May v. Commissioner of Social Security
ORDER denying plaintiff's 10 Motion for Judgment on the Pleadings; granting defendant's 12 Motion for Judgment on the Pleadings. Signed by J. Gregory Wehrman on 7/16/2021. (JLV)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FORMERLY KNOWN AS CHANDRA J.,
CASE # 1:19-CV-00744
COMMISSIONER OF SOCIAL SECURITY,
LAW OFFICES OF KENNETH HILLER
Counsel for Plaintiff
6000 North Bailey Ave
Amherst, NY 14226
KENNETH HILLER, ESQ.
SAMANTHA VENTURA, 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
FRANCIS D. TANKARD, ESQ.
J. Gregory Wehrman, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented in accordance with a standing order to proceed before the
undersigned. 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’ cross-motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. Upon review of the administrative record
In accordance with Standing Order in November 2020, to better protect personal and medical information of nongovernmental parties, this Memorandum-Decision and Order will identify plaintiff by first name and last initial.
and consideration of the parties’ filings, the plaintiff’s motion for judgment on the administrative
record is DENIED, the defendant’s motion for judgment on the administrative record is
GRANTED, and the decision of the Commissioner is AFFIRMED.
Plaintiff was born on April 5, 1973 and has less than a high school education. (Tr. 173,
178). Generally, plaintiff’s alleged disability consists of chest pains, hard time breathing, asthma,
congestive heart failure, partial blindness, back issues, arthritis in bilateral legs, trouble walking,
chronic pain with burning/swelling, and slow learner. (Tr. 177). Her alleged onset date of disability
is May 3, 2015. (Tr. 173).
On May 11, 2016, plaintiff applied for Supplemental Security Income (SSI) under Title
XVI of the Social Security Act. (Tr. 158). Plaintiff’s application was initially denied, after which
she timely requested a hearing before an Administrative Law Judge (ALJ). On July 10, 2018,
plaintiff appeared before the ALJ, Bryce Baird. (Tr. 28-54). On September 6, 2018, ALJ Baird
issued a written decision finding plaintiff not disabled under the Social Security Act. (Tr. 7-23).
The Appeals Council (AC) denied plaintiff’s request for review and plaintiff then filed a civil
action in this Court seeking judicial review of the Commissioner’s decision.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following findings of fact and conclusions of
1. The claimant has not engaged in substantial gainful activity since May 11, 2016, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: obesity; arthritis; chronic obstructive
pulmonary disease (COPD); and asthma. (20 CFR 44.1520(c) and 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. After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 416.967(b) except she can
lift and carry up to 20 pounds frequently and 10 pounds occasionally. She can sit about 6
hours in an 8-hour workday and stand and/or walk about 6 hours in an 8-hour workday.
The claimant can frequently climb ramps and stairs, balance, and stoop. She can
occasionally kneel and crouch. She cannot crawl. The claimant cannot be exposed to
excessive cold, heat, moisture, or humidity. She can occasionally be exposed to irritants,
such as, odors, fumes, dusts, gasses, and poor ventilation and includes smoking 2 packs of
cigarettes per day.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on April 5, 1973 and was 43 years old, which is defined as a younger
individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education in special education classes and is able to
communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant
work (20 CFR 416.968).
9. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 416.969, and 416.969a).
10. The claimant has not been under a disability, as defined in the Social Security Act, since
May 11, 2016, the date the application was filed (20 CFR 416.920(g)).
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
Plaintiff argues the ALJ ignored evidence of plaintiff’s borderline intellectual functioning,
which resulted in an unsupported RFC. (Dkt. No. 10 at 7 [Pl.’s Mem. of Law]).
Defendant responded that the ALJ accounted for the alleged impairments and reasonably
developed the record. (Dkt. No. 12 9 [Def.’s Mem. of Law]).
RELEVANT LEGAL STANDARD
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).
“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).
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. § 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.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
Plaintiff argues the record contained a prior finding she suffered from a cognitive
impairment which in turn put the ALJ “on notice” and he was required to further develop the record
in this area. For the reasons outlined below, the ALJ properly evaluated plaintiff’s mental
impairments and associated limitations. The record before the ALJ was complete and he was not
obligated to further develop the record concerning cognitive impairments.
