Harris v. Colvin
DECISION AND ORDER denying 13 Motion for Judgment on the Pleadings; granting 18 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 09/18/2017. (CDH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CARNELL DWAYNE HARRIS,
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
pursuant to Titles II and XVI of the Social Security Act
Commissioner of Social Security (“defendant” or “the Commissioner”)
denying his applications for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). Presently before the
Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
For the reasons set forth below, plaintiff’s motion is
denied and defendant’s motion is granted.
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
Plaintiff protectively filed applications for DIB and SSI on
October 19, 2011, alleging disability due to back and neck pain,
diabetes, hepatitis C, and depression.
requested a hearing before an administrative law judge (“ALJ”),
which occurred on July 16, 2013, before ALJ William Straub. T. 3460, 80-95.
On August 15, 2013, ALJ Straub issued a decision in
which he found plaintiff not disabled as defined in the Act. T.1426. The Appeals Council denied plaintiff’s request for review. T.
Plaintiff subsequently commenced the instant action.
The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through September 30, 2011.
step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since July 7, 2011, the amended
alleged onset date.
At step two, the ALJ found that plaintiff
had the severe impairments of cervical disc herniation, lumbago,
hepatitis C, diabetes mellitus, depression, and polysubstance abuse
At step three, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met
or medically equaled a listed impairment.
T. 17. Before proceeding
to step four, the ALJ found that plaintiff retained the residual
functional capacity (“RFC”) to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that he is limited to
understanding, remembering, and carrying out simple instructions.
At step four, the ALJ found that plaintiff was able to
perform past relevant work as a cleaner and a sterilizer.
considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that plaintiff can perform.
found that plaintiff was not disabled.
Accordingly, the ALJ
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).
Here, plaintiff makes the following arguments in favor of his
motion for judgment on the pleadings: 1) the ALJ’s physical RFC
finding was not based on substantial evidence because the opinion
of consultative physician Dr. Hongbiao Liu was impermissibly vague;
and 2) the ALJ’s mental RFC was not based on substantial evidence
because the ALJ lacked a compelling justification to reject the
opinions of state agency consultants Dr. Thomas Ryan and Dr. M.
For the reasons discussed below, the Court finds these
arguments without merit.
Dr. Liu’s Opinion was Not Impermissibly Vague
examination of plaintiff.
On physical examination,
plaintiff’s range of motion in his cervical spine was flexion 35
degrees, extension 35 degrees, rotation right and left 70 degrees,
and lateral flexion right and left 35 degrees.
had a full range of motion in his thoracic and lumbar spine, as
well as in his shoulders, elbows, forearms, wrists, and fingers.
Id. His grip strength was slightly diminished at 4/5 bilaterally.
Dr. Liu assessed plaintiff with hypothyroidism (stable),
hepatitis c, anxiety/depression, chronic neck pain, gastric reflux
disease (stable), hypertension, type 2 diabetes, and migraine
Dr. Liu opined that plaintiff had “mild
limitations for his routine activities” and “should try to avoid
lifting, carrying, bending, kneeling, and overhead reaching.”
In his decision, the ALJ gave Dr. Liu’s opinion “significant
He noted that it was consistent with the
consultative physician Dr. Zair Fishkin.
Relying on Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000) and
Selian v. Astrue, 708 F.3d 409 (2nd Cir. 2013), Plaintiff argues
that Dr. Liu’s opinion was impermissibly vague and thus did not
finding. Plaintiff’s argument relies on an overly broad reading of
supporting the ALJ’s RFC finding.
It is well-established that the opinion of a consultative
examiner may serve as substantial evidence in support of an ALJ
decision. See, e.g.,
Petrie v. Astrue, 412 F. App’x 401, 405 (2d
Moreover, and contrary to plaintiff’s argument, Curry
and Selian “do not stand for the broad proposition that a medical
source opinion which uses terms like ‘mild’ or ‘moderate’ is always
too vague to constitute substantial evidence.”
O’Bara v. Colvin,
2017 WL 2618096, at *2 (W.D.N.Y. June 16, 2017) (internal quotation
Instead, courts in this Circuit have concluded that
Curry and Selian are “inapplicable, even though a medical examiner
uses terms like ‘mild’ or ‘moderate,’ if the examiner conducts a
thorough examination and explains the basis for the opinion.”
Richardson v. Colvin, 2016 WL 3179902, at *7 (W.D.N.Y. June 8,
In this case, the Court concludes that “Dr. Liu's medical
source statement was not so vague that it could not serve as an
adequate basis for determining [plaintiff’s RFC].”
Berryhill, 2017 WL 999204, at *5 (W.D.N.Y. Mar. 15, 2017).
Court’s decision in Boltz is instructive. There, Dr. Liu conducted
a consultative examination of the plaintiff and opined that she
“ha[d] mild to moderate limitation for her routine activities” and
“should try to avoid lifting, carrying with the arms, bending,
kneeling, and overhead reaching,” and the ALJ afforded that opinion
Id. at *3.
