Johnson v. Berryhill

Filing 14

DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings; and dismissing the Plaintiff's complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/21/2018. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
JONI MARIE JOHNSON
Plaintiff,

1:17-cv-00684-MAT
DECISION AND ORDER

-v-

NANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Joni Marie Johnson (“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 April 17, 2013, Plaintiff protectively filed applications
for DIB and SSI, alleging disability as of March 31, 2010, due to
spinal stenosis and an enlarged liver and spleen. Administrative
Transcript (“T.”) 199-203. The claims were initially denied on
September 4, 2013. T. 120-26. At Plaintiff’s request, a hearing was

conducted

on

December

3,

2015,

in

Buffalo,

New

York

by

administrative law judge (“ALJ”) Robert T. Harvey, with Plaintiff
appearing with her attorney. A vocational expert (“VE”) also
testified. T. 61-93. The ALJ issued an unfavorable decision on
February 10, 2016. T. 17-31. Plaintiff appealed the decision to the
Appeals Council (“AC”), which denied Plaintiff’s request for review
on May 23, 2017, making the ALJ’s decision the final determination
of the Commissioner. T. 1-6. 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 determined that
Plaintiff met the insured status requirements of the Act through
March 31, 2010. T. 22.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
March 31, 2010, the alleged onset date. Id.
At

step

two,

the

ALJ

determined

that

Plaintiff

had

the

following “severe” impairments: discogenic disease of the lumbar
spine; lumbar radiculopathy; and alcohol abuse. Id.
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. 26.

2

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 lift and carry twenty
pounds occasionally and ten pounds frequently; can sit two hours
and stand or walk six hours during an eight-hour workday; has
occasional limitations in her abilities to bend, climb, stoop,
squat, kneel, and crawl; has occasional limitations in pushing and
pulling with the upper extremities; has occasional limitations in
the

ability

to

understand,

remember,

and

carry

out

detailed

instructions; has occasional limitations in the ability to maintain
attention and concentration, resulting in the ability to perform
unskilled, simple, routine, and repetitive one-or-two-step tasks;
has occasional limitations in the ability to respond to changes in
the work setting; has occasional limitations in the ability to deal
with stress; has occasional limitations in the ability to make
decisions; and cannot work in areas where she would be exposed to
cold or dampness. T. 24.
At step four, the ALJ concluded that Plaintiff had no past
relevant work. T. 29. At step five, the ALJ relied on the VE’s
testimony to find that there are unskilled jobs existing in the
national economy Plaintiff is able to perform, including the
representative

occupations

of

housekeeping

cleaner,

and

agricultural produce sorter. T. 30. The ALJ accordingly found that
Plaintiff was not disabled as defined in the Act. Id.

3

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,
179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ ignored the medical statement of Dr. Anil
Tripathy and instead, interpreted the raw medical data of record
4

and substituted his own opinion; (2) the ALJ speculated that
Dr. Tripathy’s assessment may have been a general medical analysis
rather than a functional assessment and improperly applied this
speculation to discount the relevance of Dr. Tripathy’s opinion;
and (3) the ALJ’s RFC determination, particularly regarding mental
functioning, was not based on any medical opinion and therefore is
not based on substantial evidence. For the reasons discussed below,
the Court finds Plaintiff’s arguments without merit and affirms the
Commissioner’s final determination.
I.

Evaluation of the Opinion of Dr. Anil Tripathy
Dr. Anil Tripathy completed a questionnaire for the New York

State Office of Temporary and Disability Assistance Division of
Disability Determinations on July 14, 2013. T. 336-42. Dr. Tripathy
indicated he began treating Plaintiff on January 18, 2013 and her
last examination prior to completing the questionnaire was on
February 21, 2013. T. 336. Dr. Tripathy noted Plaintiff’s frequency
of treatment was twice a month; however, the record contains only
two treatment notes from Dr. Tripathy’s office, dated June 17, 2013
and July 10, 2013. See T. 324-35. Dr. Tripathy noted that Plaintiff
reported

her

daily

activities

included

socializing,

cooking,

laundry, driving, and showering. Plaintiff also reported her pain
kept her from taking care of her children and that she was unable
to take her children outside. T. 340. Dr. Tripathy opined Plaintiff
would be limited to occasionally lifting and carrying ten pounds
during a workday and frequently lifting and carrying five pounds.
5

