Anderson v. Colvin
DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 14 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 6/28/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DONNA M. ANDERSON,
No. 1:14-CV-01038 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Donna M. Anderson (“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”) denying her
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.
The record reveals that in August 2011, plaintiff (d/o/b
October 19, 1968) filed applications for DIB and SSI, alleging
disability beginning September 8, 2011. After her applications were
denied, plaintiff requested a hearing, which was held before
administrative law judge Gitel Reich (“the ALJ”) on April 23,
2013.1 The ALJ issued an unfavorable decision on June 25, 2013. The
Appeals Council denied review of that decision and this timely
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff satisfied the insured
status requirements of the Act through December 31, 2015. At step
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since September 8, 2011, the
alleged onset date. At step two, the ALJ found that plaintiff
suffered from the severe impairments of non-Hodgkin’s lymphoma
currently in remission, asthma/COPD (chronic obstructive pulmonary
disorder), and degenerative disc disease of the cervical spine. At
step three, the ALJ found that plaintiff did not have an impairment
or combination of impairments that met or medically equaled a
Before proceeding to step four, the ALJ found that plaintiff
sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a)
except that she could not work in an environment with more than
occasional exposure to respiratory irritants, and she could not
Plaintiff’s case was originally assigned to ALJ Myriam Fernandez Rice,
who held a hearing before the case was transferred to ALJ Reich. The Court notes
that plaintiff has withdrawn the argument set forth in Point 1 of her main brief
(doc. 8-1), which contended that the ALJ Reich did not order a supplemental
hearing after the case was assigned to her. See doc. 15 (plaintiff’s reply). That
contention was rendered meritless by the Commissioner’s filing of a supplemental
transcript with the Court, which contains the supplemental hearing transcript.
See doc. 13.
perform a job that requires rapid neck movements. At step four, the
ALJ found that plaintiff was incapable of performing past relevant
work. At step five, the ALJ found that considering plaintiff’s age,
education, work experience, and RFC, there were jobs existing in
significant numbers in the national economy that she could perform.
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).
Step Two Finding
Plaintiff contends that the ALJ erred in finding that her
depression was not severe at step two. The ALJ made a specific
finding that plaintiff’s depression was non-severe, finding that
the condition “[did] not add on any additional limitations to her
[RFC],” and noting that Wellbutrin helped treat the symptoms of
plaintiff’s depression. The ALJ also found that plaintiff had only
mild limitations in activities of daily living, social functioning,
and concentration, persistence, or pace. For the reasons set forth
below, the Court concludes that the ALJ did not err at step two by
finding plaintiff’s depression non-severe.
“Under the applicable regulations, an impairment is considered
(S.D.N.Y. 2014) (citing 20 C.F.R. § 416.921(a)). The record reveals
that plaintiff first reported “some depression” to her primary care
physician, Dr. Erika Connor, on January 24, 2012, but “state[d]
that [it was] very bearable and decline[d] any intervention either
by psychology consult or with medication.” T. 455. Later, on
October 31, 2012, Dr. Connor prescribed Wellbutrin,2 apparently for
depressive symptoms. On January 9, 2013, Dr. Connor increased
plaintiff’s Wellbutrin prescription, noting that plaintiff reported
to him that her prescription “may not be strong enough.” T. 535. On
February 6, 2013, Dr. Connor noted that plaintiff’s depression was
“stable.” T. 529. At the supplemental hearing, the ALJ asked
plaintiff responded that she “[j]ust . . . had some thoughts of
suicide but [she] could never do it because of [her] children.”
Wellbutrin is a drug typically described for smoking cessation or to
treat depressive symptoms. Although for purposes of discussion, the Court takes
plaintiff’s argument – that she was prescribed Wellbutrin for depression – as
true, it is noted that two of plaintiff’s primary physical impairments, nonHodgkins lymphoma currently in remission and asthma/COPD, were associated with
habitual smoking. The October 31, 2012 treatment note does not indicate the
reason for which plaintiff was prescribed the Wellbutrin. A later January 3, 2013
treatment note, however, does indicate a diagnosis of depression and a
corresponding prescription for Wellbutrin.
T. 570. She then testified that her Wellbutrin helped since Dr.
Connor increased her dosage.
Based on the facts in this record, the Court finds that
substantial evidence supports the ALJ’s decision that plaintiff’s
depression was not a severe impairment within the meaning of the
plaintiff’s depression contributed to any limitations on workrelated functioning. Moreover, as the ALJ noted, plaintiff did not
seek treatment from a psychiatric source, electing instead to have
medication management by her primary care physician. See, e.g.,
Patterson v. Colvin, 24 F. Supp. 3d 356, 369 (S.D.N.Y. 2014)
(affirming finding that depression was non-severe where the record
indicated that plaintiff’s “psychological and emotional issues
[did] not significantly limit her ability to work”).
Plaintiff contends that the ALJ erred in evaluating her
subjective complaints of pain, and further argues that she read the
record selectively, citing only evidence supporting a finding of
responds that the ALJ’s credibility and RFC findings were based on
substantial evidence, including plaintiff’s medical treatment notes
and a consulting opinion from state agency physician Dr. Joseph
decision, including her credibility and RFC findings, was supported
by substantial evidence. As the ALJ noted, plaintiff’s longitudinal
medical record established that her non-Hodgkins lymphoma was in
examinations during the relevant time period supported the ALJ’s
conclusion that her asthma was improving and/or controlled. The
Court finds that the ALJ provided a thorough summary of the
evidence, and did not engage in an impermissible picking and
choosing of selective evidence as plaintiff argues. While plaintiff
essentially contends that substantial evidence would support a
conclusion that her conditions caused greater limitations than
those found by the ALJ, the question is not whether substantial
evidence supports plaintiff’s position, but whether it supported
the ALJ’s decision. See
Bonet ex rel. T.B. v. Colvin, 523 F. App’x
58, 59 (2d Cir. 2013) (citing Selian v. Astrue, 708 F.3d 409, 417
(2d Cir. 2013)).
Specifically regarding the ALJ’s credibility finding, the
Court finds that the ALJ’s discussion, which incorporates her
review of the testimony, indicates that the ALJ used the proper
standard in assessing credibility, especially in light of the fact
that the ALJ cited relevant authorities in that regard. See Britt
v. Astrue, 486 F. App’x 161, 164 (2d Cir. 2012) (finding explicit
mention of 20 C.F.R. § 404.1529 and SSR 96–7p as evidence that the
ALJ used the proper legal standard in assessing the claimant’s
The ALJ reasonably considered the inconsistency of plaintiff’s
subjective reports with the objective medical evidence, and she was
conservative treatment for her neck pain. See, e.g., Gehm v.
Astrue, 2013 WL 25976, *5 (N.D.N.Y. Jan. 2, 2013) (noting that
“[a]t the second step of the credibility analysis it [is] proper to
consider whether subjective complaints of pain were inconsistent
with objective evidence in the record.”) (citing Meadors v. Astrue,
370 F. App’x 179, 183–84 & n.1 (2d Cir. 2010)); Rivera v. Colvin,
2015 WL 6142860, *6 (W.D.N.Y. Oct. 19, 2015) (finding that “ALJ was
entitled to consider evidence that plaintiff pursued a conservative
treatment as one factor in determining credibility”) (citing Netter
v. Astrue, 272 F. App’x 54, 56 (2d Cir. 2014)).
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (doc. 8) is denied and the Commissioner’s motion
(doc. 14) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record, and
accordingly, the complaint is dismissed in its entirety with
The Clerk of the Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 28, 2017
Rochester, New York.
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