Townsend v. Colvin

Filing 20

DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/14/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DELOIS M. TOWNSEND,
Plaintiff,
-vs-

No. 1:16-cv-00406-MAT
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

Delois

M.

Townsend

(“Plaintiff”)

brings 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 Social Security1 (“Defendant” or “the
Commissioner”) denying her application for disability insurance
benefits

(“DIB”)

and

Supplemental

Security

Income

(“SSI”).

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.

For the reasons set forth below,

Plaintiff’s motion is denied and Defendant’s motion is granted.
II.

Procedural History
On August 27, 2012, Plaintiff, a then-fifty-two year old

former nurse’s aide, filed for a period of disability, DIB, and

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.

SSI, alleging disability beginning March 3, 2008 due to an injury
to her right arm resulting from a patient rolling onto her while
she bathed him (T. 192-201, 216, 331).2
was

denied

on

January

26,

2013

(T.

Plaintiff’s application
148-53),

and

she

timely

requested a hearing before an administrative law judge (“ALJ”).
ALJ Robert T. Harvey held a hearing on May 14, 2014 (T. 43-89).

At

the hearing, Plaintiff indicated that she was seeking benefits from
December 1, 2011, because she had already been awarded benefits,
based on a prior application, for a closed period, from March 3,
2008 to November 30, 2011 (T. 46, 102-15).

On November 4, 2014 the

ALJ issued a decision in which he found that Plaintiff was not
disabled as defined in the Act as of December 1, 2011 (T. 17-35).
On March 25, 2016, the Appeals Council denied review leaving the
ALJ’s decision as the final agency decision (T. 1-8).
followed.

The Court assumes the parties’ familiarity with the

facts of this case, which will not be repeated here.
will

This action

discuss

the

record

further

below

as

The Court

necessary

to

the

resolution of the parties’ contentions.
III.

The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status

requirements of the Act through December 31, 2016 (T. 22).
one

of

the

five-step

sequential

evaluation,

see

20

At step
C.F.R.

2

Citations to “T.” in parentheses refer to pages
certified copy of the administrative transcript.
2

in

the

§§ 404.1520 and 416.920, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since December 1, 2011
(T. 23).
severe

At step two, the ALJ found that Plaintiff had several

impairments

related

to

her

right

hand:

de

Quervain’s

tenosynovitis in the right thumb; right thumb carpometacarpal joint
arthritis; status post right thumb trapeziectomy with interposition
arthroplasty; right abductor pollicis longus tendon transfer to her
right hand; light small finger Al pulley release and right thumb Al
pulley release through separate incisions; and right carpal tunnel
syndrome.

The ALJ also found that Plaintiff had the severe

impairments

of

right

shoulder

impingement

syndrome;

obesity;

depression; and anxiety (20 C.F.R. §§ 404.1520(c) and 416.920(c))
(Id.).

At step three, the ALJ found that Plaintiff did not have an

impairment or combination of impairments that met or medically
equaled the severity of a listed impairment (T. 23-25).
Before proceeding to step four, the ALJ found that, since
December

1,

2011,

Plaintiff

retained

the

residual

functional

capacity (“RFC”) to perform less than the full range of light work,
as that term is defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
(T. 25).

More specifically, the ALJ found that Plaintiff could

lift and/or carry up to ten pounds frequently and up to twenty
pounds on occasion with the left upper extremity, but cannot exceed
ten pounds with the right upper extremity.

Moreover, Plaintiff

could sit for two hours in an eight-hour workday and stand and/or
walk for up to six hours in an eight-hour workday.
3

However,

Plaintiff could not “work near unprotected heights or around heavy,
dangerous
scaffolds,

moving
and

machinery,

cannot

work

cannot
in

climb

areas

temperature extremes or humidity” (Id.).

with

ropes,

ladders

exposure

to

or

cold,

Furthermore, Plaintiff

had occasional limitations in the ability to (1) bend, climb,
stoop, squat and kneel; (2) reach in all directions with the right
upper extremity; (3) handle, finger, feel with the right hand;
(4) push and pull with the upper extremities.

