Houseman v. Colvin

Filing 21

-CLERK TO FOLLOW UP----CLERK TO FOLLOW UP---DECISION AND ORDER DENYING Plaintiff's 12 MOTION for Judgment on the Pleadings and GRANTING the Commissioner's 13 MOTION for Judgment on the Pleadings. The Clerk is directed to enter judgment in favor of the Commissioner and to close this case. Signed by Hon. John T. Curtin on 10/21/2015. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DOROTHY J. HOUSEMAN,
Plaintiff,
-vs-

13-CV-210-JTC

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

APPEARANCES:

LAW OFFICES OF KENNETH HILLER, PPLC (JAYA SHURTLIFF,
ESQ., of Counsel) Amherst, New York, for Plaintiff.
WILLIAM J. HOCHUL, JR., United States Attorney (MARY CLARE
KANE, Assistant United States Attorney, of Counsel), Buffalo, New
York, for Defendant.

INTRODUCTION
This matter has been transferred to the undersigned for all further proceedings, by
order of United States District Judge William M. Skretny dated April 23, 2015 (Item 20).
Plaintiff Dorothy Houseman initiated this action on February 26, 2013 pursuant to the
Social Security Act, 42 U.S.C. § 405(g) (“the Act”), for judicial review of the final
determination of the Commissioner of Social Security (“Commissioner”) denying plaintiff’s
application for Supplemental Security Income (“SSI”) benefits under Title XVI of the Act.
Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure (see Items 9, 16). For the following reasons, plaintiff’s
motion is DENIED, and the Commissioner’s motion is GRANTED.

BACKGROUND
Plaintiff was born on August 22, 1978 (Tr.128).1 She protectively filed applications
for SSI benefits on November 9, 2008 and April 20, 2010, alleging disability due to
depression, anxiety, and a learning disability, with an onset date of January 1, 2008 (Tr.
128,132).2 The applications were denied administratively (Tr. 43-44). Plaintiff then
requested a hearing, which was held on November 9, 2011, before Administrative Law
Judge (“ALJ”) Timothy McGuan (Tr. 23-42). Plaintiff appeared and testified at the hearing,
and was represented by counsel. Additionally, the ALJ heard testimony from a Vocational
Expert (“VE”), James Phillips.
On November 22, 2011, the ALJ issued a decision finding that plaintiff was not
disabled within the meaning of the Act (Tr. 12-18). Following the sequential evaluation
process outlined in the Social Security Administration regulations (see 20 C.F.R.
§§ 404.1520, 416.920), the ALJ found that plaintiff’s impairments (depressive disorder,
post traumatic stress disorder, and learning disorder), while “severe,” did not meet or
medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix
1 (the “Listings”) (Tr. 14-15). The ALJ discussed the evidence in the record, including
school records, treatment records, reports from consultative medical sources, and plaintiff’s
hearing testimony, and determined that plaintiff has the residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels, with the following non-exertional

1

Parenthetical numeric references preceded by “Tr.” are to pages of the administrative transcript
filed by the Commissioner as part of the Answer to the Complaint (Item 8) in this action.
2

Plaintiff’s initial application was re-opened upon the filing of the second application, because the
initial application had been denied within 12 months of the subsequent application (Tr. 12)

2

limitations: plaintiff can occasionally interact with the public and frequently interact with coworkers and supervisors and can understand, remember, and carry out simple tasks, but
not complex or detailed tasks (Tr. 15). Using Medical-Vocational Rule 204.00 as a
framework for decision-making and considering the testimony of the VE, the ALJ
determined that jobs exist in significant numbers in the national economy that plaintiff can
perform and that she has thus not been disabled within the meaning of the Act at any time
since her initial application was filed (Tr. 17-18).
The ALJ’s decision became the final decision of the Commissioner on January 3,
2013, when the Appeals Council denied plaintiff's request for review (Tr. 1-4), and this
action followed.
In her motion for judgment on the pleadings, plaintiff contends that the
Commissioner’s determination should be reversed because (1) the ALJ failed to develop
the record when he did not order a consultative IQ exam; (2) the ALJ’s Residual Functional
Capacity assessment was not supported by substantial evidence; (3) the ALJ erred in his
assessment of plaintiff’s credibility; and (4) the Vocational Expert relied on an incomplete
RFC assessment. See Items 9-1, 18. The government contends that the Commissioner’s
determination should be affirmed because the ALJ’s decision was made in accordance
with the pertinent legal standards and is based on substantial evidence. See Item 16-1,
19.

