McLeod v. Berryhill
Filing
20
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; and granting 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/11/2018. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
FRED M. MCLEOD,
Plaintiff,
1:17-CV-00262(MAT)
DECISION AND ORDER
-vNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
____________________________________
INTRODUCTION
Fred M. McLeod (“Plaintiff”), represented by counsel, brings
this action under Title II of the Social Security Act (“the
Act”),
seeking
Berryhill,
review
Acting
Commissioner”
or
of
the
Commissioner
“Defendant”),1
final
of
decision
Social
denying
her
of
Nancy
Security
application
A.
(“the
for
disability insurance benefits (“DIB”). The 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, the Commissioner’s
decision
is
affirmed,
Plaintiff’s
motion
is
denied,
and
Defendant’s motion is granted.
1
Nancy A. Berryhill is no longer serving in this position. The Clerk of Court
therefore is directed to substitute “The Commissioner of Social Security” for
“Nancy A. Berryhill, Acting Commissioner of Social Security” as the defendant in
this action. See 20 C.F.R. § 422.210(d).
PROCEDURAL BACKGROUND
On March 13, 2013, Plaintiff protectively filed for DIB,
alleging
disability
beginning
June
1,
2010.
(Administrative
Transcript (“T.”)2 109, 195-96). The claim was initially denied
on August 12, 2013, and Plaintiff timely requested a hearing.
(T. 115-24). A hearing was conducted on May 1, 2015 in Buffalo,
New York by Administrative Law Judge Donald T. McDougall (“the
ALJ”). (T. 48-100). Plaintiff appeared with his attorney and
testified. A vocational expert (“VE”) also testified.
The
ALJ
promulgated
by
applied
the
the
five-step
Commissioner
for
sequential
evaluation
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
since the alleged onset date. (T. 14). At step two, the ALJ found
Plaintiff had the severe impairments of vertigo and vertebrogenic
disorder. (T. 15). At step three, the ALJ found that Plaintiff
does not have an impairment or combination of impairments that
meets or medically equals the severity of any impairment in the
Listing of Impairments. (T. 16). Before proceeding to step four,
the ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform light work as defined in C.F.R. § 404.1567(b)
with certain non-exertional restrictions. (T. 17). At step four,
2
Citations to “T.” refer
administrative record.
to
pages
in
the
transcript
of
the
certified
the ALJ determined that Plaintiff is unable to perform any of his
past relevant work as a swimming pool servicer and a garage
supervisor. (T. 21). At step five, the ALJ found that Plaintiff
can perform the requirements of representative occupations such
as
cashier
(Dictionary
No.
201.462-010,
No.
237.367-018,
of
unskilled,
unskilled,
Occupational
light),
light),
Titles
information
and
bench
(“DOT”)
clerk
(DOT
assembler
(DOT
No. 706.684-042, unskilled, light), with 335,000; 170,000; and
185,000
positions,
respectively,
in
the
national
economy.
(T. 21-22).
The ALJ issued an unfavorable decision on September 22, 2015.
(T.
9-27).
Plaintiff
timely
requested
review
of
the
ALJ’s
decision by the Appeals Council. (T. 7-8). The Appeals Council
denied Plaintiff’s request for review on March 6, 2017, making
the
ALJ’s
decision
the
final
decision
of
the
Commissioner.
(T. 1-6). Plaintiff instituted a civil action in this Court on
March 27, 2017. (Docket No. 1).
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
3
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
Commissioner’s
substantial
record.
findings
evidence,
See
42
U.S.C.
to
any
fact,
“as
shall
be
§
405(g)
if
(the
supported
conclusive”).
by
“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, 179 (2d Cir. 2003) (citing Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
Plaintiff
following
contends
reasons:
(1)
that
the
remand
ALJ
is
warranted
substituted
his
own
for
the
medical
judgment for that of a physician when determining Plaintiff’s
RFC;
and
(2)
the
ALJ
failed
to
develop
the
record
by
not
obtaining another medical opinion in addition to the one issued
4
by consultative physician Dr. John Schwab. Defendant argues that
the ALJ did not commit legal error and that his determination was
supported by substantial evidence and should be affirmed. For the
reasons discussed below, the Court finds Plaintiff’s arguments to
be without merit and affirms the ALJ’s decision.
