Lewis v. Commissioner of Social Security
Filing
16
MEMORANDUM DECISION AND ORDER denying Plaintiff's 10 Motion for Judgment on the Pleadings; granting the Commissioner's 12 Motion for Judgment on the Pleadings and dismissing Plaintiff's Complaint with Prejudice. Signed by Hon. Donald D. Bush on 7/24/2019. (KLH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANGELA RENEE LEWIS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Case # 1:18-cv-150-DB
MEMORANDUM DECISION
AND ORDER
INTRODUCTION
Plaintiff Angela Renee Lewis (“Plaintiff”) brings this action pursuant to the Social Security
Act (the “Act”), seeking review of the final decision of the Commissioner of Social Security (the
“Commissioner”) that denied her application for supplemental security income (“SSI”) under Title
XVI of the Social Security Act (the Act). See ECF No. 1. The Court has jurisdiction over this
action under 42 U.S.C. §§ 405(g), 1383(c), and the parties consented to proceed before the
undersigned, in accordance with a standing order (see ECF. No. 14).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 10, 12. Plaintiff also filed a reply. See ECF No. 13. For the reasons
set forth below, Plaintiff’s motion (ECF No.10) is DENIED, and the Commissioner’s motion
(ECF No. 12) is GRANTED.
BACKGROUND
On April 9, 2014, Plaintiff protectively filed her SSI application, alleging a disability
beginning on July 1, 2012 (the disability onset date), due to Crohn’s disease; a bladder problem;
rheumatoid arthritis; migraines; an ovarian cyst; acid reflux; carpal tunnel syndrome; back and
neck pain; post-traumatic stress disorder (“PTSD”); anxiety; depression; obsessive compulsive
disorder; and insomnia. Transcript (“Tr.”) 203. Plaintiff’s claim was denied initially on August 28,
2014. (Tr. 102), after which she requested an administrative hearing. Plaintiff’s hearing was held
before Administrative Law Judge Lynette Gohr (the “ALJ”) on September 6, 2016, in Buffalo,
New York. Tr. 20-30. Plaintiff’s non-attorney representative appeared at the hearing; however,
Plaintiff did not appear. Tr. 20. A Notice to Show Cause was sent to Plaintiff on September 13,
2016 (Tr. 156), to which Plaintiff responded that she confused the date of the hearing (Tr. 159).
The ALJ determined that this was not good cause, and therefore, Plaintiff had waived her
opportunity to appear at the hearing. Tr. 20. Timothy Mahler, a vocational expert (“VE”), also
appeared and testified at the hearing. Tr. 35. Additional evidence submitted at the hearing was
accepted and entered into the record without objection, including a substantial amount of
additional medical evidence (see Tr. 274-759). Tr. 20. Additional evidence was also entered into
the record after the hearing (Tr. 258-274) and considered by the ALJ in making her decision. Tr.
20.
The ALJ issued an unfavorable decision on November 28, 2016, finding that Plaintiff was
not disabled under section 1614(a)(3)(A) of the Act. Tr. 20-30. On November 28, 2017, the
Appeals Council denied Plaintiff’s request for further review. Tr. 1-4. The ALJ’s decision thus
became the “final decision” of the Commissioner subject to judicial review under 42 U.S.C. §
405(g).
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”
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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.
The Sequential Evaluation Process
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
claimant does not have a severe impairment or combination of impairments meeting the durational
requirements, 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, 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).
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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).
ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ analyzed Plaintiff’s claim for benefits under the process described above and
made the following findings in her November 28, 2016 decision:
1. The claimant has not engaged in substantial gainful activity since April 9, 2014, the
application date (20 CFR 416.971 et seq.);
2. The claimant has the following severe impairments: cervical and lumbar degenerative disc
disease, diabetes, obesity, depression, anxiety, and post-traumatic stress disorder (“PTSD”)
(20 CFR 416.920(c));
3. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926);
4. The claimant has the residual functional capacity to perform medium work as defined in
20 CFR 416.967(c) except the claimant is limited to frequent stooping, kneeling,
crouching, and crawling. She is further limited to simple, routine tasks and simple workrelated decisions;
5. The claimant is capable of performing past relevant work as an agricultural packer. This
work does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 416.965);
6. The claimant has not been under a disability, as defined in the Social Security Act, since
April 9, 2014, the date the application was filed (20 CFR 416.920(f)).