DISCUSSION
I.

Scope of Judicial Review
The Social Security Act provides that, upon district court review of the
3

Commissioner‘s decision, “[t]he findings of the Commissioner . . . as to any fact, if
supported by substantial evidence, shall be conclusive ….”

42 U.S.C. § 405(g).

Substantial evidence is defined as evidence which “a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999). The substantial evidence test applies not only
to findings on basic evidentiary facts, but also to inferences and conclusions drawn from
the facts. Giannasca v. Astrue, 2011 WL 4445141, at *3 (S.D.N.Y. Sept. 26, 2011) (citing
Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)).
Under these standards, the scope of judicial review of the Commissioner’s decision
is limited, and the reviewing court may not try the case de novo or substitute its findings
for those of the Commissioner. Richardson, 402 U.S. at 401; see also Cage v. Comm'r of
Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012). The court’s inquiry is “whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached” by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982), quoted in Hart v. Colvin, 2014 WL 916747, at *2 (W.D.N.Y. Mar. 10, 2014).
However, “[b]efore the insulation of the substantial evidence test comes into play,
it must first be determined that the facts of a particular case have been evaluated in the
light of correct legal standards.” Klofta v. Mathews, 418 F. Supp. 1139, 1411 (E.D.Wis.
1976), quoted in Sharbaugh v. Apfel, 2000 WL 575632, at *2 (W.D.N.Y. March 20, 2000);
Nunez v. Astrue, 2013 WL 3753421, at *6 (S.D.N.Y. July 17, 2013) (citing Tejada, 167 F.3d
at 773). “Failure to apply the correct legal standard constitutes reversible error, including,

4

in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue,
546 F.3d 260, 265 (2d Cir. 2008) (citations omitted).

Thus, the Commissioner’s

determination cannot be upheld when it is based on an erroneous view of the law, or
misapplication of the regulations, that disregards highly probative evidence. See Grey v.
Heckler, 721 F.2d 41, 44 (2d Cir. 1983); see also Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987) (“Failure to apply the correct legal standards is grounds for reversal.”),
quoted in McKinzie v. Astrue, 2010 WL 276740, at *6 (W.D.N.Y. Jan. 20, 2010).
If the Commissioner's findings are free of legal error and supported by substantial
evidence, the court must uphold the decision. 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive, and where a claim has been denied ... the court shall review only the
question of conformity with [the] regulations….”); see Kohler, 546 F.3d at 265. “Where the
Commissioner's decision rests on adequate findings supported by evidence having rational
probative force, [the court] will not substitute [its] judgment for that of the Commissioner.”
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Even where there is substantial
evidence in the record weighing against the Commissioner's findings, the determination will
not be disturbed so long as substantial evidence also supports it. See Marquez v. Colvin,
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013) (citing DeChirico v. Callahan, 134 F.3d
1177, 1182 (2d Cir. 1998) (upholding the Commissioner's decision where there was
substantial evidence for both sides)).
In addition, it is the function of the Commissioner, not the reviewing court, “to
resolve evidentiary conflicts and to appraise the credibility of witnesses, including claimant.”

5

Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); cf. Cichocki
v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013). “Genuine conflicts in the medical evidence
are for the Commissioner to resolve,” Veino, 312 F.3d at 588, and the court “must show
special deference” to credibility determinations made by the ALJ, “who had the opportunity
to observe the witnesses’ demeanor” while testifying. Yellow Freight Sys. Inc. v. Reich, 38
F.3d 76, 81 (2d Cir. 1994).

