Marullo v. Astrue
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 11 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 10/28/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARY E. MARULLO,
Plaintiff,
12-CV-871(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Plaintiff Mary E. Marullo ("Plaintiff"), who is represented by
counsel, brings this action pursuant to the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying her
application for Supplemental Security Income (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). 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. ##9,11.
BACKGROUND
Plaintiff protectively applied for SSI on March 21, 2008,
alleging disability beginning January 17, 2008 due to neuropathy in
1
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.
both legs and nerve damage. T. 97-100, 108.2 Her application was
initially
denied,
and
she
requested
a
hearing
before
an
Administrative Law Judge (“ALJ”). T. 51, 54-57, 62. Plaintiff
appeared with counsel before ALJ Robert T. Harvey on June 17, 2010.
T. 25-50. A written decision was issued on September 13, 2011,
finding that Plaintiff was not disabled. T. 14-20.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social
Security
Administration
(“SSA”),3
the
ALJ
found
that
Plaintiff had not engaged in substantial gainful activity since
March 21, 2008.
were
At step two, he found that her severe impairments
Charcot-Marie-Tooth
disease,
type
2;
motor-sensory
polyneuropathy of the lower extremity; obesity; and hereditary
spastic paraparesis. At step three, he determined that Plaintiff’s
impairments did not meet or equal the Listings set forth at
20 C.F.R. § 404, Subpart P, Appendix 1. Next, the ALJ found that
Plaintiff retained the residual functional capacity (“RFC”) to
lift,
carry,
push,
and
pull
ten
pounds;
sit
six
hours
and
stand/walk two hours in an eight-hour workday; could not work at
unprotected heights, exposed to cold, or around heavy, moving, or
2
Numerals preceded by “T.” refer to pages from the transcript of
the administrative record, submitted by Commissioner as a separately
bound exhibit in this proceeding.
3
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).
-Page 2-
dangerous machinery. She could not crawl or climb ropes, ladders,
or scaffolds, and had frequent limitations in bending, climbing,
stooping,
squatting,
kneeling,
and
balancing,
and
occasional
limitations in handling, fingering, and feeling. The ALJ further
found that Plaintiff could sit or stand for thirty minutes before
changing positions. The ALJ determined at step four that Plaintiff
had no past relevant work, and at step five concluded that jobs
existed in the national economy that Plaintiff could perform. As
such, Plaintiff was found to be not disabled. T. 16-20.
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on July 20, 2012. T. 1-4, 6-7. Plaintiff then filed this
action seeking judicial review of the Commissioner's decision
pursuant to 42 U.S.C. § 405(g). Dkt.#1.
In the present motion, Plaintiff alleges that the ALJ’s
decision is erroneous because it is not supported by substantial
evidence contained in the record, or is legally deficient and
therefore she is entitled to judgment on the pleadings. Pl. Mem.
(Dkt.#10) 7-14. The Commissioner cross-moves for judgment on the
pleadings on the grounds that the ALJ's decision is correct, is
supported by substantial evidence, and was made in accordance with
applicable law. Comm’r Mem. (Dkt.#11-1) 17-25.
For the following reasons, Plaintiff’s motion is denied, and
the Commissioner’s cross-motion is granted.
-Page 3-
DISCUSSION
I.
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).
When
determining whether
the
Commissioner's
findings
are
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
-Page 4-
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
conclusions
are
based
upon
an
erroneous
legal
standard.
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).
II.
Medical Evidence
Beginning April 20, 2007, Plaintiff began treatment at DENT
Neurologic Institute (“DENT”) for back pain, pain in the lower
extremities, and gait problems. T. 154. In June, 2007, an EMG/nerve
conduction
study
revealed
severe
peripheral
neuropathy
with
features of chronic axonal loss and probable demyelination in her
right extremities and lower left extremities. T. 156-57.
-Page 5-
Dr. Harnath Clerk, M.D., Plaintiff’s primary care provider at
the time, issued a treating source opinion that Plaintiff could
sit, stand, and walk for a total of one hour per eight hour
workday; that she could lift up to twenty pounds occasionally;
needed a cane to ambulate; and that she should only occasionally
climb, balance, stoop, kneel, crouch, or crawl. T. 214. Dr. Clerk
further opined that Plaintiff should not be exposed to more than a
moderate noise level; should only occasionally be exposed to
unprotected heights, moving mechanical parts, operating a motor
vehicle; humidity and wetness, dusts, odors, fumes, and pulmonary
irritants, extreme cold or heat; and vibrations. T. 214-15.
