Townsend v. Colvin
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,
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
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
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.
On August 27, 2012, Plaintiff, a then-fifty-two year old
former nurse’s aide, filed for a period of disability, DIB, and
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
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
requested a hearing before an administrative law judge (“ALJ”).
ALJ Robert T. Harvey held a hearing on May 14, 2014 (T. 43-89).
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).
The Court assumes the parties’ familiarity with the
facts of this case, which will not be repeated here.
resolution of the parties’ contentions.
The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2016 (T. 22).
Citations to “T.” in parentheses refer to pages
certified copy of the administrative transcript.
§§ 404.1520 and 416.920, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since December 1, 2011
At step two, the ALJ found that Plaintiff had several
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
The ALJ also found that Plaintiff had the severe
depression; and anxiety (20 C.F.R. §§ 404.1520(c) and 416.920(c))
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
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)
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.
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.
Plaintiff could not “work near unprotected heights or around heavy,
temperature extremes or humidity” (Id.).
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
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.).
Accordingly, the ALJ found that
Plaintiff was not disabled from December 1, 2011 through the date
of his decision (T. 35).
Scope of Review
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).
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)).
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.
Limitations for Prolonged Walking
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).
Plaintiff contends that the ALJ’s RFC ignored consultative examiner
walking” that were a direct result of her obesity (Id.).
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).
Ruling 02–1p directs ALJs to consider whether a claimant’s obesity
significantly limits his or her ability to do work activities,
The ruling also provides
that “[t]he combined effects of obesity with other impairments may
be greater than might be expected without obesity.”
considered Plaintiff’s obesity in formulating Plaintiff’s physical
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
Plaintiff’s obesity levels did not change much (T. 29 (citing
T. 295-96 and 360-63)).
Moreover, the medical record did not
Plaintiff’s obesity (T. 29).
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).
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
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
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
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,
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
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
moderate limitations for prolonged walking (T. 29).
the ALJ explained, he credited the opinion because it was based on
Dr. Liu’s direct observations, and only discounted the opinion for
lifting and fine motor skills.
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
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).
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.
In Carroll, the Court explained that it was not
decisions upholding a finding of light or sedentary work where a
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
limitations to prolonged walking, or that the ALJ’s physical RFC
finding was otherwise not based on substantial evidence.
Plaintiff’s Moderate Limitations in Dealing with
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
difficulty accommodating to the demands of work.”
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.”
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).
January 15, 2013 for her complaints of depression and anxiety
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
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).
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
On January 23, 2013, Dr. Echevarria reviewed the
limited in the ability to remember locations, work-like procedures,
or very short and simple instructions (T. 128). She was moderately
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
interruption, and to perform at a consistent pace without an
unreasonable number and length of rest periods (T. 129).
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).
noted that Plaintiff was not significantly limited in interacting
coworkers or peers (T. 129). As a result, Dr. Echevarria concluded
that Plaintiff could perform simple, low-stress work (T. 130).
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,
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,
466, 470, 474, 478, 482, 486, 490).
Notably, none of Plaintiff’s
doctors indicated that she could not handle any stress at all.
included limitations in the mental RFC formulation designed to
Specifically, the ALJ restricted Plaintiff to unskilled jobs that
involve only (1) understanding, remembering and carrying out simple
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.”).
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 12) is denied. The Commissioner’s motion
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
November 14, 2017
Rochester, New York.
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