Stoddard v. Commissioner of Social Security
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 5 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings; and dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/18/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAMELA NORA STODDARD,
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Plaintiff Pamela Stoddard ("Plaintiff"), who is represented by
counsel, brings this action pursuant to the Social Security Act
Commissioner of Social Security (“the Commissioner”) denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ motions for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Dkt. ##5, 10.
alleging disability beginning January 29, 2009 on the basis of a
lower back condition, left ankle sprain, depression, and anxiety.
T. 94-98, 176-77. Her application was initially denied, and a video
Carolyn M. Colvin is automatically substituted for the previously named
Defendant Michael Astrue pursuant to Fed.R.Civ.P. 25(d). The Clerk of the
Court is requested to amend the caption accordingly.
hearing before Administrative Law Judge (“ALJ”) Scott Staller
followed on March 14, 2011. During the hearing the ALJ heard
testimony from Plaintiff, who was represented by counsel, as well
as from a vocational expert. T. 87-105.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the SSA,
see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249,
2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five
steps), the ALJ found: (1) Plaintiff did not engage in substantial
gainful activity from January 29, 2009, through her date last
insured; (2) she had the severe impairments of degenerative disc
disease of the lumbar spine, left lateral ankle sprain, diabetes,
and hypertension; (3) her impairments did not meet or equal the
Listings set forth at 20 C.F.R. 404, Subpart P, Appx. 1, and that
understand, remember, and carry out simple instructions; make
judgments on simple work-related decision; interact appropriately
with supervisors and coworkers in a routine work setting; respond
to usual situations and changes in a routine work setting; maintain
attention and concentration for two-hour segments in an eight-hour
interruptions from psychologically or physically based symptoms;
(4) Plaintiff had no past relevant work; and (5) there was other
work that existed in significant numbers in the national economy
that Plaintiff could perform. T. 17-22.
An unfavorable decision was issued on March 23, 2011. T. 1216. The ALJ’s determination that Plaintiff was not disabled became
the final decision of the Commissioner when the Appeals Council
denied her request for review on May 2, 2012. T. 1-6. This timely
action followed. Dkt. #1.
Plaintiff now moves for judgment on the pleadings on the
grounds that: (1) the ALJ erred in finding her mental impairments
evaluation was not supported by substantial evidence; and (5) the
vocational expert testimony cannot provide substantial evidence to
support the denial of benefits. Pl. Mem. (Dkt.#5-1) 1-24.
The Commissioner has filed a cross-motion arguing that the
substantial evidence and was based on the application of correct
legal standards. Comm’r Mem. (Dkt.#10-1) 2-24.
For the following reasons, the Plaintiff’s motion is denied,
and the Commissioner’s cross-motion is granted.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have 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) (2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S.
121, 149 (1997).
supported by substantial evidence, the Court's task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits
the scope of the Court's review to two inquiries: determining
whether the Commissioner's findings were supported by substantial
evidence in the record as a whole, and whether the Commissioner's
Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003); see
also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not
try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir. 1988). A party's motion will be dismissed if, after a
review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Plaintiff was treated by Dr. David Pfalzer for hypertension,
diabetes, and depression from January to August, 2009. T. 260-63.
She was diagnosed with diabetes mellitus with suboptimal control;
insomnia and depression; hypertension with tolerable control; and
morbid obesity. Plaintiff was encouraged to exercise and lose
weight. T. 260, 262, 263. On March 5, 2009 Plaintiff had good range
of motion in her back and normal neurological examination results.