On August 4, 2008, Plaintiff was consultatively examined by
Kathleen Kelley, M.D., who diagnosed her with probable cerebral
palsy
with
spastic
dysplasia,
hyper-reflexia
of
the
lower
extremities, and nonspecific ankle and knee pain with full range of
motion T. 180. The doctor reported that Plaintiff showered, bathed,
dressed herself, cooked, cleaned, did laundry, shopped, and watched
television, but did not perform childcare activities. T. 177-78.
The
physical
examination
revealed
spastic
diplegic
gait
with
inability to walk on heels, wide stance, positive Romberg test, and
inability to walk tandem heel-to-toe. Babinski test was negative,
muscle tone was normal, Plaintiff needed no help changing for exam
or getting on and off the exam table, and was in no acute distress.
T.
178.
Plaintiff
had
no
cyanosis,
-Page 6-
clubbing,
or
edema,
no
significant varicosities or trophic changes, and no evident muscle
atrophy. T. 179. She had full range of motion in hips, knees, and
ankles bilaterally, with full strength in her upper and lower
extremities. Id.
Dr. Kelley opined that Plaintiff would have difficulty walking
long distances, climbing stairs, standing for long periods, and
that she would need breaks secondary to her spastic gait. T. 180.
Lifting, carrying, or reaching for markedly heavy objects or
pushing and pulling markedly heavy objects from a standing position
would cause balance issues. Id. Plaintiff should refrain from
working around heights, sharp objects, or heavy equipment due to
her
gait,
and
she
would
have
difficulty
kneeling,
squatting
repetitively, or crawling. Id.
On August 28, 2009, I. Larios, a non-physician state agency
review analyst, evaluated Plaintiff’s medical record. T. 199-204.
Larios found that Plaintiff was limited to sedentary work (able to
lift ten pounds occasionally; able to sit for six hours and stand
for
two
hours
in
an
eight-hour
day),
with
the
additional
restrictions that Plaintiff was only frequently able to stoop,
kneel, crouch, and crawl, and occasionally able to climb and
balance. Id.
On July 2, 2009, Plaintiff underwent an MRI of the brain
which was negative for any serious abnormality. T. 218-19. Based
on the negative MRI and the previous EMG study, Plaintiff’s
-Page 7-
specialists at DENT diagnosed Charcot-Marie-Tooth disease (also
known as hereditary motor and sensory neuropathy), an inherited
neurological disorder characterized by weakness of the foot and
lower leg muscles.
See:http://www.ninds.nih.gov/disorders/charcot_marie_tooth/detail
_charcot_marie_tooth.htm (last accessed 10/24/2014).
Charcot-Marie-Tooth
is
a
slow-progressing
and
non-fatal
disease, with symptoms varying greatly among individuals, and pain
ranging from mild to severe. Id. Some individuals may need to rely
on braces or other orthopedic devices for mobility. Id.
Treatment notes from DENT dated September 17, 2009, indicate
that Plaintiff complained of worsening weakness in her lower
extremities and hands, difficulty walking, and burning sensation in
her legs. T. 246. Dr. Malti Patel’s impression was motor sensory
perihpheral neuropathy in uppper and lower extremity, and blood
work was recommended. Id.
Plaintiff was prescribed leg braces but was not compliant in
using them. T. 262, 275.
She also underwent physical therapy,
which she discontinued after five weeks. T. 272, 299-317. She was
also not compliant with using a recommended cane. T. 178, 200, 212.
III. Non-Medical Evidence
Plaintiff is a high-school graduate who completed one year of
college and was 30 years-old at the time of her hearing. T. 27,
-Page 8-
112. She has past work experience as a certified nursing assistant,
dishwasher, and factory line worker. T. 109.
On May 2, 2008, Plaintiff completed a Function Report as part
of her SSI application, in which she stated her daily activities
included
bathing,
dressing
and
feeding
her
children,
washing
dishes, doing laundry with breaks, preparing lunch and dinner,
watching television, vacuuming, and shopping. Her hobbies included
walking and bicycle riding. T. 118-121.
