Smith v. Colvin
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. 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 2/16/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMY SMITH,
Plaintiff,
1:15-cv-00795-MAT
DECISION AND
ORDER
-vsNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
I.
INTRODUCTION
Represented by counsel, Amy Smith (“Plaintiff”) has brought
this action pursuant to Title II 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 disability insurance
benefits (“DIB”).
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
On June 12, 2012, Plaintiff protectively filed a Title II
application for DIB, alleging disability beginning August 2, 2010,
due to complex regional pain syndrome (“CRPS”). Administrative
Transcript
(“T.”)
65,
130,
134.
Plaintiff’s
application
was
initially denied and she timely requested a hearing, which was held
before administrative law judge (“ALJ”) Timothy M. McGuan on
November 14, 2013. T. 39-64.
On November 19, 2013, the ALJ issued
an unfavorable decision. T. 16-30. Plaintiff’s request for review
was denied by the Appeals Council on July 8, 2015, making the ALJ’s
decision the final decision of the Commissioner. T. 1-3. 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 last met the insured status requirements of the Acton
December 31, 2012.
T. 21.
At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity from
August 2, 2010, the alleged onset date, through December 31, 2012,
the date last insured. Id.
At step two, the ALJ determined that, through the date last
insured, Plaintiff had the severe impairments of moderate right
carpal tunnel syndrome, CRPS with pain in the wrist and elbow,
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obesity, early spondylosis, and “a tiny C7-T1 disc herniation.”
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. 23.
In
particular, the ALJ considered Listings 1.02 and 1.04, as well as
the neurological disorders found in section 11.00.
T. 23-24.
Prior to proceeding to step four, the ALJ determined that,
through
the
date
last
insured,
Plaintiff
had
the
residual
functional capacity (“RFC”) to perform sedentary work as defined in
20 C.F.R. 404.1567(a), with the following additional limitations:
no limitations in her ability to sit, stand, or walk; can lift up
to ten pounds frequently; cannot use dominant upper extremity to
lift, carry, finger, or handle; should avoid concentrated exposure
to cold temperatures.
T. 24.
At step four, the ALJ determined that, through the date last
insured, the claimant was unable to perform any past relevant work.
T. 28.
testimony
At step five, the ALJ relied on a vocational expert’s
to
find
that
there
are
other
jobs
that
exist
in
significant numbers in the national economy and state-wide that
Plaintiff
can
perform,
operator.
T. 28-29.
including
receptionist
and
telephone
The ALJ accordingly found that Plaintiff was
not disabled as defined in the Act.
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T. 29.
IV.
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
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
does
deferential
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 contends that the ALJ’s RFC finding
was not supported by substantial evidence, because (1) the ALJ did
not properly apply Social Security Ruling (“SSR”) 03-02p, which
relates to the handling of cases involving CRPS, (2) the ALJ failed
to meaningfully consider plaintiff’s obesity, and (3) the ALJ
failed to properly apply SSR 96-9p as it relates to significant
manipulative limitations.
Plaintiff further contends that the
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ALJ’s assessment of her credibility was flawed.
For the reasons
set forth below, the Court finds these arguments without merit.
B.
Application of SSR 03-02p
Plaintiff’s first argument is that the ALJ failed to properly
consider and apply SSR 03-02p.
SSR 03-02p was effective October
20, 2003, and sets forth the policies of the Social Security
Administration
for
considering
cases
involving
sympathetic dystrophy syndrom or CRPS.
either
reflex
SSR 03-02p notes that
claims involving CRPS are adjudicated using the same sequential
evaluation as all other claims, but “requires careful consideration
of certain factors unique to the condition.”
No.
12-CV-1284
Oct. 15, 2013).
(NAM/VEB),
2013
WL
Cooley v. Colvin,
12224205,
at
*3
(N.D.N.Y.
As Plaintiff points out, SSR 03-02 particularly
notes that it is characteristic of CRPS for the degree of pain
reported to be out of proportion to the severity of the physical
injury.
Plaintiff contends that, in this case, “the ALJ failed to
apply [SSR 03-02p] in any meaningful way.”
Docket No. 8-1 at 13.
This contention lacks support in the record.
At step two of the
sequential analysis, the ALJ expressly stated that, because there
is no listing covering CRPS, he had “considered and evaluated this
impairment in accordance with Social Security Ruling 03-02p.”
