Armstrong v. Commissioner of Social Security

Filing 22

DECISION AND ORDERIT HEREBY IS ORDERED, that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 12) is DENIED.FURTHER, that Defendant's Motion for Judgment on the Pleadings (Docket No. 18) is GRANTED.FURTHER, that the Clerk of Court is directed to CLOSE this case. SO ORDERED. Signed by William M. Skretny, United States District Judge on 4/15/2020. (JCM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT JOSEPH ARMSTRONG,
Plaintiff,
v.

DECISION AND ORDER
18-CV-598S

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff Robert Armstrong brings this action pursuant to the Social Security

Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security
that denied her applications for supplemental security income and disability insurance
benefits under Title II of the Act. (Docket No. 1.) This Court has jurisdiction over this
action under 42 U.S.C. § 405(g).
2.

Plaintiff protectively filed his application with the Social Security

Administration on November 28, 2014. Plaintiff alleged disability beginning September 4,
2012, from a motor vehicle accident, due to cervical disk herniation C5-6, C6-7, bilateral
carpel tunnel syndrome, bilateral cubital tunnel syndrome, right shoulder rotator cuff tear,
depression (R. 1 at 12, 15.). Plaintiff’s application was denied, and he thereafter requested
a hearing before an administrative law judge (“ALJ”).
3.

On March 6, 2017, ALJ Lynette Gohr held a hearing at which Plaintiff—

represented by counsel—and Vocational Expert Jeanne Beachler appeared and testified.

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Citations to the underlying administrative record are designated as “R.”

(R. at 66-109.) Plaintiff was 46 years old on the date of last insured (December 31, 2013)
with a high school education and past work experience as a cabinet maker and carpenter.
4.

The ALJ considered the case de novo and, on May 18, 2017, issued a

written decision denying Plaintiff’s applications for benefits. After the Appeals Council
denied Plaintiff’s request to review the ALJ’s decision, he filed the current action,
challenging the Commissioner’s final decision. 2 (Docket No. 1.)
5.

Both parties moved for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure. (Docket Nos. 12, 18.) Plaintiff filed a response on
September 18, 2019 (Docket No. 20), at which time this Court took the motions under
advisement without oral argument. For the reasons that follow, Plaintiff’s motion is
denied, and Defendant’s motion is granted.
6.

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 be reversed only if it is not supported by substantial evidence or there
has been a legal error. See 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 that which amounts to
“more than a mere scintilla,” and it 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, 28 L. Ed. 2d 842, 852 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the

2The

ALJ’s May 18, 2017, decision became the Commissioner’s final decision on this matter when
the Appeals Council denied Plaintiff’s request for review.

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Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
7.

“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).
8.

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, 140-142 (1987).
9.

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 his physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
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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 him
disabled without considering vocational factors such as age,
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, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
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).
10.

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, supra,
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); see also Heckler v. Campbell, 461 U.S. 458, 460
(1983).
11.

The ALJ analyzed Plaintiff’s claim for benefits under the process set forth

above. At step one, the ALJ found that Plaintiff did not engage in substantial gainful
activity during the period from his amended alleged onset date of September 4, 2012,
through the date last insured of December 31, 2013. (R. at 12.) At step two, the ALJ
found that Plaintiff had the following severe impairment: cervical disk herniation C5-6, C64

7, bilateral carpel tunnel syndrome, bilateral cubital tunnel syndrome, right shoulder
rotator cuff tear, depression. Id. At step three, the ALJ found that Plaintiff does not have
an impairment or combination of impairments that meets or medically equals any
impairment(s) listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 12-14.
12.