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Tr. at 23-29.
Accordingly, the ALJ determined that, for the application for SSI, protectively filed on
April 9, 2014, Plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act. Id.
at 30.
ANALYSIS
Plaintiff’s sole argument is that the ALJ did not properly account for her moderate
limitations in dealing with stress and suggests that stress might trigger her physical symptoms. See
ECF No. 10-1 at 16-20. In finding that Plaintiff was not disabled, the ALJ determined that she
could perform medium work except that she was limited to frequent stooping, kneeling, crouching,
and crawling. Tr. 25. She further limited Plaintiff to simple, routine tasks and simple work-related
decisions. Tr. 25. See 20 C.F.R. § 416.927. Plaintiff disagrees with the ALJ’s discussion of the
opinion of consultative examiner Gregory Fabiano, Ph.D. (“Dr. Fabiano”) (Tr. 611-15), and
suggests that, in formulating her RFC finding, the ALJ failed to consider Dr. Fabiano’s opinion
that Plaintiff had moderate limitations in appropriately dealing with stress. See ECF No. 10-1 at
16-20. As discussed below, the Court finds Plaintiff’s arguments lack merit.
It is within the ALJ’s discretion to resolve genuine conflicts in the evidence. Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). In so doing, the ALJ may “choose between properly
submitted medical opinions.” See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). Moreover,
an ALJ is free to reject portions of medical opinion evidence not supported by objective evidence
of record, while accepting those portions supported by the record. See Veino, 312 F.3d at 588. In
deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence available to make
an RFC finding that [is] consistent with the record as a whole.” Matta v. Astrue, 508 F. App’x 53,
56 (2d Cir. 2013). An ALJ’s conclusion need not “perfectly correspond with any of the opinions
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of medical sources cited in his decision.” Id. Further, where the record contains sufficient evidence
from which an ALJ can determine the RFC, a medical source statement or formal medical opinion
may not be necessary. See Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013) (citing Rosa, 168
F.3d at 79 n.5 (“[W]here there are no obvious gaps in the administrative record, and where the
ALJ already possesses a complete medical history, the ALJ is under no obligation to seek
additional information. . . .”) (internal citations and quotation marks omitted).
The ALJ here did not determine the RFC in a vacuum. She properly analyzed the medical
and opinion evidence in determining Plaintiff’s RFC. Tr. 25-30. Contrary to Plaintiff’s arguments
(see ECF No. 10-1 at 16-20), the ALJ properly and fully evaluated Dr. Fabiano’s consultative
opinion. Tr. 28-29, 611-15. Plaintiff acknowledges that the ALJ considered Dr. Fabiano’s opinion
and gave it significant weight. See ECF No. 10-1. at 13; Tr. 28-29. However, Plaintiff contends
that the ALJ failed to explain, account for, or discuss in detail, Dr. Fabiano’s conclusion that
Plaintiff was moderately limited in her ability to deal with stress. See ECF No. 10-1. at 13. The
Court disagrees.
On August 5, 2014, Plaintiff attended a consultative psychiatric examination with Dr.
Fabiano. Tr. 611-15. Plaintiff took the bus to her appointment, a distance of approximately five
miles. Tr. 611. Plaintiff lived alone in an apartment and had an 11-year-old daughter who did not
live with her. Id. Plaintiff reported a dysphoric mood, and she stated she was being stalked by the
person who raped her, and she was also experiencing disruptive sleep and an inconsistent appetite.
Tr. 612. Plaintiff denied suicidal or homicidal ideation but reported that she experienced anxiety.
Id. She stated she had palpitations, dizziness, breathing difficulties, and chest pain that occurred
approximately once a month, and which were triggered by stress. Id. Plaintiff also stated she had
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some problems with concentration, and she denied any problems with drug or alcohol abuse
presently or in the past. Id.
