Quintana v. Commissioner of Social Security

Filing 11

DECISION AND ORDER. The Commissioner's Motion for Judgment on the Pleadings 9 is GRANTED, and Plaintiff's Motion for Judgment on the Pleadings 8 is DENIED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 2/7/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KATHY A. QUINTANA,
Plaintiff,
Case # 15-CV-835-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Kathy A. Quintana (“Quintana” or “Plaintiff”) brings this action pursuant to the Social
Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner of
Social Security (“the Commissioner”) that denied her application for disability insurance benefits
(”DIB”) under Title II of the Act. ECF No. 1. This Court has jurisdiction over this action under
42 U.S.C. § 405(g).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 8, 9. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On March 27, 2012, Quintana applied for DIB with the Social Security Administration
(“the SSA”). Tr.2 47-54. She alleged that she had been disabled since August 3, 2010, due to
chronic fatigue syndrome, migraines, and vision problems. Tr. 48. After her application was
denied at the initial administrative level, a hearing was held before Administrative Law Judge
William M. Weir (“the ALJ”) on June 7, 2013, in which the ALJ considered Quintana’s
application de novo. Tr. 55-102. Quintana appeared at the hearing with her attorney and

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Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
References to “Tr.” are to the administrative record in this matter.

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testified. Id. On June 4, 2014, the ALJ issued a decision finding that Quintana was not disabled
within the meaning of the Act.

Tr. 30-39.

On July 22, 2015, that decision became the

Commissioner’s final decision when the Appeals Council denied Quintana’s request for review.
Tr. 1-7. Thereafter, Quintana filed this action seeking review of the Commissioner’s final
decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation
marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner
is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (internal quotation marks omitted). It is not this Court’s function to “determine de
novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(internal quotation marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and
that the Secretary’s findings are conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial

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gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Quintana’s claim for benefits under the process described

above. At step one, the ALJ found that Quintana had not engaged in substantial gainful activity
since the alleged onset date. Tr. 32-33. At step two, the ALJ found that Quintana has fatigue
with eyestrain, which constitutes a severe impairment. Tr. 33. At step three, the ALJ found that
her impairment did not meet or medically equal an impairment in the Listings. Tr. 33.
Next, the ALJ determined that Quintana retained the RFC to perform a full range of work
at all exertional levels, but she cannot perform work that requires fine visual acuity, like
assembling small parts or reading small print. Tr. 33-38. At step four, the ALJ found that this
RFC prevents Quintana from performing her past relevant work as a graphic artist. Tr. 38. At
step five, the ALJ relied on section 204.00 of the Medical-Vocational Guidelines (the “Grids”)
and found that Quintana can adjust to other work that exists in significant numbers in the
national economy given her RFC, age, education, and work experience. Tr. 39. Accordingly,
the ALJ concluded that Quintana was not “disabled” under the Act. Id.
II.

Analysis
Quintana argues that remand is required because (1) the RFC is not supported by

substantial evidence; (2) the ALJ’s credibility assessment was improper; and (3) the ALJ erred at
step five when he failed to obtain vocational expert testimony. ECF No. 8-1, at 17-24. These
arguments are addressed in turn below.
A.

RFC

RFC is defined as “what an individual can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)

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(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To determine a claimant’s RFC “the
ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain
and other limitations that could interfere with work activities on a regular and continuing basis.”
Desmond, 2012 WL 6648625, at *5 (citing 20 C.F.R. § 404.1545(a)). “An RFC finding will be
upheld when there is substantial evidence in the record to support each requirement listed in the
regulations.” Id. (citation omitted).
Quintana argues that the RFC is not supported by substantial evidence because it does not
account for all of her nonexertional limitations. ECF No. 8-1, at 17-20. Specifically, Quintana
contends that the RFC should include nonexertional limitations related to her chronic fatigue and
weakness. Id. Quintana asserts that fatigue would limit her ability to work because “there would
be many days she could not attend work at all, or that she would be limited to two activities in
20-minute increments.” Id. at 18.
The ALJ found that Quintana could perform work at all exertional levels but must avoid
work “requiring fine visual acuity.” Tr. 33. Most significantly, this RFC determination is
directly supported by the medical source statement of consultative examiner Donna Miller, D.O.
(“Dr. Miller”). Tr. 35, 329-32. After a physical examination, Dr. Miller diagnosed Quintana
with chronic fatigue syndrome, visual disturbances, and hypothyroidism. Tr. 331. She opined
that Quintana “had no significant physical limitations,” but that she should “avoid[] repetitive
work involving fine visual acuity.” Tr. 332. The ALJ gave Dr. Miller’s opinion “significant
weight” because it was consistent with the normal findings noted during the examination and
with the normal findings of Quintana’s treating neurologist and treating holistic medicine
specialist. Tr. 37-38 (citing Tr. 273-86, 356-71). These are both valid reasons for affording
“significant weight” to Dr. Miller’s opinion. 20 C.F.R. §§ 404.1527(c)(3) (“The more a medical

