Ackroyd v. Commissioner of Social Security
Filing
15
DECISION AND ORDER denying 10 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings. Clerk of Court directed to close the file. Signed by Hon. Leslie G. Foschio on 9/17/2019. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
JESSIE ANN ACKROYD
Plaintiff,
v.
ANDREW M. SAUL,1 Commissioner of
Social Security,
DECISION
and
ORDER
18-CV-00434F
(consent)
Defendant.
______________________________________
APPEARANCES:
LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
AMY C. CHAMBERS, Esq., of Counsel
6000 North Bailey Avenue
Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
MEGHAN J. McEVOY, of Counsel
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
LAUREN ELIZABETH MEYERS
Special Assistant United States Attorney, of Counsel
ELLEN E. SOVERN
Acting Regional Chief Counsel, Region II
United States Attorney’s Office
c/o Social Security Administration
Office of General Counsel
1961 Stout Street, Suite 4169
Denver, CO 80294-4003
1Andrew
M. Saul became the Commissioner of the Social Security Administration on June 17, 2019, and
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure is automatically substituted as the
defendant in this suit with no further action required to continue the action.
JURISDICTION
On July 9, 2019, this matter was reassigned to the undersigned before whom the
parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed in
accordance with this court’s June 29, 2018 Standing Order (Dkt. No. 14). The court has
jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). The matter is presently
before the court on motions for judgment on the pleadings filed by Plaintiff on November
19, 2018 (Dkt. No. 10), and on January 29, 2019 by Defendant (Dkt. No. 12).
BACKGROUND
Plaintiff Jessie Ann Ackroyd (“Plaintiff”), brings this action under the Social
Security Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the Commissioner
of Social Security’s final decision denying Plaintiff’s application filed on June 25, 2014,
with the Social Security Administration (“SSA”), for Social Security Disability Insurance
under Title II of the Act (“SSI”), and Supplemental Security Income under Title XVI of
the Act (“disability benefits”). Plaintiff alleges that she became disabled on December
30, 2010, as a result of bipolar disorder and schizophrenia. (R. 279). 2 Plaintiff’s
application was denied on October 6, 2014 (R. 151), and upon Plaintiff’s timely request,
on June 23, 2017, a hearing was held in Buffalo, New York before administrative law
judge Mary Mattimore (“the ALJ”). (R. 90-137). Appearing and testifying at the hearing
were Plaintiff, legal counsel Kenneth Hiller, Esq (“Hiller”), and vocational expert Dawn
Blythe (“the VE”).
2
“R” references are to the page of the Administrative Record electronically filed by Defendant on
September 19, 2018 (Dkt. No. 8).
2
On October 2, 2017, the ALJ issued a decision denying Plaintiff’s claim (R. 2234) (“the ALJ’s decision”), which Plaintiff appealed to the Appeals Council, with Hiller
representing Plaintiff on her administrative appeal. On July 27, 2017, Plaintiff's counsel
sent additional medical evidence to the ALJ that the ALJ included in the record. (R. 3981). On February 14, 2018, the Appeals Council issued a decision denying Plaintiff’s
request for review, rendering the ALJ’s decision the Commissioner’s final decision. (R.
1-4). On April 13, 2018, Plaintiff commenced the instant action seeking judicial review
of the ALJ’s decision.
On November 19, 2018, Plaintiff filed a motion for judgment on the pleadings
(Dkt. No. 10) (“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of
Plaintiff’s Motion for Judgment on the Pleadings (Dkt. No. 10-1) (“Plaintiff’s
Memorandum”). On January 29, 2019, Defendant filed a motion for judgment on the
pleadings (Dkt. No. 12) (“Defendant’s Motion”), attaching a Memorandum in Support
and in Response to Plaintiff's Brief Pursuant to Local Standing Order on Social Security
Cases (Dkt. No. 12-1) (“Defendant’s Memorandum”). In further support of Plaintiff’s
Motion, Plaintiff filed on February 19, 2019, Plaintiff’s Response to the Defendant’s
Motion (Dkt. No. 13) (“Plaintiff’s Reply”). Oral argument was deemed unnecessary.
Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED. The Clerk of Court is ordered to close the file.
3
FACTS3
Plaintiff Jessie Ackroyd (“Plaintiff” or “Ackroyd”), was born on March 16, 1984 (R.
238), was 26 years old as of Plaintiff's alleged disability onset date on December 30,
2010, graduated from high school and completed two years of college (R. 97), and lives
with her nine year-old daughter. (R. 98).
DISCUSSION
1.
Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district 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) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
3
In the interest of judicial economy, recitation of the Facts is limited to only those facts necessary for
determining the pending motions for judgment on the pleadings.
4
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,4 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.
