Cunningham v. Commissioner of Social Security
Filing
20
DECISION AND ORDER: The Commissioner's 15 Motion for Judgment on the Pleadings is GRANTED and Plaintiff's 12 Motion for Judgment on the Pleadings is DENIED. Plaintiff's Complaint is DISMISSED WITH PREJUDICE. The Clerk of Court will enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/9/2019. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LATIKWA D. CUNNINGHAM,
Plaintiff,
v.
Case # 17-CV-1135-FPG
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Latikwa D. Cunningham brings this action pursuant to the Social Security Act
seeking review of the denial of her Supplemental Security Income (“SSI”) application. ECF No.
1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 12, 15. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On August 8, 2013, Cunningham applied for SSI with the Social Security Administration
(“the SSA”). Tr. 1 241-46. She alleged disability since March 1, 2013 due to partial loss of use in
her left arm, herniated and bulging discs in her neck, high blood pressure, post-traumatic stress
disorder, severe depression, and anxiety. Tr. 139-40. Cunningham later amended her alleged
disability onset date to August 8, 2013. Tr. 295.
On October 22, 2015, Cunningham testified at a hearing before Administrative Law Judge
Sharon Seeley (“the ALJ”). Tr. 95-137. On February 8, 2016, after the ALJ received additional
medical evidence, Cunningham and a vocational expert (“VE”) testified at a supplemental hearing
1
“Tr.” refers to the administrative record in this matter. ECF No. 19.
1
before the ALJ. Tr. 64-94. On May 13, 2016, the ALJ issued a decision finding Cunningham not
disabled. Tr. 11-29. On September 5, 2017, the Appeals Council denied Cunningham’s request
for review. Tr. 1-7. This action seeks review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.
District Court Review
“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) (citing 42 U.S.C. §
405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is “conclusive”
if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citations
omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”
Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).
II.
Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and determines whether the claimant has an impairment, or combination of
impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the
2
claimant does not have a severe impairment or combination of impairments, the analysis concludes
with a finding of “not disabled.” If the claimant does, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing
and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ
determines the claimant’s residual functional capacity (“RFC”), which is the ability to perform
physical or mental work activities on a sustained basis notwithstanding limitations for the
collective impairments. See id. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the
Commissioner must present evidence to demonstrate that the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in the national
economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I.
The ALJ’s Decision
The ALJ analyzed Cunningham’s claim for benefits under the process described above. At
step one, the ALJ found that Cunningham had not engaged in substantial gainful activity since the
application date. Tr. 13. At step two, the ALJ found that Cunningham has the following severe
3
impairments: anxiety and affective disorders; alcohol dependence in partial remission;
degenerative disc disease of the cervical spine; left shoulder impairment status-post surgical
removal of the clavicle; and obesity. Id. At step three, the ALJ found that these impairments,
alone or in combination, do not meet or medically equal any Listings impairment. Tr. 13-16.
Next, the ALJ determined that Cunningham retains the RFC to perform light work 2 with
additional limitations. Tr. 16-27. Specifically, the ALJ found that Cunningham can lift, carry,
push, and pull 20 pounds occasionally and 10 pounds frequently, but cannot lift over 10 pounds
with her left arm; can occasionally reach overhead with her left arm, but cannot perform repetitive
motions; can occasionally balance, stoop, kneel, crouch, and crawl; and can occasionally climb
stairs and ramps but cannot climb ladders, ropes, or scaffolds. Tr. 16. The ALJ also found that
Cunningham can understand, remember, and carry out simple instructions and tasks and make
simple work-related decisions commensurate with such tasks; can occasionally interact with
coworkers and the public; and requires a low-stress work environment, i.e., one without
supervisory responsibilities or frequent changes in work routines, processes, or settings. Id.
At step four, the ALJ indicated that Cunningham has no past relevant work. Tr. 27. At
step five, the ALJ determined that Cunningham can adjust to other work that exists in significant
numbers in the national economy given her RFC, age, education, and work experience. Tr. 27-28.
Specifically, the VE testified that Cunningham can work as an office helper, hand packager, and
garment sorter. Tr. 28. Thus, the ALJ concluded that Cunningham was not disabled. Tr. 29.
2
“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 or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. § 416.967(b).
4
II.
Analysis
Cunningham argues that remand is required because the ALJ violated the treating physician
rule and the RFC determination lacks substantial evidence. ECF No. 12-1 at 25. The Court
addresses these arguments in turn below.
