Castro v. Colvin

Filing 25

DECISION AND ORDER denying 13 Plaintiff's Motion for Judgment on the Pleadings; granting 19 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/7/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
CORYN ANITA CASTRO,
Plaintiff,

1:16-CV-00989-MAT
DECISION AND ORDER

-v-

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
____________________________________
INTRODUCTION
Coryn Anita Castro (“Plaintiff”), represented by counsel,
brings this action under Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner” or “Defendant”)
denying her applications for Disability Insurance Benefits (“DIB”)
and

Supplemental

Security

Income

(“SSI”).

The

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). 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.
PROCEDURAL BACKGROUND
On

December

19,

2011,

Plaintiff

protectively

filed

applications for DIB and SSI, alleging disability as of January 5,
2010

due

to

bipolar

disorder

and

lower

back

problems.

Administrative Transcript (“T.”) 224-33. The claims were initially
denied on March 23, 2012. T. 86-87. Plaintiff requested a hearing
before an Administrative Law Judge (ALJ), which was scheduled for

May

22,

2012.

Plaintiff

did

not

appear

at

the

hearing

and

subsequently her representative, Courtney L. Quinn, withdrew her
representation. T. 91. ALJ Stanley A. Moskal, Jr., presided over
the May 22, 2012, hearing and issued a dismissal on August 14,
2013. T. 88-2-92. The case was remanded by the Appeals Council,
finding good

cause

for

Plaintiff’s

failure

to

appear

at

her

hearing, due to a typographical error in her address to which the
hearing notice was sent. Returned mail indicated Plaintiff had not
received notices regarding the hearing, and the record did not
reflect Plaintiff’s representative informed her of the hearing
date. T. 93-94.
The Appeals Council directed the ALJ to hold another hearing,
which was held on January 15, 2015, in Buffalo, New York. Plaintiff
appeared pro se and a vocational expert (“VE”) also testified.
T. 38-64. The ALJ issued an unfavorable decision on June 29, 2015.
T. 11-37. Plaintiff appealed the decision to the Appeals Council
(“AC”), which denied Plaintiff’s request for review on October 24,
2016,

making

the

ALJ’s

decision

the

final

decision

of

the

Commissioner. T. 1-5. This action followed.
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).

Initially, the ALJ found that

Plaintiff met the insured status requirements of the Act through
June 30, 2012.

T. 16.

2

At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
January 5, 2010, the alleged onset date. Id. Although there was an
indication that Plaintiff worked as a babysitter during the period
at issue, the ALJ found this work activity did not rise to the
level of substantial gainful activity. Id.
At

step

two,

the

ALJ

determined

that

Plaintiff

had

the

following “severe” impairments: back pathology; neck impairment;
bipolar disorder;

and

anxiety disorder.

T.

17.

The

ALJ also

determined Plaintiff did not have a marijuana abuse condition and
that her headaches and hypertension had no significant impact on
Plaintiff’s work-related functional abilities.

Accordingly, the

ALJ found these additional impairments to be non-severe. T. 17-18.
At step three, the ALJ found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. T. 18.
Before proceeding to step four, the ALJ found that Plaintiff
retained the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), with the
following additional limitations: can never climb ladders, ropes or
scaffolds. T. 20.
At step four, the ALJ concluded that Plaintiff was capable of
performing past relevant work as an office helper. T. 29. In the
alternative, at step five, the ALJ relied on the VE’s testimony to

3

find that there are other jobs existing in the national economy
Plaintiff is also able to perform, including the representative
occupations of routing clerk and photocopy machine operator. T. 30.
The ALJ accordingly found that Plaintiff was not disabled as
defined in the Act. T. 31.
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). The
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 substantial evidence, shall be
conclusive”). “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)
(quotation

omitted).

The

reviewing

court

nevertheless

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). “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,

4

179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984)).
DISCUSSION
Plaintiff contends that remand of this matter is warranted
because the ALJ inappropriately used his own opinion as to the
definition of the term “moderate” in his posed hypotheticals and
resulting RFC assessment of Plaintiff. This, Plaintiff argues,
elicited testimony from the VE that does not constitute substantial
evidence to support the ALJ’s steps four and five findings. For the
reasons discussed below, the Court finds Plaintiff’s argument is
without merit and affirms the Commissioner’s final determination.
I.

