Majdandzic v. Commissioner of Social Security
Filing
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DECISION AND ORDER: The Commissioner's Motion for Judgment on the Pleadings 10 is GRANTED and Plaintiff's Motion for Judgment on the Pleadings 7 is DENIED. Plaintiff's Complaint 1 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 10/19/2018. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SANJA MAJDANDZIC,
Plaintiff,
Case # 17-CV-1172-FPG
v.
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Sanja Majdandzic brings this action pursuant to the Social Security Act seeking
review of the final decision of the Acting Commissioner of Social Security that denied her
application for Supplemental Security Income (“SSI”) under Title XVI of the Act. ECF No. 1.
The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 7, 10. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On October 8, 2013, Majdandzic protectively applied for SSI with the Social Security
Administration (“SSA”). Tr.1 161-66. She alleged disability since December 23, 2012 due to
scoliosis, a stroke, psoriasis, a blood clotting condition, partial blindness, post-traumatic stress
disorder (“PTSD”), depression, anxiety, and panic and bipolar disorders. Tr. 175. On January 4,
2016, Majdandzic appeared and testified at a hearing before Administrative Law Judge Susan
Smith. Tr. 59-90. On March 29, 2016, the ALJ issued a decision finding that Majdandzic was not
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“Tr.” refers to the administrative record in this matter.
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disabled within the meaning of the Act. Tr. 42-54. On September 18, 2017, the Appeals Council
denied Majdandzic’s request for review. Tr. 1-7. Thereafter, Majdandzic commenced this action
seeking 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) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner 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)
(quotation marks 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. 1998) (quotation marks
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990)
(holding that review of the Secretary’s decision is not de novo and that the Secretary’s findings
are conclusive if supported by substantial evidence).
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
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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. 20 C.F.R. § 404.1520(4)(c).
If the claimant does not have a severe impairment or combination of impairments that is severe,
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”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria of
a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is disabled.
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 20 C.F.R. § 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. 20 C.F.R. § 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).
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DISCUSSION
I.
The ALJ’s Decision
The ALJ’s decision analyzed Majdandzic’s claim for benefits under the process described
above. At step one, the ALJ found that Majdandzic had not engaged in substantial gainful activity
since the application date. Tr. 44. At step two, the ALJ found that Majdandzic has the following
severe impairments: antiphospholipid antibody disorder status post stroke, migraines, scoliosis,
anxiety, PTSD, panic and bipolar disorders, and polysubstance abuse. Tr. 44. At step three, the
ALJ found that these impairments, alone or in combination, did not meet or medically equal a
Listings impairment. Tr. 45-46.
Next, the ALJ determined that Majdandzic retains the RFC to perform light work2 with
additional limitations. Tr. 46-52. Specifically, the ALJ found that Majdandzic can occasionally
stoop, kneel, balance, crouch, crawl, and climb stairs and ramps, but cannot climb ladders, ropes,
or scaffolds; must avoid hazards like unprotected heights and dangerous moving machinery; and
cannot perform jobs that require driving or good peripheral vision. Tr. 46. The ALJ also found
that Majdandzic can perform only simple, routine, and repetitive tasks; requires a low-stress
environment with no high production quotas or fast-paced assembly line requirements; can have
only superficial contact with the public incidental to the work being performed; and can tolerate
only little change in work structure or routine. Id.
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“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).
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At step four, the ALJ indicated that Majdandzic has no past relevant work. Tr. 52. At step
five, the ALJ relied on the VE’s testimony and found that Majdandzic can adjust to other work
that exists in significant numbers in the national economy given her RFC, age, education, and work
experience. Tr. 53-54. Specifically, the VE testified that Majdandzic could work as a cleaner,
cafeteria attendant, and stock checker. Tr. 53. Accordingly, the ALJ concluded that Majdandzic
was not disabled under the Act. Tr. 53-54.
II.
Analysis
Majdandzic argues that remand is required because the ALJ improperly relied upon the
opinion of state agency review consultant Dr. Ferrin to determine the mental limitations in the
RFC assessment. ECF No. 7-1 at 18-21; ECF No. 11. Specifically, Majdandzic asserts that Dr.
