Robinson v. Colvin

Filing 14

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/11/2018. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DARRYL ROBINSON,
Plaintiff,
-vs-

No. 1:16-CV-00835 (MAT)
DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented

by

counsel,

plaintiff

Darryl

Robinson

(“Plaintiff”) brings this action pursuant to Title XVI of the
Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security
(the “Commissioner” or “Defendant”) denying his application for
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, Plaintiff’s motion is
denied, and the Commissioner’s motion is granted.
II.

Procedural History
Plaintiff protectively filed an application for SSI on October

2, 2012, alleging disability as of February 11, 1986 due to a
learning

disability.

Plaintiff’s

application

Administrative
was

initially

Transcript
denied.

(“T.”)
T.

114.

102.
At

Plaintiff’s request, a hearing was held before administrative law

judge (“ALJ”) Eric L. Glazer on June 18, 2014.

T. 89-100.

The ALJ

adjourned the hearing to permit Plaintiff an opportunity to obtain
representation.

Id.

A second hearing was held on October 21,

2014, at which Plaintiff appeared with counsel.

T. 35-88.

At the

hearing, Plaintiff amended his alleged onset date to October 2,
2012.

T. 38.

On February 25, 2015, the ALJ issued an unfavorable decision.
T. 14-34. The Appeals Council denied Plaintiff’s request for review
on August 16, 2016, rendering the ALJ’s determination the final
decision of the Commissioner.

T. 1-5.

This action followed.

III. The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied
the

five-step

sequential

evaluation

set

forth

in

20

C.F.R.

§§ 404.1520, 416.920. At step one of the five-step sequential
evaluation, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since October 2, 2012, the date of his
application.

T. 19.

At step two, the ALJ found that Plaintiff suffered from the
severe impairments of diabetes, learning disorder, mild mental
retardation, and substance abuse disorder.

Id.

The ALJ further

found Plaintiff’s low back pain, hypertension, and anxiety disorder
to be non-severe.

T. 19-20.

At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically

2

equaled the severity of any listed impairment. T. 26. The ALJ
particularly considered sections 1.00, 2.00, 4.00, 5.00, 6.00,
8.00, 11.00, and 12.00 of the listings in reaching this conclusion.
T. 20-23.
Before proceeding to step four, the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to:
lift and carry 20 pounds occasionally and 10 pounds frequently; sit
for six hours in an eight-hour workday; stand or walk for six hours
in an eight-hour workday; push and pull 20 pounds occasionally and
10 pounds frequently; frequently lift overhead and lift in all
other directions with the upper extremities; frequently climb ramps
and stairs and occasionally climb ladders and scaffolds; hear and
understand

simple

oral

instructions

and

communicate

simple

information; perform simple, routine, repetitive tasks with no more
than simple

oral

instructions; communicate

simple information

necessary to convey work particulars, messages, and compliance
requirements; make simple work related decisions; have superficial
contact with supervisors, coworkers, or the public, with such
contact being adequate for the accomplishment of assigned tasks;
respond appropriately to coworkers and the public; and perform no
handling, sale, or preparation of alcoholic beverages or controlled
pharmacological substances.

T. 23.

The ALJ expressly found that

normal work breaks would accommodate any time that Plaintiff would
be off task.

Id.

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

T. 27.

At step five, the ALJ relied on the

testimony and written submissions of a vocational expert (“VE”) to
conclude

that,

considering

Plaintiff’s

age,

education,

work

experience, and RFC, there were jobs that exist in significant
numbers in the national economy that Plaintiff could perform,
including the representative occupations of bakery worker-conveyor
line, housekeeper, and laundry sorter. T. 29-30. Accordingly, the
ALJ found that Plaintiff was not disabled as defined in the Act.
T. 30.
IV.

Discussion
A.
A

Scope of Review
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.” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation
omitted).

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

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[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

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003).
Here,

Plaintiff

argues

that

the

Commissioner’s

final

determination should be reversed or, in the alternative, remanded
for further administrative proceedings because (1) the ALJ failed
to properly incorporate his own findings into his RFC assessment,
and (2) the ALJ improperly substituted his own lay opinion for
competent medical opinion in considering Plaintiff’s IQ scores. For
the reasons discussed below, the Court finds these arguments
without merit.
B.

The ALJ’s RFC Assessment

Plaintiff’s

first

argument

is

that

the

ALJ

failed

to

incorporate all of his own findings into his RFC assessment.

In

particular, Plaintiff contends that the ALJ determined at step two
of the sequential analysis that Plaintiff had moderate limitations
in

concentration,

persistence,

and

pace,

but

that

his

RFC

assessment failed to take this finding into account.
Plaintiff’s argument lacks merit. The Second Circuit has
rejected the argument that an ALJ’s RFC assessment must “explicitly
include [a claimant’s] non-exertional functional limitations.”
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). Instead, RFC
findings “need only afford[ ] an adequate basis for meaningful
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judicial review, appl[y] the proper legal standards, and [be]
supported by substantial evidence such that additional analysis
would be unnecessary or superfluous[.]” Id. (internal quotation
omitted and alterations in original).

As such, an ALJ is not

required to explicitly incorporate a step two finding regarding
concentration, persistence, or pace into his RFC assessment where
he otherwise accounts for those limitations.

