Baker v. Colvin

Filing 15

DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Defendant's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 11/21/17. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMANDA BAKER,
Plaintiff,

No. 1:15-cv-00388-MAT
DECISION AND ORDER

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I. Introduction
Represented by counsel, Amanda Baker (“Plaintiff”) instituted
this action pursuant to Titles II and XVI 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”)

and

Supplemental Security Income (“SSI”). The Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
II. Procedural History
On July 17, 2012, Plaintiff filed a Title II application for
a period of disability and DIB. She also protectively filed a Title
XVI application for SSI on July 17, 2012. In both applications, she

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
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).

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alleged disability beginning July 7, 2012. These claims were denied
initially on October 15, 2012. Plaintiff filed a written request
for

hearing

on

October

19,

2012.

On

December

3,

2013,

administrative law judge Eric L. Glazer (“the ALJ”) held a hearing
in Buffalo, New York, at which Plaintiff appeared with her attorney
and testified. Through her attorney, Plaintiff amended her onset
date to July 30, 2011. The ALJ issued an unfavorable decision on
February 28, 2014. Plaintiff’s request for review by the Appeals
Council was denied on March 15, 2015, making the ALJ’s decision the
final decision of the Commissioner. Plaintiff then timely commenced
this action.
Plaintiff and Defendant have cross-moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court will discuss the record evidence further
below, as necessary to the resolution of the parties’ contentions.
For the reasons set forth herein, the Commissioner’s decision is
affirmed.
III. The ALJ’s Decision
The ALJ found, at step one, that Plaintiff meets the insured
status requirements of the Act through September 30, 2013, and has
not engaged in substantial gainful activity (“SGA”) since July 30,
2011, the alleged onset date. Although Plaintiff began working
full-time as a leather-cutter in October of 2013, this does not
rise to the level of SGA. She also worked as a keeper/aide to

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seniors from May of 2011, to June of 2012; and for Marshall’s
department store from July of 2013, to August 2013. However, these
positions were performed on a part-time basis and did not rise to
the level of SGA.
At step two, the ALJ found that Plaintiff has the following
“severe”

impairments:

mild

gastroesophogeal

reflux

disease

(“GERD”), gastritis, gastroparesis, dysthymic disorder, and anxiety
disorder.
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 a listed impairment. In particular, the ALJ
determined that the severity of Plaintiff’s mental impairments,
considered singly and in combination, do not meet or medically
equal the criteria of listings 12.02 and 12.04. The ALJ determined
that the paragraph “B” criteria are not met because Plaintiff has
no limitations in activities of daily living or social functioning,
only mild limitations in maintaining concentration, persistence or
pace, and has not experienced any periods of decompensation. The
ALJ found that the paragraph “C” criteria are not met because
Plaintiff has not experienced any periods of decompensation, a
required criterion under paragraph “C”.
The ALJ proceeded to find that Plaintiff has the residual
functional capacity (“RFC”) to perform a full range of work at all
exertional levels with the following nonexertional limitations: she

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is able to perform simple, routine, and repetitive tasks, including
work that involves only simple multiplication or division, or both.
At step four, the ALJ found that Plaintiff is capable of
performing her past relevant work as a fast food worker (light
exertion, unskilled), because this work does not require the
performance of work-related activities precluded by her RFC.
The ALJ did not perform an alternative step five analysis and
entered a finding that Plaintiff had not been under a disability as
defined in the Act throughout the relevant period.
IV.

Scope of Review
A

district

court

may

set

aside

the

Commissioner’s

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). 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”). “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)
(quotation

omitted).

The

reviewing

court

nevertheless

must

scrutinize the whole record and examine evidence that supports or

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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

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
A.

Erroneous Step Four Analysis (Plaintiff’s Point I, Point
II.a, & Point II.b)

Plaintiff

contends

that

the

ALJ’s

step

four

analysis

concluding that she could perform her past relevant work (“PRW”) as
a fast food worker was erroneous because “there was significant
evidence that [she] would have difficulty returning” to that
position.

(See

Plaintiff’s

T.43-44)).2

Plaintiff

notes

Brief
that

(“Pl’s

she

Br.”)

