Simmons v. Astrue
Filing
16
DECISION AND ORDER granting the Commissioner's motion for judgment on the pleadings; denying plaintiff's cross-motion for judgment on the pleadings; and dismissing plaintiff's complaint with prejudice. Signed by Hon. Michael A. Telesca on 7/13/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
NOELLE HOLLY SIMMONS,
Plaintiff,
10-CV-6548
DECISION
and ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.
__________________________________
Introduction
Plaintiff Noelle Holly Simmons (“Plaintiff”) brings this action
pursuant to Title II of the Social Security Act, claiming that the
Commissioner of Social Security improperly denied her application
for disability insurance benefits. Specifically, Plaintiff alleges
that the decision of Administrative Law Judge Robert Gale (“ALJ”)
was erroneous and not supported by substantial evidence in the
record.
The Commissioner moves for judgment on the pleadings pursuant
to rule 12(c) of the Federal Rules of Civil Procedure, on the
grounds
that
the
ALJ’s
decision
was
supported
by
substantial
evidence and contained no error of law. Plaintiff opposes the
Commissioner’s
motion,
and
cross-moves
for
judgment
on
the
pleadings. For the reasons set forth herein, I find that the
decision of the Commissioner is supported by substantial evidence,
and is in accordance with applicable law, and therefore, I grant the
Commissioner’s motion for judgment on the pleadings, and deny
Plaintiff’s cross motion for judgement on the pleadings.
Background
On May 11, 1995, Plaintiff, as a minor, was found disabled due
to
spinal
muscular
atrophy,
and
became
eligible
Supplemental Security Income. (Tr. 28-29, 41-42).
receive
The Commissioner
continued to find Plaintiff disabled in 1999 and 2003.
43-46).
to
(Tr. 30-31,
In 2008, Plaintiff’s disability status was redetermined
using the adult standard.
(Tr. 32, 47-50).
It was determined that
Plaintiff was no longer eligible for Supplement Security Income.
Id.
Plaintiff appealed that decision, claiming she suffered spinal
muscular atrophy and a learning disability, but a disability hearing
officer found that Plaintiff was not disabled.
03).
(Tr. 53, 61-70, 601-
Plaintiff requested a hearing which was held before ALJ Robert
Gale on May 27, 2010.
(Tr. 607).
The ALJ considered the case de
novo and on June 25, 2010, found Plaintiff not disabled under the
Act.
(Tr. 17-26).
Plaintiff filed a request for review of the
ALJ’s decision which the Appeals Council denied on August 20, 2010,
making the ALJ’s decision the final decision of the Commissioner.
(Tr. 9-11).
On September 27, 2010, Plaintiff timely filed this
action.
Discussion
I. Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear
claims
based
on
the
denial
of
Social
Security
benefits.
Additionally, the section directs that when considering such a
claim, the Court must accept the findings of fact made by the
2
Commissioner,
provided
that
such
findings
are
supported
by
substantial evidence in the record. Substantial evidence is defined
as, “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB,
305 U.S. 197, 217 (1938). Section 405(g) thus limits the Court’s
scope of review to determining whether or not the Commissioner’s
findings were supported by substantial evidence. See Mongeur v.
Heckler,
722
F.2d
1033,
1038
(2d
Cir.
1983)
(finding
that
a
reviewing Court does not try a benefits case de novo). The Court is
also authorized to review the legal standards employed by the
Commissioner in evaluating Plaintiff’s claim.
The Court must “scrutinize the record in its entirety to
determine the reasonableness of the decision reached.” Lynn v.
Schweiker,
565
F.
Supp.
265,
267
(S.D.
Tex.
1983)
(citation
omitted). The Commissioner asserts that his decision was reasonable
and is supported by the evidence in the record, and moves for
judgment on the pleadings pursuant to Rule 12(c). Judgment on the
pleadings may be granted under Rule 12(c) where the material facts
are undisputed and where judgment on the merits is possible merely
by considering the contents of the pleadings. Sellers v. M.C. Floor
Crafters, Inc., 842 F.2d 639 (2d Cir. 1988).
II. The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record
The ALJ, in his decision, found that the Plaintiff’s disability
ended on December 12, 2008 and she had not become disabled since
that date.
(Tr. 26).
