Cook v. Commissioner of Social Security

Filing 17

DECISION AND ORDER denying 12 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close this case. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 11/17/2022. (HKG)Clerk to Follow up

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHAWN C.,
v.

Plaintiff,

COMMISSIONER OF SOCIAL SECURITY,

20-CV-1378

Defendant.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the
undersigned conduct any and all further proceedings in this case, including entry of final
judgment. Dkt. No. 16. Shawn C. (“Plaintiff”), who is represented by counsel, brings
this action pursuant to the Social Security Act (“the Act”) seeking review of the final
decision of the Commissioner of Social Security (“the Commissioner”) denying his
application for benefits. This Court has jurisdiction over the matter pursuant to
42 U.S.C. § 405(g). Presently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Dkt. Nos. 12, 14. For the following reasons, Plaintiff’s motion (Dkt. No. 12)
is denied, and the Commissioner’s motion (Dkt. No. 14) is granted.

BACKGROUND
On April 2, 2018, Plaintiff filed for Social Security Income (“SSI”) and
Disability Insurance Benefit (“DIB”) alleging that he became disabled on November 15,
2017, by depression, anxiety, bipolar disorder, and traumatic brain injury. Tr. at 152-64,

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183. 1 Plaintiff’s claim was denied at the initial level, and he requested review. Tr. at 8198. Administrative Law Judge Arthur Patane (“the ALJ”) conducted a hearing on
October 21, 2019. Tr. at 133-63. On November 6, 2019, the ALJ issued a decision in
which he found that Plaintiff was not under a disability as defined by the Act since
November 15, 2017. Tr. at 15-30. The Appeals Council denied Plaintiff’s request for
review making the ALJ’s decision final. Tr. at 1-6. This action followed. Dkt. No. 1.

LEGAL STANDARD
Disability Determination
A person making a claim for Social Security benefits bears the ultimate
burden of proving disability throughout the period for which benefits are sought. See 20
C.F.R. § 416.912(a); Schauer v. Schweiker, 675 F.2d 55, 59 (2d Cir. 1982). The
claimant is disabled only if he shows that he is unable to engage in any substantial
gainful activity due to any medically determinable physical or mental impairment which
has lasted, or can be expected to last, for a continuous period of at least 12 months. 42
U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.909; see Barnhart v. Walton, 535 U.S. 212,
216-22 (2002).

A disabling physical or mental impairment is an impairment that results
from “anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §
1382c(a)(3)(D). Congress places the burden upon the claimant to establish disability by

Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket
No. 10.
2
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“furnish[ing] such medical and other evidence of the existence [of a disability] as the
Commissioner . . . may require.” 42 U.S.C. § 1382c(a)(3)(H)(i). The function of
deciding whether a person is under a disability within the meaning of the Act belongs to
the Commissioner. 20 C.F.R. § 416.927(e)(1); Pena v. Chater, 968 F. Supp. 930, 937
(S.D.N.Y. 1997).

In keeping with this function, the Commissioner has established a fivestep sequential evaluation for adjudicating disability claims, which is set forth at 20
C.F.R. § 416.920. The claimant has the burden at the first four steps. The
Commissioner has the burden at the fifth step of demonstrating that the claimant can
perform other work existing in significant numbers in the national economy; but the
burden of proving disability is always on the claimant. See 20 C.F.R. § 416.920;
Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (stating that “[t]he claimant bears
the ultimate burden of proving [disability] throughout the period for which benefits are
sought”) (citation omitted).

District Court Review
42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). Section 405(g) limits the scope of the Court’s review to
two inquiries: whether the Commissioner’s conclusions were based upon an erroneous
legal standard, and whether the Commissioner’s findings were supported by substantial

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evidence in the record as a whole. See Green-Younger v. Barnhart, 335 F.3d 99, 105106 (2d Cir. 2003).

Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (citation omitted). The
substantial evidence standard of review is a very deferential standard, even more so
than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683 F.3d 443,
447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by
substantial evidence, the Court’s task is “‘to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.’”
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s
determination, the decision must be upheld, even if there is also substantial evidence
for the plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin
ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where
the evidence is 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).

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DISCUSSION AND ANALYSIS
The ALJ’s Decision
The ALJ analyzed Plaintiff’s claims using the familiar five-step process.
Lynch v. Astrue, No. 07-CV-249-JTC, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008)
(detailing the five steps). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since November 15, 2017, his alleged onset date. Tr. at 20.
The ALJ concluded at step two that Plaintiff suffered from the severe impairments of
“status post traumatic brain injury with residual effects, anxiety disorder, posttraumatic
stress disorder (PTSD), obsessive compulsive disorder (OCD)[,] and depressive
disorder.” Tr. at 20. At step three, he concluded that Plaintiff did not have an
impairment or combination of impairments which met or equaled the Listings. Tr. at 21.

