Lindsley v. Colvin

Filing 25

ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings; and adopting Report and Recommendations of Honorable Hugh B. Scott in its entirety re 18 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/4/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BARBARA ANN LINDSLEY,
Plaintiff,

No. 1:15-cv-876(MAT)(HBS)
DECISION AND ORDER

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION
This matter comes before the Court following a Report &
Recommendation (“R&R”) (Dkt #18) filed on October 24, 2016, by
Hon. Hugh B. Scott, United States Magistrate Judge, pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 72(b) and (c) of the
Western District of New York. In the R&R, Magistrate Judge Scott
recommended that the Commissioner’s decision denying Supplemental
Security Income (“SSI”) and Disability Insurance Benefits (“DIB”)
to Barbara Ann Lindsley (“Plaintiff”) be affirmed in full.
BACKGROUND
On January 5, 2010, Plaintiff filed applications for DIB and
SSI (“the First Applications”). (T.60, 61).1 On March 28, 2012, an
administrative law judge issued a decision finding that Plaintiff
was not disabled (T.17-32). The Appeals Council denied Plaintiff’s
request for review on May 28, 2013. (T.1-5).

1

Numerals in parentheses preceded by “T.” refer to pages from the transcript
of the administrative record.

On July 19, 2013, Plaintiff filed subsequent applications for
DIB and SSI (“the Second Applications”), which were granted on
October 15, 2013, at the initial administrative level, by a single
decision-maker (“SDM”) (T.788-89; 790-96). The SDM found that
Plaintiff was disabled as of March 29, 2012, the day after the
ALJ’s unfavorable decision on the First Applications. (T.789, 790).
On July 25, 2013, Plaintiff commenced an action in this
District appealing the denial of the First Applications. See
Lindsley v. Colvin, No. 1:13-cv-00771 (W.D.N.Y.). On September 8,
2014, Hon. Richard J. Arcara, United States District Judge, adopted
the R&R issued on August 11, 2014, by Magistrate Judge Scott, and
remanded

the

First

Applications

for

further

administrative

proceedings. (T.798-812).
On

November

10,

2014,

the

Appeals

Council

reopened

the

favorable determination made on the Second Applications because it
found “good cause” to do so based upon a review of the evidence in
the record. (T.720). The Appeals Council explained that the SDM had
improperly concluded that Plaintiff had “marked” limitations in
both maintaining social functioning and maintaining concentration,
persistence, or pace. The Appeals Council then consolidated the
First and Second Applications, and directed Administrative Law
Judge Timonthy McGuan (“the ALJ”) to render a decision on both sets
of claims. (T.717-18, 813-16). On August 19, 2015, the ALJ issued
a decision, finding that Plaintiff has not been under a disability

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at

any

time

relevant

to

the

First

and

Second

Applications.

(T.667-92).
Represented by counsel, Plaintiff timely commenced the instant
action, and both parties moved for judgment on the pleadings.
Magistrate Judge Scott issued his R&R on October 24, 2016, finding
that the Commissioner’s decision should be affirmed. Specifically,
the R&R found that (1) the Appeals Council had good cause to reopen
the favorable determination on the Second Applications; (2) the ALJ
appropriately

considered

the opinion

by

Physician’s

Assistant

Lemley; and (3) the ALJ appropriately considered the opinion by
Nurse Practitioner Kleckner.
Through her attorney, Plaintiff filed Objections (“Pl’s Obj.”)
(Dkt #19)

to the R&R on November 7, 2016. The only issue raised in

Plaintiff’s Objections is whether the Magistrate Judge erred when
he found that the Appeals Council properly reopened the original
favorable

determination

rendered

on

Plaintiff’s

Second

Applications. The Acting Commissioner of Social Security Carolyn W.
Colvin

(“the

Commissioner”)

filed

a

Response

to

Plaintiff’s

objections, and Plaintiff filed a Reply. The matter subsequently
was transferred to the undersigned.
For the reasons discussed below, the Court adopts the R&R in
full and dismisses Plaintiff’s Complaint.

