Patterson v. Colvin
Filing
11
DECISION & ORDER After careful review of the entire record, 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. The Commissioner's motion for judgment on the pleadings 9 is granted. Patterson's motion for judgment on the pleadings 8 is denied, and Patterson's complaint 1 is dismissed with prejudice. Signed by Hon. Marian W. Payson on 8/26/2015. (KAH) -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
BETH PATTERSON,
DECISION & ORDER
Plaintiff,
14-CV-6224P
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Beth Patterson (“Patterson”) 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 # 3).
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 ## 8, 9). For the
reasons set forth below, this Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and complies with applicable legal standards. Accordingly,
the Commissioner’s motion for judgment on the pleadings is granted, and Patterson’s motion for
judgment on the pleadings is denied.
BACKGROUND
I.
Procedural Background
Patterson protectively filed for SSI/DIB on February 1, 2011, alleging disability
beginning on December 31, 2010, as a result of anxiety, depression, a learning disability and
asthma (Tr. 176, 200).1 On May 11, 2011, the Social Security Administration denied both of
Patterson’s claims for benefits, finding that she was not disabled.2 (Tr. 74-75). Patterson
requested and was granted a hearing before Administrative Law Judge John P. Costello (the
“ALJ”). (Tr. 33, 95-96, 107). The ALJ conducted a hearing on May 7, 2012. (Tr. 33-73).
Patterson was represented at the hearing by her attorney, Justin Goldstein, Esq. (Tr. 33, 132). In
a decision dated July 25, 2012, the ALJ found that Patterson was not disabled and was not
entitled to benefits. (Tr. 18-28).
On March 13, 2014, the Appeals Council denied Patterson’s request for review of
the ALJ’s decision. (Tr. 1-4). In the denial, the Appeals Council noted that the ALJ’s decision
contained two typographical errors. (Tr. 2). First, the Appeals Council stated that although the
decision indicated that Patterson met the disability insured status requirements through
December 31, 2015, she actually met the requirements through December 31, 2016. (Id.).
Additionally, the Appeals Council noted that although the ALJ’s decision stated that no records
were received after the hearing, the record made clear that additional records were submitted
after the hearing. (Id.). The Appeals Council cited pages of the ALJ’s decision which
referenced the additional materials. (Id.).
1
The administrative transcript shall be referred to as “Tr. __.”
2
Patterson previously applied for and was denied benefits in a decision dated September 5, 2008.
(Tr. 177).
2
II.
Relevant Medical Evidence3
A.
Treatment Records
1.
Unity Internal Medicine
Treatment notes indicate that Patterson attended an appointment with Thomas
Pastor (“Pastor”), MD, on January 27, 2011. (Tr. 379-81). She complained of worsening
depression, stress, difficulty sleeping and feeling overwhelmed. (Id.). According to the
treatment notes, Patterson had previously received therapy at the Evelyn Brandon location of
Unity Mental Health (“Evelyn Brandon”). (Id.). Pastor prescribed citalopram and Wellbutrin
and referred Patterson to Evelyn Brandon to resume treatment. (Id.).
2.
Evelyn Brandon
Treatment records indicate that Patterson attended a mental health evaluation at
Evelyn Brandon on March 17, 2011. (Tr. 441-53). Patterson was referred for treatment by her
primary care physician, who had prescribed her bupropion and citalopram. (Id.). According to
the treatment notes, Patterson had previously completed the intake process at Evelyn Brandon in
2010, but had failed to attend psychotherapy sessions. (Id.). Patterson reported that her failure
to attend treatment was due to her work schedule. (Id.).
Patterson reported that she had experienced depression for the previous six years.
(Id.). She attributed her depression to her learning disability and her inability to attend college.
(Id.). She stated that she had been working full-time as a housekeeper, but was currently
working only weekends due to her depression. (Id.). Patterson reported that she had a
nine-year-old son and that she enjoyed going to the gym and to the movies. (Id.). Patterson
appeared in appropriate attire and exhibited normal speech, logical and coherent thought form,
normal perception, depressed mood, constricted and depressed affect and good insight and
3
Those portions of the treatment records that are relevant to this decision are recounted herein.
3
judgment. (Id.). She was diagnosed with major depressive disorder, recurrent, moderate, and a
learning disability. (Id.). She was assessed a Global Assessment of Functioning (“GAF”) 58 and
was referred for treatment with a licensed clinical social worker. (Id.).
Patterson attended two therapy sessions with Wanda Ewer (“Ewer”), LMSW, in
March and May 2011. (Tr. 419-26, 429-35). During those sessions, Patterson reported that the
catalyst of her depression was her relationship with her husband. (Id.). According to Patterson,
she had decided to divorce him. (Id.). Patterson reported that she did not have any friends or
family to support her emotionally during the divorce proceedings. (Id.). Patterson’s goals
included returning to full-time work. (Id.). According to Patterson, she was currently unable to
work on a full-time basis due to her depression and ongoing divorce and because she was raising
her child alone. (Id.). Patterson was discharged from treatment on August 15, 2011 for failing to
attend her therapy appointments. (Tr. 401-07).
