Mcclain v. Commissioner of Social Security

Filing 17

MEMORANDUM DECISION AND ORDER: denying the plaintiff's 11 Motion for Judgment on the Pleadings; granting the defendant's 12 Motion for Judgment on the Pleadings. Signed by Honorable J. Gregory Wehrman on 5/9/24. (DDS)

on the administrative record is GRANTED, and the decision of the Commissioner is
AFFIRMED.
I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on May 9, 1986, and has less than a high school education. (Tr.
196, 210). Generally, plaintiff’s alleged disability consists of interstitial cystitis, obesity,
arthritis, fibromyalgia, and posttraumatic stress disorder (PTSD). (Tr. 209, 739). Her
alleged disability onset date is January 16, 2013. (Tr. 196). Her date last insured was
March 31, 2016. (Id.).
B.

Procedural History

On June 9, 2014, plaintiff applied for a period of Disability Insurance Benefits (DIB)
under Title II, and Supplemental Security Income (SSI) under Title XVI, of the Social
Security Act. (Tr. 171-76, 184-87). Plaintiff’s applications were initially denied, after which
she timely requested a hearing before an Administrative Law Judge (ALJ). On March 2,
2017, plaintiff appeared before ALJ John Melanson. (Tr. 42-72). On June 1, 2017, ALJ
Christine Cutter1 issued a written decision finding plaintiff not disabled under the Social
Security Act. (Tr. 13-29). On July 2, 2018, the Appeals Council (AC) denied plaintiff’s
request for review. (Tr. 1-4). Thereafter, plaintiff timely sought judicial review in U.S.
District Court for the Western District of New York on August 27, 2018. (Tr. 846-47).
Parties agreed to a stipulated remand on August 30, 2019, and the AC remanded on April
30, 2020. (Tr. 838, 880-84). A new hearing was held telephonically before ALJ Stephan
Bell on December 7, 2020. (Tr. 767-804). On February 8, 2021, ALJ Bell issued a second

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Per HALLEX 1-2-8-40(B) the case was reassigned to ALJ Cutter (Tr. 25).
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unfavorable decision. (Tr. 733-66). Plaintiff then timely filed this civil action, seeking
judicial review of the ALJ’s decision.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through
March 31, 2016.
2. The claimant has not engaged in substantial gainful activity since January 16, 2013,
the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity, rheumatological conditions
variously diagnosed as rheumatoid arthritis, systemic lupus erythematosus, and
fibromyalgia, mental impairments variously diagnosed as post-traumatic stress disorder
(PTSD), alcohol dependence, and adjustment disorder, and interstitial cystitis (20 CFR
404.1520(c) and 416.920(c)).
4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) with the following additional limitations: occasionally climb ramps, stairs,
ladders, ropes, or scaffolds, occasionally balance, kneel, stoop, crouch, and crawl,
occasionally work in vibration, limited to simple, routine, and repetitive tasks, limited to
simple work-related decisions, occasionally interact with supervisors and co-workers,
never interact with the public, and use a walker whenever standing or walking.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was born on May 6, 1986 and was 26 years old, which is defined as a
younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and
416.963).
8. The claimant has a limited education (20 CFR 404.1564 and 416.964).

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9. Transferability of job skills is not material to the determination of disability because
applying the Medical-Vocational Rules directly supports a finding of “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).
10. 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 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act,
from January 16, 2013, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).
(Tr. 733-63).
II.

THE PARTIES’ BRIEFINGS
A.

Plaintiff’s Arguments

Plaintiff makes three arguments in support of her motion for judgment on the
pleadings. First, plaintiff argues the ALJ erred in his consideration of her subjective
complaints. Second, plaintiff contends the ALJ did not properly consider her need to use
the restroom. Lastly, plaintiff asserts the ALJ relied on stale opinion evidence. (Dkt. No.
11 at 2 [Pl.’s Mem. of Law].)
B.

Defendant’s Arguments

Defendant responded to each argument. Defendant argues the ALJ properly
assessed plaintiff’s subjective complaints, the plaintiff failed to show additional limitations
due to urinary incontinence, and the ALJ properly evaluated the medical opinions of
record. (Dkt. No. 12 [Def.’s Mem. of Law].)
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
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& 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

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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. §§
404.1520, 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).
IV.

