Hull v. Commissioner of Social Security

Filing 10

DECISION AND ORDER granting 7 Motion for Judgment on the Pleadings, denying 4 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 06/03/2024. (CAL)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MICHAEL H.,
Plaintiff,

DECISION AND ORDER

v.
1:23-CV-00550 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________

INTRODUCTION
Represented by counsel, Plaintiff Michael H. (“Plaintiff”) brings this action
pursuant to Title II of the Social Security Act (the “Act”), seeking review of the final
decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”)
denying his application for disability insurance benefits (“DIB”). (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. 4; Dkt. 7), and Plaintiff’s reply (Dkt. 8). For the
reasons discussed below, the Commissioner’s motion (Dkt. 7) is granted, and Plaintiff’s
motion (Dkt. 4) is denied.

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BACKGROUND
Plaintiff protectively filed his application for DIB on June 14, 2020. (Dkt. 3 at 26,
61).1 In his application, Plaintiff alleged disability beginning March 10, 2020, due to
COPD, emphysema, and being borderline diabetic. (Id. at 62-63). Plaintiff’s application
was initially denied on April 12, 2021. (Id. at 26, 104-17). A telephone hearing was held
before administrative law judge (“ALJ”) Timothy Belford on December 16, 2021. (Id. at
26, 41-60). On March 10, 2022, the ALJ issued an unfavorable decision. (Id. at 23-36).
Plaintiff requested Appeals Council review; his request was denied on April 20, 2023,
making the ALJ’s determination the Commissioner’s final decision. (Id. at 5-10). 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
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept

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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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. § 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,
in 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 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
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
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Regulation No. 4 (the “Listings”). Id. § 404.1520(d). If the impairment meets or medically
equals the criteria of a Listing 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).
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.
§ 404.1520(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.

§ 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 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 ALJ applied the five-step

sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through December 31, 2025. (Dkt.
3 at 28). At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful work activity since March 10, 2020, the alleged onset date. (Id.).
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At step two, the ALJ found that Plaintiff suffered from the severe impairments of
chronic obstructive pulmonary disease (COPD) and asthma. (Id. at 29). The ALJ further
found that Plaintiff’s medically determinable impairments of diabetes mellitus (DM),
obesity, hypertension, obstructive sleep apnea (OSA), thyroid disorder (hypothyroidism),
liver disorder, hyperlipidemia, and cannabis use disorder 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 3.02 and 3.03 in reaching
his conclusion, as well as considering the effect of Plaintiff’s obesity as required by Social
Security Ruling (“SSR”) 19-2p. (Id. at 29, 31).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform light work as defined in 20 C.F.R. § 404.1567(b), except:
he can no more than occasionally climb ramps, stairs, and ladders. He can
no more than occasionally crawl, kneel, and crouch. He can no more than
frequently handle and finger. He is limited to no more than occasional
exposure to work environments with temperature extremes and pulmonary
irritants, such as fumes, dusts, and gases.
(Id. at 31). At step four, the ALJ found that Plaintiff was unable to perform any past
relevant work. (Id. at 34).
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
were jobs that exist in significant numbers in the national economy that Plaintiff could
perform, including the representative occupations of router, office helper, and cashier II.

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(Id. at 35-36). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the
Act. (Id. at 36).
II.

The Commissioner’s Determination is Supported by Substantial Evidence and
Free from Legal Error
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that the

