Soler v. Commissioner of Social Security
ORDER denying 9 Motion for Judgment on the Pleadings; granting 11 Motion for Judgment on the Pleadings; Affirming the Defendant's unfavorable determination and Dismissing the Complaint. Signed by Magistrate Judge William B. Carter on 6/2/21. (SG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
COMMISSIONER OF SOCIAL SECURITY,
LAW OFFICES OF KENNETH HILLER, PLLC
Counsel for Plaintiff
6000 North Bailey Ave, Ste. 1A
Amherst, NY 14226
KENNETH HILLER, ESQ.
MELISSA KUBIAK, 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
JASON PECK, ESQ.
JASHUA KERSHNER, ESQ.
William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented, in accordance with a Standing Order, to proceed before
the undersigned. (Dkt. No. 13.) 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’ crossmotions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons discussed below, Plaintiff's motion is denied, and the
Commissioner’s motion is granted.
Plaintiff was born in 1977. (T. 61.) She completed high school. (T. 178.)
Generally, Plaintiff’s alleged disability consists of back injury and chronic pain. (T. 63.)
Her alleged disability onset date is April 26, 2014. (T. 61.) Her date last insured is
December 31, 2020. (Id.) Her past relevant work consists of commercial cleaner. (T.
On February 15, 2017, Plaintiff applied for a period of Disability Insurance
Benefits (“SSD”) under Title II of the Social Security Act. (T. 61.) Plaintiff’s application
was initially denied, after which she timely requested a hearing before an Administrative
Law Judge (“the ALJ”). On February 13, 2019, Plaintiff appeared before the ALJ,
Benjamin Chaykin. (T. 33-60.) On April 17, 2019, ALJ Chaykin issued a written
decision finding Plaintiff not disabled under the Social Security Act. (T. 7-25.) On May
27, 2020, the AC denied Plaintiff’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial
review in this Court.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 12-20.) First, the ALJ found Plaintiff met the insured status
requirements through December 31, 2021 and Plaintiff had not engaged in substantial
gainful activity since April 26, 2014. (T. 12.) Second, the ALJ found Plaintiff had the
severe impairments of: spine disorder and obesity. (Id.) Third, the ALJ found Plaintiff
did not have an impairment that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 14.) Fourth, the ALJ found
Plaintiff had the residual functional capacity (“RFC”) to perform: sedentary work as
defined in 20 C.F.R. § 404.1567(a); except, Plaintiff can occasionally climb ropes,
scaffolds, and ladders; occasionally climb ramps or stairs; occasionally stoop, crouch,
balance, kneel, crawl; and occasionally push and pull with the right lower extremity. (T.
15.) 1 Fifth, the ALJ determined Plaintiff unable to perform past relevant work; however,
there were jobs that existed in significant numbers in the national economy Plaintiff
could perform. (T. 18-20.)
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
Plaintiff makes two arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues the ALJ failed to properly evaluate the medical
evidence against Listing 1.04(A). (Dkt. No. 9 at 15-19.) Second, and lastly, Plaintiff
argues the ALJ failed to properly evaluate Plaintiff’s mental impairments throughout the
remainder of the sequential process after finding the impairments non-severe at step
two. (Id. at 19-24.) Plaintiff also filed a reply in which she reiterated her original
arguments. (Dkt. No. 12.)
In response, Defendant makes two arguments. First, Defendant argues the
record supported the ALJ’s administrative finding of fact that Plaintiff was not disabled
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met. 20 C.F.R. § 404.1567(a).
pursuant to Listing 1.04(A). (Dkt. No. 11 at 5-10.) Second, and lastly, Defendant
argues the record supports the ALJ’s finding Plaintiff’s mental impairments were not
severe. (Id. at 10-17.)
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. §
404.1520. 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 ALJ in concluding Plaintiff’s spinal impairment did not meet
Listing 1.04(A) because the ALJ failed to accurately review the medical record against
the Listing. (Dkt. No. 9 at 17.) Plaintiff argues all of the criteria of the Listing are met
and the ALJ was “obligated to perform a thorough analysis of the Listing itself and
provide a thorough explanation for why Plaintiff did not meet it.” (Id. at 18.) For the
reasons outlined below, the ALJ properly evaluated Plaintiff’s spinal impairment at step
three and the ALJ’s reasoning is supported by substantial evidence in the record.