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STANDARD OF REVIEW
“In

reviewing

the

R&R

of

a

dispositive

matter

from

a

magistrate judge, the district court ‘may adopt those portions of
the Report to which no objections have been made and which are not
facially erroneous.’” Nansaram v. City of N.Y., No. 12-CV-5038 NGG
RLM, 2015 WL 5518270, at *2 (E.D.N.Y. Sept. 17, 2015) (quotation
and citation omitted); see also FED. R. CIV. P. 72(b), Advisory
Comm. Notes (when a party makes no objection, or only general
objections to a portion of an R&R, the district judge reviews it
for clear error or manifest injustice). To preserve a claim for
review by the district court, the party must make sufficiently
specific objections to the R&R. E.g., Mario v. P & C Food Mkts.,
Inc., 313 F.3d 758, 766 (2d Cir. 2002). When, however, a party
makes specific objections, the district judge must undertake a
“de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made[,]”
28

U.S.C.

§

636(b)(1)(C),

and

“may

.

.

.

receive

further

evidence[.]” Id.
PLAINTIFF’S OBJECTIONS
I.

Erroneous Conclusion that the Commissioner Appropriately ReOpened the Second Applications
A.

Overview

Plaintiff limits her Objections to whether it was appropriate
for the Commissioner to reopen the award of benefits on the Second

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Applications based on its finding that the September 23, 2013,
report of consultative psychologist Dr. Kavitha Finnity, relied on
by

the

SDM,

limitations
813-16).

did
in

not

two

support

domains

the

of

SDM’s

mental

finding

of

functioning.

“marked”

(T.717-18,

As discussed further below, the Court agrees with the

R&R’s conclusion on this issue.
B.

Applicable Regulations and Legal Standard

The Appeals Council may reopen a DIB determination or decision
within four years of the date of the notice of the initial
determination if there is “good cause.” 20 C.F.R. § 404.988. An SSI
determination or decision may be reopened within two years of the
date of the notice of the initial determination if there is “good
cause.” 20 C.F.R. § 416.1488). “Good cause” to reopen a decision
exists if there is new and material evidence, a clerical error, or
the evidence considered in making the decision clearly shows on its
face that there was an error. 20 C.F.R. §§ 404.989 and 416.1489.
C.

Analysis

Here, the Appeals Council reopened the favorable determination
on November 10, 2014, less than two years after the October 15,
2013 initial determination. The Appeals Council stated that it had
found that there was clear error in the SDM’s decision. (T.720-23).
The R&R correctly noted that because the Appeals Council’s
decision to re-open Plaintiff’s favorable decision on the Second
Applications came more than one year after that decision, the
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Commissioner’s regulations required the Appeals Council to show
“the evidence that was considered in making the determination or
decision clearly shows on its face that an error was made[.]” (R&R
(Dkt #18) at 11 (citing 20 C.F.R. § 404.989(a) (1)-(3); 20 C.F.R.
§ 416.1489(a)) (emphasis in original)).
In finding good cause to reopen, the Appeals Council explained
that Plaintiff had been found disabled in October 2013, because the
SDM

concluded

Disorders).

that

she

(T.721-22).

met
To

Listing

meet

12.06

Listing

(Anxiety

12.06,

Related

Plaintiff

was

required to satisfy the criteria in both Paragraphs A and B or,
alternatively, the criteria in Paragraphs A and C. See 20 C.F.R.
Part (“Pt.”) 404, Subpart (“Subpt.”) P, Appendix (“App.”) 1.
Paragraphs A and C are not at issue in this proceeding. At the time
in question, Paragraph B of Listing 12.06 required “at least two of
the following: 1. [m]arked restriction of activities of daily
living;

or

functioning;

2.
or

[m]arked
3.

difficulties

[m]arked

in

maintaining

difficulties

in

social

maintaining

concentration, persistence, or pace; or 4. [r]epeated episodes of
decompensation, each of extended duration.” 20 C.F.R. § Pt. 404,
Subpt. P, App. 1, § 12.06(B). The SDM found that Plaintiff met
Paragraph B of the Listing because she had “marked” limitations in
the following two domains: (1) maintaining social functioning, and
(2) maintaining concentration, persistence, or pace. (T.795). As