ALJ erred by failing to evaluate Plaintiff’s need for supplemental oxygen. (Dkt. 4-1 at 1,
6-9). Specifically, Plaintiff contends that although he had difficulty standing and walking
due to shortness of breath, and that he used oxygen at night and at times during the day,
the ALJ did not evaluate the functional effect of Plaintiff’s need for supplemental oxygen
on his ability to perform light work. (Id. at 6-7). In response, the Commissioner argues
that the ALJ properly considered Plaintiff’s need for supplemental oxygen, and the record
supports that Plaintiff’s use of supplemental oxygen was intermittent, at best. (Dkt. 7-1 at
7-9). The Court has considered Plaintiff’s argument and, for the reasons discussed below,
finds it to be without merit.
In deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence
available to make an RFC finding that [is] consistent with the record as a whole.” Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). While an ALJ’s conclusion need not
“perfectly correspond with any of the opinions of medical sources cited in his decision,”
id., an ALJ is not a medical professional, and therefore he “is not qualified to assess a
claimant’s RFC on the basis of bare medical findings,” Ortiz v. Colvin, 298 F. Supp. 3d
581, 586 (W.D.N.Y. 2018) (quotation and citation omitted). At bottom, “[a]n RFC finding
is administrative in nature, not medical, and its determination is within the province of the
ALJ, as the Commissioner’s regulations make clear.” Curry v. Comm’r of Soc. Sec., 855
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F. App’x 46, 48 n.3 (2d Cir. 2021) (finding it was proper for the ALJ “pursuant to his
statutory authority . . . [to] consider[ ] the medical and other evidence in the record in its
totality to reach an RFC determination”); see also Monroe v. Comm’r of Soc. Sec., 676 F.
App’x 5, 8 (2d Cir. 2017) (“Where . . . the record contains sufficient evidence from which
an ALJ can assess the claimant’s residual functional capacity, a medical source statement
or formal medical opinion is not necessarily required.” (quotations, citations, and alteration
omitted)). In arriving at the RFC, the ALJ’s reasoning “must always be sufficiently
discernible as to allow a reviewing court to ensure that the ALJ employed the proper
standards and rendered a decision supported by substantial evidence.” Gail F. v. Comm’r
of Soc. Sec., No. 21-CV-120-FPG, 2022 WL 17578465, at *4 (W.D.N.Y. Dec. 12, 2022)
(quotations and citation omitted).
Contrary to Plaintiff’s argument, the written determination makes clear that the ALJ
considered Plaintiff’s reports of breathing issues and his use of supplemental oxygen. For
example, the ALJ discussed Plaintiff’s hearing testimony, including that “he uses oxygen
at night most nights, but not all, and that seemed to help.” (Dkt. 3 at 30; see also id. at 32
(“He testified he uses oxygen most nights to sleep. However, he does not have restful sleep
and experience[s] daytime sleepiness.”)). The ALJ further discussed Plaintiff’s reports that
since his alleged onset date, “he could no longer breathe well,” that he believes his hands
go numb due to his lack of oxygen, and also that he “cannot do very much at all without
losing his breath.” (Id. at 32). Accordingly, it is apparent to the Court that the ALJ
considered Plaintiff’s reports regarding his use of oxygen in connection with his breathing
issues and, given that the ALJ was present at the hearing, plainly he was aware of Plaintiff’s
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testimony that he has used oxygen during the summertime. (See id. at 53 (Plaintiff’s
hearing testimony that he used oxygen “most nights,” and in response to counsel’s
questioning, that he has used oxygen during the day in the summertime)).
While the ALJ did not engage in a lengthy discussion concerning Plaintiff’s reports
about his use of supplemental oxygen, the ALJ is not required to discuss every shred of
medical evidence in the record. See Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448 (2d
Cir. 2012) (ALJ is not required to discuss every piece of evidence submitted, and the failure
to cite specific evidence does not indicate that such evidence was not considered
(quotations and citations omitted)). Here, aside from Plaintiff’s hearing testimony, the
record supports that Plaintiff used supplemental oxygen on an intermittent basis. (See, e.g.,
Dkt. 3 at 420-23 (October 7, 2021 report by Vandana Pai, M.D., of General Physician PC,
Pulmonary, noting that Plaintiff “has been using supplemental oxygen via nasal cannula
intermittently and feels he sleeps better with oxygen on.”); id. at 430-33 (January 6, 2022
report by Dr. Pai, again noting that Plaintiff uses supplemental oxygen intermittently and
sleeps better with the oxygen on)). Accordingly, the Court finds that the ALJ’s discussion
of Plaintiff’s testimony that he uses supplemental oxygen—including by acknowledging
Plaintiff’s reports of using oxygen and the medical evidence concerning his breathing
issues—to be sufficient. The fact that the ALJ did not engage in a lengthy discussion about
this topic does not, standing alone, require remand.
To account for Plaintiff’s symptoms relating to his breathing issues, the ALJ
assessed an RFC requiring no more than occasional exposure to work environments with
temperature extremes and pulmonary irritants, such as fumes, dusts, and gases. (Id. at 31).
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Notably, these limitations are supported by other medical evidence in the record, including
the opinion offered by the consultative examiner, Hongbiao Liu, M.D. (Id. at 404-07). Dr.
Liu examined Plaintiff on April 5, 2021, and concluded that Plaintiff “should avoid dust
and other irritating factors due to COPD/emphysema condition.” (Id. at 407). Dr. Liu
observed that Plaintiff was in no acute distress, had a normal gait, could walk on his heels
and toes without difficulty, used no assistive devices, needed no assistance changing for
the exam or getting on and off the examination table, and was able to rise from the chair
without difficulty. (Id. at 405). Dr. Liu noted that Plaintiff’s chest and lungs were clear to
auscultation, and that he had no significant chest wall abnormality and normal
diaphragmatic motion. (Id. at 406). Plaintiff’s ventilation test revealed no more than a
moderate obstruction. (Id.). Plaintiff’s prognosis was stable. (Id. at 407).
The ALJ also discussed Plaintiff’s medical records as they pertained to his ability
to breathe. (See id. at 31 (discussing January 2022 pulmonary function test, which
demonstrated normal lung capacity, mild reduction in diffusion capacity, and that at the
time of testing, Plaintiff denied hospitalization for respiratory problems); id. at 33
(discussing physical examination/health assessment in July 2020, where Plaintiff appeared
healthy, alert, oriented, and walked with a normal gait, and his respirations were unlabored
and lungs were clear bilaterally); id. (discussing primary care treatment note from
September 2021, where Plaintiff reported he could not breathe and could not afford
medication, but examination included “healthy appearing, unlabored breathing, normal
respiration rate, good airflow, and clear lungs”)). The ALJ further noted that in March
2021, Plaintiff reported exercising occasionally. (See id. at 33; see also id. at 357
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(treatment note from July 2020, noting that Plaintiff swims for exercise, and he lost 38
pounds in less than one year)). Ultimately, the ALJ concluded that while the treatment
notes supported that Plaintiff has a respiratory impairment, the objective testimony and
physical examination findings were not consistent with Plaintiff’s alleged limitations. (Id.
at 32).
Plaintiff appears to take the position that there is a blanket rule that the failure to
discuss the use of oxygen requires reversal. (See Dkt. 4-1 at 7 (acknowledging while an
ALJ is not required to reconcile every shred of evidence, crucial factors must be set forth
with sufficient specificity, and “[t]he need for supplemental oxygen could be considered
such a factor”)).