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source presents relevant evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion.”), 404.1527(c)(4) (“Generally,
the more consistent an opinion is with the record as a whole, the more weight we will give to that
opinion.”). Moreover, “[i]t is well established that an ALJ may rely on the medical opinions
provided by State agency consultants and that those opinion[s] may constitute substantial
evidence.” Barber v. Comm’r of Soc. Sec., No. 6:15-CV-0338 (GTS/WBC), 2016 WL 4411337,
at *7 (N.D.N.Y. July 22, 2016) (citations omitted); Baszto v. Astrue, 700 F. Supp. 2d 242, 249
(N.D.N.Y. 2010) (“[A]n ALJ is entitled to rely upon the opinions of both examining and nonexamining State agency medical consultants, since such consultants are deemed to be qualified
experts in the field of social security disability.”).
The ALJ also cited treatment notes from Quintana’s other medical providers, which
support the RFC determination that she must avoid work requiring fine visual acuity. In June of
2009, for example, her primary care physician assessed “visual disturbances” (Tr. 35-36 (citing
Tr. 217)), and in November of 2009 an ear, nose, and throat specialist assessed “ocular pain” (Tr.
36 (citing Tr. 230)).

In January of 2013, Quintana’s current treating physician, Ronald

Santasiero, M.D. (“Dr. Santasiero”), noted that she has “a chronic fatigue type syndrome with
the only variant being she has a lot of eye symptoms.” Tr. 37 (citing Tr. 357).
Although the ALJ’s RFC determination is consistent with this part of Dr. Santasiero’s
treatment notes, Quintana argues that the ALJ should not have rejected Dr. Santasiero’s opinion
that she was disabled. ECF No. 8-1, at 19. Specifically, Dr. Santasiero opined that Quintana
should “apply for . . . disability since she is certainly disabled and has gone two years without
working.” Tr. 294. Notably, Dr. Santasiero did not provide any other opinion related to
Quintana’s ability to perform work related functions.

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The treating physician rule requires the ALJ to give controlling weight to a treating
physician’s opinion that is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record,”
20 C.F.R. § 404.1527(c)(2); however, the ALJ may discount a treating physician’s opinion for
several reasons as long as he or she explains those reasons. Halloran v. Barnhart, 362 F.3d 28,
33 (2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2) (“We will always give good reasons in our notice
of determination or decision for the weight we give [the claimant’s] treating source’s opinion.”).
Here, the ALJ gave Dr. Santasiero’s opinion “little to no weight” because Dr. Santasiero
“did not state a medically determinable impairment to justify [Quintana]’s ‘disability,’ but he
merely concluded that she is disabled and has been so for two years.” Tr. 38 (citing Tr. 293).
This was a proper reason to discount the opinion, because the Commissioner is responsible for
determining whether a claimant meets the statutory definition of disability and a medical
source’s statement that a claimant is “disabled” or “unable to work” does not mean that the
Commissioner will find that claimant disabled. 20 C.F.R. § 404.1527(d)(1). Moreover, the ALJ
pointed out that Dr. Santasiero’s opinion was not well-supported, see 20 C.F.R. §
404.1527(c)(3), because his “most recent progress notes document that he is not even sure of a
diagnosis” and that Quintana’s “physical examination was again normal on that occasion.” Tr.
38 (citing Tr. 294).
The ALJ provided further support for his RFC determination by noting that Quintana’s
“physical examinations and diagnostic testing revealed essentially normal findings.” Tr. 35-36;
see, e.g., Tr. 280 (normal electromyography and sleep study results), 283 (normal neurological
examination), 285 (“completely normal” neurological examination), 320 (normal neurologic
evaluation, electrocardiogram stress test, and spirometry test). Although Quintana cites several

