Rivera v. Colvin

Filing 27

DECISION AND ORDER denying 13 Plaintiff's Motion for Judgment on the Pleadings; granting 24 Commissioner's Motion for Judgment on the Pleadings, and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/11/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HEISA RIVERA,
Plaintiff,

1:15-cv-0487-MAT
DECISION AND
ORDER

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

Introduction
Represented by counsel, Heisa Rivera(“plaintiff”) has brought

this action pursuant to Title XVI of the Social Security Act (“the
Act”),

seeking

Commissioner

review
of

of

Social

the

final

Security1

decision

of

the

(“defendant”

Acting

or

“the

Commissioner”) denying her application for Supplemental Security
Income (“SSI”).

This Court has jurisdiction over the matter

pursuant to 42 U.S.C. § 405(g). 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.
reasons

set

forth

below,

plaintiff’s

motion

is

For the

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
On

December

application

for

15,

2011,

SSI.

plaintiff

Administrative

protectively
Transcript

filed
(“T.”)

an
73.

Plaintiff’s claim was initially denied, and she timely requested a
hearing before an administrative law judge (“ALJ”). T. 74-78. ALJ
Curtis Axelson held a hearing on October 21, 2013, and November 7,
2013, at which plaintiff was represented by attorney Kelly Laga.
T. 37-66.

On January 9, 2014, ALJ Axelson issued a decision in

which he found plaintiff not disabled.

T. 13-34.

Plaintiff’s

request for Appeals Council review was denied on April 14, 2015,
making the ALJ’s decision the final decision of the Commissioner.
T. 1-6.
III.

Plaintiff subsequently commenced the instant action.

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 December 15,
2011, the alleged onset date.
that

plaintiff

had

the

T. 21.

severe

At step two, the ALJ found

impairments

of

depression,

posttraumatic stress disorder (“PTSD”), learning disorder, and
asthma and the non-severe impairments of diabetes, hypertension,
and hypothyroidism. T. 21-23.

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. 23.

Before

proceeding to step four, the ALJ found that plaintiff retained the
residual functional capacity (“RFC”) to perform a full range of
2

work at all exertional levels, with the following non-exertional
limitations: is limited to work involving unskilled, routine,
repetitive tasks and limited concentration, and is limited to
environments without excessive environmental irritants.

T. 25.

At step four, the ALJ found that plaintiff had no past relevant
work.

T. 32.

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. 33.

Accordingly, the ALJ found that

plaintiff was not disabled as defined in the Act.
IV.

Id.

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

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) (quotation omitted).
“Where the Commissioner’s decision rests on adequate findings
supported

by

evidence

having

rational

probative

force,

[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
3

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).
V.

Discussion
Plaintiff requests the Court to remand this matter for further

administrative proceedings, arguing that: (1) the ALJ failed to
properly take into account her illiteracy; (2) the ALJ failed to
properly evaluate the impact of plaintiff’s asthma on her ability
to work; (3) the ALJ failed to properly evaluate the impact of
plaintiff’s obesity on her RFC; (4) the ALJ failed to properly
evaluate the impact of plaintiff’s visual impairment on her ability
to work; and (5) the ALJ failed to properly consider the combined
effects of plaintiff’s severe and non-severe impairments.
response,

the

Commissioner

requests

the

Court

to

uphold

In
her

determination that plaintiff is not disabled, arguing that it was
supported by substantial evidence and free from legal error.

For

the reasons discussed below and based on a review of the record
evidence, the Court finds that the Commissioner’s determination
that plaintiff is not disabled is supported by substantial evidence
and is not subject to remand.
A.

Consideration of Plaintiff’s Illiteracy

Plaintiff was born and raised in Puerto Rico and is Spanish
speaking.

It is undisputed that she has only a second grade

education and is unable to read or write in either Spanish or
4

English.

Plaintiff further claims that she is unable to speak any

English, although, as the ALJ noted in his decision, there is
evidence in the record indicating that she has some degree of
English language capability.

See T. 30.

