Fuller v. Colvin

Filing 18

-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. This case is dismissed. The Clerk is directed to close this file. Signed by Hon. John T. Curtin on 9/1/2015. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JASON A. FULLER,
Plaintiff,
-vs-

13-CV-327-JTC

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

APPEARANCES:

LAW OFFICES OF KENNETH HILLER, PPLC (IDA M.
COMERFORD, ESQ., of Counsel) Amherst, New York, for Plaintiff.
WILLIAM J. HOCHUL, JR., United States Attorney (RICHARD D.
KAUFMAN, 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 17).
Plaintiff Jason Fuller initiated this action on April 2, 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 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 12, 13). For the following reasons, plaintiff’s motion is DENIED, and
the Commissioner’s motion is GRANTED.

BACKGROUND
Plaintiff was born on June 4, 1979 (Tr. 223).1 He protectively filed an application for
SSI benefits on July 12, 2010, alleging disability due to pain and headaches, with an onset
date of December 1, 2005 (Tr. 223, 228). The application was denied administratively on
October 23, 2010 (Tr. 158-161). Plaintiff then requested a hearing, which was held on
February 14, 2012, before Administrative Law Judge (“ALJ”) Eric L. Glazer (Tr. 89-135).
Plaintiff appeared and testified at the hearing, and was represented by counsel.
On February 29, 2012, the ALJ issued a decision finding that plaintiff was not
disabled within the meaning of the Act (Tr. 25-37). 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 (psoriasis, transitional
L5 vertebra with alleged radiculopathy, possible rotator cuff tear, and chondrocalcinosis of
the left knee) 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. 30). Additionally, the
ALJ found that plaintiff’s depressive disorder and generalized anxiety disorder do not cause
more than minimal limitations in the plaintiff’s ability to work and are thus non-severe (Tr.
27). The ALJ discussed the evidence in the record, including medical records, reports from
treating and consultative medical sources, and plaintiff’s hearing testimony, and
determined that plaintiff has the residual functional capacity (“RFC”) to perform a full range
of sedentary work, can occasionally lift and carry ten pounds, is able to sit for about six
hours in an eight-hour work day, and can stand and/or walk for two hours in an eight-hour

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 7) in this action.

work day (Tr. 35). While plaintiff is unable to climb, the ALJ found that this limitation has
little to no effect on the occupational base of unskilled sedentary work (Tr. 36). Using
Medical-Vocational Rule 201.24 as a framework, the ALJ determined that plaintiff has not
been disabled within the meaning of the Act at any time since the application was filed (Tr.
36-37).
The ALJ’s decision became the final decision of the Commissioner on February 8,
2013, when the Appeals Council denied plaintiff's request for review (Tr. 1-5), and this
action followed.
In his motion for judgment on the pleadings, plaintiff contends that the
Commissioner’s determination should be reversed because (1) the ALJ erred in finding that
plaintiff’s mental impairments were non-severe; and (2) the ALJ erred in his consideration
of the report of the consultative examiner. See Items 12-1, 15. 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 13-1, 16.

DISCUSSION
I.

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

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,
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.”
Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); cf.
Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. Sept. 5, 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 he 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 he is not only unable to do his previous work
but cannot, considering his 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]
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 to be 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
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 Glazer determined at step one of the sequential evaluation that

plaintiff had not engaged in substantial gainful activity since July 12, 2010, the application
date (Tr. 27). At steps two and three, as indicated above, the ALJ found that plaintiff did
not have an impairment or combination of impairments that meets or equals the severity
of any of the impairments in the Listings (Tr. 27-31). Specifically, the ALJ found that
plaintiff’s mental impairments - depressive disorder and generalized anxiety disorder - do
not cause more than minimal limitations on his ability to perform basic work activities and
are thus non-severe (Tr. 27). The ALJ noted only mild limitations in activities of daily living,
social functioning, concentration, persistence or pace, and no episodes of decompensation
of extended duration (Tr. 27-28).
At step four, the ALJ discussed the medical evidence of record. He found that while
plaintiff’s medically determinable impairments could reasonably be expected to cause the
symptoms alleged, his statements concerning the intensity, persistence, and limiting effects
of these symptoms were “not credible to the extent they are inconsistent with” the RFC
assessment (Tr. 32). The ALJ afforded little weight to the report of consultative examiner
Dr. Suzanne Picinich, as it was based primarily on plaintiff’s subjective complaints and was
internally inconsistent (Tr. 35).
Based on his review of the evidence, the ALJ found that plaintiff has the RFC to
perform a full range of sedentary work, except that he cannot climb due to knee problems
(Tr. 31). Using Medical-Vocational Rule 201.24 as a framework, the ALJ found that plaintiff
would be able to perform substantially all of the exertional demands of sedentary work and
thus was not under a disability from the time of the application (Tr. 36).

