Yarington v. Astrue

Filing 18

DECISION AND ORDER GRANTING Defendant's 10 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 3/23/2014. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GERALD W. YARINGTON, JR.,
Plaintiff,
v.

DECISION AND ORDER
13-CV-016S

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,1
Defendant.

1.

Gerald Yarington Jr. challenges the determination of an Administrative Law

Judge (“ALJ”) that he is not disabled within the meaning of the Social Security Act (“the
Act”).
2.

Following a traumatic accident in 1989, the Social Security Administration

(SSA) found Yarington to be disabled. He accordingly received benefits until 1996, when
SSA cancelled his benefits.2 After his benefits ceased, Yarington worked odd jobs on a
part-time basis as a handy man or in car repair. And he worked full-time at Home Depot
from 2007 through April 30, 2008.
On January 19, 2010, he applied for benefits again, alleging an onset date of April
30, 2008. SSA denied that application, and as result, he requested an administrative
hearing. Yarington received that hearing via videoconference before ALJ Roxanne Fuller
on August 16, 2011. The ALJ considered the case de novo, and on August 30, 2011

1

Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on
February 14, 2013. Therefore, under Rule 25(d) of the Federal Rules of Civil Procedure, Colvin is
substituted for former Commissioner, Michael J. Astrue, as the defendant in this suit.
2

Yarington testified that he ignored a letter from SSA notifying him that it intended to review his
case and initiate a hearing. Apparently, his benefits expired soon thereafter.

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issued a decision denying Yarington’s application. Yarington’s request for review with the
Appeals Council was denied, prompting him to file the current civil action on January 7,
2013, challenging Defendant’s final decision.3
3.

On September 26, 2013, the Commissioner and Yarington both filed motions

for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure.
For the following reasons, the Commissioner’s motion is granted and Yarington’s 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

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The ALJ’s decision became the Commissioner of Social Security’s final decision when the
Appeals Council denied Plaintiff’s request for review.

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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 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). This Court must, however,
“independently determine if the Commissioner's decision applied the correct legal
standards in determining that the plaintiff was not disabled.” Valder v. Barnhart, 410 F.
Supp. 2d 134, 138 (W.D.N.Y. 2006). “Failure to apply the correct legal standards is
grounds for reversal.” Townley v. Heckler, 748 F.2d 109, 112 (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
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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).
8.

In this case, the ALJ made the following findings:
(1) Yarington has not engaged in substantial gainful activity since his alleged

onset date. (R. 51-53.)4
(2) Yarington’s vision loss, migraines, anxiety, and pain disorder constitute
severe impairments. (Id.)
(3) He 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) He cannot perform any of his past relevant work, (R. 57) but he retains
the residual functional capacity (RFC) to perform light work, except he must avoid all use
of machinery and exposure to unprotected heights and concentrated exposure to
chemicals; he is limited to occupations requiring “only occasional far acuity, peripheral
acuity, depth perception, and nighttime vision”; and he is able to carry out one- to two-step
instructions while performing simple, routine, repetitive tasks with only occasional

4

Citations to the underlying administrative record are designated “R.”

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interaction with co-workers and the public. (R. 53-54).
(5) Last, relying on the testimony of a vocational expert, the ALJ found that
Yarington could perform work that exists in significant numbers in the national economy.
(R. 57-58.)
9.

Yarington argues that remand or reversal is required because the ALJ (1)

failed to classify some impairments as severe, (2) did not develop the record, (3) relied on
improper testimony from the vocational expert, and (4) failed to properly weigh medical
source opinions.
10.

Regarding the first objection, Yarington argues that impairments in his “left

upper extremity,” as well as his panic attacks and insomnia should have been considered
“severe” under the Social Security regulations.
A severe impairment is one that “significantly limits an individual's physical or mental
abilities to do basic work activities.” SSR 96-3P. Yarington first argues that impairments
related his accident in 1989, including limitations with respect to his left arm, hand, and
wrist are properly classified as “severe.” But the objective medical evidence on which
Yarington relies to support this contention simply does not compel that result. He points to
the findings of Dr. Samuel Balderman, who found that Yarington has “15 degrees of dorsal
and palmar flexion in his left wrist;” he also points to an X-ray showing that there is a plate
and screws in his forearm. But Dr. Balderman did not find that these issues limited
Yarington at all; in fact, he found that Yarington had “5/5 grip strength” and that his
dexterity was “intact.” (R. 445.) These are substantially similar to the findings of Dr. Joseph
C. DiPirro (R. 400, 552.) Instead, Dr. Balderman concluded that “the claimant’s limitations
are related to his poor vision.” (Id.) Accordingly, despite the one limitation regarding palmar

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and dorsal flexion, substantial evidence supports the ALJ’s conclusion that these
impairments do not have more than a minimal impact on Yarington’s ability to perform
basic work activities. What is more, any limitation in this regard was adequately accounted
for in the ALJ’s RFC determination, as she concluded Yarington could perform only light
work, which is limited to lifting no more than 20 pounds. The ALJ herself noted that her
RFC restricting him to light work “accomodate[s]” these limitations. (R. 52.)
11.