The ALJ expressly noted

in his decision that plaintiff is illiterate (T. 32), and the
Commissioner does not dispute that conclusion here.
Plaintiff argues that, because she is illiterate, it was
impermissible

for

the

ALJ

to

rely

on

the

Medical-Vocational

Guidelines (the “Grids”) in determining that she was not disabled.
She contends that the Dictionary of Occupational Titles (the
“DOT”), of which the Commissioner’s regulations take administrative
notice, provides that all the jobs identified therein require the
ability to read 95-120 words per minute, recognize 2,500 two and
three syllable words, and print simple sentences, and that she
lacks any such ability.
required

to

consult

Accordingly, she argues that the ALJ was

with

a

vocational

expert

(“VE”)

before

determining that she was capable of substantial gainful employment
despite her illiteracy.
In response to plaintiff’s argument, the Commissioner points
out that the Grids directly contradict the DOT, and provide that an
individual who is illiterate or unable to communicate in English is
not disabled,

as

a matter

of

law, if

she

is

individual and (2) can perform at least light work.

(1)

a

younger

See 20 C.F.R.

404, Subpart P, Appendix 2, Rule 202.00(g) (“The capability for
light work, which includes the ability to do sedentary work,
5

represents the capability for substantial numbers of such jobs.
This, in turn, represents substantial vocational scope for younger
individuals (age 18–49) even if illiterate or unable to communicate
in English.”) (emphasis added); see also Young v. Comm’r of Soc.
Sec., No. 2:11-CV-1283 CMK TEM, 2012 WL 3249506, at *6 (E.D. Cal.
Aug. 7, 2012), aff’d, 594 F. App’x 914 (9th Cir. 2014) (noting that
the Grids “indicate that plaintiff’s alleged illiteracy as a
younger individual age 18–44 in itself does not militate in favor
of

disability

at

any

exertional

level”);

Boykin

v.

Apfel,

No. CIV.A. 98-0774-BH-S, 2000 WL 284201, at *3 (S.D. Ala. Feb. 22,
2000) (“illiteracy does not significantly restrict the range of
unskilled light . . . jobs available under the Grids”).
The Court agrees with the Commissioner that the ALJ properly
relied upon
disabled.

the

Grids

in

determining

that

plaintiff

was

not

While the Commissioner’s regulations do indeed take

notice of the DOT, federal courts have squarely rejected the
contention

that

an

ALJ

is

bound

by

the

DOT’s

definitional

requirements regarding language ability, which would “in effect
make illiteracy a per se disability.”
Supp. 285, 289 (W.D. Va. 1994).

Warf v. Shalala, 844 F.

While plaintiff in this case

contends that she is not arguing that the Commissioner must find
all illiterate claimants disabled, her argument that the ALJ is
required to call a VE in every case involving an illiterate
claimant is similarly inconsistent with the Grids.

6

Carter v. Barnhart, No. 05-38-B-W, 2005 WL 3263936 (D. Me.
Nov. 30, 2005), on which plaintiff relies for her contention, is
inapposite.

There is no indication that the plaintiff in Carter

was illiterate, nor did the Carter court consider or address the
Grids’ explicit instruction that a younger individual who is
capable of light work is not disabled even if illiterate or unable
to communicate in English.

Instead, the Carter decision addresses

whether an individual who is limited to simple repetitive tasks is
capable of performing jobs defined in the DOT as requiring a
reasoning development level of 3.

Id. at *2.

That issue simply is

not present in the instant case.
In

sum,

plaintiff

has

failed

to

demonstrate

that

her

illiteracy rendered the ALJ’s reliance on the Grids inappropriate,
particularly in light of the Grids’ explicit discussion of the
impact of illiteracy in a younger individual capable of light work.
As such, plaintiff has not shown that remand is required on this
ground.
B.

Consideration of Plaintiff’s Asthma

Plaintiff’s next argument is that the ALJ failed to properly
consider and account for the impacts of her asthma in determining
her RFC.
finding

In particular, plaintiff contends that the ALJ erred in
that

she

was

only

required

to

avoid

“excessive”

environmental irritants.
The ALJ’s conclusion regarding the impacts of plaintiff’s
asthma is supported by substantial evidence.
7

The medical evidence

of

record

regarding

plaintiff’s

asthma

does

not

support

the

conclusion that it imposes a more serious restriction than that
assessed by the ALJ.
are

no

abnormal

As the Commissioner correctly notes, there

respiratory

findings

in

plaintiff’s

medical

records, and she only complained of respiratory symptoms to a
medical provider on one occasion.
medical

record

reveals

that

See T. 429.

plaintiff

was

Moreover, the

not

taking

any

preventative medication for her asthma, and instead treated it
solely with an acute inhaler.
Plaintiff

contends

that

the

ALJ’s

RFC

determination

was

inconsistent with the opinion of consultative examiner Dr. John
Schwab.