Moreover, she has

occasional limitations in the ability to deal with stress, but can
perform the basic mental demands of unskilled work, including
understanding, remembering, and carrying out simple instructions,
and the ability to respond appropriately to supervision, coworker
and usual work situations and the ability to deal with changes in
a

routine

work

setting

(Id.).

Plaintiff

also

has

frequent

limitations in repetitive use of the right hand for fine motor
activity, such as when the hand joints make repeated movements
within a work cycle that is repeated over and over again (e.g.,
assembling a circuit board or packing boxes on an assembly line).
Finally, Plaintiff could never crawl (Id.).
At step four, the ALJ found that Plaintiff was unable to
perform any past relevant work (T. 33).

At step five, the ALJ

found, considering Plaintiff’s age, education, work experience and
RFC, that jobs exist in significant numbers in the national economy
that Plaintiff can perform (Id.).

4

Accordingly, the ALJ found that

Plaintiff was not disabled from December 1, 2011 through the date
of his decision (T. 35).
IV.

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 also

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.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).

Shaw v.

“The deferential

standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
Here, Plaintiff makes the following arguments in favor of his

motion for judgment on the pleadings: (1) the ALJ’s physical RFC
finding was not based on substantial evidence because the ALJ
disregarded Plaintiff’s limitations related to obesity; and (2) the
ALJ’s mental RFC was not based on substantial evidence because the
ALJ failed to properly evaluate Plaintiff’s moderate limitations in
dealing with stress. For the reasons discussed below, the Court
finds these arguments without merit.

5

A.

RFC
1.

Plaintiff’s
Obesity
and
Mild
Limitations for Prolonged Walking

to

Moderate

Plaintiff argues that the ALJ’s RFC finding was not supported
by substantial evidence because it disregarded the limitations on
Plaintiff related to her obesity (Docket 12 at 15).

Specifically,

Plaintiff contends that the ALJ’s RFC ignored consultative examiner
Dr.

Hongbiao

Plaintiff

had

Liu’s

medical

“mild

to

source

opinion

moderate”

demonstrating

limitations

for

that

“prolonged

walking” that were a direct result of her obesity (Id.).

She does

not challenge any of the limitations set forth in the physical RFC
associated with Plaintiff’s right upper extremity, right hand, or
fine motor skills. The Commissioner argues that the ALJ explicitly
considered Plaintiff’s obesity by relying on opinions addressing
Plaintiff’s obesity that did not provide any limitations as a
result of it (Docket 13 at 13-14).

The Commissioner further

contends that Dr. Liu assessed only mild to moderate limitations
for prolonged walking, and the ALJ’s RFC finding of light work is
consistent with such limitations.

(Id. at 14).

Social Security

Ruling 02–1p directs ALJs to consider whether a claimant’s obesity
significantly limits his or her ability to do work activities,
including
provides

whether
that

it

obesity

exertional functions.”

makes
can

other
cause

ailments

worse.

“limitations

SSR 02–1p(8).

in

The
any

ruling
of

the

The ruling also provides

that “[t]he combined effects of obesity with other impairments may

6

be greater than might be expected without obesity.”
Here,

the

ALJ’s

findings

demonstrate

Id.

that

he

properly

considered Plaintiff’s obesity in formulating Plaintiff’s physical
RFC.

In his decision the ALJ found that Plaintiff suffered from

the severe impairment of obesity.