In general, if an ALJ determines a plaintiff has a severe mental or physical
impairment at step two of the disability evaluation procedure, the ALJ must then
determine whether the impairment meets the criteria of any impairment listed in
Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii)(d) 2. The impairments listed in Appendix 1
are considered severe enough to prevent a plaintiff from doing any gainful activity. Id. §
404.1525(a). If a plaintiff’s impairment, or combination of impairments, matches one
listed in Appendix 1, and satisfies the duration requirement in, then the ALJ should
generally find the plaintiff disabled without considering the plaintiff’s age, education, and
work experience. Id. § 404.1520(d).
To match an impairment listed in Appendix 1, a plaintiff’s impairment “must meet
all of the specified medical criteria” of a listing. Sullivan v. Zebley, 493 U.S. 521, 530,
Effective March 27, 2017, many of the Regulations cited herein have been amended, as
have SSRs. Nonetheless, because Plaintiff’s social security application was filed before the new
Regulations and SSRs went into effect, the court reviews the ALJ's decision under the earlier Regulations
110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (citing 20 C.F.R. § 404 Subpt. P, App. 1). It is
plaintiff's burden to “demonstrate that [her] disability [meets] all of the specified medical
criteria of [a Listing].” Otts v. Comm'r of Soc. Sec., 249 F. App’x. 887, 888 (2d Cir.
2007) (internal citations omitted). “An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.” Sullivan, 493 U.S. at 530.
Listing § 1.04(A) for disorders of the spine, defined in relevant part as:
1.04 Disorders of the Spine (e.g., ... spinal arachnoiditis, spinal stenosis, ...
degenerative disc disease ...) resulting in compromise of a nerve root
(including the cauda equina) or spinal cord. With: (1) Evidence of nerve root
compression characterized by neuro-anatomic distribution of pain, limitation
of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight leg raising test
(sitting and supine) ...
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A) 3.
The ALJ concluded the evidence did not satisfy the criteria of Listing 1.04
because the record was “devoid of evidence of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis with accompanying ineffective ambulation.” (T.
14.) 4 Although the ALJ did not provide a more detailed analysis at step three, the ALJ
did not commit reversible error because the ALJ supports his determination elsewhere
in his opinion. See Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) (“[A]bsence of
an express rationale does not prevent us from upholding the ALJ's determination
Effective April 1, 2021 the criteria of Musculoskeletal Listings changed. See POMS DI
34121.013 Musculoskeletal Listings from 09/29/16 to 04/01/21. Plaintiff’s 2017 application and 2019
hearing were prior to the changes.
The inability to ambulate effectively is a criteria of Listing 1.04(C). 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.04(C) (“Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively, as defined in 1.00 B2b.”). Plaintiff does not
assert she meets or equals Listing 1.04(C)
regarding appellant's claimed listed impairments, since portions of the ALJ's decision
and the evidence before him indicate that his conclusion was supported by substantial
evidence.”); see Solis v. Berryhill, 692 F. App’x. 46, 48-49 (2d Cir. 2017) (ALJ’s failure
to discuss specific Listing was not remandable error where his “general conclusion” that
plaintiff did not meet a Listing was supported by substantial evidence).
Substantial evidence supports the ALJ's determination Plaintiff did not meet or
equal Listing 1.04(A). Listing 1.04(A) requires an individual have a “disorder of the
spine ... resulting in compromise of a nerve root (including the cauda equina) or the
spinal cord.” See 20 C.F.R. Part 404, Subpart P, App'x 1, § 1.04(A). There is no
evidence of such an abnormality in this case. See Sanders v. Comm'r of Soc. Sec., 506
F. App'x 74, 76 (2d Cir. 2012) (emphasizing that Listing 1.04 requires “evidence of
nerve root compression”); see Claymore v. Astrue, 519 F. App'x 36, 37 (2d Cir. 2013)
(Plaintiff failed to show his impairments met Listing 1.04 because MRI showed no
significant nerve involvement and no central spinal stenosis). Plaintiff's MRI results did
not show evidence of nerve root compression as required under Listing 1.04(A). (T.
435, 473, 547, 552, 557.) However, even if the MRI results did exhibit nerve root
compression, the evidence does not show that Plaintiff also suffered from the additional
conditions under Listing 1.04(A). Although the medical evidence shows Plaintiff
suffered from pain and tenderness upon palpation of the lumbar area and diminished
range of motion, sensory exams and straight leg tests were largely normal.