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treatment notes that indicate she experiences fatigue (EFC No. 8-1, at 18-19), none of these
records demonstrate that fatigue imposes significant restrictions on her ability to perform basic
work activities. 20 C.F.R. § 404.1520(c). In fact, as the ALJ pointed out in his decision, many
of these treatment notes merely offer “non-definitive diagnoses.” Tr. 35-36; see, e.g., Tr. 228
(noting that Quintana’s “symptoms are vague and they come and go” and that she “has seen
many specialist doctors without a definitive diagnosis”), 283 (doctor noted that Quintana “has a
chronic fatigue syndrome or possibly fibromyalgia, but she does not have nearly as much muscle
pain as is typical for fibromyalgia”).
Accordingly, for all the reasons stated, the Court finds that the ALJ did not err and that
the RFC determination is supported by substantial evidence.
B.

Credibility

Quintana also argues that the ALJ’s credibility assessment was improper. ECF No. 8-1,
at 20-23. Specifically, Quintana argues that the ALJ erred because he indicated at the hearing
that he found her credible but then found her “not entirely credible” in his decision. Id.
“The ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an
independent judgment, in light of medical findings and other evidence, regarding the true extent
of the pain alleged by the claimant.” Jackson v. Astrue, No. 1:05-CV-01061 (NPM),  2009 WL
3764221, at *7 (N.D.N.Y. Nov. 10, 2009) (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.
1979)).

“[T]he court must uphold the ALJ’s decision to discount a claimant’s subjective

complaints of pain” if the finding is supported by substantial evidence. Id. (internal quotation
marks and citation omitted). “It is the function of the Commissioner, not the reviewing court, to
‘resolve evidentiary conflicts and to appraise the credibility of witnesses, including the

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claimant.’” Id. (quoting Caroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1983)).
The ALJ must follow a two-step process when considering a claimant’s alleged
symptoms and their effect on his or her ability to work. 20 C.F.R. § 404.1529. First, the ALJ
must consider whether the medical evidence shows any impairment that “could reasonably be
expected to produce the pain or other symptoms alleged[.]” 20 C.F.R. § 404.1529(a); SSR 967p, 1996 WL 374186, at *2 (S.S.A. July 2, 1996). Second, if such an impairment is shown, the
ALJ must evaluate the “intensity, persistence, or functionally limiting effects” of a claimant’s
symptoms to determine the extent to which they limit his or her capacity to work. 20 C.F.R. §
404.1529(b); SSR 96-7p, 1996 WL 374186, at *2.
When the objective medical evidence alone does not substantiate the claimant’s alleged
symptoms, the ALJ must assess the credibility of the claimant’s statements by analyzing the
following factors: (1) the claimant’s daily activities; (2) the location, duration, frequency, and
intensity of the claimant’s symptoms; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other
treatment received to relieve symptoms; (6) any measures the claimant has taken to relieve
symptoms; and (7) any other factors concerning the claimant’s functional limitations and
restrictions due to symptoms.

20 C.F.R. §§ 404.1529(c)(3)(i)-(vii); SSR 96-7p, 1996 WL

374186, at *2.
Here, the ALJ’s decision included boilerplate language indicating that he found that
Quintana’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms,” but that her “statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible.” Tr. 35. Interestingly, the ALJ later noted

