Kizis v. Commissioner of Social Security

Filing 12

DECISION AND ORDER denying 5 Motion for Judgment on the Pleadings; granting 10 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 06/03/2024. (CDH)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SAMANTHA K.,
Plaintiff,

DECISION AND ORDER

v.
1:23-CV-00534 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________

INTRODUCTION
Represented by counsel, plaintiff Samantha K. (“Plaintiff”) brings this action
pursuant to Title XVI of the Social Security Act (the “Act”), seeking review of the final
decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”)
denying her application for supplemental security income (“SSI”). (Dkt. 1). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court
are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. (Dkt. 5; Dkt. 10). For the reasons discussed below,
Plaintiff’s motion (Dkt. 5) is denied and the Commissioner’s motion (Dkt. 10) is granted.
BACKGROUND
Plaintiff protectively filed her application for SSI on November 12, 2014. (Dkt. 3
at 24, 72).1 In her application, Plaintiff alleged disability beginning November 27, 2002.

1

When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
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(Id. at 24, 73). Plaintiff’s application was initially denied on November 3, 2015. (Id. at
177). At Plaintiff’s request, a hearing was held before administrative law judge (“ALJ”)
Brian Kane, who issued an unfavorable decision on September 25, 2018. (Id. at 25). On
June 28, 2019, the Appeals Council vacated the unfavorable decision and remanded for
further evaluation. (Id.). After a second hearing, ALJ Kane issued another unfavorable
decision on March 10, 2021. (Id.). On March 23, 2022, the Appeals Council vacated the
second unfavorable decision and again remanded for further evaluation. (Id.).
A third hearing was held before ALJ Bruce Fein on August 2, 2022. (Id. at 51-71).
At this hearing, Dr. George Bell testified as a medical expert. (Id. at 56-60). Also at this
hearing, Plaintiff’s counsel modified Plaintiff’s application to seek a closed period of
disability from November 12, 2014, to April 1, 2021. (Id. at 61-64). On September 28,
2022, ALJ Fein issued an unfavorable decision. (Id. at 22-50). Plaintiff requested Appeals
Council review; her request was denied on April 17, 2023, making ALJ Fein’s
determination the Commissioner’s final decision. (Id. at 9-15). This action followed.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the [Social Security Administration (“SSA”)], 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 Act holds that a decision by the Commissioner is “conclusive” if it is
supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more
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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 is not the Court’s 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)).
II.

Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant

is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 C.F.R. § 416.920(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,
in that it imposes significant restrictions on the claimant’s ability to perform basic work
activities. Id. § 416.920(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 have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or
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medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). Id. § 416.920(d). If the impairment meets or medically
equals the criteria of a Listing and meets the durational requirement, id. § 416.909, 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. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant’s RFC
permits the claimant to perform the requirements of his or her past relevant work. Id.
§ 416.920(f). If the claimant can perform such requirements, then he or she is not disabled.
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. § 416.920(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 the claimant’s age, education, and work experience. Rosa
v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R.
§ 404.1560(c).
DISCUSSION
I.

The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ2 applied the five-step

sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ determined

2

References to “the ALJ” and “the ALJ’s decision” refer to ALJ Fein and his
September 28, 2022 decision, which is the Commissioner’s final determination.
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that Plaintiff had engaged in substantial gainful activity from April 1, 2021, to the present,
but that there had been a continuous 12-month period during which she did not engage in
substantial gainful activity. (Dkt. 3 at 28-29). The ALJ addressed his remaining findings
to the period during which Plaintiff did not engage in substantial gainful activity. (Id. at
29).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
major depressive disorder; generalized anxiety disorder; borderline intellectual
functioning; and status post-traumatic brain injury. (Id.). The ALJ further found that
Plaintiff’s migraines, acne, and obesity were non-severe. (Id. at 29-30).
At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of any Listing. (Id.
at 30). The ALJ particularly considered the criteria of Listings 11.18, 12.04, 12.06, and
12.11 in reaching his conclusion. (Id.).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform a full range of work at all exertional levels, with the following additional
nonexertional limitations:
[Plaintiff] has visual limitations in that she is limited to occupations requiring
no depth perception. Her work is limited to simple, routine, and repetitive
tasks. She can have frequent interaction with coworkers, supervisors, and
the public. She can work in a low stress job defined as only occasional
decision making, changes in the work setting, and judgment required on the
job.
(Id. at 32). At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 38).
At step five, the ALJ relied on the testimony of a vocational expert (“VE”) to
conclude that, considering Plaintiff’s age, education, work experience, and RFC, there
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were jobs that exist in significant numbers in the national economy that Plaintiff could
perform, including the representative occupations of office helper, merchandise marker,
cashier II, and folder. (Id. at 38-39). Accordingly, the ALJ found that Plaintiff was not
disabled as defined in the Act. (Id. at 39).
II.

