Franchini v. Commissioner of Social Security

Filing 14

MEMORANDUM- DECISION and ORDER denying plaintiff's 9 Motion for Judgment on the Pleadings; granting defendant's 10 Motion for Judgment on the Pleadings. Signed by Honorable J. Gregory Wehrman on 9/15/2022. (JLV)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________
DEAN F.,
Plaintiff,
v.

CASE # 20-cv-01597

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC
Counsel for Plaintiff
600 North Bailey Ave
Suite 1A
Amherst, NY 14226

JEANNE E. MURRAY, ESQ.
KENNETH R. HILLER, ESQ.
SAMANTHA J. 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

ERIC D POOLE, 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
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.

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I.

RELEVANT BACKGROUND

A.

Factual Background

Plaintiff was born on June 3, 1969, and has at least a high school education. (Tr. 307, 321).
Generally, plaintiff’s alleged disability consists of bilateral blindness, ear issues, migraines,
chronic pain, mental issues, and seizures. (Tr. 320). His alleged onset date of disability was August
18, 2016. (Tr. 307).
B.

Procedural History

On May 2, 2017, plaintiff protectively applied for Supplemental Security Income (SSI)
benefits under Title XVI of the Social Security Act. (Tr. 100). Plaintiff’s application was initially
denied, after which he timely requested a hearing before an Administrative Law Judge (ALJ). On
September 19, 2019, plaintiff appeared before ALJ Stephen Cordovani. (Tr. 153-196). On
September 30, 2019, ALJ Cordovani issued an unfavorable decision finding plaintiff was not
disabled under the Social Security Act. (Tr. 97-110). On September 28, 2020, the Appeals Council
(AC) denied plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (Tr. 197-200). Thereafter, plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following findings of fact and conclusions of
law:
1. The claimant has not engaged in substantial gainful activity since May 2, 2017, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: mild degenerative disc disease and
degenerative joint disease of the low back; osteoarthritis of the right knee; mild
degenerative disc disease and degenerative joint disease of the neck; migraines; reduced
visual acuity; hearing loss (20 CFR 416.920(c)).

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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 the
claimant can occasionally climb ramps and stairs. He cannot balance on uneven ground.
He can occasionally stoop, twist, kneel, crouch, and crawl. He cannot climb ladders, ropes,
or scaffolds. He can occasionally reach overhead. He cannot work around hazards such as
unprotected heights, moving mechanical parts, or sharp instruments. He cannot perform
work with vibratory tools. He can frequently handle and finger. He requires the use of a
cane while ambulating. He can tolerate up to moderate noise exposure. He cannot perform
work involving far visual acuity. He cannot use foot controls. He must avoid concentrated
exposure to fumes, odors, dusts, gases, poor ventilations, and other respiratory irritants.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on June 3, 1969 and was 47 years old, which is defined as a younger
individual age 18-49, on the date the application was filed. The claimant subsequently
changed age category to closely approaching advanced age (20 CFR 416.963).
7. The claimant has at least a high school education 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 2, 2017, the date the application was filed (20 CFR 416.920(g)).
(Tr. 97-110)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes two arguments in support of his motion for judgment on the pleadings.
First, plaintiff asserts the ALJ did not properly evaluate plaintiff’s mental health impairments and
failed to incorporate the limitations from non-severe impairments into the RFC. (Dkt. No. 9 at 12

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[Plaintiff’s Mem. Of Law]). Second plaintiff argues the Appeals Council improperly rejected
evidence. (Id. at 15). Plaintiff submitted a response to defendant’s brief, deeming no reply
necessary. (Dkt. No. 12).
B.

Defendant’s Arguments

In response, defendant argues substantial evidence supports the ALJ’s mental residual
functional capacity determination. (Dkt. No. 10 at 6 [Defendant’s Mem. of law]). Defendant also
asserts the Appeals Council properly evaluated the additional evidence that plaintiff submitted.
(Id. at 9).
III.

RELEVANT LEGAL STANDARD
A.

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

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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).
B.

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).
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IV.

ANALYSIS
A. Mental Impairments and RFC
Plaintiff argues the ALJ did not properly evaluate his mental health impairments and failed