Plaintiff argues the ALJ failed to consider evidence in the record of borderline intellectual
functioning. (Dkt. No. 10 at 7). The current record contains a 2010 unfavorable SSI decision which
was admitted into evidence with no objections from plaintiff’s representative. (Tr. 31, 58-67). In
that decision, the ALJ found the severe impairment of borderline intellectual functioning which
was based on a Full Scale IQ score of 70 from a 2009 Consultative Exam and school records
containing low IQ scores. (Tr. 64). The prior ALJ concluded plaintiff did not meet a listing and
retained the ability to perform simple, routine, repetitive tasks. (Tr. 61-62).
As an initial matter, an ALJ is not bound by a prior administrative finding and a claimant
has the general burden of proving her case at steps one through four in each new application.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). The regulations provide that the ALJ is
responsible for developing a claimant’s complete medical history for at least the 12 months
preceding the month in which the claimant filed her application and make every reasonable effort
to help plaintiff get medical evidence from her medical sources. 20 C.F.R. § 416.912 (b)(1).
Additionally, the ALJ “is not required to develop the record any further when the evidence already
presented is adequate for [the ALJ] to make a determination as to disability.” Janes v. Berryhill,
710 F. App’x 33, 34 (2d Cir. 2018).
At the time of her application, plaintiff stated she was a “slow learer (sic)” but never
provided any evidence of cognitive limitations. (Tr. 177). Notably, plaintiff was represented by
counsel at the time of application and completed the SSI application2. (Tr. 83, 184). On the same
Notation on Form SSA-3368: “SSI application will be completed by Law Offices of Kenneth Hiller and Forwarded
to Local SSA with our attorney paperwork via certified mail.” (Tr. 184).
initial paperwork completed by her attorney’s office, the education section reports she went to
Lafayette High School/Grover Cleveland High School but in additional remarks it states, “I went
to more than one: special education school.” (Tr. 176, 184). At the hearing, the ALJ asked
plaintiff’s counsel what impairments cause plaintiff to be disabled and she responded “arthritis,
degenerative spondylosis, COPD, migraine, left knee degenerative joint disease, anemia,
osteoarthritis of the ankle, neuropathy, ocular hypertension, cataracts, and PTSD.” (Tr. 33).
Although ALJ Baird did not find plaintiff had a severe cognitive impairment at step two,
the ALJ discussed evidence in the record of plaintiff’s allegations of being a slow learner,
additional mental impairments, and associated limitations supported by the record. (Tr. 14-15). He
observed that the evidence revealed normal mental status examinations and frequent denial of any
psychiatric symptoms. (Tr. 15). At step three, the ALJ discussed the special paragraph B criteria
for mental impairments and concluded plaintiff had a mild limitation in the functional area of
understanding, remembering or applying information. (Id.) The ALJ asserted there were no school
records to confirm plaintiff’s report of special education classes and inability to finish her GED;
however, he gave “the claimant the benefit of the doubt that this information is correct.” (Tr. 15).
He noted plaintiff admitted to no problems following instructions and attributed problems with
maintaining attention and completing tasks to her back and leg pain. (Tr. 16). The ALJ also
considered plaintiff’s testimony that she did not need reminders to engage in personal care
activities or taking her medications. (Id.). In other functional areas of the paragraph B criteria, the
ALJ referenced plaintiff’s ability to watch television, listen to the radio, read books, draw, play
games on her cell phone, cook simple meals, and shop with only physical limitations. (Tr. 16).
However, the ALJ did elicit testimony about education levels and plaintiff’s counsel asked if she
had been in special classes. (Tr. 41). See 20 C.F.R. § 416.920(b)(2)(iv) (the ALJ may develop the
record by asking the claimant for more information about her impairment(s)). When addressing
plaintiff’s allegations of being a slow learner, the ALJ found there were no school records or other
evidence submitted by plaintiff or her representative to support the allegation. (Tr. 13). The ALJ
correctly observed plaintiff did not submit any school records or other evidence to support the
allegation of being a slow learner; however, the record did contain the prior 2010 decision which
referenced IQ testing and school records. (Tr. 13, 55).
Plaintiff’s “on notice” argument regarding the 2010 decision effectively shifts to the ALJ
the task of developing the record on the issue of borderline intellectual functioning as an
impairment. (Dkt. No. 10 at 8). However, as stated above, “‘the claimant has the general burden
of proving that he or she has a disability within the meaning of the Act, and bears the burden of
proving his or her case at steps one through four[.]’” McIntyre v. Colvin, 758 F.3d 146, 150 (2nd
Cir. 2014) (quoting Burgess, 537 F.3d at 128).