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support, the SDM cited only the medical source statement provided
by consultative psychologist Dr. Finnity. (T.722, 793, 936).
However, the Appeals Council found, Dr. Finnity’s report on
its face did not support a finding that Plaintiff had “marked”
limitations in the two aforementioned domains of functioning.
(T.722). Specifically,

during

the

consultative

examination

in

September 2013, Dr. Finnity found that Plaintiff’s attention and
concentration were intact, as were her recent and remote memory.
(T.935). Dr. Finnity also noted that Plaintiff was cooperative with
an adequate manner of relating. (T.935). Although Plaintiff told
Dr. Finnity that she did not socialize with friends, she reported
having good relationships with her family. (T.936). Dr. Finnity
then opined that
there is no evidence of limitation in the [Plaintiff]’s
ability to follow and understand simple directions,
perform simple tasks, or maintain attention and
concentration. She is moderately limited in her ability
to maintain a regular schedule due to psychiatric
symptoms. There is no evidence of limitation in the
claimant’s ability to learn new tasks, perform complex
tasks, or make appropriate decisions. She is moderately
limited in her ability to relate with others and deal
with stress.
(T.936) (emphases supplied).
The R&R observed that the SDM relied on Dr. Finnity’s opinion
that Plaintiff was “moderately limited” in maintaining a regular
schedule to find that she had a “marked” limitation in maintaining
concentration, persistence, or pace. (T.793, 795). Dr. Finnity’s
opinion that Plaintiff had a “moderate” limitation in relating with
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others

was,

according

to

the

SDM

a

“marked”

limitation

in

maintaining social functioning. (T.793, 795). The Court notes that
the SDM apparently ignored Dr. Finnity’s finding of “no evidence of
limitation” in Plaintiff’s “ability . . . to maintain attention and
concentration.” (T.963). In this Court’s opinion, that omission
alone was sufficient to demonstrate “clear error” on the face of
the SDM’s decision. In short, the Court agrees with the R&R that
the Appeals Council reasonably found that there was clear error on
the face of the SDM’s decision, which constituted good cause for
reopening the Second Applications.
Plaintiff

argues

that

a

different

interpretation

of

Dr. Finnity’s opinion is possible, and suggests that perhaps the
combined

effects

of

the

different

moderate

limitations,

in

conjunction with Dr. Finnity’s report, could have equaled one or
more marked limitations. The Court finds this argument to be
without merit.

First,

as noted

above,

Dr.

Finnity

found

“no

evidence of limitation in the [Plaintiff]’s ability to follow and
understand simple directions, perform simple tasks, or maintain
attention and concentration[.]” (T.963) (emphasis supplied). In
this statement, Dr. Finnity gave a clear and unequivocal opinion as
to one of the critical domains of functioning in Paragraph B of
Listing 12.06.

The

fact

that

Dr.

Finnity

might

have

thought

Plaintiff was moderately limited in her ability to maintain a

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regular schedule only indirectly bears upon her ability to maintain
attention, concentration or pace.
Plaintiff also argues that even assuming that the SDM only
relied on Dr. Finnity’s statement, “it is not clear that the
combined effect of the multiple ‘moderate’ limitations noted by
Dr. Finnity, when read in conjunction with her report, could not
lead a reasonable decision maker to conclude that she had overall
‘marked’ impairments in the requisite paragraph B criteria of
12.06.” According to Plaintiff, the R&R recognized Plaintiff’s
reading of Dr. Finnity’s report as “plausible.” (See R&R (Dkt #18)
at 13). While it is true that the R&R stated that “[a]s plaintiff
notes (Docket No. 11, Pl. Memo. at 36), Dr. Finnity’s findings can
be read different ways[,]” Plaintiff omits the remainder of the
sentence which states that “there was no clear statement from
Dr. Finnity to support a conclusion that [P]laintiff had “marked”
limitations in these areas.” (R&R at 13 (bolded text in original)).
Furthermore, Plaintiff’s argument that the combined effect of
the

different

“moderate”

limitations,

in

conjunction

with

Dr. Finnity’s report, could have equaled a “marked” limitation, is
unsupported by the record. The Court agrees with the R&R that there
is “no record [evidence] to support the graver degree of limitation
of ‘marked’ for either characteristic [i.e., maintaining attention
and concentration and maintaining social functioning].” (R&R at 13

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(citing 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00(C) (defining
“marked” as “more than moderate but less than extreme”)).2
Plaintiff also argues that the fact the SDM did not cite other
evidence besides Dr. Finnity’s opinion does not mean that the SDM
did not consider other evidence. Plaintiff relies on Brault v. Soc.
Sec. Admin., 683 F.3d 443 (2d Cir. 2012), for the proposition that
“‘[a]n ALJ’s failure to cite specific evidence does not indicate
that such evidence was not considered.’” Id. at 448 (quoting Black
v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). An important caveat,
however, is that the Court still must be able to discern the
adjudicator’s rationale for his ultimate decision. See, e.g.,
Mongeur

v.