The ALJ found that Plaintiff retained the RFC to perform a full range of
work at all exertional levels but is limited to performing simple, routine tasks
commensurate with unskilled work at an SVP of 1 or 2, can frequently, though not
constantly, interact with others in the workplace, must avoid any direct exposure to
unprotected heights or moving mechanical parts, and must avoid concentrated
exposure to crowds, noise, and vibrations. Tr. at 21-22. Relying exclusively on the
Medical Vocational Guidelines (“Grids”), the ALJ determined that Plaintiff had not been
under a disability since his alleged onset date. Tr. at 26-27.

Judgment on the Pleadings
As noted above, the parties have cross-moved for judgment on the
pleadings. Dkt. Nos. 12, 14. Plaintiff argues that the ALJ “failed to validly articulate his
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supportability and consistency of LMSW McDonough and Dr. Shehata’s opinions,
warranting remand.” Dkt. No. 12-1, p. 8. Plaintiff also contends that the ALJ
erroneously relied on the Grids, rather than a vocational expert, in concluding that
Plaintiff was not disabled. For the following reasons, this Court finds that remand is not
warranted.

Residual Functional Capacity
“Your [RFC] is the most you can still do despite your limitations.” 20
C.F.R. § 416.945(a). RFC “is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms,
such as pain, may cause physical or mental limitations or restrictions that may affect his
or her capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, at *2. “This assessment of RFC is used at step 4 of the
sequential evaluation process to determine whether an individual is able to do past
relevant work, and at step 5 to determine whether an individual is able to do other work,
considering his or her age, education, and work experience.” Id.

As previously noted, the ALJ found that Plaintiff retained the RFC to
perform simple, routine tasks commensurate with unskilled work, with only frequent
interaction with others, and avoiding direct exposure to unprotected heights or moving
mechanical parts, and concentrated exposure to crowds, noise, and vibrations. Tr. at
21-25. In assessing the RFC, the ALJ considered Plaintiff’s ability to perform volunteer
work, working at the front desk at a mission center for eight to twelve hours per week.
Tr. at 22, 38-40. The ALJ reasoned that Plaintiff’s ability to work at a public facing job
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supported a finding that he retained the ability to interact with others on a frequent
basis. Tr. at 22.

The ALJ also considered Plaintiff’s activities of daily living, including caring
for himself, cooking and preparing food, cleaning, doing laundry, shopping in public,
managing money, socializing with church members, and following spoken and written
instructions. Tr. at 22, 202-07, 209, 332. It was entirely appropriate for the ALJ to
consider these activities in concluding that Plaintiff was not as limited as he alleged.
See Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013); Poupore v. Astrue, 566 F.3d
303, 307 (2d Cir. 2009) (holding that the ALJ properly considered Plaintiff’s ability to
perform daily chores); Lewis v. Colvin, 548 F. App’x 10 675, 677 (2d Cir. 2013)
(concluding that the ALJ’s RFC finding was supported by substantial evidence including
activities of daily living); Zabala v. Astrue, 595 F.3d 402, 407, 410-11 (2d Cir. 2010)
(holding that a moderate limitation in performing the activities of unskilled work does not
prevent a claimant from performing unskilled work).

The ALJ cited to objective medical evidence to support his conclusion that
Plaintiff’s depression and anxiety did not prevent him from performing a range of
routine, simple work with no more than frequent interaction with others. Tr. at 18-26.
The ALJ acknowledged that the record contained some positive clinical findings
including depressed mood and affect, preoccupation with life stressors, paranoia,
distractibility, and poor frustration tolerance, but that Plaintiff also consistently had
normal presentation, alertness, eye contact, speech, memory skills, psychomotor

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activity, attitude, insight, and judgment. Tr. at 23, 249, 266, 287, 326, 358, 360, 420-21,
435, 455, 480, 493.

The ALJ also considered the prior administrative findings and opinions of
medical consultants, including K. Liber-Diaz, Psy. D., and Dr. Christine Ransom, who
both concluded that Plaintiff’s mental impairments were not severe. Tr. at 23, 70-71. Dr.
Liber-Diaz, a state agency consultant, concluded on June 5, 2018, that “based on the
totality of evidence in the file[,] the psychiatric impairments are judged to be nonsevere.” Tr. at 71. The opinions of non-examining sources, like Dr. Liber-Diaz, can
constitute substantial evidence in support of the ALJ’s decision. See Diaz v. Shalala, 59
F.3d 307, 313 n.5 (2d Cir. 1995); Camille v. Colvin, 652 F. App’x 25, 28 (2d Cir. 2016).

