Swain v. Colvin
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
No. 1:14-CV-00869 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
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
“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.
Plaintiff initially filed her application for DIB on March 19,
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.
On June 1, 2010,
ALJ Zahm issued a decision in which she found plaintiff not
disabled as defined in the Act.
review by the Appeals Council, and the Appeals Council subsequently
vacated the ALJ’s decision and remanded the matter for further
Zahm on August 15, 2011.
A second hearing was held before ALJ
ALJ Zahm issued a second
decision finding plaintiff not disabled on September 14, 2011.
Plaintiff again requested Appeals Council review, and
administrative proceedings a second time.
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.”
On March 27, 2013, a third hearing was conducted before ALJ
Bruce R. Mazzarella. T. 902-61. Pursuant to the Appeals Council’s
May 30, 2007 application for DIB and consolidated plaintiff’s
subsequent January 28, 2011 applications for DIB and SSI.
plaintiff not disabled from August 24, 2006 (her alleged disability
onset date) through the date of the decision.
Appeals Council denied plaintiff’s request for review on August 25,
2014, rendering ALJ Mazzarella’s decision the final determination
of the Commissioner.
Plaintiff subsequently commenced
III. The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through March 31, 2012.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since August 24, 2006, the alleged
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.
At step three, the ALJ found
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
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.
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).
Consideration of March 25, 2011 Consultative Examination
examination with Dr. Nikita Dave.
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.
“arrythmia,” vitamin D deficiency, and insomnia.
Plaintiff reported shopping once per week, cooking twice per week,
bathing and dressing as needed, and watching television.
On physical examination, plaintiff’s gait was unremarkable and she
could walk on her heels and toes without difficulty.
Plaintiff squatted halfway, complaining of back and thigh pain, and
had moderately antalgic transfers.
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.”
T. 786. Dr. Dave described these actions as
motivation” and was “perhaps [seeking] to demonstrate her current
complaints, making her perhaps ‘dizzy.’” Id.
tenderness or scoliosis.
Plaintiff had no
She had a slightly increased
3 degrees in extension, 40 to 50 degrees in flexion, 15 degrees in
lateral flexion, and 25 degrees in rotation.
midline tenderness in the L1 to L3-L4 area of her lumbar spine and
the bilateral lumbar paraspinal muscles.
raise testing was negative bilaterally, and plaintiff had a full
range of motion in her arms and legs.
lumbosacral spine was normal.
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
Dr. Dave also noted that plaintiff might need
to avoid ladders, heights, sharp objects, dangerous equipment, and
instructed the ALJ on remand to “address all the relevant medical
Plaintiff argues that the ALJ failed to
follow this direction from the Appeals Council and thus committed
The Court disagrees.
A review of the ALJ’s decision
demonstrates that he did in fact consider Dr. Dave’s opinion.
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
“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
Hazelton v. Comm’r of Soc. Sec., 2017 WL 1437194, at *6
(N.D.N.Y. Apr. 21, 2017) (internal quotation omitted); see also
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
“prolonged sitting, standing, and walking,” the ALJ expressly noted
that plaintiff would require normal breaks and meal periods.
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
limitation to light work as well as normal work breaks”); Burdick
(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
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.”).
treating spinal surgeon Dr. Huckell also opined that plaintiff was
capable of sitting, standing, or walking for up to two hours at one
time, and that she could work for up to eight hours.
substantial evidence, and the failure to explicitly state the
weight given to Dr. Dave’s opinion was harmless.
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.
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.”
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
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
promulgating the Guidelines, administrative notice has been taken
of the number of unskilled jobs that exist throughout the national
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.
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.
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
June 8, 2017
Rochester, New York.
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