Frost v. Colvin
DECISION AND ORDER denying 5 Motion for Judgment on the Pleadings and granting Commissioner's Motion for Judgment on the Pleadings 7 ; and dismissing the complaint in its entirety. (Clerk to close 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
JESSICA M. FROST,
No. 1:14-CV-00965 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
(“plaintiff”) brings this action pursuant to the Social Security
Act (the “Act”), seeking review of the final decision of defendant
the Acting Commissioner of Social Security (the “Commissioner” or
benefits (“DIB”). 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, plaintiff’s motion denied and the Commissioner’s
motion is granted.
Plaintiff filed an application for DIB on September 30, 2013,
which was denied.
Administrative Transcript (“T.”) 101-104. At
plaintiff’s request, a hearing was held before administrative law
judge (“ALJ”) Timothy M. McGuan on March 24, 2014. T. 32-50.
decision dated May 13, 2014, ALJ McGuan found that plaintiff was
not disabled as defined in the Act and denied her claim.
On September 18, 2014, the Appeals Council issued an order denying
plaintiff’s request for review, thereby rendering ALJ McGuan’s
Plaintiff subsequently filed this action.
III. The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2016.
§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since July 6, 2012, the
alleged onset date.
At step two, the ALJ found that plaintiff
suffered from the severe impairments of post-traumatic stress
disorder (“PTSD”); major depressive disorder, recurrent, mild to
moderate; and alcohol, cocaine, and cannabis abuse/dependence. Id.
At step three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled the severity of any listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform “a full range of work at all exertional levels but
with the following nonexertional limitations: can occasionally
interact with the public; can occasionally understand, remember,
and carry out complex and detailed tasks; and can be in an office
At step four, the ALJ found that plaintiff
was unable to perform any past relevant work.
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that plaintiff can
Accordingly, the ALJ found plaintiff 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).
Internal Consistency of the ALJ’s Decision
Plaintiff first argues that the ALJ’s RFC determination was
unsupported by substantial evidence because it conflicted with his
(1) the ALJ’s conclusion that plaintiff had “moderate” limitations
in social functioning and concentration, persistence, and pace is
not reflected in the RFC, and (2) the ALJ’s finding that plaintiff
was generally credible is inconsistent with his failure to include
her claimed inability to work around men and need to nap in the
Plaintiff’s argument with respect to her limitations in social
functioning is without merit.
This Court has consistently held
that “[a] determination that Plaintiff should not have consistent
contact with the general public accounts for . . . moderate social
Gibbons Thornton v. Colvin, No. 14-CV-748S, 2016 WL
(collecting cases); see also Reilly v. Colvin, 2015 WL 6674955 at
occasional or limited contact with others has been found sufficient
Here, the ALJ’s RFC determination limited
plaintiff to only occasional interaction with the public, thereby
See Wozniak v. Comm'r of Soc. Sec., 2015 WL 4038568,
at *4 (W.D.N.Y. June 30, 2015) (conclusion that plaintiff had
“moderate difficulties” in social functioning does not compel the
inclusion of social functioning limitations in the RFC).
concentration, persistence, and pace, the Court again finds that no
inconsistency with the ALJ’s factual findings.
The Second Circuit
has upheld an ALJ’s determination that a plaintiff with “moderate
difficulties” in concentration, persistence, or pace was capable of
“following directions, performing simple and some complex tasks
attending to a routine, dealing with stress (via medication), and
working with others.”
McIntyre v. Colvin, 758 F.3d 146, 149
(2d Cir. 2014); see also Wells v. Colvin, 87 F. Supp. 3d 421, 435
(W.D.N.Y. 2015) (upholding ALJ’s determination that individual with
retained the RFC to frequently understand, carry out, and remember
moderately complex instructions).
Additionally, the Court notes that the RFC determination was
supported by the evidence of record, which included statements by
plaintiff that she got along “all right” with others and was able
to attend and participate in a painting class, as well as the
opinion of consultative psychologist K. Subrahmantan, Ph.D., that
plaintiff “has no limitations in her ability to learn new tasks,
perform complex tasks independently, make appropriate decisions,
[and] adequately relate with others.”
Turning finally to the issue of plaintiff’s credibility, the
ALJ concluded that plaintiff’s statements regarding the limiting
effects of her symptoms were “generally credible.”
contends that this finding bound the ALJ to incorporate into his
RFC determination limitations regarding plaintiff’s ability to work
with men and her need to nap during the day.
The Court disagrees.
An ALJ is permitted to find a plaintiff generally credible, but
conclude that the reported symptoms are “not necessarily consistent
with a finding of disability.” Sellie v. Astrue,, 2009 WL 2882946,
at *14 (N.D.N.Y. Sept. 4, 2009).
Here, plaintiff testified that
she would nap for two to three hours approximately three days per
week, depending on how well she had slept the previous night, and
that she was “afraid to be around strange men.”
T. 42-43, 45.
With respect to plaintiff’s issues with strange men, the RFC
determination limited her to occasional contact with the public in
With respect to the issue of napping, plaintiff did not
testify (and no medical evidence of record suggested) that she
required to take such naps daily or that she needed to take them at
a particular time.
To the contrary, plaintiff testified that she
was able to overcome her fatigue by drinking coffee.
ALJ was not required, simply because he found plaintiff generally
credible, to adopt wholesale the most restrictive possible version
of her testimony. Instead, he properly considered her testimony in
Assessment of the Veterans Administration’s Disability
Administration’s (“VA”) disability determination with respect to
The Court disagrees.
“Disability decisions by other governmental agencies are not
binding on the ALJ, but are entitled to some weight and should be
Rivera v. Colvin, 592 F. App’x 32, 33 (2d Cir. 2015)
(quotation omitted); see also Machia v. Astrue, 670 F. Supp. 2d
admonition to accord VA determinations ‘some weight’ is that in
addition to the oral testimony and medical evidence, VA rating
Here, the VA determined that plaintiff had a 70% serviceconnected disability.
plaintiff was “unemployable.”
The VA further determined that
The ALJ took note of the VA’s
assessment, but explained that the evidence of record did not
include any medical source statements consistent with a finding of
disability under the Act. The Court therefore cannot conclude that
the ALJ failed to consider the VA’s disability determination and
“it cannot be said that the ALJ's decision not to afford [it] more
weight is an error.”
Rivera, 592 F. App’x at 33; see also
Laubacker v. Colvin, 2017 WL 1352145 at *2 (W.D.N.Y. Apr. 12, 2017)
(“the ALJ was not obligated to accept the VA’s assessment of
plaintiff’s level of disability”).
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Docket No. 5) is denied and the Commissioner’s
motion (Docket No. 7) 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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