IV.

Plaintiff’s Motion
A.

Plaintiff’s Mental Impairments

Plaintiff argues that the ALJ erred in his step 2 determination that plaintiff’s mental
impairments were not severe. Consequently, he argues, the ALJ erred in failing to consider
those mental impairments at steps 3, 4, and 5 of the sequential analysis. The step 2
severity inquiry serves to “screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019,
1030 (2d Cir. 1995). “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, 1999 WL 294727, at *5 (E.D.N.Y. Mar.19,
1999) (quoting Social Security Ruling 85–28, 1985 WL 56856, at *3 (SSA)).
Plaintiff underwent a psychiatric consultative examination on October 6, 2010.
Plaintiff reported difficulty falling asleep, which he attributed to pain and discomfort. He
also reported feelings of hopelessness, fatigue, irritability, and social withdrawal, along with
apprehension and worry, short-term memory deficits, and concentration difficulties.
Plaintiff denied panic attacks, manic symptomology, and thought disorder (Tr. 316). Dr.
Rene Baskin, Ph.D., found plaintiff’s thought processes to be coherent and goal-directed,
his affect was appropriate, his mood was euthymic, attention and concentration were intact,
memory skills were relatively intact, and intellectual functioning was estimated to be in the
borderline range (Tr. 317). Plaintiff’s socialization revolved around his girlfriend and
children. Id. Dr. Baskin found that plaintiff had minimal to no limitations in his ability to
follow and understand simple directions, perform simple tasks independently, maintain
attention and concentration, maintain a regular schedule, learn new tasks, perform
complex tasks with supervision, make appropriate decisions, and relate adequately with
others (Tr. 318). The only limitation noted by Dr. Baskin was a moderate limitation in
plaintiff’s ability to deal with stress. Id.

On October 22, 2010, a State Agency psychiatric consultant found that Plaintiff's
depression and anxiety did not result in any marked limitation in his ability to perform workrelated mental activities (Tr. 339). In March 2011, plaintiff started treatment at Horizon
Health Services. In his initial psychiatric assessment, plaintiff reported anger, irritability,
insomnia, poor appetite, and social isolation (Tr. 432). He was alert, his cognitive functions
were intact, his insight was good, and he denied suicidal or homicidal ideations. Id. His
mood was depressed and he was prescribed Effexor and gabapentin. Id. In August 2011,
plaintiff reported fewer episodes of anger (Tr. 431). In October 2011, plaintiff reported
better moods, less depression, but still poor sleep (Tr. 436).
In December 2011, plaintiff underwent an initial mental health assessment at MidErie Counseling. He was alert, oriented, and cooperative (Tr. 448). His mood and affect
were euthymic, he was logical and goal-oriented, and reported good sleep and appetite.
He denied any suicidal or homicidal ideations, delusions, or hallucinations. Id. Plaintiff
reported good results on medication with no adverse side effects. Id. He was assigned a
Global Assessment of Functioning (“GAF”) score of 65 which indicates mild symptoms (Tr.
453).2
The ALJ applied the “special technique” to determine whether plaintiff's mental
impairments were severe. See 20 C.F.R. § 416.920a(c). In doing so, he found plaintiff had
a mild limitation in activities of daily living and that most of his limitations were related to
physical problems, not mental impairments (Tr. 27). In social functioning, the ALJ found

2

GAF is a scale from 0 to 100 that may be used to report the clinician's judgment of the
individual's overall symptom severity and the level of his or her functioning. A GAF score of 61–70
indicates a person with some mild symptoms or some difficulty in social, occupational, or school
functioning, but who is generally functioning pretty well and has some meaningful interpersonal
relationships. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (“DSM”) IV–TR, at 34 (4th ed., rev. 2000).

