May v. Commissioner of Social Security
Filing
15
ORDER denying 9 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings. Signed by Hon. H. Kenneth Schroeder Jr. on 6/28/2019. (KER)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN F. MAY,
Plaintiff,
17-CV-1347Sr
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all
proceedings, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #7.
BACKGROUND
Plaintiff applied for disability insurance benefits and supplemental security
income (“SSI”), with the Social Security Administration (“SSA”), on December 16, 2013,
2013, alleging disability beginning March 31, 2013, when he was 37 years old. Dkt. #8,
pp.24 & 32.
On May 13, 2015, plaintiff appeared and testified, along with an impartial
vocational expert, Paul Delmar, before Administrative Law Judge (“ALJ”), Bryce Barid.
Dkt. #8, pp.38-66. Plaintiff was advised of his right to representation, but chose to
proceed without a representative. Dkt. #8, pp.42-43. The ALJ reviewed the medical
evidence in the SSA file with plaintiff and inquired as to all of the medical providers
plaintiff had seen, determining that additional records needed to be requested. Dkt. #8,
pp.43-47.1
Plaintiff testified that he was unable to work because his back and knees
hurt if he stands for long periods of time. Dkt. #8, p.53. He is only able to walk a short
distance before he has to stop and rest. Dkt. #8, p.53. He suffers from grand mal, petit
mal and walking seizures as well as migraine headaches, however, his most recent
seizure was more than two years prior to the hearing, and he had been cleared to drive.
Dkt. #8, pp.53-54 & 57. Even with medication, plaintiff testified that he suffers from
migraine headaches 4-5 times per month. Dkt. #8, p.59. Plaintiff testified that he also
suffers from a personality disorder, depression, anxiety, paranoia and claustrophobia.
Dkt. #8, p.54.
When asked to assume a hypothetical individual who would be able to sit
and stand or walk for up to 6 hours in an 8-hour day and was limited to light exertion,
frequent overhead reaching, bilaterally; occasional stooping, kneeling and crouching, no
crawling or climbing of ladders, ropes or scaffolds; environments without exposure to
excessive vibration, unprotected heights, moving machinery or bright or flashing lights
or anything more than loud environments and simple, routine tasks that can be learned
1
The medical records were received by the SSA. Dkt. #8, pp.24 & 263-309.
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after a short demonstration or within 30 days, who could not travel to unfamiliar places
and could have up to occasional interaction with the public and co-workers, the
vocational expert testified that such an individual could perform the jobs of assembler,
inspector or bench assembly, each of which were unskilled light exertion positions. Dkt.
#7, pp.61-62. When the hypothetical was changed to limit the individual’s ability to
stand or walk to 2 hours per workday and his capacity for lifting up to 10 pounds
occasionally and 5 pounds frequently, the vocational expert testified that the individual
could perform the jobs of final assembly, machine tender and inspector, each of which
were unskilled sedentary exertion positions. Dkt. #8, pp.63-64. If interaction with the
public could not exceed superficial, the vocational expert testified that the individual
could still perform any of the sedentary or light exertion positions identified in the first
two hypotheticals. Dkt. #8, pp.63-64. If the individual was unable to concentrate and
was off task for 25% of the work day, the vocational expert testified that he would not
be able to perform any substantial gainful employment. Dkt. #8, pp.64-65.
The ALJ rendered a decision that plaintiff was not disabled on September
9, 2016. Dkt. #8, pp.21-34. The Appeals Council denied review on November 1, 2017.
Dkt. #8, p.4. Plaintiff commenced this action seeking review of the Commissioner’s final
decision on November 29, 2017. Dkt. #1.
DISCUSSION AND ANALYSIS
“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
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the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).
To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do 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
twelve months. 20 C.F.R. § 404.1505(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is disabled within the meaning of
the Act. 20 C.F.R. § 404.1520(a). At step one, the claimant must demonstrate that he is
not engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the
claimant must demonstrate that he has a severe impairment or combination of
impairments that limits the claimant’s ability to perform physical or mental work-related
activities. 20 C.F.R. § 404.1520(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled to
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disability benefits. 20 C.F.R. § 404.1520(d). If the impairment does not meet the criteria
of a disabling impairment, the Commissioner considers whether the claimant has
sufficient residual functional capacity (“RFC”), for the claimant to return to past relevant
work. 20 C.F.R. § 404.1520(e)-(f). If the claimant is unable to return to past relevant
work, the burden of proof shifts to the Commissioner to demonstrate that the claimant
could perform other jobs which exist in significant numbers in the national economy,
based on claimant’s age, education and work experience. 20 C.F.R. § 404.1520(g).
