Gordon v. Berryhill

Filing 19

DECISION AND ORDER: For the reasons stated in the attached Decision and Order, Defendant Commissioner's 17 motion for judgement on the pleadings is granted, and Plaintiff's 11 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 6/24/2019. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEFF R. GORDON,
Plaintiff,
DECISION AND ORDER
1:17-CV-00830-RJA

v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Plaintiff Jeff R. Gordon (“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 his 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. 11 and 17). 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 and DENIES the Plaintiff’s motion.
DISCUSSION
This Court reviews the record to determine only 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 did not properly evaluate
Plaintiff’s non-exertional limitations when formulating the RFC and erred in evaluating the
opinion of the Psychological Consultative Examiner. The Court finds the ALJ’s decision
is based upon substantial evidence and that some errors in the decision are procedurally
harmless.

Plaintiff, 56 years old on the date of his administrative hearing, has his GED and
testified he last held employment as a gas station cashier in 2008. (Tr. 29, 48-50). Plaintiff
explained during his June 2016 hearing that his primary reason for his inability to work is
because “once a month for about a week” he becomes depressed. (Tr. 50). The ALJ
found Plaintiff’s severe impairments to be major depressive disorder and unspecified
bipolar disorder. (Tr. 12; see Tr. 13-15 (discussing the mental impairments at step 3).
After consideration of the record, the ALJ found Plaintiff had the residual functional
capacity to perform a full range of work, specifically, he can “work at all exertional levels
but with the following nonexertional limitations: he requires work that is simple, routine,
and repetitive at a specific vocational preparation of one or two 1 and he can have
occasional contact with supervisors, coworkers, and the public.” (Tr. 15).
Plaintiff argues that the ALJ did not properly evaluate his non-exertional limitations
when formulating the RFC. The Court disagrees. 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). Further, the ALJ “is
not required to accept the claimant’s subjective complaints without question; he may
exercise discretion in weighing the credibility of the claimant’s testimony in light of the
other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The ALJ
found, and the Court agrees, the record supports that Plaintiff has some limitations in his
ability to perform substantial gainful activity, but Plaintiff is not so limited as to be
precluded from working altogether as he contends.
The evidence the ALJ relied on consists of treatment notes, which indicated only
mild and isolated depression 2 caused by unemployment and homelessness,

“A job with [A Specific Vocational Preparation or “SVP”] level of one requires only a short demonstration
for an individual to learn the job. An SVP level of two requires up to one month for an individual to learn
the job.” See (Dkt. 17 at 12 n.2) (citing Dictionary of Occupational Titles Appendix C).

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While a finding of disability is not precluded when a claimant exhibits mental impairment due to
situational stressors, there is no evidence in the record to support a finding that his depression “did last
or is expected to last for a continuous period of at least 12 months.” See 20 C.F.R. § 416.909.

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unremarkable mental health status examinations (Tr. 16), and credible medical opinions
of Drs. Rosenshield and Hoffman—who both found mostly “mild” paragraph B limitations3
(Tr. 17-18), symptoms that were well-controlled by conservative treatment (Tr. 16, 261,
395, 389, 406), and activities of daily living, which include grocery shopping once per
week, cooking on a regular basis, cleaning his home, taking care of his dog, taking care
of his personal hygiene on his own, and going to the library to take out books. (Tr. 58-60).
The ALJ also considered that Plaintiff exercised on a regular basis and walked his dog
for 20 to 30 minutes at a time. (Tr. 308, 312, 333). This evidence contradicts allegations
of disabling depressive symptoms for the duration Plaintiff contends. The Plaintiff
correctly points out that the ALJ failed explicitly apply the Psychiatric Review Technique
at steps 2 and 3, see e.g., Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (quoting
former 20 C.F.R. § 404.1520a(e)(2)), but the Court notes again that the ALJ did consider
all available evidence in the record, so the error is harmless.
In formulating Plaintiff’s RFC, the ALJ noted that he “afforded extreme deference”
to Plaintiff’s testimony (i.e. Plaintiff’s reports of depression, crying spells, irritability, low
energy, difficulty concentrating, etc.) when weighing the opinions are Drs. Rosenshield
and Hoffman. The ALJ found that the record indicated few limitations, despite Plaintiff’s
testimony that he had was disabled, and relied upon substantial evidence to conclude
Plaintiff had the ability to perform work that is simple, routine, repetitive, and at the specific
vocational preparation of “one or two” and can have occasional contact with others. (Tr.
18). “[W]here the ALJ’s decision to discredit a claimant’s subjective complaints is
supported by substantial evidence, [the reviewing courts] must defer to his findings.”
Calabrese v. Astrue, 358 Fed. App’x. 274, 277 (2d Cir. 2009). Therefore, based on the
record, the Court finds that the ALJ adequately considered Plaintiff’s subjective
complaints.
Plaintiff also argues that the ALJ erred in evaluating the medical opinion of the
Psychological Consultative Examiner, Dr. Christine Ransom, Ph.D. that is based upon
one examination in November of 2013. The point is well-taken, as the Second Circuit has

Paragraph B criteria include: activities of daily living, maintaining social functioning, maintain
concentration, persistence, or pace, and episodes of decompensation. See 20 C.F.R. § 404.1520(c)(3).

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“frequently cautioned that ALJs should not rely heavily on the findings of consultative
physicians after a single examination [and that] this concern is even more pronounced in
the context of mental illness where . . . a one-time snapshot of a claimant's status may
not be indicative of her longitudinal mental health.” Estrella v. Berryhill, 925 F.3d 90, 98
(2d Cir. 2019) (quotation omitted). But Dr. Ransom concluded Plaintiff had “moderate to
marked” limitations—greater limitations than the balance of the medical evidence
supported. Dr. Ransom’s conclusions, as the ALJ noted, were “starkly inconsistent” with
other record evidence. (Tr. 17). Specifically, the ALJ noted that Dr. Ransom’s findings
differed greatly from those of Plaintiff’s treating psychiatrist, Dr. Yap, who indicated
Plaintiff’s depression to be only “mild.” (Tr. 263, 415). In addition, the ALJ noted that Dr.
Ransom’s opinion was “heavily reliant upon [Plaintiff’s] subjective reports and his
anomalous presentation.” (Tr. 17). Plaintiff also, after his consultative examination with
Dr. Ransom, told a second consultative examiner later that day that he “enjoyed going
out and hanging with friends, could perform household chores and self-care, and enjoyed
reading.” (Tr. 17). For these reasons, and in accordance with 20 C.F.R. § 416.927(c), the
ALJ reasonably gave diminished weight to Dr. Ransom’s November 2013 opinion and the
Court finds that the ALJ did not err in doing so.
CONCLUSION
For the reasons discussed above, the Commissioner’s motion for judgment on the
pleadings (Dkt. 17) denying benefits is granted. The Plaintiff’s motion for judgment on the
pleadings (Dkt. 11) is denied. The Clerk is directed to enter judgment in favor of the
Commissioner.

IT IS SO ORDERED.
__s/Richard J. Arcara___________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: June 24, 2019

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