Yarington also contends that the ALJ should have found his panic attacks to

be a severe impairment. But the ALJ considered Yarington’s anxiety generally to be a
severe impairment; this clearly accounts for any panic attacks that Yarington suffered from.
See, e.g., Walterich v. Astrue, 578 F. Supp. 2d 482, 505 (W.D.N.Y. 2008) (considering
generalized anxiety and recurrent panic attacks together under 20 C.F.R. Pt. 404, Subpt.
P, Appendix 1, § 12.06, entitled “Anxiety Related Disorders”).
12.

Last, Yarington contends that his insomnia should have been considered

severe. But aside from the fact that he was diagnosed with this impairment, Yarington
points to no functional limitations brought about because of it. This Court is willing to
presume, as Yarington urges it to do, that a lack a sleep may well generally affect one’s
ability to perform work. But this Court will not presume, without substantial evidence, that
the ALJ erred in concluding that this impairment does not “significantly limit[]” Yarington’s
“physical or mental abilities to do basic work activities.” See SSR 96-3P (emphasis added).
At this stage of the sequential analysis, it is the plaintiff’s burden to demonstrate that such
a significant limitation exists, but Yarington can only say that “a worker who comes to work
tired and exhausted” would have sufficient limitations. That speculative, generic assertion
is insufficient to warrant reversal of the ALJ’s determination.
13.

Yarington next maintains that the ALJ erred by failing to develop the record.

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Specifically, Yarington contends that the ALJ should have attempted to retrieve
documentation from his first disability application, submitted after the 1989 accident. He
argues that this duty was triggered because he suffers from ongoing limitations related to
that accident.
The regulations provide that “[b]efore [SSA] make[s] a determination that you are
not disabled, [SSA] will develop your complete medical history for at least the 12 months
preceding the month in which you file your application unless there is a reason to believe
that development of an earlier period is necessary.” 20 C.F.R. § 404.1512(d). “An ALJ is
required to obtain additional evidence only if [he] cannot decide whether a claimant is
disabled based on the existing evidence.” Gray v. Astrue, No. 09-CV-00584, 2011 WL
2516496, at *6 (W.D.N.Y. June 23, 2011) (emphasis added).
As the regulation provides, the SSA is required to develop the record for at least 12
months preceding the date of Yarginton’s application; it is not required to develop the
record beyond that date unless it determines it to be necessary. This Court finds no
reversible error in the ALJ’s determination that further development was unnecessary. The
ALJ had before her relevant, and recent medical evidence. This included records from,
among others, Dr. Joseph DiPirro, the WNY Center for the Visually Impaired, Dr. J.
Maurice Hourihane, and consultive examiners Dr. Renee Baskin, Samuel Balderman, and
T. Andrews. Although there is no dispute that the 1989 accident left him impaired,
Yarington has not demonstrated that the status of his medical condition in 1989 – roughly
20 years before his alleged onset date – was necessary for the ALJ to make a
determination in 2011. This objection is therefore rejected.
14.