a mild limitation. Plaintiff had a girlfriend and visited with his children. Id. The ALJ found
that plaintiff had mild limitations in concentration, persistence, or pace, based on his
problems dealing with stress (Tr. 28). Plaintiff had no episodes of decompensation. Id.
Accordingly, the ALJ found plaintiff’s mental impairments were “not severe.”
416.920a(d)(1).
The regulations provide that a “severe impairment” is one, singly or in combination
with other impairments, which significantly limits the claimant's physical or mental ability
to do basic work activities. See 20 C.F.R. §§ 404.1520(c); 404.1521(a); 416.920(c);
416.921(a). Having reviewed the medical records, the court finds the ALJ’s determination,
that plaintiff’s mental impairments were non-severe, is supported by substantial evidence.
Plaintiff’s depression and anxiety were controlled by medication and caused him no
limitations in his ability to do basic work activities. As the plaintiff failed to sustain his
burden at step two, the ALJ did not err in failing explicitly to consider at step 3 whether
plaintiff’s mental impairments met the requirements of the Listings. See 20 C.F.R. §
416.920a(d)(2) (“If your mental impairment(s) is severe, we must then determine if it meets
or is equivalent in severity to a listed mental disorder.”) Additionally, at step 4, the ALJ
considered the mental and physical demands of plaintiff’s previous work in determining that
plaintiff was unable to perform his past relevant work as a mover and carpenter (Tr. 36).
Finally, at step 5, the ALJ considered all of plaintiff’s symptoms in determining plaintiff’s
RFC (Tr. 31). Accordingly, the ALJ did not err in his consideration of plaintiff’s mental
impairments.

B. The Report of the Consultative Examiner
Additionally, plaintiff contends that the ALJ erroneously discounted the report of the
consultative examiner, Dr. Suzanne Picinich, D.O. The ALJ gave the report “little weight,”
finding that it was primarily based on plaintiff’s subjective complaints and was internally
inconsistent (Tr. 35). Dr. Picinich noted plaintiff’s history of knee injury and surgery,
psoriatic arthritis and psoriasis, and low back pain (Tr 320). She observed that plaintiff was
in no distress, did not need help getting on or off the examination table, and rose from his
chair without difficulty. His gait was antalgic, he could not walk on his toes, and could squat
only 20% of the way to the floor (Tr. 321). Plaintiff had full flexion, extension and rotary
movement of the cervical spine, but reduced flexion of the lumbar spine (Tr. 322). The
supine straight leg raise (“SLR”) test yielded positive results, yet a seated SLR test yielded
negative results on the right and only mildly positive results on the left. Id. Plaintiff had full
range of movement of his upper extremities, but tenderness at his left knee (Tr. 323). He
had full strength in his upper and lower extremities, and full dexterity and grip strength. Id.
Dr. Picinich found moderate to marked limitations for climbing, bending, squatting,
stooping, lifting, and kneeling, and moderate limitations for sitting and standing for long
periods, walking, and travel (Tr. 323-24).
The ALJ gave little weight to this report, as it “seems to mainly be based on the
plaintiff’s subjective complaints” and was internally inconsistent (Tr. 35). While Dr. Picinich
found that plaintiff had moderate limitations for sitting and standing, these limitations arise
solely from plaintiff’s self-reported complaints of low back pain (Tr. 320). She found
moderate to marked limitations for lifting, but found full strength in plaintiff’s upper
extremities and full grip strength and hand and finger dexterity (Tr. 323). The SLR tests

yielded markedly different results, with no explanation or further analysis.
An ALJ should consider “all medical opinions received regarding the claimant.”
See Speilberg v. Barnhart, 367 F.Supp.2d 276, 281 (E.D.N.Y. 2005) (citing 20 C.F.R. §
404.1527(d)). In evaluating medical opinions, regardless of their source, the ALJ should
consider the following factors: (1) the frequency of examination and length, nature, and
extent of the treatment relationship; (2) the evidence in support of the physician's opinion;
(3) the consistency of the opinion with the record as a whole; (4) whether the opinion is
from a specialist; and (5) whatever other factors tend to support or contradict the opinion.
Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 199 (2d Cir. 2010); see Speilberg v.
Barnhart, 367 F.Supp.2d at 281 (“factors are also to be considered with regard to
non-treating sources, state agency consultants, and medical experts”) (citing 20 C.F.R. §§
404.1527(d) and (e)); House v. Astrue, 2013 WL 422058, *3 (N.D.N.Y. Feb 1, 2013)
(“[m]edical opinions, regardless of the source are evaluated considering several factors
outlined in 20 C.F.R. §§ 404.1527(c), 416.927(c)”).
In this case, the ALJ properly considered the report of Dr. Picinich, a one-time
consultative examiner, and fully explained the basis for the weight he accorded it.
Moreover, the RFC determination is consistent with the balance of the medical evidence.
In January 2011, plaintiff walked with a normal gait and moved all extremities without
significant problems (Tr. 381). In May 2011, examination of plaintiff’s lumbosacral spine
revealed no tenderness, swelling, or pain, normal strength and tone, and normal posture
and gait (Tr. 415). Accordingly, the court finds the ALJ’s determination, that plaintiff could
do sedentary work with a limitation on climbing, is supported by substantial evidence.

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.
So ordered.

________ \s\ John T. Curtin________
JOHN T. CURTIN
United States District Judge

Dated: September 1, 2015
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