ANALYSIS
A. Subjective Complaints
Plaintiff first argues the ALJ erred by not adopting all of her alleged limitations.

(Dkt. No. 11 at 16). Indeed, plaintiff reported trouble standing, walking, sitting, kneeling,
reaching, the need to lay down during the day, body-wide pain due to fibromyalgia, trouble
climbing stairs, inability to walk without a cane or walker, and inability to lift anything
heavier than her wallet. (Tr. 62-63, 773-74,784, 786). The ALJ found that there was a lack

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of objective evidence to support these claims of severity, but plaintiff asserts this was an
error because fibromyalgia is a disease for which objective evidence is not usually
present. (Dkt. No. 11 at 16). However, the ALJ considered plaintiff’s allegations of
disability pain from all her severe impairments, not just fibromyalgia, and properly
determined that plaintiff’s allegations regarding the intensity, persistence, and limiting
effects of her pain were not entirely consistent with the evidence of record. (Tr. 746). See
SSR 16-3p (ALJ must consider a claimant’s symptoms and the extent to which such
symptoms can be reasonably accepted as consistent with the evidence of record).
Therefore, remand on this issue is not warranted.
Plaintiff concedes the ALJ’s finding that fibromyalgia was a severe impairment, but
he noted the record lacked evidence that other disorders were ruled out to make the
diagnosis. (Dkt. No. 11 at 17, Tr. 740). To be sure, the MRIs, CT scans, and x-rays were
generally unremarkable. (Tr. 406, 410, 462-64, 468, 482, 484-85, 504, 525, 550, 595,
1114, 1174, 1796, 2249, 2659). Similarly, the EMGs revealed merely mild right ulnar
neuropathy and the ultrasound study was unremarkable. (Tr. 486-87, 732, 1268). Also, in
March 2018, plaintiff was examined by orthopedic surgeon Dr. Rauh at Erie County
Medical Center (ECMC) for bilateral knee pain but was pain-free throughout the exam.
(Tr. 1174). Dr. Rauh even concluded that her pain complaints did not correlate with the
MRI findings and other objective tests. (Tr. 1175). However, since the plaintiff’s symptoms
suggested a greater restriction than demonstrated by objective evidence, the ALJ
appropriately considered other factors, such as activities of daily living, treatment other
than medication, and other factors concerning her functional limitations due to pain. (Tr.
746). 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

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Despite plaintiff’s claims on her activities of daily living questionnaire that she could
not cook, shop, nor walk for more than three steps at a time, she told consultative
examiner Dr. Miller that she cooked and shopped and admitted to consultative examiner
Dr. Ippolito that she cooked, helped with chores, attended appointments, and used public
transportation. (Tr. 211, 214, 393, 396). Treatment records from ECMC reflect that plaintiff
reported she shopped and was on her feet a lot, walked around briskly for several hours
before she needed to rest, and walked her dogs several times per day. (Tr. 548, 1376,
1378). The same treating sources noted that while living with a friend, plaintiff parented
her and her friend’s children, cooked for everyone, and cleaned the apartment. (Tr. 1376).
Plaintiff also told other treating sources that she went to the gym daily where she used a
treadmill, attended Zumba classes, and walked. (Tr. 531, 2867). The ALJ properly
considered these activities of daily living when evaluating the consistency of plaintiff’s
pain allegations with the evidence. (Tr. 746). Ewing v. Comm’r of Soc. Sec., No. 17-CV68S, 2018 WL 6060484, at *5 (W.D.N.Y. Nov. 20, 2018) (“Indeed, the Commissioner’s
regulations expressly identify ‘daily activities’ as a factor the ALJ should consider in
evaluating the intensity and persistence of a claimant’s symptoms.”) (citing 20 C.F.R. §
416.929(c)(3)(i)).
Contrary to plaintiff’s argument, the ALJ appropriately considered that she had not
generally received the type of medical treatment one would expect for a totally disabled
individual with typically only conservative treatment for the alleged symptoms, she failed
consistently to attend scheduled appointments, and she failed to continue treatment with
specialized providers. (Tr. 748). See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR
16-3p (ALJ should consider the effectiveness of the claimant’s medication and treatment);