In doing so, the ALJ followed the Social
3
Security
Administration’s
five-step
sequential
analysis
for
determining whether or not a clamant suffers from a disability. See
20 C.F.R. § 404.1520.1
Step one of the analysis is not used for redetermining disability,
therefore the ALJ began the analysis at step two. (Tr. 18).
At step
two the ALJ concluded that Plaintiff’s spinal muscular atrophy and
borderline intellectual functioning were severe. At step three, the
ALJ concluded that these impairments did not meet or equal singly or
in
combination,
Appendix 1.
any
of
(Tr. 21).
the
impairments
listed
in
regulations
The ALJ also concluded that Plaintiff’s
headaches and asthma were non-severe impairments.
(Tr. 19).
At step four the ALJ concluded that Plaintiff retained the
residual functional capacity (“RFC”) to perform light work with the
exception
that
Plaintiff
can
lift
and/or
carry
occasionally and less than ten pounds frequently.
C.F.R. §416.967(b).
ten
pounds
(Tr. 22), See 20
At step 5 the ALJ determined that the Plaintiff
had no past relevant work.
Therefore, in the fifth step, the ALJ
1
Five step analysis includes: (1) ALJ considers whether
claimant is currently engaged in substantial gainful activity;
(2) if not, ALJ considers whether claimant has a severe
impairment which significantly limits his physical or mental
ability to do basic work activities; (3) if claimant suffers such
impairment, third inquiry is whether, based solely on medical
evidence, claimant has impairment which is listed in regulations
Appendix 1, and if so claimant will be considered disabled
without considering vocational factors (4) if claimant does not
have listed impairment, fourth inquiry is whether, despite
claimant’s severe impairment, he has residual functional capacity
to perform his past work; and (5) if claimant is unable to
perform past work or does not have any past relevant work, the
ALJ determines whether claimant could perform other work. See id.
4
considered Plaintiff’s age, education, work experience, and residual
functional capacity to determine whether or not Plaintiff could
perform any job in the national economy.
The ALJ determined that
there were jobs that existed in significant numbers in the national
economy that Plaintiff was able to perform.
(Tr. 25).
Based on the entire record, including all relevant medical
evidence, I find there is substantial evidence in the record to
support the ALJ’s determination that the Plaintiff was not disabled
within the meaning of the Act.
A. Medical and non-medical evidence in the record supports the ALJ’s
determination that Plaintiff was not disabled
Plaintiff’s
records
indicate
that
she
was
examined
and
diagnosed with spinal muscular atrophy in 1994 by Dr. David Halpert.
(Tr.
336).
Plaintiff’s
Dr.
spinal
(Tr. 323-24).
complaining
Halpert’s
of
muscular
impression
atrophy
at
had
a
that
time
“slow
was
that
progression.”
In January 2006, Plaintiff returned to Dr. Halpert
lower
back
pain.
(Tr.
412-14).
Dr.
Halpert
determined that a lumbar spine magnetic resonance imaging study was
unremarkable.
(Tr.
412).
Dr.
Halpert
questioned
the
spinal
muscular atrophy diagnosis, as it was a progressive disease, but had
not progressed.
(Tr. 412-13).
Dr. Halpert reported that genetic
testing was negative for spinal muscular atrophy.
In
July
examination
of
2007,
Dr.
Plaintiff.
Emma
Ciafaloni
(Tr.
417-19).
Id.
conducted
her
Examination
first
showed
Plaintiff had “normal” strength throughout, except for some 4+ and
5
5-/5 strength in the lower extremities.
(Tr. 418).
Additionally,
she had a “normal” gait, the ability to walk on her toes and heels
and she could rise rapidly from lying down.
Dr. Ciafaloni concluded
that the evidence pointed to spinal muscular atrophy but that
Plaintiff could undertake physical activity that did not require
running.
Id.
On November 25, 2008, Plaintiff was examined by Dr. Pranab
Datta on referral by the Division of Disability Determination.
Plaintiff complained of shoulder, back and leg pain.
(Tr. 460).
She stated she had persistent pain that was at a 9.5/10 on the pain
scale.
Id.
distress.
Examination showed that Plaintiff was in no acute
Dr. Datta found that gait was “normal, she could walk on
her heels and toes and rise from a chair without difficulty.
