Harrison v. Colvin
Filing
12
DECISION AND ORDER DENYING Plaintiff's 8 Motion for Judgment on the Pleadings; GRANTING Defendant's 10 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 9/19/2015. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEANETTE D. HARRISON,
Plaintiff,
v.
DECISION AND ORDER
14-CV-604S
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Plaintiff Jeannette Harrison challenges an Administrative Law Judge’s (“ALJ”)
decision dated March12, 2013, wherein the ALJ determined that Plaintiff was not disabled
under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. She now
contends that this determination is not based upon substantial evidence, and reversal is
warranted.
2.
Plaintiff filed applications for disability insurance benefits and supplemental
security income in July 2011 alleging a disability beginning on July 18, 2011. Both claims
were denied on October 13, 2011. Plaintiff was granted a hearing on those denials and,
on January 25, 2013, Plaintiff and a vocational expert testified. The ALJ subsequently
found that Plaintiff was not disabled within the meaning of the Social Security Act. Plaintiff
filed an administrative appeal, submitting additional evidence. The Appeals Council
accepted the new evidence and made it part of the record, but denied Plaintiff’s request
for review on May 30, 2014, rendering the ALJ’s determination the final decision of the
Commissioner. Plaintiff filed the instant action on July 28, 2014.
3.
Plaintiff and the Commissioner each filed a Motion for Judgment on the
Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Judgment on
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the pleadings is appropriate where material facts are undisputed and where a 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).
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 only be reversed 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,” and 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) (internal
quotation marks and citation omitted). 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), cert denied, 459 U.S. 1212
(1983).
5.
To determine 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 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 will not substitute “its own judgment for that of the [Commissioner], even if it might
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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).
6.
The Commissioner has established a five-step sequential evaluation process
to determine whether an individual is disabled as defined under the 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, 140-42, 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
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.
8.
While the claimant has the burden of proof as to the first four steps, 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). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his physical ability, age, education and work
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experience. Second, the Commissioner must determine whether jobs exist in the national
economy that a person having the claimant's qualifications could perform. See 42 U.S.C.
§ 423(d)(2)(A); 20 C.F.R. § 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460-61, 103
S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.
In this case, the ALJ made the following findings with regard to the five-step
process set forth above: (1) Plaintiff had not engaged in substantial gainful activity since
July 18, 2011, her alleged onset date (R. 17);1 (2) Plaintiff had the following severe
impairments: degenerative disc disease, obesity, and diabetes mellitus (R. 17-18); (3)
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled a recognized disabling impairment under the regulations (R. 18); (4) Plaintiff had
the residual functional capacity (“RFC”) to perform light work with certain exceptions,
including the need to be able to change position from sitting to standing at least every 30
minutes, and she should not be required to twist her body or neck more than a limited
amount (R. 18-22); and (5) Plaintiff was unable to perform her past relevant work as a bus
driver, but there were nonetheless jobs that existed in significant numbers in the national
economy that Plaintiff could perform. (R. 22-24.)
10.
Plaintiff contends that remand is required because “due process required the
Appeals Council [to] provide some fact specific explanation to accompany its bare bones
assertion that it had undertaken the appropriate regulatory review in light of the new and
material evidence” submitted by Plaintiff. (Pl’s Mem of Law at 14-21 (emphasis in original).)
This argument is without merit. This is not a case where the Appeals Council considered
the merits of the ALJ's decision and then affirmed. See Snell v. Apfel, 177 F.3d 128, 132
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Citations to the underlying administrative record are designated as “R.”
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(2d Cir.1999) (reviewing decision of Appeals Council that reconsidered and reversed the
ALJ's determination based on the Council's new analysis). Instead, although the Appeals
Council made this additional evidence part of the record, it denied Plaintiff's request for
review. (R. 1–4.) “SSA regulations provide that, if the Appeals Council grants review of a
claim, then the decision that the Council issues is the Commissioner's final decision. But
if, as here, the Council denies the request for review, the ALJ's opinion becomes the final
decision.” Sims v. Apfel, 530 U.S. 103, 106–7, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000);
Perez v. Chater, 77 F.3d 41, 44 (2d Cir.1996); see DiBlasi v. Comm'r of Soc. Sec., 660 F.
Supp. 2d 401, 406 (N.D.N.Y. 2009) (where the Appeals Council denies review, it is the
ALJ's determination that is the final decision of the Commissioner and therefore reviewable
pursuant to 42 U.S.C. § 405(g)). Accordingly, contrary to her argument, Plaintiff was not
deprived of notice of the reasons her applications were denied; they were denied for the
reasons stated in the ALJ’s March 12, 2013 decision.