Heckler,

722

F.2d

1033,

1040

(2d

Cir.

1983)

(per curiam). (stating that where “the evidence of record permits
[the court] to glean the rationale of an ALJ’s decision, [the
court] do[es] not require that he have mentioned every item of
testimony presented to him or have explained why he considered
particular evidence unpersuasive or insufficient to lead him to a
conclusion of disability”). Here, neither the Appeals Council, nor
the Magistrate Judge could discern the SDM’s rationale for finding
that Plaintiff had “marked” limitations is maintaining social
2

In the context of childhood SSI determinations, the Social Security
Administration has stated, “We do not believe that it would be consistent with
the statutory definition of disability to allow a child to be found disabled
based on one marked and two moderate limitations, or multiple moderate
limitations,” because “‘[m]oderate’ limitations represent a wide spectrum,
ranging from just above ‘slight’ to just below ‘marked’ . . . .” Supplemental
Security Income; Determining Disability for a Child Under Age 18, 65 FR 54746-01,
*54763, 2000 WL 1275708(F.R.) (S.S.A. Sept. 11, 2000).

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functioning and maintaining concentration, persistence, or pace.
Nor

can

this

Court.

Therefore,

the

Court

lacks

a

basis

for

concluding that the SDM relied on evidence apart from Dr. Finnity’s
opinion in reaching the conclusion on disability. Moreover, after
reviewing the record, this Court agrees with the Appeals Council
that the evidence submitted in support of the Second Applications
did not support the SDM’s conclusion that Plaintiff was under a
disability as of March 29, 2012. Indeed, on March 29, 2012,
Plaintiff’s case at Genesee County Mental Health was closed due to
lack of staff and a belief that Plaintiff had developed enough
skills and knowledge to continue maintaining her current level of
functioning. (T.1181-82). Her GAF score on discharge was 60.
(T.1182).
The opinion evidence on which Plaintiff relies as possible
support for the SDM’s decision is not entitled to controlling
weight and is not persuasive. First, as Plaintiff concedes, Nurse
Practitioner (“N.P.”) Kleckner is not an acceptable medical source.
See 20 C.F.R. §§ 404.1513(a), (d), 404.1527(a)(2), 416.913(a),(d),
416.927(a)(2); see also SSR 06-3p. And, as the ALJ found, N.P.
Kleckner did not identify any mental limitations or impairments
that

precluded

Plaintiff

from

working,

instead

stating

that

Plaintiff could not work because she had to attend psychological
appointments. (T.689-90, 1209). A finding of disability must rest
on a claimant’s medically determinable impairment, not on factors

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such as the need to attend appointments. See SSR 96-8P, 1996 WL
374184, at *1 (S.S.A. July 2, 1996) (“It is incorrect to find that
an individual has limitations beyond those caused by his or her
medically determinable impairment(s) and any related symptoms, due
to such factors as age and natural body build, and the activities
the individual was accustomed to doing in his or her previous
work.”). The other opinion Plaintiff cites, which was offered by
Physician’s

Assistant

(“P.A.”)

Lemley,

is

not

entitled

to

controlling weight because she also was not an acceptable medical
source. P.A. Lemley’s opinion that Plaintiff very limited in
functioning at a consistent pace (T.1272) does not support the
SDM’s conclusion that Plaintiff meets Listing 12.06 based on an
anxiety disorder, because P.A. Lemley also found that Plaintiff had
no limitations in most work-related areas. (T.1274 (finding no
limitation

in

instructions;

understanding,
maintaining

remembering,

attention

and

and

carrying

out

concentration;

and

maintaining personal hygiene; and either no or no-to-moderate
limitation in interacting appropriately with others and maintaining
socially appropriate behavior). P.A. Lemley’s opinion regarding
Plaintiff’s ability function at a consistent pace appears to be an
outlier in light of the remainder of her report and, in any event,
does not refute the Appeals Council’s finding of clear error on the
face of the SDM’s decision.

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CONCLUSION
For the foregoing reasons, the Court adopts the R&R (Dkt #18)
in full. The Commissioner’s Motion for Judgment on the Pleadings is
granted, and Plaintiff’s Motion for Judgment on the Pleadings is
denied.

The

Commissioner’s

decision

is

affirmed.

Plaintiff’s

Complaint is dismissed. The Clerk of Court is directed to close
this case.
SO ORDERED
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

February 3, 2017
Rochester, New York

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