Thomas v. Colvin

Filing 16

DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings; adopting Report and Recommendations re 12 Report and Recommendations to the extent it is consistent with this Decision and Order and is otherwise rejected.(Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/13/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TORRI R. THOMAS,
15-cv-012 (MAT)
DECISION AND ORDER

Plaintiff,

-vsNANCY A. BERRYHILL, Acting
Commissioner of Social
Security1,
Defendant.

I.

Introduction
Plaintiff Torri R. Thomas(“plaintiff”) brings this action

pursuant to 42 U.S.C. § 405(g), claiming that defendant the Acting
Commissioner of Social Security (“Commissioner” or “defendant”)
improperly denied her application for supplemental security income
(“SSI”)

payments

under

the

Social

Security

Act

(the

“Act”).

Currently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
On June 27, 2017, Magistrate Judge Leslie G. Foschio issued a
Report and Recommendation (the “R&R”) (Docket No. 12) recommending
that defendant’s motion be granted and plaintiff’s motion be

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

denied.

As

discussed further

below,

the

Court

adopts

Judge

Foschio’s findings to the extent they are consistent with this
Decision and

Order

and

accepts

his

recommendation

as

to

the

disposition of the pending motions.
II.

Discussion
A.

Standard of Review

When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes a “de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C).

When only general objections are made to a

magistrate judge’s report and recommendation, the district judge
reviews it for clear error or manifest injustice. See, e.g., Brown
v. Peters, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997),
aff’d,

175

F.3d

1007

(2d

Cir.

1999).

After

conducing

the

appropriate review, the district court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
B.

Procedural Background

Plaintiff’s application for SSI was filed on October 11, 2011
and was initially denied on February 10, 2012.
Transcript (hereinafter “T.”) 119.

Administrative

Following a hearing before

administrative law judge (“ALJ”) Timothy M. McGuan, during which
testimony was taken from plaintiff and a vocational expert (“VE”),
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the ALJ issued an unfavorable finding that plaintiff was not
disabled under the Act on August 20, 2013.

T. 17-33, 38-58.

In applying the required five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration (see 20 C.F.R. §§ 404.1520, 416.920;
Lynch v. Astrue, 2008 WL 3413899, at *2 (W.D.N.Y. 2008) (detailing
the five steps)), the ALJ made the following findings, among
others: (1) plaintiff had not engaged in substantial gainful
activity
(2)

since

plaintiff’s

October

3,

2011,

the

cannabis

abuse/dependence,

application
major

date;

depressive

disorder (recurrent, severe), anxiety disorder, and post-traumatic
stress disorder (“PTSD”) were severe impairments; (3) plaintiff’s
impairments did not meet or medically equal one of the listed
impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1;
(4) plaintiff had the residual functional capacity (“RFC”) to
perform the full range of work at all exertional levels, with
limitations to simple, unskilled work, occasional detailed tasks,
and occasional interaction with the public;(5) plaintiff had no
past relevant work; and (6) taking into account plaintiff’s age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that plaintiff can
perform.

T. 19-32.

On November 7, 2014, the Appeals Council denied plaintiff’s
request

for

review,

making

the

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ALJ’s

determination

the

Commissioner’s final decision.

T. 1-6.

Plaintiff then commenced

this action.
C.

Plaintiff’s Objections to the R&R

In response to the R&R, plaintiff raises the following five
arguments: (1) Judge Foschio erred in finding that the ALJ properly
weighed the opinion of consultative physician Dr. Hongbiao Liu;
(2) plaintiff is entitled to payment of benefits for the closed
period from December 23, 2011 to January 29, 2013; (3) Judge
Foschio erred in finding that the ALJ correctly determined that
plaintiff had no severe physical impairments; (4) Judge Foschio
erred in finding that the Commissioner appropriately determined
plaintiff’s RFC; and (5) Judge Foschio erred in finding that the
ALJ properly accounted for the limitations assessed by consultative
psychologist Dr. Renee Baskin.

For the reasons discussed below,

the Court finds that these objections are without merit.
1.

Assessment of Dr. Liu’s Opinion

Dr. Liu examined plaintiff on January 30, 2012.

T.

264-67.

On physical examination, plaintiff had a steady gait, was able to
walk on heels and toes with mild difficulty, could squat 70%
without assistance, and had a normal stance and no assistive
devices.

T. 264-66.

Plaintiff had a limited range of motion in

her cervical spine, with flexion measured at 35 degrees and left
and right rotation measured at 70 degrees. T. 266.

In her lumbar

spine, plaintiff’s range of motion was measured at 20 degrees upon

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left and right lateral rotation and plaintiff had positive straight
leg raising tests in both the seated and supine positions.