T. 341. He further opined Plaintiff was able to stand or walk for
up to six hours per day and sit for up to six hours per day. Id. He
opined

Plaintiff

communicative,

or

had

no

postural,

environmental

manipulative,

limitations,

and

visual,

omitted

any

pushing or pulling limitations. T. 342.
In

a

treating

source

statement

dated

August

2,

2013,

Dr. Tripathy reported Plaintiff’s 2012 MRI imaging was compatible
with L4-L5 bilateral foraminal stenosis and L5-S1 spinal stenosis
with central disc herniation. He opined these findings “will and
may make [it] difficult to bend her back and pain on [continuous]
standing, and difficult to [continuously] sit and stand and push
and pull.” T. 343.
In his decision, the ALJ found that the degree of restriction
suggested by Dr. Tripathy (specifically, the limitation of lifting
and carrying five pounds frequently and ten pounds occasionally),
was not supported by the relatively modest objective imaging
studies and clinical findings in the substantial evidence of
record. T. 26. Furthermore, the ALJ found the August 2, 2013,
source statement appeared to be more of a general description of
potential or eventual symptoms expected in a person with discogenic
disease, rather than a “function-by-function assessment of the
[Plaintiff’s] actual functioning at the time.” Id. Based on these
findings, the ALJ gave little weight to Dr. Tripathy’s report. Id.

6

A.

The ALJ Properly Compared Medical Data to Dr. Tripathy’s
Statement

Plaintiff’s

first

argument

is

that

the

ALJ

ignored

Dr. Tripathy’s medical opinion and instead took it upon himself to
interpret the raw medical data of record to reach his own medical
conclusion. For the reasons set forth below, the Court finds this
argument lacks merit.
The ultimate finding of whether a claimant is disabled and
cannot
§

work

is

“reserved

404.1527(d)(1).

When

to

the

making

that

Commissioner.”
ultimate

20

finding,

C.F.R.
several

factors are considered, including the medical data supporting the
opinion evidence. “The more a medical source presents relevant
evidence to support a medical opinion, particularly medical signs
and laboratory finding, the more weight [the Commissioner] will
give

that

medical

opinion.”

Id.

404.1527(c)(3).

In

practice,

“[this] means that the Social Security Administration considers the
data that physicians provide but draws its own conclusions as to
whether those data indicate disability.” Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999).
Under the Commissioner’s regulations applicable to claims
filed before March 27, 2017, in assessing the opinion of a treating
physician such as Dr. Tripathy, the ALJ is expressly instructed to
consider whether the opinion is supported by “medically acceptable
clinical and laboratory diagnostic techniques” and is consistent
“with

the

other

substantial

evidence”

7

of

record.

20

C.F.R.

§ 404.1527(c)(2). Accordingly, an ALJ must “compare [the treating
physician’s] opinion to the medical evidence of record and . . .
assess [its] consistency therewith.” Tobey v. Comm’r of Soc. Sec.,
No. 1:16-CV-00937 (MAT), 2018 WL 3454686, at *4 (W.D.N.Y. July 18,
2018).
In

this

case,

the

ALJ

appropriately

considered

whether

Dr. Tripathy’s opinion was consistent with the medical evidence of
record. Contrary to Plaintiff’s argument, the ALJ’s consideration
of

the

objective

medical

evidence,

including

the

results

of

Plaintiff’s MRIs, was a necessary aspect of this analysis. As the
ALJ noted in his decision, Plaintiff’s 2012 MRI showed only mild
bilateral

foraminal

narrowing

at

the

L4-L5

level

and

spinal

stenosis secondary to a central disc herniation, with bilateral
foraminal narrowing at the L5-S1 level (T. 25 referring to T. 279),
which was inconsistent with the more severe limitations identified
by

Dr.

