Johnson v. Colvin
Filing
19
DECISION & ORDER The ALJ's decision is affirmed. The Commissioner's motion for judgment on the pleadings 13 is granted. Johnson's motion for judgment on the pleadings 10 is denied, and Johnson's complaint 1 is dismissed with prejudice. Signed by Hon. Marian W. Payson on 3/24/2015. (KAH) -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
IZELLA MARIE JOHNSON,
DECISION & ORDER
Plaintiff,
13-CV-6510P
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Izella Marie Johnson (“Johnson”) brings this action pursuant to Section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision
of the Commissioner of Social Security (the “Commissioner”) denying her applications for
Supplemental Security Income and Disability Insurance Benefits (“SSI/DIB”). Pursuant to 28
U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States
magistrate judge. (Docket # 17).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 10, 13). For the
reasons set forth below, this Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and is in accordance with applicable legal standards.
Accordingly, the Commissioner’s motion for judgment on the pleadings is granted, and
Johnson’s motion for judgment on the pleadings is denied.
BACKGROUND
I.
Procedural Background
Johnson protectively filed for SSI and DIB on October 12, 2010, alleging
disability beginning on August 1, 2006, due to low back pain and a right ankle injury. (Tr. 162,
166).1 On December 30, 2010, the Social Security Administration denied Johnson’s claims for
benefits, finding that she was not disabled. (Tr. 70-71). Johnson requested and was granted a
hearing before Administrative Law Judge John P. Costello (the “ALJ”). (Tr. 83-92, 100-05).
The ALJ conducted a hearing on January 24, 2012 in Rochester, New York. (Tr. 35-69).
Johnson was represented at the hearing by her attorney Jaya Shurtliff, Esq. (Tr. 35, 94-96). In a
decision dated March 16, 2012, the ALJ found that Johnson was disabled beginning on
December 19, 2011, but was not disabled or entitled to benefits prior to that date. (Tr. 19-30).
On July 26, 2013, the Appeals Council denied Johnson’s request for review of the
ALJ’s decision. (Tr. 1-6). Johnson commenced this action on September 19, 2013 seeking
review of the Commissioner’s decision. (Docket # 1).
II.
Relevant Medical Evidence2
A.
Treatment Records
1.
Strong Memorial Hospital
On April 11, 2005, Johnson was treated in the Emergency Department at Strong
Memorial Hospital (“Strong”) for complaints of left-side chest pain. (Tr. 334-67). According to
the treatment notes, Johnson indicated that she had been experiencing chest pain and dizziness
1
The administrative transcript shall be referred to as “Tr. __.”
2
Those portions of the treatment records that are relevant to this decision are recounted herein.
2
on and off for approximately one month. (Id.). Johnson denied any shortness of breath and
indicated that the pain usually occurred when she was stressed or upset or after strenuous
activity. (Id.). Gwy Seo, MD, conducted a bedside examination and assessed a mild cardiac
silhouette enlargement. (Tr. 331). The records also indicate that Johnson received a blood
transfusion due to heavy menstruation and anemia. (Tr. 334-67).
On February 23, 2007, Johnson returned to Strong’s Emergency Department after
slipping on ice and falling on her left side. (Tr. 368-409). She also complained of heavy
menstruation. (Id.). Johnson was again assessed to be anemic and received a blood transfusion.
(Id.). She complained of left flank and neck pain and was prescribed iron, Flexeril, Vicodin and
Motrin. (Id.). Images were taken of Johnson’s abdomen, pelvis, head, chest, left hip, left
humerus and thoracic spine. (Tr. 313-30).
On July 21, 2011, Johnson returned to the Emergency Department complaining of
back pain. (Tr. 411-53). She denied any recent injury, but reported suffering from chronic back
pain. (Id.). According to Johnson, she had been experiencing back pain since she was thirty and
was not certain whether an injury or accident had precipitated it. (Id.). She also reported that
she previously had surgery on her ankle to remove a benign tumor. (Id.). Johnson indicated that
she had been denied Medicaid, did not have a primary care physician, and treated her pain with
Aleve and Tylenol. (Id.).
Johnson denied weakness, numbness or paresthesias in her extremities. (Id.).
