Popovich v. Colvin
DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (The Clerk of the Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 6/16/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL D. POPOVICH,
No. 1:14-CV-00950 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Popovich(“plaintiff”) brings this action pursuant to Titles II and
XVI of the Social Security Act (the “Act”), seeking review of the
disability insurance benefits (“DIB”) and supplemental security
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
plaintiff’s motion is denied.
Plaintiff initially filed an application for DIB on October 7,
2011, and an application for SSI on October 21, 2011, alleging
disability due to a heart condition, HIV infection, shingles, and
Administrative Transcript (“T.”) 156-69, 199.
Plaintiff’s application was denied, and he requested a hearing
before an administrative law judge (“ALJ”), which occurred on
March 4, 2013, before ALJ David Lewandowski.
On May 29, 2013, ALJ Lewandowski issued a decision in which he
found plaintiff not disabled as defined in the Act.
Appeals Council denied plaintiff’s request for review on September
determination of the Commissioner.
This action followed.
III. The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2014.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since October 1, 2011, the alleged
At step two, the ALJ found that plaintiff had the
severe impairments of atrial fibrillation and HIV positive.
The ALJ further found that plaintiff’s mood disorder was a nonsevere impairment. Id. At step three, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met
or medically equaled a listed impairment.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to perform less
than the full range of light work as defined in 20 CFR 404.1567(b)
and 416.967(b) with the following limitations: cannot work around
hazards including unprotected heights and dangerous machinery; is
limited to simple instructions and tasks; is limited to simple
decision-making; must work in small familiar groups; can have
occasional interaction with others; and is limited to low stress
jobs defined as no fast paced production work and no loud noise.
At step four, the ALJ found that plaintiff was unable to
perform any past relevant work.
At step five, the ALJ
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that plaintiff can perform. T. 24.
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).
Here, plaintiff makes the following arguments in favor of his
motion for judgment on the pleadings: 1) the ALJ’s decision was
internally inconsistent regarding plaintiff’s mental health; and
2) the ALJ had a duty to solicit a treating source opinion
regarding plaintiff’s exertional capabilities.
For the reasons
discussed below, the Court finds these arguments without merit.
Assessment of Plaintiff’s Mental Health
As set forth above, in deciding plaintiff’s claim, the ALJ
determined at step two that plaintiff’s mood disorder was a nonsevere limitation.
Nevertheless, the ALJ incorporated several
mental health-related limitations in plaintiff’s RFC, including
limitations to simple tasks and decision making, working in small
and familiar groups, occasional contact with others, and low stress
Plaintiff argues that these findings are irreconcilably
The Court disagrees.
Under the Act, “impairments” are “anatomical, physiological,
or psychological abnormalities . . . demonstrable by medically
An impairment is “severe” only if it “significantly
limits [the claimant's] physical or mental ability to do basic work
20 C.F.R. §§ 404.1520(c), 416.920(c). By contrast,
“[a]n impairment will be found non-severe if the limitations are
mild or moderate.”
Thogode v. Colvin, 2015 WL 5158733 at *7
(N.D.N.Y. Sept. 2, 2015).
“A RFC determination must account for
limitations imposed by both severe and nonsevere impairments.”
Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir. 2012).
Here, the ALJ thoroughly explained his reasoning with respect
to his assessment of plaintiff’s mood disorder. As set forth in the
ALJ’s decision, the consultative psychiatric examiner found that
independently, making appropriate decisions, relating adequately
with others, and appropriately dealing with stress. T. 20-21. The
ALJ gave significant weight to this assessment and properly relied
upon it in determining that plaintiff’s mood disorder was nonsevere, because it caused only mild limitations.
The ALJ then
included those mild limitations in his RFC determination, as he was
required to do by law.
The Court finds no inconsistency in this
Morales v. Colvin, 2014 WL 4829351(W.D.N.Y. Sept. 29, 2014),
on which plaintiff relies, is inapposite.
In Morales, the ALJ
concluded that the record “did not support any mental limitation”
and “continuously assert[ed] that Plaintiff had no limitations in
either concentration or daily living due to her mental condition,”
repetitive tasks in the RFC.
Id. at *4-5.
