Mayer v. Commissioner of Social Security

Filing 21

MEMORANDUM - DECISION and ORDER that Plaintiff's 12 Motion for Judgment on the Pleadings is DENIED; that Defendant's 18 Motion for Judgment on the Pleadings is GRANTED; that Defendant's unfavorable determination is AFFIRMED; and that Plaintiff's Complaint is DISMISSED. Signed by Magistrate Judge William B. Carter on 5/28/2019. (KLH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________
MATTHEW R. MAYER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

1:18-CV-0062
(WBC)

Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC
Counsel for Plaintiff
6000 North Bailey Ave, Ste. 1A
Amherst, NY 14226

BRANDI SMITH, ESQ.
KENNETH HILLER, ESQ.
JUSTIN JONES, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278

DENNIS CANNING, ESQ.
FRANCIS TANKARD, ESQ.
HASEEB FATMI, ESQ.
JASON PECK, ESQ.

William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented, in accordance with a Standing Order, to proceed before
the undersigned. (Dkt. No. 20.) The court has jurisdiction over this matter pursuant
to 42 U.S.C. § 405(g). The matter is presently before the court on the parties’ crossmotions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons discussed below, Plaintiff's motion is denied and the
Commissioner’s motion is granted.
I.

RELEVANT BACKGROUND

A.

Factual Background

Plaintiff was born in 1984. (T. 70.) He completed high school. (T. 80.)
Generally, Plaintiff’s alleged disability consists of anxiety, depression, post-traumatic
stress disorder (“PTSD”), and a back injury. (T. 202.) His alleged disability onset date
is August 26, 2012. (T. 52.) Plaintiff’s past relevant work consists of construction
laborer and grocery clerk. (T. 63.)
B.

Procedural History

On January 6, 2014, Plaintiff applied for a period of Disability Insurance Benefits
(“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act. (T. 118.) Plaintiff’s applications were initially denied, after which he
timely requested a hearing before an Administrative Law Judge (“the ALJ”). On May 12,
2016, Plaintiff appeared before the ALJ, Paul F. Kelly. (T. 44-69.) On August 5, 2016,
ALJ Kelly issued a written decision finding Plaintiff not disabled under the Social
Security Act. (T. 14-29.) On November 14, 2017, the Appeals Council (“AC”) denied
Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 19-25.) First, the ALJ found Plaintiff met the insured status
requirements through September 30, 2014 and Plaintiff had not engaged in substantial
gainful activity since August 26, 2012. (T. 19.) Second, the ALJ found Plaintiff had the
severe impairments of depressive disorder, generalized anxiety disorder, and
degenerative disc disease of the lumbar spine. (Id.) Third, the ALJ found Plaintiff did

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not have an impairment that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 20.) Fourth, the ALJ found
Plaintiff had the residual functional capacity (“RFC”) to:
lift up to twenty pounds occasionally, lift and carry up to ten pounds
frequently, stand and walk for about six hours, and sit for up to six hours in
an eight-hour workday with normal breaks. Additionally, [Plaintiff] is limited
to simple routine tasks in a work environment free of fast paced production
requirements, involving only simple work-related decisions, with few, if any,
workplace changes and having no more than occasional interaction with the
public
(T. 21.) 1 Fifth, the ALJ determined Plaintiff was unable to perform any past relevant
work; however, there were jobs that existed in significant numbers in the national
economy Plaintiff could perform. (T. 24.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes two separate arguments in support of his motion for judgment on
the pleadings. First, Plaintiff argues remand is warranted because the ALJ did not
reconcile Thomas Small, M.D.’s opinion with his RFC. (Dkt. No. 12 at 16-19.) Second,
and lastly, Plaintiff argues remand is warranted because the ALJ did not conduct a
proper treating source analysis or provide good reasons in his assessment of Dr.
Small’s opinion. (Id. at 20-27.) Plaintiff also filed a reply in which he reiterated his
original arguments. (Dkt. No. 19.)