Upon examination, she appeared moderately uncomfortable and demonstrated back pain with
tenderness and spasm, but no deformity, myalgias, joint swelling or gait problems. (Id.). Images
were taken of Johnson’s lumbar spine, which demonstrated that her sacroiliac joints were
symmetrical, her vertebral alignment was normal, and there were no acute fractures. (Id.). The
3
images did demonstrate two calcified bodies projecting over the upper pelvis. (Id.). The
radiologist assessed no acute bone or joint abnormalities of the lumbar spine. (Id.). Johnson was
given Percocet and Ativan for her pain. (Id.). Again, she was assessed to be anemic likely due
to a myomatous uterus and was given a transfusion. (Id.). Johnson was prescribed iron, Colace
and Naproxen. (Id.).
2.
Westside Health Services
Treatment records indicate that Johnson began treating with Assaf Yosha
(“Yosha”), MD, at Westside Health Services on December 21, 2011. (Tr. 455-57). During that
appointment, Johnson reported that she had not previously had a primary care physician due to
her uninsured status and received treatment through emergency room visits. (Id.). She
complained of chronic low back pain, which she reported had started in the early-2000’s. (Id.).
Johnson also reported that she had fallen off a motorcycle during the 1970’s. (Id.). According to
Johnson, she used to experience only intermittent pain due to exacerbations, but her pain was
now worsening and constant. (Id.). She reported that she sometimes used a cane to ambulate,
but it was unclear to Yosha whether this was due to back pain or right heel pain. (Id.). Johnson
reported that she treated her pain with Aleve or Advil and had made an appointment with Unity
Spine Center for February 2012. (Id.). Johnson indicated that the pain was in her lower back
and sometimes radiated to her legs, with occasional left leg paresthesia. (Id.).
Johnson also complained of menorrhagia and anemia, explaining that she
experienced unusually heavy menstrual cycles and that she had received approximately four
blood transfusions. (Id.). Johnson reported that her anemia caused her to be fatigued and dizzy
and that that she was routinely prescribed iron, but was unable to afford it. (Id.). She indicated
that previous imaging had demonstrated that she had fibroids. (Id.).
4
Upon examination, Yosha noted a spasm along the lower thoracic and perilumbar
regions with no spinal tenderness. (Id.). According to Yosha, Johnson demonstrated an antalgic
gait because she did not bear weight on her right heel. (Id.). Johnson was unable to perform the
heel or toe walk due to give-away. (Id.). According to Yosha, Johnson’s range of motion in her
spine was limited due to pain. (Id.).
Yosha reviewed images of Johnson’s spine, abdomen and pelvis that had been
taken in 2007, as well as an additional image of her abdomen taken in July 2011. (Id.). Yosha
assessed anemia, low back pain and suggested that Johnson be screened for diabetes. (Id.).
Yosha prescribed Ferrous Sulfate and determined to monitor the fibroids, but noted that a
hysterectomy might be necessary. (Id.). Yosha prescribed Mobic and Flexeril for her low back
pain. (Id.).
Johnson returned for an appointment with Yosha on January 11, 2012,
complaining of continued back pain. (Tr. 460-61). She reported that she had received a blood
transfusion in the Emergency Department in late December 2011. (Id.). According to Johnson,
she continued to be fatigued and had experienced one episode of chest pain the prior week, but
generally had better energy. (Id.). She reported that the Flexeril and Mobic were improving her
back pain. (Id.). She also reported that she had been evaluated by a gynecologist, who had
performed an endometrial biopsy. (Id.). Johnson indicated that the procedure would have to be
repeated and that an ultrasound would be performed to assess her fibroids. (Id.).
3.
Unity Spine Center
On February 1, 2012, Johnson attended an appointment with Joanne Wu (“Wu”),
MD, at the Unity Spine Center. (Tr. 463-66). Johnson reported that she had experienced chronic
back pain since a motorcycle accident in the 1970’s and that she had an application for disability
5
benefits pending. (Id.). Johnson explained that she had been unemployed since 1979 due to her
back pain. (Id.). Johnson reported that she had primarily received care through emergency room
visits due to lack of insurance. (Id.). According to Johnson, her pain is a constant, dull, aching
pain, but without saddle anesthesia, limb weakness or numbness. (Id.). Johnson reported that
she walked with a cane and that standing, walking and sitting exacerbated her pain, while lying
down alleviated her pain. (Id.).