Id.

Dr. Liu assessed plaintiff with chronic neck pain, chronic low back
pain, chronic shoulder pain, anxiety, and depression, and opined
that her prognosis was fair.

Id.

Dr. Liu further opined that

plaintiff had “mild limitations for routine activities” and should
“avoid

lifting,

reaching.”

carrying,

T. 267.

bending,

kneeling,

and

overhead

In assessing plaintiff’s RFC, the ALJ gave

Dr. Liu’s opinion “some, but not great” weight.

T. 31.

The ALJ

explained that portions of Dr. Liu’s opinion were inconsistent with
his physical examination, and with plaintiff’s lack of treatment,
denial

of

symptoms

to

treating

examinations by treating sources.

sources,

and

normal

physical

Id.

In her motion for judgment on the pleadings, plaintiff argues
that the ALJ failed to evaluate Dr. Liu’s opinion in accord with
20 C.F.R. § 416.927(c).
Judge

Foschio

somewhat

Docket No. 8-1 at 10.
confusingly

found

that

In the R&R,
“[p]laintiff

correctly asserts that the ALJ erred in not discussing each of the
six factors set forth under § 416.927(c),” but went on to state
that “no error impairs to the ALJ’s findings.”

Docket No. 12 at

16.
It is well-established that an ALJ is not required to provide
a “slavish recitation of each and every factor” set forth in
§ 416.927(c) when evaluating a medical source opinion.

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Atwater v.

Astrue, 512 F. App'x 67, 70 (2d Cir. 2013); see also Augustine v.
Comm’r of Soc. Sec., 2016 WL 5462836, at *16 (W.D.N.Y. Sept. 28,
2016) (“An ALJ does not have to mechanically recite these factors.
. . .”).

Instead, all that it is required is that the ALJ provide

“good reasons” for the weight afforded to each medical source
opinion.

To the extent that the R&R can be read to suggest that

the ALJ was required to explicitly discuss each of the factors, the
Court disagrees and finds no error.
With respect to the substance of the ALJ’s assessment, the
Court finds that the ALJ adequately explained the reasons for the
weight afforded to Dr. Liu’s opinion.

In particular, the ALJ

discussed in detail the fact that plaintiff repeatedly denied
having neck, back, or shoulder problems, including in November and
December 2012 - that is, after Dr. Liu provided his opinion.
T. 27.

The ALJ further noted that physical examinations performed

by plaintiff’s treating physicians were normal and that there was
no indication plaintiff had ever received any physical therapy or
chiropractic treatment.

Id.

Accordingly, the ALJ concluded that

Dr. Liu’s opinion was inconsistent with the medical record as a
whole.

T. 31.

This plainly constitutes an acceptable reason to

afford his opinion limited weight.
In short, the Court finds no error in the ALJ’s assessment of
Dr. Liu’s opinion.

Accordingly, the Court rejects plaintiff’s

objection as to this point.

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2.

Consideration of a Closed Period of Disability

Plaintiff’s second objection contends that the ALJ should have
awarded her benefits for a closed period of disability, because the
record shows that she was hospitalized for 16 days in a 13 month
period from December 23, 2011 to January 29, 2013.
at 5-6.

Docket No. 12

Although plaintiff raised this issue in her moving papers

(see Docket No. 8-1 at 17-18), the R&R does not address it.
However, having analyzed the issue, the Court concludes that no
remand is required.
Under the Act, disability is defined as the “inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A); see 20 C.F.R. § § 404.1509, 416.920. “A
closed period of disability refers to when a claimant is found to
be disabled for a finite period of time which started and stopped
prior

to

the

date

of

the

administrative

decision

granting

disability status.” Carbone v. Astrue, 2010 WL 3398960, at *13 n.
12 (E.D.N.Y. Aug. 26, 2010) (internal quotation marks omitted).
As

a

threshold

matter,

the

Court

notes

that

plaintiff

apparently did not raise the issue of a closed period of disability
prior to filing her motion for judgment on the pleadings, and that
she has therefore arguably waived it.

-7-

See, e.g., Emery v. Astrue,

2012

WL

1910090,

at

*6

(D.

Vt.

Apr.

9,

2012),

report

and

recommendation adopted, 2012 WL 1910085 (D. Vt. May 25, 2012) (“At
the outset, the Court notes that Emery did not raise the issue of
a closed period of disability until the filing of this Motion. . .
. Typically, a court need not address such a claim when it is
raised for the first time at this stage in the proceedings.”); see
also Hapstak v. Com’r of Soc. Sec., 2003 WL 22232046, at *12
(N.D.N.Y. Sept. 26, 2003) (“It has been held . . . that with some
exceptions,

the

failure

to

raise

an

argument

in

the

precludes plaintiff from raising it in federal court.”).