Although the ALJ did not specifically cite evidence to support his step three
determination at step three, the ALJ summarized the evidence in his overall analysis
which supported his step three determination. In July 2014, Lindsey Clark, M.D.,
observed Plaintiff walked with a smooth gait, she had tenderness to palpation and
decreased range of motion of the lumbar spine. (T. 546.) Dr. Clark observed Plaintiff’s
strength was intact, sensation was intact, and she had negative straight leg raises
bilaterally. (Id.) As noted by the ALJ, in June 2017, Dr. Clark observed Plaintiff walked
with a smooth and reciprocal gait. (T. 17, 552.) Dr. Clark observed Plaintiff had
decreased range of motion in her lumbar spine, her strength was intact, and straight leg
raises were negative bilaterally. (Id.) She observed Plaintiff’s sensation to light touch
was intact. (Id.) In September 2015, Gregory Castiglia, M.D., reviewed an “updated
MRI scan,” and examined Plaintiff. (T. 434-435.) Dr. Castiglia observed on
examination Plaintiff had tenderness to palpation of the lumbar spine and she
ambulated independently though favored the right side. (T. 435.) In January 2017, Dr.
Castiglia observed on examination Plaintiff had positive leg raise on the right with a
negative passive range of motion bilaterally. (T. 473.) He observed she walked with an
antalgic gait. (Id.) Dr. Castiglia noted on examination Plaintiff’s “left leg is intact at 5/5,
right is approximately 4/5 with guarding and decreased effort.” (Id.) At a consultative
examination in May 2017, John Schwab, D.O. observed Plaintiff “dragged her right leg
slightly when she walked.” (T. 494.) Dr. Schwab observed Plaintiff’s lumbar spine
showed full range of motion; straight leg raise on the right was 30 degrees, left was “full”
and with straight leg raise sitting right and left were “full.” (T. 495.) Plaintiff had
decreased sensation to light touch in the right lower extremity and full strength. (Id.)
Plaintiff did not meet her burden of establishing that her medical impairments met
or medically equaled the requirements of a listed impairment, and her challenge to the
ALJ's analysis fails. Overall, the evidence in the record did not establish Plaintiff met
the requirements of Listing 1.04(A), and the ALJ's conclusion that Plaintiff's impairments
did not meet or equal the severity of a listed impairment was fully supported by the
Plaintiff argues the ALJ failed to address her non-severe mental impairments in
formulating her RFC determination. (Dkt. No. 9 at 19-24.) For the reasons outlined
below, Plaintiff’s argument fails.
As a general matter, at step two of the sequential analysis, the ALJ is required to
determine whether an impairment or combination of impairments that has lasted or is
expected to last for a continuous period of at least 12 months limits a plaintiff’s physical
or mental ability to perform basic work activities. See 20 C.F.R. § 404.1509. The
regulations define “basic work activities” as “the abilities and aptitudes necessary to do
most jobs,” such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying,
or handling; capacities for seeing, hearing, and speaking; understanding, carrying out,
and remembering simple instructions; responding appropriately to supervision, coworkers and usual work situations; and dealing with changes in a routine work setting.
Id. §§ 404.1522(b). Therefore, a non-severe impairment does not impede the ability to
perform the basic demands of work; however, in formulating an RFC determination, the
ALJ must consider both severe and non-severe impairments.
The RFC is an assessment of “the most [Plaintiff] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1). An RFC determination must account for
limitations imposed by both severe and non-severe impairments. See Parker-Grose v.
Astrue, 462 F. App'x 16, 18 (2d Cir. 2012); 20 C.F.R. § 404.1545(a)(2) (“We will
consider all of your medically determinable impairments of which we are aware,
including your medically determinable impairments that are not ‘severe [ ]’ ... when we
assess your [RFC]....”). Although the ALJ has the responsibility to determine the RFC
based on all the evidence in the record, the burden is on Plaintiff to demonstrate
functional limitations that preclude any substantial gainful activity. Id. §§ 404.1512(c),
404.1527(e)(2), 404.1545(a), 404.1546(c).
