Thompson v. Berryhill

Filing 15

ORDER denying 7 Motion for Judgment on the Pleadings; granting 9 Motion for Judgment on the Pleadings. Signed by Hon. H. Kenneth Schroeder Jr. on 6/18/2019. (KER)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RICKY THOMPSON,
Plaintiff,

17-CV-700Sr

v.
NANCY A. BERRYHILL
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g). Dkt.
#13.

BACKGROUND
Plaintiff applied for disability insurance benefits with the Social Security
Administration (“SSA”), on September 6, 2013, alleging disability beginning January 15,
2012, when he was 44 years old, following an ST-Elevation Myocardial Infarction with
resulting ischemic cardiomyopathy. Dkt. #6, pp.78, 185 & 260. On July 24, 2013,
Plaintiff underwent successful implantation of an implantable cardioverter defibrillator
(“ICD”), with successful defibrilation through his ICD on October 23, 2013. Dkt. #6,
p.254 & 258.

On January 19, 2016, plaintiff, represented by counsel, appeared and
testified, along with an impartial vocational expert, Michele Erbacher, before
Administrative Law Judge (“ALJ”), Lynette Gohr. Dkt. #6, pp.44-76. Plaintiff testified that
he was able to drive and that he went to the gym and walked on the treadmill for 20-25
minutes approximately twice a week. Dkt. #6, pp.49-51 & 54. Plaintiff also testified that
he worked three hours a week three days a week at his church beginning in November
of 2014. Dkt. #6, pp.51-52 & 57. He would open the church, greet people, vacuum,
clean bathrooms and wipe down tables. Dkt. #6, pp.52-53 & 57-59. He was unable to
work more than this because of shortness of breath and fatigue. Dkt. #6, p.54 & 60. He
lived with his wife, his 6 year-old daughter, his mother-in-law and her sister. Dkt. #6,
p.54. He helped his mother-in-law and her sister get to doctor’s appointments and
assisted them with meals during the day when his wife was at work. Dkt. #6, pp.54-55 &
61. He also washed laundry, washed dishes and vacuumed at home. Dkt. #6, pp.62 &
66. Since his heart attack, plaintiff testified that a service was responsible for lawn
mowing and snow removal. Dkt. #6, pp.67-68.

When asked to assume that plaintiff is limited to sedentary1 exertion and
could only occasionally kneel, crouch, crawl, stoop or climb ramps and stairs and could
never climb ladders, ropes and scaffolds or work around hazards such as moving

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Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary is walking and standing are required
occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a).

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mechanical parts or unprotected heights and could never work around strong
electromagnetic fields, the vocational expert testified that plaintiff could perform the jobs
of addressing clerk, tube operator and call out operator, each of which were unskilled
sedentary positions. Dkt. #6, pp.73-74.

The ALJ rendered a decision that plaintiff was not disabled on February
29, 2016. Dkt. #6, pp.11-26. The Appeals Council denied review on May 30, 2017. Dkt.
#6, p.5. Plaintiff commenced this action seeking review of the Commissioner’s final
decision on July 26, 2017. Dkt. #1.

DISCUSSION AND ANALYSIS
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence in
the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).

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To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months. 20 C.F.R. § 404.1505(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is disabled within the meaning of
the Act. 20 C.F.R. § 404.1520(a). At step one, the claimant must demonstrate that he is
not engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the
claimant must demonstrate that he has a severe impairment or combination of
impairments that limits the claimant’s ability to perform physical or mental work-related
activities. 20 C.F.R. § 404.1520(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled to
disability benefits. 20 C.F.R. § 404.1520(d). If the impairment does not meet the criteria
of a disabling impairment, the Commissioner considers whether the claimant has
sufficient residual functional capacity (“RFC”), for the claimant to return to past relevant
work. 20 C.F.R. § 404.1520(e)-(f). If the claimant is unable to return to past relevant
work, the burden of proof shifts to the Commissioner to demonstrate that the claimant
could perform other jobs which exist in significant numbers in the national economy,
based on claimant’s age, education and work experience. 20 C.F.R. § 404.1520(g).

In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful
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activity since January 15, 2012; (2) plaintiff’s coronary artery disease, ischemic
cardiomyopathy status, post ICD placement, acute myocardial infarction, hypertensive
vascular disease and obesity constitute severe impairments; (3) plaintiff’s impairments
did not meet or equal any listed impairment; (4) plaintiff retained the RFC to perform
sedentary work with the following limitations: he can occasionally kneel, crouch, crawl,
stoop, climb ramps and stairs, but cannot climb ladders, ropes or scaffolds or work
around hazards such as moving mechanical parts and unprotected heights or work
around strong electromagnetic fields; and (5) plaintiff could not perform his past
relevant work as a hospital transporter and nurse’s assistant, but retained the functional
capacity to work in unskilled, sedentary positions such as tube operator or call out
operator and was not, therefore, disabled within the meaning of the SSA. Dkt. #6,
pp.16-26.

Plaintiff argues that the ALJ’s decision is not based upon substantial
evidence because the ALJ relied upon the opinion of a consulting examining physician
who performed a cursory examination of plaintiff and did not possess plaintiff’s medical
records. Dkt. #7-1, pp.12-14. Plaintiff further argues that the consulting examining
physician’s opinion as to “moderate” limitations was vague. Dkt. #7-1, pp.14-15. Finally,
plaintiff argues that the basis for the ALJ’s determination that plaintiff’s limitations were
different than found by the consulting examining physician is unclear and that the ALJ
should not have used plaintiff’s activities of daily living as evidence for his assessment
of plaintiff’s RFC. Dkt. #7-1, pp.15-16.