The ALJ’s Determination is Supported by Substantial Evidence and Free from
Reversible Error
Plaintiff asks the Court to vacate the ALJ’s decision and remand this matter to the

Commissioner, arguing that the ALJ failed to apply the treating physician rule or to give
good reasons for giving less than controlling weight to the opinions of Plaintiff’s treating
neurologist Dr. Mary Dombovy. (Dkt. 5-1 at 1). The Court is unpersuaded by this
argument, for the reasons that follow.
In assessing a disability claim, an ALJ must consider and weigh the various medical
opinions of record. Because Plaintiff’s claim was filed before March 27, 2017, the ALJ
was required to apply the treating physician rule, under which a treating physician’s
opinion is entitled to “controlling weight” if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record[.]” 20 C.F.R. § 416.927(c)(2). Under the treating
physician rule, if the ALJ declines to afford controlling weight to a treating physician’s
medical opinion, he “must consider various factors to determine how much weight to give
to the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal quotation
marks omitted). These factors include: (i) the frequency of examination and the length,
nature, and extent of the treatment relationship; (ii) the evidence in support of the treating

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physician’s opinion; (iii) the consistency of the opinion with the record as a whole; and (iv)
whether the opinion is from a specialist. Id.
If the ALJ neglects to expressly apply the requisite factors, it is considered a
“procedural error.” Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019) (quotation
omitted). However, such error is harmless if “a searching review of the record” confirms
“that the substance of the treating physician rule was not traversed.” Id. (quotations
omitted).
Whatever weight the ALJ assigns to the treating physician’s opinion, he must “give
good reasons in [his] notice of determination or decision for the weight [he gives to the]
treating source’s medical opinion.” 20 C.F.R. § 416.927(c)(2); see also Harris v. Colvin,
149 F. Supp. 3d 435, 441 (W.D.N.Y. 2016) (“A corollary to the treating physician rule is
the so-called ‘good reasons rule,’ which is based on the regulations specifying that the
Commissioner will always give good reasons for the weight given to a treating source
opinion. . . . Those good reasons must be supported by the evidence in the case record, and
must be sufficiently specific. . . .” (quotation, citations, and internal quotation marks
omitted)).
In this case, Dr. Dombovy opined in August of 2016 that Plaintiff was—among
other things—very limited in attention and concentration, making simple decisions, and
functioning in a work setting at a consistent pace. (Dkt. 3 at 1147, 1152; Dkt. 4 at 290).
In August of 2018, Dr. Dombovy opined that Plaintiff would require unscheduled breaks
due to emotional breakdown, was incapable of performing even low stress jobs, and would
likely be absent from work more than four days per month due to her impairments. (Dkt.
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3 at 1300, 1304, 1306). The ALJ gave these opinions limited weight, explaining that they
were inconsistent with Plaintiff’s recent normal neurological evaluations, the mental status
evaluations of record, and Plaintiff’s reported activities of daily living. (Id. at 35-36). The
ALJ further noted that Dr. Dombovy, a neurologist, saw Plaintiff only once every two
years, which was “not consistent [with] the degree of restrictions outlined in [her]
assessment.” (Id. at 36; see Dkt. 4 at 3 (Dr. Dombovy’s treatment notes from August of
2018 noting that Plaintiff “was last seen in 2016” and that “[b]efore that she was last seen
in 2014”)). Finally, the ALJ noted that Dr. Dombovy’s opinions were “contradicted by the
objective evidence in [the] record,” including counseling and neurology records showing
only mild impairment, and improvement with treatment. (Id. at 36-37).
Plaintiff argues first that the ALJ failed to consider the requisite factors when
assessing Dr. Dombovy’s opinions. (Dkt. 5-1 at 12). This argument lacks merit. The ALJ
expressly noted that Dr. Dombovy was Plaintiff’s neurologist, and also expressly discussed
the frequency and nature of her treatment. (Dkt. 3 at 29, 35-36). The ALJ also considered
whether the medical evidence, including Dr. Dombovy’s own records, supported the
opinions, and whether the opinions were consistent with the evidence as a whole. (Id.).
