Williams v. Commissioner of Social Security
Filing
20
DECISION AND ORDER denying 5 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings. The Court dismisses Plaintiff's complaint with prejudice. The Clerk of the Court is directed to close this case. Signed by Hon. Mark W. Pedersen on 1/28/25. (Hartsough, Harrison)Clerk to Follow up
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Joseph W.,
Plaintiff,
DECISION and ORDER
v.
22-cv-360-MJP
Comm’r of Soc. Sec.,
Defendant.
INTRODUCTION
Pedersen, M.J. Plaintiff Joseph W. (“Plaintiff”) sues seeking remand of the
final decision of the Commissioner of Social Security (the “Commissioner”) denying
Plaintiff’s application for disability benefits. Before me are the parties’ cross motions
for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (ECF Nos. 5 & 13.)
For the reasons that follow, I affirm the Commissioner’s final decision, granting the
Commissioner’s motion for judgment on the pleadings and denying Plaintiff’s motion
for judgment on the pleadings.
BACKGROUND
In July 2018, Plaintiff applied for disability benefits with the Social Security
Administration (“SSA”). (T. 1 301–06; T. 320–25.) Plaintiff alleged a disability onset
date of January 15, 2017. (T. 301–06.) SSA denied Plaintiff’s initial claim on October
26. 2018. (T. 143–49.) Plaintiff requested a hearing. (T. 151–54; T. 198–200.)
1 “T.” refers to the administrative record.
1
Administrative Law Judge (“ALJ”) Arthur Patane held a hearing at Plaintiff’s request on February 21, 2020. (T. 56–67.) The ALJ issued a decision finding that Plaintiff was not disabled on March 19, 2020. (T. 121 –36.)
Plaintiff then asked the SSA Appeals Council to review the ALJ’s denial on
April 22, 2020. (T. 209–11; T. 424–25.) The Appeals Council remanded for further
proceedings. (T. 137–42.) In July of 2021, Plaintiff participated in a second hearing
before a different ALJ, Mary Mattimore. (T. 32–53.) The ALJ 2 again issued a decision
finding Plaintiff not disabled on August 19, 2021. (T. 12–39.) The Appeals Council
denied review. (T. 1–6.) Plaintiff thus has a final decision from the SSA. Having exhausted administrative remedies, Plaintiff brought this action. 42 U.S.C. § 405(g).
APPLICABLE LAW
Legal standard for District Court review.
“In reviewing a final decision of the [Commissioner], this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence
in the record and were based on a correct legal standard.” Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Commissioner’s decision is “conclusive” if it is supported by substantial evidence. 42
U.S.C. § 405(g). “Substantial evidence means more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It
case.
2 References hereinafter to “the ALJ” refer to the second ALJ involved in Plaintiff’s
2
is not my function to “determine de novo whether [the claimant] is disabled.” Schaal
v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of
the Secretary’s decision is not de novo and that the Secretary's findings are conclusive
if supported by substantial evidence). However, “[t]he deferential standard of review
for substantial evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748
F.2d 109, 112 (2d Cir. 1984)).
Legal standard for the ALJ’s underlying disability determination.
An ALJ must follow a five-step sequential evaluation to determine whether a
claimant is disabled. Bowen v. City of New York, 476 U.S. 467, 470–71 (1986). At step
one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the
ALJ proceeds to step two and determines whether the claimant has an impairment,
or combination of impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant restrictions on the claimant’s ability to perform basic
work activities. Id. § 404.1520(c). If the claimant does not have a severe impairment
or combination of impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). Id. § 404.1520(d). If the impairment meets or medically
equals
the
criteria
of
a
Listing
3
and
meets
the
durational
requirement, id. § 404.1509, the claimant is disabled. If not, the ALJ determines the
claimant’s residual functional capacity (“RFC”), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for
the collective impairments. See id. §§ 404.1520(e)–(f).
The ALJ then proceeds to step four and determines whether the claimant’s
RFC permits him or her to perform the requirements of his or her past relevant
work. Id. § 404.1520(f). If the claimant can perform such requirements, then he or
she is not disabled. Id. If he or she cannot, the analysis proceeds to the fifth and final
step, wherein the burden shifts to the Commissioner to show that the claimant is not
disabled. Id. § 404.1520(g). To do so, the Commissioner must present evidence to
demonstrate that the claimant “retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy” in light of
his or her age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
The ALJ’s decision denying benefits to Plaintiff.