In formulating Plaintiff’s

physical RFC finding, the ALJ applied SSR 02-lp and considered how
Plaintiff’s obesity affected her overall functioning (T. 29).
Specifically, the ALJ noted the repeated references in the medical
record addressing the extent of Plaintiff’s obesity (Id.). The ALJ
further

found

that

during

the

period

of

alleged

disability,

Plaintiff’s obesity levels did not change much (T. 29 (citing
T. 295-96 and 360-63)).
include

any

specific

Moreover, the medical record did not
treatment

Plaintiff’s obesity (T. 29).

or

limitations

related

to

As a result, the ALJ found that

despite Plaintiff’s limitations related to obesity, Plaintiff could
stand or walk for up to six hours in an eight-hour work day,
consistent with an RFC of light work (T. 23, 25).
Accordingly,
considered

the

Plaintiff’s

record

reveals

obesity

and

that
its

the

impact

ALJ
on

adequately
her

other

conditions in compliance with SSR 02–1p. See Talavera v. Comm’r of
Soc. Sec., 2011 WL 3472801, at *12 (E.D.N.Y. Aug.9, 2011) (ALJ
properly considered plaintiff’s obesity because, inter alia, she
listed “‘obesity’ as one of [plaintiff’s] impairments, which she
assumed to be severe.”), aff’d 697 F.3d 145 (2d Cir. 2012); Cruz v.
Barnhart, 2006 WL 1228581, at *9 (S.D.N.Y. May 8, 2006) (no error
7

where “the ALJ made specific mention of [plaintiff’s] obesity in
his findings of fact”).
Plaintiff also contends that the ALJ “neglected to adopt”
Dr. Liu’s “moderate limitations in prolonged walking” (Docket 12 at
16).

Plaintiff mischaracterizes the ALJ’s opinion and Dr. Liu’s

limitations. In January 2013, Dr. Liu examined Plaintiff and found
that she had “mild to moderate limitations for prolonged walking”
(T. 363). Dr. Liu’s limitations on prolonged walking were a result
of his extensive findings with respect to the impact on Plaintiff’s
limitations.

As the ALJ correctly observed, Dr. Liu found that

Plaintiff weighed 249 pounds and was five feet five inches tall,
walked at a slow pace, but did not need an assistive device (T. 29,
361-62).
perform a

Plaintiff was unable to walk on her heels and toes or
full squat due to obesity and pain (T. 29, 362).

However, she needed no help changing for the examination or getting
on and off the examination table (T. 29, 362).

Plaintiff also had

full bilateral range of motion of the hips, knees, and ankles
(T. 362).

Plaintiff also reported to Dr. Liu that she could cook,

clean, do laundry, shop and shower (T. 361). She noted, however,
that she needed help with putting on her socks and shoes (Id.).
After summarizing Dr. Liu’s findings and medical source opinion,
the ALJ formulated Plaintiff’s physical RFC of walking for up to
six hours in an eight-hour workday (T. 29).
Plaintiff correctly notes that the ALJ only gave Dr. Liu’s
findings “some weight” and therefore “neglected to adopt” Dr. Liu’s
8

moderate limitations for prolonged walking (T. 29).

However, as

the ALJ explained, he credited the opinion because it was based on
Dr. Liu’s direct observations, and only discounted the opinion for
not

addressing

matters

unrelated

lifting and fine motor skills.

to

Plaintiff’s

(T. 29).

walking:

her

Moreover, an ALJ is well

within their “province in resolving the evidence to accept parts of
a doctor’s opinion and to reject others.”

Wilburn v. Colvin, 2016

WL 1237789, at *6 (N.D.N.Y. Feb. 29, 2016) (internal quotation
marks omitted); see Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir.
Jan. 28, 2013) (holding consultative examiner’s opinion largely
supported ALJ’s RFC determination even if ALJ did not credit all of
consultant’s findings).
By arguing that the ALJ neglected to adopt Dr. Liu’s “moderate
restriction” in prolonged walking, Plaintiff attempts to overlook
the “mild” language in Dr. Liu’s restriction in order to portray
light work as inconsistent with a moderate limitation for prolonged
walking. Plaintiff cites two cases for that proposition: Malone v.
Comm’r of Soc. Sec., 2011 WL 817448, at *10 (N.D.N.Y. Jan.18,
2011), adopted 2011 WL 808378 (Mar. 2, 2011), and Carroll v.
Colvin, 2014 WL 2945797, at *4 (W.D.N.Y. June 30, 2014).

