Swain v. Colvin
Filing
19
DECISION AND ORDER denying 13 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/8/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SAMANTHA SWAIN,
Plaintiff,
-vs-
No. 1:14-CV-00869 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, plaintiff Samantha Swain (“plaintiff”)
brings this action pursuant to Titles II and XVI of the Social
Security Act (the “Act”), seeking review of the final decision of
the
Commissioner
of
Social
Security
(the
“Commissioner”
or
“defendant”) denying her applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”). The
Court has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g). Presently before the Court are the parties’ cross-motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. For the reasons discussed below, the
Commissioner’s motion is granted and plaintiff’s motion is denied.
II.
Procedural History
Plaintiff initially filed her application for DIB on March 19,
2008.
Administrative
Transcript
(“T.”)
214-16.
Plaintiff’s
application was denied, and she requested a hearing before an
administrative law judge (“ALJ”), which occurred on May 10, 2010,
before ALJ Marilyn D. Zahm.
T.
69-70, 839-74.
On June 1, 2010,
ALJ Zahm issued a decision in which she found plaintiff not
disabled as defined in the Act.
T. 98-117.
Plaintiff requested
review by the Appeals Council, and the Appeals Council subsequently
vacated the ALJ’s decision and remanded the matter for further
proceedings.
T. 133-137.
Zahm on August 15, 2011.
A second hearing was held before ALJ
T. 874-901.
ALJ Zahm issued a second
decision finding plaintiff not disabled on September 14, 2011.
T. 28-47.
the
Plaintiff again requested Appeals Council review, and
Appeals
Council
remanded
the
matter
administrative proceedings a second time.
for
additional
T. 193-197.
In its
second remand order, issued on October 9, 2012, the Appeals Council
instructed the ALJ on remand to “address all the relevant medical
evidence, including [a] Match 25, 2011 consultative examination.”
T. 196.
On March 27, 2013, a third hearing was conducted before ALJ
Bruce R. Mazzarella. T. 902-61. Pursuant to the Appeals Council’s
order,
ALJ
Mazzarella
reopened
plaintiff’s
previously
denied
May 30, 2007 application for DIB and consolidated plaintiff’s
subsequent January 28, 2011 applications for DIB and SSI.
On
June
20,
2013,
ALJ
Mazzarella
issued
a
decision
T. 17.
finding
plaintiff not disabled from August 24, 2006 (her alleged disability
onset date) through the date of the decision.
T.
14-27.
The
Appeals Council denied plaintiff’s request for review on August 25,
2
2014, rendering ALJ Mazzarella’s decision the final determination
of the Commissioner.
T. 7-9.
Plaintiff subsequently commenced
this action.
III. The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through March 31, 2012.
T. 20.
one
see
of
the
five-step
sequential
evaluation,
20
At step
C.F.R.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since August 24, 2006, the alleged
onset date.
Id.
At step two, the ALJ found that plaintiff had the
severe impairments of mild degenerative disc disease of the back
and neck, obesity, diabetes mellitus with possible mild neuropathy
in feet, and asthma/bronchitis.
that plaintiff
did
not
have
Id.
At step three, the ALJ found
an impairment
or
combination
of
impairments that met or medically equaled a listed impairment. Id.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to: lift and
carry up to 20 pounds occasionally and 10 pounds frequently; sit
for an 8-hour workday with normal breaks and meal periods; stand
and/or walk for an 8-hour workday with normal breaks and meal
periods; occasionally stoop, crouch, kneel, or climb stairs; not
work in unventilated areas that contain large concentrations of
dusts, fumes, gasses or vapors; and not use ladders or scaffolds,
work around unprotected heights, or operate dangerous or moving
3
machinery.
T. 21.
At step four, the ALJ found that plaintiff was
capable of performing her past relevant work as a cashier/checker.
Accordingly, the ALJ found that plaintiff was not disabled.
IV.
Discussion
A
district
court
may
set
aside
the Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.
On
Consideration of March 25, 2011 Consultative Examination
March
25,
2011,
Plaintiff
examination with Dr. Nikita Dave.
underwent
T. 784-89.
a
consultative
Plaintiff told
Dr. Dave that she has been in a motor vehicle accident in 2006
resulting in low back pain and right shoulder pain, and that her
low back pain was worsened by a subsequent motor vehicle accident
in 2009. T. 784.