“testified

at

9

that

(citing
she had

difficulty using cash registers,” which “inhibited her at Tim
Hortons, Burger King, and a pizzeria (all of which could fairly be
characterized as fast food jobs).” (Id.). Plaintiff also points out
that at her examination with the consultative psychologist, Dr.
Baskin, she was unable to perform serial 3's correctly, and Dr.
Baskin opined that she had a “moderate” limitation for dealing with
stress. (Id. (citing T.465)). According to Plaintiff, remand is
required under Abbott v. Colvin, 596 F. App’x 21, 23–24 (2d Cir.
2

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

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2015) (summary order). As discussed further below, the Court agrees
that the ALJ’s step four analysis was insufficiently detailed, but
that any error was harmless.
In

Abbott,

the

Second

Circuit

noted

that

“[t]he

Social

Security Administration has cautioned that determination of a
claimant’s ability to perform past relevant work requires, at the
very least, ‘a careful appraisal of (1) the individual’s statements
as to which past work requirements can no longer be met and the
reason(s) for his or her inability to meet those requirements;
[and] (2) medical evidence establishing how the impairment limits
ability to meet the physical and mental requirements of the work.’”
Abbott, 596 F. App’x at 23 (quoting Social Security Ruling 82–62,
Titles II and XVI: A DISABILITY CLAIMANT’S CAPACITY TO DO PAST RELEVANT WORK,
IN

GENERAL (“SSR 82–62”), 1982 WL 31386, at *3 (S.S.A. 1982);

brackets in original). The claimant in Abbott had PRW as a school
teacher. In assessing Abbott’s RFC, the ALJ determined that “due to
the claimant’s depression and attention deficit disorder, she has
mild limitations in the ability to understand, carry out, and
remember detailed instructions; mild difficulties in the ability to
use judgment in making work-related decisions; mild difficulties in
the ability to respond appropriately to supervision, coworkers[,]
and work situations; and mild difficulties in the ability to deal
with changes in a routine work setting.” Abbott, 596 F. App’x at 23
(quotation to record omitted; brackets in original). In addition,

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the Second Circuit found it significant that Abbott “repeatedly
emphasized” the nonexertional demands associated with her PRW as a
teacher. However, the Second Circuit noted, in concluding that
Abbott could perform her PRW at step four, the ALJ addressed only
her physical limitations, leaving unaddressed the nonexertional
limitations he had assigned to Abbott in the RFC, as well
Abbott’s own statements. Id.

as

The Second Circuit held that because

the ALJ’s step four analysis left both her descriptions about her
PRW and her nonexertional limitations unaddressed, remand was
necessary for further consideration and explanation of whether
Abbott could perform her PRW of school teacher. Id. at 23-24.
The Court finds that the ALJ’s step four analysis consisted
mainly of reciting boilerplate, and focused entirely on the fact
that Plaintiff’s PRW as a fast food worker was performed at the
light exertional level and was an unskilled job. (T.18). Plaintiff
argues that the ALJ made no effort to explain why she could return
to her past work, in spite of her testimony that she was unable to
deal with cash registers at her previous fast food jobs, and in
spite of Dr. Baskin’s assessment of moderate limitations dealing
with stress. However, in making this argument, Plaintiff neglects
to mention her later testimony that her difficulty using cash
registers did not exist any longer:
Q
A

And you are saying that in those years [working at
Carroll’s and Burger King], you still had trouble
operating the equipment, the machine or –
Not having any trouble now, but I had trouble back
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then.
Okay. And you are having less trouble now with
that?
No.
You are having as much trouble or – I thought you
just said your trouble has gone away. You don’t
have it anymore, operating cash registers?
Nope. The only thing that – sometimes I feel
depressed sometimes I don’t.
That effects [sic] you. So it’s depression, not the
skill with the machine.
Yes.

Q
A
Q
A
Q
A
(T.44-45).

Moreover,

despite

her

difficulty

operating

cash

registers at Burger King, Plaintiff was able to maintain employment
there for three years. (T.44).
As to the “moderate” limitations in dealing with stress
assigned by consultative psychologist Dr. Baskin Plaintiff omits
mention of the remainder of Dr. Baskin’s opinion that Plaintiff
“would have minimal to no limitations being able to follow and
understand simple directions and instructions, perform simple tasks
independently, maintain attention and concentration, maintain a
regular

schedule,

learn

new

tasks

with

supervision,

make

appropriate decisions and relate adequately with others.” (T.465).
In addition, Dr. Baskin suggested that Plaintiff “consider some
type of

vocational

training/rehabilitation

given

her

relative

youth.” (T.466). On the whole, then, Dr. Baskin’s medical source
statement is not inconsistent with the RFC to perform simple,
routine, and repetitive tasks.
Moreover, Plaintiff did not testify that dealing with stress
inhibited her from obtaining employment. Rather, she stated that
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she

“sometimes”

felt

depressed.

