council decision after it sua sponte reconsidered and reversed the ALJ
determination in the claimant’s favor based on its own findings). “SSA regulations provide
that, if the Appeals Council grants review of a claim, then the decision that the Council
issues is the Commissioner’s final decision. But if, as here, the Council denies the request
for review, the ALJ’s opinion becomes the final decision.” Sims v. Apfel, 530 U.S. 103, 1067, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000); Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996).
In the instant case, it is the ALJ’s determination that is the final decision of the
Commissioner and therefore reviewable pursuant to 42 U.S.C. § 405(g); DiBlasi v. Comm’r
of Social Security, 660 F. Supp. 2d 401, 406 (N.D.N.Y. 2009). The new evidence
submitted to the Appeals Council nonetheless becomes part of the administrative record
to be considered by this Court in determining whether the ALJ’s determination is supported
by substantial evidence. Perez, 77 F.3d at 46; Sobolewski v. Apfel, 985 F. Supp. 300, 311
(E.D.N.Y. 1997).
Plaintiff argues that this new evidence, specifically her medical records from treating
psychiatrist Dr. Syed S. Jaffri, precludes reliance on a state agency medical expert’s
opinion that Plaintiff could perform light work. (Pl’s Mem of Law at 11; R. 20, 245.) The
ALJ gave great weight to the expert’s opinion in part because there was “no medical report
which is inconsistent.” (R. 20, 210-211, 245.) Plaintiff argues that the new records from
the treating psychiatrist are inconsistent and therefore undermine this conclusion. (Pl’s
Mem of Law at 11; R. 20, 245, 294-301.) This Court disagrees. Although Dr. Jaffri
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summarily states in his January 2011 report that Plaintiff “remains at present totally
disabled for any competitive gainful employment,” there is nothing in his own findings and
observations to support that claim. (R. 296.)
Initially, in Dr. Jaffri’s December 2010 examination report, issued barely a month
prior, there is no indication of any specific impairment affecting Plaintiff’s ability to work. (R.
299-301.) Instead, Dr. Jaffri notes only “[m]ild to moderate anxiety,” with Plaintiff’s
“[c]ognitive function, judgment, insight and ability to comprehend risks, benefits of
medications and importance of compliance with treatment remain[ing] intact.” (R. 300.)
Further, the finding of total disability is also not continued in the February or March 2011
evaluation reports. (R. 294-95.) Instead, Dr. Jaffri reports progressive improvement in
symptoms after each of these examinations. (Id.)
Accordingly, the new evidence
contradicts neither the ALJ’s assessment of Plaintiff’s alleged depression in accordance
with the functional areas stated in 20 C.F.R. Part 404, subpt. P, appx. 1, nor the
determination of the state agency medical expert that Plaintiff could perform light work. See
20 C.F.R. § 404.1509 (an impairment must have lasted or be expected to last for a
continuous period of 12 months).
Moreover, even if the ALJ had afforded undue weight to the state agency medical
expert’s opinion, remand would not be warranted because “application of the correct legal
standard could lead to only conclusion.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.
2010); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). The determination that
Plaintiff could perform light work was correctly found by the ALJ to be consistent with those
treating physician records submitted after the state agency medical expert’s report was
rendered. (R. 20, 261-293. ) The ALJ noted the references to low back and hip pain by
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treating physicians, as well as degenerative joint changes, but also correctly recognized
that Plaintiff’s gait was consistently found to be normal for her age and that conservative
treatment was generally recommended. (R. 18-20, 210-11, 217-18, 220-21, 224-25, 262,
280, 281-82, 283, 285-86.) These records do not reflect any limitation in Plaintiff’s
activities, instead exercise was often recommended, and Plaintiff’s treating neurologist
even noted in 2010 that she did “not appear to be in acute discomfort.” (R. 279-80; see R.
19, 261-264, 281-286.)
11.
Contrary to Plaintiff’s further argument, the ALJ’s credibility determination is
supported by substantial evidence, Aponte v. Sec’y, Dep’t of Health and Human Servs.,
728 F.2d 588, 591 (2d Cir. 1984), and the record is sufficient for the Court “to glean the
rationale of the ALJ’s decision.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
As highlighted by the ALJ, Plaintiff testified that, among other activities, she could care for
herself, prepare meals, perform a variety of household tasks, and socialize with friends by
phone or in person. (R. 16-17, 37-38.) Further, Plaintiff spends most of her day alternating
between sitting and walking approximately 150 feet at a time. (R. 16-18; see R. 35 (Plaintiff
testified that she was “always walking around”).) The ALJ properly noted that she retained
the ability to do all this without taking pain medication, thereby calling into question the
purported debilitating effect of her pain. (R. 20.)
12.
The Court finds Plaintiff’s final argument without merit as well. Plaintiff
argues that the ALJ failed to find her osteoarthritis in her hips and right knee injury to be
a severe impairment. (Pl’s Mem of Law at 19–21.) Initially, as Defendant notes, even if the
ALJ did so err, such error may be deemed harmless where the disability analysis
continues and the ALJ considers the omitted impairment in the RFC determination.
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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, 595 F.3d at 410. Contrary to Plaintiff’s further argument, the ALJ did
consider the evidence of Plaintiff’s problems with her right knee and hips in the RFC
assessment. The ALJ specifically noted that Plaintiff was diagnosed with arthritis in her
knee in May 2008, and further noted that the recommended treatment options included
nonimpact exercise and over the counter analgesic or anti-inflammatory medication. (R.
18, 192-93.) At that time Plaintiff had a “reasonable stance and gait,” and the ALJ further
highlighted that Plaintiff was consistently found to walk with a normal gait thereafter. (R.
18-20, 192.)
Similarly, the ALJ considered the evidence of Plaintiff’s hip pain. Notably, the
evaluation from Plaintiff’s treating neurologist, highlighted by the ALJ, indicates that the hip
and low back pain were related, and there is no dispute that the ALJ found Plaintiff’s “back
disorder” to be a severe impairment. (R. 14, 279.) Further, even where Plaintiff’s records
reflect degenerative changes or increased pain with respect to her back or legs, as noted
above, the recommended treatment continued to include regular exercise without
restriction on movement. (R. 18-20, 210-11, 217-18, 224-25, 281-82, 285-86.) There is
therefore substantial evidence in the record to support the ALJ’s determination that Plaintiff
could perform her previous relevant work, and remand is not warranted.
13.
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.
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IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 8) is GRANTED;
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 6) is
DENIED;
FURTHER, that the Clerk of the Court is directed to take the necessary steps to
amend the caption of the case to reflect the automatic substitution of Carolyn W. Colvin
as the Acting Commissioner of Social Security and close this case.
SO ORDERED.
Dated: June 8, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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