Upon examination, Wu noted no kyphosis or scoliosis, but observed tenderness in
Johnson’s spine and a diffuse muscle spasm that was greater on the right side. (Id.). Wu also
noted excessive lumbar lordosis, flexion limited to 75% of normal limits and poor extension.
(Id.). According to Wu, the straight leg raise was negative from a seated position. (Id.). Wu
also noted diminished range of motion in the right ankle with diffuse allodynia. (Id.).
Wu assessed a chronic antalgic gait due to a previous right ankle injury that was
complicating Johnson’s chronic low back pain. (Id.). Wu referred Johnson to physical therapy
and recommended that Yosha refer her to an orthopedist to evaluate her right ankle. (Id.).
According to Wu, the ankle pain and decreased function were likely contributing to Johnson’s
severe back spasms. (Id.). Wu recommended that Yosha continue to prescribe Tramadol and to
consider neuromodulation with a Gabapentin trial. (Id.). Wu declined to complete disability
paperwork without first reviewing Johnson’s medical history and implementing the
recommended treatment plan. (Id.). Wu also counseled Johnson on smoking cessation. (Id.).
B.
Medical Opinion Evidence
On December 22, 2010, state examiner Karl Eurenius (“Eurenius”), MD,
conducted a consultative internal medicine examination. (Tr. 273-76). Johnson reported that a
benign tumor had been removed from her right foot approximately seven years ago and that
6
since then she had experienced pain, particularly in her ankle while walking. (Id.). She reported
that she had not been evaluated since her original surgery. (Id.).
Johnson reported that she had injured her back during a fall that had occurred five
years ago. (Id.). According to Johnson, she experienced a sharp, aching pain in her low-mid
back since that time. (Id.). Johnson reported that she is able to cook and clean five days a week
with the assistance of her children. (Id.). She also does laundry and grocery shops once a month
with assistance from her children. (Id.). According to Johnson, she is able to shower, bathe and
dress herself. (Id.). She reported that she enjoys watching television, listening to the radio,
reading, attending church and socializing with friends. (Id.).
Upon examination, Eurenius noted that Johnson appeared to be in no acute
distress, had a mild limp favoring her right leg, used no assistive devices and did not need any
assistance changing for the exam, rising from the chair or getting on or off the exam table. (Id.).
According to Eurenius, Johnson could stand on her toes with some difficulty due to her right
ankle and could squat only one-half of the way due to low-mid back pain. (Id.).
Eurenius noted that her cervical spine showed full flexion, extension, lateral
flexion bilaterally and full rotary movement bilaterally. (Id.). Eurenius identified no scoliosis,
kyphosis or abnormality in her thoracic spine. (Id.). Eurenius found that her lumbar flexion was
limited to 45 degrees with pain in the low-mid back, which was tender to palpation. (Id.).
Rotation was reduced in both directions to 30 degrees with pain in the low-mid back. (Id.). The
straight leg raise was positive at 45 degrees bilaterally with pain in the low-mid back. (Id.).
Eurenius observed that Johnson was unable to elevate her shoulders to a full 150 degrees, but
found full range of motion in the shoulders, elbows, forearms and wrists. (Id.). He also found
full range of motion in the hips, knees and ankles bilaterally. (Id.). According to Eurenius,
7
Johnson demonstrated full range of motion in her right foot. (Id.). Eurenius assessed strength in
the upper and lower extremities to be five out of five. (Id.). Eurenius found her hand and finger
dexterity to be intact and her grip strength to be five out of five bilaterally. (Id.).
Eurenius diagnosed Johnson with right foot pain secondary to surgery and chronic
low back pain of uncertain etiology. (Id.). Eurenius opined that she had some limitation in
prolonged standing, walking more than two city blocks, climbing or descending more than one
flight of stairs, bending, lifting or carrying more than ten pounds and kneeling due to her low
back pain. (Id.). Eurenius also opined that she was limited in walking and climbing stairs due to
right foot and ankle pain. (Id.).
III.
Non-Medical Evidence
In her application for benefits, Johnson indicated that she had completed high
school in 1981. (Tr. 167). Johnson reported that she had previously been employed as a
shelf-stocker, cashier, line server/busser and machine operator. (Tr. 167, 173, 210-16).
Johnson indicated that she lived in an apartment with her two children.