At the hearing, Plaintiff testified that she could only stand
for a half-hour before her legs would begin to shake, that she had
difficulty sitting for longer than an hour, and had loss of feeling
and muscle in her hands, which caused her to drop whatever she
might be holding at the time. T. 34, 37, 38. Her daily activities
included dressing, bathing, washing dishes, doing laundry, cleaning
her home (making beds, vacuuming, sweeping, mopping, taking out the
trash), shopping, and occasionally visiting family members. T. 3537. She told the ALJ she would lie during the day when she had
“major” back pain. T. 43-44.
The ALJ also heard testimony from Vocational Expert (“VE”) Jay
Steinberg. T. 44-50. The ALJ asked the VE to assume an individual
of Plaintiff’s age, education, and vocational background, with the
limitations
outlined
in
the
RFC
findings.
T.
45-46.
The
VE
testified that such an individual could work as a telephone survey
-Page 9-
worker or telemarketer, which is unskilled, sedentary work that
exists in significant numbers in the national economy. T. 45-47.
IV.
The Decision of the Commissioner that Plaintiff was not
disabled is supported by substantial evidence.
A.
Treating Source Opinion
Plaintiff first contends that the ALJ committed reversible
error by failing to give Plaintiff’s treating source opinion
controlling
weight
or
to
provide
an
explanation
as
to
why
controlling weight was not given. Pl. Mem. (Dkt.#10) 7-8.
Under the Regulations, a treating physician's opinion is
entitled to “controlling weight” when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2); see also Rosa v. Callahan, 168
F.3d 72, 78–79 (2d Cir. 1999); Schisler v. Sullivan, 3 F.3d 563,
567 (2d Cir. 1993). When an ALJ refuses to assign a treating
physician's opinion controlling weight, he must consider a number
of
factors
to
determine
the
appropriate
weight
to
assign,
including: (I) the frequency of the examination and the length,
nature and extent of the treatment relationship; (ii) the evidence
in
support
of
the
treating
physician's
opinion;
(iii)
the
consistency of the opinion with the record as a whole; (iv) whether
the opinion is from a specialist; and (v) other factors brought to
the Social Security Administration's attention that tend to support
or contradict the opinion. See 20 C.F.R. § 404.1527(c). Although
-Page 10-
the ALJ need not explicitly consider each of the factors listed in
20 C.F.R. § 404.1527(c), it must be clear from the ALJ's decision
that a proper analysis was undertaken. See Petrie v. Astrue, 412
Fed. Appx. 401, 406 (2d Cir. 2011) (“[W]here ‘the evidence of
record permits us to glean the rationale of an ALJ's decision, we
do not require that he have mentioned every item of testimony
presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion
of
disability.’”;
Hudson
v.
Colvin,
No.
12–CV–0044,
2013
WL
1500199, *10 n. 25 (N.D.N.Y. Mar. 21, 2013) (“While [the ALJ] could
have discussed the factors listed in the regulations in more
detail, this does not amount to reversible error because the
rationale for his decision is clear and his ultimate determination
is supported by substantial evidence.”), report and recommendation
adopted, 2013 WL 1499956 (N.D.N.Y. Apr. 10, 2013).
The
ALJ
considered
Dr.
Clerk’s
November
2008
functional
assessment and afforded it “some weight.” T. 18. A review of the
evidence in the record supports this determination.
Dr. Clerk’s residual functional capacity assessment indicated
that Plaintiff could lift/carry up to 20 pounds, sit/stand/walk for
one hour each, and could perform all postural and environmental
activities occasionally. T. 211-16. Though he noted that Plaintiff
“required a cane to ambulate,” he also indicated that a cane was
not “medically necessary.” T. 212. In assessing Plaintiff’s ability
-Page 11-
to use her hands and feet, the doctor wrote the notation, “NA,”
presumably
indicating
that
Plaintiff
had
no
functional
restrictions. T. 213. He did not explain his responses on the
medical
source
statement
despite
questions
requesting
identification of supporting medical or clinical findings. T. 212,
213, 215.
The ALJ reviewed and referenced the medical record, medical
source statements, and Plaintiff’s activities of daily living,
which were only partially consistent with Dr. Clerk’s assessment.