Id.
Additionally, he found that she had a full squat, had full range of
motion
in
her
cervical
and
lumbar
spine,
forearms, wrists, ankles, knees and hips.
Id.
shoulders,
elbows,
Dr. Datta also found
that Strength was 5/5 in upper and lower extremities and joints were
stable and nontender.
Id.
Deep tendon reflexes were equal, and she
had no motor or sensory deficits or muscle atrophy.
Id.
Plaintiff
stated that she showered, cooked, did laundry, cleaned, shopped, and
occasionally did childcare.
(Tr. 461).
Dr. Datta concluded that
claimant could probably participate in all normal activities, but
should avoid prolonged activities requiring moderate exertion.
In
provided
February
a
2009,
function
a
state
assessment
agency
of
6
physician,
Plaintiff.
Dr.
Tr.
Husain,
(490-87).
Dr. Husain found Plaintiff could lift 20 pounds occasionally and 10
pounds frequently, push and pull without further limit and stand,
walk and sit each for a total of about six hours in an eight-hour
workday.
(Tr. 493-94).
Dr. Jeffrey Donner evaluated Plaintiff in November 2008.
(Tr. 570-77).
IQ testing showed a verbal IQ of 81, a performance IQ
of 60, and a full scale IQ of 70.
(Tr. 571).
Approximately two
weeks later, Dr. Dennis Noia, evaluated Plaintiff.
Tr. 450-59.
He
noted that she could dress, bathe, groom, cook, clean, shop, manage
money and drive.
(Tr. 452, 458).
Examination showed Plaintiff was
cooperative, with moderately adequate relating, social skills and
presentation.
(Tr. 451, 456).
IQ testing showed a verbal IQ of 83,
performance IQ of 72 and full scale IQ of 70.
(Tr. 457).
Dr. Noia
concluded that Plaintiff was capable of understanding and following
simple instructions and directions, performing simple and some
complex tasks independently and with supervision, maintaining a
schedule and relating to and interacting moderately well with
others.
(Tr. 452, 458).
In December 2008, State agency psychologist, Dr. Blackwell,
completed a psychiatric review form.
(Tr. 470-8).
Dr. Blackwell
concluded that Plaintiff had “moderate” difficulty in maintaining
concentration,
activities
of
functioning,
persistence,
daily
and
no
living
or
pace;
or
episodes
but
difficulties
of
7
no
restriction
maintaining
deterioration
lasting
in
social
for
an
extended duration.
evidence
to
show
(Tr. 480).
Plaintiff
Dr. Blackwell found sufficient
was
able
to
perform
simple
tasks.
(Tr. 468).
Plaintiff alleged that she was disabled due to migraines.
(Tr. 616).
In January 2009 she saw Dr. Caren Douenia for a
neurological consultation concerning her migraines.
(Tr. 531).
During the examination Plaintiff complained of increasingly frequent
headaches that would occur above her right eye.
Dr. Douenia
prescribed Topamax and requested a follow up in eight weeks.
In
August of 2009, Plaintiff reported only suffering from a migraine
once a month and that it was managed by medication.
(Tr. 517).
Considering Plaintiff’s testimony and medical records, the ALJ
correctly determined that Plaintiff had borderline intellectual
functioning and spinal muscular atrophy. (Tr. 19).
Additionally,
the ALJ determined that Plaintiff had headaches and asthma but that
these impairments were not severe.
Id.
i. The ALJ correctly assessed that Plaintiff’s impairments did not
meet or equal an impairment in the Listings
Plaintiff
argues
that
the
ALJ
erred
by
not
finding
that
Plaintiff’s impairments met Listing 12.05(c) of the Appendix, a
listing of mental retardation.
16 (hereinafter Pl. Mem.) .
See Plaintiffs’ Memorandum of Law at
To establish disability under Listing
§ 12.05(C), Plaintiff must show three things: “(1) below-average
intellectual function with adaptive functioning deficits manifested
before age 22 and continuing during the claim period, (2) a valid IQ
score of 60 through 70, and (3) an impairment, other than his low
8
IQ,
that
imposes
an
additional
limitation of function.’”
and
‘significant
work-related
Ali v. Astrue, 2010 WL 889550 (E.D.N.Y.
2010) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05(C)).