I.
Erroneous Weighing of the Consultative Physician’s Opinion
and Improper Substitution of the ALJ’s Lay Opinion for That
of a Medical Expert (Plaintiff’s Argument 1)
Plaintiff argues that the ALJ erroneously substituted his
own medical
rejecting
judgment
the
for
opinion
that
of
of
a
physician
consultative
by
examiner
effectively
Dr.
Schwab.
Dr. Schwab performed a consultative examination of Plaintiff on
August
5,
2013,
at
the
Commissioner’s
request.
(T.
251-53).
Dr. Schwab reported that Plaintiff appeared to be in no distress,
displayed a normal gait and station, could walk on his heels and
toes without difficulty and could squat fully, did not use an
assistive device, needed no assistance getting on or off the
examination table, and rose from his chair without difficulty.
(T. 252). Clinically, Plaintiff exhibited full grip strength;
full range of motion in his cervical spine, hips, knees, ankles,
shoulders, elbows, forearms, wrists, and fingers; had full muscle
strength with no muscle atrophy or sensory abnormality; and had
normal reflexes. As to his thoracic and lumbar spine, he had
5
flexion to
50
degrees,
extension
to zero
degrees,
and
right
lateral flexion to 20 degrees, but he declined to perform a
rotational
maneuver.
(Id.).
The
results
of
the
straight-leg
raising (“SLR”) test were positive in the supine position at
60 degrees on the right and 40 degrees on the left but were not
confirmed in the sitting position. (Id.). Plaintiff displayed no
evidence of spinal or paraspinal tenderness or spasming, and he
had no trigger points. Dr. Schwab assessed low back pain, status
post three surgeries. (Id.). For his medical source statement,
Dr.
Schwab
opined
that
Plaintiff
was
mildly
restricted
in
bending, lifting, and carrying. (T. 253).
The
ALJ
assigned
“significant
opinion.
(T.
20).
ALJ
The
examination
reflected
“generally
consistent”
noted
“only
that
mild
with
weight”
Dr.
to
Dr.
Schwab’s
Schwab’s
clinical
abnormalities”
the
records
from
and
was
treating
neurosurgeon Dr. Loubert Suddaby, who documented diminished ankle
reflexes but negative SLR test results and normal muscle tone,
bulk, and power. (T. 20 (citing Exhibit (“Ex.”) C1F(2), T. 244)).
Plaintiff
Dr.
Schwab’s
argues
opinion
that
that
he
the
had
ALJ
effectively
only
mild
rejected
restrictions
in
bending, lifting, and carrying since the ALJ assessed a “much
more
restrictive
RFC
finding,”
6
with
“far
more
than
mild
limitations.”
Br.”)
at
(See
15).
Plaintiff’s
Plaintiff
Brief
contends
(Docket
that
the
No.
ALJ
9-1)
(“Pl’s
impermissibly
“played doctor” by substituting his own lay opinion for that of a
medical expert. (See id.).
Plaintiff
is
correct
that
an
ALJ
“cannot
arbitrarily
substitute his own judgment for competent medical opinion. . . .
[W]hile an [ALJ] is free to resolve issues of credibility as to
lay testimony or to choose between properly submitted medical
opinions, he is not free to set his own expertise against that of
a physician who [submitted an opinion to or] testified before
him.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting
McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795,
799
(2d
Cir.
1983)
(internal
quotation
marks
and
citations
omitted in original)). However, Plaintiff has not explained how
Dr. Schwab’s opinion that Plaintiff has no exertional limitations
and only mild limitations in lifting, bending, and carrying is
inconsistent
with
the
ALJ’s
determination
that
Plaintiff
is
limited to light work with a number of detailed, non-exertional
restrictions. (T. 17).
RFCs
for
a
range
of
Courts in this Circuit have found that
light
work
were
supported
by
physician
assessments that are more restrictive than Dr. Schwab’s in this
case.
See,
e.g.,
Nelson
v.