In August, 2009, Plaintiff tripped over a car barrier and
caught her left leg, resulting in pain in her left knee and calf
which worsened over time. T. 249. She told Dr. Naren Kansal that
the pain was the worst at night when she was sleeping and when she
was lying down. Id. Dr. Kansal noted that Plaintiff’s medical
history included diabetes, heart problems, high blood pressure,
aspirin, and Lantus insulin. Id. Upon examination, Plaintiff showed
that her spine was non-tender with no paraspinal spasm, “okay”
“perhaps . . . some weakness of the left extensor hallucis longus
and . . . mild weakness of the dorixflexion of the foot.” Reflexes
were all present and equal bilaterally including the ankles, and
straight leg raising was positive. T. 250. Plaintiff was assessed
with clinically acute left lumbar radiculopathy with possible
In October, 2009, Plaintiff saw Patricia Champlin, ANP-C, upon
complaints of low back pain and left leg pain. T. 258. She had good
range of motion lumbar flexiohn, extension, and side flexion,
negative straight leg raise bilateral, and left weakness of the
quadricep. Id. She was unable to tip toe or heel walk, and used a
cane. Id. Ms. Champlin assessed Plaintiff with “left leg radicular
symptoms; weakness left quad, great left toe plantar flexion,
On October 24, 2009, Plaintiff underwent a magnetic resonance
imaging of the lumbar spine, which revealed unilateral right L5
spondylosis defect; prominent left-sided facet arthropathy and
severe left foraminal compromise from combined encroachment by the
facet arthropathy and spur with resultant distortion of the exiting
nerve root; L4-5 facet prominence and impression on the ventral sac
by a broad protrusion that reduces its caliber to lower limits of
normal; and mild L3-4 central stenosis from retrolisthesis and
impression on the ventral sac by a disk bulge and moderate left
foraminal narrowing from encroachment by a mid and far lateral disk
protrusion. T. 253-54.
An x-ray of Plaintiff’s lumbosacral spine taken on October 26,
2009 showed an 8mm anterolisthesis of L5 upon S1 due to bilateral
spondylolyses, degenerative disc changes at level, but no evidence
predominately the facet joints. T. 213, 255.
Plaintiff had decompressive lumbar laminectomy L5-S1 with left
foraminotomy and post residual fusion L5-S1 on November 4, 2009.
Following her surgery Plaintiff reported that her back pain was
“much improved,” but still had occasional numbness in her left leg
T. 256. She also reported to Dr. Kansal on January 6,
2010, that she was fired from work but did not feel depressed
Electromyography nerve conduction studies conducted in January
of 2010 revealed left L5 and S1 radiculopathies representing
possible residual denervation. T. 237-38. On January 25, 2010, Dr.
Kansal noted that Plaintiff was doing “quite well” but “need[ed] to
work toward losing a lot of weight.” T. 244.
In September, 2010, Plaintiff’s hypertension and diabetes were
under control and she was encouraged to be more physically active.
T. 286. She was to see a psychiatrist for anxiety, depression, and
Christopher Ritter, M.D., evaluated Plaintiff on December 7,
2010 for left ankle problems. T. 303-04. Her physical examination
instability that would benefit from a brace or physical therapy.
indicated that Plaintiff’s hypertension and diabetes were under
control, she was not exercising or dieting in an organized fashion,
and was to continue seeing a psychiatrist for her depression.
A Psychiatric Review Technique completed on December 11, 2009,
Plaintiff’s psychiatric limitations prior to her date last insured.
Plaintiff was referred to Dr. Naureen Jaffri for a psychiatric
assessment in November, 2010, for depression. She reported a
history of depression dating back 30 years, but in the past three
years her symptoms became worse, including avoidance of people,
sweating, dizziness, lightheadedness, and difficulty concentrating.
A mental status examination revealed fair hygiene and
grooming, and orientation to person, place, situation, and purpose.
She appeared “somewhat nervous” during the interview. Plaintiff
reported irritability, disrupted sleep, lack of enjoyment, and
anger, among other things. T. 293. She was diagnosed with major
depressive disorder, recurrent, moderate, rule out bipolar, and
panic disorder with agoraphobia. T. 293-94. Dr. Jaffri prescribed
Cymbalta, Ativan, and continuation of trazodone. Id.
In January, 2011, Plaintiff reported that she was compliant
with her medications with no side effects, had partial relief with
depression and anxiety, and had no physical complaints. T. 291. She
reported struggling with crowds, but was alert, oriented, and in
touch with reality, had adequate judgment and insight, with no
psychosis. Id. Dr. Jaffri assessed partial relief with treatment.
