Jackson v. Berryhill
Filing
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DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, the Commissioner's 21 motion for judgment on the pleadings is granted, and Plaintiff's 18 motion for similar relief is denied. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 7/1/2019. (LAS)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRIANNA M. JACKSON,
Plaintiff,
DECISION AND ORDER
1:17-CV-00351-RJA
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Brianna M. Jackson (“Plaintiff”) brings this action pursuant to the Social
Security Act (“the Act”) seeking review of a final decision of the Acting Commissioner of
Social Security (“the Commissioner”) that denied her application for Supplemental
Security Income under Title XVI of the Act. (Dkt. 1). The Court has jurisdiction over this
action under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). (Dkts. 18 and 21). The Court assumes the parties’ close familiarity with
the procedural history, administrative record, and all issues before the Court. The Court
has carefully considered the entire record, and for the reasons set forth below, the Court
GRANTS the Commissioner’s motion for judgment on the pleadings and DENIES
Plaintiff’s motion for judgment on the pleadings.
DISCUSSION
This Court reviews the record to determine whether the Commissioner applied the
correct legal standard and whether substantial evidence supports the Commissioner’s
final decision. 42 U.S.C. § 405(g). Plaintiff argues that the ALJ improperly substituted her
lay opinion for that of the physicians regarding the limitation of reaching; and that the ALJ
failed to comply with the Appeal Council’s remand order. The Court finds that substantial
evidence upholds the ALJ’s formulation of Plaintiff’s residual functional capacity (“RFC”)
for reaching and that the ALJ did not rely on her own lay opinion. The Court also finds
that the ALJ followed the Appeals Council’s instructions on remand.
Plaintiff’s argument that the ALJ substituted her lay opinion for that of the
physicians
Specifically, Plaintiff argues that the ALJ “reject[ed] all medical opinions regarding
Ms. Jackson’s reaching limitations and then proceeded to assess those limitations based
on her own reading of the diagnostic and clinical findings.” (Dkt. 18 at 24). Plaintiff also
argues that the ALJ impermissibly gave more weight to non-treating sources over treating
sources. See (Dkt. 18 at 24). These arguments are without merit.
There is nothing in the record to support the argument that the ALJ relied on the
diagnostic and clinical findings to formulate an RFC; in fact, the ALJ credited several
treating and non-treating physicians for their opinions and did not “reject” any opinions
related to reaching. Indeed, the ALJ incorporated a reaching limitation within the RFC
out of an abundance of caution due to two physicians’ opinions of a more restrictive ability
to reach than much of the evidence supports. See, e.g., Hollaway v. Colvin, No. 14-CIV5165(RA)(HBP), 2016 WL 1275658 (S.D.N.Y. Mar. 31, 2016) (upholding ALJ’s RFC that
incorporated a postural maneuvering limitation, out of an abundance of caution, even
though evidence in the record did not necessarily support such a limitation).
Additionally, the ALJ may assign greater weight to the opinion of a non-treating
source when that opinion is better supported by the record. See Ridosh v. Berryhill, No.
16-CV-6466L, 2018 WL 6171713, at *6 (W.D.N.Y. Nov. 26, 2018). Here, the record
contained ample opinion evidence related to Plaintiff’s mental and physical functional
limitations which supports the ALJ’s RFC formulation. Among these opinions, for
example, the ALJ gave great weight to consultative examiner Dr. Santarpia, who found
only mild difficulties performing complex tasks (Tr. 1015); “somewhat less weight” to three
other psychiatric consultative examiners, since they did not personally examine Plaintiff,
but also finding mild mental limitations (Tr. 1014); “substantial” weight to Dr. Miller and
Morgan Brynildsen, P.A., who both opined that Plaintiff had “moderate” limitations in
lifting/carrying, pushing/pulling, and bending, and no other limitations. (Tr. 1020-21).
Further, the ALJ noted that Dr. Fineberg found on examination that Plaintiff showed full
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and painless cervical range of motion and full rotator cuff strength, sensation, reflexes,
and full range of motion of her shoulder. (Tr. 1019).