Dr. Ransom, a consultative examiner, opined in May 2018 that Plaintiff
had a mild psychiatric condition that would not significantly interfere with his ability to
function on a daily basis. Tr. at 23-24, 332. Dr. Ransom found that Plaintiff had, at
most, very mild functional limitations and noted that Plaintiff’s areas of difficulty were
secondary to social anxiety, which were currently mild and episodic, and which
improved significantly with medication. Tr. at 332. Dr. Ransom’s opinion was wellsupported by her exam findings, which were entirely normal. Tr. at 331-32. Plaintiff
himself reported to Dr. Ransom that his medication was mostly effective, that he felt
anxious “very occasionally,” and that he was able to manage his anxiety with his current
treatment. Tr. at 330. This establishes the supportability of Dr. Ransom’s opinion. See
20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1)(supportability).

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Contrary to Plaintiff’s argument, the ALJ determined that Dr. Ransom’s
opinion was consistent with other evidence in the record, such as Dr. Liber-Diaz’s
opinion, as both practitioners found that Plaintiff’s mental impairments were not severe.
Tr. at 23-24, 70-71, 332. See 20 C.F.R. §§ 404.1520b(c)(2), 416.920b(c)(2)
(consistency). This was not erroneous as the opinion of a consulting physician that is
consistent with the record constitutes substantial evidence. See Mongeur v. Heckler,
722 F.2d 1033, 1039 (2d Cir. 1983). 2

The ALJ was less persuaded by the opinion of treating source,
Katherine McDonough, LMSW, who concluded that Plaintiff had slight to moderate
limitations in her ability to remember and carry out simple instructions, maintain
attention and concentration for extended periods, work near others without being
distracted, make simple work-related decisions, accept criticism, get along with others,
and adapt to changes in the work setting. Tr. at 13, 747-48. The ALJ found that Ms.
McDonough’s opinion was inconsistent with Drs. Liber-Diaz and Ransom’s opinions. Tr.
at 22-24. Nevertheless, the ALJ found Ms. McDonough’s opinion persuasive, and noted
that an RFC for simple, unskilled work in restricted setting accommodated all of the
limitations Ms. McDonough assessed. Tr. at 24. This was not erroneous. See
McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (stating that moderate limitations in
social functioning and concentration, persistence and pace are consistent with an RFC
for unskilled work); Zabala v. Astrue, 595 F.3d 402, 407-11 (2d Cir. 2010) (holding that

Even if the ALJ had erred in analyzing these opinions, any error is harmless, because he
ultimately concluded that Plaintiff’s mental impairments were severe, and assessed an RFC that
accommodated those impairments. Tr. at 23-24.
2

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moderate limitations in work related functioning are consistent with the ability to perform
unskilled work, including carrying out simple instructions, dealing with work changes,
and responding to supervision).

Plaintiff also argues that the ALJ improperly assessed the opinion of Dr.
Hany Shehata’s opinion that Plaintiff had only slight to moderate mental limitations but
would nonetheless be absent from work three times per month due to his impairments.
Tr. 24, 743-44. This Court does not agree. The ALJ reasoned that even moderate
mental work-related limitations would not cause a person to be absent three times per
month. Tr. at 24, 744. In this regard, Dr. Shehata’s conclusion was not supported by
his findings. See 20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1) (supportability). The
ALJ also noted that Dr. Shehata’s opinion that Plaintiff would be absent from work was
contradicted by the opinions of Ms. McDonough, Dr. Liber-Diaz, and Dr. Ransom. Tr. at
24, 70-71, 332, 747-48; see 20 C.F.R. §§ 404.1520b(c)(2), 416.920b(c)(2)
(consistency).

The ALJ found that the remainder of Dr. Shehata’s opinion assessing
slight to moderate limitations was persuasive and adequately accommodated such
limitations in the RFC finding. Tr. at 24. This was appropriate. See Veino v. Barnhart,
312 F.3d 578, 588 (2d Cir. 2002) (holding that an ALJ may reject portions of a medical
opinion not supported by and even contrary to the objective evidence of record while
accepting those portions that are supported by substantial evidence). Plaintiff has failed
to show that he was more restricted than the ALJ concluded. Thus, remand is not

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warranted. See Smith v. Berryhill, 740 F. App’x 721 (2d Cir. 2018) (“Smith had a duty to
prove a more restrictive RFC, and failed to do so.”).

