Burt v. Commissioner of Social Security
Filing
16
DECISION AND ORDER denying 9 Motion for Judgment on the Pleadings; granting 13 Motion for Judgment on the Pleadings. Clerk of Court directed to close the case. Signed by Hon. Leslie G. Foschio on 2/13/2019. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
STEVEN BURT,
v.
DECISION
and
ORDER
NANCY A. BERRYHILL,1 Commissioner of
Social Security,
17-CV-00922F
(consent)
Plaintiff,
Defendant.
______________________________________
APPEARANCES:
LAW OFFICES OF KENNETH R. HILLER, PLLC
KENNETH R. HILLER, and
ANTHONY JOHN ROONEY, of Counsel
Attorneys for Plaintiff
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
KRISTINA DANIELLE COHN
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
and
DENNIS J. CANNING, and
JOHN C. FISCHER
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
601 E. 12TH Street, Room 965
Kansas City, Missouri 64106
1
Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23,
2017. Pursuant to Fed.R.Civ.P. 25(d), Berryhill is substituted for Carolyn W. Colvin as Defendant in this
case. No further action is required to continue this suit by reason of sentence one of 42 U.S.C. § 405(g).
JURISDICTION
On June 19, 2018, the parties to this action, consented pursuant to 28 U.S.C. §
636(c) to proceed before the undersigned. (Dkt. 14). The matter is presently before the
court on motions for judgment on the pleadings filed by Plaintiff on April 3, 2018 (Dkt. 9),
and by Defendant on May 29, 2018 (Dkt. 13).
BACKGROUND
Plaintiff Steven Burt (“Plaintiff”), brings this action under Titles II and XVI of the
Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the Commissioner of Social Security’s final decision denying Plaintiff’s
application filed with the Social Security Administration (“SSA”), on December 3, 2013,
for Disability Insurance Benefits under Title II of the Act (“SSDI”), and for Supplemental
Security Income under Title XVI of the Act (“SSI”) (together, “disability benefits”).
Plaintiff alleges he became disabled on November 16, 2012, based on lumbar spine
injury, degenerative joint disease in his knees, and constant pain, which limits his ability
to sit, stand and lift. AR2 at 154. Plaintiff’s application was denied on February 24,
2014, AR at 43-60, and at Plaintiff’s timely request, on April 19, 2016, a hearing was
held in Buffalo, New York, via videoconference before administrative law judge Robert
Wright (“the ALJ), located in Albany, New York. AR at 26-42. Appearing and testifying
at the hearing were Plaintiff, and his attorney, Kelly Laga, Esq. (“Laga”). Also present
was vocational expert (“VE”) Margaret E. Heck, from whom no testimony was taken.
On April 22, 2016, the ALJ issued a decision denying Plaintiff’s claim, AR at 1522 (“the ALJ’s decision”), which Plaintiff appealed to the Appeals Council, with Kelly
2
References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
February 2, 2018 (Dkt. 7).
2
Laga, Esq. appointed to represent Plaintiff on his administrative appeal. AR at 120. On
July 19, 2017, the Appeals Council issued a decision denying Plaintiff’s request for
review, rendering the ALJ’s decision the Commissioner’s final decision. AR at 1-6. On
September 15, 2017, Plaintiff commenced the instant action seeking judicial review of
the ALJ’s decision.
On April 3, 2018, Plaintiff moved for judgment on the pleadings (Dkt. 9)
(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 9-1) (“Plaintiff’s Memorandum”). On May 29, 2018,
Defendant moved for judgment on the pleadings (Dkt. 13) (“Defendant’s Motion”),
attaching the Commissioner’s Brief in Response Pursuant to Local Standing Order on
Social Security Cases (Dkt. 13-1) (“Defendant’s Memorandum”). Filed on June 25,
2018, was Plaintiff’s Response to the Commissioner’s Brief in Support and in Further
Support for Plaintiff’s Motion for Judgement on the Pleadings (Dkt. 15) (“Plaintiff’s
Reply”). Oral argument was deemed unnecessary.
Based on the foregoing, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED. The Clerk of Court is directed to close the file.