Further, Plaintiff was not deprived of an opportunity to be heard on the new
evidence submitted to the Appeals Council. Because the Council accepted the evidence,
these records became part of the administrative record to be considered by this Court in
determining whether the ALJ's determination is supported by substantial evidence. Perez,
77 F.3d at 45-46; Sobolewski v. Apfel, 985 F. Supp. 300, 311 (E.D.N.Y. 1997); see Urena
v. Colvin, No. 13 Civ. 06270(LGS)(DCF), 2015 WL 585583, *13 (S.D.N.Y. Feb. 11, 2015)
(even where an ALJ’s decision was correct at the time it was issued, consideration in a
405(g) review of new evidence submitted to the Appeals Council may render that decision
unsupported by substantial evidence) (citing Brown v. Apfel, 174 F.3d 59, 65 (2d Cir.
1999)).
11.
Plaintiff further argues that the ALJ’s conclusion regarding her ability to sit and
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stand is arbitrary and unsupported by any medical evidence. (Pl’s Mem of Law at 11-14.)
Initially, this is not a case where a medical opinion was either not obtained or completely
rejected.
Cf. Haymond v. Colvin, No. 1:11-CV-0631(MAT), 2014 WL 2048172, *7
(W.D.N.Y. May 19, 2014) (remand warranted where “no psychiatrist, psychologist, social
worker, or counselor examined Plaintiff and gave an opinion regarding the functional
limitations” resulting from an acknowledged impairment). Instead, in determining Plaintiff’s
RFC, the ALJ gave great weight to the opinion of consultative examiner Dr. Schwab who
opined that Plaintiff had only a mild restriction in bending, lifting, and carrying, with no
restriction noted in sitting or standing. (R. 22, 251.)
Further, this is also not a case where an ALJ “reject[ed] a treating physician’s
diagnosis merely on the basis that other examining doctors reported no similar findings.”
Rosa v. Callahan, 168 F.3d 72, 81 (2d Cir. 1999) (citing Carroll v. Sec’y of Health & Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)). Here, the ALJ noted and properly rejected the
conclusory notation of Dr. Hart that Plaintiff was “Permanent Total Impaired” because
where, as here, no further explanation is offered, such a statement that a claimant is or is
not disabled is not a medical opinion entitled to any special significance, but is instead a
determination within the purview of the Commissioner. (R. 22); 20 C.F.R. §
404.1527(d)(1),(3); § 416.927(d)(1). Although the new evidence Plaintiff submitted to the
Appeals Council includes a RFC questionnaire which expressly inquired as to Plaintiff’s
specific limitations, including her ability to sit and stand, Dr. Hart declined to answer any
specific question, choosing instead to again write only “permanently total disabled” without
further comment. (R. 327.)
Accordingly, the ALJ was “entitled to rely not only on what the record says, but also
on what it does not say.” Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983); see
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Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (proper for ALJ to rely on the absence of
findings by any physician that plaintiff was unable to sit for prolonged periods of time). The
ALJ recognized that Plaintiff claimed she could sit for about 15 minutes, walk for about a
quarter of a mile and stand for about 10 minutes, (R. 10, 35-36), but sufficiently explained
his reasoning for not crediting the claimed disability. Specifically, he highlighted that in
addition to the absence of supporting objective medical findings, Plaintiff’s conservative
treatment had not resulted in a referral to an orthopedist, neurosurgeon, or other spinal
surgeon, which would have been expected from a more significant impairment. (R. 19-22.)
Indeed, Plaintiff had not engaged in certain expected conservative treatments, such as
chiropractic manipulation, medical massage, or epidural injections. (R. 20.)
Accordingly, the ALJ appropriately weighed all of the evidence available, including
Plaintiff’s treatment records, to determine an RFC finding that was consistent with the
record as a whole. See Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (an ALJ’s RFC
determination need not perfectly correspond with the opinion of any one medical source
where it is supported by the record as a whole) (citing Richardson v. Perales, 402 U.S. 389,
399, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). As a result, there was no gap in the record
or ambiguity that would have triggered the ALJ’s affirmative duty to further develop the
record. See generally Rosa, 168 F.3d at 79 n. 5; see also Tankisis v. Comm’r of Social
Sec., 521 F. App’x 29, 34 (2d Cir. 2013) (remanding solely to direct ALJ to obtain an
express RFC opinion from a medical source inappropriate where record otherwise contains
sufficient evidence on which the ALJ may base this determination).
12.
Having considered Plaintiff’s challenges, as well as the additional evidence
made part of the record by the Appeals Council, this Court is satisfied that the ALJ
committed no reversible error, and that his decision is based on substantial evidence.
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Defendant's Motion for Judgment on the Pleadings is therefore granted and Plaintiff's
motion seeking the same relief is denied.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 8) is DENIED;
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No. 10)
is GRANTED;
FURTHER, that the Clerk of the Court is directed to take the necessary steps to
close this case.
SO ORDERED.
Dated: September 19, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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