Johnson v. Commissioner of Social Security

Filing 11

DECISION AND ORDER denying 6 Plaintiff's Motion for Judgment on the Pleadings; granting 8 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 3/22/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TONYA LEE JOHNSON,
1:16-cv-00831-MAT

Plaintiff,

DECISION AND ORDER
-vsCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.

INTRODUCTION
Represented

by

counsel,

Tonya

Lee

Johnson (“Plaintiff”)

has

brought this action pursuant to Title XVI of the Social Security Act
(“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“Defendant” or “the Commissioner”)
denying her application for supplemental security income (“SSI”). 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.

For the reasons set forth below, Plaintiff’s

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

PROCEDURAL BACKGROUND
On October 24, 2012, Plaintiff protectively filed an application

for SSI, alleging disability beginning January 1, 2008 due to lower
back pain, migraines, cervicalgia, insomnia, panic attacks, sleep
apnea, depression, temporomandibular joint (“TMJ”) disease, low white
blood

cells,

tachycardia,

anxiety,

and

esophageal

reflux.

Administrative Transcript (“T.”) 135-140, 149. Plaintiff’s application

was initially denied and she timely requested a hearing, which was held
before administrative law judge (“ALJ”) Robert T. Harvey on April 17,
2014.

T. 41-73, 88-94. On July 3, 2014, the ALJ issued an unfavorable

decision.

T. 20-40.

Plaintiff’s request for review was denied by the

Appeals Council on December 19, 2015, making the ALJ’s decision the
final decision of the Commissioner.

T. 4-9. 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). At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from October 24, 2012, the
application date. T. 25.
Plaintiff

had

the

At step two, the ALJ determined that

severe

impairments

of

migraine

headaches,

TMJ

dysfunction, depressive disorder, anxiety disorder, discogenic cervical
spine, and low back dysfunction, and the non-severe impairments of
asthma, anemia, sleep apnea, and gastroesophageal reflux disease.

Id.

At step three, the ALJ considered Plaintiff’s impairments and found
that, singly or in combination, they did not meet or medically equal
the severity of a listed impairment.
considered

Listings

determination.
Prior

to

1.04,

Id.

12.04,

and

step

four,

In particular, the ALJ

12.06

in

reaching

this

determined

that

T. 26-27.
proceeding

to

the

ALJ

Plaintiff had the residual functional capacity (“RFC”) to perform light
work

as

defined

in

20

C.F.R.

§

-2-

416.967(b),

with

the

following

additional limitations: cannot work in areas with unprotected heights
or

around

heavy,

dangerous,

or

moving

machinery;

has

occasional

limitations in bending, climbing, stooping, squatting, kneeling, and
balancing; cannot crawl or climb ropes, ladders, or scaffolds; has
occasional limitations in her ability to reach in all directions with
the right upper extremity and occasional limitations in pushing and
pulling with the right upper extremity; has occasional limitations in
the

ability

to

understand,

remember,

and

carry

out

detailed

instructions; cannot work in areas with excessively bright lights; has
occasional limitations in dealing with stress.

T. 26-27.

At step four, the ALJ determined that Plaintiff had no past
relevant work.

T. 35.

At step five, the ALJ relied on the testimony

of a vocational expert to find that, taking into account Plaintiff’s
age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform,
including the representative occupations of mail clerk and office
helper.

T. 35-36.

The ALJ accordingly found that Plaintiff was not

disabled as defined in the Act.
IV.

T. 36.

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

-3-

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. 2013). “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).
In this case, Plaintiff contends that the ALJ’s RFC finding was
not supported by substantial evidence. In particular, Plaintiff argues
that (1) the ALJ failed to make a function-by-function assessment of
Plaintiff’s ability to perform the mental and physical requirements of
light work, (2) the ALJ failed to articulate appropriate reasons for
giving

little

examiner

Dr.

weight
Renee

to

the

Baskin,

opinion
(3)

the

of
ALJ

consultative
ignored

psychiatric

the

impact

of

Plaintiff’s migraines on her RFC, and (4) the ALJ failed to adequately
account for Plaintiff’s stress-related limitations. Plaintiff further
argues that the ALJ failed to properly develop the record. For the
reasons discussed below, the Court finds these arguments without merit.
B.

