Bielecki v. Commissioner of Social Security

Filing 15

DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/14/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PALMA A. BIELECKI,
No. 1:15-cv-00193(MAT)
DECISION AND ORDER

Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented

by

counsel,

Palma

A.

Bielecki

(“Plaintiff”)

instituted this action pursuant to Title II of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner”)1 denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
Plaintiff protectively filed an application for DIB on March
28, 2012. After the claim was denied initially on August 13, 2012,
Plaintiff filed a written request for a hearing. On August 26,
2013, a videoconference hearing was conducted by administrative law

1

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).

judge Robert C. Dorf (“the ALJ”). Plaintiff appeared with her
attorney and testified, as did impartial vocational expert Melissa
Fass Karlin (“the VE”). The ALJ issued an unfavorable decision on
September

24,

2013.

(T.14-31).2

The

Appeals

Council

denied

Plaintiff’s request for review on January 6, 2015, making the ALJ’s
decision the final decision of the Commissioner. Plaintiff then
timely commenced this action.
The parties have filed cross-motions 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 Court will discuss the record evidence further
below, as necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is affirmed.
THE ALJ’S DECISION
The

ALJ

followed

the

five-step

sequential

evaluation

established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520, 416.920.
At step one, the ALJ found that Plaintiff meets the insured
status requirements of the Act through June 30, 2016, and has not

2

Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.

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engaged in substantial gainful activity since January 1, 2011, the
alleged onset date.
At

step

following

two,

“severe”

the

ALJ

determined

impairments:

that

status

Plaintiff
post

has

the

resectional

arthroplasty of the left trapezium; degenerative joint disease of
the knee; and degenerative disc disease. The ALJ considered a
number of other alleged impairments but found them to be nonsevere. First, the ALJ found, Plaintiff’s bilateral sensorineural
hearing loss is ameliorated by an ear-level hearing aid on the left
side. A cat bite, sustained in February 2011, is not a medically
determinable impairment because it did not last for a continuous
period of not less than twelve months. The ALJ also noted a remote
right

shoulder

surgery,

which

resolved

Plaintiff’s

shoulder

problems until June 2013, at which time Plaintiff reported right
shoulder pain for one month. Therefore, the ALJ found that any
right shoulder condition did not satisfy the Act’s durational
requirement. The ALJ noted that Plaintiff’s gastroesophageal reflux
disease

was

well-managed

medically,

and

she

had

a

normal

esophagogastroduodenoscopy. As to her medically determinable mental
impairments of attention deficit disorder, major depression, and
generalized anxiety disorder, the ALJ considered them singly and in
combination, but found that they do not cause more than minimal
limitation in her ability to perform basic mental work activities
and are therefore non-severe. The ALJ also performed the special

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technique as required for psychiatric impairments and determined
that Plaintiff has no limitations in activities of daily living or
social functioning; mild limitation in maintaining concentration,
persistence,

or

pace;

and

has

experienced

no

episodes

of

decompensation.
At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.
Pt. 404, Subpt. P, App. 1. The ALJ gave particular consideration to
Listing 1.02 (Major dysfunction of a joint) and Listing 1.04
(Disorders of the spine). The ALJ found that Plaintiff does not
meet the criteria of Listing 1.02 because she is able to ambulate
effectively

as

well

as

to

perform

fine

and

gross

movements

effectively. As to Listing 1.04, the ALJ found that in light of the
physical examinations

documenting

Plaintiff’s

normal

gait and

station, normal sensation and reflexes, and negative straight-legraising bilaterally, her degenerative disc disease does not meet
this listing’s requirements.
Prior to proceeding to step four, the ALJ assessed Plaintiff
as having the residual functional capacity (“RFC”) to perform the
full range of sedentary work as defined in 20 C.F.R. § 404.1567(a).
At step four, the ALJ reviewed the VE’s hearing testimony to
the effect that Plaintiff had past relevant work (“PRW”) as a
medical records transcriber (Dictionary of Occupational Titles