(Tr. 182-91). According to Johnson, her daily activities included soaking in warm water with
Epsom salts, cleaning, preparing meals and lying down. (Id.). She reported that she used to be
able to stand for long periods of time and bend regularly, but now experiences stiffness and pain
in her foot and pain in her back. (Id.). Johnson reported that she is able to care for her own
personal hygiene and to prepare meals every other day. (Id.). Johnson indicated that she is able
to clean, but is unable to stand for prolonged periods or bend frequently, and that her children
assist her with household chores. (Id.).
8
According to Johnson, she leaves her house approximately four times a week and
walks around the block with her friend in order to stretch her limbs. (Id.). Johnson either walks
or uses public transportation and has a driver’s license, but does not drive because she does not
have a car. (Id.). Johnson reported that she is able to grocery shop once a month with assistance.
(Id.). According to Johnson, she enjoys reading, watching television, cooking and playing board
games with her children. (Id.). A friend visits her two or three times a week to watch television
or play checkers. (Id.). Johnson reported that approximately three times a week she walks to
church or has lunch with her friend. (Id.).
According to Johnson, her medical impairments make it difficult for her to lift
heavy objects, stand for prolonged periods, walk, climb stairs, kneel or squat. (Id.).
Additionally, she reported that she sometimes has difficulty rising from a seated position. (Id.).
Johnson sometimes uses a cane or an umbrella to ambulate, but reported that she had not been
prescribed an assistive device to assist her ambulation. (Id.). She typically uses an aid when she
walks around the block or goes to church. (Id.). According to Johnson, she is able to walk
approximately two blocks before needing to rest for approximately ten minutes. (Id.).
Johnson reported that she first began to experience pain affecting her activities in
approximately August 2006, but did not receive treatment for it because she could not afford it.
(Id.). According to Johnson, she experiences pain in her back and foot, which sometimes
radiates to her leg. (Id.). She reported that she experiences pain approximately twice a week,
although sometimes she experiences pain daily. (Id.). According to Johnson, her pain generally
lasts four to five minutes, although sometimes it lasts all day. (Id.). She treats her pain with
Aleve and Advil and also soaks in warm baths with Epsom salts. (Id.).
9
During the administrative hearing, Johnson testified that she was born on June 19,
1962. (Tr. 41). She testified that she lives with her two teenage sons. (Tr. 41-42). According to
Johnson, she was previously employed as a “zoner” at a department store and that her job
responsibilities included cleaning the store, straightening merchandise, stocking and unloading
trucks. (Tr. 42-44). According to Johnson, she also previously worked as a packager on an
assembly line. (Tr. 44-47). At the time of the hearing, she had not worked since approximately
2006. (Tr. 42).
Johnson testified that she began experiencing back pain on and off during her
employment with the department store in 2005 and 2006. (Tr. 48). According to Johnson, her
pain has gotten progressively worse, particularly when she bends or squats. (Id.). She described
the pain as a “tingling” in her back, above her tailbone that sometimes feels like needles. (Id.).
According to Johnson, the pain sometimes radiates to her legs. (Tr. 49). She explained that she
had been in a motorcycle accident in the 1970’s and experienced pain for a couple of weeks
before it resolved. (Id.). According to Johnson, the pain started to come back, particularly when
working or lifting things. (Id.).
Johnson testified that she had recently commenced treatment with Yosha, who
had prescribed Tramadol for her back pain, which causes her to be fatigued. (Tr. 50-51). She
testified that she sometimes uses a non-prescribed cane to ambulate due largely to her ankle pain.
(Tr. 51). Johnson indicated that before she began treatment with Yosha she treated her pain with
over-the-counter medications. (Id.).
Johnson testified that she also experiences pain in her right ankle where she
previously had surgery to remove a tumor. (Tr. 52). According to Johnson, she sometimes feels
like she is “walking on a ball.” (Tr. 52-53). Johnson testified that her sleep is sometimes
10
interrupted due to pain and she frequently awakens every two hours throughout the night.
(Tr. 53). According to Johnson, she usually goes to bed around 9:00 p.m. and gets out of bed at
approximately 10:00 a.m. (Tr. 61-62). Johnson testified that she typically gets a total of six
hours of sleep a night. (Id.). According to Johnson, she is frequently tired during the day and
takes one or two naps for approximately one hour each. (Tr. 61).