Next, the ALJ found that Plaintiff retained the residual functional capacity

(“RFC”) to perform light exertion work but with the following nonexertional limitations:
[Plaintiff] can lift/carry up to 10 pounds; frequently climb
ramps/stairs; never climb ladders, ropes or scaffolds; never
crawl; and occasionally stoop, crouch and kneel. He can
frequently (but not constantly) perform fine and gross
manipulation with the bilateral upper extremities, occasionally
reach overhead with bilaterally upper extremities, and perform
rotation of his neck 45 degrees to the right and left of center.
He cannot perform jobs that require driving as part of the job
duties. This individual is limited to simple, routine tasks,
making simple work-related decisions, and with minimal
changes in work routines and processes.
(R. at 14.)
13.

At step four, the ALJ found Plaintiff was unable to perform any past relevant

work. (R. at 19.) At step five, due to his additional limitations beyond performing light
exertion work, the ALJ asked the vocational expert whether jobs exist in significant
numbers in the national economy that Plaintiff could perform. The expert opined that a
hypothetical claimant with Plaintiff’s RFC, age, education, and work experience could
perform such jobs as a furniture rental clerk, gate guard, or storage facility clerk, each
light exertion work. (R. at 19-20, 98-100.) Accordingly, the ALJ found that Plaintiff is not
disabled. (R. at 20.)
14.

Plaintiff argues that the RFC determination is not supported by substantial

evidence because (1) the ALJ failed to properly weigh medical opinion evidence, ignoring
(without explanation) the opinions and findings of his treating physicians (Drs. Thaddeus
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Szaranowicz, on Plaintiff’s ability to overreach (R. at 269, 16), and Zair Fishkin,
recommending avoiding aggravating activities (R. at 302, 336-40, 18-19)) as to functional
limitations; (2) the ALJ discredited Plaintiff’s complaints of pain, numbness, and tingling;
(3) the ALJ’s finding of light work was flawed since it was not based on substantial
evidence and unsupported by opinions of physicians or record; and (4) the ALJ erred in
considering the effect of Plaintiff’s depression. (Docket No. 12-1, at 1, 16-19, 19-21, 2124, 24-25.) Defendant argues that the ALJ properly evaluated both Plaintiff’s physical
and mental RFC. (Docket No. 18-1, at 11-18.) Each argument is discussed in turn.
15.

Regarding the ALJ’s consideration of the opinions from Plaintiff’s treating

physicians, a Plaintiff’s RFC, both mentally and physically, is his “‘maximum remaining
ability to do sustained work activities in an ordinary work setting on a continuing basis,’”
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184,
*2 (July 2, 1996)). When making an RFC assessment, 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.” Malta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013). All “[m]edical opinions,
regardless of the source, are evaluated considering several factors outlined in 20 C.F.R.
§§ 404.1527(c), 416.927(c).” House v. Astrue, No. 5:11-CV-915(GLS), 2013 WL 422058,
*2 (N.D.N.Y., Feb. 1, 2013).
16.

First, Plaintiff argues that the ALJ should have considered the findings of

Drs. Szarzanowicz and Fishkin that Plaintiff had weakness in elevating his arms beyond
90° (R. at 265.) and recommended aggravating activity including heavy overhead lifting
(R. at 298.) (No. 12-1 at 17-18.). Dr. Fishkin’s plan of August 15, 2013, which noted
avoiding aggravating activity also did not recommend surgical intervention (R. at 298.).

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The ALJ acknowledged from this report that Plaintiff was “doing relatively well” and that
electrodiagnostic studies of his arms were normal (R. at 296, 17.) and assigned partial
weight to Dr. Fishkin’s opinion agreeing with the assessment to avoid “excessive/heavy
lifting” (R. at 18, citing R. at 298.). The RFC recognized that Plaintiff could lift up to
10 pounds, less than the heavy lifting he was advised to avoid and noted that he could
“occasionally reach overhead” with his arms (R. at 14; see Docket No. 18-1 at 14-15.).
Plaintiff argues that this is contradictory to Dr. Fishkin’s finding of avoidance of
aggravating activity and not lifting greater than 10 pounds (Docket No. 12-1 at 18); these
are not contradictory. The ability to lift up to 10 pounds does not include lifting more than
that amount, and occasional overhead reach is not aggravating activity such as repetitive
motions. It is also not contradictory when Plaintiff testified that he could lift only 8 pounds
that the ALJ concluded that he could lift up to 10 pounds. (R. at 95, 14.). The ALJ
considered both doctors’ opinions in forming the RFC (R. at 16, 17, 264, 296, 298.). The
ALJ also relied upon the opinion of the vocational expert (R. at 20), who selected the jobs
someone in Plaintiff’s situation could perform because “they did not require frequent
reaching, handling or fingering.” (R. at 101.)
17.