The Court rejected the plaintiff’s
argument that Dr. Liu’s opinion was too vague to constitute
substantial evidence, explaining that it was supported by his own
physical examination and consistent with the medical record as a
whole, and that “[u]nlike the consultative examiners’ opinions in
Selian [and] Curry . . ., Dr. Liu’s opinion that [the plaintiff]
would have ‘mild to moderate limitations in routine activities’ was
immediately followed by the specific opinion that [the plaintiff]
‘should avoid lifting and carrying with her arms, in addition to
overhead reaching, bending, and kneeling.’” Id. at *4-5.
Here, as in Boltz, Dr. Liu’s opinion is supported by his own
physical examination and consistent with the record as a whole. In
particular, the ALJ noted that plaintiff did not report any back
pain to Dr. Liu and that he had a full range of motion in his
shoulders, elbows, forearms, wrists, and fingers.
ALJ further explained that Dr. Liu’s opinion was consistent with
Dr. Fishkin’s physical examination findings.
June 2012, plaintiff’s treating physician Dr. Pratibha Bansal
evaluated plaintiff and found that his range of motion, gait, and
motor strength were largely normal and that straight leg raising
and sensation testing were negative.
circumstances, the ALJ did not err in relying on Dr. Liu’s opinion
in formulating plaintiff’s physical RFC.
The ALJ Properly Weighed the Opinions of Drs. Ryan and
Dr. Ryan performed a psychological evaluation of plaintiff on
April 28, 2012.
Dr. Ryan performed a mental health
status examination which showed that plaintiff’s thought processes
were coherent and goal-directed with no evidence of hallucinations,
delusions, or paranoia, his affect was appropriate to his speech
and thought content, he was oriented to person, place and time, and
his attention and concentration were intact.
recent and remote memory skills were mildly impaired, his cognitive
functioning was below average, and his insight and judgment were
somewhat poor. T. 421.
Dr. Ryan assessed plaintiff with cocaine
abuse and depressive disorder with psychotic feature
that he “can follow and understand simple directions, perform
simple tasks, maintain attention and concentration, and maintain a
He may have moderate limitations in his ability
to learn new tasks, perform complex tasks, make adequate decisions
at this time, relate with others, and deal with stress.”
Dr. Totin, a non-examining state agency review psychologist,
reviewed plaintiff’s medical records on May 1, 2012.
Dr. Totin concluded that there was insufficient evidence to render
an opinion regarding plaintiff’s condition prior to September 11,
With respect to plaintiff’s current condition,
Dr. Totin concurred with Dr. Ryan’s opinion, and added that
plaintiff would have moderate limitations with respect to his
abilities to: understanding, remember, and carry out detailed
instructions; maintain attention and concentration for extended
periods; interact appropriately with the general public; accept
supervisors; respond appropriately to changes in the work setting;
be aware of normal hazards and take appropriate precautions; and
set realistic goals or make plans independently of others. T. 45556.
In his decision, the ALJ gave “less than significant weight”
to the opinions of Drs. Ryan and Totin.
With respect to Dr. Ryan’s
misrepresented his symptoms to Dr. Ryan, minimizing his activities
of daily living and social interactions and claiming to have
thoughts of self-harm and auditory hallucinations when he had
expressly denied suicidal ideation and hallucinations on many other
Turning to Dr. Totin’s opinion, the ALJ
explained that it suffered from the same deficiencies as Dr. Ryan’s
report, on which it relied “almost exclusively.”
did credit those portions of Dr. Ryan’s and Dr. Totin’s opinions
that were supported by the objective evidence of record, including
plaintiff’s mental status examination.
Plaintiff contends that the ALJ improperly “rejected” Dr.
Ryan’s and Dr. Totin’s opinions without citing to another medical
Plaintiff overstates the ALJ’s actions.
The ALJ did not
“reject” these opinions. To the contrary, he gave them some weight
and incorporated certain of the limitations set forth therein into
his RFC finding.
“Notably, it is within the ALJ’s ‘province’ in
resolving the evidence to accept parts of a doctor’s opinion and to
reject others.” See Wilburn v. Colvin, 2016 WL 1237789, at *6
(N.D.N.Y. Feb. 29, 2016) (quoting Veino v. Barnhart, 312 F.3d 578,
588-89 (2d Cir. 2002)).
“Although the ALJ’s conclusion may not
perfectly correspond with . . . the opinions of medical sources
cited in his decision, he [is] entitled to weigh all of the
evidence available to make an RFC finding that [is] consistent with
the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d
Here, the ALJ adopted parts of Dr. Ryan’s and Dr. Totin’s
opinions and rejected others.
In particular, he accepted Dr.
Ryan’s conclusions regarding plaintiff’s ability to follow and
attention and concentration, and maintain a regular schedule,
because these conclusions were supported by the medical evidence of
record, while rejecting Dr. Ryan’s conclusions that relied on
plaintiff’s inconsistent allegations about his symptoms.
The ALJ was entitled to discount those portions of Dr. Ryan’s and
Dr. Totin’s opinions that were unsupported by the record. See Rock
v. Colvin, 628 F. App'x 1, 4 (2d Cir. 2015) (it was proper for ALJ
to discount portion of psychological examination that was “based
evaluation” and otherwise inconsistent with the record). In short,
weighted Dr. Ryan’s and Dr. Totin’s opinions or that the ALJ’s
mental RFC finding was otherwise not based on substantial evidence.
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 13) is denied and the Commissioner’s motion
(Doc. 18) 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
September 18, 2017
Rochester, New York.
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