Bistoff v. Colvin
DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Defendant's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 6/27/17. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERICA ELIZABETH BISTOFF,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Represented by counsel, Erica Bistoff (“Plaintiff”) instituted
this action pursuant to Title XVI of the Social Security Act (“the
Commissioner of Social Security (“the Commissioner”)1 denying her
application for Supplemental Security Income (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
Plaintiff filed an application for SSI on October 4, 2011,
alleging disability beginning September 9, 1989, due to a learning
disability, anxiety, depression, asthma, sleep apnea, an extremely
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
sensitive vestibular system, sensory integration problems, high
risk for retinal detachment, phobia of school, short-term memory
loss, and an auditory decoding deficit. (T.158).2
application was denied on December 27, 2011, Plaintiff requested a
hearing, which was held in Buffalo, New York, on January 11, 2012,
Plaintiff appeared with her attorney and testified. The ALJ did not
call any witnesses. On March 8, 2013, the ALJ issued an unfavorable
decision, finding that she was not under a “disability” as defined
by the Act from, October 4, 2011,3 the SSI application date,
through the date of the ALJ’s decision. (T.7-26). The Appeals
Council denied Plaintiff’s request for review on September 28,
Commissioner. (T.1-5). This timely action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.
SSI cannot be paid prior to the date of a claimant’s application. 20 C.F.R.
follow, the Commissioner’s decision is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step procedure established by the
At step one, the ALJ noted that Plaintiff has not engaged in
substantial gainful activity since October 4, 2011, the application
At step two, the ALJ assessed Plaintiff as having the severe
impairments: obesity, chronic sinusitis, obstructive sleep apnea
impairments, while “severe” within the meaning of the Regulations,
are not severe enough to meet or medically equal any impairments
listed in the Listing of Impairments, see 20 C.F.R. Part 404,
Subpart P, Appendix 1.
Prior to proceeding to step four, the ALJ made a determination
as to Plaintiff’s residual functional capacity (“RFC”). The ALJ
initially noted that the medical evidence does not support the
existence of any significant exertional limitations and, in fact,
would support the RFC to perform work at the medium exertional
level. However, considering Plaintiff’s obesity, the ALJ found that
Plaintiff retains the RFC to perform work at the light exertional
level, with the need to avoid respiratory triggers due to her
chronic sinus problems. The ALJ thus assessed Plaintiff has the RFC
to perform “light work as defined in 20 C.F.R. 416.967(b) in a work
supervisors and the public.” (T.).
At step four, the ALJ found that Plaintiff has no past
relevant work, was 22 years-old on the date the application was
filed, and had a high school education.
At step five, the ALJ found that Medical-Vocational Rule
202.20 directed a finding of “not disabled” because the additional
limitations caused by Plaintiff’s nonexertional limitations have
little or no effect on the occupational basis of unskilled light
work. Accordingly, the ALJ entered a finding of not disabled.
SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Therefore, this Court first
reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
RFC Not Supported by Substantial Evidence
Erroneous Reliance on Consultative Psychologist’s Opinion
opinion4 are invalid and cannot provide substantial evidence to
support the RFC because Plaintiff’s mother was present during the
examination. Plaintiff asserts that since the crux of her anxiety
disorder is that she cannot function in social settings without the
presence of a trusted confidant, the consultative examination
conducted in the presence of Plaintiff’s mother failed to give an
accurate picture of Plaintiff’s limitations due to her anxiety.
Plaintiff, as the individual claiming disability, is in the
Dr. Santarpia diagnosed depressive disorder, not otherwise specified
(“NOS”); and anxiety disorder, NOS. (T.359). Dr. Santarpia concluded that
Plaintiff was able to follow and understand simple directions and instructions,
perform simple tasks independently, maintain attention and concentration,
maintain a regular schedule, learn new tasks, relate adequately with others, and
appropriately deal with stress all within normal limits. (T.358). Dr. Santarpia
noted a mild impairment in Plaintiff’s ability to perform complex tasks
independently and make appropriate decisions, but these difficulties were caused
by distractibility, not by anxiety-related symptoms. (T.358). Although the
results of the evaluation appeared to be consistent with psychiatric problems,
Dr. Santarpia found that they were not significant enough to interfere with
Plaintiff’s ability to function on a daily basis. (T.359).
