Salaman Diaz v. Commissioner of Social Security
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Government's Motion for Judgment on the Pleadings and dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/27/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MEIDELYN SALAMAN DIAZ,
DECISION AND ORDER
No. 13-CV-6641(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Pro se Plaintiff, Meidelyn Salaman Diaz (“Plaintiff”), brings
this action under Title XVI of the Social Security Act (“the Act”),
claiming that the Commissioner of Social Security (“Commissioner”
or “Defendant”) improperly denied her application for supplemental
security income (“SSI”). Presently before the Court is Defendant’s
unopposed motion for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure.
PROCEDURAL HISTORY
On November 22, 2010, Plaintiff filed an application for SSI,
alleging disability as of January 1, 1994 due to depression and
vision problems.
Her application was denied on May 5, 2011.
Administrative Transcript [T.] 71.
At Plaintiff’s request, a
hearing was held on April 17, 2012, via videoconference, before
administrative
law
judge
(“ALJ”)
John
P.
Costello,
Plaintiff and a vocational expert (“VE”) testified.
at
which
T. 38-59, 97-
106.
On May 21, 2012, the ALJ issued a decision finding that
Plaintiff was not disabled during the relevant period.
T. 13-20.
On September 27, 2013, the Appeals Councils denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.
T. 1-5.
This action followed.
FACTUAL BACKGROUND
Plaintiff,
testified
Spanish.
that
who
was
age
25
at
the
she
did
not
understand
time
of
English
the
and
hearing,
preferred
At the hearing, the ALJ noted that a Spanish interpreter
was present and that Plaintiff was pro se as her representative had
withdrawn.
T. 40-41.
Although the ALJ offered to adjourn the
hearing in order for her to obtain representation, Plaintiff
elected to proceed with the hearing and executed a waiver of
representation.
T. 155, 55.
Plaintiff testified that she was single, lived with her two
children, and had never worked.
T. 45-46.
She testified that she
was born in Puerto Rico, moved to the continental United States,
and attended school through the ninth grade.
According
to
Plaintiff,
she
was
T. 46.
unable
depression, anxiety, and a vision problem.
to
work
due
to
T. 47, 50, 52, 54.
Relevant Medical Evidence Prior to the Application Filing Date
Prior to November 22, 2010, Plaintiff was seen at Unity Family
Medicine at Orchard Street (“UFM”) and Strong Memorial Hospital for
depression, abdominal pain (related to gallstones), and a deviated
nasal septum.
T. 213-232.
She was also seen at Unity Hospital
-2-
Outpatient Mental Health Clinic (“UMH”), complaining of anxiety,
stress, and difficulty sleeping.
T. 258-261.
In March 2009,
Plaintiff was diagnosed with depressive disorder and assessed a
Global Assessment Functioning (“GAF”) score of 65.
T. 257.
In May 2009, Plaintiff underwent a psychiatric examination at
St.
Mary’s
Mental
Health
Outpatient
Clinic
(“St.
Mary’s).
Treatment notes show Plaintiff’s mental health “problem list”
included
psychosis.
anxiety,
behavioral
problems,
depressed
mood
and
She was treated with Paxil and Trazadone medications.
T. 275.
In July 2009, Plaintiff underwent a consultative examination
by psychologist Margaret Baittle, Ph.D., who diagnosed Plaintiff
with depressive disorder, panic disorder with agoraphobia, and mild
mental retardation with a full scale IQ of 65.
T. 392.
In August 2009, opthalmologist Ralph S. Viola, M.D. performed
an examination of Plaintiff and assessed that her corrected left
eye vision was 20/40 and the right eye had low vision.
Dr. Viola
assessed that Plaintiff’s left eye had full visual fields and the
right did not.
Dr. Viola also reported that there was evidence of
keratoconus with steepening and scarring in both eyes, but more so
in the right eye.
