Orcutt v. Commissioner of Social Security
Filing
18
DECISION & ORDER The Commissioner's motion for judgment on the pleadings 15 is granted. Orcutt's motion for judgment on the pleadings 12 is denied, and Orcutt's complaint 1 is dismissed with prejudice. Signed by Hon. Marian W. Payson on 11/15/2018. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
RHEANNAH ORCUTT,
DECISION & ORDER
Plaintiff,
17-CV-1072P
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Rheannah Orcutt (“Orcutt”) brings this action pursuant to Section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying her application for
Supplemental Security Income Benefits and Disability Insurance Benefits (“SSI/DIB”).
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a
United States magistrate judge. (Docket # 8).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 12, 15). For the
reasons set forth below, this Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and is in accordance with applicable legal standards.
Accordingly, the Commissioner’s motion for judgment on the pleadings is granted, and Orcutt’s
motion for judgment on the pleadings is denied.
DISCUSSION
I.
Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s
determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
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they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if he or she is
unable “to engage in 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 12 months.” 42 U.S.C.
§§ 423(d)(1)(A) & 1382c(a)(3)(A). In assessing whether a claimant is disabled, the ALJ must
employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). The five steps are:
(1)
whether the claimant is currently engaged in substantial
gainful activity;
(2)
if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
(3)
if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;
(4)
if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform [her] past work; and
(5)
if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
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step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
II.
Parties’ Contentions
Orcutt contends that the ALJ’s determination that she is not disabled is not
supported by substantial evidence and is the product of legal error. (Docket ## 12, 17). First,
she challenges the ALJ’s Residual Functional Capacity (“RFC”) assessment on the grounds that
the ALJ improperly relied upon the unsupported opinion of consulting examiner Hongbiao Liu
(“Liu”), MD. (Docket ## 12-1 at 12-16; 17 at 1-5). Next, Orcutt argues that the ALJ’s error was
compounded at step four when she determined that Orcutt was capable of performing her past
relevant work without accounting for limitations overlooked by Liu, but otherwise supported by
the record. (Docket ## 12-1 at 16-17; 17 at 5-7).
The Commissioner maintains that the ALJ properly relied upon Liu’s opinion,
which was consistent with and well-supported by the record. (Docket # 15-1 at 13-17). The
Commissioner also maintains that the ALJ’s step-four determination is supported by the record.
(Id. at 17-20).
III.
Analysis
A.
Physical RFC Assessment
Orcutt contends that the ALJ’s physical RFC assessment is not supported by
substantial evidence because she relied upon a medical opinion that lacks support in the record.
(Docket ## 12-1 at 12-16; 17 at 2-5). According to Orcutt, Liu’s October 2015 medical opinion
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cannot support the ALJ’s RFC findings because Liu determined that Orcutt’s deep tendon
reflexes (DTRs) were “equal and physiologic” in all of her extremities and that Orcutt did not
suffer from any sensory deficits. (Id.). These findings, Orcutt maintains, were directly
contradicted by examinations performed by a neurological specialist, Peterkin Lee-Kwen
(“Lee-Kwen”), MD, who evaluated Orcutt in October 2015 and again in 2016. (Id.). Upon
examination, Lee-Kwen observed that Orcutt had distally impaired reflexes in all extremities and
that she had decreased pin prick sensation in the lower back portion of her legs. (Tr. 260, 294).
An individual’s RFC is her “maximum remaining ability to do sustained work
activities in an ordinary work setting on a continuing basis.” Melville v. Apfel, 198 F.3d 45, 52
(2d Cir.1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (1996)). In making an RFC
assessment, the ALJ should consider “a claimant’s physical abilities, mental abilities,
symptomology, including pain and other limitations which could interfere with work activities
on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221 (N.D.N.Y. 2009)
(citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant
evidence, including medical opinions and facts, physical and mental abilities, non-severe
impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue, 2009 WL
1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 370 F. App’x 231 (2d
Cir. 2010).