The ALJ Permissibly Defined the Term “Moderate”
Plaintiff argues the ALJ erred in his development of testimony

from the VE by including his own opinion as to the definition of
the term “moderate,” improperly assuming that the opining doctors’
usage of the term “moderate” corresponded to his own presented
definition. Plaintiff contends this error was not harmless and thus
warrants remand. The Court disagrees, for the reasons set forth
below.
A. Usage of the Term “Moderate” in the Medical Opinions of
Record
The record contains five medical opinions: the opinion of
consultative psychiatric evaluator, Dr. Thomas Ryan (T. 325-28);
the opinion of consultative internal medicine examiner, Dr. Gautam
Arora (T. 329-32); the opinion of reviewing medical consultant,
Dr.

J.

Echevarria

(T.

337-54);
5

the

opinion

of

consultative

psychiatric evaluator, Dr. Janine Ippolito (T. 532-39); and the
opinion of consultative internal medicine examiner, Dr. Samuel
Balderman

(T.

571-81).

In

his

decision,

the

ALJ

assigned

significant weight to all five of the medical opinions. T. 29.
Doctors Ryan, Arora, Echevarria, and Ippolito all used the
term “moderate” in their medical opinions. Specifically, Dr. Ryan
opined Plaintiff “may have moderate difficulty performing complex
tasks, making adequate decisions, at times relating with others,
and dealing with stress.” T. 327-28. Dr. Arora opined Plaintiff had
“[m]oderate

limitation

of

bending,

twisting,

lifting,

and

carrying.” T. 331.
In a check-the-box mental RFC assessment form, Dr. Echevarria
opined Plaintiff had moderate limitations in her abilities to:
understand and remember detailed instructions; carry out detailed
instructions; maintain attention and concentration for extended
periods; perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; work in
coordination with or proximity to others without being distracted
by

them;

complete

a

normal

workday

and

workweek

without

interruptions from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest
periods; interact appropriately with the general public; ask simple
questions or request assistance; accept instructions and respond
appropriately

to

coworkers

peers

or

criticism
without

from

supervisors;

distracting

6

them

get
or

along

with

exhibiting

behavioral extremes; maintain socially appropriate behavior and to
adhere to basic standards of neatness and cleanliness; and respond
appropriately to changes in the work setting. T. 337-38.
Dr. Ippolito opined Plaintiff could “relate adequately with
others

and

appropriately

deal

with

stress

with

moderate

limitation.” T. 535. Dr. Ippolito also completed an assessment of
Plaintiff’s mental work-related activities, in which she opined
Plaintiff had moderate limitations with her abilities to: interact
appropriately

with

the

public;

interact

appropriately

with

supervisors; interact appropriately with co-workers; and respond
appropriately to usual work situations and to changes in a routine
work setting. T. 538. This assessment defined the term “moderate”
to mean “[t]here is more than a slight limitation in this area but
the individual is still able to function satisfactorily.” T. 537.
B.

The ALJ’s Definition of the Term “Moderate”

Plaintiff

contends

that

at

the

hearing,

when

posing

hypotheticals to the VE, the ALJ defined “moderate” to mean “there
is a moderate limitation in this area, but the individual is still
able to function satisfactorily and there are no repeated episodes
of deterioration each of extended duration.” See T. 57. Plaintiff
further argues that this “very specific” definition of the term
moderate

does

not

correlate

with

the

opinions

of

Dr.

Ryan,

Dr. Ippolito, and Dr. Echevarria. The Court disagrees.
As an initial point, the Court finds Plaintiff misinterpreted
the

transcript.

While

the

Plaintiff’s

7

version

of

the

ALJ’s

definition

for

“moderate”

is

an

accurate

quotation

from

the

transcript, reading the full quotation in context, the Court finds
that the ALJ was referencing two separate considerations - one
being that “moderate” should be defined as the ability to function
satisfactorily despite the limitations and second being that the
claimant has had no repeated episodes of deterioration of extended
duration. This reading of the ALJ’s definition is supported by the
record in multiple ways. First, in his RFC finding, the ALJ
specifically defined “moderate” to mean “moderate limitations in
this area but the person is still able to satisfactorily function”
(T. 20)

and

second, this

definition

aligns

exactly

with the

“moderate” definition provided in Dr. Ippolito’s medical source
statement T. 537), which the ALJ assigned great weight.
Moreover,