Disability Determination
The applicable regulations set forth a five-step analysis the Commissioner must
follow in determining eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and
416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker,
675 F.2d 464 (2d Cir. 1982). If the claimant meets the criteria at any of the five steps,
the inquiry ceases and the claimant is not eligible for disability benefits. 20 C.F.R. §§
404.1520 and 416.920. The first step is to determine whether the applicant is engaged
in substantial gainful activity during the period for which the benefits are claimed. 20
C.F.R. §§ 404.1520(b) and 416.920(b). The second step is whether the applicant has a
severe impairment which significantly limits the physical or mental ability to do basic
work activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and
416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or
“the Listings”), and meets the duration requirement,5 there is a presumption of inability
to perform substantial gainful activity, and the claimant is deemed disabled, regardless
4
Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
5
The duration requirement mandates the impairment must last or be expected to last for at least a
continuous twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.
5
of age, education, or work experience. 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A);
20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth step, however, if the impairment
or its equivalent is not listed in Appendix 1, the Commissioner must then consider the
applicant’s “residual functional capacity,” which is the ability to perform physical or
mental work activities on a sustained basis, notwithstanding the limitations posed by the
applicant’s collective impairments, see 20 C.F.R. 404.1520(e)-(f), and 416.920(e)-(f),
and the demands of any past relevant work (“PRW”). 20 C.F.R. §§ 404.1520(e) and
416.920(e). If the applicant remains capable of performing PRW, disability benefits will
be denied, id., but if the applicant is unable to perform PRW relevant work, the
Commissioner, at the fifth step, must consider whether, given the applicant’s age,
education, and past work experience, the applicant “retains a residual functional
capacity to perform alternative substantial gainful work which exists in the national
economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks and
citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of proof is on
the applicant for the first four steps, with the Commissioner bearing the burden of proof
on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found that Plaintiff did not engage in substantial
gainful activity since December 30, 2010 (R. 17), and suffers from the severe
impairments of bipolar disorder, Cluster B traits,6 anxiety, generalized anxiety disorder,
chronic pain syndrome, vertebral subluxation complex,7 and cervical intervertebral disc
6
Cluster B traits are characterized by dramatic, overly emotional or unpredictable thinking and include
anti-social personality disorder, borderline personality disorder, histrionic personality disorder, and
narcissistic personality disorder.
7
Vertebral subluxation is misalignment of an individual’s spinal column.
6
displacement. (R. 17). The ALJ further determined that Plaintiff's impairments or
combination of impairments do not meet or medically equal the severity of any
impairment in the Listings in Appendix 1, and that Plaintiff retained the residual
functional capacity to perform light work with limitations to occasionally stooping,
pushing and pulling bilaterally, low stress work defined as able to understand,
remember, and carrying out simple, routine instructions, with no production pace work
meaning assembly line rate pace, only occasional interaction with supervisors,
coworkers, and the general public, and no tandem or team work with coworkers. (R.
21). The ALJ concluded that Plaintiff was unable to perform any past relevant work,
and thus has no transferable job skills, but given her age of 26, her education, and
ability to communicate in English, and residual functional capacity for light work, is
capable of performing work existing in significant numbers in the national economy
including work as a housekeeping cleaner, mail clerk, and photocopy machine operator
and, as such, is not disabled as defined under the Act. (R. 18-30). Plaintiff does not
contest the ALJ’s findings with regard to the first, second, and third steps of the five-step
analysis, but argues that at step four, the ALJ improperly evaluated Plaintiff’s residual
functional capacity.
N.P. Kendra’s Opinion
In this case, the ALJ afforded partial weight to N.P. Kendra’s finding that Plaintiff
would be absent from work two days each month as such finding was inconsistent with
the overall record, the findings of Horacio Capote, M.D. (“Dr. Capote”), and Plaintiff's
treating psychiatrist Wendy Weinstein, M.D. (“Dr. Weinstein”), and in light of N.P.
Kendra’s limited treatment of Plaintiff. (R. 28). Plaintiff contends that the ALJ erred by
7
affording partial weight to N.P. Kendra’s opinion that Plaintiff’s mental impairments
would result in Plaintiff missing two days of work each month as N.P. Kendra provided
the only functional assessment in the record, and that the ALJ’s substitution of the ALJ’s
opinion without support of a treating physician opinion results in a gap in the record.
Plaintiff's Memorandum at 18-22. Defendant maintains that the ALJ properly afforded
partial weight to N.P. Kendra’s opinion as the weight afforded to nurse practitioners as
“other sources” is subject to the ALJ’s discretion, and the ALJ’s residual functional
capacity assessment of Plaintiff is supported by substantial evidence in the record.
Defendant’s Memorandum at 23-28. The ALJ’s determination that N.P. Kendra’s
opinion that Plaintiff would miss two days of work each month is inconsistent with the
record (R. 28), is supported by substantial evidence.