Function-by-Function Assessment of Plaintiff’s RFC

Plaintiff contends that the ALJ failed to perform a function-byfunction analysis of her abilities and that remand is
required.

The Court disagrees.

-4-

therefore

As a threshold matter, Plaintiff has failed to demonstrate that
the ALJ failed to perform a function-by-function analysis in this case.
To the contrary, the ALJ specifically discussed the sitting, standing,
walking, and lifting requirements of light work.

T. 27.

The ALJ

further expressly included in his RFC finding his assessment of
Plaintiff’s ability to bend, climb, stoop, squat, kneel, balance,
crawl, reach, push, pull, deal with stress, and understand, remember,
and carry out detailed instructions.

Id.

These are precisely the

sorts of functions identified in Social Security Ruling (“SSR”) 96-8p
and 20 C.F.R. §§ 404.1545(b) and (c) as requiring consideration by an
ALJ in his RFC assessment.
Moreover, even assuming arguendo that the ALJ had failed to
perform a function-by-function analysis, any such error was harmless.
“Where an ALJ's analysis at Step Four regarding a claimant’s functional
limitations and restrictions affords an adequate basis for meaningful
judicial review, applies the proper legal standards, and is supported
by

substantial

evidence

such

that

additional

analysis

would

be

unnecessary or superfluous, . . . remand is not necessary merely
because an explicit function-by-function analysis was not performed.”
Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013); see Goodale v.
Astrue, 32 F. Supp. 3d 345, 357 (N.D.N.Y. 2012) (“[A]n ALJ’s failure
to provide a function-by-function analysis...constitute[s] harmless
error, provided that the absence of the analysis did not frustrate
meaningful review of the ALJ’s overall RFC assessment.”).

Here, the

ALJ thoroughly considered and analyzed the medical evidence of record

-5-

and set forth in detail the basis for his RFC finding. In particular,
the ALJ noted that CT scans of Plaintiff’s head had revealed no acute
pathology of the brain (T. 30), that Plaintiff’s physical examinations
had

been

largely

unremarkable

(T.

30-31,

33),

that

an

upper

gastrointestinal endoscopy of Plaintiff was normal (T. 31), that an MRI
of

Plaintiff’s

brain

and

multiple

neurologic

examinations

were

unremarkable (T. 31, 34), that consultative examiner Dr. Donna Miller
had thoroughly examined Plaintiff and had found that she had only a
mild

limitation

pushing,

and

in

repetitive

pulling

(T.

heavy

33),

and

lifting,
that

bending,

Plaintiff’s

reaching,
treating

psychiatrist Dr. Sanjay Gupta had most recently assessed Plaintiff’s
global assessment of functioning (“GAF”) score as 65 (T. 35), which
indicated that Plaintiff had only mild symptoms.

As the ALJ stated in

summary, the RFC assessment was amply supported by “the objective
evidence of record, . . . [and by] the unremarkable examinations by the
claimant’s treating neurologist and treating psychiatrist . . ., as
well as the examination and opinion of [the] consultative examiner.”
T. 35.

The ALJ’s conclusions are fully consistent with the medical

record, and his explanation permits meaningful review by this Court.
The Court finds no basis for remand regarding the ALJ’s alleged failure
to perform a function-by-function analysis.
C.

Consideration of Dr. Baskin’s Opinion
Plaintiff next contends that the ALJ failed to properly explain

why he afforded only little weight to consultative psychiatric examiner
Dr. Baskin’s opinion.

Again, the Court disagrees.
-6-

Dr. Baskin examined Plaintiff on December 18, 2012.
Plaintiff

reported

psychiatric

to

Dr.

Baskin

hospitalization

or

that

she

received

had

T. 461-65.

never

psychiatric

undergone
outpatient

treatment, but had been to one intake appointment at Lifetime Health.
T. 461.

