Josielewski v. Commissioner of the Social Security
Filing
27
DECISION AND ORDER denying 17 Plaintiff's Motion for Judgment on the Pleadings; granting 25 Commissioner's Motion for Judgment on the Pleadings. Plaintiffs complaint is dismissed in its entirety with prejudice. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 2/15/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JESSICA JUDITH JOSIELEWSKI,
Plaintiff,
1:15-cv-00728-MAT
DECISION AND
ORDER
-vsNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
I.
INTRODUCTION
Represented
by
counsel,
Jessica
Judith
Josielewski
(“Plaintiff”) has brought 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
Security1
Social
(“Defendant” or “the Commissioner”) denying her applications for
disability insurance benefits (“DIB”) and 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 BACKGROUND
In December 2011, Plaintiff protectively filed a Title II
application for DIB and a Title XVI application for SSI, alleging
disability beginning October 16, 2011, due to lower back pain, leg
pain, and loss of mobility in her legs. Administrative Transcript
(“T.”) 214-37. Plaintiff’s applications were initially denied and
she
timely
requested
a
hearing,
which
was
held
before
administrative law judge (“ALJ”) Robert T. Harvey on October 3,
2013. T. 67-93, 170.
On November 19, 2013, the ALJ issued an
unfavorable decision. T. 50-66. Plaintiff’s request for review was
denied by the Appeals Council on March 18, 2015, making the ALJ’s
decision the final decision of the Commissioner. T. 4-7. Plaintiff
then timely commenced this action.
III. THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See
20
C.F.R.
§
404.1520(a).
Initially,
the
ALJ
found
that
Plaintiff met the insured status requirements of the Act through
March 31, 2012.
T. 55.
At step one, the ALJ found that Plaintiff
had not engaged in substantial gainful activity from October 16,
2011, the alleged onset date. Id.
At step two, the ALJ determined that Plaintiff had the severe
impairment of scoliosis with Harrington rod placements and the nonsevere impairments of obesity, anxiety, and depression.
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Id.
At step three, the ALJ considered Plaintiff’s impairments and
found
that,
singly
or
in
combination,
they
did
not
medically equal the severity of a listed impairment.
meet
or
T. 56.
In
particular, the ALJ considered listings under subsection 1.00,
pertaining to musculoskeletal disorders.
Id.
Prior to proceeding to step four, the ALJ determined that
Plaintiff has the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a),
with the following additional limitations: occasional limitations
in bending, climbing, stooping, squatting, kneeling, balancing, and
crawling; occasional limitations in pushing and pulling with the
upper extremities; cannot work in areas where she would be exposed
to cold.
T. 56.
At step four, the ALJ determined that Plaintiff had no past
relevant work.
T. 59.
At step five, the ALJ relied on a
vocational expert’s testimony to find that there are other jobs
that exist in significant numbers in the national economy and
state-wide that Plaintiff can perform, including order clerk, cable
worker, and ampoule sealer. T. 59-60.
The ALJ accordingly found
that Plaintiff was not disabled as defined in the Act.
IV.
T. 60.
DISCUSSION
A.
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
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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”).
Although the reviewing court 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),
“[i]f there is substantial evidence to support the [Commissioner’s]
determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409,
417 (2d
Cir.
substantial
2013).
evidence
conclusions of law.”
“The
deferential
does
not
apply
standard
to
the
of
review
for
Commissioner’s
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003).
In this case, Plaintiff argues that remand is required because
(1) the ALJ failed to consider the effects of Plaintiff’s morbid
obesity, (2) the ALJ erred in finding Plaintiff’s depression and
anxiety to be non-severe impairments, and (3) the ALJ’s conclusion
that Plaintiff is capable of sedentary work is not supported by
substantial evidence.
For the reasons set forth below, the Court
finds these arguments without merit.
B.
The ALJ Properly Considered Plaintiff’s Obesity
Plaintiff’s first argument is that the ALJ failed to properly
consider the impact of her morbid obesity on her ability to
function.
This argument is not supported by the record.
“Obesity is not in and of itself a disability,” but “[a]n ALJ
should
consider
whether
obesity,
-4-
in
combination
with
other
impairments, prevents a claimant from working.”
Guadalupe v.
Barnhart, No. 04 CV 7644 HB, 2005 WL 2033380, at *6 (S.D.N.Y.