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see also Penfield v. Colvin, 563 F. App’x 839, 840 (2d Cir. 2013) (evidence of a
conservative treatment regimen supported the ALJ’s finding that Plaintiff’s symptoms
were not as severe as alleged). Indeed, her failure to pursue specialized treatment for
allegedly disabling headaches, memory loss, neuropathy, and orthopedic impairments
undermine her claims of total disability. See Navan v. Astrue, 303 F. App’x 18, 20 (2d Cir.
2008) (“Navan’s claims of total disability were undermined by his failure to seek regular
treatment for his allegedly disabling condition”).
The ALJ’s consideration of plaintiff’s drug-seeking behavior was also permissible
when determining that her allegations were not entirely consistent with the evidence of
record. (Tr. 748). See Tomczak v. Comm'r of Soc. Sec., No. 18-CV-64-FPG, 2019 WL
2059679, at *1 (W.D.N.Y. May 9, 2019). On one occasion, plaintiff was escorted out of
the hospital when she became irate and screamed after not getting pain medications but
all physical examinations, blood work and laboratory data were unremarkable. (Tr. 196768). In sum, the ALJ’s evaluation of plaintiff’s subjective complaints is supported by both
the law and the record.
B. Bathroom Breaks
In a related argument, plaintiff next asserts that the ALJ failed to properly consider
her need to use the restroom. (Dkt. No. 11 at 18). Plaintiff essentially argues that since
cystitis was found to be a severe impairment there must be limitations in the RFC for
restroom breaks. (Id. at 19). This argument is unavailing.
It is true that an ALJ is required to consider functional limitations associated with
both severe and non-severe impairments in assessing a claimant's RFC and continuing
through the sequential evaluation. See Snedeker v. Colvin, No. 3:13-CV-970 GLS/ESH,

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2015 WL 1126598, at *7 (N.D.N.Y. Mar. 12, 2015) (“All impairments, i.e., both severe and
non-severe, must be factored into a residual functional capacity determination that
precedes sequential Step 4.”). However not all non-severe or severe impairments cause
functional limitations. See Quimby v. Comm'r of Soc. Sec., No. CIV. A. 1:09-CV-20, 2010
WL 2425904, at *16 (D. Vt. Apr. 13, 2010) (“[T]he fact that an ALJ makes a ‘severity’
finding with respect to a particular impairment at step two does not necessarily mean that
such impairment imposes functional limitations on the claimant which must be
incorporated into the claimant's RFC.”), adopted, 2010 WL 2425903 (D. Vt. June 8, 2010).
As noted previously, it is the ALJ who must evaluate the intensity and persistence
of any symptoms reported by the plaintiff. See SSR 16-3p. In that role, the ALJ must
compare a plaintiff's reports to the objective medical evidence and the other evidence in
the record. See 20 C.F.R. §§ 404.1529(c)(2)–(3), 416.929(c)(2)-(3); SSR 16-3p. Here,
the ALJ did just that, and discounted plaintiff’s testimony about bathroom use because it
was not supported by medical findings, treatment history, and daily activities. Bowen v.
Comm'r of Soc. Sec., No. 1:19-CV-00420 EAW, 2020 WL 2839318 (W.D.N.Y. June 1,
2020).
At the first hearing, in March 2017, plaintiff testified she may need to use the
restroom over ten times a day (Tr. 739) and at the most recent hearing she testified to
using the bathroom 14 to 16 times a day (Tr. 789). However, ALJ Bell appropriately
concluded that plaintiff’s urinary incontinence reports were inconsistent. (Tr 747). For
example, in November 2015 plaintiff denied bladder incontinence to Dr. Bansal. (Tr. 459).
Plaintiff’s activities of daily living also contradicted her allegations of urinary frequency.
As discussed above, plaintiff’s treating sources reported she shopped and was on her