Tripathy.

Furthermore,

a

follow-up

MRI

performed

on

January 9, 2015, revealed unchanged small to moderate central L5-S1
disc herniation, unchanged bilateral Lf-S1 neural foramen stenosis,
and

unchanged

bulging

of

the

L4-L5

annulus

fibrosis.

T.

25

referring to T. 380. The ALJ’s conclusion that these objective
medical findings were inconsistent with and failed to support
Dr.

Tripathy’s

assessment

of

Plaintiff’s

limitations

was

appropriate, and does not amount to an improper reliance on his own
lay opinion. To the contrary, and as discussed below, in making his

8

RFC assessment, the ALJ relied on substantial evidence, including
the medical opinions of record.
B.

The ALJ Properly Considered Whether Dr. Tripathy’s
Statement Was a General Medical Analysis or a
Functional Assessment

Plaintiff’s second argument is that the ALJ was apparently
unclear as to the meaning of Dr. Tripathy’s August 2, 2013 medical
source statement

and

thus

erred

when

he

failed

to

recontact

Dr. Tripathy for clarification. For the reasons discussed below,
the Court disagrees.
An

ALJ

is

under

no

obligation

to

recontact

a

treating

physician where there are no obvious gaps in the administrative
record, and where the ALJ already possesses a complete medical
history. Rusin v. Berryhill, 726 F. App’x 837, 839-40 (2d Cir.
2018) (citing Rosa v. Callahan, 168 F.3d 72, 79 n. 5 (2d Cir.
1999). In this case, in addition to the questionnaire Dr. Tripathy
completed and the source statement he provided, the ALJ had before
him treatment records from: neurologist Dr. Malti Patel (T. 28287); nurse practitioner Veronica V. Mason, MSN-FNP-C (T. 300-23,
389-464); family nurse practitioner Kathy Kurtz, F.N.P. (T. 29196); Plaintiff’s primary care office, WNY Medical, PC (T. 324-35);
and University at Buffalo Neurosurgery (T.

366-87). Additionally,

the record contained the consultative examination records from
Dr. Renee Baskin (T. 346-50) and Dr. John Schwab (T. 351-54). There
is no indication that any additional medical records were missing
or necessary for an evaluation of Plaintiff’s impairments.
9

In his decision, the ALJ methodically noted and evaluated all
of the above medical records, which spanned from 2008 until 2015.
Based on his review and evaluation of these records, he permissibly
found the degree of restriction suggested by Dr. Tripathy was not
supported

by

the

substantial

evidence

of

record,

including

objective imaging studies, clinical findings, and Dr. Tripathy’s
own office. T. 26. The Court finds this reasoning is well within
the ALJ’s discretion and well-supported by the evidence of record.
See, e.g., Gonzalez v. Halter, 212 F. Supp. 2d 137, 140 (W.D.N.Y.
2002) (ALJ’s decision to discount the opinion of treating physician
was supported by an MRI indicating only a mild disc bulge, an x-ray
revealing only minimal degenerative changes, and several medical
opinions of consulting physicians).
Plaintiff also makes the speculative argument that if the ALJ
was in fact unclear as to whether Dr. Tripathy was making a general
medical

analysis

or

a

functional

assessment

of

Plaintiff’s

abilities, then a gap exists in the record. The Court finds this
argument without merit. As discussed in detail above, the Court
finds the ALJ’s evaluation of Dr. Tripathy’s statement was proper
and supported by substantial evidence. The record contains ample
evidence the ALJ was able to consider in making his disability
determination,

including

the

functional

limitation

opinion

Dr. Tripathy provided in the July 14, 2013 questionnaire. See
T. 336-42. The ambiguity in Dr. Tripathy’s August 2, 2013 source
statement does not create a gap in the record. See Monroe v.
10

Commissioner of Social Security, 676 F. App’x 5, 8-9 (2d Cir. 2017)
(ALJ did not need to seek out a treating source statement where the
ALJ considered numerous treatment notes); Tankisi v. Comm’r of
Soc.