On examination, Plaintiff’s demeanor and responsiveness to questions was cooperative.
Tr. 612. Her manner of relating, social skills, and overall presentation were adequate. Id. Her motor
behavior was normal, and she showed appropriate eye contact. Tr. 613. Plaintiff’s thought
processes were coherent and goal-directed with no evidence of hallucinations, delusions, or
paranoia. Id. Her mood was neutral and affect flat; her attention and concentration and recent and
remote memory skills were intact; her insight and judgment were good; and she was fully oriented
to person, place, and time. Tr. 613. Dr. Fabiano diagnosed unspecified depressive disorder;
unspecified anxiety disorder; and rule out PTSD. Tr. 614.
The ALJ explained that she gave significant weight to Dr. Fabiano’s opinion because it
was consistent with the record. Tr. 27. The ALJ also acknowledged Plaintiff’s depression, anxiety,
and PTSD. Tr. 25-29. In addition to stating Plaintiff was moderately limited in her ability to deal
with stress, Dr. Fabiano opined that Plaintiff did not appear to have any limitations in her ability
to follow and understand simple directions and instructions; perform simple tasks independently;
maintain a regular schedule; learn new tasks; perform complex tasks independently; and make
appropriate decisions. Tr. 614. The ALJ accordingly considered those limitations in her RFC
finding limiting Plaintiff to simple, routine tasks and simple work-related decisions. Tr. 25.
Further, the ALJ also stated that Dr. Fabiano’s opinion was consistent with evidence in the record
reflecting that Plaintiff had few limitations in her activities of daily living and noted evidence that
Plaintiff engaged in work activities while under her presumptive disability. Tr. 27. Thus, Plaintiff’s
argument that the ALJ failed to explain the weight she assigned to Dr. Fabiano’s opinion lacks
merit.
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Plaintiff’s contention that the ALJ erred in not explaining why she failed to include a
moderate limitation regarding stress in the RFC also fails. The ALJ did not afford controlling
weight to Dr. Fabiano’s consultative opinion, and she was not required to include all of the doctor’s
assessed limitations in the RFC. Tr. 28-29, 611-15. Further, although an ALJ must explain why a
medical opinion conflicting with the RFC was not adopted, “the ALJ is not obligated to ‘reconcile
explicitly every conflicting shred of medical testimony,’ and there is no ‘absolute bar to crediting
only portions of medical source opinions.’” See Cosme v. Colvin, 15-CV-6121P, 2016 WL
4154280, at *11 (W.D.N.Y. Aug. 5, 2016) (citing Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp.
2d 288, 297 (W.D.N.Y. 2006) and Younes v. Colvin, No. 1:14-CV-170 DNH/ESH, 2015 WL
1524417, at *1 (N.D.N.Y. Apr. 2, 2015)) (internal citations omitted).
Notably, “none of Plaintiff’s doctors indicated that she could not handle any stress at all.”
See Townsend v. Berryhill, No. 1:16-cv-00406-MAT, 2017 WL 5375038, at *5 (W.D.N.Y. Nov.
14, 2017). Moreover, Plaintiff cites no controlling authority holding that a moderate limitation in
dealing with stress requires an ALJ to entirely preclude a claimant from dealing with work stress
in the RFC. See ECF No. 10-1 at 16-20. Although Plaintiff cites to Brink v. Colvin, No. 14-CV00940, 2017 WL 2531711 (W.D.N.Y. June 12, 2017), to support her argument, other courts have
found that RFC formulations not containing any explicit stress limitation could account for
difficulties handling stress. See Reyes v. Colvin, 14-CV-734-JTC, 2016 WL 56267, at *6
(W.D.N.Y. Jan. 5, 2016) (upholding RFC finding that lacked a specific stress limitation where
ALJ gave significant weight to consultative opinion finding Plaintiff had moderate stress
limitations); Cowley v. Berryhill, 16-CV-6811L, 2018 WL 2253123, at *2–3 (W.D.N.Y. May 17,
2018) (RFC for simple, unskilled tasks with no more than occasional changes in the work setting
and without an hourly, machine-driven assembly line production rate accounted for doctor’s
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opinion that claimant was moderately limited with respect to stress); Slattery v. Colvin, 111 F.