II.

Standards for Determining Eligibility for Disability Benefits
To be eligible for SSI benefits under the Social Security Act, plaintiff must present

proof sufficient to show that she suffers from a medically determinable physical or mental
impairment “which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months …,” 42 U.S.C.
§ 1382c(a)(3)(A), and is “of such severity that [s]he is not only unable to do h[er] previous
work but cannot, considering h[er] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy ….” 42 U.S.C.
§ 1382c(a)(3)(B); see also 20 C.F.R. § 416.905(a). As indicated above, the regulations set
forth a five-step process to be followed when a disability claim comes before an ALJ for
evaluation of the claimant's eligibility for benefits. See 20 C.F.R.§ 416.920. First, the ALJ
must determine whether the claimant is presently engaged in substantial gainful activity.
If the claimant is not, the ALJ must decide if the claimant has a “severe” impairment, which
is an impairment or combination of impairments that has lasted (or may be expected to
last) for a continuous period of at least 12 months which “significantly limits [the claimant's]

6

physical or mental ability to do basic work activities ….” 20 C.F.R. § 416.920(a)(4)(ii); see
also § 416.909 (duration requirement). If the claimant's impairment is severe and of
qualifying duration, the ALJ then determines whether it meets or equals the criteria of an
impairment found in the Listings. If the impairment meets or equals a listed impairment,
the claimant will be found to be disabled. If the claimant does not have a listed impairment,
the fourth step requires the ALJ to determine if, notwithstanding the impairment, the
claimant has the residual functional capacity to perform his or her past relevant work. See
20 C.F.R. § 416.920(a)(4)(iv). If the claimant has the RFC to perform his or her past
relevant work, the claimant will be found not disabled. Finally, if the claimant is not capable
of performing the past relevant work, the fifth step requires the ALJ to determine whether
the claimant is capable of performing any work which exists in the national economy,
considering the claimant's age, education, past work experience, and RFC. See Curry v.
Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Lynch v. Astrue, 2008 WL 3413899, at *2
(W.D.N.Y. Aug. 8, 2008); 20 C.F.R. § 416.920(a)(4)(v).
The claimant bears the burden of proof with respect to the first four steps of the
analysis. If the claimant meets this burden, the burden shifts to the Commissioner to show
that there exists work in the national economy that the claimant can perform. Lynch, 2008
WL 3413899, at *3 (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)). “In the
ordinary case, the Commissioner meets h[er] burden at the fifth step by resorting to the
applicable medical vocational guidelines (the grids), … [which] take into account the
claimant's residual functional capacity in conjunction with the claimant's age, education,
and work experience.” Rosa, 168 F.3d at 78 (internal quotation marks, alterations and

7

citations omitted). If, however, a claimant has non-exertional limitations (which are not
accounted for in the Grids) that “significantly limit the range of work permitted by his
exertional limitations then the grids obviously will not accurately determine disability
status ….” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (internal quotation marks and
citation omitted). In such cases, “the Commissioner must ‘introduce the testimony of a
vocational expert (or other similar evidence) that jobs exist in the national economy which
claimant can obtain and perform.’ ” Rosa, 168 F.3d at 78 (quoting Bapp, 802 F.2d at 603).

III.

The ALJ’s Disability Determination
In this case, ALJ McGuan determined at step one of the sequential evaluation that

plaintiff had not engaged in substantial gainful activity since November 9, 2008, the date
of plaintiff’s initial application (Tr. 14). At steps two and three, as indicated above, the ALJ
found that plaintiff suffers from severe impairments, but that none of her impairments,
singly or in combination, meets or equals the severity of any of the impairments in the
Listings (Tr. 14-15). With particular focus on Listings 12.02 (Organic Mental Disorders),
12.04 (Affective Disorders), and 12.06 (Anxiety Related Disorders), the ALJ found only mild
restrictions in plaintiff’s activities of daily living, moderate difficulties in social functioning,
moderate difficulty in concentration, persistence or pace, and no episodes of
decompensation (Tr. 15).
At step four, the ALJ discussed the evidence, including treatment records, reports
of consultative examinations, and plaintiff’s testimony. He found that while plaintiff’s
medically determinable impairments could reasonably be expected to cause the symptoms
alleged, her statements concerning the intensity, persistence, and limiting effects of these
8