Second, Plaintiff argues that the ALJ did not consider Plaintiff’s descriptions

of his ability to perform certain tasks or activities and his description of his symptoms,
including suffering pain, numbness and tingling. (Docket No. 12-1 at 20; Docket No. 20
at 1-4; R. at 337, 324, 264, 583, 599, 304, 614-15.) Again, the ALJ noted Plaintiff’s
complaints of weakness, numbness, and shaking of his right arm when lifted beyond 90°.
(R. at 16, 17.)

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18.

SSR 16-3p requires the ALJ to “consider all of the evidence in an

individual’s record when they evaluate the intensity and persistence of symptoms,” SSR
16-3p, 2016 SSR LEXIS 4, at *2 (2016). If symptoms suggest a greater impairment than
can be shown by objective evidence alone, the ALJ considers such factors as the
claimant’s daily activities; the nature, location, onset, duration, frequency, radiation, and
intensity of pain and other symptoms; precipitating and aggravating factors; the type,
dosage, effectiveness, and adverse side effects of medication the claimant has taken;
treatment other than medication that the claimant has taken for relief of pain and other
symptoms, and any measures which the claimant has used to relieve the pain or other
symptoms, Toro v. Chater 937 F. Supp. 1083, 1086 (S.D.N.Y. 1996), citing 20 C.F.R.
§ 404.1529(c)(3). (Docket No. 12-1 at 19.)
19.

The ALJ noted Plaintiff’s treatments, chiropractic and medical care,

deeming that care to be conservative. (R. at 17.) The ALJ thus considered Plaintiff’s
subjective complaints of pain but found that they were not entirely consistent with the
medical evidence and other evidence in the record. (R. at 15.) Plaintiff admitted to driving
a vehicle, performing personal care activities, occasionally doing the laundry, loading the
dishwasher, and grocery shopping with accompaniment, while not mopping, sweeping or
vacuuming. (R. at 15, 76-82; see Docket No. 18-1 at 16-17.)
20.

In his reply (Docket No. 20 at 2), Plaintiff states that, due to neck pain that

deprived him of sleep, he naps daily for an hour and a half to two hours (R. at 90-91),
concluding that the ALJ did not factor in any off task aspect of his RFC (Docket No. 20 at
2). The ALJ, however, noted plaintiff’s testimony that he complained of neck pain,
difficulty focusing, and difficulty sleeping (among other complaints) and his July 24, 2013,

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questionnaire wherein he claimed trouble sleeping (again with other conditions). (R. at
15, 1138-40.) In hypotheticals posed to the vocational expert, the ALJ asked if a claimant
like Plaintiff could remain employable if that claimant had to be off task 15% or more of
the day, and the expert concluded that this amount of time off work would be work
preclusive. The ALJ then asked if such a claimant required additional breaks for naps
remained employable, the expert opined that such a person also would not be
employable. (R. at 101.)
21.

Regarding Plaintiff’s third argument about the lack of substantial evidence

for the RFC finding of light work, Plaintiff focuses on the initial finding of light work but not
the non-exertional limitations to that finding. He relies upon part of the definition for light
work that for disability coverage, 20 C.F.R. § 404.1567(b); SSR 83-10, emphasizing the
duration for standing and sitting and his inability to lift 20 pounds. (Docket No. 12-1 at
22; Docket No. 20 at 2.) The ALJ recognized Plaintiff’s limitation in lifting weights by
including a limitation that he could lift up to 10 pounds. (R. at 14.) The record does not
indicate any limitation on Plaintiff’s standing, save his own testimony that he required
naps up to two hours each day.
22.

