Doctor v. Colvin

Filing 14

DECISION AND ORDER denying 6 Plaintiff's Motion for Judgment on the Pleadings; granting 9 Commissioner's Motion for Judgment on the Pleadings. Plaintiffs complaint is dismissed in its entirety with prejudice. (Clerk of the Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 12/27/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RENEE DOCTOR,
Plaintiff,

1:15-cv-00400 (MAT)
DECISION AND
ORDER

-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

I.

Introduction
Plaintiff

Renee

Doctor

(“plaintiff”)

brings

this

action

pursuant to Title XVI of the Social Security Act (“the Act”),
seeking review of the final decision of the Acting Commissioner of
Social Security (“defendant” or “the Commissioner”) denying her
application for 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
Procedure.

For the reasons set forth below, plaintiff’s motion is

denied and defendant’s motion is granted.

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.

II.

Procedural History
Plaintiff protectively filed an application for SSI alleging

disability beginning March 1, 2007.

Administrative Transcript

(“T.”) 74, 117-22. Plaintiff’s application was initially denied,
and she timely requested a hearing before an administrative law
judge (“ALJ”), which occurred on July 22, 2013, before ALJ David S.
Lewandowski.

T.

3-54, 140-49.

At

the

hearing,

plaintiff’s

attorney amended her alleged onset date to February 27, 2012.
T. 34.

On October 17, 2013, ALJ Lewandowski issued a decision in

which he found plaintiff not disabled as defined in the Act.
T. 10-29.

The Appeals Council denied plaintiff’s request for

review on March 26, 2015, rendering the ALJ’s determination the
Commissioner’s final decision.

T. 1-3.

Plaintiff subsequently

commenced the instant action.
III.

The ALJ’s Decision
At 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 February 27, 2012,
the alleged onset date.
plaintiff

had the

T. 15.

severe

At step two, the ALJ found that

impairments

of

neck

and

back

pain,

abdominal pain, anxiety, depression, panic disorder, and asthma.
Id. 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.

Id.
2

Before proceeding to step four,

the ALJ found that plaintiff retained the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R.
§

416.967(b),

with

the

following

additional

limitations:

can

occasionally climb, push, and pull; must avoid pulmonary irritants;
is able to perform semi-skilled tasks; must have “no or limited
proximity to coworkers with occasional interaction with others”; no
fast-paced production rate; and no multi-tasking.

T. 17.

At step

four, the ALJ found that plaintiff had no past relevant work.
T. 23.

At step five, the ALJ found that, considering plaintiff’s

age, education, work experience, and RFC, there are jobs that exist
in significant numbers in the national economy that plaintiff could
perform. T. 24.

Accordingly, the ALJ found that plaintiff was not

disabled as defined in the Act.
IV.

T. 25.

Discussion
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).
“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) (internal quotation
omitted).

“Where the Commissioner’s decision rests on adequate

findings supported by evidence having rational probative force,
3

[the district court] will not substitute [its] judgment for that of
the Commissioner.”
2002).

This

Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.

deferential

standard

is

not

applied

to

the

Commissioner’s application of the law, and the district court must
independently determine whether the Commissioner’s decision applied
the correct legal standards in determining that the claimant was
not disabled.

Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.

1984).
Here, plaintiff makes the following arguments in favor of her
motion for judgment on the pleadings: 1) the ALJ’s finding that
plaintiff should have “no or limited proximity to coworkers with
occasional

interaction

with

others”

was

incomplete

and

impermissibly vague; 2) the ALJ failed to properly set forth
plaintiff’s limitations with respect to respiratory irritants; and
3) the ALJ impermissibly selectively rejected portions of the
opinion

of

consultative

adequate explanation.

physician

Dr.

Abrar

Siddiqui

without

The Court finds these arguments without

merit for the reasons discussed below.
A.

The ALJ Adequately Defined Plaintiff’s Non-Exertional
Limitations
1.

The ALJ’s Assessed Limitation of “No or Limited
Proximity to Coworkers” was Appropriate

The ALJ in this case found that plaintiff should have “no or
limited proximity to coworkers with occasional interaction with
others.”