Having reviewed the record, I find that Liu’s opinion has substantial support in
the record and that the ALJ did not err in relying upon it. As an initial matter, conflicts in the
record are to be resolved by the ALJ. Veino v. Barnhart, 312 F.3d 578, 588-89 (2d Cir. 2002)
(“[g]enuine conflicts in the medical evidence are for the Commissioner to resolve”). In her
decision, the ALJ acknowledged that Lee-Kwen had observed decreased sensation and impaired
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reflexes upon examination of Orcutt. (Tr. 34). The ALJ also summarized the results of Liu’s
examination of Orcutt. (Id.). After considering the record as a whole, the ALJ determined to
give “significant weight” to Liu’s opinion, finding that it was based upon his examination and
experience and was “consistent with the record as a whole.” (Tr. 36). By contrast, the ALJ gave
“little weight” to Lee-Kwen’s opinion that Orcutt was totally disabled, finding that Lee-Kwen
had not provided a function-by-function assessment and that his opinion related to an issue
reserved for the Commissioner. (Id.).
The medical records provide conflicting evidence regarding Orcutt’s neurological
symptoms. Although Orcutt sometimes complained of numbness, primarily in her hands, she
repeatedly denied suffering from numbness or weakness in her lower extremities and was
repeatedly assessed to have a normal gait and normal strength and stability in her upper and
lower extremities. (Tr. 242, 245-46, 282, 387, 389, 390, 392-93, 395-96, 399, 402, 404, 409,
415, 419, 421, 425, 428, 431, 435, 439, 442-43, 444-45, 448, 451, 455, 459, 462, 466, 469, 472).
Although Lee-Kwen assessed that Orcutt had decreased reflexes in all extremities and decreased
sensation in her lower legs, Liu assessed that she had normal reflexes and sensation (Tr. 273),
and Orcutt’s physical therapist’s examination demonstrated only some areas of hyposensitivity in
her left leg and normal sensation in her other extremities. (Tr. 299-301). Contrary to Orcutt’s
contention, in view of the conflicting evidence in the record, the ALJ was entitled to rely upon
Liu’s opinion notwithstanding its apparent conflicts with Lee-Kwen’s examination findings.1
See McGill v. Berryhill, 2018 WL 1368047, *10 (E.D.N.Y. 2018) (“[a]lthough there are some
I reject Orcutt’s contention that the Commissioner’s citation to information contained in medical records
not specifically cited by the ALJ constitutes improper post-hoc rationalization. (Docket # 17 at 2). An ALJ is not
required to cite to specific pages of the record in support of each of her findings. Brault v. Soc. Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (“[a]n ALJ does not have to state on the record every reason justifying a
decision[,] . . . [and] [a]n ALJ’s failure to cite specific evidence does not indicate that such evidence was not
considered”). In any event, the ALJ discussed the medical record at length in her decision (Tr. 32-34, citing
Exhibits 1F, 3F, 4F, 6F, 10F and 12F).
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conflicting findings in the record, the ALJ’s determination . . . is well supported in the record,
and it is the ALJ’s task to resolve genuine conflicts in the medical evidence”); Bull v. Colvin,
2014 WL 6627491, *6 (W.D.N.Y. 2014) (“[w]hen an ALJ is faced with multiple and genuinely
contradictory medical opinions, it falls to the ALJ to weigh the totality of the evidence in the
record, both medical and non-medical, in order to resolve the conflicts and make a proper RFC
assessment”).
Nor is there merit in Orcutt’s contention that the conflicting examination findings
of Liu and Lee-Kwen required the ALJ to recontact Lee-Kwen. (Docket ## 12-1 at 14-15; 17 at
4-5). As noted above, an ALJ’s responsibilities include weighing conflicting evidence in the
record. Simply stated, “[t]he mere fact that medical evidence is conflicting or internally
inconsistent does not mean that an ALJ is required to re-contact a treating physician.” Micheli v.