T. 394.
In November 2010, Plaintiff was seen at UMH by Kathy Calnan,
NPP (“Calnan”), at which time Plaintiff reported feeling increased
anxiety due to her daughter’s upcoming liver transplant.
conducted
an mental
exam
of
Plaintiff and
-3-
reported
Calnan
that her
thoughts were logical and coherent, her mood was congruent, her
insight was superficial, she was fully oriented and alert, she had
no apparent cognitive deficit, and her judgment was good.
T. 279.
Relevant Medical Evidence from November 22, 2010 to May 21, 2012
In
April
2011,
psychologist
Christina
Caldwell,
Ph.D.
performed a consultative examination of Plaintiff and assessed that
Plaintiff: was able to follow and perform simple directions and
instructions and perform simple tasks independently;
maintain
attention
and
concentration;
was
was able to
unable
to
relate
adequately with others and deal with stress; and was limited in her
ability to maintain a schedule, learn new tasks, make appropriate
decision, and perform tasks independently.
Dr. Caldwell diagnosed
depressive disorder, panic disorder with agoraphobia, and psychotic
disorder.
“fair.”
T. 289-292.
Plaintiff’s prognosis was assessed as
T. 292.
On April 19, 2011, Plaintiff was seen at UFM by Robin Baines,
M.D., at which time she was diagnosed with depression and referred
to UMH for care.
On
April
T. 327.
21,
2011,
Plaintiff
met
with
Dr.
Viola
again,
complaining of eye glare, blurry vision, an itchy right eye, and
mild headaches. T. 293. Dr. Viola examined Plaintiff and reported
that Plaintiff’s best corrected vision in her left eye was 20/60.
T. 293.
Dr. Viola noted that there was evidence of keratoconus
with steepening and scarring more so on the right eye than the left
-4-
eye.
Dr. Viola noted that Plaintiff was able to navigate around
his office without difficulty.
T. 294.
On April 27, 2011,
State Agency physician Ronald Gauthier, M.D. reviewed the record
and reported that Plaintiff’s best corrected vision in her left eye
was 20/60.
Dr. Gauthier assessed that this restricted Plaintiff’s
functioning, but that some use of print media was still possible.
He assessed that Plaintiff “has intact visual fields and can avoid
all but concentrated hazards.”
T. 299.
In May 2011, State Agency psychologist R. Nobel reviewed the
record and assessed that Plaintiff had depressive disorder and
panic disorder.
activities
of
T. 302-317.
daily
living
Nobel
were
opined
mildly
that
impaired,
Plaintiff’s
her
social
functioning and maintaining concentration, persistence and pace
were moderately impaired, and that she had one or two episodes of
extended deterioration.
T. 314.
Nobel assessed that Plaintiff
could perform work related tasks “in a setting requiring only
superficial contact with others.”
T. 302.
In May and June 2011,
Plaintiff met with LMSW Joann Rodriguez (“Rodriguez”) to re-start
mental health treatment, as she had stopped same due to her
daughter’s poor health.
T. 357-358, 363, 370.
Plaintiff reported
to Rodriguez that she felt depressed, had recently had panic
attacks, and had problems sleeping.
and Trazodone.
T. 357-358.
Plaintiff continued on Paxil
Rodriguez reported that Plaintiff had
an anxious mood, but was otherwise normal.
-5-
T. 362-363, 371-372.
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.
Section 405 (g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g)(2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
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) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
Section 405 (g) limits the scope of the Court’s review to two
inquiries: determining whether the Commissioner’s findings were
supported by substantial evidence in the record as a whole, and
whether the Commissioner’s conclusions are based upon an erroneous
legal standard.
Green-Younger v. Barnhart, 335 F.3d 99, 105-06
(2d Cir. 2003); see also Mongeur v. Heckler, 722 F.2d 1033, 1040
(2d Cir.1983) (finding a reviewing court does not try a benefits
case de novo).
-6-
Under Rule 12(c), judgment on the pleadings may be granted
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, 642
(2d Cir. 1988).