symptoms were “not credible to the extent they are inconsistent with” the RFC assessment
(Tr. 16).
Based on his review of the evidence, the ALJ found that plaintiff has the RFC to
perform a full range of work at all exertional levels, with certain non-exertional limitations
(Tr. 15). Using Medical-Vocational Rule 204.00 as a framework and relying on the
testimony of a VE, the ALJ found that there were a significant number of jobs in the
national economy that plaintiff would be able to perform and thus she was not under a
disability from the time of her initial application (Tr. 17-18).

IV.

Plaintiff’s Motion
A.

ALJ’s Duty to Develop the Record

Plaintiff argues that, as there was evidence that raised a colorable claim of
intellectual disability, the ALJ was under an obligation to develop the record and order a
consultative IQ exam.

A consultative examination is used to “try to resolve an

inconsistency in the evidence, or when the evidence as a whole is insufficient to allow [the
ALJ] to make a determination or decision” on the claim. 20 C.F.R. § 416.919a(b). The
decision to obtain a consultative examination is made on a case-by-case basis at the
discretion of the Commissioner. See 20 C.F.R. §§ 416.917, 416.919–19b. “It can be
reversible error for an ALJ not to order a consultative examination when an examination
is required for an informed decision.” Tankisi v. Commissioner of Soc. Sec., 521 F. App'x
29, 32 (2d Cir. 2013). “However, an ALJ is not required to order a consultative examination
if the facts do not warrant or suggest the need for it.” Id. (citing Lefever v. Astrue, 2010 WL
3909487, at *7 (N.D.N.Y. Sept. 30, 2010), aff'd, 443 F. App'x 608 (2d Cir. 2011)).
9

In this case, plaintiff underwent a psychiatric consultative evaluation on April 17,
2009. Plaintiff reported difficulty with sleep and loss of appetite, irritability, and social
withdrawal (Tr. 189). Dr. Thomas Ryan, Ph.D. found plaintiff’s thought processes were
coherent, her mood was neutral, her attention and concentration were intact, and her
memory skills were intact (190-91). Plaintiff’s cognitive functioning appeared to be in the
below average range, but her insight and judgment were adequate (Tr. 191). Dr. Ryan
diagnosed adjustment disorder with depressed mood. He found “no significant limitations”
in plaintiff’s ability to follow and understand simple directions, perform simple tasks,
maintain attention and concentration, maintain a regular schedule, learn new tasks,
perform complex tasks, and generally make adequate decisions (Tr. 191). Dr. Ryan stated
that plaintiff may have moderate limitations in her ability to relate adequately with others
and deal with stress. Id.
On June 25, 2010, plaintiff underwent an additional psychiatric evaluation with Dr.
Renee Baskin, Ph.D. Again, plaintiff reported trouble sleeping, weight loss, and anxiety
(Tr. 207). Dr. Baskin found plaintiff’s speech was clear, her thought processes were
coherent and goal-directed, her affect was appropriate, her attention, concentration, and
memory were intact, and her insight and judgment were fair (Tr. 208-09). Plaintiff’s
cognitive functioning was estimated to be in the below average range (Tr. 209). Dr. Baskin
diagnosed dysthymic disorder and stated that plaintiff would have minimal to no limitations
in her ability to follow and understand simple directions and instructions, perform simple
tasks independently, maintain attention and concentration, maintain a regular schedule,
learn new tasks with supervision, make appropriate decisions, relate adequately with
others, and appropriately deal with stress (Tr. 209).
10