to incorporate the limitations from non-severe impairments in the RFC. (Dkt. No. 9 at 12). In his
decision, ALJ Cordovani thoroughly detailed plaintiff’s medically determinable mental
impairments, which he identified as variously characterized as major depressive disorder, general
anxiety disorder, posttraumatic stress disorder, and bipolar disorder. (Tr. 102). Contrary to
plaintiff’s argument, the “mere presence of a disease or impairment, or establishing that a person
has been diagnosed or treated for a disease or impairment” is not, by itself, sufficient to render a
condition “severe.” Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y. 1995); see Prince v. Astrue,
514 F. App'x 18, 20 (2d Cir. 2013).
When evaluating alleged mental health impairments, in addition to the typical five-step
analysis outlined in 20 C.F.R. § 404.1520, the ALJ must apply a “special technique” at the second
and third steps. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.2008). As the Second Circuit has
explained:
This technique requires the reviewing authority to determine [at step two] first whether the
claimant has a “medically determinable mental impairment.” 20 C.F.R. § 404.1520a(b)(1).
If the claimant is found to have such an impairment, [at step three] the reviewing authority
must “rate the degree of functional limitation resulting from the impairment(s) in
accordance with paragraph (c),” Id. § 404.1520a(b)(2), which specifies four broad
functional areas: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation. Id. § 404.1520a(c)(3). According
to the regulations, if the degree of limitation in each of the first three areas is rated “mild”
or better, and no episodes of decompensation are identified, then the reviewing authority
generally will conclude that the claimant's mental impairment is not ‘severe’ and will deny
benefits. Id. § 404.1520a(d)(1).
In this case, the ALJ properly provided specific findings regarding the degree of limitation
in each of the four functional areas of the “special technique” when evaluating the mental
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impairments, showing his decision was based on substantial evidence and not solely one or two
opinions as alleged. (Tr. 103). The ALJ concluded the medically determinable mental impairments
were non-severe as they caused no more than a “mild” limitation in any of the functional areas.
(Tr. 104). Plaintiff does not identify any specific errors by the ALJ in this analysis and does not
identify evidence of greater limitations in any functional area.
ALJ Cordovani cited not only the findings of consultative examiner Dr. Fabiano and nonexamining review physician Dr. Inman-Dundon, but also mental health records and reported daily
activities. (Tr. 450-451). The Regulations “recognize that the Commissioner's consultants are
highly trained physicians with expertise in evaluation of medical issues in disability claims whose
“opinions may constitute substantial evidence in support of residual functional capacity findings.”
Lewis v. Colvin, 122 F. Supp. 3d 1, at 7 (N.D.N.Y. 2015) (citing Delgrosso v. Colvin, 2015 WL
3915944, at *4 (N.D.N.Y. June 25, 2015); see also Heagney-O'Hara v. Comm'r of Soc. Sec., 646
F. App'x 123, 126 (2d Cir. 2016); Monette v. Colvin, 654 F. App’x 516 (2d Cir. 2016); Snyder v.
Colvin, 667 F. App’x 319 (2d Cir. 2016). Dr. Inman-Dundon opined that plaintiff had only mild
limitations in understanding, remembering, or applying information; interacting with others;
concentrating, persisting, or maintaining pace; and adapting or managing himself (Tr. 103, 216).
Accordingly, Dr. Inman-Dundon opined that plaintiff’s psychological impairments were nonsevere (Tr. 103, 216-217). Dr. Fabiano opined that plaintiff has no limitations in his ability to use
reason and judgment to make work-related decisions; sustain an ordinary routine and regular
attendance at work; maintain personal hygiene and appropriate attire; and have an awareness of
normal hazards and take appropriate precautions. (Tr. 517). Dr. Fabiano also opined that plaintiff’s
difficulties were due to adjustment problems, as opposed to serious psychopathology. (Tr. 517).
Overall, Dr. Fabiano concluded that “[t]he results of the examination appear to be consistent with

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psychiatric and substance abuse problems, but in itself, this does not appear to be significant
enough to interfere with the claimant’s ability to function on a daily basis.” (Tr. 217, 517). Notably,
the ALJ referenced that the opinion from Dr. Inman-Dundon was supported by her findings and a
detailed recitation of the record. (Tr. 103). Dr. Inman-Dundon noted that plaintiff reported in July
2016 that he “has not had any medical providers since relocating to Buffalo in 1990s” (Tr. 216).
In July 2016, plaintiff’s primary care physician diagnosed him with anxiety and depression and
prescribed Zoloft, but plaintiff was not taking this medication at a follow-up appointment in
September 2016. (Tr. 216, 458, 462). Indeed, plaintiff cites other records to support his view of
the evidence, however, when substantial evidence of record supports the ALJ’s determination of
the facts, the Court must defer to the ALJ’s decision. See Vilardi v. Astrue, 447 Fed. App’x 271,
272 (2d Cir. Jan. 10, 2012) (summary order); Rouse v. Colvin, No. 14-CV-817S, 2015 WL
7431403, at *6 (W.D.N.Y. Nov. 23, 2015) (unpublished).
Additionally, the ALJ also considered plaintiff’s daily activities, which were inconsistent
with allegations of disability from his mental impairments. (Tr. 103, 106, 107, 108, 109). See 20
C.F.R. § 416.929. For example, although plaintiff denied some of these daily activities at the
hearing, “he also reported at various times cleaning cupboards and vacuuming, getting a permit to
do side jobs and earn money, helping his ex-wife with personal care, doing pushups and sit ups to
manage his mood, and doing odd jobs such as home improvements, renovations, and roofing” (Tr.
106, 186, 676, 692, 700, 703, 716, 755, 765, 768). Notably, the ALJ cites a medical record that
shows that plaintiff bruised his wrist “on a work site” (Tr. 106, 676).
In sum, the ALJ properly evaluated the mental impairments at Step Two and reasonably
considered such impairments at subsequent steps and accordingly found the mild limitations
resulting from the non-severe impairments did not warrant any mental restrictions in the RFC.