In his step two determination, the ALJ concluded Plaintiff had mild limitations in
the four areas of mental functioning. (T. 13); see 20 C.F.R. Part 404, Subpart P, App’x
1 (the four criteria represent the areas of mental functioning a person uses in a work
setting, such as ability to: (1) understand, remember or apply information; (2) interact
with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage
oneself). Based on this analysis, the ALJ concluded Plaintiff’s mental impairments were
non-severe. (T. 13.)
Contrary to Plaintiff’s argument, the ALJ specifically addressed evidence in the
record pertaining to her mental functioning in his RFC analysis. In his step four
analysis, the ALJ discussed the medical opinion evidence provided by non-examining
State agency medical consultant, T. Bruni. (T. 17.) Dr. Bruni opined Plaintiff had no
more than mild limitations in mental functioning, resulting in non-severe mental
impairments. (T. 17, 67.) The ALJ also considered the medical opinion provided by
examining consultative examiner, Janine Ippolito, Psy.D. (T. 18.) Dr. Ippolito opined
Plaintiff was able to understand, remember, or apply simple directions and instructions;
use reason and judgment to make work-related decisions; interact adequately with
supervisors, co-workers, and the public; sustain an ordinary routine and regular
attendance at work; maintain personal hygiene and appropriate attire; and demonstrate
awareness of normal hazards and taking appropriate precautions with no evidence of
limitations. (T. 491.) She further opined Plaintiff would have “mild limitations” in:
understanding, remembering, or applying complex directions and instructions;
sustaining concentration and performing at a task at a consistent pace. (Id.) The ALJ
stated the RFC was supported, in part, by the opinions of Drs. Bruni and Ippolito. (T.
Plaintiff argues the ALJ failed to address evidence in the record of positive
findings on exam concerning Plaintiff’s mental impairments and medication prescribed.
(Dkt. No. 9 at 22.) “An ALJ is not required to discuss in depth every piece of evidence
contained in the record, so long [as] the evidence of record permits the Court to glean
the rationale of an ALJ’s decision.” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir.
2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.1983)); Barringer v.
Comm'r of Social Sec., 358 F.Supp.2d 67, 78-79 (N.D.N.Y. 2005) (an ALJ's failure to
cite specific evidence does not indicate that it was not considered).
Here, the ALJ assessed the medical and other objective evidence in the record
and determined Plaintiff's mental impairments caused no more than “mild” limitations in
all four functional areas. Dianne L. S. v. Comm'r of Soc. Sec., No. 19-CV-075, 2021 WL
1169180, at *4 (W.D.N.Y. Mar. 28, 2021). The regulations provide that when the ALJ
rates a plaintiff’s mental limitation as “none” or “mild,” the ALJ can find the plaintiff’s
impairment non-severe, “unless the evidence otherwise indicates that there is more
than a minimal limitation in [the claimant's] ability to do basic work activities.” Dianne
L.S., 2021 WL 1169180 at *4 (citing 20 C.F.R. § 404.1520a(d)(1)). Indeed, courts have
concluded that even moderate limitations in mental functioning may not prevent a
plaintiff from performing unskilled work. See Zabala v. Astrue, 595 F.3d 402, 410 (2d
Cir. 2010) (“None of the clinicians who examined [plaintiff] indicated that she had
anything more than moderate limitations in her work-related functioning, and most
reported less severe limitations.”); see Whipple v. Astrue, 479 F.App’x. 367, 370 (2d Cir.
2012) (consultative examiners' findings that plaintiff's depression caused moderate
limitations in social functioning ultimately supported the ALJ's determination that plaintiff
was capable of performing work that involved simple tasks and allowed for a low-stress
environment). At step four the ALJ concluded Plaintiff capable of performing unskilled
work. (T. 19.) Although the RFC did not specifically limit Plaintiff to unskilled work, the
ALJ ultimately determined, based on vocational expert testimony, there were a
significant number of unskilled occupations in the national economy Plaintiff could
perform. (T. 19-20.) Therefore, the ALJ properly considered Plaintiff’s mental
impairments at all steps of the sequential process.
The Court cannot set aside the Commissioner’s disability determination unless it
finds that the decision is based on either legal error or factual findings that are
unsupported by substantial evidence. The “substantial evidence” standard “means and means only - such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
“[I]t is . . . a very deferential standard of review - even more so than the ‘clearly
erroneous’ standard.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012). In
particular, it requires deference “to the Commissioner’s resolution of conflicting
evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 11)
is GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
June 2, 2021
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