On June 25, 2010, plaintiff commenced treatment with Catholic Charities, seeking
medication for depression and anxiety, and underwent an initial psychiatric evaluation. She
described a childhood of emotional and sexual abuse and complained of sleep
disturbances, loss of appetite, anxiety, and angry outbursts (Tr. 269). Plaintiff was alert
and oriented, her mood was dysphoric and anxious, her thought processes were rational,
insight was limited, and judgment was intact (Tr. 270-71). Plaintiff was diagnosed with
depressive disorder and posttraumatic stress disorder (“PTSD”) and was prescribed Abilify
and Klonopin (Tr. 271).
Records from Hopevale Union Free School District indicate that plaintiff was
classified as Emotionally Disabled and Learning Disabled. According to her Individual
Education Program (“IEP”), plaintiff was placed in a classroom with no more than 6
students, was exempt from a second language requirement, and received an IEP diploma
(Tr. 216). Plaintiff was provided reading services for 36 minutes, 5 times per week and
certain test modifications. In 1994, plaintiff’s final average was 85. In 1995 her final
average was 85. Plaintiff graduated from Hopevale in 1996 (Tr. 220-221).
Contrary to plaintiff’s arguments, the record does not support plaintiff's position that
an IQ examination was necessary for an informed decision. Plaintiff did not seek SSI on
the basis of a cognitive mental disability. Although Drs. Ryan and Baskin both estimated
plaintiff's cognitive functioning as below average, there is no evidence to suggest that
plaintiff is mentally impaired consistent with Listing 12.05.3 The consultative examiners
3

Listing 12.05 (Mental Retardation) requires a showing of (1) mental incapacity evidenced by
dependence upon others for personal needs; (2) valid IQ score of 59 or less; (3) borderline IQ score of 60
to 70 plus an additional physical or mental impairment that imposes a significant work-related limitation; or
(4) IQ score of 60 to 70 plus two or more of the following: marked limitation in activities of daily living,
social functioning, or maintaining concentration, persistence or pace, or repeated episodes of

11

both concluded that plaintiff retains the capacity to understand and follow simple
instructions and directions, and perform simple tasks independently (Tr. 328). At the time
of the hearing, plaintiff testified that she was attending classes to earn a General
Educational Development (“GED”) degree and had successfully managed seasonal work
at a retail store (Tr. 30, 34-35). She is capable of attending to her personal and daily living
needs independently, and manages her own funds (Tr. 27-28, 36). Plaintiff's cognitive
limitations are accommodated in the ALJ's assessment of her residual functional capacity
(Tr. 15). In sum, the record does not suggest any mental limitation requiring a consultative
intelligence examination in order to make an informed decision.
B. The RFC Determination
Additionally, plaintiff contends that the Commissioner’s determination should be
reversed because the ALJ’s RFC determination was not supported by substantial
evidence. According to plaintiff, the ALJ made misstatements of fact and misinterpreted
the opinions of the consultative examiners when he stated that both consultative examiners
found that plaintiff suffered “no functional limitations” (Tr. 16).
“Residual functional capacity” is “an assessment of an individual's ability to do
sustained work-related physical and mental activities in a work setting on a regular and
continuing basis.” Social Security Ruling 96–8p, 1996 WL 374184, *2 (S.S.A.1996). In
assessing a claimant's RFC, the ALJ must consider all of the relevant medical and other
evidence in the case record to assess the claimant's ability to meet the physical, mental,
sensory and other requirements of work.” Domm v. Colvin, 2013 WL 4647643, at *8

decompensation. 20 C.F.R. Pt 404, Subpt. P, App. 1,§ 12.05.

12

(W.D.N.Y. Aug. 29, 2013), aff'd, 579 F. App'x 27 (2d Cir. 2014). The RFC determination
“must be set forth with sufficient specificity to enable [the court] to decide whether the
determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587
(2d Cir. 1984); see also Hamlin v. Colvin, 2014 WL 4669244, at *6 (N.D.N.Y. Sept. 18,
2014).
In this case, ALJ McGuan found that plaintiff retained the RFC for a full range of
work at all exertional levels, but limited her to simple tasks in an environment with little
public contact (Tr. 15). He relied on the psychiatric consultative examinations of Drs. Ryan
and Baskin, as there was no other treating or examining source opinion regarding plaintiff’s
ability to perform work-related functions.

