Vujakovich v. Commissioner of Social Security
Filing
14
DECISION AND ORDER DENYING Plaintiff's 9 Motion for Judgment on the Pleadings; GRANTING Defendant's 12 Motion for Judgment on the Pleadings; DIRECTING the Clerk of Court to CLOSE this case. Signed by William M. Skretny, United States District Judge on 6/25/2019. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
ALYSSA VUJAKOVICH,
Plaintiff,
v.
DECISION AND ORDER
17-CV-1320S
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
1.
Plaintiff
Alyssa
Vujakovich
challenges
the
determination
of
an
Administrative Law Judge (“ALJ”) that she is not disabled within the meaning of the Social
Security Act (“the Act”). Plaintiff alleges that she has been disabled since March 20, 2013,
due to traumatic brain injury, attention deficit disorder, visual learning disability, seizures,
and asthma. Plaintiff contends that her impairments render her unable to work, and thus,
she is entitled to disability benefits under the Act. This Court has jurisdiction over this
action under 42 U.S.C. §§ 405(g), 1383(c)(3).
2.
Plaintiff applied for supplemental security income (SSI) on March 27, 2014.
The Commissioner denied her application on August 13, 2014. Five days later, Plaintiff
requested a hearing before an ALJ.
Thereafter, on March 6, 2017, ALJ Stephen
Cordovani held a hearing at which Plaintiff appeared with counsel and testified.
Vocational Expert (“VE”) Lanell R. Hall also testified. The ALJ considered the case de
novo and, on June 6, 2017, issued a written decision finding that Plaintiff is not disabled
and therefore not entitled to benefits under the Act. The Appeals Council denied Plaintiff’s
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request for review on November 6, 2017. Plaintiff filed the current action on December
21, 2017, challenging the Commissioner’s final decision.1
3.
On June 15, 2018, Plaintiff filed a Motion for Judgment on the Pleadings
under Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 9.) On August 10,
2018, the Commissioner filed a Motion for Judgment on the Pleadings. (Docket No. 12.)
Plaintiff filed a reply on August 29, 2018 (Docket No. 13), at which time this Court took
the motions under advisement without oral argument.
For the following reasons,
Plaintiff’s motion is denied, and Defendant’s motion is granted.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the function of a
reviewing 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). The
Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been legal error. Substantial evidence is that which amounts to
“more than a mere scintilla,” and has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than
one rational interpretation, the Commissioner’s conclusion must be upheld.
See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
The ALJ’s June 6, 2017 decision became the Commissioner’s final decision in this case when the Appeals
Council denied Plaintiff’s request for review.
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5.
“To determine on appeal whether an ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from 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). If supported by substantial evidence, the Commissioner's
finding must be sustained “even where substantial evidence may support the plaintiff's
position and despite that the court's independent analysis of the evidence may differ from
the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner's determination considerable
deference and will not substitute “its own judgment for that of the [Commissioner], even
if it might justifiably have reached a different result upon a de novo review.” Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6.
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled under the Act. See 20 C.F.R. §§
404.1520, 416.920. The Supreme Court of the United States recognized the validity of
this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing
whether a claimant is disabled. 482 U.S. 137, 140-42 (1987).
7.
The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits her physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider her
disabled without considering vocational factors such as age,
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education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, she has the residual functional capacity to
perform her past work. Finally, if the claimant is unable to
perform her past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original);
see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
8.
Although the claimant has the burden of proof on the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is divided
into two parts. First, the Commissioner must assess the claimant's job qualifications by
considering her physical ability, age, education, and work experience. Second, the
Commissioner must determine whether jobs exist in the national economy that a person
having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20
C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460 (1983).
9.
In this case, the ALJ made the following findings with regard to the five-step
process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since
March 27, 2014, the application date (R. at 14);2 (2) Neurocognitive disorder secondary
to epilepsy and remote history of traumatic brain injury, migraine headaches, obesity, and
asthma are severe impairments within the meaning of the Act (Id.); (3) Plaintiff does not
have an impairment or combination of impairments that meet or medically equal any of
the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 15); (4) Plaintiff
2
Citations to the underlying administrative record are designated as “R.”
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has had no past relevant work (R. at 24); (5) Plaintiff retains the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b), with certain
exceptions3 and can perform jobs that exist in significant numbers in the national economy
(R. at 16-17). Accordingly, the ALJ determined that Plaintiff was not under a disability as
defined by the Act during the relevant period—March 27, 2014, through June 6, 2017.
(R. at 26.)
10.
Plaintiff argues that the ALJ’s decision is not supported by substantial
evidence because (1) the RFC fails to incorporate any migraine- or seizure-related “offtask” time and/or work absences; (2) the RFC does not accurately reflect Plaintiff’s
intellectual limitations; and (3) the ALJ erroneously equates Plaintiff’s crafting and limited
travel with an ability to engage in substantial gainful activity. In response, Defendant
maintains that the ALJ properly formulated Plaintiff’s RFC and appropriately considered
her testimony. Each argument is discussed in turn.