FACTS3
Plaintiff Steven Burt (“Plaintiff” or “Burt”), born March 28, 1954, was 58 years old
as of November 16, 2012, his alleged disability onset date (“DOD”), and 62 years old as
of April 22, 2016, the date of the ALJ’s decision. AR at 29. Plaintiff has four adult
children, is divorced, and lives alone. AR at 29-30. Plaintiff finished high school after
which he attended Job Corps for one year. AR at 29. Plaintiff let his driver’s license
3
In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.
3
expire because he did not like driving, and relies on his oldest daughter for rides. AR at
34-35. Plaintiff previously worked as a telemarketer, AR at 37-38, stock person, and in
food service, AR at 31-32, 156, and most recently worked in maintenance, but quit
because the one-mile walk from the bus stop bothered his knees and back.4 AR at 31,
39, 156. It is undisputed Plaintiff suffers from degenerative disc disease of the lumbar
spine, and high blood pressure, AR at 17-18, although Plaintiff also asserts as
impairments degenerative joint disease affecting his knees, chronic pain, and
depression, AR at 217, which Plaintiff maintains renders him unable to perform even
light or sedentary work. Id. at 218.
DISCUSSION
1.
Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled 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),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district court “is limited to determining whether
4
It is not clear from the record when Plaintiff stopped working, and Plaintiff indicated on his disability
benefits application that he was still working, yet as of his alleged disability onset date of November 16,
2012, Plaintiff reduced his hours resulting in income below the threshold for substantial gainful activity.
AR at 154, 160-61, 143-44, 178. According to Plaintiff’s attorney, Plaintiff ceased working in “September
2015.” AR at 217.
4
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) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,5 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.
Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI
benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable
regulations set forth a five-step analysis the Commissioner must follow in determining
eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). If the claimant meets the criteria at any of the five steps, the inquiry ceases and
the claimant is not eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.
The first step is to determine whether the applicant is engaged in substantial gainful
activity during the period for which the benefits are claimed. 20 C.F.R. §§ 404.1520(b)
5
Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
5
and 416.920(b). The second step is whether the applicant has a severe impairment
which significantly limits the physical or mental ability to do basic work activities, as
defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Third, if
there is an impairment and the impairment, or its equivalent, is listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or “the Listings”), and
meets the duration requirement of at least 12 continuous months, there is a
presumption of inability to perform substantial gainful activity, and the claimant is
deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§
423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth
step, however, if the impairment or its equivalent is not listed in Appendix 1, the
Commissioner must then consider the applicant’s “residual functional capacity,” which is
the ability to perform physical or mental work activities on a sustained basis,
notwithstanding the limitations posed by the applicant’s collective impairments, see 20
C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant work
(“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains capable of
performing PRW, disability benefits will be denied, id., but if the applicant is unable to
perform PRW relevant work, the Commissioner, at the fifth step, must consider whether,
given the applicant’s age, education, and past work experience, the applicant “retains a
residual functional capacity to perform alternative substantial gainful work which exists
in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of
proof is on the applicant for the first four steps, with the Commissioner bearing the
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burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4);
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found Plaintiff meets the Act’s insured status
requirement for SSDI through June 30, 2017, AR at 17, Plaintiff did not engage in
substantial gainful activity since November 16, 2012, his alleged disability onset date,
id., that Plaintiff suffers from the severe impairment of degenerative disc disease of the
lumbar spine, id., but that Plaintiff’s medically determinable impairment of hypertension
was well-controlled with medication and resulted in no limitations in basic work activities
such that the impairment is nonsevere, and Plaintiff’s asserted impairments of
depression and persistent knee pain are without any objective medical evidence in the
record and, as such, are not medically determinable. AR at 18. The ALJ further found
Plaintiff does not have an impairment or combination of impairments meeting or
medically equal to the severity of any listed impairment in Appendix 1, id. at 18, and that
Plaintiff retains the RFC to perform the full range of light work, AR at 18-21, including
Plaintiff’s past relevant work (“PRW”), as a telemarketer, a job which generally is
performed in the national economy at the sedentary level, AR at 21-22, such that
Plaintiff is not disabled as defined under the Act. Id. at 22. Plaintiff does not contest the
ALJ’s findings with regard to the first three steps of the five-step analysis, but argues
that in determining Plaintiff’s RFC at step four, the ALJ erred in discounting the opinion
of consultative examiner Donna Miller, D.O. (“Dr. Miller”), Plaintiff’s Memorandum at 69, and failed to develop the record with regard to Plaintiff’s asserted anxiety and
depression. Id. at 9-12. In opposition, Defendant argues the ALJ determined Plaintiff’s
RFC based on the entire record, including the credible limitations Plaintiff alleged,
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Defendant’s Memorandum at 7-12, properly evaluated Dr. Miller’s consultative opinion,
id. at 12-14, and properly evaluated Plaintiff’s mental impairments. Id. at 15-19. In
reply, Plaintiff argues the ALJ erroneously granted only portions of Dr. Miller’s opinion
weight, while rejecting others, Plaintiff’s Reply at 1-3, and reiterates that the ALJ should
have developed the record with regard to Plaintiff’s alleged mental impairments. Id. at
3-4. Plaintiff’s arguments are without merit.
