Frost v. Colvin

Filing 11

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,
Plaintiff,
-vs-

No. 1:14-CV-00965 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented

by

counsel,

plaintiff

Jessica

M.

Frost

(“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
“defendant”)

denying

her

application

for

disability

insurance

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.
II.

Procedural History
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.

In a

decision dated May 13, 2014, ALJ McGuan found that plaintiff was

not disabled as defined in the Act and denied her claim.

T. 16-31.

On September 18, 2014, the Appeals Council issued an order denying
plaintiff’s request for review, thereby rendering ALJ McGuan’s
decision

the

Commissioner’s

final

determination.

T.

9-11.

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.
one

of

the

five-step

sequential

evaluation,

T. 18.
see

20

At step
C.F.R.

§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since July 6, 2012, the
alleged onset date.

Id.

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.

T. 19-20.

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
environment.

T. 20.

At step four, the ALJ found that plaintiff
2

was unable to perform any past relevant work.
five,

the

ALJ

concluded

that,

considering

T. 27.

At step

plaintiff’s

age,

education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that plaintiff can
perform.
IV.

Id.

Accordingly, the ALJ found plaintiff not disabled.

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.

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
own

factual

findings.

Specifically,

plaintiff

contends

that

(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
RFC.

3

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
limitations.”
611041

at

Gibbons Thornton v. Colvin, No. 14-CV-748S, 2016 WL

*4

(W.D.N.Y.

Feb.

16,

2016)

(quotation

omitted)

(collecting cases); see also Reilly v. Colvin, 2015 WL 6674955 at
*3

(W.D.N.Y.

Nov.

2,

2015)

(“generally

a limitation

to

only

occasional or limited contact with others has been found sufficient
to

account

for

moderate

(quotation omitted).

limitations

in

social

functioning”)

Here, the ALJ’s RFC determination limited

plaintiff to only occasional interaction with the public, thereby
adequately

accounting

functioning.

for

her

moderate

limitations

in

social

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).
With

respect

to

plaintiff’s

moderate

limitations

in

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
(with

and

without

supervision),

maintaining

concentration,

attending to a routine, dealing with stress (via medication), and
4

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
moderate

difficulties

in

concentration,

persistence,

or

pace

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.”

T. 283.

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.”

Plaintiff

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
5

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
general.

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.

T. 40.

The

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
light

of

the

medical

evidence

of

record

and

made

his

RFC

determination accordingly.
B.

Assessment of the Veterans Administration’s Disability
Determination

Plaintiff’s
committed

second

and

error

in

legal

final
his

argument

is

that

assessment

of

the

the

ALJ

Veterans

Administration’s (“VA”) disability determination with respect to
plaintiff.

The Court disagrees.

“Disability decisions by other governmental agencies are not
binding on the ALJ, but are entitled to some weight and should be
considered.”

Rivera v. Colvin, 592 F. App’x 32, 33 (2d Cir. 2015)

(quotation omitted); see also Machia v. Astrue, 670 F. Supp. 2d
326,

336

(D.

Vt.

2009)

(“The

point

of

the

Second

Circuit's

admonition to accord VA determinations ‘some weight’ is that in
addition to the oral testimony and medical evidence, VA rating
6

decisions

are

another

item

to

be

placed

on

the

evidentiary

scale.”).
Here, the VA determined that plaintiff had a 70% serviceconnected disability.

T. 165.

plaintiff was “unemployable.”

The VA further determined that

Id.

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”).
V.

Conclusion
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
Dated:

June 16, 2017
Rochester, New York.

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