Neither the claimant plaintiff, her representative, nor any treating medical providers,
indicated plaintiff had a cognitive impairment or associated limitations. Dumas v. Schweiker, 712
F.2d 1545, 1553 (2d Cir. 1983) (“The Secretary is entitled to rely not only on what the record says,
but also on what it does not say.”). Plaintiff did not submit additional evidence of cognitive
limitations and it was not raised at the hearing, at the Appeals Council level, or before this Court.
Curley v. Comm'r of Soc. Sec. Admin., 808 F. App'x 41, 44 (2d Cir. 2020) (ALJ did not fail to
develop the record where ALJ discussed the medical records with plaintiff’s attorney, attorney did
not state anything needed to be obtained, and attorney did not submit records to district court).
This Court has previously found an ALJ is not required to obtain additional information when the
claimant “did not specifically allege impairment of cognitive functioning as a disabling condition
in his application for benefits, at his hearing, or in his brief to the Appeals Council” and no medical
source indicated the claimant’s cognitive functioning was a significant factor in his ability to
perform work activities. Oaks v. Colvin, No. 13-CV-917-JTC, 2014 WL 5782486 at *9 (W.D.N.Y.
Nov. 6, 2014) (transcript citations omitted).
Contrary to plaintiff’s argument, the prior decision was not under the sole control of the
ALJ. (Dkt. No. 10 at 10). Plaintiff and her attorney had access to the record prior to the hearing,
including the 2010 ALJ decision; however, they never raised the issue of borderline intellectual
functioning until before this Court. The ALJ appropriately considered the plaintiff’s case de novo
and it is routine that prior decisions are often included in the record. Plaintiff did not ask for a reopening of the previous application and did not object to the inclusion of the prior decision in the
record. (Tr. 31-32). Plaintiff’s attorney stated at the hearing that the only outstanding records
pertained to cardiology treatment. (Tr. 32). Therefore, Plaintiff’s argument fails.
Although plaintiff contends the duty to develop the record is lessened because of her
cognitive issues, she is not relieved of a duty to raise issues or allege limitations related to
intellectual problems, particularly when represented by counsel. Plaintiff alleged that problems
with attention, concentration, or completing tasks were due to her physical, not cognitive,
impairments. (Tr. 16). Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (plaintiff bears the
burden of proving a more restrictive RFC); see Barry v. Colvin, 606 F. App'x 621, 622 (2d Cir.
2015) (“A lack of supporting evidence on a matter for which the claimant bears the burden of
proof, particularly when coupled with other inconsistent record evidence, can constitute substantial
evidence supporting a denial of benefits.”).
Finally, plaintiff asserts Listing 12.05 should have been considered solely because of the
full-scale IQ score of 70. (Dkt. No. 13 at 2). However, a score alone is not sufficient to satisfy the
listing. There also must be significant deficits in adaptive functioning. See Talavera v. Astrue 697
F.3d 145 (2d Cir. 2012)(while IQ scores in the range specified by the subparts of Listing 12.05
may be prima facie evidence that an applicant suffers from “significantly subaverage general
intellectual functioning,” the claimant has the burden of establishing that she also suffers from
qualifying deficits in adaptive functioning.). ALJ Baird assessed the four broad areas of mental
functioning under the paragraph B criteria for the alleged mental impairments and found only a
mild limitation in understanding, remembering or applying information and no limitation in
interacting with others or concentrating, persisting or maintaining pace or adapting or managing
oneself. (Tr. 15-16).
Overall, the RFC was supported by substantial evidence without consideration of the
alleged borderline intellectual functioning. The ALJ properly relied on plaintiff’s activities,
hearing testimony, and medical records when assessing the RFC. Plaintiff had a duty to prove a
more restrictive RFC and failed to do so. Here, plaintiff has only argued there is an IQ score of 70
but did not furnish the ALJ with any medical evidence showing how the alleged intellectual
impairment limited her ability to work. See Britt v. Astrue, 486 F. App'x 161, 163 (2d Cir. 2012).
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is
Dated: July 16, 2021
Rochester, New York
J. Gregory Wehrman
HON. J. Gregory Wehrman
United States Magistrate Judge
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