Dr. Jaffri completed a Mental Residual Functional Capacity
Questionnaire on March 8, 2011. T. 308-13. Clinical findings
included fear of leaving the home, avoidance of others due to
anxiety and depression, and panic. T. 308. Dr. Jaffri opined that
procedures; understanding, remembering, and carrying out very short
and simple instructions; maintaining attention for two hours; and
making simple work-related decisions. T. 310. She was unable to
maintain regular attendance and punctuality; complete a normal
workday and workweek without interruptions from psychologicallybased symptoms; perform at a consistent pace; respond appropriately
to changes in a routine work setting; and deal with normal stress.
Id. Finally, Dr. Jaffri opined that Plaintiff had “no useful
ability to function” in the areas of working in coordination with
or proximity to others without being unduly distracted; getting
along with co-workers or peers; and accepting instructions and
criticism from supervisors. Id.
III. Testimonial and Vocational Evidence
Plaintiff was 50-years old on the alleged onset date of
January 29, 2009 and had an 11th grade education. T. 24, 106, 176.
She had no past relevant work experience. T. 92, 162.
Plaintiff completed a daily activities questionnaire following
her back surgery, which indicated that she lived with her husband,
took care of her two cats, took care of her personal hygiene and
grooming needs with assistance from her husband, prepared simple
meals, drove a car, grocery shopped, played computer games, watched
television, and socialized. T. 182-89, 251-52.
Plaintiff testified at her disability hearing that she quit
her last job in January, 2009, due to a disagreement with her boss.
T. 93. She testified that she had constant lower back pain that
radiated to her left leg, walked with a cane, and wore an ankle
brace. T. 94, 97-98. She stated that her diabetes and hypertension
were controlled by medication. T. 94. Plaintiff told the ALJ that
her depression and anxiety caused her to want to isolate herself.
The ALJ also heard testimony from vocational expert James
Newtown, to whom he posed a hypothetical regarding an individual
whose age, educational background, and work experience were the
same as Plaintiff’s, who could perform light work that required no
crouching, or crawling; and that could understand, remember, and
carry out simple instructions and judgments; make simple workrelated decision; interact appropriately with supervisors and coworkers in a routine work setting; respond to usual work situations
and changes in a routine work setting; maintain attention and
concentration for two-hour segments in an eight-hour period; and
complete a normal work week without excessive interruptions from
psychologically-based symptoms. T. 102. Mr. Newtown opined that
such an individual could perform the occupations of office helper,
ticket seller, and parking lot attendant, as examples of unskilled,
light occupations that exist in significant numbers in the national
economy. T. 103.
The Decision of the Commissioner that Plaintiff was not
entitled to DIB was supported by Substantial Evidence.
Plaintiff contends that the ALJ erred when he determined that
impairments that did not significantly limit her physical or mental
ability to do basic work activities. Pl. Mem. 10-15.
The Step two severity inquiry serves only to “screen out de
minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.
1995). Consequently, “[a] finding of ‘not severe’ should be made if
the medical evidence establishes only a ‘slight abnormality’ ...
[with] ... ‘no more than a minimal effect on an individual's
ability to work.’” Rosario v. Apfel, No. 97 CV 5759, 1999 WL
294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert,
482 U.S. 137, 154 n. 12 (1987)).
Here, the ALJ applied the “special technique” to determine
whether Plaintiff’s mental impairments were severe. In doing so, he
found Plaintiff had a mild limitation in activities of daily
living. She was married, lived with her husband and took care of
her pets, prepared easy meals, could dress herself, and was able to
drive short distances. T. 17-18. In social functioning, the ALJ
found a mild limitation: she did not like crowds and preferred to
spend time at home. She could grocery shop when the stores were not
crowded. T. 18. He found that Plaintiff had no limitation in
concentration, persistence, or pace, based her hobbies and denial
of problems relating to concentration or memory. Id. Plaintiff had
no episodes of decompensation. Id.