T. 23.
In making his RFC determination, and in full accord with
SSR 03-02p, the ALJ considered in detail Plaintiff’s medical
treatment for her right arm and hand, including the fact that there
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were significant time periods during which Plaintiff engage in no
such treatment, and the fact that her treating physician, Dr. David
L. Bagnall, opined that she was capable of gainful employment.
T. 26-28.
The ALJ specifically noted that Dr. Bagnall was fully
aware of all of Plaintiff’s reports of pain and limitations and
that he had nevertheless concluded on at least three occasions that
she was capable of working with restrictions.
T. 28.
SSR 03-02p
expressly instructs ALJs to pay particular attention to “[o]pinions
from an individual’s medical sources, especially treating sources,
concerning the effect(s) of . . . CRPS on the individual’s ability
to function in a sustained manner in performing work activities.”
Here, the ALJ did just that.
in
the
ALJ’s
application
Accordingly, the Court finds no error
of
SSR
03-02p.
See
Roe
v.
Colvin,
No. 1:13-CV-1065 GLS, 2015 WL 729684, at *4 (N.D.N.Y. Feb. 19,
2015) (ALJ properly applied SSR 03-02p where he relied on medical
records that “included the impact of CRPS, including pain, on [the
plaintiff’s] ability to work”).
C.
The ALJ Properly Considered Plaintiff’s Obesity
Plaintiff next argues that the ALJ failed to meaningfully
consider the impact of her morbid obesity on her ability to
function.
This argument is also not supported by the record.
“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.
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Aug. 24, 2005).
SSR 02-1p provides that, in assessing RFC, an ALJ
shall consider “the effect obesity has upon the individual’s
ability to perform routine movement and necessary physical activity
within the work environment.”
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
obesity
is
understood
to
have
been
factored
into
the[]
decision[].”).
In this case, the ALJ found at step two that Plaintiff’s
obesity was a severe impairment.
T. 21.
In assessing Plaintiff’s
RFC, the ALJ relied upon the opinion of Dr. Bagnall, who noted that
Plaintiff had a morbidly obese BMI, yet opined that she was capable
of
employment
with
restrictions.
See
T.
429-438.
The
ALJ
ultimately restricted Plaintiff to a limited range of sedentary
work, thereby incorporating significant limitations set forth by
the medical sources of record. Plaintiff has not identified any
restrictions allegedly associated with her obesity that are not
accounted for in the ALJ’s RFC finding, nor does the medical
evidence of record support any such additional restrictions. Under
these circumstances, Plaintiff has failed to demonstrate that the
ALJ’s assessment of her obesity was improper or erroneous.
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D.
Application of SSR 96-9p
Plaintiff next argues that the ALJ failed to comply with the
requirements of SSR 96-9p, which explains the Social Security
Administration’s polices regarding the impact of an RFC assessment
for less than a full range of sedentary work.
In particular,
Plaintiff argues that the ALJ’s determination that she was not
disabled despite her extremely limited ability to use her right
(dominant) arm and hand is consistent with the statement in SSR 969p that “any significant manipulative limitation of an individual’s
ability to handle and work with small objects with both hands will
result
in
a
significant
occupational base.”
erosion
of
the
unskilled
sedentary
Docket No. 8-1 at 14 (quoting SSR 96-9p).
Plaintiff’s reliance on the quoted portion of SSR 96-9p is
misplaced. Under SSR 96-9p, a finding of a significant manipulative
limitation
“does
not
automatically
dictate
a
finding
of
disability.” Fox v. Comm’r of Soc. Sec., No. 6:02-CV-1160, 2009 WL
367628, at *19 (N.D.N.Y. Feb. 13, 2009).
Instead, an ALJ is
instructed to consult a vocational expert (“VE”) “to determine the
extent of the erosion.”
Id.; see also Colon v. Comm’r of Soc.
Sec., No. 6:00CV0556 (GLS), 2004 WL 1144059, at *9 (N.D.N.Y.
Mar. 22, 2004) (“SSR 96–9p specifically emphasizes that a finding
that an individual has the ability to do less than a full range of
sedentary work does not necessarily equate with a decision of
disabled. Furthermore, the mere inability to perform substantially
all sedentary unskilled occupations does not equate with a finding
-8-
of disability. There may be . . . jobs that exist in significant
numbers, that an individual may still be able to perform even with
a
sedentary
occupational
base
that
has
been
eroded.