Johnson estimated that she could sit and stand for approximately forty-five
minutes at a time and could walk approximately two blocks with her cane before getting a cramp
in her calves. (Tr. 53-56). According to Johnson, she has trouble lifting heavy objects and is
unable to bend without squatting. (Id.). Johnson testified that she enjoys reading, visiting with
her family and walking with her daughter. (Tr. 55).
According to Johnson, she is able to grocery shop, but her children push the cart
and carry her groceries. (Tr. 55-56). Additionally, Johnson indicated that her daughter assists
her with laundry. (Id.). Johnson testified that she is able to care for her own personal hygiene,
although her children sometimes help her put on her shoes and get out of the bathtub. (Id.).
Johnson testified that she is able to prepare meals, but is not able to stand for long while cooking.
(Id.).
Vocational expert, Peter Manzi (“Manzi”), also testified during the hearing.
(Tr. 64-68). The ALJ first asked Manzi to characterize Johnson’s previous employment.
(Tr. 64). According to Manzi, Johnson previously had been employed as a sales attendant and a
hand packager. (Tr. 64-65). The ALJ then asked Manzi whether a person would be able to
perform Johnson’s previous jobs who was the same age as Johnson, with the same education and
vocational profile, and who was able to perform the full range of light work, except they could
only occasionally stoop and climb stairs, could not climb ladders and could only walk a total of
11
one hour with no more than ten minutes of walking at a time. (Tr. 65). Prior to answering,
Manzi confirmed that the hypothetical included no additional standing limitation. (Tr. 66).
Manzi testified that such an individual would be unable to perform the previously-identified jobs,
but would be able to perform other positions in the national and local economy, including
cashier II and information clerk. (Id.).
The ALJ then asked Manzi to assume an individual with the same limitations,
except that they were limited to sedentary, as opposed to light, work. (Id.). Manzi testified that
such an individual could perform positions in the national and local economy, including
telephone quotation clerk and charge account clerk. (Tr. 66-67). The ALJ then asked Manzi to
assume an individual with the same limitations, except that the individual would need to nap for
approximately one hour during an eight-hour work shift. (Tr. 67). Manzi testified that such an
individual could perform positions existing in the national and local economy, including table
worker and general assembler. (Tr. 67-68). Finally, the ALJ asked Manzi whether jobs existed
for an individual with the same limitations, except that the individual would be off-task
approximately twenty percent of the time. (Id.). Manzi testified that such an individual could
not perform any work in the economy. (Tr. 68).
DISCUSSION
I.
Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s
determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
12
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
13
A person is disabled for the purposes of SSI and disability benefits if he or she is
unable “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§§ 423(d)(1)(A) & 1382c(a)(3)(A). When assessing whether a claimant is disabled, the ALJ
must employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982) (per curiam). The five steps are:
(1)
whether the claimant is currently engaged in substantial
gainful activity;
(2)
if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
(3)
if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;
(4)
if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and
(5)
if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
14
A.
The ALJ’s Decision
In his decision, the ALJ followed the required five-step analysis for evaluating
disability claims. (Tr. 23-30). Under step one of the process, the ALJ found that Johnson has
not engaged in substantial gainful activity since the alleged onset date. (Tr. 25). At step two, the
ALJ concluded that Johnson has the severe impairments of low back pain, anemia and status post
right ankle tumor surgery. (Id.). At step three, the ALJ determined that Johnson does not have
an impairment (or combination of impairments) that meets or medically equals one of the listed
impairments. (Tr. 26). The ALJ concluded that since the alleged onset date of August 1, 2006,
Johnson has the Residual Functional Capacity (“RFC”) to perform sedentary work, except that
she can only occasionally stoop and climb stairs, is unable to climb ladders and can only walk for
a total of one hour for no more than ten minutes at a time. (Tr. 26-28). At steps four and five,
the ALJ determined that since August 1, 2006, Johnson was unable to perform her prior work,
but that prior to December 19, 2011, other jobs existed in the national and regional economy that
Johnson could perform, including the positions of telephone quote clerk and charge account
clerk. (Tr. 28-29). Accordingly, the ALJ found that Johnson was not disabled prior to December
19, 2011. (Id.). The ALJ further determined that Johnson’s age category changed on December
19, 2011 and that, as of that date, considering her age, education, work experience and RFC,
there were no jobs in the national economy that Johnson could perform. (Tr. 30). Accordingly,
the ALJ found that Johnson became disabled on December 19, 2011. (Id.).