T. 17.

In support of this conclusion, the ALJ explained
4

that he had credited plaintiff’s statement to consultative examiner
Dr. Gregory Fabiano that she suffered from panic if she was around
“too many people.”

T. 22.

Plaintiff’s self-reported symptoms provide the only record
support for the proposition that she is severely limited in her
ability to work in proximity to others.

Dr. Fabiano opined that

plaintiff was fully capable of relating adequately with others and
that her psychiatric limitations were not significant enough to
interfere with her ability to function of a daily basis.

T. 230.

State agency review physician Dr. C. Butensky opined that plaintiff
had

only

moderate

limitations

in

her

ability

coordination with or proximity to others.

T. 251.

treating

to

declined

psychiatrist

Dr.

Jarod

Masci

work

in

Plaintiff’s
to

assess

plaintiff’s ability to perform work-related functions, leaving the
opinions of Drs. Fabiano and Butensky as the only medical opinions
as to plaintiff’s social functioning.

See T. 346-351.

The ALJ’s finding regarding plaintiff’s ability to work in
proximity to her co-workers is appropriately supported by the
record. Indeed, the ALJ would have been justified in assessing a
far less restrictive limitation, given the medical opinions of
record and his well-supported finding that plaintiff was not fully
credible. With respect to plaintiff’s objection to the specific
language used by the ALJ, plaintiff has cited to no authority for
the proposition that the phrase “no or limited” is impermissibly

5

vague. ALJs are not required to use specific language in their RFC
determinations, and may use phrases with “common, natural-language
meanings

not

likely

ambiguity. . . .”

to

generate

misunderstanding

or

Reynolds v. Colvin, 2014 WL 4184729, at *4

(N.D.N.Y. Aug. 21, 2014).

“Limited or no” is a phrase commonly

used in the English language, and the vocational expert was clearly
not confused by it.

Accordingly, the Court is not persuaded by

plaintiff’s argument that the ALJ’s use of this common phrase
rendered his RFC finding incomplete and vague. Notably, this Court
has previously approved RFC findings in which the ALJ concluded
that a claimant should have “no or limited” proximity to coworkers.
See, e.g., Jimmerson v. Berryhill, 2017 WL 3149370 (W.D.N.Y. July
25, 2017); Hennelly v. Colvin, 2017 WL 2790649 (W.D.N.Y. June 28,
2017).
2.

The ALJ’s Assessed Limitation of “Avoid Pulmonary
Irritants” was Appropriate

Plaintiff has also argued that the ALJ’s finding that she
should avoid exposure to pulmonary irritants was impermissibly
vague.

The Court disagrees.

The phrase used by the ALJ - “avoid

pulmonary irritants” (T. 17) - tracks the language used by from
Dr. Siddiqui, who opined that plaintiff should avoid exposure to
“known respiratory irritants” (T. 236), and is therefore supported
by the medical evidence of record.
Moreover, plaintiff’s argument based on SSR 96-9p lacks merit.
As

a

threshold

issue,

SSR

96-9p
6

“addresses

instances

where

claimants have residual functional capacity for less than sedentary
work.” Wilson v. Comm'r of Soc. Sec., 2014 WL 4826757, at *10
n.32(N.D.N.Y. Sept. 29, 2014). In this case, the ALJ found that
plaintiff was capable of performing light work with additional nonexertional limitations, not less than sedentary work.
Additionally, while SSR 96-9p does indeed provide that an RFC
assessment must state the extent of an environmental restriction,
the ALJ’s decision in this case meets that standard.

The lack of

any qualifier in the phrase “avoid pulmonary irritants” necessarily
indicates

that

plaintiff

should

avoid

any

exposure

to

such

irritants, and not just concentrated or excessive exposure.

The

jobs identified by the vocational expert (“VE”) as compatible with
plaintiff’s RFC (i.e., mail clerk, housekeeper, stock checker)
comply with this limitation, inasmuch as they do not involve
exposure to conditions such as fumes, noxious odors, dusts, mists,
gases, and poor ventilation that “affect the respiratory system,
eyes,

or

the

skin.”