Plaintiff reported being in constant pain, which
was exacerbated by twisting and prolonged sitting.
further
reported
suffering
from
Id.
Plaintiff
insulin-dependent
diabetes,
“arrythmia,” vitamin D deficiency, and insomnia.
T. 784-85.
Plaintiff reported shopping once per week, cooking twice per week,
bathing and dressing as needed, and watching television.
4
T. 785.
On physical examination, plaintiff’s gait was unremarkable and she
could walk on her heels and toes without difficulty.
T. 786.
Plaintiff squatted halfway, complaining of back and thigh pain, and
had moderately antalgic transfers.
Dr.
Dave
observed
that
Id.
plaintiff’s
musculoskeletal
and
neurological examination was “abnormal” because plaintiff took a
deep breath before each movement and stated that she would “do it
if you want me to.”
“interesting”
and
T. 786. Dr. Dave described these actions as
opined
that
plaintiff
had
“questionable
motivation” and was “perhaps [seeking] to demonstrate her current
complaints, making her perhaps ‘dizzy.’” Id.
tenderness or scoliosis.
thoracic kyphosis,
and
Id.
her
Plaintiff had no
She had a slightly increased
lumbar
spine
range
of
motion
was
3 degrees in extension, 40 to 50 degrees in flexion, 15 degrees in
lateral flexion, and 25 degrees in rotation.
Id.
Plaintiff had
midline tenderness in the L1 to L3-L4 area of her lumbar spine and
the bilateral lumbar paraspinal muscles.
T. 787.
Straight leg
raise testing was negative bilaterally, and plaintiff had a full
range of motion in her arms and legs.
lumbosacral spine was normal.
Id.
An x-ray of plaintiff’s
T. 787, 789.
Dr. Dave opined that plaintiff had moderate limitations in
sudden movements through the lumbar spine; prolonged sitting,
standing, or walking; lifting, carrying, pushing, and pulling heavy
objects;
and
repetitive
squatting,
5
kneeling,
crouching,
and
crawling.
T. 788.
Dr. Dave also noted that plaintiff might need
to avoid ladders, heights, sharp objects, dangerous equipment, and
machinery.
In
Id.
its
order
daed
October
9,
2012, the
Appeals
Council
instructed the ALJ on remand to “address all the relevant medical
evidence,
including
examination.”
[Dr.
T. 196.
Dave’s]
March
25,
2011
consultative
Plaintiff argues that the ALJ failed to
follow this direction from the Appeals Council and thus committed
legal error.
The Court disagrees.
A review of the ALJ’s decision
demonstrates that he did in fact consider Dr. Dave’s opinion.
The
ALJ thoroughly summarized Dr. Dave’s clinical findings, and found
that they were consistent with the “incomplete effort” noted by
another consultative physician and inconsistent with the opinion
offered
by
plaintiff’s
circumstances,
the Court
chiropractor.
cannot
find
T.
25.
that
the
Under
ALJ
these
failed
to
“address” the opinion as instructed by the Appeals Council.
It is true that the ALJ did not explicitly state how much
weight he gave to Dr. Dave’s opinion.
However, it is well-
established that “the failure to explicitly assign weight to an
opinion is harmless in certain situations, such as where the ALJ’s
decision reflects that the opinion was considered or where the
limitations assessed in the opinion are ultimately accounted for in
the RFC.”
Hazelton v. Comm’r of Soc. Sec., 2017 WL 1437194, at *6
(N.D.N.Y. Apr. 21, 2017) (internal quotation omitted); see also
6
Blabac v. Comm’r of Soc. Sec., 2009 WL 5167650, at *9 (N.D.N.Y.
Dec. 18, 2009) (collecting cases finding harmless error where ALJ
did not explicitly assign weight to opinions that either did not
conflict with the RFC findings or that would not have changed the
outcome of the ALJ’s decision).
Here, the limitations the ALJ
included in the RFC are consistent with the moderate limitations
opined
by
Dr.
Dave.
With
respect
to
the
specific
issue
of
“prolonged sitting, standing, and walking,” the ALJ expressly noted
that plaintiff would require normal breaks and meal periods.