Colvin,
7
2014
WL
1342964,
at
*12
(E.D.N.Y.
2014)
(finding
that
“the
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)
(summary
order)
(“[T]he
ALJ’s
determination
that
Lewis
could
perform ‘light work’ is supported by Dr. Datta’s assessment of
‘mild limitations for prolonged sitting, standing, and walking,’
and
direction
that
Lewis
should
avoid
“heavy
lifting,
and
consistently
rejected
the
carrying.’”) (citation to record omitted)).
Courts
in
this
Circuit
have
contention, urged by Plaintiff here, that “the fact that the
ALJ's
RFC
assessment
did
not
perfectly
match
[an
examining
medical source]’s opinion, and was in fact more restrictive than
that opinion,
is
not grounds
for
remand.”
Castle
v.
Colvin,
No. 1:15-CV-00113(MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8,
2017) (citations omitted); Richardson v. Colvin, No. 15-CV-6276
CJS, 2016 WL 3179902, at *8 (W.D.N.Y. June 8, 2016) (rejecting
claimant’s argument that ALJ improperly substituted his opinion
for
competent
perform
light
medical
work;
opinion
record
in
determining
contained
8
claimant
examining
could
physician’s
opinion that claimant has a “mild limitation” on lifting and
carrying).
The ALJ specifically considered Plaintiff’s documented and
stated difficulties with walking by including the limitation that
he
must
be
able
to
change
positions
at
least
every
thirty
minutes. His limitations in bending, lifting, and carrying were
addressed by including the limitations of not being required to
bend more than forty-five degrees, and only being required to
bend occasionally. (T. 17). Moreover, these limitations are not
inconsistent with Plaintiff’s hearing testimony that bending over
to pick something up was the most difficult physical task for him
to
do.
(T.
63-64).
They
also
are
not
inconsistent
with
his
statement in January 2015, that he could lift light to medium
weight and sit for 30 minutes, as well as his statement on
July 28, 2015, that he could stand for 30 minutes and walk for
30
minutes.
Plaintiff
(T.
cannot
334,
climb
363).
Likewise,
ladders,
ropes
the
or
limitations
scaffolds;
that
cannot
balance or use stairs or ramps more than occasionally; and cannot
work at heights or around dangerous or moving machinery relate to
Plaintiff’s complaints of dizziness. (Id.).
The ALJ also found it significant that Plaintiff retained
the ability to work part-time, from 2010 through 2012—which was
9
during
the
relevant
period—performing
tasks
that
included
trimming bushes and working at a car wash and at a vinyl graphics
business. (T. 18, 57, 199, 264). See 20 C.F.R. § 404.1571 (“The
work, without legality, that you have done during any period in
which you believe you are disabled may show that you are able to
work at the substantial gainful activity level. . . . Even if the
work you have done was not substantial gainful activity, it may
show that you are able to do more work than you actually did.”).
As recently as April 17, 2013, which was about four months before
Dr. Schwab’s consultative examination, Plaintiff reported that he
had been doing heavy raking at work. (T. 324).
The ALJ also properly considered Plaintiff’s testimony that
he could drive for short periods, cook once a week, and clean
three times a week when determining Plaintiff’s RFC. (T. 15, 1820, 251).
See Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir.
2013) (holding that plaintiff’s ability to perform daily tasks
such as walk her dogs and clean her house was consistent with an
RFC to perform light work).
II.
Failure to Develop the Record (Plaintiff’s Argument 2)
Plaintiff argues that the ALJ failed to develop the record
by
(1)
not
obtaining
an
additional
medical
opinion
besides
Dr. Schwab’s to determine Plaintiff’s RFC; and (2) not obtaining
10
the decision on Plaintiff’s prior disability claim for a closed
period that ended in February 2006. (See Pl’s Br. at 18-23).
Since a hearing on disability benefits is a non-adversarial
proceeding, an ALJ has an affirmative duty to fully and fairly
develop the record. Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996).
However,
“where
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.” Petrie v. Astrue, 412 F. App’x 401, 406
(2d Cir. 2011) (summary order). The ALJ is only required to
obtain additional evidence when the administrative record “‘does
not contain sufficient evidence to make a fair determination.’”