Ferrin’s opinion was unreliable because it was “stale.” Id. She also contends that because the ALJ
“rel[ied] on a stale opinion and reject[ed] the only other available opinion, the ALJ made her
mental RFC determination without any medical opinions.” Id. For the reasons that follow, the
Court finds that Dr. Ferrin’s opinion was not stale and that the ALJ properly determined
Majdandzic’s mental RFC.
A.
Dr. Ferrin’s opinion was not stale.
Majdandzic argues that Dr. Ferrin’s opinion was stale because her condition “worsened”
after he reviewed the record and before the ALJ decided her case. ECF No. 7-1 at 19. The Court
disagrees.
A stale medical opinion does not constitute substantial evidence to support an ALJ’s
findings. See Camille v. Colvin, 104 F. Supp. 3d 329, 343-44 (W.D.N.Y. 2015) (quotation marks
and citation omitted), aff’d, 652 F. App’x 25 (2d Cir. 2016) (summary order). A gap of time
between when an opinion is rendered and the disability hearing and decision does not
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automatically invalidate that opinion; however, such an opinion may be stale if the claimant’s
condition deteriorates during that time. See, e.g., Welsh v. Colvin, No. 14-CV-6715P, 2016 WL
836081, at *12 (W.D.N.Y. Mar. 4, 2016) (finding that an opinion rendered before the “significant
deterioration” of the claimant’s mental status could not “constitute substantial evidence supporting
the ALJ’s determination”); Jones v. Comm’r of Soc. Sec., No. 10 CV 5831(RJD), 2012 WL
3637450, at *2 (E.D.N.Y. Aug. 22, 2012) (the ALJ should not have relied on a medical opinion in
part because it “was 1.5 years stale” as of the plaintiff’s hearing date and “did not account for her
deteriorating condition”).
On January 3, 2014, Dr. Ferrin reviewed Majdandzic’s record and opined that “despite a
psychiatric impairment,” Majdandzic can understand and remember instructions, sustain attention
and concentration for tasks, relate adequately with coworkers and supervisors, and adapt to basic
and routine workplace changes. Tr. 101.
The ALJ afforded “great weight” to Dr. Ferrin’s opinion because it recognized
Majdandzic’s limitations and was consistent with the record. Tr. 51. The ALJ noted that “Dr.
Ferrin’s opinion did not account for [Majdandzic]’s subjective complaints regarding anxiety” even
though “[t]he record shows she has consistently endorsed symptoms of anxiety that would impede
her ability to interact with others[,] particularly the public.” Id. The ALJ concluded that “[t]he
absence of a limitation related to [Majdandzic]’s anxiety slightly detracts from the weight of the
opinion.” Id.
Two years after Dr. Ferrin rendered his opinion, the ALJ conducted Majdandzic’s hearing
and issued a decision on her benefits application. Tr. 42-54, 59-90. Majdandzic argues that her
condition “worsened” after Dr. Ferrin rendered his opinion and before the ALJ decided her case,
which made Dr. Ferrin’s opinion stale. ECF No. 7-1 at 19.
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Majdandzic asserts that her visits to the emergency room indicate that her condition
worsened. Although Majdandzic has been to the emergency room on several occasions for a
variety of reasons (see, e.g., Tr. 346, 354, 363, 382), there is no evidence that these visits were due
to some deterioration in her condition after Dr. Ferrin rendered his opinion. Majdandzic also
visited the emergency room on several occasions before Dr. Ferrin rendered his opinion.
Treatment notes from Highgate Medical Group and DENT Neurologic Institute, which Dr. Ferrin
reviewed (Tr. 95, 101), reveal that Majdandzic frequently went to the emergency room. Tr. 262,
308.
Majdandzic also argues that mental evaluations that found diminished concentration
support her assertion that her condition deteriorated. Treatment notes that post-date Dr. Ferrin’s
opinion do reveal diminished concentration (see, e.g., Tr. 559, 582, 579, 566, 570); however, these
notes do not indicate that this was due to deterioration of her condition. A September 12, 2013
treatment note from DENT Neurologic Institute, which Dr. Ferrin reviewed (Tr.101), also noted
that Majdandzic had diminished concentration (Tr. 310).