The fact that the ALJ did not weigh the factors the way that Plaintiff thinks he should have
does not mean they were not considered.
The ALJ further provided good reasons for affording Dr. Dombovy’s opinions less
than controlling weight. The ALJ explained that the severe limitations in Dr. Dombovy’s
opinions were inconsistent with the medical evidence of record showing only mild
impairment. This evidence included: an evaluation by psychologist Dr. Yu-Ying Lin in
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October of 2015 where Plaintiff demonstrated only mild impairment in attention and
concentration and memory, while also exhibiting coherent and goal directed thought
processes and fair insight and judgment; Dr. Dombovy’s own treatment records describing
Plaintiff’s comprehension and attention as “normal”; the opinion of Plaintiff’s treating
therapist, who saw her weekly and opined in May of 2018 that she had an “unlimited or
very good” ability to—among other things—“[m]aintain attention for [a] two hour
segment” and “[d]eal with normal work stress”; and treatment records from 2018 in which
Plaintiff’s psychiatrist assessed her attention span as within normal limits. (See, e.g., Dkt.
3 at 999-1000, 1216-18; 1257; Dkt. 4 at 4). Further, Dr. Bell, who testified as a medical
expert at the final hearing, opined that Plaintiff had only a moderate impairment in
concentration and had a “significant ability to do simple repetitive tasks.” (Dkt. 3 at 59).
“[T]he opinion of the treating physician is not afforded controlling weight where . . . the
treating physician issued opinions that are not consistent with other substantial evidence in
the record, such as the opinions of other medical experts.” Halloran, 362 F.3d at 32.
The ALJ also noted that the severe limitations identified by Dr. Dombovy were
inconsistent with Plaintiff’s activities of daily living, including the fact that she was
ultimately able to return to substantial gainful activity in April of 2021. (Dkt. 3 at 35-36).
Plaintiff argues that the ALJ should not have taken into account her return to employment,
because “her ability to work outside the relevant period [was] simply less relevant to this
analysis, making this not a good reason.” (Dkt. 5-1 at 14). However, it is clear from the
ALJ’s discussion that he was focused on Plaintiff’s employment during the closed period
at issue, wherein she “engaged in a variety of work activity, including as cashier, busser,
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[and] babysitter[.]” (Dkt. 3 at 38). The Commissioner’s regulations expressly permit an
ALJ to take such information into account when making a disability determination. See 20
C.F.R. § 416.971 (“Even if the work you have done was not substantial gainful activity, it
may show that you are able to do more work than you actually did. We will consider all
of the medical and vocational evidence in your file to decide whether or not you have the
ability to engage in substantial gainful activity.”).
Moreover, and as the ALJ noted, Dr. Dombovy’s treatment records from 2018
indicated that Plaintiff’s “physical neurological exam [was] stable.” (Dkt. 4 at 5; see Dkt.
3 at 37). Under these circumstances, the ALJ was within his discretion to consider the fact
that Plaintiff engaged in work activity during the closed period and was ultimately
successful in returning to work at the level of substantial gainful activity. See Montaldo v.
Astrue, No. 10 CIV. 6163 SHS, 2012 WL 893186, at *13 (S.D.N.Y. Mar. 15, 2012)
(finding that the plaintiff’s “work history during and after the closed period” supported the
ALJ’s analysis where the plaintiff worked during the closed period and “at the end of the
closed period, . . . was able to resume full time employment”).
In sum, the Court finds no reversible error in the ALJ’s assessment of Dr.
Dombovy’s opinions. The ALJ evaluated Dr. Dombovy’s opinions pursuant to the treating
physician rule and provided good reasons for affording them only limited weight. There
is accordingly no basis for the Court to disturb the Commissioner’s decision.

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CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 10) is granted, and Plaintiff’s motion for judgment on the pleadings (Dkt.
5) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.

________________________________
_______________________________________
ELIZABETH
ELIZA
ABETH A.
A. WOLFORD
WOLFORD
D
Chief Judge
Juudge
United States District Court
Dated: June 3, 2024
Rochester, New York

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