In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful
activity since March 31, 2013; (2) plaintiff’s lumbago, arthritis, anxiety and depression
constitute severe impairments; (3) plaintiff’s impairments did not meet or equal any
listed impairment; (4) plaintiff retained the RFC to perform light work with the following
limitations: sit and stand or walk for up to 6 hours in an 8-hour workday; frequent
overhead reaching bilaterally; occasional stooping, kneeling, crouching and interaction
with the public and coworkers; no crawling or climbing of ladders, ropes or scaffolds;
exposure to no more than loud noise and no exposure to bright or flashing lights,
excessive vibration or hazards such as unprotected heights or moving machinery;
simple, routine tasks, including repetitive tasks, that can be learned after a short
demonstration or within 30 days; and no travel to unfamiliar places; and (5) plaintiff was
unable to perform his past relevant semi-skilled work as a security guard and home
health aide, but retained the functional capacity to work in unskilled, light exertion level
positions such as electric equipment assembler, mail clerk or office helper and was not,
therefore, disabled within the meaning of the SSA. Dkt. #8, pp.26-33.
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Plaintiff argues that he was denied a full and fair hearing because the ALJ
failed to advise him of his right to question the vocational expert and such failure was
prejudicial because the ALJ’s hypothetical questions to the vocational expert did not
fully incorporate all of plaintiff’s limitations. Dkt. #9-1, p.14. For example, the ALJ’s
hypothetical question supposed that plaintiff could stand or walk for up to 6 hours in an
8-hour day, even though plaintiff testified that he was unable to stand for prolonged
periods because of the pain in his back and knees. Dkt. #9-1, pp.12-14. Plaintiff further
argues that the ALJ failed to properly assess the consultative examiner’s opinion, which
imposed greater restrictions upon plaintiff’s ability to reach overhead than the ALJ’s
RFC. Dkt. #9-1, pp.15-18. Specifically, plaintiff argues that the ALJ’s limitation to
frequent overhead reaching is less restrictive than the consulting examiner’s opinion
that plaintiff had a mild to moderate limitation for overhead reaching. Dkt. #9-1, p.17.
Plaintiff argues that each of the positions identified by the vocational expert require
frequent reaching. Dkt. #9-1, p.18.
The Commissioner responds that the ALJ’s pre-hearing notice (Dkt. #8,
p.116), apprised plaintiff of his right to question witnesses at the hearing. Dkt. #12-1,
pp.7-8. In any event, the Commissioner argues the questions posed to the vocational
expert did not prejudice because the RFC was supported by substantial evidence and
the ALJ posed a hypothetical question which accurately reflected the limitations set
forth in the RFC. Dkt. #12-1, pp.8-9. The Commissioner further responds that the ALJ
properly evaluated the consultative examiner’s opinion that plaintiff had a mild to
moderate limitation for overhead reaching when he limited plaintiff to frequent overhead
reaching. Dkt. #12-1, p.14.
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In light of the essentially non-adversarial nature of a social security
proceeding, it is well accepted that an ALJ has an affirmative duty to develop the
administrative record. See, e.g., Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
This duty is heightened where a claimant properly waives his right to counsel and
proceeds pro se. Id. at 113. More specifically, the ALJ has a duty to adequately protect
a pro se claimant’s rights by ensuring that all of the relevant facts are sufficiently
developed and considered. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990).
20 C.F.R. § 416.1429 provides that during the course of a hearing before
an ALJ, a claimant may, inter alia, “examine the evidence used in making the
determination or decision under review and present and question witnesses.” Courts
within the Second Circuit have consistently referred to this provision as affording a
claimant the right to cross examine witnesses such as a vocational expert.
Kuppenbacker v. Berryhill, No. 6:17-cv-6068, 2017 WL 6275727, at *4 (W.D.N.Y. Dec.
11, 2017); Alvarezv Brown, 704 F. Supp. 49, 53 (S.D.N.Y. 1989).
Where the ALJ has “fulfilled his obligation of vigorously exploring for all
the relevant facts, including properly questioning witnesses upon whose testimony he
relied,” plaintiff is not “prejudiced by the lack of counsel and his ignorance of his right to
call and cross-examine witnesses.” Alvarez, 704 F. Supp. at 54. If, on the other hand, “a
claimant proceeds pro se and the ALJ fails to adequately develop the record or
accurately depict the claimant’s limitations, courts in this Circuit have found that the
failure to remind the claimant of [his] right to question witnesses constitutes reversible
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error.” Kuppenbacker, 2017 WL 6275727 at *3; See Vernon v. Colvin, 15-CV-6387,
2016 WL 5661971, at *5 (W.D.N.Y. Oct. 3, 2016)(remanding where ALJ credited
diagnosis of mental impairments, but failed to include such impairments in hypothetical
question to vocational expert). The hypothetical questions posed to the vocational
expert must include all of the claimant’s limitations that are supported by the medical
evidence in the record in order for the opinion of the vocational expert to constitute
substantial evidence . Potter v. Colvin, 15-CV-6337, 2016 WL 5468108, at * 4
(W.D.N.Y. Sept. 29, 2016); Gucinski v. Colvin, No. 12-CV-276, 2014 WL 4659298, at *9
(W.D.N.Y. Sept. 17, 2014).
