Kintzel v. Commissioner of Social Security
Filing
18
DECISION AND ORDER Plaintiff's motion to vacate the ALJ's decision and remand the matter 14 is denied, and the Commissioner's cross motion for judgment on the pleadings 15 is granted. The ALJ's decision is affirmed in all respects, and the complaint is dismissed. Signed by Hon. David G. Larimer on 5/4/2021. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
MARGARET K.,
DECISION AND ORDER
Plaintiff,
20-CV-0456L
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
________________________________________________
Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security
(“the Commissioner”). The action is one brought pursuant to 42 U.S.C. §405(g) to review the
Commissioner’s final determination.
On June 30, 2016, plaintiff filed applications for a period of disability and disability
insurance benefits, and for supplemental security income. Both alleged an inability to work since
October 24, 2014. (Dkt. #9 at 11). Those applications were initially denied. Plaintiff requested a
hearing, which was held December 18, 2018, via videoconference before Administrative Law
Judge (“ALJ”) Eric Eklund. The ALJ issued an unfavorable decision on January 14, 2019,
concluding that plaintiff was not disabled under the Social Security Act. (Dkt. #9 at 11-21). That
decision became the final decision of the Commissioner when the Appeals Council denied review
on February 21, 2020 (Dkt. #9 at 1-3). Plaintiff now appeals.
The plaintiff has moved pursuant to Fed. R. Civ. Proc. 12(c) for judgment vacating the
ALJ’s decision and remanding the matter for further proceedings (Dkt. #14), and the
Commissioner has cross moved for judgment dismissing the complaint (Dkt. #15). For the reasons
set forth below, the plaintiff’s motion is denied, the Commissioner’s cross motion is granted, and
the complaint is dismissed.
DISCUSSION
Familiarity with the five-step evaluation process for determining Social Security disability
claims is presumed. See 20 CFR §404.1520. The Commissioner’s decision that plaintiff is not
disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the
correct legal standards. See 42 U.S.C. §405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d
Cir.2002).
DISCUSSION
I.
The ALJ’s Decision
Plaintiff was born May 4, 1966, and was 48 years old on the alleged onset date, with a high
school education and past relevant work as a home health aide and certified nursing assistant. (Dkt.
#9 at 20). Her treatment records reflect a history of myalgia, asthma/chronic obstructive pulmonary
disease (“COPD”), osteoarthritis, lumbar degenerative disease at L2-3 and L4-5, spondylosis, and
early degenerative joint disease, status post right foot fracture of the first metatarsal phalangeal
joint, status post left foot partial thickness tear of peroneus longus tendon and tenosynovitis of the
tibialis posterior tendon, and status post arthrodesis of the first tarsometatarsal articulation, all of
which the ALJ found to be severe impairments.1
The ALJ determined that the plaintiff retained the residual functional capacity (“RFC”) to
perform light work, with the following limitations: plaintiff can never climb ladders, ropes, or
1
The record also contains evidence of mental health treatment for depression and panic disorder. The ALJ applied the
special technique and concluded that plaintiff’s depression and panic disorder have resulted in no more than mild
limitations, and that they are not severe impairments. (Dkt. #9 at 14). Plaintiff does not challenge this finding, and the
Court finds no reason to disturb it.
2
scaffolds, and can never crawl. She can no more than occasionally balance, stoop, kneel, crouch,
or operate foot controls. She must avoid exposure to extreme heat and cold, wetness, and humidity,
and have no exposure to concentrated fumes, odors, dusts, gases, poorly ventilated areas, and
concentrated chemicals. (Dkt. #9 at 16).
When presented with this RFC at the hearing, vocational expert (“VE”) Dr. James S. Cohen
testified that plaintiff could not return to her past relevant work, which was performed at the
medium exertional level, but could perform the light, unskilled positions of mailroom clerk, office
helper, and assembler. (Dkt. #9 at 20). The ALJ accordingly found plaintiff not disabled.
II.
The ALJ’s Assessment of Dr. Kwayke-Berko’s Opinions
Plaintiff contends that the ALJ failed to properly evaluate the opinions of plaintiff’s treating
primary care physician, Dr. Danielle Kwakye-Berko. The record contained two opinions from Dr.
Kwakye-Berko, dated December 8, 2015 and November 4, 2016. (Dkt. #9 at 321-22; Dkt. #10 at
1291-92). The ALJ did not specify the weight given to the December 8, 2015 opinion, except to
note that it was “consistent” with his RFC finding, and in fact, appeared unsure which of plaintiff’s
treatment providers had authored it, given the illegibility of the signature. (Dkt. #9 at 19, 321-22).
The ALJ did not mention or explicitly assess the November 4, 2016 opinion (Dkt. #10 at 129192), and may have overlooked it.
Dr. Kwakye-Berko’s December 8, 2015 opinion indicates the following limitations:
“moderate” limitations in walking, standing, sitting, lifting/carrying, pushing/pulling/bending, and
climbing. (Dkt. #9 at 321-22). In response to the question of whether plaintiff had any severe
impairments expected to last for 12 months or more, Dr. Kwakye-Berko indicated that plaintiff
had “no severe impairment noted on exam[ination].” (Dkt. #9 at 322).