The ALJ essentially limited Plaintiff to light work with additional mental limitations. 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,
you must have the ability to do substantially all of these activities. If someone can do light work, we
determine 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. §§ 404.1567(b), 416.967(b).
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B.

Defendant’s Arguments

In response, Defendant makes one argument. Defendant argues the ALJ
properly considered Dr. Small’s assessment and gave good reasons for according it
only some weight. (Dkt. No. 18 at 26-31.)
III.

RELEVANT LEGAL STANDARD
A.

Standard of Review

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
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that 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, 91 S. Ct.
1420, 1427 (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).

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“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” 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 may 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).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this
sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.

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McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
IV.

ANALYSIS
The opinion of a treating source will be given 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] case record.” 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2) 2; see Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
The following factors must be considered by the ALJ when deciding how much
weight the opinion should receive, even if the treating source is not given controlling
weight: “(i) the frequency of examination and the length, nature, and extent of the
treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's
consistency with the record as a whole; and (iv) whether the opinion is from a
specialist.” 20 C.F.R. §§ 404.1527(c)(2)(i)-(iv), 416.927(c)(2)(i)-(iv).
The ALJ is required to set forth his reasons for the weight he assigns to the
treating physician's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c), see also SSR 962p, 1996 WL 374188 (July 2, 1996); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)
(quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998)). However,
where an ALJ’s reasoning and adherence to the regulations is clear, she is not required
to explicitly go through each and every factor of the Regulation. Atwater v. Astrue, 512
F. App'x 67, 70 (2d Cir. 2013) (plaintiff challenged ALJ’s failure to review explicitly each
factor provided for in 20 C.F.R. § 404.1527(c), the Court held that “no such slavish

Effective March 27, 2017, many of the regulations cited herein have been amended, as
have Social Security Rulings (“SSRs”). Nonetheless, because Plaintiff’s social security application was
filed before the new regulations and SSRs went into effect, the court reviews the ALJ's decision under the
earlier regulations and SSRs.
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recitation of each and every factor [was required] where the ALJ's reasoning and
adherence to the regulation [was] clear”).
Plaintiff’s treating medical physician, Dr. Small, completed a employment
assessment form on January 23, 2015. (T. 666-667.) Dr. Small began treating Plaintiff
in August of 2012. (T. 667.) The doctor listed Plaintiff’s medical conditions as PTSD,
opiate dependence, nicotine dependence, and depression (major/moderate). (T. 666.)
Dr. Small indicated Plaintiff was “moderately limited” in his ability to: stand, sit, lift, carry,
push, pull, bend, and use hands due to a car accident in 1999. (T. 667.) Dr. Small
provided no opinion regarding Plaintiff’s ability to walk, see, hear, speak, or climb. (Id.)
Dr. Small indicated Plaintiff was “moderately limited” in his ability to: understand and
remember instructions, carry out instructions, maintain attention/concentration, make
simple decisions, interact appropriately with others, maintain socially appropriate
behavior without exhibiting behavior extremes, and function in a work setting at a
consistent pace. (Id.) Dr. Small indicated Plaintiff had no limitations in maintaining
basic standards of personal hygiene and grooming. (Id.) The form did not define the
term “moderate.” (Id.) Dr. Small was asked to chose between “no evidence of
limitations, moderately limited, and very limited.” (Id.)
The record also contains consultative examinations and medical source opinions.
On March 14, 2014, Hongbiao Liu, M.D. conducted an examination and opined Plaintiff
had “mild to moderate limitations for prolonged walking, bending, and kneeling.” (T.
650.) On that date Janine Ippolito, Psy.D. also performed an exam and provided an
opinion. (T. 656.) Dr. Ippolito opined Plaintiff was able to follow and understand simple
directions and instructions, perform simple tasks independently, maintain attention and