Neither

Malone nor Carroll stand for that proposition. The issue in Malone
was merely whether the ALJ failed to develop the record where the
only direct evidence of Plaintiff’s physical limitations was a
“non-specific” moderate limitation with respect to standing.
WL 817448, at *10.

2011

In Carroll, the Court explained that it was not
9

saying

that

necessarily

“any

moderate

renders

a

limitation

claimant

in

sitting

disabled”

and

or

standing

cited

several

decisions upholding a finding of light or sedentary work where a
claimant
standing.

had

moderate

difficulties

in

prolonged

sitting

or

2014 WL 2945797, at *4 (citing Hammond v. Colvin, 2013

WL 4542701, at *6 (N.D.N.Y. Aug.26, 2013); Stacey v. Comm’r of
Social Sec., 2011 WL 2357665, at *6 (N.D.N.Y. May 20, 2011)).
Indeed, a number of cases have found that an ALJ’s RFC
assessment of light work was supported by a medical source opinion
of mild to moderate limitations for standing, among other things.
See, e.g., Nelson v. Colvin, 2014 WL 1342964, at *12 (E.D.N.Y.
2014) (“[T]he ALJ’s determination that [p]laintiff could perform
‘light work’ is supported by [doctor’s] assessment of ‘mild to
moderate limitation for sitting, standing, walking, bending, and
lifting weight on a continued basis.’” (citing Lewis v. Colvin, 548
F. App’x 675, 678 (2d Cir. 2013)); Hazlewood v. Comm’r of Soc.
Sec., 2013 WL 4039419, at *7 (N.D.N.Y. 2013) (doctor’s opinion that
plaintiff had “mild to moderate limitations in walking, pushing and
pulling” supported the “ALJ’s determination that plaintiff could
physically perform light work”).

The Commissioner specifically

cites Nelson in support of the ALJ’s decision, but Plaintiff does
not address it. In short, Plaintiff has failed to demonstrate that
the ALJ

failed

to

consider Plaintiff’s

obesity or

Dr.

Liu’s

limitations to prolonged walking, or that the ALJ’s physical RFC
finding was otherwise not based on substantial evidence.
10

2.

Plaintiff’s Moderate Limitations in Dealing with
Stress

Plaintiff

also argues

that

the

ALJ

failed

to

offer

any

particularized examination of Plaintiff’s stress which rendered his
inclusion of it in his decision “unduly vague” (Docket 12 at 18;
Docket 18 at 3).
The Social Security Administration recognizes that “[s]ince
mental

illness

behavior,

it is

is
not

defined
unusual

and

characterized

that the

mentally

by

maladaptive

impaired have

difficulty accommodating to the demands of work.”

SSR 85-15.

Indeed, “the reaction to the demands of work (stress) is highly
individualized[,]” id., and “the skill level of a position is not
necessarily related to the difficulty an individual will have in
meeting the demands of the job.”

Id.

In formulating Plaintiff’s mental RFC, the ALJ considered the
opinions of state consultative examiner Renee Baskin, Ph.D., and
state review psychiatrist Dr. Juan Echevarria (T. 30, 32).
Commissioner’s

request,

Dr.

Baskin

examined

At the

Plaintiff

on

January 15, 2013 for her complaints of depression and anxiety
(T. 355-59).

Dr. Baskin observed that Plaintiff was cooperative

and had an adequate manner of relating, social skills and overall
presentation (T. 356). Plaintiff explained that her depressive and
anxiety related symptoms were secondary to coping with chronic
pain, medical problems, loss of livelihood, significant limitations
and financial stress (Id.). She also stated “I miss my mom” who had

11

passed away in September 2011 (Id.). Moreover, despite being
“physically uncomfortable” and “battling a cold,” Plaintiff was
“pleasant, polite, personable and easily engaged” (T. 357).

She

had an appropriate affect and had a euthymic (normal) mood (Id.).
Dr. Baskin estimated that Plaintiff’s intellectual functioning was
in the low-average range, and found her attention, concentration
and memory to be mildly impaired (Id.).
seemed “fair to good” (Id.).