Supp. 3d 360, 373–75 (W.D.N.Y. 2015) (RFC’s limitation to unskilled work involving simple
instructions where interactions with others are routine, superficial, and incidental to the work
performed was consistent with doctor’s opinion that claimant would have difficulty dealing with
stress).
It is well settled that a limitation to unskilled work sufficiently accounts for moderate
limitations in work-related functioning, including stress. See Washburn v. Colvin, 286 F. Supp. 3d
561, 566 (W.D.N.Y. 2017), appeal dismissed (Mar. 30, 2018); Martinez v. Commissioner, 2017
U.S. Dist. LEXIS 93575 at *20–*21 (N.D.N.Y. 2017) (collecting cases, and noting that the
“Second Circuit has held that moderate limitations in work related functioning [including handling
stress, making appropriate decisions, relating adequately with others, and dealing with stress] does
not significantly limit, and thus prevent, a plaintiff from performing unskilled work”); Saxon v.
Colvin, 2015 U.S. Dist. LEXIS 83447 at *14 (W.D.N.Y. 2015) (moderate limitations in ability to
make appropriate decisions, relate adequately with others, and cope with stress are sufficiently
accommodated by an RFC limited to routine tasks in a low stress, low contact environment). Here,
Plaintiff’s past relevant work, as well as other jobs identified by the VE at step 5 of the ALJ’s
analysis, amounted to unskilled work. The ALJ limited Plaintiff to simple routine tasks and simple
work-related decisions, which the ALJ took into account based on the opinion of Dr. Fabiano.
Thus, the Court finds that simple tasks and simple work-related decisions, as limited here by the
ALJ, perforce incorporate moderate limitations with respect to stress. See Thomas v. Berryhill, 337
F. Supp. 3d 235, 245 (W.D.N.Y. 2018).
Further, the ALJ here properly considered other evidence in the record, which supported
the ALJ’s RFC finding. Specifically, the ALJ properly concluded that Plaintiff’s activities of daily
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living conflicted with her allegations of disabling symptoms, as she could manage her own
personal care, cook, do dishes and laundry, clean, mop the floor, dust, vacuum, go shopping, and
go out on a boat with family and friends. Tr. 27, 218-21. Her hobbies included watching television,
exercising, traveling, playing games with family, and reading. Tr. 220. She attended social groups
and narcotics anonymous seven days a week and counseling six times a month. Tr. 221. She
reported no problems with authority and no problems getting along with family, friends, or
neighbors. Tr. 221, 223. She enjoyed going to the science museum, the art museum, and visiting
Florida. Id. With respect to her stress-triggered palpitations, dizziness, breathing difficulties, and
chest pain, Plaintiff told Dr. Fabiano that these episodes only occurred once a month. Tr. 612.
On June 18, 2014, Plaintiff completed a Function Report, wherein she confirmed many of
the activities of daily living and social activities noted above. Tr. 216-29. She stated that she lived
alone in an apartment; (Tr. 216); she could manage her personal care (Tr. 217-18); she loved to
cook and prepared foods compliant with her Crohn’s disease and interstitial cystitis (Tr. 218); and
she could perform household chores such as washing dishes, laundry, mopping floors, cleaning
the walls, scrubbing her tub, dusting, vacuuming, and sweeping (Tr. 219); She went outside every
day and used public transportation. Tr. 219. She also stated she could drive her boyfriend’s car and
manage money, and she shopped approximately three times per month. Tr. 220. In terms of her
hobbies, Plaintiff said that, without a good income, she could no longer travel as much, skate, bike,
rollerblade, and go out dancing at clubs with friends (Tr. 220), even though she also reported
anxiety, not income, cut into her dancing (Tr. 221).
Based on the foregoing, the Court finds that the RFC was properly determined, and if there
was any error with respect to stress-related limitations, such was harmless error.
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CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) is GRANTED. 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.
_______________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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