While the ALJ described the consultative

examiners as having found “no functional limitations,” both consultative examiners actually
found minor limitations. Dr. Ryan found “no significant limitations” in plaintiff’s ability to
follow and understand simple directions, perform simple tasks, maintain attention and
concentration, maintain a regular schedule, learn new tasks, perform complex tasks, and
generally make adequate decisions, but found that plaintiff “may have” moderate limitations
in her ability to relate adequately with others and deal with stress (Tr. 191). Dr. Baskin
stated that plaintiff would have minimal to no limitations in her ability to follow and
understand simple directions and instructions, perform simple tasks independently,
maintain attention and concentration, maintain a regular schedule, learn new tasks with
supervision, make appropriate decisions, relate adequately with others, and appropriately
deal with stress (Tr. 209).
The court finds this minor inaccuracy in the ALJ’s description of the consultative
opinions is insignificant and ultimately harmless. The ALJ determined plaintiff’s RFC
13

consistent with the substance of the opinions of Drs. Ryan and Baskin. “[T]he opinions of
consulting sources ‘may constitute substantial evidence if they are consistent with the
record as a whole.’ ” Smith v. Colvin, 17 F.Supp.3d 260, 268 (W.D.N.Y. 2014) (quoting
Barringer v. Comm'r of Soc. Sec., 358 F.Supp.2d 67, 79 (N.D.N.Y. 2005)). “This is
particularly so where the consultant directly examines the applicant.” Id. Here, the opinions
of the consultative examiners are consistent with the relatively benign findings in the
medical record. Additionally, the court notes that there is no treating source opinion that
characterizes plaintiff as disabled and unable to function in the workplace. The RFC takes
into account plaintiff’s need for simple work in a low stress setting. Accordingly, the court
finds that any error in the characterization of the medical opinions is harmless, as the RFC
determination is based on substantial evidence in the record.
Plaintiff further argues that the ALJ erred in failing to weigh the opinions of the State
Agency review analysts. In a Psychiatric Review Technique (“PRT”) dated April 30, 2009,
State Agency psychology consultant Butensky found mild restrictions in plaintiff’s activities
of daily living and ability to maintain social functioning, no restrictions in maintaining
concentration, persistence or pace, and no episodes of decompensation (Tr. 203). In a
Mental Residual Functional Capacity Assessment (“MRFCA”), Dr. Butensky found that
plaintiff’s psychiatric impairment is non-severe (Tr. 205). In a PRT dated August 25, 2010,
State Agency psychology review consultant Totin found mild restrictions in plaintiff’s
activities of daily living and ability to maintain social functioning, moderate restrictions in
maintaining concentration, persistence or pace, and no episodes of decompensation (Tr.
246). Dr. Totin concluded that plaintiff could perform simple work in a low-stress setting
(Tr. 248). In the “Summary Conclusions” of the MRFCA, Dr. Totin found no significant
14

limitations in most of the areas of mental activity. He found moderate limitations in the
plaintiff’s ability to maintain attention and concentration for extended periods, the ability to
complete a normal workday and workweek without interruptions from symptoms, the ability
to respond to changes in the work setting, and the ability to set realistic goals or make
plans independently of others (Tr. 232-33).4
The ALJ did not cite to these opinions in the decision or give them any specific
weight. These review consultants did not examine plaintiff personally, but merely reviewed
the reports of the consultative examiners and incorporated the results of those
examinations into their conclusions, which are consistent with both the consultative
examiners’ opinions and the RFC. The court finds that the ALJ did not err in failing to
specifically weigh or discuss the opinions of the review consultants.
Plaintiff also argues that the ALJ failed to provide a complete function-by-function
analysis of plaintiff’s mental RFC and failed to make specific findings as to plaintiff’s ability
to make work-related decisions and deal with changes in the work setting. An ALJ's failure
to express a claimant's RFC in a function-by-function analysis does not necessarily
mandate remand so long as the RFC is otherwise supported by substantial evidence. See
Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“[w]e decline to adopt a per se rule[;]
... [w]here an ALJ's analysis at Step Four regarding a claimant's functional limitations and
restrictions affords an adequate basis for meaningful judicial review, applies the proper