In support of this assertion, Plaintiff cites to out-of-circuit cases

discussing that the use of supplemental oxygen can impact the ability to work. (See id.).
However, Plaintiff does not cite to any federal cases from New York or from within the
Second Circuit, and the Court has identified no controlling authority stating that the ALJ
is required, in every instance, to make specific findings regarding a plaintiff’s use of
oxygen. As explained above, the ALJ acknowledged Plaintiff’s testimony relating to his
use of supplemental oxygen, and the Court does not find that the lack of further discussion
on this point renders the decision not supported by substantial evidence.
Further, Plaintiff has failed to carry his burden of demonstrating that additional
restrictions beyond those already included in the RFC are necessary. See, e.g., Smith v.
Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (explaining that the plaintiff “had a duty
to prove a more restrictive RFC, and failed to do so”). Other than his own subjective
statements, Plaintiff has failed to point to any evidence, such as an opinion from a medical
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provider, supporting that he required supplemental oxygen on a daily basis or that he
required it to engage in work activities. As explained above, the ALJ discussed Plaintiff’s
limitations with respect to his breathing and fashioned an RFC to accommodate those
limitations, and that RFC is supported by substantial evidence in the record. Accordingly,
remand is not required on this basis.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 7) is granted, and Plaintiff’s motion for judgment on the pleadings (Dkt. 4)
is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.

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

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