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B. Evidence to Appeals Council
In mid-August 2020, plaintiff submitted 38 pages of records from Erie County Department
of Social Services dated April 29, 2015 to February 11, 2019 and 51 pages from Paradigm Family
Health dated October 26, 2018 to July 10, 2019; and 43 pages from Paradigm Family Health dated
November 26, 2019 to August 1, 2020. (Tr. 198). The Appeals Council (AC) found that the records
prior to the decision did not show a reasonable probability that they would change the outcome of
the decision and those from after the decision did not relate to the period at issue. (Tr. 198). The
AC properly considered this evidence which was submitted 11 months after the decision. (Tr. 8,
46).
As an initial matter, under 20 C.F.R. § 416.912 “Responsibility for evidence,” the
regulations outline plaintiff's responsibility and the Social Security Administration's responsibility
relating to evidence in a plaintiff's claim. See 20 C.F.R. §§ 416.912(a) (“Your responsibility”),
416.912(b) (“Our responsibility”). Plaintiff “must inform [the Administration] about or submit all
evidence known to [him] that relates to whether or not [he is] blind or disabled.” Id. § 416.912(a).
Plaintiff's duty “is ongoing” and requires plaintiff “to disclose any additional related evidence
about which [he] become[s] aware.” Id. Plaintiff's duty applies at each level of the administrative
review process, including the Appeals Council level if the evidence relates to the period on or
before the date of the administrative law judge hearing decision. Id.
At the hearing, plaintiff’s counsel agreed that the record could close because all known
records were submitted. (Tr. 158). Plaintiff’s administrative hearing and decision were in
September 2019, but plaintiff did not submit any further records until August 2020. Furthermore,
plaintiff did not submit any correspondence in the request for review or submit a legal brief
explaining why the records were not submitted earlier or how they supported plaintiff’s claim.

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Regardless, substantial evidence supports the ALJ’s decision, and the additional evidence that
plaintiff submitted to the AC does not deprive the ALJ’s decision of such support.
Plaintiff’s argument focuses on the treatment notes from nurse practitioner Douglas Pearce
and radiologic imaging from April 2020. (Dkt. No. 9 at 10, citing Tr. 78, 138, 140). Plaintiff asserts
NP Pearce found plaintiff had every tender point for fibromyalgia but the ALJ never discussed the
impairment at Step Two or throughout the decision. (Id. at 19). Despite plaintiff’s leap that the
findings of tender points “may very well cause additional limitations” in absences or off task time,
there are no functional limitations discussed in the records. (Id.). Plaintiff fails to meet his burden
of demonstrating functional limitations that preclude any substantial gainful activity. See 42 U.S.C.
§ 423(d)(5)(A); Bowen v. Yuckert, 482 U.S. at 146, n.5; 20 C.F.R. § 416.912(c) (“You must provide
medical evidence showing that you have an impairment(s) and how severe it is during the time
you say that you are disabled. You must provide evidence, without redaction, showing how your
impairment(s) affects your functioning during the time you say that you are disabled. . . .”); 20
C.F.R. § 416.945(a)(3) (“In general, you are responsible for providing the evidence we will use to
make a finding about your residual functional capacity.”).
Additionally, the AC is not required to give a detailed explanation for its decision, when
the newly-submitted evidence does not dramatically alter the weight of the evidence. See, Bushey
v. Colvin, 8:11-CV-00031-RFT (N.D.N.Y.), affirmed, 552 F. App'x 97, 98 (2d Cir. Jan. 29, 2014)
(“We do not believe that the Appeals Council erred by refusing to review the ALJ's decision in
light of the new evidence that Bushey submitted to that body. The Appeals Council had substantial
evidence supporting its decision to decline review, as the new evidence that Bushey presented did
not alter the weight of the evidence so dramatically as to require the Appeals Council to take the
case.”) Davis v. Colvin, No. 15-CV-6082 CJS, 2016 WL 385183, at *6 (W.D.N.Y. Feb. 2, 2016).

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The AC clearly identified the evidence and gave reasons why review was not granted and
plaintiff’s disagreeing with the conclusion is not grounds for remand.

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. 10) is
GRANTED.
Dated: September 15, 2022

J. Gregory Wehrman

Rochester, New York

HON. J. Gregory Wehrman
United States Magistrate Judge

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