Aug. 24, 2005).
that
equates
“[T]here is no specific level of weight or BMI
with
a
‘severe’
or
‘not
severe’
impairment,”
Gardenier v. Comm’r of Soc. Sec., No. 5:16-CV-0073 (WBC), 2017 WL
2389680,
at
*4
(N.D.N.Y.
June
1,
2017)
(internal
quotation
omitted), and, like other impairments, obesity is non-severe if
“the medical evidence establishes only a slight abnormality which
would have no more than a minimal effect on an individual’s ability
to work.” Rowe v. Colvin, No. 8:15-CV-00652 (TWD), 2016 WL 5477760,
at *5 (N.D.N.Y. Sept. 29, 2016); see also Farnham v. Astrue, 832 F.
Supp. 2d 243, 261 (W.D.N.Y. 2011) (ALJ did not err in failing to
find plaintiff’s obesity severe 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.”).
In this case, the evidence of record supports the ALJ’s
conclusion that Plaintiff’s obesity was a non-severe impairment.
Plaintiff did not claim her obesity as a disability.
contrary,
when
the
ALJ
expressly
asked
her
if
she
To the
had
any
functional limitations because of her body weight, she stated that
she did not, and that she felt that she was “limited because of
[her] back, not so much [her] weight.”
T. 73.
Plaintiff also
stated that, although her original orthopedic surgeon had told her
-5-
that it was not good for anyone to be overweight, no doctors had
told her to try to lose weight because of her medical condition.
Id. Additionally, and as the ALJ noted in his decision, the record
establishing that Plaintiff was obese well before she alleged that
she became disabled.
See T. 57.
Moreover, and as the Commissioner correctly points out, any
error by the ALJ in finding Plaintiff’s obesity non-severe was
harmless,
because
he
found
other
impairments
to
be
severe,
continued with the sequential analysis, and considered Plaintiff’s
obesity in determining her RFC.
See Niles v. Astrue, 32 F. Supp.
3d 273, 283 (N.D.N.Y. 2012) (finding harmless error where ALJ found
obesity non-severe but “found other impairments to be severe and
continued with the sequential analysis”).
The ALJ expressly noted
in his decision that Plaintiff had been obese from an early age
(see T. 57).
The ALJ also afforded significant weight to the
August 2010 opinion of consultative examiner Dr. J.R. Cardiff, who
expressly diagnosed Plaintiff with morbid obesity and assessed
physical limitations taking into account that diagnosis.
It is
well-established that an ALJ may account for a claimant’s obesity
in an RFC finding “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
-6-
obesity
is
understood
to
have
been
factored
into
the[]
decision[].”).
Plaintiff also argues that additional evidence submitted to
the Appeals Council - specifically, evidence that Plaintiff had
been advised to consider bariatric surgery and evidence that
Plaintiff
was
diagnosed
with
sleep
apnea
in
April
2014
-
demonstrates that her obesity was associated with significant
functional limitations.
The Court disagrees.
“[N]ew evidence submitted to the Appeals Council following the
ALJ’s decision becomes part of the administrative record for
judicial review when the Appeals Council denies review of the ALJ’s
decision.”
Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). The
Appeals Council is required to consider “new and material” evidence
“if it relates to the period on or before the date of the [ALJ's]
hearing decision.” 20 C.F.R. §§ 404.970(b); 416.1470(b). “This
regulation
was
promulgated
by
the
[Commissioner]
to
provide
claimants a final opportunity to submit additional evidence before
the [Commissioner]’s decision becomes final.”
45.
Evidence
is
“material”
if
it
is
“both
Perez, 77 F.3d at
relevant
to
the
claimant’s condition during the time period for which benefits were
denied and probative[,]” and there is “a reasonable possibility
that the new evidence would have influenced the [Commissioner] to
decide claimant’s application differently.” Lisa v. Sec’y of Dep’t
of Health and Human Servs. of U.S., 940 F.2d 40, 43 (2d Cir. 1991)
(quotation and citation omitted).
-7-
In this case, the evidence identified by Plaintiff does not
constitute new and material evidence.
First, Plaintiff submitted
treatment notes from October 28, 2013 indicating that she “has
considered but does not want to pursue any bariatric surgery at
this point in time.”
T. 14.
Contrary to Plaintiff’s argument,
these treatment notes do not state that bariatric surgery was
recommended to Plaintiff, nor is there any indication in them that
her physicians believe bariatric surgery is necessary. Indeed, the
“care plan” section of these treatments notes makes no mention of
weight loss at all, but instead recommends that Plaintiff undergo
physical therapy.