Similarly, Majdandzic argues that her conditioned worsened based on depression
screenings that post-date Dr. Ferrin’s opinion that reveal mild to moderately severe depression.
Tr. 548, 551, 558, 577, 580. In his assessment, however, Dr. Ferrin specifically acknowledged
that Majdandzic alleged disability due to depression (Tr. 93) and records that he reviewed
discussed her depression as well. For example, hospital discharge notes from December 23, 2012
diagnosed Majdandzic with depression. Tr. 245-46. Similarly, a July 15, 2013 treatment note
from Highgate Medical Group notes depression and related prescribed medications, and an
October 24, 2013 treatment note from DENT Neurologic Institute found Majdandzic to have
moderate depression. Tr. 264-65, 300. Additionally, consultative examiner Christine Ransom,
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Ph.D.’s report noted that Majdandzic is “mostly depressed lately.” Tr. 329. Thus, it appears that
depression was an ongoing issue for Majdandzic and was not a condition that developed or
worsened after Dr. Ferrin rendered his opinion.
Moreover, the ALJ’s opinion acknowledged and discussed record evidence that post-dated
Dr. Ferrin’s opinion and pointed out that much of that evidence revealed normal mental status
examinations and that Majdandzic’s condition was stable. Tr. 48, 50-51.
For all of the reasons stated, the Court finds that Dr. Ferrin’s opinion was not stale.
B.
The ALJ did not make the RFC determination without a supporting medical
opinion.
Majdandzic argues that the ALJ further erred because she relied on Dr. Ferrin’s stale
opinion and “reject[ed] the only other available opinion,” i.e., consultative examiner Dr. Ransom’s
opinion, therefore making the mental RFC determination “without any medical opinions.” ECF
No. 7-1 at 20. The Court disagrees.
As discussed above, the Court finds that Dr. Ferrin’s opinion was not stale. Moreover, the
ALJ did not reject Dr. Ransom’s opinion; instead, she afforded it “some weight.” Tr. 51. Dr.
Ransom examined Majdandzic on December 19, 2013 and opined that she will have mild difficulty
following and understanding simple directions and instructions; performing simple tasks
independently; maintaining attention and concentration for simple tasks; maintaining a simple
regular schedule; and learning simple new tasks. Tr. 332. She also opined that Majdandzic will
have moderate difficulty performing complex tasks, relating adequately with others, and
appropriately dealing with stress. Id.
The ALJ afforded some weight to Dr. Ransom’s opinion because it recognized
Majdandzic’s limitations, but the ALJ found that it “overstate[d] those limitations.” Tr. 51. The
ALJ explained that Majdandzic’s mental status examinations conducted after Dr. Ransom’s
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examination showed that she had “largely normal results.” Id. Specifically, the ALJ noted that
the later examinations did “not show even a mild degree of limitation with [Majdandzic]’s ability
to perform simple tasks.” Id. In support of this finding, the ALJ cited and discussed record
evidence revealing that Majdandzic was cooperative, alert, and oriented in all areas, had clear
speech that was coherent and spontaneous, had goal directed thoughts, exhibited stable and
appropriate affect, and demonstrated intact concentration, memory, and fund of knowledge. Id.
(citing Tr. 535). Majdandzic was also able to recall three out of three test objects in her formal
memory testing. Id. (citing Tr. 542). In accordance with the SSA’s regulations, the ALJ was
entitled to discount Dr. Ransom’s opinion because she found it inconsistent with the record as a
whole. See 20 C.F.R. § 416.927(c)(4).
The ALJ also discounted Dr. Ransom’s opinion because it appeared “largely based on
[Majdandzic]’s own endorsements, which are not entirely persuasive.” Tr. 51. This was proper
as the ALJ extensively analyzed and discussed Majdandzic’s credibility and found her only
partially credible (Tr. 52),3 a finding that Majdandzic does not dispute.