Specifically, the ALJ did not err in discounting a portion of Dr. Miller’s opinion,
formed following a consultative internal medical examination on January 29, 2014, that
Plaintiff “has mild to moderate limitation for heavy lifting, bending, carrying, kneeling,
and squatting.” AR at 223-29. As the ALJ explains, this “vague opinion” is substantially
based on Plaintiff’s uncorroborated subjective complaints and are without any objective
support. AR at 20-21 (citing AR at 223-29). Despite Plaintiff’s complaints of constant
back and bilateral knee pain, upon examination by Dr. Miller, Plaintiff appeared in no
acute distress, walked with a normal gait, could walk on heels and toes without difficulty,
had normal stance, used no assistive devices, required no help changing or getting on
and off the examination table, and was able to rise from a chair without difficulty,
although Plaintiff could squat to only 75 %, and had some decreased range of motion in
his lumbar spine and knees. AR at 221-22. Dr. Miller reviewed X-rays showing both
knees were normal, AR at 222 (citing AR at 224 (right knee X-ray taken January 29,
2014), and 232 (left knee X-ray taken August 15, 2012)), and degenerative changes in
Plaintiff’s lumbar spine. AR at 222 (citing AR at 225 (lumbosacral spine X-ray taken
January 29, 2014, showing degenerative spondylolysis at L4-L5 but no compression
fracture)). The January 29, 2014 X-ray of Plaintiff’s lumbosacral spine is consistent with
8
an earlier lumbar spine X-ray taken August 15, 2012, showing advanced degenerative
disc disease and severe disc space narrowing at L5-S1, with facet joint arthropathy
involving the lower lumbar spine, but no evidence of spondylolisthesis or spondylolysis.
AR at 233. The ALJ thus did not err in according Dr. Miller’s opinion, that Plaintiff was
limited in his ability to lift and carry, little weight, AR at 19-21 (finding no objective
evidence that Plaintiff experiences any radiculopathy-like symptoms, citing AR at 233
(August 15, 2012 lumbar spine X-ray), and that Plaintiff retains the RFC for a full range
of light work, including sitting, standing, and walking without limitation, and lifting,
carrying, pulling and pushing up to 20 pounds occasionally, and 10 pounds frequently.
AR at 21.
Even assuming, arguendo, the ALJ erred in determining Plaintiff, despite his
knee and back impairments, retained the RFC for a full-range of light work, because, as
the ALJ found, AR at 21-22, and Plaintiff does not dispute, Plaintiff’s PRW as a
telemarketer is work that, both as performed in the national economy, as well as
performed by Plaintiff per his description, is sedentary, such error was harmless.6 See
6
As defined in the relevant regulations,
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 necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.
20 C.F.R. § 404.1567(a).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full range of light work, you must have the ability to do substantially all of these
activities.