(T.45).

The

medical

record,

however, is devoid of any mental health treatment during the
relevant period for depressive symptoms. At the hearing level,
Plaintiff submitted a study “documenting that 36.9 percent of
people with ‘moderate mental illness’ seek treatment; and only 59.6
percent of people with ‘serious mental illness’ seek treatment in
any given calender year.” (Pl’s Br. (citing T.254 (citing 284-90)).
Plaintiff notes that the record further indicates that she lacked
access to health insurance. (T.58, 409). Plaintiff urges that the
Court to draw the inference that her mental health issues were of
disabling severity, and that the only reason she did not seek
treatment was due financial hardship. However, there is no evidence
that Plaintiff herself did not seek mental health treatment because
she could not afford it. Rather, the record indicates that at her
yearly physical and other doctors’ appointments, Plaintiff denied
symptoms of anxiety and depression. (See, e.g., T.410 (11/4/11;
“patient’s
(7/9/12;

mood
“Not

and

affect

Present

-

are

described

Anxiety,

Change

as
in

stable”),
Sleep

T.432

Pattern,

Depression and Mood changes”) (emphasis supplied), T.524 (7/1/13;
“Not Present - Anxiety, Depression, and Frequent crying”) (emphasis
supplied), T.530 (11/4/13; “Not Present - Anxiety, Change in Sleep
Pattern, Depression and Mood changes”) (emphasis supplied)). It is
well settled that an ALJ “is entitled to rely not only on what the
record says but also on what it does not say.” Dumas v. Schweiker,

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712 F.2d 1545, 1553 (2d Cir. 1983) (citations omitted).
Plaintiff relatedly contends that the ALJ erred in failing to
grant her request to have Dr. Baskin subpoenaed so that Plaintiff’s
attorney could “clarify the extent of th[e] moderate impairment [in
dealing with stress]” assigned by Dr. Baskin to Plaintiff. (See
Pl’s Br. at 14-16). The ALJ considered Plaintiff’s request, but
denied it on the basis that notwithstanding the “difficulties or
vagueries [sic]” on the face of the medical source’s report that
“certainly may impair its utility as an evidentiary document,” the
“weight of the evidence is for [him] to determine” and he did not
“want to burden the administration, which, of course, is on the
other side of this case, from having to produce these experts.”
(T.35). While the ALJ’s reasoning is less than clear, the ultimate
decision not to subpoena Dr. Baskin was not error under the
relevant standard.
The Second Circuit has held that “the right to due process in
a social security disability hearing does not require that a
reporting physician be subpoenaed any time a claimant makes such a
request.” Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). The
issuance of subpoenas in proceedings under the Act is covered in 20
C.F.R. § 404.950(d)(1), which provides, in relevant part, as
follows:
When it is reasonably necessary for the full presentation
of a case, an administrative law judge . . . may, . . .
at the request of a party, issue subpoenas for the
appearance and testimony of witnesses . . . .
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20 C.F.R. § 404.950(d)(1) (emphasis supplied). The Second Circuit
has emphasized that “[t]he plain language” of the section quoted
above “clearly places the decision to issue a subpoena within the
sound discretion of the ALJ.” Yancey, 145 F.3d at 111 (citing
Wallace v. Bowen, 869 F.2d 187, 194 (3d Cir. 1988) (“The question
of whether to issue a subpoena to compel cross-examination of a
reporting physician is a question entrusted to the ALJ who is
obligated to develop the record fully.”) (quotation omitted in
original)). Furthermore, courts have held that it is appropriate to
consider “the burdensome effects of the costs of paying reporting
physicians to testify in every case, as well as the likely decline
in physicians willing to provide reports with the knowledge that a
subpoena would follow virtually every report submitted.” Id. at 113
(citing Flatford v. Chater, 93 F.3d 1296, 1306 (6th Cir. 1996)).
Plaintiff has failed to establish that Dr. Baskin’s testimony
was “reasonably necessary” for the “full presentation” of her case
given that the ALJ here obtained a complete medical record for
Plaintiff and the absence of any indication that Dr. Baskin’s
report was incomplete, inaccurate, or tainted by prejudice. See
Yancey, 145 F.3d at 113 (finding no abuse of discretion where
“[t]he ALJ (1) allowed Yancey a fair and meaningful opportunity to
present her case and (2) had no indication that Dr. Wong’s (or any
physician’s) reports were inaccurate or biased or that subpoenaing
Dr. Wong would have added anything of value to the proceedings”).