A party’s motion will be dismissed if, after a
review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.”
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
When, as here, the Court is presented with an unopposed
motion, it may not find for the moving party without reviewing the
record and determining whether there is sufficient basis for
granting the motion.
See Wellington v. Astrue, No. 12 Civ.
03523(KBF), 2013 U.S. Dist. LEXIS 67883, 2013 WL 1944472, at *2
(S.D.N.Y. May 9, 2013) (recognizing, in an action appealing the
denial of disability benefits, a court’s obligation to review the
record before granting an unopposed motion for judgment on the
pleadings).
“Although . . . failure to respond ‘may allow the
district court to accept the movant’s factual assertions as true,
the moving party must still establish that the undisputed facts
entitle him to a judgment as a matter of law.’”
McDowell v.
Commissioner, No. 08-CV-1783 (NGG), 2010 U.S. Dist. LEXIS 128114,
2010 WL 5026745, at *1 (E.D.N.Y. 2010) (quoting Vt. Teddy Bear Co.
v.
1-800
BEARGRAM
Co.,
373
F.3d
241,
246
(2d
Cir.
2004)).
Additionally, “[p]ro se litigants ‘are entitled to a liberal
-7-
construction of their pleadings,’ and therefore their complaints
‘should
be
suggest.’”
read
to
raise
the
strongest
arguments
that
they
Emerson v. Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS
41413, 2014 WL 1265918, at *9 (quoting Green v. United States, 260
F.3d 78, 83 (2d Cir. 2001));
see also Alvarez v. Barnhart, No. 03
Civ. 08471(RWS), 2005 U.S. Dist. LEXIS 472, 2005 WL 78591, at *1
(S.D.N.Y. Jan. 12, 2005) (describing liberal pro se standard in
reviewing denial of disability benefits).
II.
The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence in the Record
The Social Security Administration has promulgated a five-step
sequential analysis that the ALJ must adhere to for evaluating
disability claims.
20 C.F.R. § 404.1520.
The ALJ in this case
used this five-step sequential procedure to determine Plaintiff’s
eligibility
for
disability
benefits.
The
ALJ
found
that:
Plaintiff did not engage in substantial gainful activity since
November 22, 2010, the application date;
that Plaintiff had the
severe impairments of anxiety, attention deficit hyperactivity
disorder (“ADHD”), and poor vision in the right eye, but that
Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the Listed
Impairments; that Plaintiff had the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels
except that she cannot perform work requiring intact near visual
acuity, she can understand, remember and perform simple work, and
-8-
she can have occasional interaction with the general public and
coworkers; that Plaintiff has no past relevant work; and that,
considering Plaintiff’s age, education, work experience and RFC,
there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform, including hand packager and
cleaner.
T. 14-19.
Therefore, the ALJ concluded that Plaintiff
was not disabled during the relevant period.
T. 19-20.
Because the ALJ’s determinations at steps one and two do not
negatively affect Plaintiff’s application for benefits and because
Defendant does not challenge these determinations, the Court will
address the ALJ’s determinations only as to steps three through
five.
The Court finds, however, based on a review of the entire
administrative record, that the ALJ’s determinations at all steps
are supported by substantial evidence.
A.
Step 3: Listed Impairment
At step 3, the ALJ determined that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the Listed Impairments in 20 C.F.R.
Pt. 404, Subpt. P, App’x 1 (20 C.F.R. §§ 416.920(d), 416.925,
416.926).
T. 15.
The ALJ concluded that Plaintiff’s mental impairments of
anxiety and ADHD did not satisfy the paragraph B requirements under
section 12.04 (affective disorders) or 12.06 (anxiety disorders).
To satisfy paragraph B, Plaintiff’s impairments had to result in
two of the following: (1) marked restriction of activities of daily
-9-
living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence,
or pace; or (4) repeated episodes of decompensation, each of
extended duration.