In particular, Dr. Weinstein first provided treatment to Plaintiff on November 8,
2011 (R. 385), and provided medication management and counseling to Plaintiff on
January 12, 2012 (R. 384), February 28, 2012 (R. 383), April 12, 2012 (R. 382), June 6,
2012 (R. 381), July 25, 2012 (R. 379), September 19, 2012 (R. 378), November 21,
2012 (R. 377), March 6, 2013 (R. 375), and May 15, 2013 (R. 374). On June 24, 2013,
Dr. Weinstein noted that Plaintiff reported she decreased her Lamictal (bipolar) dosage
in response to Plaintiff's primary physician advising that Lamictal resulted in weight gain,
and that Plaintiff's voluntary reduction in her Klonopin (panic attack), medication
resulted in obsessive thoughts about harming people and increased anxiety. (R. 310).
Dr. Weinstein noted that although Plaintiff was tearful, despondent and overwhelmed,
she exhibited goal directed thought processes, fair insight and judgment, and no
lethality or psychosis. (R. 310). On August 6, 2013, Dr. Weinstein noted that Plaintiff
8
exhibited a restricted affect (mood), fair insight and judgment, with no psychosis, was
cooperative with goal directed thoughts, and reported good concentration and sleep
habits. (R. 309). During a visit with Dr. Weinstein on September 18, 2013, Plaintiff
reported she felt “awful” and was unable to stop crying. Dr. Weinstein noted that
Plaintiff was anxious, overwhelmed, despondent and dysphoric, and prescribed
Cymbalta (depression). (R. 370). On December 13, 2013, Dr. Weinstein noted that
Plaintiff had two visits to the emergency room after suffering a panic attack from
Klonopin withdrawal. Dr. Weinstein evaluated Plaintiff as pleasant and cooperative,
with constricted affect, clear and coherent speech, goal directed thought processes, fair
insight and judgment, no lethality or psychosis. (R. 368). On April 8, 2014, Dr.
Weinstein noted that Plaintiff was pleasant and cooperative, with bright affect, clear and
coherent speech, fair insight and judgment, with goal directed thought processes. (R.
367). On May 9, 2014, Dr. Weinstein noted that Plaintiff was pleasant and cooperative,
with a bright affect, goal directed thought processes, fair insight and judgment, with no
lethality or psychosis. (R. 366). In short, nothing in Dr. Weinstein’s treatment records
supports Plaintiff would miss two days of work each month.
On September 23, 2014, Dr. Capote completed a consultative psychiatric
evaluation of Plaintiff at the request of Dr. Weinstein, where Plaintiff was evaluated as
pleasant and cooperative, with clear and coherent speech, goal directed thoughts,
somewhat restricted affect, grossly intact memory and fund of knowledge, no evidence
of delusions of hallucinations, diminished concentration, fair insight and judgment, and
discontinued Plaintiff's Ambien (sleep) medication. (R. 601-02). On November 7, 2014,
Dr. Capote completed a follow-up examination on Plaintiff, noted that Plaintiff was
9
cantankerous because she wanted to be evaluated only once each year, and that
Plaintiff reported that her mood and anxiety were “fine.” (R. 596-97). On May 11, 2015,
Dr. Capote noted that Plaintiff reported things were “going well,” with stable anxiety, and
that her medications were controlling her anxiety and depression. (R. 593-94).
Accordingly, Dr. Capote’s records also fail to support that Plaintiff would miss two days
of work each month.
On April 5, 2017, N.P. Kendra provided psychotherapy treatment to Plaintiff,
noted that Plaintiff was seeking treatment for cocaine use disorder in remission, and
reported that her mood was fairly stable without mood swings on a reduced dosage of
Klonopin. (R. 659). On May 10, 2017, N.P. Kendra noted that Plaintiff wanted to stop
taking Klonopin as Plaintiff wished to become pregnant. (R. 668). In accordance with
the foregoing, nothing on this record, including N.P. Kendra’s own treatment notes
support N.P. Kendra’s opinion that Plaintiff's anxiety would result in missing at least two
days of work each month. The ALJ’s decision to afford partial weight to N.P. Kendra’s
finding on the issue of Plaintiff's ability to work is therefore supported by substantial
evidence in the record. Plaintiff's motion on this issue is therefore DENIED.
Insofar as Plaintiff alleges that the ALJ erred by not including the effects of
Plaintiff's stress, chronic pain, limited movement and fatigue, Plaintiff's Memorandum at
22, the ALJ found Plaintiff's chronic pain syndrome to be severe (R. 17), and limited
Plaintiff to light work8 which contemplates Plaintiff's physical limitations and includes
additional limitations to occasional stooping, pushing, pulling. (R. 21). Accordingly,
Plaintiff’s contention on this issue is without merit.
8
Light work includes sitting up to two hours and walking up to six hours each day, occasionally lifting up to 20
pounds and frequent lifting of up to 10 pounds. See 20 C.F.R. § 404.1567(b).
10
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. No. 10) is DENIED; Defendant’s
Motion (Dkt. No. 12) is GRANTED. The Clerk of Court is ordered to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
September 17, 2019
Buffalo, New York
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?