T. 16-19. For example, Plaintiff’s non-compliance with physical
therapy and leg braces and her extensive daily activities undermine
the doctor’s extreme limitations. T. 18. Dr. Clerk’s own treatment
notes from September and December, 2008, indicate unremarkable
physical findings, normal upper and lower extremities with full
range of motion bilaterally, no evidence of clubbing or cyanosis,
normal peripheral circulation, and no apparent acute distress.
T. 18, 239-40, 241-42. His assessment was also inconsistent with
that of the consultative examiner, Dr. Kelley, whose physical
examination yielded largely normal results, and who opined that
Plaintiff would have difficulty walking long distances, climbing
stairs, standing for long periods, and would require breaks. T. 17,
178-80.
The
ALJ
assigned
equal
weight
to
Dr.
Clerk’s
and
Dr. Kelley’s reports. T. 17-18. Finally, Dr. Clerk’s RFC assessment
was partially consistent with the SSA non-physician reviewer’s
-Page 12-
opinion that Plaintiff could frequently lift less than ten pounds,
occasionally lift ten pounds, stand/walk for two hours, sit for six
hours, and had no restrictions pushing or pulling, including
operation of hand and/or foot controls.4 T. 200.
Here, the ALJ discussed Dr. Clerk’s opinion along with other
medical evidence, including his own treatment notes, and the record
as a whole. Although the ALJ did not explicitly state his reasoning
for affording Dr. Clerk’s opinion less than controlling weight, the
omission was harmless error. The Second Circuit has explained that
“[w]here application of the correct legal principles to the record
could lead [only to the same] conclusion, there is no need to
require agency reconsideration.” Zabala v. Astrue, 595 F.3d 402,
409 (2d Cir. 2010) (declining to remand even though the ALJ failed
to satisfy the treating physician rule as the medical record that
the ALJ overlooked would not have altered the ALJ's disability
determination (quoting Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.
1987))); see also Halloran, 362 F.3d at 32–33 (declining to remand
even when the ALJ failed to provide “good reasons” for the weight
given to a treating physician's opinion). This is not a case in
which the ALJ overlooked opinions more favorable to Plaintiff, but
4
The Court notes that the ALJ did not rely on the opinion
of a non-physician to reject Dr. Clerk’s opinion, but considered
it in conjunction with the record as a whole. Cf. McGeever v.
Barnhart, No. 05-CV-1363, 2009 WL 81287 (N.D.N.Y. 2009)
(rejection of treating physician opinion not supported by
substantial evidence where ALJ relied “in large part” on the
opinion of a non-medical reviewer).
-Page 13-
rather evaluated and discussed the medical evidence thoroughly to
reach his conclusion that Dr. Clerk’s opinion warranted only some
weight. His determination would not have been different had he
explicitly
outlined
the
weight
assigned
to
these
opinions.
Therefore, the ALJ's oversight does not merit remand.
B.
RFC Finding
Plaintiff next claims that the ALJ violated Social Security
Ruling (“SSR”) 96-8p by failing to provide a narrative in support
of his RFC finding. Pl. Mem. 8-10.
Residual functional capacity is “what an individual can still
do despite his or her limitations.” Melville v. Apfel, 198 F.3d 45,
52
(2d
Cir.
individual's
1999).
maximum
“‘Ordinarily,
remaining
RFC
is
an
assessment
the
ability
to
do
sustained
work
activities in an ordinary work setting on a regular and continuing
basis,’ and the RFC assessment must include a discussion of the
individual's abilities on that basis.” Id. (quoting SSR 96–8p, 1996
WL 374184, at *1)
In making the RFC determination, the ALJ must consider a
claimant's physical abilities, mental abilities, symptomology,
including pain and other limitations which could interfere with
work activities on a regular and continuing basis. 20 C.F.R.
§ 404.1545(a). The ALJ must consider all the relevant evidence,
including
abilities,
medical
opinions
non-severe
and
facts,
impairments,
-Page 14-
and
physical
plaintiff's
and
mental
subjective
evidence of symptoms. 20 C.F.R. §§ 404.1545(b)-(e). Pursuant to
20 C.F.R. § 404.1527(C)(1), every medical opinion, regardless of
its source, must be evaluated. The RFC assessment must include a
narrative discussion describing how the evidence supports each
conclusion,
findings)
citing
and
specific
nonmedical
medical
evidence
facts
(e.g.,
(e.g.,
daily
laboratory
activities,
observations). SSR 96–8p, 1996 WL 374184, at *7.