20 C.F.R. Pt. 404, Subpt. P, App’x 1 at
§ 12.04(B).
First, the ALJ determined that Plaintiff’s restrictions in
activities of daily living were mild (T. 15) because Plaintiff was
able to care for herself, her home, and her two young children, one
of whom has serious medical concerns.
T. 53-54, 197-200, 291.
Next, the ALJ determined that Plaintiff’s restrictions in
social functioning were mild.
T. 15.
The ALJ acknowledged that
while Plaintiff has problems relating to people in crowded or
public situations, she still socializes with family and friends.
T.
16,
291,
392.
Additionally,
Dr.
Caldwell
reported
that
Plaintiff was cooperative with adequate social skills and manner of
relating and was able to handle simple matters, although she was
sometimes overwhelmed.
T. 291.
With respect to concentration, persistence or pace, the ALJ
found that Plaintiff had moderate difficulties.
this
finding,
the
cognitive deficits.
to
understand,
independently.
ALJ
acknowledged
that
T. 16.
Plaintiff
In making
has
some
However, he also noted that Plaintiff is able
remember
T. 16.
and
carry
out
simple
instructions
Specifically, Dr. Caldwell assessed that
Plaintiff was able to maintain attention and concentration, follow
and perform simple directions and instructions and perform simple
-10-
tasks independently.
T. 392.
Likewise, Dr. Baitlle opined that
Plaintiff was able to follow and perform simple directions and
tasks.
T. 358.
The ALJ then determined that Plaintiff had experienced no
episodes of decompensation which have been of extended duration.
T. 16.
Although the evidence in the record shows that Plaintiff
reported having been hospitalized in 1998 for a mental condition,
subsequent treatment records show that Plaintiff never received inpatient psychiatric treatment.
Further, Plaintiff’s treatment
records
mental
show
overall
that
her
health
conditions
were
conservatively managed with outpatient therapy treatments with a
social worker and minimal medication.
T. 277, 280, 284-287, 289,
357-358, 363.
Because Plaintiff’s mental impairments did not result in more
than
two
areas
of
marked
restriction
or
one
area
of
marked
restriction and repeated episodes of decompensation, Plaintiff did
not satisfy the Paragraph “B” criteria.
The ALJ also considered whether the paragraph C criteria of
listings 12.04 and 12.06 were met.
Paragraph C requires:
Medically documented history of a chronic
affective disorder of at least 2 years’
duration . . . and one of the following: (1)
Repeated episodes of decompensation, each of
extended duration; or (2) A residual disease
process that has resulted in such marginal
adjustment that even a minimal increase in
mental demands or change in the environment
would be predicted to cause the individual to
decompensate; or (3) Current history of 1 or
more years’ inability to function outside a
highly supportive living arrangement, with an
-11-
indication of
arrangement.
continued
need
for
such
an
20 C.F.R. Part 404, Subpt. P, App’x 1 at §§ 12.04(C), 12.06(C). The
ALJ
noted
that
Plaintiff
does
not
experience
episodes
of
deterioriation and does not need to be in a highly supportive
environment to avoid such episodes.
T. 16.
As discussed above,
this finding is supported by the evidence that, during the relevant
period, Plaintiff’s mental health condition was generally stable,
she received conservative mental health treatment, and was never
hospitalized.
It is also supported by the evidence that Plaintiff
lived alone, cared for herself and her two young children, and
socialized, to some extent, with family and friends.
the Paragraph C criteria were not met.
Therefore,
Having failed to satisfy
the Paragraph B or Paragraph C criteria, the ALJ concluded that
Plaintiff did not have a listing-level impairment.
With respect to Plaintiff’s vision problems, the ALJ did not
expressly consider Listing 2.00 (Special Senses), which includes
visual impairments. Nonetheless, any error in failing to do so was
harmless given that the ALJ’s conclusion that Plaintiff did not
have a Listed Impairment is supported by substantial evidence.