B.
Johnson’s Contentions
Johnson challenges the ALJ’s determination on three grounds. First, she argues
that the ALJ committed legal error in determining the disability onset day. (Docket # 10-1 at
11-16). Next, she maintains that the ALJ’s conclusion that Johnson could only walk for a total
15
of one hour is inconsistent with the ALJ’s conclusion that Johnson could perform the
requirements of sedentary work. (Id. at 16-19). Finally, Johnson contends that the ALJ’s
opinion is not based upon substantial evidence because it relied upon a vague opinion provided
by Eurenius. (Id. at 19-20).
II.
Analysis
A.
Disability Onset Date
Johnson argues that the ALJ arbitrarily determined that her disability onset date
was December 19, 2011. (Id. at 11-16). She contends that the ALJ committed legal error
because he failed to follow Social Security Ruling 83-20, which provides guidance concerning
how to determine the onset date of disabilities. (Id.). According to Johnson, because her case
involves a disability without a sudden or traumatic origin, the ALJ should have considered her
allegations concerning the timing of the onset, her work history, and the medical evidence
concerning the impairment’s severity. (Id. (citing SSR 83-20, 1983 WL 31249 (1983) and
Martinez v. Barnhart, 262 F. Supp. 2d 40, 45 (W.D.N.Y. 2003)). The government maintains that
the ALJ in fact conducted the proper analysis in determining that Johnson’s onset date was
December 19, 2011. (Docket # 12 at 12-15).
Contrary to Johnson’s contention, the ALJ did not arbitrarily determine her
disability onset date; rather, he determined that her age category changed six months prior to her
fiftieth birthday (December 19, 2011) and that, by virtue of her age category change, she became
disabled on that date under the Medical-Vocational Guidelines (the “Grids”).
The Grids divide claimants into specific categories according to their age,
transferability of skills and RFC. See 20 C.F.R. Part 404, Subpt. P, App. 2. The regulations
16
provide for three distinct age categories: (1) “younger person” is an individual between the ages
18 and 49; (2) “person closely approaching advanced age” is an individual between the ages 50
and 54; and, (3) “person of advanced age” is an individual 55 and over. 20 C.F.R.
§§ 404.1563(c)–(e); 416.963(c)-(e). The Grids recognize that individuals who are closely
approaching advanced age “may be significantly limited in vocational adaptability if they are
restricted to sedentary work.” 20 C.F.R. Part 404, Subpt. P, App. 2 at § 201.00(g). Thus, the
Grids generally direct a finding of disability when a person is over fifty years old, can only
perform sedentary work, has no transferable skills and either has no past work experience or can
no longer perform vocationally relevant past work. Id.
The regulations direct that the age category that applies to a claimant during the
period for which they claim disability should be used to determine whether or not the claimant is
disabled. 20 C.F.R. §§ 404.1563(b); 416.963(b). The regulations make clear, however, that the
age categories are not to be applied “mechanically in a borderline situation.” Id. Thus, if a
claimant is within a few days or months of obtaining an older age category, “and using the older
age category would result in a determination or decision that [the claimant] [is] disabled, [the
ALJ] [should] consider whether to use the older age category after evaluating the overall impact
of all the factors of [the claimant’s] case.” Id. Although the “regulations do not clearly define
the outer limits of a borderline situation,” several courts have held that a period of up to six
months is within the rule, see Souliere v. Colvin, 2015 WL 93827, *5 (D. Vt. 2015) (collecting
cases); Metaxotos v. Barnhart, 2005 WL 2899851, *8 (S.D.N.Y. 2005) (“[s]ome courts which
have addressed this regulation have held that six months is within the rule”) (collecting cases).
But see Smolinski v. Astrue, 2008 WL 4287819, *4 (W.D.N.Y. 2008) (“[a]mong the district
courts in the Second Circuit, three months appears to delineate the outer limits of a few months”)
17
(internal quotation omitted), and several courts have held that a period of more than six months
is not, see Gravel v. Barnhart, 360 F. Supp. 2d 442, 446 n.8 (N.D.N.Y. 2005) (collecting cases);
Hunt v. Comm’r of Soc. Sec., 2004 WL 1557333, *5 n.14 (N.D.N.Y. 2004) (eight months not
borderline).