4

The “Summary Conclusions” reported by the state agency review consultants in the mental RFC
assessment form are chiefly intended to serve as a “worksheet” for the reviewer's use, and “[i]t is the
narrative written by the psychiatrist or psychologist in section III (“Functional Capacity Assessment') of [the
form] that adjudicators are to use as the assessment of RFC.” Social Security Administration, Program
Operations Manual System § DI 25020 .010, https:// secure.ssa.gov/apps10/poms.nsf/lnx/0425020010.

15

legal standards, and is supported by substantial evidence such that additional analysis
would be unnecessary or superfluous, we agree with our sister Circuits that remand is not
necessary merely because an explicit function-by-function analysis was not performed”);
Campbell v. Astrue, 465 F. App’x 4, 6 (2d Cir. 2012) (summary order) (“while the ALJ did
not expressly discuss [claimant's] ability to perform each of the functions ... [,] substantial
evidence supports the ALJ's overall RFC determination”); Murphy v. Astrue, 2013 WL
1452054, *6 (W.D.N.Y. Apr. 9, 2013) (substantial evidence supported RFC assessment
and remand was not required, “although the ALJ did not methodically walk through each
‘function’ ”); Lloyd v. Astrue, 2013 WL 690499, *4 (W.D.N.Y. Feb. 25, 2013) (“[t]here is no
dispute that the ALJ did not conduct an explicit function-by-function assessment in his
decision[,] [b]ut that is not, ipso facto, cause for remand”). Although remand is not
automatic, it would be appropriate “where an ALJ fails to assess a claimant's capacity to
perform relevant functions, despite contradictory evidence in the record, or where other
inadequacies in the ALJ's analysis frustrate meaningful review.” Cichocki v. Astrue, 729
F.3d at 177.
Here, the ALJ found that plaintiff could perform simple unskilled work with limited
interaction with the public and co-workers. Implicit in this finding is plaintiff’s ability to make
simple decisions and adapt to a low stress work environment. The record contains no
contradictory evidence to suggest that plaintiff is incapable of performing these functions
and the record is not so inadequate as to frustrate meaningful review. The ALJ discussed
the medical evidence and plaintiff’s hearing testimony and incorporated plaintiff’s
limitations into the RFC, which is supported by substantial evidence in the record.
Accordingly, while the ALJ did not provide a function-by-function analysis, any error in this
16

respect is harmless. Based on the court's review, and upon consideration of the record
as a whole, the court finds that the ALJ's RFC assessment was accomplished in
accordance with the requirements of the regulations, administrative rulings, and case law
in a manner sufficient to allow plaintiff and the court to follow his reasoning, and is
supported by substantial evidence. Accordingly, plaintiff is not entitled to reversal or
remand on the ground that the RFC assessment is not based on substantial evidence.5
C. Credibility
Plaintiff argues that the ALJ erred in his assessment of her credibility. The general
rule in this regard is that the ALJ is required to evaluate the credibility of testimony or
statements about the claimant's impairments when there is conflicting evidence about the
extent of pain, limitations of function, or other symptoms alleged. See Paries v. Colvin,
2013 WL 4678352, at *9 (N.D.N.Y. Aug. 30, 2013) (citing Snell v. Apfel, 177 F.3d 128, 135
(2d Cir. 1999)). The Commissioner has established a two-step process to evaluate a
claimant's testimony regarding his or her symptoms:
First, the ALJ must consider whether the claimant has a medically
determinable impairment which could reasonably be expected to produce the
pain or symptoms alleged by the claimant. Second, if the ALJ determines
that the claimant is impaired, he then must evaluate the intensity,
persistence, and limiting effects of the claimant's symptoms. If the claimant's
statements about his symptoms are not substantiated by objective medical
evidence, the ALJ must make a finding as to the claimant's credibility.