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(“DOT”) #203.582-058, SVP 5, skilled, sedentary). (T.53). The ALJ
found that Plaintiff performed this job3 as it is described in the
DOT and the Selected Characteristics of Occupations Defined in the
Revised Dictionary of Occupational Titles,4 and as it is generally
performed in the national economy. Comparing Plaintiff’s RFC with
the physical and mental demands of the job of medical records
transcriber, the ALJ found that she is able to perform the job as
she actually performed it in the past, and as it is generally
performed. Because Plaintiff is able to perform a full range of
sedentary work, the ALJ stated, demands of her PRW do not exceed
her assessed RFC. Accordingly, the ALJ found that Plaintiff was not
under a “disability” within the meaning of the Act during the
relevant period.
The ALJ did not make an alternative step-five finding.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
supported

by

substantial

record

evidence

and

whether

the

3

The ALJ noted that Plaintiff stopped working for reasons unrelated to her
allegedly disabling impairments. Specifically, Plaintiff reported that her
employment as a medical records transcriber ended approximately two years prior
to the hearing when the company switched over to electronic records.
4

See U.S. Dept. of Labor, Employment and Training Admin., Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles, Part A, p. 345 (1993), available at www.nosscr.org/sco/sco.pdf (last
accessed Sept. 14, 2017).

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Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
I.

Errors in the RFC Assessment
A.

Failure to Consider Plaintiff’s Non-Severe Impairments of
Depression and Anxiety

Plaintiff argues that the ALJ erroneously disregarded her
generalized anxiety disorder and depressive disorder when posing
hypotheticals to the VE at the hearing and formulating her RFC
assessment.

(See

Pl’s

Mem.

(Dkt

#8-1)

at

18-20,

23-24).

Specifically, Plaintiff asserts that the ALJ’s questions covered
only two extremes: the hypothetical individual who was limited to
simple, unskilled work; or the hypothetical individual who had no
mental limitations at all. Plaintiff notes that her past work was
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skilled, and “the VE might have opined that even limitations which
are considered mild for routine daily functioning could prevent her
from performing and sustaining this work.” (Pl’s Mem. at 19).
Plaintiff does not identify or specify which limitations caused by
her alleged mental impairments should have been included in the
ALJ’s hypotheticals to the VE. At step two, in performing the
special technique applicable to mental impairments, the ALJ found
that Plaintiff has “no limitations” in social functioning and “no
limitations” in activities of daily living, findings with which
Plaintiff does not take issue on this appeal. The ALJ found that
Plaintiff has only “mild limitations” in maintaining concentration,
persistence or pace; again, Plaintiff does not take issue with this
finding. Assuming Plaintiff is referring to the “mild limitations”
assigned by the ALJ to her abilities to maintain concentration,
persistence or pace, there is substantial evidence in the record to
support the ALJ’s failure to include such limitations in his
hypotheticals to the VE.
For instance, in July of 2012, consultative psychologist
Dr. Kevin Duffy examined Plaintiff and opined that, inter alia, she
could maintain a regular schedule, follow and understand simple
directions and instructions, perform simple tasks independently,
learn

new

tasks,

perform

complex

tasks

independently,

make

appropriate decisions, and relate adequately with others. (T.293).
Following a subsequent consultative examination on June 25, 2013

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(T.336-45), psychologist Dr. Janine Ippolito issued a slightly more
restrictive

opinion

regarding

Plaintiff’s

abilities,

stating

Plaintiff had “mild limitations” in her ability to understand,
remember, and carry out complex instructions and make complex
decisions. The ALJ found the limitations imposed by Dr. Ippolito to
be unsupported by the treatment records. Moreover, the clinical
findings on which Dr. Ippolito based those opinions do not reflect
that Plaintiff’s mental impairments were necessarily the cause of
the mild impairments. In particular, Dr. Ippolito observed that
Plaintiff’s attention and concentration was “[m]ildly impaired due
to problems with math skills.” (T.338). However, the only task with
which Plaintiff had an issue was serial 3s subtraction, and she
only

made

one

error.