The ALJ analyzed Plaintiff’s claim for benefits under the five-step process detailed above. The ALJ found that Plaintiff met the insured status requirement
through March 31, 2019. (T. 17, 330.) At step one, the ALJ found Plaintiff had not
engaged in substantial gainful activity since the alleged onset date. (T. 17.) At step
two, the ALJ found that Plaintiff has the following severe impairments: learning disorder; anxiety disorder; depressive disorder; and social phobia. (T. 17.) At step three,
4
the ALJ concluded that none of Plaintiff’s impairments met or medically equaled one
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (T. 18.)
The ALJ concluded that Plaintiff had the following RFC: full range of work at
all exertional levels, but with additional non-exertional limitations. (T. 19.) For Plaintiff’s mental and non-exertional limitations, the ALJ added to the RFC that Plaintiff
can perform simple, routine work and make simple workplace decisions
consistent with SVP 1-2 jobs; cannot perform production rate pace jobs
(assembly line); can tolerate occasional interaction with supervisors and
coworkers but cannot perform tandem or team work; can have no interaction with the public; can tolerate minimal changes in workplace processes and settings; cannot perform work where he is interacting with
customers such as a customer service representative or any other job
waiting on customers as an essential function of the job.
(T. 19.) At step four, the ALJ found that Plaintiff had no relevant past work. (T. 22.)
At step five, the ALJ found that Plaintiff could do other work that exists in the national economy in significant numbers, including unskilled jobs. (T. 23.) And so, the
ALJ concluded that Plaintiff is not disabled. (T. 25.)
I find that Plaintiff’s arguments do not warrant remand.
Plaintiff raises several arguments in appealing the Commissioner’s decision. I
address each in turn. Plaintiff’s arguments do not show any legal error on the Commissioner’s part.
The ALJ did not err by creating a gap in the administrative record.
First, Plaintiff argues that remand is warranted because the ALJ assigned only
limited weight to the medical opinions assessing Plaintiff’s mental limitations. (Mem.
of Law at 16, ECF No. 5-1 (“Rather, by applying only limited weight to each opinion,
the ALJ created a gap in the record necessitating remand.” (collecting cases)).)
5
Plaintiff urges remand since the ALJ cannot fill the gap he or she creates by not
finding any medical opinion persuasive; to do so would amount to substitute the ALJ’s
lay judgment for that of a medical professional. (Id. at 17 (“In the context of mental
health, the ALJ cannot render a ‘common sense judgment’ as to Plaintiff’s functional
capacity without a medical opinion, given the highly complex and individualized nature of mental health impairments.” (collecting cases)).
In this case, the ALJ found the opinions of two medical providers at least partially persuasive but ultimately assessed an RFC with greater limitations than those
providers had indicated. 3 This was not error. Relevant here, error is harmless if the
medical evidence the ALJ declined to use in formulating the RFC is less favorable to
Plaintiff. See Grega v. Saul, 816 F. App’x 580, 582 (2d Cir. 2020) (where ALJ failed to
make proper record finding regarding medical opinions, remand was not warranted
because those medical opinions were not “significantly more favorable to the claimant”); see also Sottasante v. Colvin, 209 F. Supp. 3d 578, 593–94 (W.D.N.Y. 2016)
(finding remand was warranted where ALJ failed to consider evidence favorable to
stated:
3 About these opinions, i.e. those of Dr. Ransom and a State agency reviewed, the ALJ
However, the State agency found no limitation in social interaction, which is
inconsistent with the claimant’s report to treatment providers and his testimony. The claimant’s testimony that he has great difficulty interacting with
strangers and in groups of people supports limitation in that area. Similarly,
Dr. Ransom’s opinion is partially persuasive…. The areas of limitation identified are consistent with the claimant’s history, but, again, Dr. Ransom found
no social limitation, despite the evidence showing that interpersonal interaction, particularly with the public, has resulted in job loss in the past…. Thus,
the opinion is partially persuasive.
(T. 21–22.)
6
the plaintiff). I thus agree with the Commissioner’s arguments on this point. (Mem.
of Law at 10–13, ECF No. 13-1.) Plaintiff’s argument fails. Any error the ALJ committed favored Plaintiff and is thus harmless.
The ALJ did not err by considering a stale opinion.
Second, I separately consider Plaintiff’s arguments about staleness. In addressing the consultative examiner’s opinion that the ALJ found partially persuasive,
(T. 491–92), Plaintiff contends that the consultative examiner’s opinion was stale because his mental conditions were consistently worse following the consultative exam.
Staleness is, frankly, a bit nebulous. Cases on staleness suggest that opinions
rendered before some significant development in the plaintiff’s medical history may
not amount to substantial evidence. See Biro v. Comm’r of Soc. Sec., 335 F. Supp. 3d
464, 469–70 (W.D.N.Y. 2018) (“[M]edical source opinions that are conclusory, stale,
and based on an incomplete medical record may not be substantial evidence to support an ALJ finding.” (quoting Camille v. Colvin, 104 F.Supp.3d 329, 343 (W.D.N.Y.
