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
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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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