Sec.,

521

F.

App’x

29,

34

(2d

Cir.

2013)

(remand

was

inappropriate where the medical record was sufficient for the ALJ
to assess the petitioner’s RFC, even without a medical opinion from
a treating physician). Accordingly, the Court finds no error in the
ALJ’s evaluation of Dr. Tripathy’s opinions.
II.

The ALJ’s RFC Finding was Based on Substantial Evidence
Plaintiff’s final argument is that the mental functioning

portion of the RFC finding has no medical basis and therefore is
unsupported by substantial evidence. For the reasons set forth
below, the Court finds this argument lacks merit.
On

August

20,

2013,

Plaintiff

received

a

psychiatric

evaluation from Renee Baskin, Ph.D. T. 346-50. In the background
information, Dr. Baskin reported Plaintiff drove herself to the
evaluation. Plaintiff lived with her five youngest children while
her two oldest children lived with Plaintiff’s sister. T.346.
Plaintiff completed her GED and attended some college. Id. Her last
employment was for one day at Burger King as a cashier, which she
left because her “back hurt too bad to be standing and bending for
eight-hour shifts.” Id. Dr. Baskin noted Plaintiff had a history of
very short-term, unskilled labor. Id. Plaintiff reported she has
difficulty

falling

asleep

and

frequent

wakening,

which

she

attributes to her pain and anxiety. T. 347. Dr. Baskin noted
11

Plaintiff’s depressive symptomology was remarkable for dysphoric
moods, fatigue/loss of energy, irritability, and social withdrawal.
Id. Plaintiff reported “mood swings due to back pain.” Dr. Baskin
noted Plaintiff’s cognitive symptomology was remarkable for some
concentration difficulties. Id.
Plaintiff denied any history of alcohol abuse; however, she
reported

a

history

of

binge

drinking

and

Dr.

Baskin

noted

Plaintiff’s symptoms of irritability and fatigue/loss of energy may
be due to alcohol dependence. T. 347. Upon examination, Plaintiff
was responsive and cooperative. Her manner of relating, social
skills and overall presentation were adequate. Id. Plaintiff’s
thought processes were coherent and goal-directed with no evidence
of hallucinations, delusions or paranoia. T. 348. Plaintiff’s
attention and concentration were mildly impaired due to limited
intellectual functioning. Plaintiff was able to do counting and
simple calculations; however, she was unable to do serial threes
successfully. Id. Plaintiff’s recent and remote memory skills were
relatively

intact.

She

recalled

three

out

of

three

objects

immediately, and three out of three objects after five minutes.
Plaintiff was able to do seven digits forward and three digits
backwards. Id.
Plaintiff reported she was capable of doing all activities of
daily living, but had significant limitations due to her back pain.
Plaintiff reported she received help from her children. She was
able to dress, bathe, and groom herself daily and manage her money.
12

She socialized exclusively on social media and spent her time
watching TV or listening to the radio. T. 348-49.
Dr. Baskin opined Plaintiff had minimal to no limitations in
her

ability

to

follow

and

understand

simple

directions

and

instructions, and perform simple tasks independently. T. 349.
Plaintiff had moderate limitations in her ability to maintain
attention and concentration, maintain a regular schedule, learn new
tasks,

perform

complex

tasks

independently,

make

appropriate

decisions, relate adequately with others, and appropriately deal
with stress. Id. Dr. Baskin further opined that the results of the
examination appeared to be consistent with psychiatric problems and
those problems may interfere to some degree with Plaintiff’s
ability to function on a daily basis. Finally, Dr. Baskin opined,
Plaintiff also appeared to be compromised by a lack of involvement
in any type of consistent outpatient counseling. Id.
In his decision, the ALJ repeated Dr. Baskin’s assessment of
Plaintiff’s limitations, finding it was consistent with the overall
record