The
significant erosion of one’s occupational base neither ends the
inquiry,
nor
mandates
a
finding
of
disability.”)
(internal
quotation omitted).
In this case, the ALJ properly consulted a VE to determine to
what extent Plaintiff’s occupational base was eroded by her limited
ability to use her dominant hand.
The VE testified that an
individual
could
with
such
a
limitation
perform
work
as
a
receptionist or telephone operator and, in response to questioning
from Plaintiff’s attorney, explained in detail the basis for his
opinion that these occupations could be performed with one hand.
T. 56-60.
This inquiry by the ALJ satisfied the requirements of
SSR 96-9p.
Plaintiff makes much of the fact that, in response to a
question
from
her
attorney,
the
VE
stated
that
he
personally observed these jobs being done with one hand.
No. 8-1 at 14 (citing T. 60-61)).
had
not
Docket
However, Plaintiff has cited no
authority, nor has the Court found any such authority in its own
research, for the proposition that a VE must have personally
observed an occupation being performed in a particular way in order
to credibly testify that it is possible.
To the contrary, a VE,
like all experts, is permitted to reach reasonable conclusions
based on their specialized knowledge and training.
-9-
In short, Plaintiff has not shown that the ALJ improperly
applied SSR 96-9p, nor has she shown that the VE’s testimony was
not credible.
E.
As such, remand on this basis is not warranted.
Assessment of Plaintiff’s Credibility
Plaintiff’s final argument is that the ALJ erred in assessing
her credibility.
The Court finds this argument without merit.
“Because the ALJ has the benefit of directly observing a
claimant’s demeanor and other indicia of credibility, his decision
to discredit subjective testimony is entitled to deference and may
not be disturbed on review if his disability determination is
supported by substantial evidence.”
3572427,
at
omitted).
*5
(W.D.N.Y.
July
Hargrave v. Colvin, 2014 WL
21,
2014)
(internal
quotation
In this case, the ALJ amply supported his conclusion
that Plaintiff was less than fully credible.
First, the ALJ noted that there were inconsistencies between
Plaintiff’s statements and the medical record.
T. 27.
For
example, Plaintiff claimed that Dr. Bagnall had never discussed
work-related restrictions with her, despite the fact that his
treatment
notes
occasions.
indicated
Id.
he
had
done
Similarly,
the
ALJ
so
on
noted
three
that
separate
Plaintiff’s
statement that another of her physicians had taken her out of work
indefinitely was contradicted by her treatment records.
ALJ
properly
considered
Plaintiff’s credibility.
these
discrepancies
in
Id.
The
assessing
See Torres v. Colvin, No. 12 CIV. 6527
ALC SN, 2014 WL 4467805, at *23 (S.D.N.Y. Sept. 8, 2014) (“The
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inconsistencies between [the claimant’s] oral testimony and the
documentary record, as well as the internal inconsistencies in the
documentary record, constitute substantial evidence supporting the
ALJ’s negative credibility determination.”).
Second, the ALJ noted that Plaintiff’s work history was
inconsistent, and therefore did not “raise a favorable inference of
an individual well-motivated to work within her capabilities.”
T. 28.
“[A] claimant’s efforts to work are a legitimate factor in
considering credibility.”
Bethea v. Astrue, No. 3:10-CV-744 JCH,
2011 WL 977062, at *13 n. 3 (D. Conn. Mar. 17, 2011).
Third, the ALJ found that Plaintiff’s subjective complaints
were inconsistent with her activities, and that she had gone for
significant periods of time without seeking treatment for her right
arm.
These were both appropriate considerations in assessing
Plaintiff’s
credibility.
See,
e.e.
Lasalle
v.
Colvin,
No. 14-CV-872-JTC, 2016 WL 420589, at *6 (W.D.N.Y. Feb. 4, 2016);
Thibault v. Astrue, No. 5:10-CV-188, 2011 WL 5024460, at *6 (D. Vt.
Oct. 20, 2011).
Plaintiff’s
contention
that
the
ALJ’s
credibility
determination was unsupported by substantial evidence is meritless.
The ALJ properly considered a number of factors in reaching his
credibility determination, and this Court will not disturb it.
Accordingly, remand is not required on this basis.
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V.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Docket No. 8) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 12) 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 16, 2018
Rochester, New York
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