The Court therefore
determination was based on substantial evidence, because the ALJ
made no attempt to reconcile these inconsistencies.
Id. at *5.
contrast, in this case, the ALJ did not conclude that plaintiff had
no limitations as a result of his mental health condition.
contrary, the ALJ acknowledged that plaintiff did have limitations,
but found that the limitations were mild.
In sum, the Court finds
plaintiff’s mood disorder was non-severe and resulted in only mild
limitations and the inclusion of those mild limitations in the RFC
Failure to Solicit Treating Source Opinion
Plaintiff’s second argument is that the ALJ was required to
solicit a treating source opinion regarding plaintiff’s extertional
Again, the Court disagrees.
“[I]t is not per se error for an ALJ to make a disability
determination without having sought the opinion of the claimant's
Sanchez v. Colvin, 2015 WL 736102 at *5
(S.D.N.Y. Feb. 20, 2015).
Rather, the question for the Court is
although lacking the opinion of [the] treating physician, was
sufficiently comprehensive ‘to permit an informed finding by the
App’x 29, 33-34 (2d Cir. 2013)).
Here, the record was sufficiently comprehensive to permit an
informed finding by the ALJ, inasmuch as it contained medical
records going back to May 2009 (more than two years prior to the
reports, and two reports from State agency physicians who reviewed
the evidence of record.
Plaintiff has failed to identify any
evidence that is missing from the record, nor has he identified a
treating source whose opinion should have been requested. Although
plaintiff maintains that the record is not “voluminous,” there are
no obvious gaps, and it appears that the relatively small size of
the record is a result of plaintiff having sought only limited
medical treatment, rather than any failure to develop on the part
of the ALJ. See, e.g., T. 49-50 (plaintiff’s attorney acknowledged
that lack of recent medical records from immunodeficiency unit and
cardiology unit at the Erie County Medical Center (“ECMC”) was
acknowledged that he had never obtained any inpatient or outpatient
Plaintiff argues that the record is incomplete because certain
portions of the records received from the Erie County Medical
Center are “illegible.”
Plaintiff specifically points to the
Administrative Transcript, as well as the entirety of page 293.
With respect to pages 292 and 294, the Court has little trouble
discerning the content of the sections described as “illegible” by
plaintiff. Specifically, the “assessment/plan” section of page 292
states that plaintiff has HIV, that his labs need to be checked for
routine evaluation, and that the provider discussed starting meds
to lower inflammation; that plaintiff had shingles, which caused
some recurring neurological pain from the previous episode, and
that plaintiff was to continue neurontin; and that plaintiff had
hyperlipidema, that the provider had “discussed at length” the
associated cardiovascular risks, and that plaintiff needed to make
lifestyle changes, including smoking cessation.
“assessment/plan” section of page 294 notes test results from April
and July 2011; states that plaintiff abuses tobacco and had been
written a script for a Nicotrol inhaler; and states that plaintiff
plaintiff would push to decrease smoking.
Page 293 is somewhat
more difficult to make out, though it is apparent that it is a
recommendation that plaintiff follow healthy eating guidelines and
eat whole wheat bread.
Significantly, plaintiff has identified
nothing about these allegedly “illegible” three pages that in any
way calls into question the ALJ’s RFC determination.
It is relevant that the medical records in this case support
only minor physical limitations.
Plaintiff’s treatment records
show that his HIV was well-controlled and that he did not report
being in significant pain.
Moreover, the consultative internal
examination performed in December 2011 showed a stable prognosis
and no physical limitations.
“[W]here the medical evidence shows
relatively little physical impairment, an ALJ permissibly can
render a common sense judgment about functional capacity even
without a [treating] physician’s assessment.”
Rouse v. Colvin,
2015 WL 7431403, at *5 (W.D.N.Y. Nov. 23, 2015).
The evidence of record in this case contained no obvious gaps
and was sufficient to permit the ALJ to assess plaintiff’s RFC.
Under these circumstances, “it was permissible for the ALJ to make
an RFC determination without a treating source’s opinion.”
v. Colvin, 2014 WL 6609637, at *6 (W.D.N.Y. Nov. 20, 2014).
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 8) is denied and the Commissioner’s motion
(Doc. 10) is granted.
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 16, 2017
Rochester, New York.
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