Here, the ALJ gave “some weight” to Plaintiff’s treating
physician
and
the
consultative
examiner,
whose
opinions
were
conflicting. T. 17-18. Contrary to Plaintiff’s assertion, this was
permissible.
Plaintiff cites to Fisher v. Astrue, No. 10-cv-1117, 2012 WL
280737 (N.D.N.Y. Jan. 31, 2012) in support of her argument that the
Commissioner’s decision should be reversed on the ground that it is
impossible to ascertain the basis of the ALJ’s RFC determination
and
whether
weighing
of
the
medical
evidence
complied
with
20 C.F.R. § 404.1527(d). As the Commissioner points out, Fisher is
distinguishable. There it was determined that the ALJ’s findings
were conclusory where the ALJ “failed to specifically identify the
opinions, if any, she was weighing, and to perform the requisite
evaluation of them in accordance with 20 C.F.R. § 404.1527.” 2012
WL 280737 at *2 (internal quotation omitted). It was also agreed
upon by the parties in Fisher that the ALJ’s step four finding was
unsubstantiated. Here, the ALJ properly identified all of the
-Page 15-
medical opinions in the record and analyzed them pursuant to the
appropriate regulations and SSR 96–8p.
Though the ALJ afforded equal weight to the consultative
examiner’s and the treating physician’s opinions, it is easily
gleaned
which
portions
of
those
opinions
were
rejected.
For
example, Dr. Kelley diagnosed Plaintiff with “probably cerebral
palsy,” which the ALJ did not find to be a severe impairment.
T. 16, 180. It is apparent from considering the total decision that
ALJ carefully considered all of the opinions in the medical record.
See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (While
ALJ must set forth the essential considerations with sufficient
specificity to enable the reviewing court to determine whether the
decision
is
“explicitly
supported
by
substantial
reconcile
every
evidence,
conflicting
shred
he
of
need
not
medical
testimony.”). Most importantly, there is substantial evidence in
the record that supports the denial of benefits, which rebuts
Plaintiff’s claim. See Schaal v. Apfel, 134 F.3d 496, 504–05
(2d Cir. 1998).
Thus, the ALJ’s RFC determination is supported by substantial
evidence.
C.
VE Testimony
Plaintiff also argues that the ALJ erred in relying on the
VE’s testimony because it was based on an incomplete hypothetical.
Pl. Mem. 10-12.
-Page 16-
For the opinion of a VE to constitute substantial evidence,
the hypothetical questions posed to the VE must include all of the
claimant's limitations that are supported by medical evidence in
the record. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.
1981) (a “vocational expert's testimony is only useful if it
addresses whether the particular claimant, with his limitations and
capabilities, can realistically perform a particular job”); see
also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (“A
hypothetical question posed to a vocational expert must reflect all
of a claimant's impairments....”) (internal citations and quotation
marks omitted). If a hypothetical question does not include all of
a claimant's impairments, limitations and restrictions, or is
otherwise
inadequate,
a
vocational
expert's
response
cannot
constitute substantial evidence to support a conclusion of no
disability. Melligan v. Chater, No. 94–CV–944S, 1996 WL 1015417, at
*8 (W.D.N.Y. Nov. 14, 1996).
In making his step five finding that jobs existed in the
national economy that Plaintiff could perform, the ALJ relied on
the testimony of VE Jay Steinberg. He initially asked the VE to
assume an individual that could, inter alia, lift/carry/push ten
pounds, sit two hours, and stand/walk six hours in an eight-hour
day. T. 45. He went on to clarify that he intended to frame the
hypothetical as a person who could perform “sedentary” work with
limitations. See 20 C.F.R. § 404.1567(a)(“Sedentary work involves
-Page 17-
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.”)
The ALJ appears to have misstated the standing and sitting
limitations, as his hypothetical indicated standing for six hours
and sitting for two hours, which is inconsistent with sedentary
work. See 20 C.F.R. § 404.1567(a), supra. The ALJ’s inaccuracy is,
at most, harmless error. The VE specifically acknowledged that the
hypothetical individual was limited to sedentary work and testified
that such
sedentary
an
individual
level,
could
consistent
perform
with
the
jobs
ALJ’s
at
RFC
the unskilled
finding
that
Plaintiff could lift, carry, push, and pull ten pounds, sit for six
hours and stand or walk for two hours in an eight-hour workday,
with additional restrictions. T. 16 (emphasis added). Plaintiff was
therefore not prejudiced
by the ALJ’s error because the RFC
determination was supported by substantial evidence, and the VE
based his answer on that initial RFC determination. See generally
Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009) (”[T]he burden of
showing that an error is harmful normally falls upon the party
attacking the agency's determination.”).