Williams
v.
Colvin,
98
F.
Supp.3d
614,
630
(W.D.N.Y.
2015)
(quoting Ubiles v. Astrue, No. 11-CV-6340T MAT, 2012 WL 2572772,
at *10 (W.D.N.Y. July 2, 2012) (citing Perez v. Chater, 77 F.3d
41, 47–48 (2d Cir. 1996)).
Plaintiff argues the ALJ failed to develop the record by
not obtaining an additional medical opinion besides Dr. Schwab’s
on Plaintiff’s functional limitations. (See Pl’s Br. at 21).
However, the absence of a medical opinion does not necessarily
mean that the record contains an obvious gap, provided the record
relied upon contains sufficient evidence from which the ALJ can
11
assess the claimant’s RFC. See, e.g., Monroe v. Comm’r of Soc.
Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (summary order) (rejecting
claimant’s
contention
that,
because
the
ALJ
rejected
Dr. Wolkoff’s opinion, there was no competent medical opinion
that supported the ALJ’s RFC determination; however, the record
contained sufficient evidence to formulate RFC, in particular,
Dr.
Wolkoff’s
claimant’s
contemporaneous
limitations
and
and
detailed
descriptions
of
assessments
her
of
activities)
(citations omitted).
Because the record here did not contain an obvious gap, the
ALJ was not required to seek an opinion from a treating source or
have a medical expert review the record and provide a report.
Notably,
Plaintiff
omits
mention
of
the
statement
from
his
primary care physician, Dr. Kevin McMahon, on February 14, 2012,
that Plaintiff retained the functional capacity to perform some
work, but he “[m]ay need some job retraining to do something less
physical” than working at a car wash, for instance. (T. 57, 26465, 322, 324).
Plaintiff also argues the ALJ failed to develop the record
by failing to obtain an earlier ALJ decision that granted an
award of benefits for a closed period until February 2006, when
Plaintiff was permitted by his orthopedic surgeon, Dr. Suddaby,
12
to return to work. (T. 207). However, courts in this Circuit have
held that the ALJ’s duty to develop the record extends only with
respect to the 12–month period prior to the claimant’s filing
date. E.g., Reyes v. Colvin, No. 13CV3464-WHP-FM, 2015 WL 872075,
at
*4
(S.D.N.Y.
Feb.
25,
2015),
report
and
recommendation
adopted, No. 13CV3464, 2015 WL 1499378 (S.D.N.Y. Mar. 30, 2015)
(citing 20 C.F.R. § 404.1512(d) (“Before we make a determination
that you are not disabled, we will develop your complete medical
history for at least the 12 months preceding the month in which
you file your application. . . .”); other citations omitted).
In correspondence to Plaintiff’s counsel, the ALJ indicated
he received the decision, which was in the earlier case’s e-file.
(T. 241). Moreover, the prior decision was only relevant to a
disability period ending in February 2006, which was four years
prior to the alleged onset date of Plaintiff’s current claim.
Significantly, Plaintiff returned to work after being cleared by
Dr. Suddaby and performed a job at the medium exertional level
for about three years, before filing the current application in
June 2010. The earlier decision was remote in time from the most
recent alleged onset date, and it was followed by an intervening
period
of
medical
improvement.
Thus,
it
was
of
questionable
probative value. See O’Connell v. Colvin, 558 F. App’x 63, 64
13
(2d Cir. 2014) (summary order) (holding that the ALJ was under no
obligation
to
obtain
treatment
records
from
the
time
of
plaintiff’s initial knee injury because it occurred almost a
decade prior; nor was ALJ required to obtain records from ongoing
treatment that occurred more than two years after the date last
insured).
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision is free of legal error and is supported
by
substantial
evidence.
Accordingly,
Plaintiff’s
motion
for
judgment on the pleadings (Docket No. 9) is denied, and the
Commissioner’s motion for judgment on the pleadings (Docket No.
14) is granted.
The Clerk of the Court is directed to close this
case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
September 11, 2018
Rochester, New York
14
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