A mental status examination was largely unremarkable -

Plaintiff was responsive and cooperative; her manner of relating,
social skills, and overall presentation were adequate; her eye contact
was appropriate; her speech was fluent and clear and her expressive and
receptive language were adequate; her thought processes were coherent
and goal-directed; her sensorium was clear; she was oriented; and her
insight and judgment were fair.

T. 462-63.

Plaintiff’s attention and

concentration and recent and remote memory skills were mildly impaired
“due to distractibility secondary to physical pain or discomfort.”
T. 463. Dr. Baskin estimated that Plaintiff’s intellectual functioning
was in the below average range, but found that her “general fund of
information was appropriate to [her] experience.”

Id.

Dr. Baskin

opined that Plaintiff would have minimal to no limitations being able
to follow and understand simple directions and instructions and perform
simple tasks independently. T. 464. She further opined that Plaintiff
would have moderate limitations being able to maintain attention and
concentration, maintain a regular schedule, learn new tasks, perform
complex

tasks

independently,

make

appropriate

decisions,

relate

adequately with others, and appropriately deal with stress.
Dr.

Baskin

disorder,

assessed
and

“pain

Plaintiff
disorder

with

depressive

associated
-7-

with

Id.

disorder,

anxiety

general

medical

condition.”

Id.

In his decision, the ALJ gave little weight to

Dr. Baskin’s opinion, noting that it was unsupported by the evidence
of record and inconsistent with the treatment records of treating
psychiatrist Dr. Gupta.

T. 32.

The Commissioner’s regulations “require an ALJ to explain the
weight given to the opinions of state agency medical consultants.”
Stytzer v. Astrue, No. 1:07-CV-811 NAM/DEP, 2010 WL 3907771, at *7
(N.D.N.Y. Sept. 30, 2010).

“When the medical source statement of the

consultative examiner conflicts with the ALJ’s RFC assessment, the
plaintiff is entitled to an express recognition from the Commissioner
of the existence of a favorable medical source statement and, if the
ALJ declined to accept it, the reasons for not doing so.”

Id.

In this case, the ALJ acknowledged and considered Dr. Baskin’s
consultative opinion, explained what weight he gave it, and set forth
the reasoning behind his assessment.

The Court therefore finds no

legal error by the ALJ. Moreover, the ALJ’s assessment of Dr. Baskin’s
opinion is supported by substantial evidence.

Dr. Baskin’s opinion is

inconsistent with the evidence of record, including her own examination
findings

-

for

example,

Dr.

Baskin

observed

that

Plaintiff

was

cooperative and responsive and that her manner of relating and social
skills were adequate, yet opined without explanation that Plaintiff
would have moderate limitations in relating adequately with others.
Similarly, Dr. Baskin observed only mild impairment in Plaintiff’s
attention

and

concentration,

yet

ultimately

opined

that

she

had

moderate limitations in this area. Additionally, and as the ALJ noted,
the limitations assessed by Dr. Baskin are inconsistent with the
-8-

records of treating psychiatrist Dr. Gupta. Mental status examinations
performed by Dr. Gupta repeatedly showed that Plaintiff was “[a]ble to
focus and concentrate” (T. 559, 562, 566), and from May 2013 forward
(well after Dr. Baskin’s one-time examination), Dr. Gupta consistently
assessed Plaintiff with GAF scores of 65-75 (T. 556, 559, 562, 566)
indicating that Plaintiff had at most mild symptoms. Under these
circumstances, the ALJ was justified in determining that Dr. Baskin’s
opinion was inconsistent with the evidence of record.

The Court

therefore finds that the ALJ’s assessment of Dr. Baskin’s opinion was
proper and that remand is not warranted on this basis.
D.

Assessment of Plaintiff’s Migraines

Plaintiff also argues that the ALJ’s RFC finding was inadequate
because he failed to account for the impact of her migraines, relying
only on his own lay assessment of the medical evidence.
argument

is

unsupported

by

the

evidence

of

record.