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concentration, maintain a regular schedule, learn new tasks, perform complex tasks
independently, and make appropriate decisions with no evidence of limitations. (Id.)
She opined Plaintiff could relate adequately with others and appropriately deal with
stress with moderate limitations. (Id.) She stated Plaintiff’s limitations were “due to his
current emotional distress and fatigue.” (Id.) Non-examining Stage agency medical
examiner, Dr. Hoffman, reviewed Plaintiff’s record and opined Plaintiff had no more than
moderate restrictions and could essentially perform unskilled work. (T. 99-100.)
The ALJ afforded Dr. Small’s 2015 opinion “some weight.” (T. 22.) The ALJ
reasoned there was “no underlying medical evidence” to support Dr. Small’s
assessments. (Id.) The ALJ specifically noted, contrary to Dr. Small’s opinion, Plaintiff
asserted he had no problems using his hands and Dr. Liu found no limitations in use of
hands. (Id.) Regarding Dr. Small’s mental limitations, the ALJ stated “the mental
functioning checklist filled out by Dr. Small, which indicates moderate limits, is
somewhat supported by the underlying treatment notes, however mental status notes
support a finding of moderate limits at most.” (Id.) The ALJ noted mental status
examinations which were generally benign. (Id.) The ALJ stated “physical limitations
[light exertional] and mental limitations [low stress work and limited social functioning]
have been incorporated into the adopted RFC here.” (Id.) The ALJ afforded the
opinions of Drs. Ippolito and Hoffman “significant probative weight.” (T. 23.)
Plaintiff asserts the ALJ failed to apply the treating physician rule in his
assessment of Dr. Small’s opinion on many grounds. Plaintiff asserts the ALJ failed to
provide good reason for affording the opinion less than controlling weight because the
ALJ’s explanation was vague and confusing. (Dkt. No. 12 at 20.) Plaintiff asserts the

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ALJ erred in relying on Dr. Small’s treatment notations to undermine the opinion
because a large portion of treatment notes were handwritten and illegible. (Id. at 21.)
Plaintiff asserts the ALJ misread the record and failed to consider several exams
favorable to Plaintiff. (Id. at 22, 25.) Plaintiff asserts the ALJ completely ignored the
regulatory factors outlined in 20 C.F.R. §§ 404. 1527(c) and 416.927(c) in evaluating
Dr. Small’s opinion. (Id. at 24.) Plaintiff further asserts the ALJ misevaluated Dr.
Small’s opined physical limitations. (Id. at 26.) Plaintiff asserts the ALJ failed to
incorporate all of Dr. Small’s limitations into his RFC determination and failed to
reconcile such discrepancies. (Id. at 17-18.) Plaintiff asserts such error was harmful
because Dr. Small’s opined limitations would preclude the occupations provided by the
vocational expert. (Id. at 18-19.) For the reasons outlined herein, the ALJ failed to
properly assess Dr. Small’s opinion because his analysis was internally inconsistent and
confusing. However, any error was harmless because the ALJ’s RFC determination
was ultimately supported by, and consistent with, Dr. Small’s opinion.
Here, the ALJ reasoned Dr. Small’s “moderate” mental limitations were
“somewhat supported by the underlying treatment notes, however mental status notes
support a finding of moderate limits at most.” (T. 22.) The ALJ then cited evidence in
the record of mental status examinations indicating “generally normal, and not disabling,
level of mental health functioning.” (Id.) It is unclear from the ALJ’s decision exactly
how he assessed Dr. Small’s opinion. However, despite affording the opinion “some
weight” the ALJ appears to have adopted Dr. Small’s mental limitations because the
RFC limited Plaintiff to simple, routine tasks with no fast paced production requirements,
simple work-related decisions, with few changes, and only occasional interaction with