Specifically, under the Regulations, sections 2.02 - 2.04 of
Listing 2.00 outline the conditions required to establish a visual
impairment.
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 2.02-2.04.
To
constitute a Listed Impairment, Plaintiff must suffer from a
“[l]oss of central visual acuity,” characterized by “[r]emaining
vision in the better eye after best correction [being] 20/200 or
-12-
less.”
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 2.02.
Impairment
can also arise from “[c]ontraction of the visual field in the
better eye.”
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 2.03.
Last,
impairment can arise from “[l]oss of visual efficiency, or visual
impairment, in the better eye.”
App. 1, § 2.04.
20 C.F.R., Pt. 404, Subpt. P,
Plaintiff’s vision problem
does not satisfy these
requirements given that the evidence in the record shows that
Plaintiff’s best corrected vision in the left eye was either 20/40
or 20/60 and that she retained full visual fields in her left eye.
T. 293, 294, 299, 294, 381.
Accordingly,
the
Court
finds
that
the
ALJ’s
step
3
determination is proper as a matter of law and is supported by
substantial evidence.
(B)
1.
Step 4: RFC
The ALJ’s RFC Assessment
The ALJ found that Plaintiff had the RFC “to perform a full
range of work at all exertional levels but with the following nonexertional limitation: she cannot perform work requiring intact
near visual acuity.
simple work.
She can understand, remember and perform
She can have occasional interaction with the general
public and coworkers.”
T. 16.
Initially, the ALJ determined that Plaintiff had no exertional
limitations and could perform all levels of work because there was
no evidence in the record that Plaintiff suffered from any physical
impairment, except for her vision problem.
-13-
Specifically, the
clinical physical examination findings from before and after the
relevant time period were either mild or entirely unremarkable.
T. 235-236, 337-339.
Additionally, in her disability application,
Plaintiff denied any significant physical problems or functional
limitations, except that she required eyeglasses.
T. 201-202.
With respect to Plaintiff’s non-exertional limitations, the
ALJ found that Plaintiff was limited to work that did not require
intact near visual acuity.
T. 16.
This finding was supported by
the treatment notes of opthamologist Dr. Viola and the opinion of
State Agency physician Dr. Gauthier.
Specifically, Dr. Viola
reported in August 2009 that Plaintiff’s best-corrected vision in
her left eye was 20/40 and her right eye had “severely decreased
vision.” T. 18, 394.
Dr. Viola diagnosed keratoconus in the right
eye, but noted that Plaintiff navigated around the office without
apparent problem.
T. 18, 394.
In April 2011, Dr. Viola examined
Plaintiff again and reported that Plaintiff’s best-corrected vision
in her left eye was 20/60.
T. 293, 294.
He also reported that
Plaintiff’s visual field was full to confrontation in her left eye,
but not her right.
T. 294.
He
noted Plaintiff’s “long history of
keratoconus which is worse in the right eye and most likely the
cause of her decreased vision.”
Plaintiff
was
difficulty.”
“seen
T.
294.
navigating
T. 294.
about
Moreover, State
Again, he noted that
the
office
Agency
without
physician Dr.
Gauthier reviewed the evidence in the record in April 2011 and
noted that Plaintiff’s best-corrected vision was 20/60.
-14-
T. 299.
He
assessed
that
Plaintiff’s
vision
problem
was
a
“severe
impairment” that “will not allow frequent use of fi[n]e vision” but
that “[s]ome use of print media is still possible.”
T. 299.
Indeed, the opinion of a non-examining source, such as a state
agency physician, can constitute substantial evidence in support of
an ALJ’s determination where, as here, it is consistent with the
record as a whole.
See Leach ex. Rel. Murray v. Barnhart, No. 02
Civ. 3561, 2004 U.S. Dist. LEXIS 668, 2004 WL 99935, at *9
(S.D.N.Y. Jan. 22, 2004) (“State agency physicians are qualified as
experts in the evaluation of medical issues in disability claims.