Plaintiff has established the IQ component of § 12.05(C).
Testing done by both Dr. Noia and Dr. Donner reveal that Plaintiff
has at least a performance or full scale IQ score which is between
60 through 70.
(Tr. 457, 571).
Additionally, Plaintiff has
established an additional impairment which imposes a “significant
work-related limitation.”
12.05(C).
20 C.F.R. Pt. 404, Subpt. P, App. 1,
The ALJ acknowledges that Plaintiff’s spinal muscular
atrophy is a physical impairment which meets the requirements of
§ 12.05(C).
(Tr. 21).
Therefore, the only dispute is whether
Plaintiff has adaptive functioning deficits.
Adaptive functioning refers to “how effectively individuals
cope with common life demands and how well they meet the standards
of personal independence expected of someone in their particular age
group, sociocultural background and community setting.”
and
Statistical
Manual
of
Mental
Disorders,
Psychiatric Association, 4th ed. 2000).
Diagnostic
42,
(American
The plain language of the
regulations, however, does not require a complete lack of adaptive
functioning.
(2d
Cir.1983)
See
Rivera
(“The
v.
claimant
Schweiker,
need
not
717
F.2d
demonstrate
719,
that
he
722
is
completely helpless or totally disabled.”); see West v. Comm'r of
Soc. Sec. Admin., 240 Fed. Appx. 692, 698 (6th Cir. 2007) (“Adaptive
functioning includes a claimant's effectiveness in areas such as
social skills, communication, and daily living skills.”).
9
Courts can use circumstantial evidence to infer deficits in
adaptive functioning.
special
education
Examples include whether a claimant attended
classes;
dropped
out
of
school;
or
had
difficulties in reading, writing, or math. See Christner v. Astrue,
498 F.3d 790, 793 (8th Cir.2007); Maresh v. Barnhart, 438 F.3d 897,
899 (8th Cir.2006); Novy v. Astrue, 497 F.3d 708, 710 (7th Cir.2007)
(concluding that the plaintiff did not have adaptive functioning
deficits where she lived on her own, took care of three children,
paid her bills, and avoided eviction).
The ALJ is entitled to take the claimant's living conditions
and
school
records
into
account
when
determining
whether
the
claimant had deficits in her adaptive function prior to the age of
22.
See Novy, 497 F.3d 708, 710.
Plaintiff testified that she
lived alone in an apartment, could take care of her personal
hygiene, clean dishes, clean her house, make her own meals, go to
the store, and use public transportation.
Moreover, she had a
driver’s license and a car, which she drove approximately twenty
miles per week.
(Tr. 611-12, 615-18).
Additionally, Plaintiff was
able to graduate from high school, receiving a local diploma rather
than a special education certificate.
(Tr. 20-21).
Furthermore,
medical evidence in the record supports an inference that Plaintiff
does not have a adaptive functioning deficit. Dr. Donner found that
Plaintiffs social skills were adequate, that she could maintain
schedule, and could relate and interact moderately well with others.
10
Dr. Blackwell found no restrictions in activities of daily living or
maintaining social functions.
Finally, Plaintiff's argument that she meets the listing of
§ 12.05(C), a listing for mental retardation, is unsupported by the
fact that no medical professional had ever diagnosed Plaintiff with
mental
retardation.
I
conclude
that
the
ALJ’s
finding
that
Plaintiff does not suffer from adaptive functioning deficits is
supported by substantial evidence in the record.
ii. The ALJ properly determined that Plaintiff was able to perform
a full range of light work
Plaintiff argues that remand is required because the ALJ did
not take into account Plaintiff’s non-exertional limitation when
determining her RFC.
Plaintiff alleges that her non-exertional
limitations coupled with her exertional limitations required the use
of a vocational expert to determine her ability to work.
See Pl.
Mem. at 22.
The Second Circuit has held, “If a claimant has non-exertional
limitations that ‘significantly limit the range of work permitted by
his exertional limitations,’ the ALJ is required to consult with a
vocational expert.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986).
However, the existence of a non-exertional limitation alone does not
require the advice of a vocational expert.
Id. at 603.