The non-medical or opinion evidence also supported greater abilities in reaching
than Plaintiff contends, giving further credence to the ALJ’s RFC determination. When
making an RFC determination, the ALJ considers the plaintiff’s symptomatology, including
pain and other limitations that could interfere with work activities on a regular and
continuing basis, activities of daily living, and type of treatment. The RFC finding will be
upheld when there is substantial evidence in the record to support each requirement listed
in the regulations. 20 C.F.R. §§ 404.1529(c)(3), 20 C.F.R. § 416.929(c)(3); SSR96-7p.
The ALJ gave several explanations why she reasonably assessed Plaintiff to have
a greater capacity for reaching. Most notably, Plaintiff’s activities of daily living strongly
support greater reaching capacity. During the alleged closed period of disability, Plaintiff
attended college classes, worked part-time as a desk clerk at the Airport Holiday Inn (a
few shifts per week from 7:00 a.m. to 3:00 p.m.), cleaned, cooked, drove, cared for two
young children, socialized with friends and family, managed money, and took care of her
personal needs. (Tr. 149,151-52, 163, 818-22, 876, 1017-18).
Plaintiff also received conservative treatment for her impairments. Considering
conservative treatment, among other substantial evidence, will not be construed as
relying on lay opinion and will support the ALJ’s finding that Plaintiff is not disabled. Netter
v. Astrue, 272 Fed.App’x 54, 56 (2d Cir April 2, 2008) (citing Shaw v. Chater, 221 F.3d
126, 134-35 (2d Cir. 2000) (“Moreover, because the district court relied on Dr. Regalla's
conservative treatment regimen merely as additional evidence supporting the ALJ's
determination rather than as ‘compelling’ evidence sufficient in itself to overcome an
‘otherwise valid medical opinion,’ the district court did not impermissibly ‘substitute his
own expertise or view of the medical proof for the treating physician's opinion[.]’”). Plaintiff
testified she treated her symptoms with physical therapy, ice, heat, and chiropractic care.
(Tr. 1050, 1054).
Additionally, in 2013 Plaintiff admitted that she was not able to work full-time, take
care of her children, and attend school, all at the same time, suggesting to the ALJ that
Plaintiff’s reasons for not working full-time were understandably due to her juggling
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personal responsibilities—and not because of her pain or any limited range of motion
alleged. (Tr. 151-52) (having been asked why Plaintiff only worked part-time at the Airport
Holiday Inn, she responded “I couldn’t handle working full-time, taking care of kids, and I
also am in school. It was just too much.”). Indeed, Plaintiff testified that though her
condition apparently worsened after her June 2013 car accident and did not improve by
April of 2014, she was still able to return to full-time work in 2014—less than 12 months
later—after she stopped attending college classes. (Tr. 150, 1018, 1048-49). This
suggests that Plaintiff did not return to work due to pain or injury, but because she stopped
going to school.
The ALJ's RFC finding need “not perfectly correspond with any of the opinions of
medical sources cited in his decision,” and the ALJ is “entitled to weigh all of the evidence
available to make an RFC finding that [is] consistent with the record as a whole.” Ortiz v.
Colvin, 298 F.Supp.3d 581, 587 (W.D.N.Y. 2018) (citing Matta v. Astrue, 508 Fed.App’x.
53, 56 (2d Cir. 2013) (summary order) (emphasis added). The Court would note that Dr.
Miller only opined that the claimant has a moderate limitation for repetitive heavy lifting,
carrying, reaching and pushing (Tr. 821), and not a moderate limitation for overhead
reaching or reaching in all directions. 1 This further supports the ALJ’s decision to include
the limitation of only “occasional” overhead reaching. The Court therefore finds the ALJ’s
determination of Plaintiff’s ability to “occasionally” reach overhead is supported by
substantial evidence and she did not rely on her lay opinion to formulate an RFC.
Plaintiff’s argument that the ALJ failed to comply with the Appeals Council
remand order
Plaintiff argues that this matter was remanded for the ALJ to “give further
consideration to Dr. Miller’s opinion and explain the weight given”; to “clarify what
‘moderate’ limitations mean”; and “if warranted, should re-contact Dr. Miller to clarify the
opinion.” (Dkt. 18 at 25) (citing to Tr. 1131). The Court finds that Dr. Miller’s opinion was
Consequently, the Court finds that the ALJ did not err when relying on the Vocational Expert’s testimony
where the VE provided several jobs that required mostly frequent reaching. The ALJ limited Plaintiff to
occasional overhead reaching, and therefore, she could perform the jobs as indicated by the VE.