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feet a lot, walked around briskly for several hours before she needed to rest, walked her
dogs several times a day, went to the gym daily, cooked and cleaned for her friend and
children, and even took Zumba classes. (Tr. 211, 214, 396, 531, 548, 1376, 1378, 2867).
As the Second Circuit has held, “the [Commissioner] is entitled to rely not only on
what the record says but also on what it does not say.” See Diaz v. Shalala, 59 F.3d 307,
315 (2d Cir. 1995)(citing Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983).
Significantly, none of her treating sources assessed limitations due to urinary frequency
or incontinence. Treatment provider Dr. Molloy noted that plaintiff had no genitourinary
complaints, and she was negative for urinary frequency. (Tr. 2702). Similarly, plaintiff told
Physician Assistant Fisher that she had no bladder dysfunction. (Tr. 2858). Plaintiff has
not satisfied her burden to show she was more limited than assessed by the ALJ. See
Smith v. Berryhill, 740 F. App'x 721, 726 (2d Cir. 2018) (“Smith had a duty to prove a
more restrictive RFC and failed to do so.”); Poupore v. Astrue, 566 F.3d 306 (2d Cir. 2009)
(it remains at all times the claimant's burden to demonstrate functional limitations, and
never the ALJ's burden to disprove them). While plaintiff may disagree with the ALJ's
conclusion, plaintiff's burden was to show that no reasonable mind could have agreed
with the ALJ's conclusions, which she has failed to do.
C. Stale Opinion Evidence
Lastly, plaintiff argues the RFC is not supported by substantial evidence because
the ALJ relied on stale opinion evidence from consultative examiner Dr. Miller. (Dkt. No.
11 at 22). This argument does not warrant remand.
In connection with her benefits application, plaintiff attended a consultative
examination with Dr. Miller in August 2014. Upon physical examination, Dr. Miller

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observed that plaintiff’s gait and stance were normal and her squat was full. (Tr. 396).
Plaintiff exhibited no difficulty changing for the examination, getting on and off the
examination table, nor rising from a seated position. Plaintiff’s cervical spine and lumbar
spine each exhibited full ranges of motion. (R. 397). Plaintiff demonstrated full muscle
strength and full ranges of motion as well as normal reflexes and sensations throughout
her arms and legs, but for limited ranges of motion in her hips and knees. (R. 396-98).
Dr. Miller assessed that plaintiff had mild limitations in heavy lifting, bending, and carrying
and should should avoid dust, pulmonary irritants, and tobacco exposure due to her
asthma. (Tr. 398). ALJ Bell accorded great weight to Dr. Miller’s opinion. (Tr. 749-50).
While it is true that “[a] medical opinion may be stale if it does not account for the
[plaintiff's] deteriorating condition,” Carney v. Berryhill, No. 16-CV-269-FPG, 2017 WL
2021529, at *6 (W.D.N.Y. May 12, 2017), “a medical opinion is not necessarily stale
simply based on its age.” Biro v. Comm'r of Soc. Sec., 335 F. Supp. 3d 464, 470
(W.D.N.Y. 2018). In fact, a dated opinion “may constitute substantial evidence if it is
consistent with the record as a whole.” Id.; see also Andrews v. Berryhill, No. 17-CV6368, 2018 WL 2088064, at *3 (W.D.N.Y. May 4, 2018) (no error where an ALJ relied on
dated opinions because there was no indication in plaintiff's records that his condition had
significantly deteriorated).
Plaintiff has failed to cite to any medical opinion evidence that demonstrates her
condition experienced any meaningful deterioration after Dr. Miller’s assessment. See
Jimmerson v. Berryhill, No. 16-CV-442-FPG, 2017 WL 3149370, at *5 (W.D.N.Y. July 25,
2017) (citing Jones v. Colvin, No. 13-CV-06443, 2014 WL 256593, at *7 (W.D.N.Y. June
6, 2014) (medical source opinion was not stale where plaintiff failed to show a

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deterioration in her condition after the report). Plaintiff relies on the fact that the opinion
was six years old at the time of the second hearing and that it did not account for
diagnostic imaging in the intervening time. (Dkt. No. 11 at 22). The plaintiff identifies
subsequent imaging that was all either unremarkable or with mild findings. (Dkt. No. 11
at 25). She again does not satisfy her burden of proving that her RFC is more restrictive
than that found by the ALJ. Poupore v. Astrue, 566 F.3d at 306. The substantial evidence
standard is a very deferential standard of review and the Commissioner's findings of fact
must be upheld unless “a reasonable factfinder would have to conclude otherwise.” Brault
v. Soc. Sec. Admin. Comm'r, 683 F.3d 443, 448 (2d Cir. 2012).

ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED.

Dated: May 9, 2024
Rochester, New York

J. Gregory Wehrman
HON. J. Gregory Wehrman
United States Magistrate Judge

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