Her insight and judgment

Dr. Baskin opined that Plaintiff

would have moderate limitations in dealing with stress but minimal
to no limitations in maintaining attention and concentration,
understanding and performing simple tasks independently, making
appropriate decisions, maintaining a regular schedule, learning new
tasks

with

supervision

(T. 358).
evidence
Dr.

and

relating

adequately

with

others

On January 23, 2013, Dr. Echevarria reviewed the
in

the

Echevarria

record

assessed

about

Plaintiff’s

that

Plaintiff

was

mental
not

impairment.

significantly

limited in the ability to remember locations, work-like procedures,
or very short and simple instructions (T. 128). She was moderately
limited

in

her

ability

instructions. (Id.)

to

understand

and

remember

detailed

She had no significant limitations in the

ability to sustain an ordinary routine without special supervision,
to work in coordination with or in proximity to others without
being distracted by them, to make simple work-related decisions, to
complete

a

normal

workday

and

workweek

without

psychological

interruption, and to perform at a consistent pace without an
12

unreasonable number and length of rest periods (T. 129).

However,

Dr. Echevarria did find moderate limitations in the ability to
maintain attention and concentration for extended periods, perform
activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances (T. 129). Like Dr. Baskin,
Dr. Echevarria described her as having an appropriate affect,
normal mood and fair insight and judgment (T. 128-29).

He also

noted that Plaintiff was not significantly limited in interacting
appropriately

with

the

general

public

or

getting

along

with

coworkers or peers (T. 129). As a result, Dr. Echevarria concluded
that Plaintiff could perform simple, low-stress work (T. 130).
However,
addressing

the

ALJ

further

Plaintiff’s

other

supported

his

psychiatric

mental

RFC

by

evaluations.

Specifically, the ALJ found persuasive that between March 2013 and
March 2014, Plaintiff saw several doctors that addressed her
psychological state and none offered more than “negligible clinical
findings” (T. 33).

For example, Plaintiff’s treating psychiatric

physician, Dr. Horacio Capote, and RPA Allyson Vanececk found that
Plaintiff had no more than moderate mental limitations (T. 454-95).
They revealed that Plaintiff denied any suicidal plans or intent,
she

had

no

evidence

of

hallucinations

or

delusions,

her

concentration was either mildly or moderately impaired, her speech
was clear; her thoughts were goal directed, her orientation was
full, and her manner was cooperative (T. 455-56, 459-60, 463-64,

13

466, 470, 474, 478, 482, 486, 490).

Notably, none of Plaintiff’s

doctors indicated that she could not handle any stress at all.
After

considering

the

record

medical

evidence,

the

ALJ

included limitations in the mental RFC formulation designed to
address

Plaintiff’s

work-related

stress

difficulties
(Docket

13

in
at

handling
22

(citing

occasional
T.

26)).

Specifically, the ALJ restricted Plaintiff to unskilled jobs that
involve only (1) understanding, remembering and carrying out simple
instructions;

(2)

responding

appropriately

to

usual

work

situations, and (3) dealing with changes in a routine work setting
(T. 25 (emphasis added)).

By definition, unskilled work requires

little or no judgment to do simple duties that can be learned on
the job in a short period of time, and requires working primarily
with objects, rather than data or people.

See SSR 85-15.

In light of this evidence, the Court concludes that the ALJ’s
mental RFC is supported by substantial evidence and remand is
unnecessary. See, e.g., Colon-Torres v. Colvin, 2014 WL 296845, at
* 4 (N.D.N.Y. Jan. 27, 2014) (court found that “the ALJ made clear
that – although Colon- Torres’s ability to respond to the demands
of work restricts her to performing low-stress jobs, she retains
the ability to perform the mental demands of unskilled work.”).
VI.

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

the pleadings (Docket No. 12) is denied. The Commissioner’s motion

14

for judgment on the pleadings (Docket No. 13) is granted.
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:

November 14, 2017
Rochester, New York.

15

The