Jeffords v. Berryhill
Filing
22
DECISION AND ORDER denying 15 Motion for Judgment on the Pleadings; granting 18 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close the case. SO ORDERED. Issued by Hon. H. Kenneth Schroeder Jr. on 11/27/2018. (HKG)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANGELIA MARIE JEFFORDS,
Plaintiff,
v.
DECISION AND ORDER
17-CV-77
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Angelia Marie Jeffords, (“Plaintiff”), represented by counsel, brings
this action pursuant to the Social Security Act (“the Act”) seeking review of the final
decision of the Commissioner of Social Security (“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’ motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Dkt. Nos. 15, 18.
BACKGROUND
A.
Procedural History
Plaintiff filed an application for SSI alleging disability since January 1,
2007, due to “a stomach problem” and Meniere’s disease. Tr. at 63, 87-88.1 Plaintiff’s
application was denied, and she requested a hearing before an Administrative Law
Judge (“ALJ”). Tr. at 59-64, 67-68. Following a hearing, ALJ Robert T. Harvey issued
1
“Tr.” refers to the Social Security Transcripts which appear at Docket No. 7 (Transcript pages 1 through
1025), and Docket No. 14 (Transcript pages 1026 through 1073).
an unfavorable decision on September 28, 2009. Tr. at 10-22. After the Appeals
Counsel denied Plaintiff’s request for review, she appealed the ALJ’s decision to the
United States District Court for the Western District of New York. Tr. at 499-503. By
Decision and Order entered on September 5, 2012, the Honorable William M. Skretny
remanded plaintiff’s case to the Social Security Agency (“Agency”) for further
proceedings. Tr. at 504-18; 519-22; Jeffords v. Astrue, 11-CV-620-WMS, Dkt No. 17.
Specifically, Judge Skretny found that remand was warranted because the ALJ’s
decision relied “on records, reports, or opinions that themselves [did] not include any
discussion of the plaintiff’s limitations and ability to perform work-related activities . . . .”
Jeffords v. Astrue, 11-CV-620-WMS, Dkt. No. 17, p. 13.
ALJ Harvey conducted a second hearing on May 9, 2013, at which plaintiff
changed her alleged onset date to January 1, 2010. Tr. at 465-67. On June 11, 2013,
ALJ Harvey issued a second decision concluding that plaintiff was not disabled within
the meaning of the Act. Tr. at 443-57. The Appeals Council denied Plaintiff’s request
for review and Plaintiff once again appealed the ALJ’s decision to the district court. Tr.
at 436-39, 442. By stipulation of the parties, the matter was remanded to the Agency
for further administrative proceedings. Tr. at 822, 823-29.
2
ALJ William M. Weir held a hearing on January 8, 2016, at which plaintiff,
who was represented by counsel, as well as a vocational expert and a medical expert testified.
Tr. at 1026-73. On November 21, 2016, ALJ Weir issued a decision finding that Plaintiff was not
disabled within the meaning of the Act from January 1, 2010, through the date of his decision.
Tr. at 733-52. This action followed. Dkt. No. 1.
The issue before the Court is whether the Commissioner’s decision that Plaintiff
was not disabled is supported by substantial evidence and free of legal error.
B.
The ALJ’s Decision
Applying the familiar five-step sequential analysis, as set forth in the administrative
regulations created by the Social Security Administration,2 the ALJ found that: (1) Plaintiff did
not engage in substantial gainful activity since January 1, 2010, her alleged onset date; (2) she
had a balance disturbance; a depressive disorder, Not Otherwise Specified; and cephalgia
(headache), each of which constitutes a severe impairment, as well as diabetes mellitus and
hypertension, which were well-controlled with medication; (3) her impairments did not meet or
equal the Listings set forth at 20 C.F.R. § 404, Subpt. P, Appx. 1; (4) notwithstanding her
limitations, Plaintiff retained the residual functional capacity (“RFC”) to perform light work with
additional limitations; specifically, Plaintiff can lift and carry up to twenty pounds occasionally
2
See 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y. Aug.
8, 2008) (detailing the five steps).
3
and ten pounds frequently, had no limitations in her ability to sit, stand or walk, but cannot climb
ropes, ladders or scaffolds, cannot work at unprotected heights or with dangerous machinery,
cannot operate motor vehicles as a work duty, can perform unskilled work with no supervisory
duty, no independent decision making and no quota production work; and (5) considering
Plaintiff’s RFC and vocational factors of age, education, and work experience, she could perform
jobs that exist in significant numbers in the national economy, including the jobs of cashier and
cafeteria attendant. Tr. at 738-44. Accordingly, the ALJ concluded that Plaintiff was not disabled
under the Act.
DISCUSSION
A.
Scope of Review
A federal court should set aside an ALJ’s decision to deny disability benefits only
where it is based on legal error or is not supported by substantial evidence. Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998). “Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Green-Younger v.
Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted).
B.