As such, their opinions may constitute substantial evidence if they
are consistent with the record as a whole.”);
Hickman ex rel.
M.A.H. v. Astrue, 728 F. Supp. 2d 168, 178 (N.D.N.Y. 2010) (same).
With
respect
to
Plaintiff’s
mental
limitations,
the
ALJ
determined that Plaintiff “can understand, remember and perform
simple work [and] she can have occasional interaction with the
general public and coworkers.”
T. 16.
The ALJ’s finding was
supported by the objective evidence in the record, as well as the
opinions of consultative physicians Dr. Baittle and Dr. Caldwell,
and State Agency psychological consultant Nobel.
See generally
Diaz, 59 F.3d 307, 315 (2d Cir. 1995) (opinions of consultative and
State Agency
physicians
can
constitute
substantial
evidence);
Mongeur, 722 F.2d at 1039 (2d Cir. 1983) (same).
Specifically,
Plaintiff
St. Mary’s since 2009.
T. 17.
was
treated
for
depression
at
However, as the ALJ noted, there
-15-
was no evidence in the record that Plaintiff had been considered
unable to work at any point in her mental health treatment history.
See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (the ALJ
“is entitled to rely not only on what the record says, but also on
what it does not say.”).
Further, Dr. Baittle performed a consultative psychiatric
examination of Plaintiff in July 2009.
Dr. Baittle noted that
Plaintiff reported problems with sleeping, depression, loss of
interest and low self-esteem, fatigue, memory and concentration
problems, and panic attacks.
T. 390-391.
Dr. Baittle noted that
Plaintiff was taking medication for panic attacks and that this
medication helped to some extent.
T. 391.
Dr. Baittle reported
that Plaintiff: had good orientation and clear sensorium; was able
to follow and perform simple directions and perform simple tasks;
that
she
was
not
always
able
to
maintain
attention
and
concentration; and that she had difficulty learning new tasks and
making appropriate decisions.
Dr. Baittle reported that Plaintiff
did not relate “too well” with others or deal appropriately with
stress.
T. 392.
Likewise,
consultative examiner
Dr.
Caldwell
performed
a
mental status examination of Plaintiff in April 2011 and reported
that Plaintiff was cooperative with adequate social skills and
manner
of
relating.
T.
290.
Dr.
Caldwell
reported
that:
Plaintiff’s thought processes were coherent and goal-directed;
there was no evidence of delusions, hallucinations, or paranoia;
-16-
and
that
her
Additionally,
affect
Dr.
was
Caldwell
full
and
reported
her
that
mood
was
Plaintiff
neutral.
was
fully
oriented with clear sensorium, her attention and concentration were
intact, cognitive functioning was average to below average, and her
insight and judgment were fair. Dr. Caldwell opined that Plaintiff
was able to follow and perform simple directions and instructions
and perform simple tasks independently, although she was unable to
relate adequately with others and deal with stress.
Dr. Caldwell
opined that Plaintiff was limited in her ability to maintain a
schedule, learn new tasks, make appropriate decisions, and perform
complex tasks independently.
T. 291.
Finally, State Agency psychological consultant Nobel reviewed
the evidence in the record in May 2011 and reported that Plaintiff
had “moderate limitations” with respect to her social functioning
and maintaining concentration, persistence or pace, and that she
had “mild limitations” with respect to activities of daily living.
He opined that while Plaintiff had a severe impairment, she could
still perform work-related tasks in a setting that required only
“superficial contact” with others.
T. 302, 314.
Accordingly, the Court finds that the ALJ’s RFC finding was
proper as a matter of law and supported by substantial evidence.
2.
The ALJ’s Credibility Assessment
Additionally,
the
ALJ
properly
credibility in determining her RFC.