The
existence of a mental limitation must cause an additional loss of
work capacity beyond that of the exertional limitation.
v. Astrue, 595 F.3d 402
See Zabala
(2nd Cir. 2010)(finding that a Vocational
11
Expert was unnecessary when Plaintiff’s mental condition did not
limit her ability to perform unskilled work, including carrying out
simple instructions, dealing with work changes, and responding to
supervision).
In the instant case, the ALJ found that Plaintiff’s mental
conditions allowed her to perform simple tasks independently and
with supervision, attend a routine and make appropriate simple
decisions and respond appropriately to supervision.
(Tr. 22).
Thus, Plaintiff’s non-exertional limitations did not result in an
additional loss of work capacity, and the ALJ's properly used the
Medical-Vocational Guidelines to determine Plaintiff’s capacity to
work.
iii.
The ALJ properly weighed the evidence in the record
Plaintiff argues that the ALJ erred by assigning less weight to
a Vocational Rehabilitation Counselor, Pellegrino, regarding her
opinion on Plaintiff’s non-exertional limitations. See Pl. Mem. 23.
Counselor Pellegrino opined that plaintiff would require extended
training and specialized instructional methods when entering new job
situations.
(Tr. 286).
Counselor Pellegrino’s opinion is not an acceptable medical
source.
(Tr. 24); see 20 C.F.R. § 416.913(a).
The ALJ properly
assessed the medical evidence in the record to determine Plaintiff’s
RFC.
In doing so he gave significant weight to the opinions of
Dr. Noia and some weight to Drs. Blackwell and Donner.
It is within
the ALJ’s discretion to review the medical evidence in the record
12
and resolve genuine conflicts.
Veino v. Barnhart, 312 F.3d 578, 588
(2nd Cir. 2002); see also Harris v. Barnhart 171 Fed. Appx. 211 (9th
Cir. 2006)(It is the ALJ's duty to resolve conflicts and ambiguities
in the medical and non-medical evidence).
iv. The ALJ properly concluded that the Plaintiff’s testimony was
not entirely credible.
The ALJ found that, evaluating the medical evidence, and the
Plaintiff’s
testimony
regarding
her
daily
activities,
the
Plaintiff’s complaints of severe pain and functional limitations
were not entirely credible. (Tr. at 23).
Plaintiff
testified
that
two
or
three
times
a
week
she
experienced bad days where she felt weak, without strength and could
not move. (Tr. at 627).
She also testified that she had bad
migraines which she suffered twice a week and were a six out of ten
on a pain scale.
(Tr. 617).
Plaintiff stated that she lived alone and got along well with
her relatives. (Tr. 618).
Her daily activities included doing
chores such as cleaning, dishes, laundry, bathing and cooking.
(Tr. at 618-20).
She testified that she reads, watches television,
can use the computer and internet, and drives herself 20 miles a
week.
walks.
Additionally she has a dog which she likes to take out for
(Tr. 619).
Plaintiff testified that she volunteered at her
aunt’s daycare, only for the summer of her sophomore year of high
school, but was not paid for this activity. (Tr. 613).
In
a
individualized
education
report,
filled
out
during
Plaintiff’s senior year of high school, it stated that Plaintiff was
13
working at a daycare center.
(Tr. 267).
Additionally, Plaintiff
claims she is incapacitated for two to three days a week but was
able to attend school full time without physical accommodation and
she entered college.
Additionally, on a visit to Dr. Datta,
Plaintiff complained of pain that was 9.5 out of 10.
However,
Dr. Datta recorded that Plaintiff did not appear to be in any
distress and his examination was unremarkable.
The
ALJ
correctly
evaluated
(Tr. 463).
Plaintiff’s
credibility
concluded that her testimony was not entirely credible.
and
Plaintiff
was able to perform a wide range of daily activities, and the
medical evidence supports the decision that the Plaintiff is able to
perform light work.
the
Plaintiff’s
Based on the medical evidence in the record and
testimony,
this
Court
finds
that
there
was
substantial evidence in the record for the ALJ to conclude that the
Plaintiff was not disabled within the meaning of the Social Security
Act.
CONCLUSION
For the reasons set forth above, I grant the Commissioner’s
motion for judgment on the pleadings.
Plaintiff’s cross-motion for
judgment on the pleadings is denied, and Plaintiff’s complaint is
dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
DATED: July 13, 2011
Rochester, New York
14
15
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