Dr. Schwab examined plaintiff on February 28, 2012, and

plaintiff reported that she had asthma, for which she used an
unspecified inhaler, and that the trigger for her asthma was
“weather, especially in Buffalo, but not in Puerto Rico.”

T. 291.

Dr. Schwab subsequently opined that plaintiff should “avoid any
activity that triggers her asthma.”
the

ALJ’s

excessive
Dr.

restriction

of

respiratory

irritants

Schwab’s

opinion.

T. 294.

plaintiff

Dr.

is

Schwab’s

to

The Court finds that
environments

fully

without

consistent

opinion

was

with

based

on

plaintiff’s self-reported symptoms, including plaintiff’s statement
that her asthma attacks were triggered solely by the weather in
Buffalo. As such, it was reasonable and appropriate for the ALJ to
interpret Dr. Schwab’s opinion as simply limiting plaintiff to

8

environments without extremes of cold, as one would find in Buffalo
in the winter.
No medical source of record apart from Dr. Schwab opined
regarding any restrictions associated with plaintiff’s asthma, nor
has plaintiff pointed to any medical evidence of record to support
the conclusion that she is unable to withstand any environmental
irritants, as she now claims.

To the extent plaintiff is arguing

that the ALJ was required to credit her subjective complaint that
her asthma was poorly controlled, she is incorrect.

An ALJ “is not

required to accept the claimant's subjective complaints without
question; he may exercise discretion in weighing the credibility of
the claimant’s testimony in light of the other evidence in the
record.”

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).

The

ALJ in this case performed a thorough assessment of plaintiff’s
credibility and found her not fully credible, explaining that she
had made numerous unexplained, contradictory statements regarding
her condition.

See T. 30. Having appropriately determined that

plaintiff was not fully credible, the ALJ was not required to
credit her subjective complaints regarding her asthma, which were
unsupported by the medical evidence.
C.

Consideration of Plaintiff’s Obesity

Plaintiff

also

argues

that

the

ALJ

failed to properly

evaluate the impact of her obesity on her RFC.

Plaintiff notes

that she is five feet, five inches tall and weighed over 300 pounds
during the relevant time period, rendering her morbidly obese. She
9

argues that the ALJ failed to mention her obesity in his decision,
and that he should have found it to be a severe impairment and
considered its impact on her ability to do basic work activities.
“Obesity is not in and of itself a disability,” but “[a]n ALJ
should

consider

whether

obesity,

in

combination

impairments, prevents a claimant from working.”

with

other

Guadalupe v.

Barnhart, No. 04 CV 7644 HB, 2005 WL 2033380, at *6 (S.D.N.Y.
Aug. 24, 2005).

However, “[a]n ALJ does not have a duty to

evaluate a plaintiff’s obesity where the plaintiff does not claim
it as a disability, it was not diagnosed as a distinct medical
condition, and no medical source found it as a significant factor
in the plaintiff’s ability to perform basic work activities.” Ryan
v. Colvin, No. 15-CV-74S, 2017 WL 2240256, at *5 (W.D.N.Y. May 23,
2017); see also Pokluda v. Colvin, No. 1:13-CV-335 GLS/ESH, 2014 WL
1679801, at *9 (N.D.N.Y. Apr. 28, 2014) (same).

Moreover, an ALJ

may “implicitly factor[] [a claimant’s] obesity into his RFC
determination by relying on medical reports that . . . note[] [the
claimant’s] obesity and provide[] an overall assessment of her
work-related limitations.”

Drake v. Astrue, 443 F. App’x 653, 657

(2d Cir. 2011); see also Guadalupe, 2005 WL 203380 at *6 (“When an
ALJ’s

decision

adopts

the

physical

limitations

suggested

by

reviewing doctors after examining the Plaintiff, the claimant’s
obesity

is

understood

to

have

decision[].”).

10

been

factored

into

the[]

In

this

case,

although

there

are

sporadic

mentions

of

plaintiff’s obesity in the medical record, no provider or medical
source ever identified it as a significant factor in plaintiff’s
ability to perform basic work activities.