Astrue, 501 F. App’x 26, 29 (2d Cir. 2012); see Miller v. Comm’r of Soc. Sec., 2017 WL
4286295, *10 (N.D.N.Y. 2017) (“the presence of an evidentiary conflict does not categorically
require the ALJ to seek further information[;] . . . it is the province of the ALJ to consider and
resolve conflicts in the evidence as long as the decision rests upon adequate findings supported
by evidence having rational probative force”) (internal quotations omitted). In this case,
substantial evidence supported the ALJ’s determination to rely upon Liu’s opinion in formulating
her physical RFC; thus, no gap existed in the record and the ALJ had no duty to recontact
Lee-Kwen or to obtain a functional assessment.2 (Docket # 12-1 at 15-16).
To the extent that Orcutt argues that the ALJ improperly elevated Liu’s opinion over that of a treating
physician, I disagree. (Docket ## 12-1 at 14; 17 at 3-4). Putting aside the dispute as to whether Lee-Kwen qualifies
as Orcutt’s treating physician, see, e.g., Patterson v. Astrue, 2013 WL 638617, *8 (N.D.N.Y.) (“three examinations
by [a physician] over the course of four months . . . does not constitute the type of ‘ongoing relationship’ that is
required for finding that s/he is plaintiff’s treating physician under the relevant regulations”) (citing 20 C.F.R.
§§ 404.1502, 416.902), report and recommendation adopted, 2013 WL 592123 (N.D.N.Y. 2013); Cascio v. Astrue,
2012 WL 123275, *3 (E.D.N.Y. 2012) (ALJ reasonably determined “that two isolated visits, approximately one year
apart, did not constitute an ‘ongoing treatment’ relationship rising to the level necessary for [the physician] to
qualify as a treating physician”), the ALJ provided good reasons for giving Liu’s opinion significant weight and for
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B.
Assessment of Ability to Perform Past Work
Orcutt also challenges the ALJ’s determination that she was able to perform her
past relevant work. (Docket ## 12-1 at 16-18; 17 at 5-7). According to Orcutt, the ALJ failed to
properly inquire about the physical demands of her past relevant work. (Id.). I disagree.
“The regulations define ‘past relevant work’ as work performed within the
preceding fifteen (15) years, performed long enough for the claimant to have learned how to do
it, and which work constituted substantial gainful activity.” Kochanek v. Astrue, 2010 WL
1705290, *10 (N.D.N.Y.) (citing 20 C.F.R. § 416.965), report and recommendation adopted,
2010 WL 1713438 (N.D.N.Y. 2010). “[I]n the fourth stage of the [disability] inquiry, the
claimant has the burden to show an inability to return to her previous specific job and an inability
to perform her past relevant work generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir.
2003). “[I]n order to determine at step four whether a claimant is able to perform her past work,
the ALJ must make a specific and substantial inquiry into the relevant physical and mental
demands associated with the claimant’s past work, and compare these demands to the claimant’s
residual capabilities.” Matejka v. Barnhart, 386 F. Supp. 2d at 204-05 (internal quotations
omitted). In making this inquiry, “[a]n ALJ may rely on the claimant’s statements, which ‘are
generally sufficient for determining the skill level[,] exertional demands and nonexertional
demands of such work.’” Kochanek v. Astrue, 2010 WL 1705290 at *11 (quoting SSR 82-62,
1982 WL 31386, *3). “An administrative law judge also may consult with a vocational expert
discounting Lee-Kwen’s opinion that Orcutt was disabled. (Tr. 36). See Scitney v. Colvin, 41 F. Supp. 3d 289,
302-03 (W.D.N.Y. 2014) (ALJ properly discounted opinion of treating physician that was inconsistent with the
record as a whole, including the opinions of state consultative physicians and claimant’s testimony of daily
activities); Molina v. Colvin, 2014 WL 3925303, *2 (S.D.N.Y. 2014) (ALJ did not err in declining to credit opinion
of treating physician where the “opinion was contradicted by ‘other substantial evidence in the record,’ including
two other doctors’ opinions”); Atwater v. Astrue, 2012 WL 28265, *4-5 (W.D.N.Y. 2012) (ALJ properly found
treating physician’s opinion inconsistent with record as a whole where opinion conflicted with opinions of state
agency medical consultants and was inconsistent with claimant’s reported activities), aff’d, 512 F. App’x 67 (2d Cir.
2013).