Medical Vocational Guidelines
Plaintiff argues that the ALJ should have obtained VE testimony rather
than relying exclusively on the Grids. The Grids are a matrix of specific parameters,
including a claimant’s exertional capacity, age, and work experience. See Rosa v.
Callahan, 168 F.3d 72, 78 (2d Cir. 1999); 20 C.F.R. Part 404, Subpart P, Appendix 2.
In a garden variety case, the Grids may “direct [ ]a conclusion as to whether the
individual is or is not disabled.” Id. at § 200.00(a). However, if the claimant has nonexertional limitations that restrict his ability to perform jobs he would otherwise be
capable of performing, then the Grids are only a “framework to guide [the] decision.” 20
C.F.R. §§ 404.1569a(d), 416.949a(d); Jordan v. Comm’r of Soc. Sec., 194 F. App’x 59,
61 (2d Cir. 2006) (citing Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)).

Exclusive use of the Grids is precluded, and VE testimony is required, only
“where the claimant’s exertional impairments are compounded by significant
nonexertional limitations” that limit the range of work. Rosa, 168 F.3d at 78; Zabala,
595 F.3d at 410-11. This occurs only where non-exertional limitations “so narrow [the
claimant’s] possible range of work as to deprive [him] of a meaningful employment
opportunity.” Taylor v. Barnhart, 83 F. App’x 347, 350 (2d Cir. 2003) (unpublished)
(quoting Bapp, 802 F.2d at 605-07). An ALJ’s determination of whether a claimant’s
nonexertional limitations significantly impact his ability to perform work constitutes a
finding of fact, subject to deferential review. Jordan, 194 F. App’x at 61.
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As previously noted, the ALJ limited Plaintiff to simple, routine tasks
commensurate with unskilled work, only frequent interaction with others, and no
concentrated exposure to crowds, noise, and vibrations. Tr. at 21-22. This Court finds,
contrary to Plaintiff’s argument, that the ALJ provided a sufficient rationale for
why a VE’s testimony was not necessary. Tr. at 26 The ALJ explicitly found that the
restrictions in the RFC had “little or no effect on the occupational base of unskilled
work,” because: the bulk of unskilled work involves dealing with objects, rather than
with people; the ability to engage with crowds was not listed among the basic mental
demands of competitive unskilled work; and most job environments do not have
excessive noise or dust. Tr. at 26; 20 C.F.R. Part 404, Subpart P, Appendix 2,
§ 202.00(g); SSR 85-15.

This conclusion was not erroneous. The law is clear that restricting a
claimant to occasional contact with others and to simple and unskilled work does not
significantly impact the potential occupational base, particularly where a claimant can
perform work at all exertional levels. See Fisk v. Colvin, 2017 WL 1159730 (W.D.N.Y.
Mar. 29, 2017) (upholding the ALJ’s reliance on the Grids where ALJ found that the
claimant had the RFC for work at all exertional levels with a limitation to jobs involving
simple, routine, repetitive type tasks involving only occasional contact with others
because it had “little or no effect” on the occupational base of unskilled work at all
exertional levels); Cross v. Astrue, 2010 WL 2399379, at *14-15 (N.D.N.Y. May 24,
2010) (explaining that limitations to occasional contact with the public and coworkers
and occasional changes in work setting did not necessitate VE testimony).

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Having reviewed the record, this Court finds that the ALJ sufficiently
explained why he relied on the Grids despite the fact that Plaintiff suffered from nonexertional limitations. As such, there is no need to remand this case for VE testimony.
Quintana v. Berryhill, 2017 WL 491657 at *6 (W.D.N.Y. Feb. 7, 2017) (finding that the
ALJ’s reliance on the Grids was proper where the ALJ explained how the non-exertional
limitations had little or no effect on the occupational base of unskilled work at all
exertional levels).

Plaintiff clearly disagrees with the ALJ’s evaluation of the evidence.
However, the substantial evidence standard is so deferential that “there could be two
contrary rulings on the same record and both may be affirmed as supported by
substantial evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012).
That is, “once an ALJ finds the facts, [a reviewing court] can reject those facts only if a
reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448
(emphasis added). This case does not present such a situation. For all of the foregoing
reasons, this Court finds that the ALJ’s decision is free from legal error and is supported
by substantial evidence.

CONCLUSION
For the reasons stated herein, Plaintiff’s motion for judgment on the
pleadings (Dkt. No. 12) is DENIED, and the Commissioner’s motion for

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judgment on the pleadings (Dkt. No. 14) is GRANTED. The Clerk of the Court is
directed to close this case.

SO ORDERED.

DATED:

Buffalo, New York
November 17, 2022

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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