Agency

However,

defendant has not claimed that plaintiff is precluded from making
this argument, and has instead argued the issue on the merits.
“[A]s the Commissioner has not challenged this issue, the Court
will address it.”

Emery, 2012 WL 1910090, at *6; see also Verdi

v. Comm'r of Soc. Sec., 2011 WL 1361559, at *4 n.2

(D. Vt.

Apr. 11, 2011) (“in accordance with Second Circuit law instructing
courts to broadly construe and liberally apply the Social Security
Act,” court would consider claim for a closed period of disability
that was not raised at the administrative level).
Here, plaintiff’s argument that she is entitled to benefits
for a closed period of disability rests on her claim that she was
“hospitalized” for 16 days between December 23, 2011 to January 29,
2013.

However, an examination of the medical record shows that

this is not the case.

To the contrary, while plaintiff did visit
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the emergency room on a number of occasions for complaints such as
anxiety-related

nausea,

ovarian

cysts,

gastroenteritis,

and

pregnancy-related nausea, there is no indication that she was ever
admitted to the hospital on these occasions.

See T. 304, 314-15,

337, 341, 398, 419, 434, 466, 576, 634, 640.

In other words,

plaintiff’s argument is based on a faulty reading of the medical
record.

Moreover,

there

is

no

evidence

that

plaintiff’s

intermittent visits to the emergency room would have required her
to be absent from work for entire days. Accordingly, plaintiff has
not shown that she was disabled from

December 23, 2011 to

January 29, 2013, nor has she shown that the ALJ erred in not
considering whether she was entitled to payment of benefits for a
closed period.
3.

Absence of Severe Physical Impairments

Plaintiff next argues that Judge Foschio should have found
that the ALJ erred in concluding at step two that she had no severe
physical impairments.

The Court disagrees.

As this Court has explained:
Step two addresses two distinct questions. First, an ALJ
must determine whether an impairment satisfies the
durational requirement. Unless an impairment is expected
to result in death, an impairment must last [] or [] be
expected to last for a continuous period of at least 12
months before it can be considered potentially disabling.
Second, an ALJ must determine whether an impairment
limits a claimant’s ability to do basic work activities.
. . . These requirements are separate from each other,
and cannot be conflated.

-9-

Warren v. Astrue, 2012 WL 32971, at *3 (W.D.N.Y. Jan. 6, 2012)
(internal citations and quotations omitted).
In this case, at step two, the ALJ considered in detail
plaintiff’s claim of neck, back, and shoulder pain.

The ALJ

explained that plaintiff had been involved in a motor vehicle
accident on March 8, 2010, which she claimed caused neck, back, and
shoulder pain.

T. 21.

The ALJ further explained that the medical

record showed that plaintiff had not received any treatment for
neck, back, or shoulder symptoms from February 11, 2011 through
November 10, 2012, and that plaintiff had in fact expressly denied
any neck, back, or extremity injuries or pain or limitations of
motion during emergency room visits on April 27, 2012, April 29,
2012, June 3, 2012, July 22, 2012, August 11, 2012, and November 6,
2012.

T. 21-22.

Moreover, on November 10, 2012, plaintiff

presented at the emergency room complaining of back pain, which she
described as a new problem and denied having any previous injury
that could have caused it.

T. 22.

Notably, plaintiff expressly

denied having any pain in her neck or extremities during that
visit.

Id.

Plaintiff complained of low back pain to her primary

care physician in February and March 2013, but physical examination
was normal on both occasions.

Id.

Based on the foregoing, the ALJ

concluded that plaintiff’s “neck, back, and right should pain from
her motor vehicle accident did not last at least twelve consecutive
months.”

Id.

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The ALJ’s step two determination regarding plaintiff’s neck,
back, and shoulder pain is not a model of clarity.
acknowledges

that,

to

some

degree,

the

ALJ

The Court

appears

to

have

conflated the durational requirement and his assessment of the
impairment’s

severity.

However,

it

is

clear from

the

ALJ’s

discussion and analysis of plaintiff’s claims that, separate and
apart from the durational requirment, he concluded that her neck,
back, and shoulder pain did not limit her ability to perform basic
work activities.

See, e.g., T. 27 (“The medical record does not

support the claimant’s allegations of a severe physical impairment
causing

limitations

activities”).

on

her

Substantial

ability

to

evidence

perform

supports

work-related

this

finding.