See, e.g., Rodriguez

v. Colvin, No. 13-CV-6360 CJS, 2014 WL 3882191, at *17 (W.D.N.Y.
Aug. 7, 2014) (finding that the “ALJ’s decision not to include
specific limitations for attention and concentration in the RFC”
did not require reversal because an RFC finding limiting claimant
to work requiring simple instructions and decisions was “sufficient
to

account

for

[claimant’s]

limitations

in

attention

and

concentration”); Crawford v. Astrue, No. 13-CV-6068P, 2014 WL
4829544, at *23 (W.D.N.Y. Sept. 29, 2014) (finding ALJ adequately
incorporated moderate limitations in mental functioning into RFC by
“restricting [claimant] to jobs that require an individual to
understand, remember and carry out simple instructions”).
In this case, the ALJ’s RFC assessment properly incorporated
Plaintiff’s moderate limitations in concentration, persistence, or
pace by limiting Plaintiff to simple, routine, repetitive tasks, as
well as to understanding only simple instructions and communicating
only simple information.

T. 23.

The ALJ’s RFC assessment was

consistent with the medical evidence of record.

Consultative

psychiatric examiner Dr. Susan Santarpia examined Plaintiff on

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February 29, 2013 and expressly opined that Plaintiff was capable
of understanding simple directions and instructions and performing
simple tasks independently.
that

Plaintiff

concentration.

was
Id.

T. 286.

capable

Dr. Santarpia further opined

of

Similarly,

maintaining
psychiatrist

attention
Dr.

Gary

and
Cohen

evaluated Plaintiff on May 15, 2013, and observed that Plaintiff’s
orientation was normal, his concentration was good, and his memory
was intact.

T. 304.

Dr. Cohen estimated that Plaintiff had an

average IQ and opined that Plaintiff did not have “any psychiatric
conditions

that

need

to

be

worked

on.”

Id.

The

ALJ’s

RFC

assessment (and the hypothetical questions he posed to the VE) were
consistent with this medical evidence and adequately accounted for
Plaintiff’s limitations in concentration, persistence, and pace.
See Peryea v. Comm'r of Soc. Sec., No. 5:13-CV-0173 GTS/TWD, 2014
WL 4105296, at *10 (N.D.N.Y. Aug. 20, 2014) (finding no error in
ALJ’s decision not explicitly include a moderate limitation in
concentration,

persistence

or

pace

in

RFC

assessment

where

consultative physician opined that claimant was capable of simple
work).
For the reasons discussed above, the Court finds no error in
the

ALJ’s

RFC

assessment,

which

adequately

accounted

for

Plaintiff’s moderate limitations in concentration, persistence, or
pace.

As such, the Court finds no basis for reversal or remand of

the ALJ’s decision.

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C.

Consideration of Plaintiff’s IQ Scores

Plaintiff’s second and final argument is that the ALJ relied
on his own lay opinion, and not competent medical opinion, in
considering Plaintiff’s IQ scores. In particular, Plaintiff takes
issue with the ALJ’s observation at the hearing that there was a
variance in Plaintiff’s scores on the different components of the
IQ test, as well as a discrepancy between Plaintiff’s older and
newer

IQ

scores.

discrepancies

T.

41.

The

ALJ

commented

that

the

IQ

“make[] for an interesting case” that he would have

to “consider . . . very carefully . . . with help.”

T. 41.

Plaintiff maintains that these statements indicate that the ALJ
relied on his own lay interpretation of Plaintiff’s IQ scores in
making his RFC assessment.
Plaintiff’s argument is unsupported by the record.

The ALJ’s

decision makes it clear that he relied on Dr. Santarpia’s opinion
in considering the impact of Plaintiff’s IQ score on his ability to
perform work-related functions. See T. 28.
Dr. Santarpia performed intelligence testing on Plaintiff on
February 19, 2013.
exhibited

Plaintiff showed a full scale IQ of 67, but

significant

variance

within

the

subtests,

with

comparatively high perceptual reasoning and verbal comprehension
scores of 81 and 72, respectively.

T. 286.

Dr. Santarpia stated

that, because of this discrepancy, Plaintiff’s full scale score
“should be considered with caution.”

Id.

Dr. Santarpia further

explained that certain aspects of the testing might have been
negatively impacted by Plaintiff’s limited education.
8

Id.

Dr. Santarpioa went on to opine that Plaintiff’s “cognitive
inefficiencies” were “not significant enough to interfere with
[his]

ability

specifically

to

function

stated

that

on

a

daily

Plaintiff

basis.”

could

T.

287.

understand

She

simple

directions and instructions, perform simple tasks independently,
maintain attention and concentration, maintain a regular schedule,
learn new tasks, make appropriate decisions, relate adequately with
others, and appropriately deal with stress within normal limits.
T. 286-87.

The ALJ specifically relied upon Dr. Santarpia’s

opinion, which he afforded great weight, in considering what
functional

limitations

difficulties.

resulted

from

Plaintiff’s

cognitive

T. 28. The ALJ further noted that limitations

assessed by Dr. Santarpia were consistent with the ALJ’s RFC
assessment.
Accordingly, the record shows that the ALJ did not rely on his
own lay opinion in considering Plaintiff’s cognitive abilities (as
evidenced by his IQ score), but instead properly relied on the
competent medical opinion of Dr. Santarpia. It is well-established
that

“the

opinion

can

constitute

substantial evidence supporting an ALJ’s decision.”

Suarez v.

Colvin,

(internal

102

F.

of

Supp.

a

3d

consultative

552,

577

examiner

(S.D.N.Y.

2015)

quotation omitted). As such, the Court finds no basis for reversal
or remand in the ALJ’s consideration of Plaintiff’s IQ scores.
V.

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

the pleadings (Docket No. 9) is denied.
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The Commissioner’s motion

for judgment on the pleadings (Docket No. 10) is granted. 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:

July 11, 2018
Rochester, New York.

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