Plaintiff’s
Consultative

examiner Dr. Miller examined Plaintiff on December 18, 2012.
470.

T. 466-

Dr. Miller was aware of Plaintiff’s migraine headaches and the

treatment she had received for then (T. 466-67), and in fact diagnosed
Plaintiff with migraine headaches (T. 469).

Dr. Miller nonetheless

opined that Plaintiff’s only limitations were the need to avoid
respiratory irritants (due to asthma) and a “mild limitation with
repetitive heavy lifting, bending, reaching, and pulling.”

T.

469.

The ALJ’s RFC finding with respect to the impact of Plaintiff’s
migraines is therefore clearly supported by Dr. Miller’s opinion. It
is well-established that the opinion of a consultative examiner may

-9-

serve as substantial evidence in support of an ALJ decision. See, e.g.,
Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011).
Plaintiff has not identified any other medical evidence of record
to support the conclusion that her migraines would cause additional
limitations not accounted for in the ALJ’s RFC assessment.

To the

contrary, and as the ALJ discussed in his decision, Plaintiff’s medical
records show that her migraines responded well to medication.

In

October 2012, Plaintiff reported that she experienced “complete relief”
from her migraines with Treximet.

T. 434.

Plaintiffs treating nurse

practitioner observed in July 2013 that her migraines were “controlled
with the abortive agent.”

T. 511.

Additionally, Plaintiff began

receiving Botox injections for her migraines and neck pain in November
2013 (T. 522) and in April 2014 she reported continued decreased
headache frequency (T. 532).

Her nurse practitioner stated that she

was “responding well to Botox treatment.”

Id.

In sum, Plaintiff’s

medical records show that the frequency of her migraines was wellmanaged with Botox treatment and that when she did experience a
migraine, she was able to control it with medication.
For

the

foregoing

reasons,

the

Court

finds

that

the

ALJ’s

assessment of the impact of Plaintiff’s migraines was supported by
substantial

evidence.

Accordingly,

the

Court

finds

Plaintiff’s

contention that the ALJ relied on his own lay opinion to be without
merit.
E.

Consideration of Plaintiff’s Stress-related Limitations

Plaintiff next argues that the ALJ’s finding that Plaintiff had
“occasional limitations in dealing with stress” was unsupported by
-10-

substantial evidence, because Plaintiff testified that could not deal
with any stress at all.

Again, Plaintiff’s argument lacks merit.

As the ALJ noted in his decision, while Plaintiff told her primary
care physician Dr. Maritza Baez that stress aggravated her symptoms,
she also told Dr. Baez that it was “not difficult at all” for her “to
meet home, work, or social obligations.” T. 31. Additionally, the ALJ
noted that state agency psychiatric consultant Dr. M. Totin had opined
that Plaintiff was capable of working in a low stress environment.
T. 33.

Plaintiff reported to Dr. Baskin that she had panic attacks,

but specifically stated that they came “out of the blue” and that they
were not triggered by any specific situations.

T. 32.

This evidence

supports the ALJ’s RFC finding that Plaintiff had only occasional
limitations in dealing with stress.
Plaintiff does not identify (nor is there) any medical evidence
of record establishing that Plaintiff has a more serious limitation in
dealing with stress than that assessed by the ALJ.

Instead, Plaintiff

relies on her own testimony that she was unable to deal with stress.
However, while an ALJ “is required to take the claimant’s reports of
pain and other limitations into account,” Genier v. Astrue, 606 F.3d
46, 49 (2d Cir. 2010)(citations omitted), he “is not required to accept
the claimant's subjective complaints without question; he may exercise
discretion in weighing the credibility of the claimant’s testimony in
light of the other evidence in the record.” Id. (citation omitted).
Plaintiff has not proffered any argument to support the conclusion that
the ALJ was required to credit her subjective complaints regarding

-11-

stress, and the ALJ adequately explained the basis for his findings.
In particular, the inconsistency between Plaintiff’s statements to her
treatment

providers

(i.e.

that

although

stress

exacerbated

her

symptoms, she was able to meet her home, work, and social obligations
without difficulty) and her hearing testimony provides an adequate
basis

for

the

allegations.