-17-
assessed
Plaintiff’s
The ALJ noted that Plaintiff
“alleges depression, anxiety, and a vision problem that prevent her
from working.” T. 17. According to Social Security Administration
Regulations, an individual’s subjective complaints alone should not
be conclusive
evidence of disability. 20 C.F.R. § 416.929(b). If
a claimant alleges symptoms of greater severity than established by
the
objective
evidence,
medical
including
findings,
factors
the
such
ALJ
as
will
the
consider
claimant’s
other
daily
activities, the nature, extent, and duration of her symptoms,
precipitating and aggravating factors, and the treatment provided.
20 C.F.R. § 416.929(c)(3).
A credibility finding by an ALJ is entitled to deference by a
reviewing court and will be set aside only if it is not set forth
“with sufficient specificity to enable [a reviewing court] to
decide
whether
[it]
is
supported
by
substantial
evidence.”
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Here, the ALJ followed the two-step process in considering in
Plaintiff’s allegations of disabling symptoms.
that
Plaintiff’s
medically
determinable
The ALJ concluded
impairments
could
reasonably be expected to cause her symptoms, but her statements
concerning the intensity, persistence, and limiting effects were
not credible in light of the evidence in the record.
T. 17.
While the ALJ used disapproved “boiler plate” language in
rejecting Plaintiff’s statements as incredible when he explicitly
stated
that
“they
are
inconsistent
-18-
with
the
above
residual
functional capacity assessment,” (see e.g., Cruz v. Colvin, 12 Civ.
7346 (PAC)(AJP), 2013 U.S. Dist. LEXIS 93312, 2013 WL 3333040, at
*16 (S.D.N.Y. July 2, 2013) rep. and rec. adopted by 2014 U.S.
Dist. LEXIS 23782, 2014 WL 774966 (S.D.N.Y. Feb. 21, 2014) (“The
ALJ’s
conclusory
reasoning
is
unfair
to
the
claimant,
whose
subjective statements about his symptoms are discarded if they are
not compatible with an RFC that has been predetermined based on
other factors.”)) the ALJ did not rely solely on this justification
for his credibility findings. Rather, the ALJ explained the parts
of the record that contradicted Plaintiff’s assertions regarding
the intensity and severity of her impairments.
ALJ
pointed
out
that
while
Plaintiff
For example, the
testified
that
“she
experiences panic attacks that include a rapid heartbeat,” she also
testified that this happens when she does not take her medications.
T. 17, 48.
Additionally, the ALJ noted that when this does happen,
she goes to her mother’s home for assistance.
T. 17, 48.
The ALJ
noted further that Plaintiff currently receives therapy for her
mental
health
Trazadone.
condition,
T. 17.
and
is
also
prescribed
Paxil
and
The ALJ noted further that while Plaintiff
claims her mental health conditions prevent her from working, she
also
admits
that
some
of
her
mental
health
problems
are
attributable to being a single mother of two children, one of whom
has health issues.
T. 17.
Therefore, though the ALJ improperly
stated that Plaintiff’s testimony regarding her symptoms was not
-19-
credible because it was not consistent “with the above residual
capacity assessment,” (T. 17) his further analysis regarding the
rest of the medical evidence and other statements made by Plaintiff
are sufficient to satisfy SSR 96-7p, 1996 SSR LEXIS 4’s requirement
that the ALJ carefully consider the rest of the record when making
a credibility determination.
See e.g., Marquez v. Colvin, 12 Civ.
6819 (PKC), 2013 U.S. Dist. LEXIS 146221, 2013 WL 5568718, at *15
(S.D.N.Y. Oct. 9, 2013) (“[T]he ALJ did not merely point to the
conclusions of his own RFC assessment to support his credibility
determination. Rather, he stated his conclusion after an exhaustive
review of plaintiff’s medical records and testimony.”).
Accordingly,
the
Court
finds
that
the
ALJ’s
credibility
determination is proper as a matter of law, and is supported by
substantial evidence.