(Id.).

Then,

Dr.

Ippolito

stated

that

Plaintiff’s recent and remote memory skills were “[m]ildly impaired
due to memory problems[,]” not due to any symptomatology arising
from her alleged depression and anxiety. (T.338). Again, Plaintiff
only had an issue with one task, recalling objects after a 5-minute
delay; she was able to recall 1 out of 3 objects correctly. (Id.).
Dr. Ippolito went on to note that, with regard to Plaintiff’s
cognition, her intellectual functioning was average and her general
fund of information was appropriate to her experience. Reviewing
all of the clinical findings underlying Dr. Ippolito’s assignment
of “mild” limitations, the Court finds that her report is not

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contrary to the ALJ’s finding that Plaintiff can perform her PRW as
a medical records transcriber.
Moreover, any error is harmless because the VE testified at
the hearing that a hypothetical person of Plaintiff’s age, and with
her RFC, education, and vocational experience, even if limited to
simple, repetitive tasks, in a low stress environment (defined as
no decision-making required and occasional contact with the public,
co-employees, and supervisors) could perform

various jobs that

exist in significant numbers the national economy. (T.53-54). In
particular, the VE identified the jobs of surveillance system
monitor (DOT #379.367-014, sedentary, unskilled (SVP 2), 16,715
such jobs in the national economy); bench hand (DOT #715.684-026,
sedentary, unskilled (SVP 2), 20,518 such jobs in the national
economy); addresser (DOT #209.587-010, sedentary, unskilled (SVP
2), 19,004 such jobs in the national economy). (T.54-55). Thus,
although the ALJ ended the sequential evaluation at step four and
did not make an alternative step five finding in his decision,
there

is

substantial

Commissioner’s

limited

evidence
burden

in
at

the
step

record
five.

to

See

carry
20

the

C.F.R.

§ 404.1560(c)(2) (“In order to support a finding that you are not
disabled at this fifth step. . . , we are responsible for providing
evidence that demonstrates that other work exists in significant
numbers in the national economy that you can do, given your
residual functional capacity and vocational factors. We are not

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responsible for providing additional evidence about your residual
functional

capacity

because

we

will

use

the

same

residual

functional capacity assessment that we used to determine if you can
do your past relevant work.”).
B.

Failure to Consider Plaintiff’s Non-Severe Impairment of
Status Post-Right Shoulder Surgery

Plaintiff argues that the ALJ erroneously discounted the
opinion of consultative physician Nikita Dave, M.D. (see T.346-59)
with regard to her right shoulder pain. During the examination on
June 25, 2013, Plaintiff told Dr. Dave that she had been having
right shoulder pain for about one month, after it had been resolved
with

surgery

“years

ago.”

(See

T.346-47;

see

also

T.63,

64

(testimony by Plaintiff that she had “no idea” about date of
shoulder surgery; it could have been “more than 10 years ago”)).
Plaintiff informed Dr. Dave that the pain “shoots up along the
trapezius into the right lateral neck producing right neck pain”
that was “intermittent and sharp” and “brought on by carrying,
lifting, reaching up, and moving her neck suddenly.” (T.347).
Resting, holding the arm in a sling position, and medication helped
the pain.

(Id.).

Dr. Dave

noted

that

Plaintiff

was

“pending

discussion with [her] primary [physician], workup, and evaluation”
of her shoulder issue.
As part of her medical source statement, Dr. Dave stated that
Plaintiff’s “[r]ight shoulder has moderate limitations for lifting,
carrying, pushing, and pulling of greater than light to moderately
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weighted objects and overhead reaching at this time[,] pending
workup and treatment.” (T.350). The ALJ gave “less weight” to
Dr. Dave’s opinion as a whole because he found it “inconsistent
with the reported activities of the claimant set forth above[,]”
including gardening and driving. According to Plaintiff, the ALJ
erred by allegedly not factoring Dr. Dave’s opinion regarding her
shoulder limitations into the RFC assessment. As discussed further
below, the Court finds that the ALJ did not commit legal error, and
that the RFC was not inconsistent with Dr. Dave’s opinion.
The