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properly considered and the ALJ provided a sufficient explanation as to the weight given.
The Court also finds that the ALJ did not err in failing to recontact Dr. Miller on remand.
The failure of an ALJ to abide by the directives in an Appeals Council remand order
constitutes legal error requiring remand.” Ellis v. Colvin, 29 F.Supp.3d 288, 299 (W.D.N.Y.
2014). However, despite Plaintiff’s assertion, the Appeals Council did not order the ALJ
to re-contact Dr. Miller but directed the ALJ to recontact Dr. Miller if warranted. (Tr. 123132). In support of this directive, the Appeals Council explained that the RFC prior to
remand did not incorporate any limitations for overhead reaching, despite Dr. Miller’s
opinion stating Plaintiff had a “moderate” limitation for “repetitive heavy lifting and
carrying, reaching, and pushing,” and despite the ALJ finding that Plaintiff’s bursitis in the
left shoulder is a severe impairment. (Tr. 1131). The Appeals Council further stated that
“the decision [prior to remand] does not clarify what the term “moderate” means and or
provide rationale for discounting her assessed limitations.” Id.
In making her argument, Plaintiff leaves out some key findings from Dr. Miller
related to reaching ability which support the ALJ’s decision not to re-contact Dr. Miller.
For example, even though Dr. Miller found a moderate limitation for repetitive reaching,
Dr. Miller also found that Plaintiff had full range of motion in her shoulders, elbows,
forearms, and wrists. (Tr. 1021) (“Dr. Miller opined that the claimant has a moderate
limitation for repetitive heavy lifting, carrying, reaching and pushing. With respect to Dr.
Miller’s suggestion that the claimant has a moderate limitation for reaching, I note that Dr.
Miller reported that on examination the claimant had a full range of motion of her
shoulders, elbows, forearms and wrists bilaterally, with no indication of pain.”). Dr. Miller
also found that Plaintiff’s joints were “stable and non-tender” and her upper extremity
strength was “intact 5/5”. (Tr. 1021). Plaintiff also indicated that she engaged in “part-time
work, child care, and [attended] college classes” during the alleged closed period of
disability. (Tr. 1015-1016).
Additionally, the use of terms such as “moderate”, “occasional”, and “mild” have
been upheld by this Court and are consistent here in appropriately describing Plaintiff’s
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RFC. See Perez v. Berryhill, No. 1:17-CV-00069-Mat, 2019 WL 696911, at *7 (W.D.N.Y.
Feb. 20, 2019) (citing Jiminez v. Colvin, No. 16-CV-6350, 2018 WL 459301, at *3
(W.D.N.Y. Jan. 18, 2018). Therefore, because Dr. Miller provided a functional
assessment and did not find more severe limitations, 2 the ALJ reasonably concluded that
there was no need to re-contact Dr. Miller for clarification of the term “moderate.”
However, to the extent that “moderate” meant a more limited restriction of Plaintiff’s ability
to reach (which, the ALJ points out, is not supported by Dr. Miller’s own findings or the
record as a whole), there is no evidence to support such a limitation, the RFC was
formulated to give Plaintiff the benefit of the doubt (incorporating a reaching limitation in
the RFC). See (Tr. 1021). Therefore, substantial evidence supports the Plaintiff’s RFC.
The Court also finds the ALJ fulfilled the Appeals Council directives on remand.
CONCLUSION
Based on the foregoing, the Commissioner’s motion for judgment on the pleadings
(Dkt. 21) is granted. Plaintiff’s motion for judgment on the pleadings (Dkt. 18) is denied.
The Clerk of the Court is directed to close this matter.
IT IS SO ORDERED.
__s/Richard J. Arcara________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: July 1, 2019
Just as the ALJ may rely on what the record shows, the ALJ may rely on what the record does not show.
See § 404.1520(e); see also Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983); see also Diaz v.
Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (finding that it was proper for the ALJ to rely on the absence of
findings by any physician concerning plaintiff's alleged inability to sit for prolonged periods in deciding
that she could resume her work as a sewing machine operator).
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