in

recognizing

Plaintiff

has

some

difficulty

with

maintaining attention and concentration, and with appropriately
dealing with stress. T. 27. However, the ALJ further found that
Dr. Baskin’s assessment regarding Plaintiff’s social functioning
suggested a higher degree of restriction than is established by the
medical evidence. Accordingly, the ALJ gave Dr. Baskin’s opinion
only some weight. Id. The ALJ’s RFC finding includes the following
limitations

associated

with

Plaintiff’s
13

mental

impairments:

occasional limitations in the ability to understand, remember, and
carry out detailed instructions; occasional limitations in the
ability to maintain attention and concentration, resulting in the
ability to perform unskilled, simple, routine, and repetitive oneor-two step tasks; occasional limitation in the ability to respond
to change in the work setting; occasional limitation in the ability
to deal with stress; and occasional limitation in the ability to
make decisions. T. 24.
Plaintiff’s argument that the ALJ created the RFC finding
without any basis in medical opinion and dismissed all opinions
regarding Plaintiff’s mental functioning is without merit. As a
threshold matter, an ALJ assessing a disability claim is required
to “weigh all of the evidence available to make an RFC finding that
[is] consistent with the record as a whole.” Matta v. Astrue, 508
F. App’x 53, 56 (2d Cir. 2013). The ALJ’s RFC finding need “not
perfectly correspond with any of the opinions of medical sources.”
Id.; see also Rosa v. Callahan, 168 F.3d 72, 29 (2d Cir. 1999)
(“the ALJ’s RFC finding need not track any one medical opinion”);
Breinin v. Colvin, No. 5:14-CV-01166(LEK TWD), 2015 WL 7749318, at
*3 (N.D.N.Y. Oct. 15, 2015), report and recommendation adopted,
2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to
determine

a

claimant’s

RFC,

and

not

to

simply

agree

with

a

physician’s opinion.”). An ALJ is also permitted to discount
portions of a consultative examiner’s opinion were they are not
supported by the medical evidence of record. See Christina v.
14

Colvin, 594 F. App’x 32, 33 (2d Cir. 2015) (ALJ did not commit
reversible error “by dismissing a portion of the opinion of [the]
consultative examiner”).
The ALJ’s RFC finding in this case closely follows the medical
opinion provided by Dr. Baskin. Specifically, both Dr. Baskin’s
opinion and the ALJ’s RFC finding account for Plaintiff’s ability
to perform simple tasks and understand simple instructions, as well
as

Plaintiff’s

limited

ability

to

maintain

attention

and

concentration, appropriately deal with stress, and make appropriate
decisions. Compare T. 24 with T. 349. Contrary to Plaintiff’s
argument, the ALJ included significant mental limitations in the
RFC finding, including limiting Plaintiff to simple, routine tasks
- a limitation which accounts for Dr. Baskin’s findings regarding
Plaintiff’s

difficulties

in

maintaining

attention

and

concentration, performing complex tasks, and learning new tasks.
See, e.g., Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 315
(W.D.N.Y. 2013); Martinez v. Comm’r of Soc. Sec., No. 3:16-CV-0908,
2017 WL 2633532, at *7 (N.D.N.Y. June 15, 2017). The ALJ also
expressly incorporated limitations in dealing with stress and
making decisions into the RFC (see T. 24), contrary to Plaintiff’s
claim that the ALJ “did not incorporate [these limitations] into
the RFC finding in any meaningful way” (Dkt. 8-1 at 18).
As to those portions of Dr. Baskin’s opinion the ALJ did not
fully credit, the ALJ appropriately explained his reasoning, which
was well-supported by the evidence of record. Accordingly, the
15

Court

finds

limitations

that
was

the

ALJ’s

consistent

assessment
with

the

of

Plaintiff’s

evidence

of

mental

record

and

supported by substantial evidence. The Court accordingly finds that
remand is not warranted on this basis.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 8) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 10) 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
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

September 21, 2018
Rochester, New York

16