Plaintiff concludes that the ALJ did not consider his depression in the RFC,

complaining that the ALJ did not discuss these symptoms. (Docket No. 12-1 at 24-25;
Docket No. 20 at 4-5.) To the contrary, the ALJ did discuss these symptoms. In giving
little weight to the evaluation of the consultative psychologist (R. at 111, 115), the ALJ
found that he had “depressive disorder to be of sufficient severity as to result in more than
minimal work-related limitations and thus is a severe impairment.” (R. at 18.) The ALJ
noted that Plaintiff complained of depression in March 2013 due to seasonal affective

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disorder and in July 2013 upon the death of his mother (R. at 17, 320, 304, 1140.) The
ALJ then stated Plaintiff’s mode improved during the summer of 2013, with Plaintiff having
purchased a motorcycle and leaving the house more often. (R. at 17.) The ALJ also
noted Plaintiff’s mental status examination on July 23, 2013, “revealed a blunted affect
low energy, passivity, limited/controlled social interactions, avoidance, feelings of
worthlessness grief, loss, stress, panic/anxiety attacks, insomnia, depression, anger,
resentment, loneliness and mood swings, but with increased insight, no appetite issues
and no suicidal/homicidal ideation.” (R. at 17; 648, 1140, 1192.) In August, Plaintiff felt
some improvement with a change of medication, but he still did not sleep well, had trouble
focusing and concentrating and felt overwhelmed.

(R. at 17-18; 644.)

By

November 2013, Plaintiff reported that he was on venlafaxine and nortriptyline and
reported being very happy with his mood. (R. at 18, 640.) Plaintiff’s December 2013
evaluation noted that Plaintiff had a blunted affect, his mood was anxious, nervous,
depressed, sad, tearful, he was frustrated and overwhelmed, angry, resentful, and with
mood swings. (R. at 18, 1187.)
23.

Plaintiff cites to mental health evaluations that occur after the date last

insured on December 31, 2013, that do not establish the state of his mental health during
the insured period (September 4, 2012, to December 31, 2013) (Docket No. 12-1 at 25;
R. at 18, 1142, 1147, 1172, 1176, 1179, 1185.)
24.

Plaintiff also points to missing a July 8, 2013, appointment due to his

depression. (Docket No. 12-1 at 25; R. at 652.) This, however, may have been a unique
instance due to the death of a family member. The doctor at UBMD Family Medicine who
reported that missed appointment also noted that Plaintiff had recently lost his uncle and

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that his mother had a stroke. (R. at 652.) Plaintiff did not indicate subsequent missed
appointments due either to his depression. This is not enough for the ALJ to include
limitations regarding plaintiff being off task.
25.

The ALJ included in the RFC limitations for simple and routine tasks to

address Plaintiff’s mental impairments. (R. at 14; see Docket No. 18-1 at 18.) At step two,
the ALJ applied the “Paragraph B” criteria for Listing 12.04 and found that Plaintiff had
moderate limitations in his ability to concentrate, persist, or maintain pace. (R. at 13.)
26.

From the mental health evaluations, Plaintiff’s condition fluctuated during

the insured period, with Plaintiff receiving counseling and medication. He has not shown
that treating sources advised restrictions on Plaintiff’s work due to his mental state.
27.

As noted by Dr. Kathleen Conroy, Ph.D., Plaintiff’s chief source of his

depression was his inability to return to his past work as a carpenter. (R. at 1188, 1192.)
As the ALJ concluded, Plaintiff’s condition has not barred him from other work.

For the foregoing reasons, this Court finds that substantial evidence in this record
supports the ALJ’s disability determination. Remand is therefore not warranted.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 12) is DENIED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket
No. 18) is GRANTED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.

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Dated:

April 15, 2020
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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