Plaintiff’s medical records show that she expressly denied having
any neck, back or shoulder injury on at least six occasions in
2012, and that the physical examinations performed by her treating
physicians
explanation

were

normal.

whatsoever

Notably,
for

the

plaintiff

has

inconsistencies

offered
between

no
her

statements to her physicians regarding her alleged neck, back, and
shoulder injuries and the claims she is now making.

This Court is

hard-pressed to find that the ALJ erred in crediting plaintiff’s
own repeated denials of any neck, back, or shoulder injury.
Thus, even assuming that the ALJ improperly conflated the
durational requirement and the severity analysis at step two,
remand is not required.

See Warren, 2012 WL 32971, at *4 (remand

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was inappropriate where “despite the ALJ’s lack of clarity at step
two,

he

properly

impairments”).

considered

the

effects

of

all

Plaintiff's

The ALJ throughly assessed the evidence of record

regarding plaintiff’s claimed neck, back, and shoulder pain, and
his determination is based on substantial evidence.
4.

Determination of RFC

Plaintiff’s fourth argument is that, having rejected Dr. Liu’s
opinion, the ALJ improperly assumed the role of a physician in
determining that plaintiff had no physical impairments. Again, the
Court disagrees.
“[I]t

is

not

per

se

error

for

determination absent a medical opinion.”

an

ALJ

to make

the

RFC

Lewis v. Colvin, 2014 WL

6609637, at *6 (W.D.N.Y. Nov. 20, 2014). In particular, “where the
medical evidence shows relatively minor physical impairments, an
ALJ permissibly can render a common sense judgment about functional
capacity even without a physician’s assessment.”
quotation omitted).

Id.

(internal

Here, and as discussed above, the medical

evidence showed that plaintiff’s physical impairments, to the
extent they existed, were minor - plaintiff had received little
treatment,

her

physical

examinations

were

normal,

and

she

repeatedly denied having any neck, back, or shoulder injuries.
Under these circumstances, the ALJ did not err in rendering a
common sense judgment about her functional capacity, even in the
absence of a physician’s assessment. See, e.g., Lay v. Colvin,2016

-12-

WL 3355436, at *7 (W.D.N.Y. June 17, 2016) (“notwithstanding
Plaintiff’s assertion that the MRI results demonstrate conditions
too severe to warrant common sense judgment, the ALJ was permitted
to evaluate them, along with the other medical evidence of record,
and to conclude that there is nothing in the record to support the
severity of the symptoms testified to by the claimant”) (internal
quotation omitted).
5.

Consideration of Dr. Baskin’s Opinion

Plaintiff’s final argument is that the ALJ improperly rejected
Dr. Baskin’s opinion that plaintiff had “moderate limitations being
able to maintain attention and concentration.” Docket No. 13 at 9.
In his decision, the ALJ afforded some, but not great weight to
Dr. Baskin’s opinion. T. 30-31.

In particular, the ALJ noted that

Dr. Baskin failed to indicate whether or to what extent plaintiff’s
substance abuse impairment caused her limitations.

T. 31.

As Judge Foschio explained in the R&R, RFC assessments “may
not perfectly correspond with any individual medical opinion.”
Docket No. 12.

Instead, it is the role of the ALJ to consider and

weigh all the evidence and make an appropriate RFC finding.

See,

e.g., Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013); Cruz v.
Colvin, 2014 WL 4826684, *14 (N.D.N.Y. Sept. 29, 2014) (ALJ may
credit some portion of a consultative opinion, while properly
declining to credit those conclusions that are not supported by the
consultative

examiner’s

own

examination

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findings

and

are

inconsistent with the other evidence of record). In short, the ALJ
was entitled to credit only part of Dr. Baskin’s opinion, which is
what he did in limiting plaintiff to simple, unskilled work and
occasionally detailed tasks.

Plaintiff has failed to establish

that this constituted error.
For the reasons set forth above, upon its de novo review and
after careful consideration of plaintiff’s objections, the Court
adopts the R&R to the extent it is consistent with this Decision
and Order and accepts the recommendation that plaintiff’s motion
for a judgment on the pleadings be denied and that defendant’s
motion for a judgment on the pleadings be granted.
III. Conclusion
For the reasons set forth above, the R&R (Docket No. 12) is
adopted to the extent it is consistent with this Decision and Order
and is
judgment

otherwise
on

the

rejected.
pleadings

The Commissioner’s
(Docket

No.

10)

is

motion

for

granted,

a

and

plaintiff’s motion for a judgment on the pleadings (Docket No. 8)
is denied.

The Clerk of Court is directed to close this case.

ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
__________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

September 13, 2017
Rochester, New York
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