(C)
Step 5: Work that Exists in Significant Numbers in the
National Economy
At step five, based on Plaintiff’s RFC, age, education, and
work experience, the ALJ found that “there are jobs that exist in
significant numbers in the national economy” that Plaintiff could
perform, namely hand packager and cleaner.
T. 19.
“In the ordinary case, the Commissioner meets his burden at
the
fifth
[V]ocational
step
by
resorting
guidelines.”
Rosa
to
v.
the
applicable
Callahan,
168
[M]edical
F.3d
72,
78
(2d Cir.) (citation and internal quotation marks omitted). Those
guidelines take into account “the claimant’s residual functional
-20-
capacity in conjunction with the claimant’s age, education, and
skill level.” Id. (citation and internal quotation marks omitted).
If,
however,
a
claimant
has
non-exertional
limitations
that
“significantly limit the range of work permitted by his exertional
limitations
then
the
[G]rids
obviously
determine disability status . . . .”
will
not
accurately
Bapp v. Bowen, 802 F.2d 601,
605 (2d Cir. 1986) (citation and internal quotation marks omitted).
In such cases, “the Commissioner must ‘introduce the testimony of
a vocational expert (or other similar evidence) that jobs exist in
the economy which claimant can obtain and perform.’” Rosa, 168 F.3d
at
78
(quoting
Bapp,
802
F.2d
at
603).
A
“significant”
non-exertional limitation is one that results in “the additional
loss of work capacity beyond a negligible one or, in other words,
one that so narrows a claimant’s possible range of work as to
deprive him of a meaningful employment opportunity.”
Bapp, 802
F.2d at 606.
Here, the ALJ found that Plaintiff’s ability to perform work
had
been
compromised
discussion above).
by
T. 19.
non-exertional
limitations
(see
RFC
To determine the extent to which said
limitations eroded the occupational base of work at all exertional
levels, the ALJ relied on the testimony of a VE to determine
Plaintiff’s ability to perform work.
T. 19.
An ALJ is entitled to rely on a VE’s testimony when, as here,
the ALJ’s hypothetical is based on substantial evidence.
-21-
See
McAninch v. Astrue, No. 09-CV-0969(MAT), 2011 U.S. Dist. LEXIS
116236, 2011 WL 4744411, at *21 (W.D.N.Y. Oct. 6, 2011) (“[T]he use
of
hypothetical
questions
to
develop
the
VE’s
testimony
is
permitted, provided that the question incorporates the full extent
of a plaintiff’s physical and mental limitations.”) (citing Dumas
v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983)). A vocational
expert’s “recognized expertise provides the necessary foundation
for his or her testimony.”
Decker v. Astrue, 11 Civ.
5593
(PGG)(GWG), 2013 U.S. Dist. LEXIS 56814, 2013 WL 1694665, at *12
(S.D.N.Y. Apr. 19, 2013)
[*57] rep. and rec. adopted by 2013 U.S.
Dist. LEXIS 128363, 2013 WL 4804197 (S.D.N.Y. Sept. 9, 2013)
(citation and quotation marks omitted).
At the hearing, the ALJ introduced to the VE the following
potential limitations affecting Plaintiff: she cannot do work
requiring intact near visual acuity; she is limited to simple
tasks; she is limited to interaction on an occasional basis with
co-workers
and
the
general
public.
When
considering
these
limitations, the VE identified two jobs (hand packager and cleaner)
available in significant numbers in the national and regional
economies that Plaintiff could perform.
T. 19, 56-57.
While the VE testified that being “off task” twenty percent of
the time would prohibit an individual from performing any work in
the economy (T. 57), the ALJ did not include this restriction in
Plaintiff’s RFC.
Given the ALJ’s reliance on the testimony of a VE
-22-
and the use of the same limitations described in the RFC, the ALJ’s
determination at step five is proper as a matter of law and is
supported by substantial evidence.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted (Dkt. No. 10), and the Complaint (Dkt. No. 1) is dismissed
in its entirety with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
June 27, 2014
Rochester, New York
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