even

assuming

arguendo

that

Plaintiff’s

interpretation of the transcript were correct, it is within the
ALJ’s discretion to define the term “moderate” when developing the
RFC assessment. See Huber v. Berryhill, No: 16-CV-656-FPG, 2017 WL
3267572, at *4 (W.D.N.Y. Aug. 1, 2017) (finding that “it was within
the ALJ's discretion to define the term ‘moderate.’”). Moreover,
“it is not required that the RFC assessment ‘perfectly correspond’
with [a doctor’s] opinion.” Id. (quoting Matta v. Astrue, 508 F.
App’x 53, 56 (2d Cir. 2013). Here, even accepting Plaintiff’s
interpretation of the ALJ’s definition, the first half of the ALJ’s
definition

corresponds

with

the

definition

provided

in

Dr. Ippolito’s assessment. The remaining medical opinions provided

8

no

definition

of

the

term

“moderate,”

leaving

the

ALJ

to

permissibly interpret its meaning. See Huber at *3 (“Although it is
difficult to precisely define the term ‘moderate,’ ‘[i]f it is
possible

...

Commissioner

that
or

a

prerogative
qualified

lies

expert

exclusively

witness,

not

with
a

the

reviewing

court.”) (quoting Reynolds v. Colvin, No. 3:13-cv-396(GLS/ESH),
2014 WL 4184729, at *5 (N.D.N.Y. Aug. 21, 2014)).
no

abuse

of

discretion

in

the

ALJ’s

The Court finds

definition

of

the

term

“moderate,” which was consistent with the medical opinions of
record.
C.

The Hypotheticals Posed to the Vocational Expert were
Supported by Substantial Evidence and Accurately Reflect
Plaintiff’s Limitations and Capabilities

Plaintiff further argues the VE’s testimony cannot constitute
substantial evidence to support the ALJ’s steps four and five
findings,

because it

was

based

on

the ALJ’s

“very

specific”

definition of “moderate.” This argument is without merit.
At step five of the sequential evaluation process (20 C.F.R.
§§ 404.1520(g), 416.920(g))), the ALJ must determine whether the
claimant

is

significant

able

to

numbers

do

any

in

the

other

work

national

for

which

economy,

there

taking

are
into

consideration her residual functional capacity, age, education, and
work experience. An ALJ may rely on a VE’s testimony to make this
determination, so long as the hypothetical(s) posed to the VE are
supported by substantial record evidence and accurately reflect the

9

limitations and capabilities of the claimant. McIntyre v. Colvin,
758 F.3d 146, 151 (2d Cir. 2014)(citations omitted).
As noted above, the ALJ posed two hypotheticals to the VE at
the hearing; the second hypothetical included the ALJ’s definition
of

“moderate.”

limitations

The

and

VE

testified

background

that

an

described

individual

in

the

with the

ALJ’s

second

hypothetical could perform the past relevant work of office helper.
In

addition

to

that

past

work,

the

VE

testified

that

the

hypothetical individual could also perform the jobs of routing
clerk, and photocopying machine operator. T. 56-59.
A review of both the RFC finding and the second hypothetical
posed to the VE at the hearing (which became the RFC finding)
reveal

the

ALJ

took,

nearly

verbatim,

the

limitations

Dr. Echevarria marked as “moderate” on Plaintiff’s Mental RFC
Assessment. Compare T. 337-38 with T. 20 and T. 58-59. This strong
reliance on a medical opinion, which was afforded great weight,
constitutes

the

substantial

evidence

required

to

support

a

permissible RFC assessment and findings at steps four and five.
Moreover,

as

previously

noted,

the

ALJ

used

language

almost

identical to Dr. Ippolito’s definition of “moderate” when applying
the term to both the second hypothetical and the RFC finding. This
consistency with Dr. Ippolito’s opinion further supports the ALJ’s
step four and five findings that Plaintiff is capable of performing
both her past relevant work and other jobs available in the
national economy and thus, is not disabled.

10

For the reasons set forth above, the Court finds no error in
the ALJ’s use of the term “moderate” in his posed hypotheticals and
resulting RFC finding. The Court further finds the testimony
elicited from the VE constitutes substantial evidence in support of
the ALJ’s steps four and five findings. The Court accordingly finds
that remand is not warranted.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 13) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 19) 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
_____________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

August 7, 2018
Rochester, New York

11