11.
Plaintiff first argues that the ALJ’s formulation of her RFC is not supported
by substantial evidence because the ALJ failed to incorporate seizure- and migrainerelated “off-task” time or work absences. Plaintiff maintains that in the absence of a
material inconsistency between medical and non-medical evidence, the ALJ is required
to credit Plaintiff’s subjective account of her symptoms. For the reasons described below,
this argument is unavailing.
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The ALJ found that Plaintiff retained the RFC for light work, except that she must avoid concentrated
exposure to fumes, odors, dusts, gases, poor ventilation, and other respiratory irritants. She cannot be
exposed to loud noises or vibration and cannot work around unprotected heights or dangerous moving
mechanical parts. The ALJ further found that Plaintiff can understand, remember, and carry out simple
routine instructions and tasks, with no supervisory duties, no independent decision-making, no strict
production quotas, minimal changes in work routine and processes, and GED level mathematics limited to
level 1 or 2. (R. at 16-17.)
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12.
In formulating a claimant’s RFC, the ALJ must consider all relevant medical
and non-medical evidence, including any statements from medical sources concerning
the claimant’s functionality. See 20 C.F.R. §§ 416.927(c), 416.945(a)(3). Under Social
Security Ruling 16-3p (“Evaluation of Symptoms in Disability Claims”), the ALJ must
consider all of the evidence in an individual’s record when he or she evaluates the
intensity and persistence of symptoms, including statements from the individual, family
and friends, as well as agency personnel. 82 F.R. § 49462. The claimant, however,
bears the burden of demonstrating functional limitations that preclude substantial gainful
activity. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1512(c), 404.1545(a)(3); see
also Bowen, 482 U.S. at 146 n.5.
13.
The Commissioner has established a two-step process to evaluate a
claimant’s testimony regarding his or her symptoms:
First, the ALJ must consider whether the claimant has a
medically determinable impairment which would reasonably
be expected to produce the pain or symptoms alleged by the
claimant. Second, if the ALJ determines that the claimant is
impaired, he then must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms. If the
claimant’s statements about his symptoms are not
substantiated by objective medical evidence, the ALJ must
make a finding as to the claimant’s credibility.
Matejka v. Barnhart, 386 F. Supp. 2d 198, 205 (W.D.N.Y. 2005); see 20 C.F.R. §§
404.1529, 416.929.
14.
“Genuine conflicts in the medical evidence are for the Commissioner to
resolve,” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002), and the court “must show
special deference” to credibility determinations made by the ALJ, “who had the
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opportunity to observe the witness’ demeanor” while testifying. Yellow Freight Sys. Inc.
v. Reich, 38 F.3d 76, 81 (2d Cir. 1994).
15.
In determining Plaintiff’s RFC, the ALJ considered the physical,
neurological, psychiatric, and psychological examinations of Plaintiff conducted between
2014 and 2017, as well as Plaintiff’s testimony and opinion statements from her friends
and family. (R. at 17-24.) The ALJ expressly noted that the combination of Plaintiff’s
seizures, asthma, obesity, and migraines limited Plaintiff’s exertion level and he therefore
incorporated corresponding limitations into the RFC. (R. at 23.) The ALJ also considered
Plaintiff’s headaches but found that no additional RFC limitations were required because
the medical evidence did not support Plaintiff’s testimony concerning the severity of her
headaches. (R. at 24.)
16.
As to credibility, the ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause her alleged symptoms, but further
found that “the claimant’s statements concerning the intensity, persistence, and limiting
effects of these symptoms are not entirely consistent with the medical evidence and other
evidence in the record.” (R. at 19.)
17.
Plaintiff argues that because the ALJ did not find her entirely credible, he
did not consider all of the evidence of record. This is not so. In addition to weighing
treatment records containing unremarkable neurological findings, infrequent treatment,
and minimal complaints throughout the longitudinal medical record, the ALJ also
considered other evidence pursuant to SSR 16-3p. (R. at 19-23.) For example, the ALJ
considered Plaintiff’s migraine diary, function report (showing that Plaintiff has some
physical limitations due to her headaches), testimony, and statements of family and
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friends in addition to the objective medical evidence. (R. at 17-19, 24.) The ALJ explained
his decision to discount the statements of Plaintiff’s friends and family because they are
“from people who are insufficiently qualified to speak to issues such as whether or not the
claimant can work or is qualified for Social Security disability benefits”. (R. at 24.) The
record therefore demonstrates that the ALJ properly considered the record evidence
concerning Plaintiff’s seizures and headaches and sufficiently explained how he weighed
that evidence. Plaintiff’s first argument is therefore rejected.
18.