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that he found Quintana to be a “credible witness,” but that “the objective medical evidence
simply does not document a medically determinable impairment that accounts for her alleged
limitations.” Tr. 37. As explained in the SSA’s rulings, “[n]o symptom or combination of
symptoms can be the basis for a finding of disability, no matter how genuine the individual’s
complaints may appear to be, unless there are medical signs and laboratory findings
demonstrating the existence of a medically determinable physical or mental impairment(s) that
could reasonably be expected to produce the symptoms.” S.S.R. 96-7p,1996 WL 374186, at *1.
Nonetheless, the ALJ praised Quintana’s good work history and noted that her testimony
was consistent with the medical record. Id. Despite these factors that weighed in Quintana’s
favor, the ALJ pointed out that her doctors could not provide a definitive diagnosis, she was
encouraged to exercise, and her test results and physical examinations were normal. Id. (citing
Tr. 283, 357). It was proper for the ALJ to consider the objective medical evidence in assessing
Quintana’s credibility because it “is a useful indicator to assist [the ALJ] in making reasonable
conclusions about the intensity and persistence of [the claimant’s] symptoms and the effect those
symptoms, such as pain, may have on [his or her] ability to work.” 20 C.F.R. § 404.1529(c)(2);
S.S.R. 96-7p, 1996 WL 374186, at *6.
The ALJ also considered Quintana’s daily activities “such as driving, light housework
and shopping,” which he found “inconsistent with allegations of disabling symptoms and
functional limitations.” Tr. 37. Although the claimant “need not be an invalid” to be disabled
under the Social Security Act, Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citation
omitted), the ALJ may properly consider the claimant’s daily activities when assessing his or her
credibility. 20 C.F.R. § 404.1529(c)(3)(i). Moreover, as discussed above, the ALJ did not use
Quintana’s daily activities as the sole reason to discount her credibility.

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Accordingly, for the reasons stated, the Court finds that the ALJ did not err and that the
credibility assessment is supported by substantial evidence.
C.

Step Five

Finally, Quintana argues that, because the ALJ should have found that she had additional
nonexertional limitations, as discussed above, he erred by not obtaining vocational expert
testimony at step five to determine the effect that those additional nonexertional limitations
would have on her ability to work. Tr. 23.
At step five, the ALJ must consider the claimant’s RFC and his or her age, education, and
work experience to determine whether the claimant can adjust to other work for which there are a
significant number of jobs in the national economy. 20 C.F.R. § 404.1560(c). At this step, it is
the Commissioner’s burden to prove that the claimant can transition to other work. Baron v.
Astrue, No. 08-CV-3303 (CBA), 2010 WL 563069, at *5 (E.D.N.Y. Feb. 17, 2010).

“In

satisfying this burden, the Commissioner must produce evidence to show alternative employment
that exists in significant numbers in the national economy.” Id. (citation omitted).
One way an ALJ can make his or her step five determination is by relying on the Grids,
which are a set of rules that indicate either “disabled” or “not disabled” based on a claimant’s
age, education, and work history for each given level of exertion.3 See 20 C.F.R. Part 404,
Subpart P, App’x 2. If the Grids adequately reflect the claimant’s condition, then the ALJ may
rely on them at step five to determine whether he or she is disabled. Bapp v. Bowen, 802 F.2d
601, 605-06 (2d Cir. 1986).
As discussed above, the Court finds that the RFC determination is supported by
substantial evidence and that Quintana does not have additional nonexertional limitations. In his

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Jobs are separated into five categories based on their physical exertion requirements: sedentary, light,
medium, heavy, or very heavy. 20 C.F.R. § 404.1567.

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decision, the ALJ noted at step five that Quintana’s ability to perform work at all exertional
levels had been compromised by nonexertional limitations. Tr. 39. He correctly explained,
however, that it was appropriate to use the Grids because those limitations “have little to no
effect on the occupational base of unskilled work at all exertional levels.” Id. The ALJ noted
that, despite her limitations, Quintana can read normal print with glasses and has normal depth
perception. Id. He explained that “Social Security Ruling 85-15 states that as long as an
individual retains sufficient visual acuity to be able to handle and work with rather large objects
and has the visual fields to avoid ordinary hazards in a workplace, there would be a substantial
number of jobs remaining across all exertional levels.” Id.; see S.S.R. 85-15, 1985 WL 56857, at
*8 (S.S.A. Jan. 1, 1985). Because Quintana retained those abilities, the ALJ was entitled to
conclude that a finding of “not disabled” was appropriate under the Grids. Tr. 39. Accordingly,
the Court finds that the ALJ did not err when he relied on the Grids at step five because they
adequately reflected Quintana’s condition.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings (ECF No. 9) is GRANTED,
and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 8) is DENIED. Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to
enter judgment and close this case.

IT IS SO ORDERED.
Dated: February 7, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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