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witness who can provide evidence of ‘physical and mental demands of a claimant’s past relevant
work, either as the claimant actually performed it or as generally performed in the national
economy.’” Mathews v. Colvin, 2014 WL 837712, *8 (N.D.N.Y. 2014) (quoting 20 C.F.R.
§§ 404.1560(b)(2), 416.960(b)(2)).
During the hearing, Orcutt testified about the physical demands of her prior
relevant work. She testified that as a manager for a publications sales company she spent her day
“mostly at a desk, sitting down.” (Tr. 95). That position also required her to do some filing,
training and walking around the office. (Id.). Orcutt testified that she also had previous
employment in a sales customer service position, which primarily involved working at a desk
using the telephone and a computer, and in another customer service position, which also
involved using a computer at her desk most of the day, although she did interact with clients and
attend meetings in conference rooms. (Tr. 96).
The record shows that both the ALJ and vocational expert Roxanne Benoit
(“Benoit”) questioned Orcutt about the physical requirements of her positions. (Tr. 95-96). The
ALJ also asked Orcutt to explain why she believed she was unable to return to her previous
work, and Orcutt testified that she was unable to sit or stand for extended periods. (Tr. 70). She
also testified that her mental limitations, coupled with environmental variables affecting her back
pain, precluded her from working consistently.3 (Tr. 92).
The ALJ also elicited testimony from Benoit. (Tr. 92-101, 223). Based upon
Orcutt’s testimony, Benoit classified each of Orcutt’s relevant past positions by a DOT number
and title. She described the characteristics of those positions, including the exertional and skill
3
Significantly, when questioned by the ALJ, Orcutt did not identify limitations in her ability to turn her
head or to use her arms as reason she was unable to return to work. (Docket ## 12-1 at 17; 17 at 5; Tr. 70, 92). That
testimony undercuts any argument to the contrary on this appeal.
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levels, as the jobs are typically performed in the national economy and as they were actually
performed by Orcutt based upon her testimony. (Tr. 96-97). Benoit testified that Orcutt
previously worked as a sales and marketing manager under DOT number 163.117-910,4 which
characterizes the position as sedentary and highly skilled with an SVP of 8. (Tr. 97). According
to Benoit, based upon Orcutt’s testimony, the position as it was actually performed by Orcutt had
an SVP of 5 or 6. (Id.). Benoit also testified that Orcutt had previously worked as a customer
service representative under DOT number 249.362-026, which characterizes the position as
sedentary and semi-skilled with an SVP of 4. (Id.). Benoit opined that an individual with
Orcutt’s limitations could perform her previous positions. (Tr. 98-100).
In sum, the ALJ compared Orcutt’s RFC with the physical and mental demands of
her previous work and concluded that Orcutt was “able to perform [the previous work] as
actually and generally performed.” (Tr. 36-37). I find that the ALJ adequately inquired as to the
demands of Orcutt’s previous employment and that her conclusion at step four is supported by
substantial evidence in the record. See Mathews v. Colvin, 2014 WL 837712 at *8-9 (ALJ
adequately inquired into mental demands of previous work where he elicited testimony from
claimant regarding previous work responsibilities and consulted a vocational expert); Strauss v.
Astrue, 2012 WL 1035715, *11 (D. Or. 2012) (ALJ satisfied duty by eliciting testimony from
plaintiff that the physical demands of his previous job included “travel[ing] out of the office,
carry[ing] boxes, and be[ing] out on the sales floor”).
CONCLUSION
After careful review of the entire record, this Court finds that the Commissioner’s
denial of SSI/DIB was based on substantial evidence and was not erroneous as a matter of law.
4
As noted by Orcutt, the DOT number provided by the vocational expert is incorrect. (Docket # 17 at 5).
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Accordingly, the ALJ’s decision is affirmed. For the reasons stated above, the Commissioner’s
motion for judgment on the pleadings (Docket # 15) is GRANTED. Orcutt’s motion for
judgment on the pleadings (Docket # 12) is DENIED, and Orcutt’s complaint (Docket # 1) is
dismissed with prejudice.
IT IS SO ORDERED.
sMarian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
November 15, 2018
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