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the public. (T. 21.) The ALJ’s mental RFC is consistent with Dr. Small’s opinion of no
more than moderate limitations in mental functioning.
The Second Circuit has repeatedly held that “moderate” limitations do not
preclude a plaintiff’s ability to perform unskilled work. See, e.g., McIntyre v. Colvin, 758
F.3d 146, 149 (2d Cir. 2014) (no error where ALJ found plaintiff was capable of work
despite “moderate difficulties” in social functioning and concentration, persistence or
pace); Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (holding that “although there
was some conflicting medical evidence, the ALJ’s determination that Petitioner could
perform her previous unskilled work was well supported” where the reports of treating
psychiatrist and consulting doctors indicated the plaintiff was “depressive, without
psychotic features other than occasional self-reported hallucination, and that her
condition improved with medication” and had nothing “more than moderate limitations in
her work-related functioning....”); Matta v. Astrue, 508 Fed. Appx. 53, 55 (2d Cir. 2013)
(affirming decision where “[t]he ALJ found that plaintiff had moderate difficulties in
concentration, persistence and pace and moderate difficulties in social functioning that
limit [him] to simple, routine, low-stress, and unskilled tasks, which involve no more than
minimal contact with co-workers, supervisors and the general public.”); Whipple v.
Astrue, 479 Fed. Appx 367, 370 (2d Cir. 2012) (holding that consultative examiners'
findings that the plaintiff’s depression caused moderate limitations in social functioning
ultimately supported the ALJ’s determination that Plaintiff was capable of performing
work that involved simple tasks and allowed for a low-stress environment); see also
Coleman v. Comm'r of Soc. Sec., 335 F. Supp. 3d 389, 401 (W.D.N.Y. 2018) (RFC
limiting plaintiff to simple, routine work fully consistent with moderate limitations in

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concentration, persistence, and pace). Therefore, any error in assessing Dr. Small’s
opinion was harmless because the ALJ’s RFC determination was consistent with the
doctor’s opined “moderate” mental limitations.
Plaintiff asserts any error was not harmless because “moderate” mental
limitations are inconsistent with occupations requiring “Reasoning Level 2.” (Dkt. No.19,
26-27.) A reasoning level of 2 requires an individual to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions.”
Appendix C, Dictionary of Occupational Titles. At the hearing the VE provided
occupations an individual could perform given Plaintiff’s RFC and vocational factors. (T.
64-65.) The occupations provided by the VE require a reasoning level of 2. DOT
318.687-018, 922.687-054, 915.667-014. Reviewing courts have held that a reasoning
level of 2 is not inconsistent with a limitation to unskilled work. Jones-Reid v. Astrue,
934 F. Supp. 2d 381, 408 (D. Conn. 2012), aff'd, 515 F. App'x 32 (2d Cir. 2013); see
Chaffin v. Colvin, 999 F. Supp. 2d 468, 474 (W.D.N.Y. 2014) (collecting cases).
Therefore, contrary to Plaintiff’s assertion, the occupations provided by the VE were not
inconsistent with “moderate” mental limitations or the ALJ’s mental RFC which
encompassed those limitations.
Plaintiff also asserts the ALJ erred in his assessment of Dr. Small’s opinion
regarding his physical limitations. (Dkt. No. 12 at 26.) Here, the ALJ’s physical RFC
determination was proper and supported by substantial evidence. The ALJ properly
noted Dr. Small’s opinion, that Plaintiff was “moderately limited” in the use of his hands,
was inconsistent with Plaintiff’s testimony he had no problems using his hands and
inconstant with the consultative examiner’s physical exam and opinion. (T. 22, 219,

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649-650, 667.) Further, “moderate” limitations such as those found by Dr. Small and
the consultative examiner are consistent with an RFC for light work. Gurney v. Colvin,
No. 14-CV-688S, 2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) (collecting cases)
(moderate limitations are frequently found to be consistent with an RFC for a full range
of light work). The ALJ’s physical RFC for light work was supported by substantial
evidence in the record, namely the opinions of the consultative examiner and Dr. Small,
as well as Plaintiff’s testimony regarding his limitations and activities of daily living. (T.
218-219, 650, 667, 728, 738.) Therefore, the ALJ’s physical RFC was proper and
supported by substantial evidence in the record.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 18)
is GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is
further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Date: May 28, 2019

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