Moreover, plaintiff did

not claim her obesity as a disability, and she “neglected to
mention it when asked by the ALJ to describe why she was unable to
work.”

Guadalupe, 2005 WL 203380 at *6; see T. 51.

Additionally,

Dr. Schwab examined plaintiff and noted that she was five feet,
five inches and weight 299 pounds, yet determined that her only
physical limitations were a requirement to avoid activities that
trigger her asthma and to avoid activities requiring good vision in
two eyes.

T. 292-294.

not

that

find

the

plaintiff’s obesity.

Under these circumstances, the Court does
ALJ

erred

in

not

explicitly

addressing

See Farnham v. Astrue, 832 F. Supp. 2d 243,

261 (W.D.N.Y. 2011) (ALJ did not err in failing to explicitly
discuss plaintiff’s obesity where “the record establishes that
Plaintiff is obese . . . but is otherwise devoid of any evidence
that

Plaintiff's

treating

or

examining

sources

considered

Plaintiff’s obesity a significant factor relative to Plaintiff’s
ability to perform basic work activities.”).
The Court is not persuaded by plaintiff’s contention that
Dr. Ellis Gomez treated her for obesity.

While Dr. Gomez did note

that plaintiff was obese (see T. 422), it is clear from his
treatment records that he was treating her for hypertension (see
id.

(noting

that

plaintiff

“present[ed]
11

with

a

complaint

of

hypertension”).

Importantly, under the “Assessments and Plans”

section of his treatment notes, Dr. Gomez assessed plaintiff with
hypothyroid,

hyperlipidemia,

hypertension,

major

depressive

disorder, right buttock pain, and asthma, but did not list obesity
as a separate diagnosis.

T. 424-25.

Accordingly, Dr. Gomez’s

treatment notes do not support the conclusion that he considered
plaintiff’s obesity a significant factor in her ability to perform
basis work functions.
D.

Assessment of Plaintiff’s Visual Impairment

During

his

examination,

Dr.

Schwab

performed

an

eye

examination of plaintiff, which showed that her uncorrected vision
was 20/30 in her right eye, 20/400 in her left eye, and 20/40 in
both eyes on a Snellen chart at 20 feet.

T. 292.

Plaintiff

contends that the ALJ erred in failing to mention or discuss this
“visual impairment” in his decision.
Plaintiff’s argument lacks merit.

As the Commissioner points

out, her regulations provide that, in order to establish a visual
impairment, a claimant is required to demonstrate that she has
deficits in her “best-corrected . . . visual acuity.”

20 C.F.R.

4040, Subpart P, App’x 2, Rule 2.00(4) (emphasis added).

In this

case, there is no evidence in the record that plaintiff’s vision
issues

could

not

be

remediated

with

corrective

lenses,

and

plaintiff never reported suffering from a vision impairment to her
medical providers, nor did she identify it as a potential source of
disability. See T. 217, 319.

Under these circumstances, the Court
12

finds

no

error

in

the

ALJ’s

omission

of

any

discussion

of

plaintiff’s vision.

E.

Consideration of Combined Impact of Impairments

Plaintiff’s final argument is that the ALJ failed to consider
the cumulative impact of her mental and physical impairments and
instead considered them in isolation. Plaintiff is incorrect. The
ALJ’s decision makes it clear that his RFC determination was based
on

“the

entire

record,

including

the

medical

evidence,

[plaintiff’s] reported activities of daily living, her testimony,
the

statements

evidence],”

and

of

her

that

symptoms.” T. 25, 32.

brother[,]
he

had

ALJ’s

obligation

combination.

[the

considered

medical

“all

opinion

[plaintiff’s]

The ALJ’s comprehensive discussion of the

record supports these statements.
the

and

to

consider

This is sufficient to satisfy
plaintiff’s

impairments

in

See Stanton v. Astrue, 370 F. App’x 231, 233 n.1

(2d Cir. 2010) (remand not warranted where the decision “makes
clear that [the ALJ] considered the combination of impairments and
the combined effect of all symptoms in making his determination”)
(internal quotations omitted).
VI.

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

the pleadings (Docket No. 13) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 24) is granted.

13

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:

January 11, 2018
Rochester, New York.

14