A.
Treating Physician Rule
Cunningham contends that the ALJ violated the treating physician rule when she evaluated
the opinion of Michael D. Calabrese, M.D. ECF No. 12-1 at 20-22. Specifically, Cunningham
asserts that the ALJ should have afforded controlling weight to Dr. Calabrese’s opinion that she
would be off task for 25% or more of an eight-hour workday. Id.
Under the treating physician rule, the ALJ must give a treating physician’s opinion
controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
20 C.F.R. § 416.927(c)(2); see also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
An ALJ may discount a treating physician’s opinion if it does not meet this standard, but she must
“comprehensively set forth [her] reasons for the weight assigned to a treating physician’s opinion.”
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); see also 20 C.F.R. § 416.927(c)(2) (“We
will always give good reasons in our notice of determination or decision for the weight we give
[the claimant’s] treating source’s opinion.”).
When a treating physician’s opinion is not given controlling weight, the ALJ considers the
following factors to determine how much weight it should receive: (1) whether the source
examined the claimant; (2) the length, nature, and extent of the treatment relationship; (3) whether
the source presented relevant evidence to support the opinion; (4) whether the opinion is consistent
with the record as a whole; (5) whether a specialist rendered the opinion in his or her area of
5
expertise; and (6) other factors that tend to support or contradict the opinion. 20 C.F.R. §
416.927(c)(1)-(6).
On October 19, 2015, Dr. Calabrese completed a Cervical Spine Medical Source Statement
wherein he opined that Cunningham’s symptoms would make her off task for 25% or more of an
eight-hour workday. Tr. 1269-73. Throughout the form, Dr. Calabrese wrote “see attached,”
which refers to Dr. Calabrese’s September 25, 2015 treatment notes. Tr. 1274-80. Instead of
opining as to Cunningham’s ability to sit, stand, walk, and do other physical work-related
activities, Dr. Calabrese wrote “FCE needed.” Tr. 1271-72. “FCE” refers to Functional Capacity
Evaluation, but there is no indication that Dr. Calabrese ever completed such an evaluation.
The ALJ rejected Dr. Calabrese’s opinion that Cunningham would be off task more than
25% of the workday because she found it “conclusory and poorly supported by objective medical
findings.” Tr. 27. Specifically, the ALJ pointed out that Dr. Calabrese’s opinion contained “no
explanation or support . . . other than a reference to an FCE that never occurred and the notation,
‘see attached.’” Id. The ALJ concluded that the findings in the attached treatment notes and
Cunningham’s conservative treatment history were inconsistent with Dr. Calabrese’s opinion. Id.
She also noted that Dr. Calabrese did not provide “any actual physical functional limitations to
support his statements regarding off-task time.” Id.
Cunningham does not argue that the ALJ’s discussion of Dr. Calabrese’s opinion lacked
the requisite good reasons; rather, she asserts that Dr. Calabrese’s opinion was entitled to
controlling weight based on certain record evidence. But the Court is not concerned with whether
substantial evidence supports Cunningham’s position; rather, the Court must decide whether
substantial evidence supports the ALJ’s decision. Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58,
59 (2d Cir. 2013) (summary order). Here, in accordance with the regulations, the ALJ discounted
6
Dr. Calabrese’s opinion because it was not well-explained or supported by objective medical
findings or the record as a whole. See 20 C.F.R. § 416.927(c)(3)-(4). In contrast to Dr. Calabrese’s
opinion that Cunningham would be off task, the record contained other medical opinions, upon
which the ALJ relied, that indicated that Cunningham can maintain attention, concentration, and a
regular schedule and can work without restrictions. Tr. 24-27, 149, 1074-75, 1158-59.
Accordingly, the Court finds that the ALJ properly evaluated Dr. Calabrese’s opinion.
B.
RFC Determination
Cunningham also argues that the RFC determination is improper because it lacks certain
additional non-exertional limitations. ECF No. 12-1 at 22-25.
A claimant’s RFC reflects what he or she “can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To make the RFC determination, “the
ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain
and other limitations that could interfere with work activities on a regular and continuing basis.”
Id. (citation omitted); see also 20 C.F.R. § 416.945(a). The ALJ assesses RFC “based on all of the
relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3).