best position to know the details of her symptomatology. However,
neither Plaintiff nor her mother communicated to Dr. Santarpia her
alleged dependence on having her mother or boyfriend present in
order for her to function in a social setting. Plaintiff’s belated
Santarpia’s opinion is inaccurate since Plaintiff’s mother was
articulated in the Regulations, that a claimant’s attorney has the
obligation “to assist the claimant in bringing to [the ALJ’s]
attention everything that shows that the claimant is disabled.” 20
C.F.R. § 404.1740(b)(1). It was therefore incumbent on Plaintiff’s
attorney to ensure that the consultative examination was conducted
so as to provide an accurate and complete picture of Plaintiff’s
Erroneous Assessment of Credibility
Plaintiff argues that in formulating the RFC assessment, the
ALJ failed to consider her inability to deal, independently, with
work-related stress, due to her anxiety.
When an individual has a medically determinable impairment
that could reasonably be expected to produce the symptoms alleged
but the objective evidence does not substantiate the alleged
intensity and persistence of the symptoms, the ALJ must consider
other factors in assessing the individual’s subjective symptoms,
including (1) the claimant’s daily activities; (2) the nature,
medication and other treatment or measures which the claimant uses
to relieve pain and other symptoms; (5) treatment other than
medication the claimant has received for relief of pain and other
symptoms; (6) any other measures used by the claimant to relieve
pain and other symptoms; and (7) other factors concerning the
claimant’s functional limitations and restrictions due to pain or
other symptoms. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
claimant’s subjective assertions of pain or other limitations,
standing alone, cannot ground a finding of disability. 20 C.F.R. §
416.929(a). In determining “the extent to which [the claimant’s]
objective medical evidence and other evidence” of record, the ALJ
must consider “[s]tatements [the claimant] or others make about
[her] impairment(s), [her] restrictions, [her] daily activities,
[her] efforts to work, or any other relevant statements [she]
make[s] to medical sources during the course of examination or
treatment, or to [the agency] during interviews, on applications,
in letters, and in testimony in [its] administrative proceedings.”
20 C.F.R. § 416.912(b)(3).
To support her allegations regarding her inability to deal
independently with work-related stress, Plaintiff points to her
testimony and statements to her treating therapist, Ms. Labin,
indicating that the presence of her boyfriend and her mother were
necessary for her to engage in normal social interaction. (T.39).
For instance, Plaintiff testified, she could hang out with her
boyfriend’s friends, but only if her boyfriend was present. When
she left the house for any reason other than to spend time with her
boyfriend, she would have to have her mother present. (T.39). If
she was in a place that became too crowded, she would have to leave
in order to avoid a panic attack. (T.40).
The ALJ found, after considering the record as a whole, that
persistence, and limiting effects of her anxiety symptoms (e.g.,
panic attacks and fear of dying) were not entirely credible. For
consultative psychologist Dr. Susan Santarpia during the December
8, 2011, examination were inconsistent with Plaintiff’s allegations
accompanied by her mother or boyfriend. (T.356). Plaintiff reported
panic attacks only when driving. (T.357). She reported socializing
with her boyfriend and family. (T.358). She enjoyed video games and
computers, and she spent her days watching television, listening to
the radio, reading, and going out with her boyfriend. (T.358).
Plaintiff’s treatment for her alleged social phobia suggests that
the symptoms from her mental impairments are not as debilitating as
she describes. See F.S. v. Astrue, No. 1:10-CV-444 MAD, 2012 WL
514944, at *20 (N.D.N.Y. Feb. 15, 2012) (“The Commissioner may
inconsistent with medical evidence, the lack of medical treatment,
and activities during the relevant period.”) (citing Howe-Andrews
v. Astrue, No. CV-05-4539(NG), 2007 WL 1839891, at *10 (E.D.N.Y.
June 27, 2007) (“[T]he Commissioner discounted [the claimant]’s
testimony and affidavit to the extent that they were inconsistent
with medical evidence, the lack of medical treatment, and her own
activities during the relevant period. This conclusion was based on
substantial evidence. . . . As a result, the Commissioner was not
in error in considering but ultimately rejecting [the claimant]’s
complaints and allegations of limitations.”)).