The ALJ’s RFC assessment is consistent with portions of Drs. Ferrin and Ransom’s
opinions. The ALJ found, for example, that Majdandzic can perform only simple, routine, and
repetitive tasks, which aligns with Dr. Ferrin’s opinion that she can sustain attention and
concentration for tasks and Dr. Ransom’s opinion that she has only mild difficulties performing,
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An ALJ’s credibility determination may influence how she weighs the medical opinions, especially when those
opinions are based on the claimant’s subjective statements. See Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016)
(noting that “[t]he ALJ’s decision to discount [the plaintiff]’s credibility influenced the ALJ’s weighing of medical
opinions that were based in part on [the plaintiff]’s reports”). When the ALJ finds the claimant’s allegations not
credible, she is entitled to discount the opinion of a medical source who relied on the claimant’s subjective complaints.
See id. (“Because the ALJ declined to credit [the plaintiff], the ALJ was entitled to discount [the treating physician]’s
opinions insofar as they relied on [the plaintiff]’s subjective complaints.”) (citation omitted); see also Lewis v. Colvin,
548 F. App’x 675, 678 (2d Cir. 2013) (finding that the ALJ was not required to give controlling weight to treating
physician’s opinion where “it was unsupported by the objective medical evidence” and “based on [the plaintiff’s]
subjective complaints”) (summary order).
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learning, and maintaining attention and concentration for simple tasks and has moderate difficulty
performing complex tasks. The ALJ also found that Majdandzic can have only superficial contact
with the public, which is consistent with her finding that Majdandzic’s anxiety symptoms would
impede her ability to interact with others, and Dr. Ransom’s opinion that she is moderately limited
in this area. Finally, the ALJ found that Majdandzic can tolerate only little change in work
structure or routine, which aligns with Dr. Ferrin’s opinion that she can adapt to basic and routine
workplace changes.
Moreover, in accordance with her duty to assess Majdandzic’s RFC “based on all of the
relevant medical and other evidence,” 20 C.F.R. § 416.945(a)(3), the ALJ also discussed
Majdandzic’s treatment records, hearing testimony, and credibility in making the RFC
determination. Accordingly, in light of this evidence and the opinions set forth above, the Court
finds that the ALJ’s mental RFC determination is supported by substantial evidence.
C.
The ALJ properly relied on Dr. Ferrin’s opinion.
Majdandzic argues for the first time in her reply brief that Dr. Ferrin’s opinion was entitled
to “less weight” and was “unreliable” because he did not examine her and only reviewed her record
before rendering an opinion. ECF No. 11 at 3-4. As an initial matter, the Court need not consider
arguments raised for the first time in reply papers. See Mayer v. Neurological Surgery, P.C., No.
15-CV-0864(DRH)(ARL), 2016 WL 347329, at *4 (E.D.N.Y. Jan. 28, 2016) (citing EDP Med.
Comput. Sys., Inc. v. United States, 480 F.3d 621, 625 n.1 (2d Cir. 2007)) (citation omitted).
Nonetheless, the Court considers and rejects this argument.
The SSA’s regulations provide that it will generally give more weight to an opinion from
a source who has examined the claimant than to an opinion from a non-examining source. See 20
C.F.R. § 416.927(c)(1). “District courts in this Circuit have stated, as a general proposition, that
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while reports from nonexamining consultants are entitled to some evidentiary weight, they cannot
constitute substantial evidence.” Sundown v. Colvin, No. 1:15-CV-00814(MAT), 2018 WL
1081014, at *3 (W.D.N.Y. Feb. 28, 2018) (quotation mark and citations omitted); see also
D’augustino v. Colvin, No. 15-CV-6083, 2016 WL 5081321, at *2 (W.D.N.Y. Sept. 16, 2016)
(“[E]ven where a nonexamining opinion is afforded weight, it alone cannot be considered
substantial evidence.”) (emphasis added).
Here, as explained above, the ALJ did not rely on Dr. Ferrin’s opinion as sole support for
her RFC determination and even discounted portions of that opinion because it did not recognize
Majdandzic’s anxiety and inability to interact with others. The ALJ also evaluated the opinion of
Dr. Ransom, who examined Majdandzic, and incorporated many of her findings into the RFC
assessment, and she considered the medical evidence and Majdandzic’s testimony and credibility.
Accordingly, the Court finds that the ALJ did not err on this basis.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings (ECF No. 10) is GRANTED
and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 7) 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: October 19, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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