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The Commissioner responds that the ALJ appropriately relied upon the
clinical findings to assess plaintiff’s RFC. Dkt. #9-1, pp.22-24. The Commissioner
further responds that the ALJ appropriately determined that plaintiff’s subjective
complaints were not consistent with the medical evidence and plaintiff’s activities of
daily living. Dkt. #9-1, pp.24-28.

The ALJ’s determination is supported by substantial evidence in the
record and based on a correct legal standard. Although the regulations require the SSA
to give the consultative examiner “any necessary background information” about the
plaintiff’s condition, this language does not amount to a requirement that every
consulting physician be provided with all of a claimant’s medical records and history or
that the physician report that he viewed such records. Wilson v. Comm’r of Soc. Sec.,
17-CV-1003, 2018 WL 4901070, at *3 (W.D.N.Y. Oct. 9, 2018). Instead, a complete
consultative examination report is required to include a plaintiff’s primary complaints, a
description of the history of those complaints, examination findings, laboratory or other
test results, a diagnosis and prognosis, and a statement about what the claimant can
do despite his impairments. Id. at *4, citing 20 C.F.R § 404.1519n(c)(1)-(6). Dr.
Balderman’s consultative examining report satisfies these requirements. Dkt. #6,
pp.499-501. Thus, even assuming that Dr. Balderman lacked access to plaintiff’s
medical records, his opinion is entitled to consideration. Moreover, Dr. Balderman’s
opinion that plaintiff would have moderate limitation in lifting, carrying and climbing is
not vague as it is based upon his consideration of plaintiff’s symptoms and history of
coronary artery disease following his physical examination of plaintiff. See Tudor v.
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Com’r of Soc. Sec., 12-CV-2795, 2013 WL 4500754, *12 (E.D.N.Y. Aug. 21, 2013)
(mere use of the phrase “moderate limitations” does not render a consulting medical
examiner’s opinion vague or non-substantial for purposes of the ALJ’s RFC
determination where opinion was supported by objective medical findings).

The ALJ gave some weight to Dr. Balderman’s opinion that plaintiff would
have moderate limitation in lifting, carrying and climbing due to coronary artery disease,
but determined that the record demonstrated “greater limitation in consistent activity”
than Dr. Balderman’s opinion set forth. Dkt. #6, p.24. Repeated assessment of New
York Heart Association class 2 symptoms2 by plaintiff’s treating physicians (Dkt. #6,
pp.265, 298, 603, 607 & 645), and plaintiff’s repeated complaints of shortness of breath
upon exertion (Dkt. #6, pp.54, 60, 263, 539, 542, 562, 570 & 607), support the ALJ’s
determination that plaintiff’s coronary artery disease imposed exertional limitations in
addition to limitations on lifting, carrying and climbing. It is not error for the ALJ to credit
plaintiff’s testimony regarding his limitations in assessing a somewhat more restrictive
RFC than a consultative examiner. Kearney v. Berryhill, 16-CV-652, 2018 WL
5776422, at *5 (W.D.N.Y. Nov. 2, 2018). Moreover, “[w]here an ALJ makes an RFC
assessment that is more restrictive than the medical opinions of record, it is generally
not a basis for remand.” Edwards v. Comm’r of Soc. Sec., 6:18-CV-6221, 2019 WL
1673486, at *8 (W.D.N.Y. April 17, 2019).

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New York Heart Association Class II grading indicates :“Slight limitation of physical
activity. Ordinary physical activity results in fatigue, palpitation, dyspnoea or angina pectoris
(mild CHF).”

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The ALJ’s determination that plaintiff could perform sedentary work with
additional limitations is supported by substantial evidence. In the instant case, plaintiff
was cleared to return to work on September 14, 2012 and was consistently assessed
by treating medical providers as stable, with slight limitation of physical activity as
evidenced by the determination that he suffered New York Heart Association class 2
symptoms. Dkt. #6, pp.265, 298, 565, 570, 603, 607, 645 & 650. The most recent
assessment in the medical record, dated December 30, 2015, opined that plaintiff’s
ischemic cardiomyopathy was “very well compensated” and that his functional capacity
was “mildly impaired relative to age/sex matched subjects.” Dkt. #6, p.645. Plaintiff
reported and testified to consistent exercise throughout his alleged period of disability,
to wit, walking on the treadmill at more than 3.5 mph for approximately 30 minutes
and/or lifting weights, albeit with shortness of breath, and was encouraged to maintain
his exercise regime. Dkt. #6, pp.50-51,263, 265, 539, 542, 562 & 570. Plaintiff also
reported shortness of breath ascending stairs, especially when he was carrying his
daughter, who weighed approximately 40 pounds. Dkt. #6, p.542 & 607. Furthermore,
plaintiff reported and testified that he was able to cook, clean, wash laundry, shop,
provide child care and drive. Dkt. #6, pp.54-55, 61-62, 66, 210, 212, 496. Plaintiff
worked at his church three hours per day, three days per week, greeting people and
cleaning the church bathrooms, vacuuming, and wiping down tables. Dkt. #6, pp.52-54
& 57-59. It was entirely appropriate for the ALJ to consider these activities, as reported
by plaintiff and set forth in contemporaneous medical treatment notes, in assessing
plaintiff’s credibility and capacity to engage in substantial gainful employment. Monroe
v. Comm’r of Soc. Sec., 676 Fed. App’x. 5, 8-9 (2d Cir. 2017); Lamorey v. Barnhart, 158
Fed. App’x 361, 363-64 (2d Cir. 2006).
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CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #7), is denied and the Commissioner’s motion for judgment on the pleadings
(Dkt. #9), is granted.

The Clerk of the Court is directed to close this case.

SO ORDERED.

DATED:

Buffalo, New York
June 18, 2019
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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