Yarington next contends that the ALJ’s reliance on the vocational expert

violated SSR 00-4P. That ruling provides that “SSA adjudicators may not rely on evidence
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provided by a [vocational expert], [vocational specialist], or other reliable source of
occupational information if that evidence is based on underlying assumptions or definitions
that are inconsistent with our regulatory policies or definitions.” Yarington appears to
contend that the vocational expert’s testimony was invalid because the hypothetical posed
to him limited Yarington to “occasional interaction” with co-workers. Pointing to SSR 85-15,
Yarington notes that unskilled work is defined as
the abilit[y] (on a sustained basis) to understand, carry out, and
remember simple instructions; to respond appropriately to
supervision, coworkers, and usual work situations; and to deal
with changes in a routine work setting.
SSR 85-15 goes on to provide that “[a] substantial loss of ability to meet any of
these basic work-related activities would severely limit the potential occupational base.”
Seizing on the language “sustained basis,” and contrasting it with the ALJ’s limitation to
“occasional interaction,” Yarington contends that “the [vocational expert] testified in
contradiction of this SSA regulatory definition.” (Pl. Br. at 17.)
This argument is unavailing.
First, SSR 85-15 does not even apply to a case like this, where the claimant suffers
from a combination of exertional and non-exertional limitations. Nosbisch v. Astrue, No.
10-CV-285S, 2012 WL 1029476, at *5 (W.D.N.Y. Mar. 26, 2012) (SSR 85-15 addresses
the medical-vocational rules for evaluating solely non-exertional impairments); Solsbee v.
Astrue, 737 F. Supp. 2d 102, 115 (W.D.N.Y. 2010) (citing Roberts v. Shalala, 66 F.3d 179,
183 (9th Cir.1995)) (same); Roma v. Astrue, 468 F. App'x 16, 20 (2d Cir. 2012) (summary
order) (“SSR 85–15 . . . does not apply to a case, such as this one, in which the claimant
suffers from a combination of exertional and non-exertional impairments.”).
Second, even if SSR 85-15 did apply, and if Yarington were correct – i.e., the

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vocational expert testified in contravention of SSR 85-15 – it would be the ALJ who erred
by calling a vocational expert in the first place and posing any hypothetical when SSR 8515 called for a finding of disabled. But SSR 85-15 does not direct the ALJ to find the
claimant disabled. See, e.g., Deboer v. Astrue, No. 5:11-CV-1359 GLS, 2012 WL 6044847,
at *5 (N.D.N.Y. Dec. 5, 2012). Rather, the ALJ’s duty in such a case – where a claimant’s
non-exertional limitations erode the occupational base – is simply to obtain the testimony
of a vocational expert. As the Second Circuit has found, “If a claimant has nonexertional
limitations that ‘significantly limit the range of work permitted by his exertional limitations,’
the ALJ is required to consult with a vocational expert.” Zabala v. Astrue, 595 F.3d 402,
410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986)); see also
Ketch v. Colvin, 12-CV-1104S, 2014 WL 411875, at *3 (W.D.N.Y. Feb. 3, 2014)
(occupational base is limited when claimant can interact “occasionally” with co-workers, but
ALJ simply required to consult a vocational expert in such a case). Of course, the ALJ did
precisely that in this case.
Finally, even if SSR 85-15 did apply, and even if it did direct a finding of disabled,
the ALJ’s determination that Yarington would be limited to “occasional” interaction with the
public and co-workers does not necessarily equate to a finding, as Yarington apparently
urges, that he has a “substantial loss of ability” to “respond appropriately to supervision
[and] co-workers.” See Jones-Reid v. Astrue, 934 F. Supp. 2d 381, 399 (D. Conn. 2012)
(ALJ did not find that claimant had a “severe” mental impairment; therefore, resort to SSR
85-15 was not necessary). The ALJ did not find such a “substantial loss” in an “ability to
respond” and the hypothetical posed to the vocational expert was not in error. In turn, the
ALJ properly relied on the expert’s testimony. See, e.g., Dumas v. Schweiker, 712 F.2d
1545, 1553 (2d Cir. 1983). This objection is therefore also rejected.
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15.

Yarington’s final argument does not save his claim. This Court finds no

reversible error in the ALJ’s application of weight to the various physicians’ opinions.
Yarington faults the ALJ for failing to use the “statutory 6 factors in evaluating the opinion
evidence.” (Pl.’s Br. at 18.) But Yarington himself fails to identify other opinions on which
the ALJ should have placed more weight and which might have altered the ALJ’s
conclusion. In his reply brief Yarington finally argues that the ALJ “rejected” the opinions
of Drs. DeGaeteno and Murray, who found Yarington’s panic attacks to be severe. But, as
noted above, the ALJ considered Yarington’s anxiety in general to be a severe impairment,
and this Court finds no error in that determination.
16.

In sum, after undertaking a full review of the record, it becomes clear that the

ALJ’s findings must be sustained. The evidence does not compel a finding that Yarington
is disabled and cannot perform the circumscribed work (which exists in significant numbers
in the national economy) identified by the ALJ. This Court will therefore grant Defendant's
Motion for Judgment on the Pleadings, and deny Plaintiff's motion for the same relief.
****
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 10) is GRANTED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No.11) is
DENIED.
FURTHER, that the Clerk of Court shall close this case.
SO ORDERED.
Dated: March 23, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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