-Page 18-
Because the hypothetical questions were based upon an RFC that
realistically and accurately described Plaintiff's limitations, the
VE's testimony provided substantial evidence to support the finding
of no disability.
D.
Severity of Impairment
Plaintiff avers that the ALJ failed to consider cerebral palsy
a severe impairment and provided no explanation as to why it was
non-severe in his step two analysis. Pl. Mem. 14-15.
For an impairment to be considered severe, it must more than
minimally limit the claimant's functional abilities, and it must be
more than a slight abnormality. 20 C.F.R. § 416.9249(c). It must
also be “medically determinable,” established through medically
acceptable
clinical
or
laboratory
diagnostic
techniques
demonstrating the existence of a medical impairment. Skiver v.
Colvin, No. 12–CV–899, 2014 WL 800228, *6 (W.D.N.Y. Feb. 28, 2014);
42 U.S.C. § 423(d)(3). A physical or mental impairment must be
established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by the individual's statement of
symptoms. 20 C.F.R. § 416.908.
On the outset, there is no diagnosis of cerebral palsy by
Plaintiff’s treating physicians (Dr. Michael Grey, Dr. Patel,
Dr. Holmlund) in a record spanning several years of treatment.
T. 233-42, 244-60. Moreover, Plaintiff’s May, 2007 EMG and July,
2009 MRI were unremarkable for cerebral palsy. T. 156, 219.
-Page 19-
The
diagnosis of “probable cerebral palsy” was made by Dr. Kelley
during a
consultative
examination on
August
4, 2008
and
was
therefore not supported by the medical records or the clinical
findings,
and it
evidence
to
is Plaintiff's
support
her
burden
disability
to come
claim.
forward
See
20
with
C.F.R.
§ 416.912(c).
Plaintiff urges the Court to find reversible error on the
basis that the ALJ failed to develop the record as to Dr. Kelley’s
diagnosis. Pl. Mem. 13. The two cases cited by Plaintiff, Burgin v.
Astrue, 348 Fed.Appx. 646 (2d Cir. 2009), and Duncan v. Astrue,
No. 09–CV–4462,
2011
WL
1748549
(E.D.N.Y.
May
6,
2011),
are
inapposite. Pl. Reply Mem. (Dkt.#12) 14. In Duncan, the ALJ found
that the plaintiff had medically determinable severe impairments
but did not explicitly identify those impairments or specify which
of those multiple impairments were considered severe. 2011 WL
1748549, at *22. Similarly, remand was required in Burgin where the
plaintiff suffered from major depression and bipolar disorder, both
of which were identified by the ALJ and were supported by separate
diagnoses in the record, but the ALJ failed to consider the
plaintiff’s depression when determining her RFC.
Here, the medical record does not support a diagnosis of
“probable cerebral palsy,” resulting from a one-time examination,
but does support the diagnoses of Charcot-Marie-Tooth disease,
motor sensory polyneuropathy, and hereditary spastic paraplegia.
-Page 20-
These disorders are consistent with Plaintiff’s documented symptoms
of gait abnormality and neuropathy in her lower extremities,
supported by the diagnostic testing, and were diagnosed by her
treating physicians during an extended course of treatment.
Based on the evidence cited above and in the record as a
whole, the ALJ's finding that Plaintiff's “probable cerebral palsy”
was not a severe impairment was supported by substantial evidence.
Moreover, because the ALJ concluded that Plaintiff had established
other impairments considered severe under the Act and continued
with the sequential analysis, any arguable errors in the findings
at step two of the analysis were harmless. See Tryon v. Astrue,
No. 0–CV–537, 2012 WL 398952, at *3 (N.D.N.Y. Feb. 7, 2012).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on
the pleadings (Dkt.#9) is denied, and the Commissioner's crossmotion for judgment on the pleadings (Dkt.#11) is granted. 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
Dated:
Rochester, New York
October 28, 2014
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