See
Tompkins v. Colvin, 2015 WL 10382575, at *6 (W.D.N.Y. Dec. 23,
2015), report and recommendation adopted, 2016 WL 792428 (W.D.N.Y.
Mar. 1, 2016) (holding that a “mild to moderate limitation in
prolonged
sitting
and
standing
is
accommodated
by
the
ALJ’s
limitation to light work as well as normal work breaks”); Burdick
v.
Astrue,
2013
WL
3713417,
at
*7
(W.D.N.Y.
July
12,
2013)
(restriction on prolonged sitting and standing was consistent with
the full range of sedentary work).
Normal work breaks and meal
periods split an eight hour workday into approximately two hour
periods.
See SSR 96-9p, 1996 WL 374185 at *6 (“In order to perform
a full range of sedentary work, an individual must be able to
remain in a seated position for approximately 6 hours of an 8-hour
workday, with a morning break, a lunch period, and an afternoon
break at approximately 2-hour intervals.”).
Notably, plaintiff’s
treating spinal surgeon Dr. Huckell also opined that plaintiff was
7
capable of sitting, standing, or walking for up to two hours at one
time, and that she could work for up to eight hours.
Under
these
circumstances,
the
ALJ’s
RFC
was
T. 374.
supported
by
substantial evidence, and the failure to explicitly state the
weight given to Dr. Dave’s opinion was harmless.
B.
Evaluation of plaintiff’s past work
Plaintiff’s only other argument in support of her motion is
that the ALJ improperly concluded that plaintiff’s past work as a
cashier was “relevant.”
Specifically, plaintiff argues that her
past work as a cashier was not relevant because it had not been
done in the past fifteen years and may not have reached the level
of substantial gainful activity.
The Commissioner responds that
the fifteen year limitation is merely a guideline and that the ALJ
was entitled to rely on the testimony of the independent vocational
expert (“VE”) that plaintiff’s employment as a cashier constituted
past relevant work.
In the alternative, the Commissioner argues
that any error was harmless, because the VE testified that even
someone with greater limitations than plaintiff (namely, someone
who could stand and walk only occasionally and who could lift and
carry up to ten pounds only occasionally) would be able to perform
the full range of sedentary work.
T.
953.
It is well-established that remand is not required where
“where application of the correct legal principles to the record
could lead to only one conclusion.”
8
Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987); see also Johnson v. Comm’r of Soc. Sec.,
2017 WL 120938, at *15 (N.D.N.Y. Jan. 11, 2017) (error is harmless
where “[t]he ultimate result of the ALJ’s decision would have been
the same even if plaintiff could not perform her prior relevant
work”).
Here, even had the ALJ concluded that plaintiff could not
perform her past relevant work, he still would have been bound to
find her not disabled, because the VE testified that plaintiff was
capable of performing the full range of sedentary work. See, e.g.,
Crawford v. Bowen, 687 F. Supp. 99, 101 (S.D.N.Y. 1988) (noting
that “if plaintiff had the capacity to perform the full range of
sedentary work, the medical-vocational guidelines . . . would
direct a conclusion of ‘not disabled’”); Abreu v. Astrue, 2012 WL
4714892, at *6 (S.D.N.Y. Sept. 27, 2012) (“[T]he Guidelines would
direct a conclusion of ‘not disabled’ if Plaintiff had a residual
functional
capacity
for
a
full
range
of
sedentary
work.
In
promulgating the Guidelines, administrative notice has been taken
of the number of unskilled jobs that exist throughout the national
economy.
.
.
.
[T]he
rules
take
administrative
notice
of
approximately 200 unskilled, sedentary occupations, representing
numerous jobs in the national economy.”).
Based on the foregoing, even assuming that plaintiff is
correct that her past work as a cashier did not qualify as
“relevant,” remand is not warranted.
9
The ALJ’s conclusion that
plaintiff is not disabled would have been the same whether or not
she was capable of performing her past work as a cashier.
V.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment
on the pleadings (Doc. 13) is denied and the Commissioner’s motion
(Doc. 15) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record and
any legal errors were harmless.
Accordingly, the complaint is
dismissed in its entirety with prejudice.
The Clerk of the Court
is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
June 8, 2017
Rochester, New York.
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