A State Agency psychological consultant found no evidence that
ability to perform basic work activities. T. 223, 225.
significant limitations in most functional areas, the opinion,
dated March 8, 2011, was based upon treatment post-dating the
retrospective opinion issued by Dr. Jaffri. See Arnone v. Bowen,
882 F.2d 34, 37-38 (2d Cir. 1989)(claimant presented no evidence
concerning relevant period and evidence of disability before and
after relevant period did not establish disability during that
Moreover, the ALJ found that Plaintiff’s lower back condition,
left lateral ankle sprain, diabetes, and hypertension were severe
impairments, and then considered her anxiety, depression, and
obesity in combination with her severe impairments throughout the
remainder of the sequential evaluation. See 20 C.F.R. §§ 404.1523
(providing that the combined effects of all impairments must be
considered, regardless of whether any impairment, if considered
separately, would be of sufficient severity). Accordingly, any
purported error in the severity analysis at step two would be
harmless. See Tryon v. Astrue, No. 10–CV–537, 2012 WL 398952, at *3
(N.D.N.Y. Feb.7, 2012) (citing Kemp v. Comm’r, No. 10–CV1244, 2011
WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011)).
Finally, the Court rejects Plaintiff’s argument that the ALJ
“should have at a minimum acknowledged Stoddard’s obesity and the
effects it has on her depression and musculoskeletal complaints.”
Pl. Mem. 13. In his decision, the ALJ acknowledged that Plaintiff’s
body mass index was considered Class II obesity, and noted that the
bending, stooping) that made up the RFC finding sufficiently
accommodated the limitation from her obesity. T. 21.2 The ALJ
therefore properly applied Social Security Ruling (“SSR”) 02-1p,
which required him to consider whether obesity, in combination with
other impairments, prevented Plaintiff from working. See SSR 02–1p,
2002 WL 3468281, at *1; see also Butcher v. Colvin, No. 12–cv–1662,
2014 WL 295776, at *6 (N.D.N.Y. Jan. 27, 2014) (“while obesity is
not in and of itself a disability, it is a medically determinable
impairment under the regulations, which the ALJ should consider
when assessing an individual's RFC”).
In reaching his step two finding, the ALJ applied the correct
legal principles and his determination was supported by substantial
evidence in the record.
Residual Functional Capacity
Plaintiff next contends that the ALJ erred in finding her
capable of light when he formulated her RFC. Pl. Mem. 15-21.
An individual's RFC is his “maximum remaining ability to do
continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.
1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (July 2, 1996)). When
making an RFC assessment, the ALJ should consider “a claimant's
physical abilities, mental abilities, symptomology, including pain
Even if the ALJ had failed to mention Plaintiff’s obesity, such an
omission would not constitute reversible error per se. Younes v. Colvin,
No. 14-CV-170, 2015 WL 1524417, at *4 N.D.N.Y. Apr. 2, 2015).
and other limitations which could interfere with work activities on
a regular and continuing basis.” Pardee v. Astrue, 631 F.Supp.2d
200, 221 (N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a)). “To
determine RFC, the ALJ must consider all the relevant evidence,
abilities, non-severe impairments, and [p]laintiff's subjective
evidence of symptoms.” Stanton v. Astrue, 2009 WL 1940539, *9
(N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff'd, 380
Fed. Appx. 231 (2d Cir. 2010).
Prior to the fourth step of the sequential evaluation, the ALJ
determined that Plaintiff retained the RFC to perform light,
unskilled work which required no more than occasional climbing,
balancing, stooping, kneeling, crouching, or crawling. T. 18-19. In
degenerative disc disease, and noted that the medical records, as
well as Plaintiff’s own assertions, indicated that her back pain
significantly improved after her back surgery. T. 19-20. He then
considered her diabetes and hypertension, both of which were under
control with medication. T. 20. Plaintiff’s left ankle sprain was
determined to be not as limiting as alleged, based on her refusal
to attend physical therapy and her inconsistent reports of pain
relating to that injury. Id. As previously stated, the ALJ took
note of Plaintiff’s obesity and factored that into the RFC finding
as well. T. 21.
Here, the ALJ fully considered the entire record and addressed
the objective medical tests, Plaintiff’s subjective complaints,
treatment notes from her providers, and the opinion evidence. He
therefore applied the appropriate legal standard in reaching his
conclusion that Plaintiff was capable of light work with certain
limitations. Additionally, the ALJ correctly summarized the medical
limitations. T. 19-21. The resulting RFC considered Plaintiff’s
impairments, and accommodated the limitations resulting therefrom.
This determination was therefore supported by substantial evidence
in the record.