In the instant case, plaintiff advised the consulting medical examiner that
he had a history of arthritis and complained of whole body joint pain, especially the
neck, back and knees. Dkt. #8, p.252. Upon examination, plaintiff walked slowly and
was unable to perform heel or toe walking or squat more than 10% because of low back
and knee pain. Dkt. #8, p.253. The consulting medical examiner observed limited
flexion/extension of the lumbar spine and positive straight leg bilaterally when
performed in both the supine and sitting position. Dkt. #8, p.254. He diagnosed arthritis
and opined that plaintiff had mild to moderate limitation for prolonged walking. Dkt. #8,
p.254-255. Subsequent x-rays of plaintiff’s lumbrosacral spine and left knee were
negative (Dkt. #8, pp.256-257), and plaintiff’s medical records do not suggest that
plaintiff’s limitations are more severe than observed by the consulting medical
examiner: plaintiff presented to ECMC’s emergency department on March 6, 2013 with
complaints of low back pain radiating down his right leg and received a diagnosis of
lumbar strain (Dkt. #8, p.237), returned to ECMC’s emergency department on March
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13, 2013 with continued back pain and received a diagnosis of back pain with sciatica
(Dkt. #8, p.241), presented with bilateral knee clicking upon examination on June 10,
2014 (Dkt. #8, pp.305-306), was observed to have normal knees on bilateral knee xrays taken on September 10, 2015 (Dkt. #8, p.308), and upon examination on May 17,
2016 for complaints of bilateral knee pain and back pain, it was noted that plaintiff’s lab
work to screen for arthritis was unremarkable and that no abnormalities were seen on
imaging of his knees. Dkt. #8, p.293. Furthermore, plaintiff reported that he was able to
care for his personal needs, prepare his own meals, clean, wash laundry, drive, use
public transportation, shop for groceries and household needs, go outside every day,
and socialize with friends and family every day. Dkt. #8, pp.171-174, 249 & 252.
Considering the administrative record as a whole, the ALJ’s determination that plaintiff
could stand for up to 6 hours in an 8-hour workday is supported by substantial
evidence. See Harrington v. Colvin, 14-CV-6044, 2015 WL 790756, at *13-15
(W.D.N.Y. Feb. 25, 2015) (collecting cases where medical opinion imposing a moderate
limitation for standing supported an RFC determination that a plaintiff could perform
light work). As the ALJ’s question to the vocational expert was supported by substantial
evidence, there was no prejudice from the ALJ’s failure to advise the plaintiff of his right
to question the vocational expert at the administrative hearing.
The consulting medical examiner’s medical source statement also opined
that plaintiff had a mild to moderate limitation for overhead reaching. Dkt. #8, p.255.
The ALJ determined that plaintiff was limited to frequent overhead reaching bilaterally.
Dkt. #8, p.29. Contrary to plaintiff’s argument, “a moderate limitation is not inconsistent
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with a finding that an individual can engage in frequent, but not constant activity.”
Jennifer Lee W. v. Berryhill, 5:18-CV-64, 2019 WL 1243759, at *5 (N.D.N.Y. March 18,
2019). In the instant case, the Court does not find the ALJ’s RFC inconsistent with the
consulting medical examiner’s opinion or the examination upon which that opinion is
based. Upon examination by the consulting medical examiner, plaintiff was observed to
have 145 degree shoulder forward elevation and abduction, 25 degree adduction,
bilaterally, 35 degree internal rotation, bilaterally, and 85 degree external rotation,
bilaterally. Dkt. #8, p.254. His cervical spine demonstrated full flexion, extension and
lateral flexion, bilaterally, and full rotary movement, bilaterally. Dkt. #8, p.254. In light of
such mild findings upon examination by the consulting examiner and the general
absence of evidence in the administrative record suggesting any such limitation from
treating sources or plaintiff himself, the Court finds that the ALJ’s determination that
plaintiff was limited to frequent overhead reaching bilaterally is supported by substantial
evidence. See Matta v. Astrue, 508 Fed. App’x 53, 56 (2d Cir. 2013) (“Although the
ALJ’s conclusion may not perfectly correspond with any of the opinions of medical
sources cited in his decision, he was entitled to weigh all of the evidence available to
make an RFC finding that was consistent with the record as a whole.”).
CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #9), is denied and the Commissioner’s motion for judgment on the pleadings
(Dkt. #12), is granted.
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The Clerk of the Court is directed to close this case.
SO ORDERED.
DATED:
Buffalo, New York
June 28, 2019
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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