2015))). The question is how significant the development or worsening needs to be.
Really, staleness should only arise in the rare case where substantial evidence
hinges on a lone medical opinion that is of questionable salience based on later developments. In other words, given the highly deferential standard of substantial evidence, staleness should be the rare exception.
7
Here, staleness is part of Plaintiff’s blunderbuss argument. 4 Plaintiff argues
that the ALJ improperly relied on a stale consultative exam that did “not account for
[his] deteriorating condition.” Id. (alteration added and quotation omitted). Responding, the Commissioner asserts that Plaintiff’s treatment records show improvement.
(Mem. of Law at 16, ECF No. 13-1.)
I reject Plaintiff’s argument. The administrative record does not show the kind
of marked worsening Plaintiff would need to plead staleness. During visits before and
after starting Plaintiff on medication, Dr. Oh noted improvement. (T. 475–87.) Other
findings revealed a normal affect. (T. 475–87, 538–41, 575–76, 617, 624, 637, 645,
649, 651, 654, 769, 806.) At best, I can only conclude that Plaintiff’s later findings
were variable, with some indications he was anxious or depressed, but other indications suggesting improvement. (T. 476, 479, 540, 575–76, 617, 624, 637, 645, 649, 651,
654, 769, 806.) This is not a worsening of Plaintiff’s condition. Indeed, Plaintiff’s statements to his providers suggest some improvement, not worsening. (T. 475, 478, 480,
4 On this note, I decline to consider Plaintiff’s reply. It branches off into new argu-
ments about mischaracterization of evidence and inadequate reasoning. To the extent it does
not make new arguments, its analysis is unmeaningful as it contains nary a citation to the
record. Unfortunately for Plaintiff, new arguments raised for the first time on reply need not
be considered. Blake v. Colvin, No. 2:14-CV-52-JMC, 2015 WL 3454736, at *6 (D. Vt. May 29,
2015) (“Generally, arguments like this which are raised for the first time in a reply brief are
deemed waived.” (citing Connecticut Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d
Cir.2010))).
8
538, 704, 762, 763.) On this record, I cannot locate the worsening of Plaintiff’s condition necessary for a finding of staleness.
To the extent that Plaintiff intended to raise other arguments, I find them
forfeited.
In social security cases especially, there is an unfortunate habit of plaintiffs
“assert[ing] all possible arguments … whether or not such arguments actually apply.”
Wieneke v. Comm’r of Soc. Sec., No. 18-CV-00637, 2019 WL 5784938, at *4 (W.D.N.Y.
Nov. 6, 2019) (alteration added). As a consequence, Plaintiffs often (and this is true
in this case) fail to brief issues sufficiently. But it is black-letter law that “issues not
sufficiently argued in [briefings] are considered waived.” 5 Poupore v. Astrue, 566 F.3d
303, 306 (2d Cir. 2009) (alteration added) (quoting Norton v. Sam’s Club, 145 F.3d
114, 117 (2d Cir. 1998)); see also Wieneke, 2019 WL 5784938, at *4; Grega v. Berryhill,
No. 17-CV-6595P, 2019 WL 2610793, at *12 (W.D.N.Y. June 26, 2019) (“Grega’s remaining contentions regarding the ALJ’s evaluation of medical opinion evidence are
conclusory and difficult to decipher.”), aff’d sub nom. Grega v. Saul, 816 F. App'x 580.
Where a party fails to raise an issue sufficiently, the court may “exercise” its “discretion to treat” such a “claim of error as waived.” Poupore, 566 F.3d at 306 (collecting
cases).
5 I use the term forfeiture because I conclude it is the more appropriate term. See Kon-
trick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (“Although jurists often use the words interchangeably, ‘forfeiture is the failure to make the timely assertion of a right [while] waiver is
the intentional relinquishment or abandonment of a known right.’” (alteration added) (quoting United States v. Olano, 507 U. S. 725, 733 (1993))). But I have provided this quotation asis, including its use of the term “waiver.”
9
I have considered Plaintiff’s submissions and find that the arguments I discussed above are the only arguments Plaintiff has sufficiently briefed. To the extent
Plaintiff argues that Plaintiff raised other arguments, I find them forfeited.
CONCLUSION
For the foregoing reasons, I deny Plaintiff’s motion for judgment on the pleadings, grant the Commissioner’s motion for judgment the pleadings, and dismiss Plaintiff’s complaint with prejudice.
IT IS SO ORDERED.
Dated:
January 28, 2025
Rochester, NY
/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge
10
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?