Matejka v. Barnhart, 386 F.Supp.2d 198, 205 (W.D.N.Y. 2005), quoted in Hogan v. Astrue,
491 F.Supp.2d 347, 352 (W.D.N.Y. 2007); see 20 C.F.R. § 416.929. The Regulations

5

As the court has found that the RFC determination is supported by substantial evidence, it need
not address plaintiff’s argument that the Vocational Expert relied on an incomplete or inaccurate RFC
assessment.

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outline the following factors to be considered by the ALJ in conducting the credibility
inquiry: (1) the claimant's daily activities; (2) the location, duration, frequency and intensity
of the claimant's pain or other symptoms; (3) precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication the claimant takes or has
taken to alleviate her pain or other symptoms; (5) treatment, other than medication, the
claimant receives or has received for relief of her pain or other symptoms; (6) any
measures the claimant uses or has used to relieve her pain or other symptoms; and (7)
other factors concerning the claimant's functional limitations and restrictions due to pain
or other symptoms. See 20 C.F.R. § 416.929(c)(3)(i)-(vii); Meadors v. Astrue, 370 F.
App'x 179, 184 n. 1 (2d Cir. 2010). The Commissioner's policy interpretation ruling on this
process provides the following further guidance:
The finding on the credibility of the individual's statements cannot be based
on an intangible or intuitive notion about an individual's credibility. The
reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a
conclusory statement that “the individual's allegations have been considered”
or that “the allegations are (or are not) credible.” It is also not enough for the
adjudicator simply to recite the factors that are described in the regulations
for evaluating symptoms. The determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight.
SSR 96–7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996).
In this case, the court's review of the ALJ's determination in light of the record as a
whole reveals that the ALJ's credibility assessment was performed in accordance with this
guidance. Plaintiff argues that the ALJ erred in finding that she did seasonal work and that
her difficulty in getting out of bed was a “personal choice” (Tr. 16). A review of plaintiff’s
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hearing testimony reveals that plaintiff did seasonal work as a cashier at Big Lots and was
able to function, although she described some difficulty (Tr. 34-35). Plaintiff is not
motivated to undertake household chores such as cleaning and laundry, but she eventually
completes them (Tr. 36). She testified that she goes to the grocery store when necessary
(Tr. 32). She has trouble getting out of bed every morning, but gets up to attend GED class
Monday through Friday by setting an alarm (Tr. 29-30). Additionally, the medical records
indicate mild symptoms, no hospitalizations, and limited treatment. Plaintiff stated that her
anxiety is triggered by financial pressures (“I’m ... on the verge of losing my place to live.
I have no money. . . . Nothing seems to go right.”) (Tr. 32-33). The ALJ concluded that
plaintiff’s activities of daily living are inconsistent with complete disability.
In the court's view, this finding is sufficiently grounded in the evidence and specific
enough to make clear to plaintiff, to this court, and to any subsequent reviewers the weight
the ALJ gave to plaintiff's statements about the limiting effects of her symptoms, and the
reasons for that weight. As such, and upon review of the record as a whole, the court finds
that the ALJ's credibility assessment in this case was performed in accordance with the
requirements of the Social Security Act, its implementing regulations, and the weight of
controlling authority. Accordingly, plaintiff is not entitled to reversal or remand on this
ground.

CONCLUSION
For the foregoing reasons, plaintiff's motion for judgment on the pleadings (Item 12)
is denied, the defendant’s motion for judgment on the pleadings (Item 13) is granted, and
the case is dismissed. The Clerk of the Court is directed to close this case.
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So ordered.

_______\s\ John T. Curtin___________
JOHN T. CURTIN
United States District Judge

Dated: October 21, 2015

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