ALJ’s

decision

to

not

fully

credit

Plaintiff’s

Accordingly, the Court does not find that the ALJ erred

in his assessment of Plaintiff’s stress-related limitations.
F.

Development of the Record

Plaintiff’s final argument is that the ALJ failed to fulfill his
duty to develop the record. In particular, Plaintiff claims that there
were additional medical records that were not submitted, and that the
ALJ was “made aware” that they were missing.

Docket No. 6-1 at 25.

The Court finds that, under the circumstances of this case, the ALJ
sufficiently satisfied his duty to develop the record.
The Commissioner’s regulations require an ALJ to develop the
record by obtaining a “complete medical history for at least the
12 months preceding the month in which [a claimant] file[s][an]
application.” 20 C.F.R. § 404.1512(b)(1).

“Even though the ALJ has an

affirmative obligation to develop the record, it is the plaintiff’s
burden to furnish such medical and other evidence of disability as the
Secretary may require.”

Long v. Bowen, 1989 WL 83379, *4 (E.D.N.Y.

July 17, 1989) (internal citations omitted). Moreover, where the record
evidence is sufficient for the ALJ to make a disability determination,
the

ALJ

is

not

obligated

to

seek

-12-

further

medical

records.

See

Martinez–Paulino v. Astrue, 2012 WL 3564140, *14 (S.D.N.Y. Aug. 20,
2012) (“The record thus contained sufficient evidence to make a
disability determination, and the ALJ was under no obligation to seek
additional treatment records. Therefore, the ALJ properly satisfied his
duty to develop the record.”); Valoy v. Barnhart, 2004 WL 439424, *7
(S.D.N.Y. Mar.9, 2004) (“While the ALJ must supplement the record
through

his

own

initiatives

when

the

record

is

incomplete

or

inadequate, this burden does not attach when the record is ample.”).
Where an ALJ becomes aware during the hearing that there may be
additional medical records, he may satisfy his duty to develop the
record by holding the hearing open to permit submission of additional
records.

See Melton v. Colvin, No. 13-CV-6188 MAT, 2014 WL 1686827,

at *8 (W.D.N.Y. Apr. 29, 2014) (collecting cases).
Here, at the hearing, Plaintiff’s counsel informed the ALJ that
she would be submitting additional records which would “pretty much
complete the record.” T. 66.

The ALJ held the hearing open to permit

counsel to submit these additional records (id.), and Plaintiff’s
counsel did indeed submit additional treatment records following the
hearing.

Under these circumstances, the Court finds that the ALJ

appropriately discharged his duty to develop the record.

See Melton,

2014 WL 1686827 at *8 (“the ALJ satisfied her duty to develop the
record by holding the record open after the hearing and subsequently
granting Plaintiff's request for an additional 7–day extension”); see
also Jordan v. Comm'r of Soc. Sec., 142 F. App’x 542, 543 (2d Cir.
2005) (finding that ALJ fulfilled his duty to develop the record where

-13-

“[a]lthough the ALJ did not contact or obtain records” from treating
physician

mentioned

plaintiff’s

counsel

at
did

hearing,
not

the

request

ALJ

held

assistance

open

the

record,

from

the

ALJ

in

obtaining the records, and plaintiff’s counsel stated that there was
nothing further to add to the record);

Myers ex rel. C.N. v. Astrue,

993 F. Supp. 2d 156, 163 (N.D.N.Y. 2012) (ALJ satisfied duty to develop
where plaintiff’s counsel “requested and received additional time to
obtain

the

evidence

in

question”

and

then

“submitted

additional

evidence following the hearing . . . which could have led the ALJ
reasonably to conclude that no further records were available or
forthcoming”).
V.

CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the

pleadings (Docket No. 6) is denied and the Commissioner’s motion for
judgment on the pleadings (Docket No. 8) 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:

March 22, 2018
Rochester, New York

-14-