3
Dr. Kwakye-Berko’s November 4, 2016 opinion describes “moderate” limitations in
walking, standing, sitting, and climbing, which are expected to last “4-6 months,” and answers the
question of whether plaintiff has severe impairments meeting the durational requirement with,
“N[ot] A[pplicable].” (Dkt. #10 at 1291-92).
The ALJ’s RFC finding limited plaintiff to light work, which by definition involves
standing or walking for a total of up to 6 hours in an 8-hour workday, sitting intermittently, lifting
no more than 20 pounds and carrying up to 10 pounds frequently, no more than occasional
stooping, kneeling, or crouching, and no climbing. (Dkt. #9 at 16).
The ALJ’s failure to consider Dr. Kwakye-Berko’s November 4, 2016 opinion, or to apply
the treating physician rule and specify the precise weight given to either of Dr. Kwayke-Berko’s
opinions, was clearly erroneous. However, because Dr. Kwayke-Berko’s opinions did not set forth
any limitations that exceeded or contradicted the ALJ’s RFC finding, the ALJ’s failure to
thoroughly discuss and weigh them was harmless error. See Porzio v. Saul, 2020 U.S. Dist. LEXIS
175598 at *7 (W.D.N.Y. 2020)(ALJ’s failure to discuss medical opinions of record was harmless
error, where those opinions “did not specify limitations that exceeded or contradicted the ALJ’s
RFC finding”); Mitscher v. Berryhill, 2019 U.S. Dist. LEXIS 68515 at *12 (W.D.N.Y.
2019)(ALJ’s failure to properly weigh opinions is harmless where the ALJ’s decision does not
conflict with them); Swain v. Colvin, 2017 U.S. Dist. LEXIS 8829 at *7-*8 (W.D.N.Y.
2017)(same).
Specifically, courts have repeatedly found that a claimant can perform light work, despite
moderate difficulties in performing exertional activities such as sitting, standing, or walking. See
Alexander v. Commissioner, 2020 U.S. Dist. LEXIS 173895 at *21 (W.D.N.Y. 2020)(moderate
limitations in walking and standing are not inconsistent with performance of light work); Cottrell
4
v. Comm’r of Soc. Sec., 2019 U.S. Dist. LEXIS 7180 at *9 (W.D.N.Y. 2019) (internal quotation
marks omitted) (collecting cases); Harrington v. Colvin, 2015 U.S. Dist. LEXIS 22357 at *36-*37
(W.D.N.Y. 2015) (collecting cases, and noting that some courts have found that “moderate
limitations for sitting, standing and walking [are not] inconsistent with a determination that the
claimant can perform the requirements of light or medium work”).
Moreover, to the extent that Dr. Kwakye-Berko’s references to “moderate” limitations
could be viewed as too ambiguous to determine whether they are consistent with the ALJ’s detailed
RFC finding, the ALJ supported his finding with other substantial evidence in the record,
including: treatment notes showing grossly normal objective findings with respect to gait, range
of motion, and strength (Dkt. #9 at 557-58, 561-62; Dkt. #10 at 656-62, 1009-1013, 1019-1023,
1103-1106); the July 29, 2016 opinion of consulting internist Dr. Samuel Balderman, who found
only “mild” exertional limitations (Dkt. #9 at 498-501); the July 14, 2017 opinion of treating
internist Dr. Nadia Polataiko, specifying only “moderate” limitations in lifting and walking,
defined as lifting no more than 30 pounds, and avoiding “continuous walking” (Dkt.#10 at 13041305); and the November 8, 2018 opinion of reviewing physician Dr. J. Biddison, who opined that
plaintiff could occasionally lift and carry up to 20 pounds, and sit/stand/walk for up to 6 hours in
an 8-hour workday, in addition to several postural limitations that were wholly adopted by the
ALJ. (Dkt. #10 at 1107-1114). Dr. Balderman’s opinion, in particular, was based on a thorough
in-person examination supported by objective findings, including normal gait, full range of motion
in the spine and all extremities, negative straight leg raising tests, full muscle strength in all
extremities, full grip strength, intact hand and finger dexterity, and no atrophy or sensory deficits.
(Dkt. #9 at 499-500).
5
These records, upon which the ALJ relied to varying degrees, furnished substantial
evidence in support of his detailed RFC determination, and the record does not compellingly
support a finding of any greater limitations. See generally Dumas v. Schweiker, 712 F.2d 1545,
1553 (2d Cir.1983) (an ALJ may “rely not only on what the record says, but also on what it does
not say”).
In sum, I find that to the extent that the ALJ erred in failing to overtly apply the treating
physician rule to Dr. Kwakye-Berko’s opinions, and/or in possibly overlooking one of those
opinions, such error was harmless. I otherwise conclude that the ALJ’s decision is supported by
substantial evidence, and is not the product of legal error requiring remand.
I have considered the remainder of plaintiff’s arguments, and find them to be without merit.
CONCLUSION
For the foregoing reasons, plaintiff’s motion to vacate the ALJ’s decision and remand the
matter (Dkt. #14) is denied, and the Commissioner’s cross motion for judgment on the pleadings
(Dkt. #15) is granted. The ALJ’s decision is affirmed in all respects, and the complaint is
dismissed.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
May 4, 2021.
6
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?