Commissioner

has

elaborated

on

the

definition

of

“sedentary work” set forth at 20 C.F.R. §§ 404.1567(a), 416.967(a),
in Social Security Ruling (“SSR”) 96-9p:
The ability to perform the full range of sedentary work
requires the ability to lift no more than 10 pounds at a
time and occasionally to lift or carry articles like
docket files, ledgers, and small tools. Although a
sedentary job is defined as one that involves sitting, a
certain amount of walking and standing is often necessary
in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other
sedentary criteria are met. “Occasionally” means
occurring from very little up to one-third of the time,
and would generally total no more than about 2 hours of
an 8-hour workday. Sitting would generally total about 6
hours of an 8-hour workday. Unskilled sedentary work also
involves other activities, classified as “nonexertional,”
such as capacities for seeing, manipulation, and
understanding, remembering, and carrying out simple
instructions.
SSR 96-9p, Titles II and XVI: Determining Capability To Do Other
Work—Implications of a Residual Functional Capacity for Less Than

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a Full Range of Sedentary Work, 61 Fed. Reg. 34478, 34480 (S.S.A.
July 2, 1996) (emphases added).
At the hearing, when questioning Plaintiff, her attorney
characterized

Dr.

Dave’s

opinion

as

stating

that

Plaintiff

“wouldn’t be able to do any overhead lifting or any reaching in
front of

[her]

supplied)).

The

in

a sedentary

Court

finds

level

that

[sic].”

this

is

(T.65
not

an

(emphases
accurate

characterization of Dr. Dave’s opinion, which simply opined that
Plaintiff’s has “moderate limitations for lifting . . . greater
than light to moderately weighted objects and overhead reaching”
with regard to her right shoulder. Plaintiff admitted that she
could “reach out in front of [her]self,” and she testified to being
able to drive and to garden. (T.66). Plaintiff said that if she
“were to go to reach something and have to lift it, then [she]
would

really

have

a

problem.”

(Id.).

Thus,

Plaintiff’s

own

statements about her abilities are not inconsistent with either the
Regulations’ definition of sedentary work or SSR 96-9p, neither of
which contain references to “reaching,” which is defined by the
U.S. Department of Labor as “[e]xtending hand(s) and arm(s) in any
direction.” SCO, App. C (Physical Demands), p. C-3.
II.

Denial of a Full and Fair Administrative Hearing
Plaintiff argues that she did not receive a full and fair

administrative hearing because the ALJ ended the hearing before her
attorney could pose additional questions to the VE. (See Pl’s Mem.

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at

24-25).

As

an

initial

matter,

the

Court

notes

that

“[p]resentation and reception of evidence [are] left to the ALJ’s
broad discretion[.]” Brogan v. Comm’r of Soc. Sec., 671 F. App’x
12, 14 (2d Cir. 2016) (unpublished opn.) (ALJ did not err at the
hearing err by denying a display of claimant’s abdomen or faulting
the form of his counsel’s questions to the vocational expert)
(citing 20 C.F.R. § 404.950(c)); see also 20 C.F.R. § 416.1550(c)).
Significantly, Plaintiff has not demonstrated that she sustained
any prejudice by the ALJ’s limitation on her attorney’s examination
of the VE. As Defendant argues, Plaintiff has not explained what
type of testimony she hoped to elicit form the VE or, assuming that
she did elicit such evidence, how it would have been favorable to
her disability claim. Thus, any procedural error by the ALJ in the
conduct of the hearing was harmless.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is not legally erroneous and is supported
by substantial evidence. Accordingly, the Commissioner’s decision
is affirmed. Defendant’s motion for judgment on the pleadings is
granted, and Plaintiff’s motion for judgment on the pleadings is
denied. The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 14, 2017
Rochester, New York.
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