In this case, the ALJ recognized that it was “unclear from the record exactly when
the claimant began experiencing low back pain” and conducted the required sequential analysis
using Johnson’s alleged onset date (August 1, 2006) to determine whether she suffered from any
severe impairments and whether those impairments met any of the listings, to formulate her
RFC, and to determine whether she could perform her past relevant work. (Tr. 25-28).
Specifically, the ALJ concluded that as of August 1, 2006, Johnson suffered from severe
impairments that did not meet the listings, but nevertheless limited her RFC to a degree
preventing her from performing her past work. (Id.).
The ALJ determined that Johnson’s medical condition “became disabling on
December 19, 2011 . . . six months before [Johnson’s] [fiftieth] birthday, but not prior to.”
(Tr. 28). In reaching this determination, the ALJ specifically stated that prior to that time,
Johnson was “a younger individual,” but that on “December 19, 2011, the claimant’s age
category changed to an individual closely approaching advanced age.” (Id. (citing 20 C.F.R.
§§ 404.1563, 416.963)). In other words, the ALJ determined that Johnson was not disabled prior
to December 19, 2011 because she retained the RFC to perform jobs that existed in the national
and regional economy – a determination that is supported by substantial evidence as discussed
infra. (Tr. 29-30). The ALJ further concluded that, beginning on December 19, 2011, six
months prior to her fiftieth birthday, Johnson became disabled because that was “the date the
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claimant’s age category changed” and, by application of the Grids, a finding of disability was
warranted. (Id. (citing Medical-Vocational Rule 201.14)).
The ALJ could have more clearly explained that he was refraining from a
“mechanical” application of the age categories in order to consider whether Johnson should be
determined to fall within the new age category as of six months before her fiftieth birthday. Yet,
a careful review of the ALJ’s decision leaves no doubt that this is precisely what he did.
Accordingly, I conclude that the ALJ’s determination that Johnson became disabled on
December 19, 2011 does not warrant remand.
B.
RFC Assessment
An individual’s RFC is her “maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198
F.3d 45, 52 (2d Cir.1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (1996)). When making an
RFC assessment, the ALJ should consider “a claimant’s physical abilities, mental abilities,
symptomology, including pain and other limitations which could interfere with work activities
on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221 (N.D.N.Y. 2009)
(citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant
evidence, including medical opinions and facts, physical and mental abilities, non-severe
impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue, 2009 WL
1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 380 F. App’x 231 (2d
Cir. 2010).
I turn first to Johnson’s contention that the ALJ’s determination that she could
perform sedentary work is inconsistent with his determination that she was unable to walk for
more than one hour during a workday. Johnson maintains that the walking limitation is
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inconsistent with sedentary work, which requires an individual to be able stand or walk up to two
hours during a workday, and that the hypothetical posed to the vocational expert was thus based
upon a flawed RFC. Johnson is correct about the requirements of sedentary work. See Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996) (“[s]edentary work also generally involves up to two hours
of standing or walking and six hours of sitting in an eight-hour work day”) (citing SSR 83-10,
1983 WL 31251 (1983) and 20 C.F.R. § 404.1567(a)). Yet, as the government correctly notes,
the ALJ’s hypothetical to the vocational expert explicitly contained the one-hour walking
limitation. (Docket # 12 at 16 (citing Tr. 65-66)).
The ALJ’s decision and the transcript from the administrative proceeding
demonstrate that the RFC contains no inconsistency and that the hypothetical posed to the
vocational expert incorporated all of the limitations identified by the ALJ in his RFC assessment.
During the hearing, the ALJ asked the vocational expert to assume a hypothetical individual who
was capable of performing light work “with the following additional limitations: she can . . .
walk a total of one hour, and no more than ten minutes at one time walking.” (Tr. 65). The
vocational expert then clarified that the hypothetical included only a one-hour walking, and not
standing, limitation. (Tr. 65-66). After the clarification, the vocational expert identified jobs at
the light exertional level that could be performed by an individual with those limitations.
(Tr. 66).
The ALJ subsequently asked the vocational expert to assume the same limitations,
except that instead of light work, the individual would have the capacity only for sedentary work.