20 C.F.R. § 404.1567(b).
9
Taylor v. Astrue, 2012 WL 294532, at * 8 (D. Md. Jan. 31, 2012) (holding that even if the
ALJ erred if failing to find some exertional limitations stemming from the claimant’s heart
condition, such limitations would not negatively impact Plaintiff’s RFC as to prevent the
claimant from her PRW which was classified as light, unskilled work); McClam v. Astrue,
2008 WL 4200588, at * 6 (D.S.C. Sept. 5, 2008) (“Because the ALJ concluded that [the
claimant] could do her past relevant work, as performed at the sedentary level, it is
harmless error to the extent the plaintiff cannot actually perform the full range of light
work.”). Moreover, as provided by the relevant regulation, “[i]f someone can do light
work, we determine that he or shall can also do sedentary work, unless there are
additionally limiting factors such as loss of fine dexterity or inability to sit for long periods
of time.” 20 C.F.R. § 404.1567(b). In the instant case, there is no evidence of such
additionally limiting factors. Accordingly, substantial evidence in the record supports the
ALJ’s determination that Plaintiff can perform his PRW as a telemarketer.
Nor was the ALJ required, as Plaintiff argues, Plaintiff’s Memorandum at 9-12,
Plaintiff’s Reply at 3-4, to develop the record with regard to Plaintiff’s alleged mental
impairments. Simply, remand is not required when an ALJ fails to request medical
reports or opinions provided, as here, “the record contains sufficient evidence from
which an ALJ can assess the petitioner’s residual functional capacity.” Tankisi v.
Comm’r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. Apr. 2, 2013) (citing cases).
Similarly, the ALJ is required to develop the record by recontacting treating sources only
where the evidence in the record is inadequate to permit the ALJ to make a disability
determination, Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) (holding ALJ not required
to develop the record by obtaining retrospective reports from claimant’s physicians
10
where reports from such physicians already in the record supported the ALJ’s disability
determination). As relevant here, the only evidence in the record of Plaintiff’s claimed
depression and anxiety is found in office treatment records for the time period of March
31, 2014 through April 13, 2015, from his primary care provider at North Buffalo Medical
Park West, where Plaintiff was treated by Kimberley Wilson, ANP (“NP Wilson”). AR at
246-73. Although at some visits, NP Wilson assessed Plaintiff with anxiety and
depression, see, e.g., AR at 247-48 (March 31, 2014), at other visits, Plaintiff was
assessed with no anxiety or depression. See, e.g., AR at 259 (July 7, 2014), 264
(March 2, 2015). Further, the reasons for Plaintiff’s visits included lower back pain, AR
at 247, blood work, AR at 252, follow-up with Plaintiff’s high blood pressure, AR at 255,
258, 264, and annual physical. AR at 267. Despite the several references to Plaintiff as
depressed and anxious, the record is devoid of any indication that Plaintiff’s ability to
perform work related activities is at all hampered by depression and anxiety. In fact,
Plaintiff’s disability benefits application does not list depression or anxiety as a claimed
disabling condition, see AR at 154, nor did Plaintiff testify that his depression or anxiety
caused him to stop working; rather, Plaintiff attributed his decision to cease working to
difficulty walking one mile from the bus stop to his place of employment. AR at 31. Nor
was Plaintiff ever prescribed any medication for depression or anxiety. Significantly, “[a]
lack of supporting evidence on a matter for which the claimant bears the burden of
proof, particularly when coupled with other inconsistent record evidence, can constitute
substantial evidence supporting a denial of benefits.” Barry v. Colvin, 606 Fed.Appx.
621, 622 (2d Cir. Apr. 21, 2015). In the absence of any more definitive evidence that
Plaintiff suffers from depression and anxiety sufficiently severe to impact Plaintiff’s
11
ability to work, the ALJ was not required to develop the record as to these asserted
conditions.
The ALJ’s assessment of Plaintiff as able to perform his PRW as a telemarketer
thus is supported by substantial evidence in the record, thereby supporting the ALJ’s
determination that Plaintiff is not disabled.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 9) is DENIED; Defendant’s Motion
(Dkt. 13) is GRANTED. The Clerk of Court is directed to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
February 13, 2019
Buffalo, New York
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