Plaintiff herself has expressed interest in working, and other
vocational training or simply find a job. For instance, on January
17, 2012, she reported to treating therapist Ms. Labin that she had
begun to see a different therapist about her intimate relationship
issues; this therapist told her to get a job. (T.464). Ms. Labin
working, and Plaintiff expressed that she would like to work in the
pet grooming field, but not in a store, due to the fast pace and
training/rehabilitation. See Stevenson v. Berryhill, No. 1:16-cv00379(MAT), (W.D.N.Y. May 31, 2017), Decision & Order at 16 (“[T]he
difficulties in the context of social interaction are inconsistent
with treatment records from various providers such as Dr. Santa
Maria and Dr. Fabiano, who both stated that [the claimant] was a
good candidate for vocational training, thus indicating a greater
degree of work-related functional ability than contemplated by [the
claimant]’s testimony.”) (citing Poupore v. Astrue, 566 F.3d 303,
305-06 (2d Cir. 2009) (ALJ’s determination that claimant was not
disabled was supported by substantial evidence, including report of
claimant’s treating physician stating that claimant would be an
excellent candidate for vocational rehabilitation)).
As discussed above, the Court finds substantial support in the
record for the ALJ’s decision to discredit Plaintiff’s subjective
statements that her symptoms were so severe as to be disabling
within the meaning of the Act. “On appeal, the court’s proper
function is merely to determine whether the appropriate legal
standards have been applied and assess whether the [Commissioner]’s
findings of fact are supported by substantial evidence.” Mimms v.
Heckler, 750 F.2d 180, 185–86 (2d Cir. 1984). “[W]hether there is
substantial evidence supporting the [claimant]’s view is not the
question.” Bonet ex rel. T.B. v. Colvin, 523 Fed. Appx. 58, 59 (2d
reviewing court is “whether substantial evidence supports the ALJ’s
decision.” Id. Here, that standard has been met.
Erroneous Reliance on the Medical-Vocational Guidelines
Medical-Vocational Rule 202.20 as a framework for decision-making
evidence, such as testimony from a vocational expert, was required
occupational base of unskilled light and sedentary work.
At step five, the Commissioner has “the burden of proving that
substantial gainful work which exists in the national economy.”
omitted). “In the ordinary case the [Commissioner] satisfies [her]
burden by resorting to the applicable medical vocational guidelines
(the [G]rids), 20 C.F.R. Pt. 404, Subpt. P, App. 2 . . . .” Id. The
Grids reflect the presence of a significant number of unskilled
jobs at each exertional level in the national economy, 20 C.F.R.
Part 404, Subpt. P, App. 2, § 200.00(b), namely, approximately
1,600 separate sedentary and light unskilled occupations. 20 C.F.R.
Part 404, Subpt. P, App. 2, § 202.00(a). If a claimant’s RFC does
not coincide with the definition of one of the ranges of work
because she has nonexertional limitations that may erode the
occupational base, the Commissioner uses the Grids as a framework
to determine whether the claimant can still do a significant number
of jobs. Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010)
(citing Bapp, 802 F.2d at 605). The Second Circuit has consistently
held that “the mere existence of a nonexertional impairment does
not automatically require the production of a vocational expert [
]or preclude reliance on the [grids],” Bapp v. Bowen, 802 F.2d 601,
603 (2d Cir. 1986). “Rather, ‘the testimony of a vocational expert
. . . that jobs exist in the economy which claimant can obtain and
perform’ is required only where the ‘claimant’s nonexertional
impairments significantly diminish [her] ability to work—over and
above any incapacity caused solely from exertional limitations—so
that [s]he is unable to perform the full range of employment
indicated by the [grids].’” Calabrese v. Astrue, 358 Fed. Appx.
274, 275–76 (2d Cir. 2009) (unpublished opn.) (quoting Bapp, 802
F.2d at 603; ellipsis and brackets in original); accord, e.g.,
Zedanovich v. Astrue, 361 Fed. Appx. 245, 246 (2d Cir. 2010)
(unpublished opn.). The need for a vocational expert is assessed
“on a case-by-case basis[,]” Bapp, 802 F.2d at 605, asking whether
the “additional loss of work capacity . . . so narrows a claimant’s
employment opportunity,” id. at 606.
As noted above, the ALJ found that Plaintiff had the RFC to
perform light work with the following nonexertional limitations:
(1) only occasional contact with coworkers, supervisors, and the
public; (2) a work environment free of excessive dust, fumes, and
respiratory irritants. (T.14). The ALJ then considered Plaintiff’s
(transferability of skills was not material), and used Grid Rule
202.20 as a framework to conclude that Plaintiff was not disabled.