ALJ’s Treatment of Plaintiff’s Impairments
Plaintiff contends that the ALJ erred in failing to consider evidence related to her
other impairments including sleep apnea, carpal tunnel syndrome, irritable bowel syndrome, and
hearing loss, and to properly consider the combined effects of these impairments under Subpart
4
P, Appendix 1. Dkt. No. 15-1, p. 17. Plaintiff cites to various records documenting Plaintiff’s
reports that she suffered from “chronic sinusitis” for which she used a spray (Tr. 363), “right heel
pain consistent with chronic plantar fasciitis” or “pins and needles” (Tr. at 639, 699), as well as
medical tests revealing that she has “chronic cholecystitis” and “cholesterolosis” of the
gallbladder (Tr. at 677-78).3
As an initial matter, this Court notes that Plaintiff bears the burden to
establish that her impairments were severe in that they “significantly limit [her] physical or mental
ability to do basic work activities.” 20 C.F.R. §§ 404.1521, 416.921. While Plaintiff may have
suffered intermittent or even chronic symptoms, such as sinus infections or right heel pain, this
alone does not show that those symptoms had any impact on her ability to work. A mere
diagnosis does not support a finding of disability, absent evidence of how severe claimant’s
symptoms are or how functionally limiting a claimant’s condition is. Prince v. Astrue, 514 F.
App’x 18, 20 (2d Cir. 2013). Further, an alleged functional impairment must not only be severe
but must also meet the 12-month durational requirement. Barnhart v, Walton, 535 U.S. 212, 219
(2002); see also Social Security Ruling 82-52, p. 106 (cum. ed. 1982) (stating that “[i]n
considering ‘duration,’ it is the inability to engage in [substantial gainful activity] that must last
the required 12-month period”). Plaintiff’s cited evidence does not show that the symptoms of
3
Plaintiff also cites to the entire social security transcript for the proposition that she had “limiting effects and
triggers” such as fatigue and light sensitivity. Dkt. No. 15-1.
5
which she complained were severe or long lasting enough to disturb the ALJ’s conclusion that
Plaintiff could perform light work with certain restrictions.
Plaintiff’s own testimony belies the argument that these ancillary or lesser
conditions caused her to be more restricted in her ability to do work. Plaintiff participated in three
administrative hearings related to her disability, in 2009, 2013 and 2016. In 2009, Plaintiff
explicitly testified that her only medical conditions were headaches, dizziness, high blood
pressure, hearing loss, diabetes and in 2013, depression.4 Tr. at 38, 474-77. At her July 2009
hearing, Plaintiff denied having any gastrointestinal problems, Tr. at 36, effectively foreclosing
any finding that irritable bowel syndrome interfered with her physical ability to do work. During
her January 2016 hearing, Plaintiff’s counsel conceded that her diabetes was not severe, and
her obesity did not cause functional problems. Tr. at 1035-37; see Zabala v. Astrue, 595 F.3d
402, 408 (2d Cir. 2010) (holding that an attorney’s conduct is imputed to the claimant, absent
any evidence that she was coerced or deceived). At that time, Plaintiff’s counsel characterized
her carpal tunnel syndrome as a “residual” or “minor issue.” Tr. at 1036-37. Plaintiff herself
testified that to control her carpal tunnel symptoms, she simply wore a brace “when [she’s] using
[her] right arm a lot,” but she could “lift a gallon of milk most of the time.” Tr. at 1063. Counsel’s
representations and Plaintiff’s testimony are wholly consistent with the ALJ’s finding that the only
4
Plaintiff did not claim to suffer from depression at her 2009 hearing but only later at her 2013 hearing. Tr. at 38,
474-77.
6
conditions which impaired Plaintiff’s ability to work were a balance disturbance, a depressive
disorder, and cephalgia.
C.
The ALJ’s Evaluation of Medical and Opinion Evidence
Plaintiff argues that the ALJ erred when he afforded “limited weight” to the
opinions of Drs. Smith and Pathak, who treated Plaintiff, in favor of the medical expert, Dr.
Haddon Alexander, who did not. Dkt. No. 15-1, pp. 20-21. Contrary to Plaintiff’s argument, an
ALJ is entitled to rely on the findings of non-examining physicians when determining a claimant’s
RFC under certain circumstances. See 20 C.F.R. §§ 404.1527(e)(2)(iii), 416.927(e)(2)(iii);
Hancock v. Barnhart, 308 F. App’x 520, 521 (2d Cir. 2009) (holding that opinions of medical
experts may constitute substantial evidence in support of an ALJ’s determination). Provided that
it is supported by substantial evidence, the opinion of a non-examining medical expert can even
override that of a treating source. Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
This Court finds that the ALJ did not commit reversible error in weighing the
opinions of Drs. Smith, Pathak, and Alexander. As a practical matter, Dr. Smith’s 2009 and Dr.
Pathak’s 2007 reports, Tr. at 242-44, 411-16, both predate Plaintiff’s amended alleged onset
date of January 1, 2010. In this regard, their opinions were of little value in assessing plaintiff’s
functional capacity during the alleged period of disability. McKinstry v. Astrue, 511 F. App’x 110,
112 (2d Cir. 2013) (holding that the ALJ’s failure to discuss a treating source statement from
outside of the relevant period was harmless). As Plaintiff’s disability is alleged to have lasted
7
several years, the ALJ reasonably relied on Dr. Alexander’s opinion “as he is the only person to
have evaluated the entire longitudinal record and was subject to cross-examination by the
claimant’s representative as well as by the Administrative Law Judge.” Tr. at 742-43.