Program

Operations

Manual

System,

DI

25001.001; see also U.S. Dep’t of Labor, Dictionary of Occupational
Titles, Codes 209.687-1026, 299.667-014, 323.687-104.

In other

words, the VE does not appear to have been confused by the
requirement that plaintiff avoid pulmonary irritants, and there is
no reason to think any further description of the limitation would
have changed the VE’s testimony.

7

B.

The ALJ did not Improperly Split Dr. Siddiqui’s Opinion

Plaintiff’s final argument is that the ALJ improperly “split”
Dr. Siddiqui’s opinion by selectively adopting only those portions
of the opinion that were unfavorable to plaintiff.

Plaintiff is

incorrect. The ALJ’s RFC finding is consistent with Dr. Siddiqui’s
opinion.
Dr. Siddiqui evaluated plaintiff on June 1, 2012.

T. 232-36.

On physical examination, plaintiff had a normal gait and stance and
was able to squat fully and walk on her heels and toes without
difficulty.

T. 234.

She had full range of motion in her cervical

and lumbar spine, shoulders, elbows, forearms, wrists, and ankles,
and straight leg raise tests were negative bilaterally.
Plaintiff

had

a

reduced

range

of

motion

in

her

T. 235.

hips,

but

Dr. Siddiqui noted that she was not putting forth her full effort.
Id.

Plaintiff also had 5/5 strength in her upper and lower

extremities with no significant muscle atrophy, as well as intact
hand and finger dexterity and 5/5 grip strength.

Id. Dr. Siddiqui

opined that plaintiff had moderate limitations in her abilities to
sit, stand, walk, climb, push, pull, and carry heavy objects.
T. 236.
In his decision, the ALJ afforded Dr. Siddiqui’s opinion
“significant weight.”
opinion,

the

ALJ

T. 22.

limited

In accordance with Dr. Siddiqui’s

plaintiff

to

occasional climbing, pushing, and pulling.

8

light
Id.

work

with

only

Plaintiff argues that the ALJ’s limitation to occasional
climbing, pushing, and pulling is inconsistent with Dr. Siddiqui’s
opinion that she had moderate limitations in these areas. However,
a “moderate” limitation in climbing, pushing, and pulling is
adequately accounted for in a finding that plaintiff can perform
those activities only occasionally.

See, e.g., Miller v. Astrue

2012 WL 3061949, at *5 (N.D.N.Y. July 26, 2012) (doctor’s opinion
that claimant had a moderate limitation in climbing stairs was
consistent

with

an

RFC

finding

that

claimant

was

limited

to

occasional climbing). Plaintiff has not cited any case law for the
proposition that a moderate limitation in climbing, pushing, and
pulling is not properly accounted for in an RFC analysis that
limits a claimant to occasionally engaging in those activities, nor
has

she

offered

any

persuasive

argument

to

support

such

a

conclusion.
Plaintiff also argues that a moderate limitation in walking
and standing is inconsistent with light work, which requires the
ability to stand or walk for about six hours in eight-hour day.
Again,

courts

particularly

in

where,

this
as

Circuit
here,

have

the

held

medical

to

the

evidence

contrary,
of

record

supports the conclusion that the claimant was capable of performing
light work.

See Harrington v. Colvin, 2015 WL 790756, at *14

(W.D.N.Y. Feb. 25, 2015) (collecting cases).

As set forth above,

Dr. Siddiqui’s examination of plaintiff revealed essentially benign
physical

findings.

Moreover,
9

reviewing

physician

Dr.

Zwi

Kahamowicz opined that plaintiff was capable of performing light
work (T. 257), and there are no medical opinions in the record that
assessed limitations incompatible with the ability to perform light
work.

In light of the medical record as a whole, the ALJ’s

conclusion that plaintiff was capable of light work was consistent
with Dr. Siddiqui’s assessment of moderate limitations in walking,
sitting, and standing.
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Docket No. 6) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 9) is granted.
Plaintiff’s 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
Dated:

December 27, 2017
Rochester, New York

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