Plaintiff next argues that the ALJ’s decision is not supported by substantial
evidence because the ALJ failed to fully incorporate Plaintiff’s intellectual disability into
the RFC. Specifically, Plaintiff argues that the RFC does not account for her speech
impediment and many deficits in reading, analytical skills, abstract reasoning,
comprehension, memory, attention and concentration, and does not fully incorporate the
restrictions noted by Dr. Kevin Duffy, the consultative psychiatrist who evaluated Plaintiff.
19.
In his decision, the ALJ found no support in the record to find limitations to
the degree alleged, though he did find that Plaintiff had some mental-functioning
limitations. (R. at 17, 19-21, 23.) The ALJ noted that Plaintiff received special education
services and accommodations through an Individual Education Plan for the 2012-2013
school year to address low math and language scores. (R. at 19.) He further considered
medical records that indicated that Plaintiff was “friendly and cooperative” and “follows
commands easily.”
(Id.)
The ALJ also considered that a state agency psychiatric
consultant, Dr. G. Kleinerman, opined that Plaintiff had only mild difficulties in maintaining
concentration, persistence, or pace, and that she should be able complete “simple work.”
(R. at 21.)
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20.
The ALJ also considered Dr. Duffy’s findings. (R. at 15.) Dr. Duffy’s notes
indicate that Plaintiff “was cooperative and presented with generally adequate social
skills;” had good personal hygiene and grooming; her speech showed articulation
difficulties; attention and concentration were at least mildly impaired; and she achieved
borderline or low-average scores in verbal comprehension, perceptual reasoning working
memory, processing speed, and full-scale IQ tests. (R. at 294-97, 300-301.) Dr. Duffy
diagnosed mild to major neurocognitive disorder secondary to epilepsy. (R. at 297.)
According to Dr. Duffy’s medical source statement, Plaintiff can follow and understand
simple directions and instructions; can perform simple tasks independently; may have
some moderate to marked difficulties maintaining attention and concentration at times;
may have some mild to moderate difficulties maintaining a regular schedule; may have
marked difficulties learning new tasks; and may have marked difficulties performing
complex tasks independently. (R. at 296-297.) Dr. Duffy further opined that Plaintiff’s
cognitive difficulties stem from her active seizure disorder, but she can generally relate
adequately with others and can generally deal appropriately with stress. (Id.)
21.
Contrary to Plaintiff’s arguments, the ALJ considered her mental limitations
in formulating her RFC.
The ALJ noted that Plaintiff had moderate limitations in
understanding, remembering, or applying information, as indicated by her ability to follow
spoken instructions, but difficulty with written instructions, math, and memory. (R. at 15.)
The ALJ further noted that with regard to concentrating, persisting, or maintaining pace,
Plaintiff has only moderate limitations as supported by her ability to decorate cakes and
make jewelry, notwithstanding her frequent forgetfulness. (R. at 16.)
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22.
Despite the ALJ’s full consideration of Dr. Duffy’s opinion, Plaintiff claims
that the ALJ nonetheless erred because he ignored that portion of Dr. Duffy’s opinion
noting that “the results of the [intelligence evaluation] appear to be consistent with
cognitive problems and this may significantly interfere with claimant’s ability to function
on a daily basis.” (Id.) But the ALJ’s RFC determination is not inconsistent with this
statement. The ALJ incorporated restrictions in Plaintiff’s RFC that address her cognitive
limitations. Informed by Dr. Duffy’s opinion, the ALJ found that Plaintiff should be limited
to “simple routine instructions and tasks with no supervisory duties, no independent
decision-making, no strict production quotas, and minimal changes in work routine,” as
well as work that requires only GED level 1 or 2 mathematics. (R. at 23-24.) These
limitations are consistent with Dr. Duffy’s opinion and the other relevant evidence in the
record. (R. at 19.) Consequently, the ALJ’s RFC formulation is supported by substantial
evidence.
23.
Lastly, Plaintiff argues that it was improper for the ALJ to rely on her
activities of daily living as evidence of her ability to perform substantial gainful activity.
Plaintiff points specifically to the ALJ’s findings that she is able to craft and was able to
visit her boyfriend in Ontario, Canada, by bus. Plaintiff contends that the ALJ’s reliance
on this evidence as indicative of her activity level is misplaced because her ability to craft
is limited by her headaches and seizures and the independent travel occurred only once.
24.
Had the ALJ exclusively relied on this testimony in finding Plaintiff not
disabled, his determination may well not be supported by substantial evidence. But as
discussed above, the ALJ relied on all available medical records and Plaintiff’s testimony
as a whole in determining that she is not disabled within the meaning of the Act. This
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Court therefore finds no reversible error in the ALJ’s consideration of Plaintiff’s daily
activities.
25.
Having reviewed the ALJ’s decision in light of Plaintiff’s arguments, this
Court finds that it is free from legal error and supported by substantial evidence. Plaintiff’s
Motion for Judgment on the Pleadings is therefore denied, and Defendant’s motion
seeking the same relief is granted.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 9) is DENIED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
12) is GRANTED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated:
June 25, 2019
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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