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Even assuming arguendo that Dr. Baskin’s assignment of “moderate
limitations” in dealing with stress constituted what the ALJ
referred to as “difficulties or vagueries [sic],” Plaintiff’s own
testimony, as discussed above, did not support a finding that
problems

with

stress

precluded

her

from

performing

her

past

relevant work. Further, as discussed above, the remainder of Dr.
Baskin’s medical source statement is not inconsistent with ALJ’s
RFC assessment that Plaintiff can perform simple, routine, and
repetitive tasks.
B.
Failure to Order a Consultative
Examination (Plaintiff’s Point II.c)

Intelligence

Plaintiff argues that ALJ erred in declining to order a
consultative

intelligence

examination,

on

consultative

psychologist

Dr.

estimated

Baskin

the

grounds

that

Plaintiff’s

intelligence to be in the low average to borderline range and that
Plaintiff reported that she had a learning disability in school.
(See Pl’s Br. at 12-13, 16-17).
Standing against Dr. Baskin’s passing mention of Plaintiff’s
possible borderline range intellectual functioning, is substantial
other evidence indicating that Plaintiff’s intelligence did not
preclude her from substantial gainful employment. In particular,
Plaintiff graduated high school; although she needed “resource
room” during school, she denied requiring special accommodations
such as extra time to complete math or English assignments. (T.37).
Despite her difficulties related to math and operating a cash
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register, Plaintiff successfully maintained employment at Burger
King for about three years. At the time of the hearing, she was
working 35 hours per week at Garrett Leather, operating a cutting
machine and labeling and clear-coating samples; she was able to do
the work satisfactorily. (T.40-41, 43). Dr. Baskin found that
although she had difficulty with serial 3's, she could perform
counting and simple calculations, could recall 3 out of 3 objects
immediately and after 5 minutes, and could recite 7 digits forward
and 3 digits backwards. (T.465). Plaintiff’s speech was fluent and
clear, she was responsive to questions, and her expressive and
receptive language were intact. (T.464). Plaintiff performed all
activities of daily living independently, including care of her two
young children. Although she did not have a driver’s license, there
is no suggestion that this was due to any cognitive limitations.
Based on the record as a whole, it was not an abuse of discretion
for the

ALJ

to decline

to order

a

consultative

intelligence

examination. See, e.g., Jones v. Colvin, No. 6:16-CV-0044(GTS),
2017 WL 3016839, at *6 (N.D.N.Y. July 14, 2017) (no abuse of
discretion in deciding not to order intelligence examination where
examining

physician noted

“[rule

out]

Borderline Intellectual

Functioning”; ALJ was aware that claimant only completed 9th grate,
did not obtain GED, and received special education services);
Wallace v. Colvin, 120 F. Supp.3d 300, 305 (W.D.N.Y. 2015) (“While
the record appears to establish [the claimant]’s ‘possible’ or

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apparent borderline intellectual functioning, there is no evidence
that [her] I.Q. has ever been objectively assessed. The Court is
mindful that in general, passing references in the record to a
claimant’s low intelligence do not trigger an ALJ’s obligation to
order intelligence testing, particularly where other evidence of
record,

such

as

the

claimant’s

education,

work

history,

and

activities of daily living, does not suggest a severe cognitive
impairment.”) (citing Crawford v. Astrue, No. 13-CV-6068P, 2014 WL
4829544, at *24 (W.D.N.Y. Sept. 29, 2014) (“The record reflects
that Crawford successfully completed high school, in a special
education setting, and was able to study for and obtain her CNA
certification. Further, Crawford maintained employment in several
semi-skilled positions, including as a CNA, for several years.
Crawford reported that she is able to manage her own finances and
enjoys reading as one of her hobbies. Although Crawford testified
at the hearing that she does not believe that she is able to read
at an appropriate level, she conceded that she is able to read a
newspaper. Thus, the record does not suggest that Crawford suffers
from significant cognitive impairments, and the few references in
the record were insufficient to trigger the ALJ’s duty to order an
intelligence examination.”) (citations omitted)).
VI.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision was not legally erroneous and is supported

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by substantial evidence. It therefore is affirmed. Accordingly,
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:

November 21, 2017
Rochester, New York.

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