(Tr. 66-67). Again, the vocational expert identified positions that could be performed at a
sedentary exertional level, with the additional limitations identified by the ALJ. Accordingly,
because the hypothetical posed to the vocational expert explicitly contained a one-hour walking
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limitation, no inconsistency exists between the hypothetical posed to the vocational expert and
the RFC assessed by the ALJ.
Johnson further challenges the ALJ’s hypothetical on the grounds that it did not
account for the standing limitations assessed by Eurenius. Eurenius opined that Johnson would
have some limitation for “prolonged standing” and for “walking more than two city blocks.”
(Tr. 276). Johnson testified that she was able to stand longer than she could walk. (Tr. 54-55).
Consistent with Eurenius’s opinion and Johnson’s testimony, the ALJ asked the vocational
expert to assume an individual who could perform sedentary work (which would limit the
individual to walking and standing no more than two hours per workday) and to assume a further
limitation that the individual’s ability to walk was limited to no more than one hour total during
the workday (and no more than ten minutes at a time), but to stand was not otherwise limited.
(Tr. 65-66). Accordingly, the hypothetical to the vocational expert incorporated a two-hour
standing limitation, which was consistent with the prolonged standing limitation assessed by
Eurenius. See Carroll v. Colvin, 2014 WL 2945797, *4 (W.D.N.Y. 2014) (“several courts have
upheld an ALJ’s decision that the claimant could perform light or sedentary work even when
there is evidence that the claimant had moderate difficulties in prolonged sitting or standing”).
I likewise reject Johnson’s remaining challenges to the ALJ’s RFC assessment. I
disagree with Johnson that Eurenius’s opinion assessing some limitation for bending is
inconsistent with a determination that Johnson can perform the requirements of sedentary work.3
See Nelson v. Colvin, 2014 WL 1342964, *12 (E.D.N.Y. 2014) (“the ALJ’s determination that
3
Johnson correctly notes that sedentary work requires only occasional “stooping.” See SSR 96-9p, 1996
WL 374185, *8 (1996). Stooping means to “bend[] the body downward and forward by bending the spine at the
waist.” See SSR 83-14, 1983 WL 31254, *2 (1983). According to the guidance, a “restriction to occasional
stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work.” See SSR
96-9p, 1996 WL 374185 at *8. In any event, the ALJ’s RFC explicitly limited Johnson to only occasionally
stooping. (Tr. 26).
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[p]laintiff could perform ‘light work’ is supported by [the doctor’s] assessment of a ‘mild to
moderate limitation for . . . bending’”). I further reject her challenge that Eurenius’s opinion is
impermissibly vague. Although an expert opinion may describe a claimant’s impairments in
terms that are so vague as to render the opinion useless, see Selian v. Astrue, 708 F.3d 409, 421
(2d Cir. 2013), the use of vague phrases by a consultative examiner does not automatically
render an opinion impermissibly vague. See Rosenbauer v. Astrue, 2014 WL 4187210, *16
(W.D.N.Y. 2014) (collecting cases). In this case, Eurenius provided an assessment after
conducting a thorough examination of Johnson. During the examination, Eurenius noted that
Johnson did not appear to be in acute distress, was able to stand on her toes with difficulty, squat
halfway, had a normal stance and a mild limp, had full flexion, extension, lateral flexion and full
rotary movement in her cervical spine and had some flexion and range of motion limitations in
her lumbar spine. (Tr. 274-75). Accordingly, Eurenius’s opinion that Johnson would have some
limitations “was based upon medical examination, evaluation and observation, and the ALJ thus
properly relied upon Eurenius’s opinion to support [his] RFC assessment.” See Rosenbauer v.
Astrue, 2014 WL 4187210 at *17 (collecting cases). Accordingly, I conclude that the ALJ’s
physical RFC determination is supported by substantial evidence.
CONCLUSION
This Court finds that the Commissioner’s denial of SSI/DIB was based on
substantial evidence and was not erroneous as a matter of law. Accordingly, the ALJ’s decision
is affirmed. For the reasons stated above, the Commissioner’s motion for judgment on the
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pleadings (Docket # 13) is GRANTED. Johnson’s motion for judgment on the pleadings
(Docket # 10) is DENIED, and Johnson’s complaint (Docket # 1) is dismissed with prejudice.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
March 24, 2015
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