Under these circumstances, remand is not warranted simply
because the ALJ did not provide a function-by-function analysis
relating to any stand/walk/sit limitations.
Cichocki v. Astrue,
729 F.3d 172, 177–78 (2d Cir. 2013).
Plaintiff also challenges the ALJ’s mental RFC finding on the
basis that he “did not apply the rules of evaluation for treating
physician opinions.” Pl. Mem. 20. This point warrants little
discussion, as the ALJ specifically enumerated the factors set
416.927(c)(1)-(5), which instruct the ALJ on how to evaluate
opinion evidence.3 The ALJ explained that he accorded little weight
Paragraph (d)(2) of 20 C.F.R. 404.1527 and 416.927 were renumbered as
paragraph (c)(2) in a revision effective February 23, 2012. 77 Fed.Reg.
10651, at 10656, 10657.
to Dr. Jaffi’s answers to the Mental Residual Functional Capacity
Questionnaire because the form was incomplete with regard to
Plaintiff’s frequency and length of contact with Dr. Jaffri, there
was not enough substantive evidence in the record to support the
restrictive opinion of Plaintiff’s limitations during the insured
period, and the medical records that did discuss Plaintiff’s
depression and anxiety during the insured period were “sparse” and
impairments. T. 21.
evaluating the opinion, and provided the requisite “good reasons”
discounting the opinion of Plaintiff’s treating psychiatrist.
Plaintiff alleges that the ALJ did not apply the appropriate
standards set forth in SSR 96–7p and 20 C.F.R. § 404.1529 in
assessing Plaintiff’s credibility. Pl. Mem. 21-24.
To establish disability, there must be more than subjective
laboratory diagnostic techniques that could reasonably be expected
to produce the symptoms alleged. 20 C.F.R. § 416.929(b); accord
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). When a
evidence must be considered in determining whether disability
§ 416.929(c)(2). If the claimant's symptoms suggest a greater
restriction of function than can be demonstrated by objective
medical evidence alone, consideration is given to such factors as
the claimant's daily activities; the location, duration, frequency
and intensity of pain; precipitating and aggravating factors; the
medication; and any treatment or other measures used to relieve
pain. 20 C.F.R. § 416.929(c)(3); see SSR 96–7p, (July 2, 1996),
1996 WL 374186, at *7. It is well within the Commissioner's
discretion to evaluate the credibility of Plaintiff's testimony and
render an independent judgment in light of the medical findings and
other evidence regarding the true extent of symptomatology. Mimms
v. Sec’y, 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v. Shalala,
882 F.Supp. 1413, 1419 (S.D.N.Y. 1995).
“If the ALJ decides to reject subjective testimony concerning
sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the ALJ's disbelief and whether his
determination is supported by substantial evidence.” Brandon v.
Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987) (citing, inter alia,
Valente v. Sec’y, 733 F.2d 1037, 1045 (2d Cir. 1984); footnote
Here, the ALJ summarized the evidence relating to each of
Plaintiff’s purported impairments, and stated that the objective
medical findings did not support the severity of her limitations as
alleged. He dedicated five paragraphs to discussing the treatment
Plaintiff’s subjective complaints of pain. He concluded that her
characterization of her symptoms was not substantiated by the
objective medical evidence. In doing so, he specifically cited and
Plaintiff’s argument in this regard must fail.
The Court finds that the ALJ's credibility determination was
proper as a matter of law and supported by substantial evidence in
Vocational Expert Testimony
vocational expert testimony cannot provide substantial evidence to
support the denial.” Pl. Mem. 25.
The Court has rejected all of Plaintiff’s previous arguments
and finds that the ALJ’s residual functional capacity finding was
determination, the Court finds no error in the ALJ’s step five
conclusion. See Wavercak v. Astrue, 420 Fed.Appx. 91, 95 (2d Cir.
2011) (“[b]ecause we have already concluded that substantial record
[plaintiff's] vocational expert challenge”).
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Dkt.#5) is denied, and the Commissioner’s crossmotion (Dkt.#10) is granted. The ALJ’s finding that Plaintiff was
not disabled during the insured period is supported by substantial
evidence in the record, and accordingly, the Complaint is dismissed
in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
May 18, 2015
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