First, Cunningham asserts that the RFC does not “incorporate any of the symptoms,
restrictions, and limitations associated with [her] headaches” (ECF No. 12-1 at 23), but she does
not set forth any specific limitations that the ALJ should have included. 3 The ALJ acknowledged
3
Cunningham also states that “the ALJ fail[ed] to even find headaches to be a severe impairment,” but she does not
advance this argument in any way. ECF No. 12-1 at 23. Accordingly, “the Court need not address that argument
because it is completely undeveloped.” Metro. Prop. & Cas. Ins. Co. v. Sarris, No. 115CV0780LEKDJS, 2017 WL
3252812, at *15 (N.D.N.Y. July 28, 2017); see also Herbert v. Architect of Capitol, 839 F. Supp. 2d 284, 298 (D.D.C.
2012) (“[T]he [defendant] has simply failed to support its argument with any meaningful measure of factual or legal
argument. Courts need not consider cursory arguments of this kind, and the Court declines to do so here.”).
Nonetheless, any such error to find Cunningham’s headaches to be a severe impairment at step two would be harmless
because the ALJ found other severe impairments and considered Cunningham’s headaches throughout the RFC
7
and discussed Cunningham’s headaches throughout her RFC analysis, including the fact that
occipital injections improved her symptoms. Tr. 21-22 (citing Tr. 1383, 1244). The ALJ also
considered Cunningham’s conservative treatment history, especially that she did not receive neck
surgery, even though record evidence indicates that surgery may have improved her headaches.
Tr. 23 (citing Tr. 1249, 1369, 1404); see 20 C.F.R. § 416.929(c)(3)(v) (explaining that the ALJ
can consider treatment the claimant has received when she evaluates the claimant’s statements
about her symptoms).
Although Cunningham testified to frequent and painful headaches, the ALJ evaluated those
allegations in light of Cunningham’s work history, the vagueness and inconsistency of many of
her statements, daily activities, and alcohol use. Tr. 23-24; see 20 C.F.R. § 416.929(c)(3)(i)-(vii)
(explaining that the ALJ is entitled to consider a variety of factors when she evaluates a claimant’s
statements about pain). The ALJ reasonably concluded that Cunningham’s statements about her
symptoms were not entirely consistent with the medical and other record evidence (Tr. 17), and
Cunningham does not dispute this finding.
Second, Cunningham contends that the RFC does not account for Dr. Calabrese’s opinion
that she would be off task for more than 25% of the workday and cannot handle even low stress
work. 4 ECF No. 12-1 at 24. As explained above, however, the ALJ properly discounted this
opinion and therefore did not have to include Dr. Calabrese’s opined limitations into the RFC.
Moreover, the record contains other medical opinions indicating that Cunningham can maintain
analysis. See Hayes v. Berryhill, No. 17-CV-6354-FPG, 2018 WL 3069116, at *3 (W.D.N.Y. June 21, 2018) (“If the
ALJ fails to make a severity determination as to an impairment, it is a harmless error if the ALJ finds other severe
impairments, and thus continues the disability analysis, and considers all impairments in the RFC determination.”).
4
The ALJ rejected Dr. Calabrese’s opinion that Cunningham was incapable of performing even low stress work for
the same reasons she rejected his opinion as to off task time (see Tr. 27), as described in greater detail above.
8
attention, concentration, and a regular schedule, is only mildly limited in her ability to
appropriately deal with stress, and can work without restrictions. Tr. 149, 1074-75, 1158-59.
Finally, Cunningham asserts that the RFC does not account for absences from work
because her weekly mental health program and likelihood of hospitalizations will prevent her from
maintaining appropriate attendance. ECF No. 12-1 at 24. Despite Cunningham’s contention to
the contrary, the consultative psychiatric examiner opined that she can maintain a regular schedule
(Tr. 1074-75) and the state agency review doctor opined that she is “not significantly limited” in
her ability to perform activities within a schedule, maintain regular attendance, be punctual, and
complete a normal workday and workweek (Tr. 149). The ALJ also discussed Cunningham’s prior
hospitalizations and reasonably concluded, with citations to supporting record evidence, that those
incidents were due to acute exacerbation of her symptoms when she was off medication or not
receiving therapy. Tr. 17-20 (citing Tr. 1073, 1178, 1180, 1217-18, 1220-22, 1231-32).
Accordingly, the Court finds that the ALJ did not err and additional limitations were not
warranted.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings (ECF No. 15) is GRANTED
and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 12) is DENIED. Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter
judgment and close this case.
IT IS SO ORDERED.
Dated: May 9, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?