(T.20-21); see also 20 C.F.R. §§ 416.960(c), 416.963-65, 416.969;
20 C.F.R. Part 404, Subpt. P, App. 2, § 202.20.
nonexertional impairments did not “so narrow[ ] [her] . . .
employment opportunity,” Bapp, 802 F.2d at 606. First, with regard
to the limitations due to her sinus problems, SSR 85-15 provides
that “[w]here a person has a medical restriction to avoid excessive
amounts of noise, dust, etc., the impact on the broad world of work
would be minimal because most job environments do not involve great
noise, amounts of dust, etc.” Titles II & XVI: Capability to Do
Evaluating Solely Nonexertional Impairments, Social Security Ruling
(“SSR”) 85-15, 1985 WL 56857, at *8 (S.S.A. 1985).
Second, with regard to Plaintiff’s nonexertional impairment
pertaining to only “occasional”5 contact with other people, SSR 8515 states that “unskilled jobs at all levels of exertion . . .
ordinarily involve dealing primarily with objects, rather than with
data or people, and they generally provide substantial vocational
opportunity for persons with solely mental impairments who retain
the capacity to meet the intellectual and emotional demands of such
jobs on a sustained basis.” SSR 85-15, 1985 WL 56857, at *4. The
Commissioner argues that because unskilled jobs do not involve
dealing “primarily” with people, the ALJ’s restriction of Plaintiff
to only “occasional” contact with coworkers, supervisors, and the
public during an 8-hour workday does not “so narrow[ ] [her] . . .
employment opportunity,” Bapp, 802 F.2d at 606.
Here, the ALJ conducted the required analysis, finding that
the additional limitations have little or no effect on
the occupational base of unskilled light work. A finding
of “not disabled” is therefore appropriate under the
framework of this rule. Social Security Ruling 96-9p,
indicates that the sedentary occupational base (and by
significantly eroded, if an individual retains the
ability to hear and understand simple oral instructions
or to communicate simple information. The claimant
certainly retains at least these abilities.
SSR 83-10 defines “occasionally” as “occurring from very little up to
one-third of the time[,]” i.e., “no more than about 2 hours of an 8-hour
workday.” Titles II & XVI: Determining Capability to Do Other Work-the
Med.-Vocational Rules of Appendix 2, SSR 83-10, 1983 WL 31251, at *5 (S.S.A.
(T.21). Because the ALJ analyzed whether Plaintiff’s nonexertional
impairments “significantly eroded” her occupational base, and found
that they had “little or no effect,” he did “not commit legal error
obtaining the testimony of a vocational expert.” Ulloa v. Colvin,
No. 13 CIV. 4518 ER, 2015 WL 110079, at *15 (S.D.N.Y. Jan. 7, 2015)
(remanding so that ALJ could determine whether or not claimant’s
nonexertional limitations were negligible); Howe v. Colvin, 12 Civ.
6955(JPO)(SN), 2013 WL 4534940 at *18 (S.D.N.Y. Aug. 27, 2013)
(agreeing with report and recommendation finding ALJ did not commit
legal error when using the Grids as a framework and finding
claimant’s nonexertional limitations had “little or no effect on
13-CV-1026-S, 2014 WL 5465451 at *6 (W.D.N.Y. Oct. 28, 2014)
retained RFC for light work with no more than occasional contact
with the public, coworkers, or supervisors); Hurd v. Astrue, No.
10-CV-1116, 2013 WL 140389, at *4 (N.D.N.Y. Jan. 11, 2013) (finding
“Whether the ALJ’s decision not to use a vocational expert was appropriate
given the evidence in the record is a separate question and need not be addressed
here, since ‘[o]nly after finding that the correct legal standards were applied
should the Court consider the substantiality of the evidence.’” Ulloa, 2015 WL
110079, at *15 (quoting Calabrese v. Astrue, 592 F. Supp.2d 379, 385 (W.D.N.Y.
2009), aff’d, 358 Fed. Appx. 274 (2d Cir. 2009) (summary order); brackets in
no error in ALJ’s reliance on Grids where claimant retained RFC for
light work with limitations including occasional interaction with
co-workers, little to no contact with the general public, and
avoidance of concentrated exposure to respiratory irritants).
Commissioner’s decision is supported by substantial evidence and is
not the product of legal error. Therefore, the Court affirms the
Commissioner’s decision denying benefits, grants Defendant’s motion
for judgment on the pleadings, and denies Plaintiff’s motion for
judgment on the pleadings. The Clerk of Court is directed to close
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 27, 2017
Rochester, New York.
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