T. 16.
It is also noteworthy that the physician
who authored these treatment notes opined that Plaintiff’s reported
pain was out of proportion to her physical examination.
Id. Taken
as a whole, these treatment notes do not contain any information
that could reasonably be expected to have resulted in a different
determination by the Commissioner.
Second, Plaintiff submitted a polysomnography report from
April 8, 2014 in which she was assessed with mild sleep apnea.
T. 29-30.
There is nothing in the polysomnography report to
suggest that it relates back to the relevant time period, nor does
it support the conclusion that Plaintiff was suffering from sleep
apnea during the time when she was denied benefits.
Plaintiff’s
argument relies instead on several speculative leaps of logic namely, that her obesity may have contributed to her development of
sleep apnea and that she may have been suffering from sleep apnea
-8-
during the relevant time period.
This speculation is insufficient
to demonstrate a reasonable likelihood of a different outcome had
this evidence been before the ALJ.
In sum, Plaintiff has not shown that the ALJ erred in finding
her obesity a non-severe impairment, and, in any event, any such
error was harmless. The additional evidence Plaintiff submitted to
the Appeals Council does not change this conclusion.
C.
The ALJ did not Err in Considering Plaintiff’s
Anxiety and Depression
Plaintiff next argues that the ALJ erred at step two in
determining that Plaintiff’s anxiety and depression were non-severe
impairments.
Again, the Court disagrees.
Under the Commissioner’s regulations, an impairment is severe
only if it “significantly limits [a claimant’s] physical or mental
ability to do basic work activities.”
“Basic
work-related
mental
abilities
20 C.F.R. § 404.1520.
include
understanding,
carrying out, and remembering simple instructions; using judgment;
responding appropriately to supervisors, coworkers, and usual work
situations; and dealing with changes in a routine setting.” Miller
v. Berryhill, No. 6:16-CV-06467(MAT), 2017 WL 4173357, at *7
(W.D.N.Y.
Sept.
20,
2017).
“A
claimant
has
establishing that she has a severe impairment.”
the
burden
of
Id. (internal
quotation omitted).
In this case, the evidence of record amply supports the
conclusion that Plaintiff’s anxiety and depression are non-severe
-9-
impairments.
As the ALJ noted, a mental status examination of
Plaintiff in August 2012 revealed no significant findings.
During that
mental
status
examination,
Plaintiff
T. 58.
demonstrated
adequate attention, recent memory, reasoning, and social judgment,
good remote memory and concentration, and good to fair math skills
and
immediate
memory.
T.
340.
A
consultative
psychiatric
examination performed on March 23, 2012 was similarly benign Plaintiff
was
oriented
in
all
spheres
and
demonstrated
good
attention, concentration, immediate memory, remote memory, and
reasoning.
plainly
T. 369.
support
the
These uncontradicted medical assessments
ALJ’s
conclusion
that
Plaintiff’s
mental
impairments would not have more than a minimal effect on her
ability to perform basic work-related functions.
Moreover, and as with the ALJ’s assessment of Plaintiff’s
obesity, any
error
by
the
ALJ
in
finding
Plaintiff’s mental
impairments non-severe was harmless, because he continued the
sequential analysis and expressly considered the medical evidence
regarding Plaintiff’s mental impairments in determining her RFC.
See T. 57.
Under these circumstances, the Court finds that
Plaintiff has failed to show that remand is warranted on this
basis.
D. Substantial Evidence Supports the ALJ’s RFC Finding
Plaintiff’s final argument is that the ALJ’s finding that she
is capable of performing sedentary work is unsupported by the
medical evidence of record. In particular, Plaintiff contends that
-10-
there is no record evidence that she is able to sit for six hours
in an eight hour workday, as is required to perform sedentary work.
The Court finds this argument unavailing.
It is true that sedentary work generally requires the ability
to sit for up to six hours in an eight hour workday.
However, an
individual need not be capable of sitting for six continuous hours
in order to perform sedentary work.
Indeed, “[n]ormal work breaks
and meal periods split an eight hour workday into approximately two
hour periods.”
Swain v. Colvin, No. 1:14-CV-00869 (MAT), 2017 WL
2472224, at *3 (W.D.N.Y. June 8, 2017); see also Halloran v.
Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (rejecting argument that
“a sedentary worker must be able to sit for six unbroken hours
without standing up or shifting position during a work day” and
noting that “[t]he [Commisioner’s] regulations do not mandate the
presumption that all sedentary jobs in the United States require
the worker to sit without moving for six hours, trapped like a
seat-belted passenger in the center seat on a transcontinental
flight”).
In
this
case,
a
consultative
examination
of
Plaintiff
performed on April 5, 2012 resulted in a finding that she was
capable of “short periods of sedentary activity with frequent
position changes and very light physical activity.”
T. 374.
Dr. Cardiff, who examined Plaintiff in August 2010 (prior to her
alleged disability onset date), opined that Plaintiff was “unable
to sit, but for brief periods.”
T. 343.
-11-
As a threshold matter, it
is not clear that the ALJ’s finding that Plaintiff was capable of
performing sedentary work was inconsistent with these opinions. As
discussed above, to be capable of performing sedentary work, an
individual generally is required to work in two hour periods, and
is not required to sit for six unbroken hours.
As such, this Court
has previously held that an assessment of moderate to marked
limitations for prolonged sitting is consistent with a finding that
a claimant can perform sedentary work.
See DeRosia v. Colvin,
No. 16-CV-6093P, 2017 WL 4075622, at *21 (W.D.N.Y. Sept. 14, 2017).
In other words, Plaintiff’s contention that the ALJ’s RFC finding
is flawed because she “cannot sit for [the] prolonged periods of
time required by sedentary work” is based on a faulty assumption an
inability
to
sit
for
prolonged
periods
of
time
is
not
necessarily incompatible with the capacity to perform sedentary
work.
The consultative opinions in this case are not, on their
faces, inconsistent with a finding that Plaintiff is capable of
sitting
for
a
total
of
six
hours,
broken
up
into
smaller
increments.
Moreover,
other
evidence
of
record
supports
the
ALJ’s
conclusion that Plaintiff is capable of performing sedentary work.
As the Commissioner points out, Plaintiff was in fact employed full
time as a receptionist for three months during the relevant period.
See T. 72-73.
Moreover, Plaintiff testified before the ALJ that
she was receiving unemployment benefits.
T. 79. As courts in this
Circuit have noted, the receipt of unemployment benefits “requires
-12-
an ability to work,” Rich v. Comm’r of Soc. Sec., No. 08-CV-510S,
2009 WL 2923254, at *1 (W.D.N.Y. Sept. 10, 2009), and there is an
inherent inconsistency in seeking both disability benefits and
unemployment benefits.
See Jackson v. Astrue, No. 1:05-CV-01061
(NPM), 2009 WL 3764221, at *8 (N.D.N.Y. Nov. 10, 2009).
The ALJ also noted that Plaintiff had failed to seek any
follow-up treatment for her back symptoms since 2005 (T. 59),
despite the fact that Dr. Cardiff expressly recommended in 2010
that she see a spinal orthopedic surgeon to see about follow-up
treatments to improve her pain (T. 343) and that a consultative
examiner in 2012 similarly stated that Plaintiff would benefit from
further orthopedic evaluation and treatment to relieve her symptoms
and increase her level of function (T. 374).
While Plaintiff
claimed that she had not sought certain treatment due to lack of
health insurance, further questioning by the ALJ revealed that
Plaintiff had previously been on her father’s insurance and that
she had not applied for Medicaid until immediately prior to the
hearing.
T. 84-86.
“[C]ourts have held that failure to seek
treatment can undermine allegations of a disabling condition.”
Schneider v. Comm’r of Soc. Sec., No. 315CV0590GTSWBC, 2016 WL
5019059, at *7 (N.D.N.Y. Aug. 26, 2016); see also Navan v. Astrue,
303 F. App’x 18, 20 (2d Cir. 2008) (“the ALJ appropriately relied
on the near absence of any medical records between March 1997 and
June 1999 to find that [the claimant’s] claims of total disability
-13-
were undermined by his failure to seek regular treatment for his
allegedly disabling condition”).
The Court does not dispute that there is some evidence in the
record to support more significant limitations than those found by
the ALJ.
However, as the Second Circuit has made clear, “whether
there is substantial evidence supporting the [claimant’s] view is
not the question . . .; rather, [the Court] must decide whether
substantial evidence supports the ALJ’s decision.”
Bonet ex rel.
T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (emphasis in
original).
In this case, the Court finds that it does, for the
reasons set forth above.
V.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Docket No. 17) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 25) 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:
February 15, 2018
Rochester, New York
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