Plaintiff does not cite to anything in Drs. Smith’s and Pathak’s
reports that conflicts with the ALJ’s conclusion that Plaintiff could perform light work with some
restrictions. In fact, Dr. Smith never opined on Plaintiff’s workplace limitations. Tr. at 411-16;5
see Gray v. Astrue, No. 06–cv–0456, 2009 WL 790942, at *8 (N.D.N.Y. Mar. 20, 2009) (holding
that “[t]he opinion of a treating physician is not entitled to controlling weight where the opinion is
not a functional analysis”); George v. Bowen, 692 F.Supp. 215, 219 (S.D.N.Y. 1988) (concluding
that the treating physician’s report was not entitled to controlling weight as it contained no
assessment of plaintiff's ability to lift and carry weight). Dr. Smith also suggested that Plaintiff’s
symptoms could be controlled by medication, a conclusion which was confirmed by treating
sources during the alleged disability period. For example, before Plaintiff stopped treating with
him in June 2009, Dr. Smith noted that Plaintiff’s headache and dizziness were significantly
improved with therapeutic doses of Lamictal. Tr. at 403. On March 1, 2010 (during the alleged
period of disability), FNP Betker noted that while taking one Lamictal a day, Plaintiff was “doing
well,” had tolerable dizziness, and reported no headaches. Tr. at 693. In his opinion, the ALJ
5
Notably, the ALJ gave “great weight” to the “Medical Assessment of Ability to Work-Related Activities” rendered
by a different treating source, FNP Kimberly Betker, “as it is consistent with the treatment record as well as with
the medical expert’s testimony.” Tr. at 417-19, 743.
8
discussed both Dr. Smith and FNP Betker’s records, and noted the successful use of Lamictal
in Plaintiff’s treatment.
Dr. Pathak authored his report in November 2007, over two years before
Plaintiff’s alleged onset date. Tr. at 246. As such, it was not relevant to what work Plaintiff could
perform between January 2010 and November 21, 2016. Even if the report was timely, Dr.
Pathak stated that Plaintiff’s impairments were “variable” and she was capable of low stress
jobs. Tr. at 245. This was consistent with the ALJ’s finding that Plaintiff could perform light work
with some restrictions. For these reasons, this Court finds that the ALJ committed no error in
his assessment of the medical opinions.
C.
The Remand Order from the Appeals Council
Plaintiff argues that the ALJ failed to develop the medical record as the
Appeals Counsel directed and therefore, his conclusion that Plaintiff could perform light work
with some restrictions was not supported by substantial evidence. Dkt. No. 15-1, p. 25. In
remanding this case on September 9, 2015, the Appeals Counsel directed the ALJ to clarify the
relevant period under review; if necessary, to get evidence from a medical expert to clarify
claimant’s impairments; to further evaluate claimant’s mental impairments; to give further
consideration to claimant’s maximum residual functional capacity and subjective complaints; and
to obtain supplemental evidence from a vocational expert. Tr. at 827.
9
This Court finds that the ALJ met each of these requirements by identifying
Plaintiff’s alleged amended onset date to January 1, 2010 (Tr. at 738); having a medical expert
review Plaintiff’s medical record in its entirety and render an opinion regarding her impairments
(Tr. at 742-43); discussing plaintiff’s history of depression (Tr. at 738, 742); assessing Plaintiff’s
residual functional capacity and subjective complaints (Tr. at 740-42); and getting testimony from
a vocational expert (Tr. at 744). This Court also finds, contrary to Plaintiff’s complaint, that the
medical record was complete and contained sufficient information for the ALJ to draw reliable
conclusions about her residual functional capacity. Plaintiff’s medical records are voluminous.
And at the close of the final hearing, Plaintiff’s counsel stated that she had no other records to
submit. Tr. at 1029. “[W]here there are no obvious gaps in the administrative record, and where
the ALJ already possesses a ‘complete medical history,’ the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72,
79 n.5 (2d Cir. 1999); Micheli v. Astrue, 501 F. App'x 26, 30 (2d Cir. 2012) (holding that an ALJ
was not required to recontact claimant’s treating physician, despite discounting his opinion,
where the ALJ considered the 500-page record already before him).
Accordingly, this Court
finds that there was no need for the ALJ to supplement Plaintiff’s medical records and his
conclusion that she was not disabled within the meaning of the Act is supported by substantial
evidence.
10
CONCLUSION
For the foregoing reasons, the Court finds that the Commissioner’s decision
is not legally flawed and is based on substantial evidence.
Accordingly, IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment
on the Pleadings (Docket No. 15) is DENIED.
FURTHER, that Defendant’s Cross-Motion for Judgment on the Pleadings
(Docket No. 18) is GRANTED.
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
DATED:
Buffalo, New York
November 27, 2018
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?