3.
University of Rochester Medical Center – Highland Family Medicine
Treatment notes indicate that on March 6, 2012, Patterson began primary care
treatment with Deborah Pierce (“Pierce”), MD. (Tr. 455-56). Patterson complained of
depression and explained that she had previously received treatment at Evelyn Brandon. (Id.).
According to Patterson, she was unable to work due to depression and was having difficulty
sleeping. (Id.). Pierce prescribed a trial of Fluoxetine and referred Patterson to Behavioral
Health Services. (Id.).
Patterson attended a follow-up visit with Pierce on March 27, 2012 and reported
that the Fluoxetine had slightly improved her mood, although she had experienced one day with
a low mood and suicidal ideation. (Tr. 468-69). Patterson reported that she had not yet
commenced counseling. (Id.). Patterson returned for a visit on April 26, 2012. (Tr. 470-71).
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She reported that she had scheduled an appointment for treatment at Evelyn Brandon and that
she was working part-time, although she had many absences due to depression. (Id.). Pierce
prescribed a trial bupropion augmentation. (Id.).
B.
Medical Opinion Evidence
1.
Christine Jean-Jacques, PhD
On April 29, 2011, state examiner Christine Jean-Jacques (“Jean-Jacques”), PhD,
conducted a consultative psychiatric evaluation of Patterson. (Tr. 341-45). Patterson reported
that she took a bus to the examination. (Id.). Patterson also reported that she was separated from
her husband and that she lives with her nine-year-old son. (Id.). She completed high school and
had received special education services due to her difficulties with reading, comprehension and
writing. (Id.). Patterson was currently employed part-time as a housekeeper, a position she had
held since December 30, 2010. (Id.). She reported previous employment as a cashier. (Id.).
According to Patterson, she had never been hospitalized for psychiatric reasons
and she was receiving therapy at Evelyn Brandon. (Id.). At the time of the evaluation, Patterson
had attended one therapy session with Ewer. (Id.). Patterson reported waking during the night
and experiencing increased appetite. (Id.). She complained of depression, indicated by
dysphoric mood, crying spells, guilt, hopelessness, loss of usual interests, irritability, recurrent
thoughts of suicide, loss of energy, feelings of worthlessness, diminished self-esteem, difficulties
concentrating and social withdrawal. (Id.). Patterson had recently lost many of her friends and
had been sleeping during the day. (Id.). According to Patterson, her feelings of worthlessness
stemmed from her difficulties with reading and writing. (Id.). Due to her depression, Patterson
had been increasingly absent from work. (Id.).
5
Patterson also complained of anxiety, indicated by excessive apprehension,
fatigue, irritability, restlessness, difficulty concentrating and headaches. (Id.). Patterson
reported that she frequently worries about paying her bills and about the effect her learning
difficulties have on her life. (Id.). Patterson also suffered from symptoms of panic, including
sweating and chest pains, triggered by frustration. (Id.). Patterson also reported experiencing
visual hallucinations. (Id.). Collectively, Patterson’s mental impairments caused short-term
memory deficits and difficulty concentrating. (Id.).
Patterson reported that she did not have difficulties cooking, cleaning, doing
laundry, shopping or caring for her personal hygiene on a day-to-day basis. (Id.). She reported
difficulties assisting her son with his homework. (Id.). According to Patterson, she interacts
with her son and members of her family, but did not report other hobbies or interests. (Id.).
Upon examination, Jean-Jacques noted that Patterson appeared appropriately
dressed and casually groomed. (Id.). Jean-Jacques opined that Patterson had fluent and clear
speech with adequate language, coherent and goal-directed thought processes, depressed affect,
neutral mood, clear sensorium, full orientation, good insight, good judgment and average
intellectual functioning with a general fund of information that was appropriate to experience.
(Id.). Jean-Jacques noted that Patterson’s attention and concentration were intact. (Id.).
According to Jean-Jacques, Patterson was directed to engage in serial threes, but engaged in
serial fours instead, making one error. (Id.). Patterson’s memory skills were mildly impaired
likely due to psychiatric disturbance. (Id.). According to Jean-Jacques, Patterson could recall
three objects immediately, but could not recall the objects after a delay and did not benefit from
cueing. (Id.). Further, Patterson was unable to repeat digits. (Id.).
6
According to Jean-Jacques, Patterson could follow and understand simple
directions and instructions, perform simple tasks independently, maintain attention and
concentration, maintain a regular schedule, make appropriate decisions, relate adequately with
others and appropriately deal with stress. (Id.). Jean-Jacques opined that Patterson’s ability to
learn new tasks and perform complex tasks independently might be negatively affected by her
difficulties reading. (Id.). According to Jean-Jacques, Patterson appeared to suffer from
psychiatric problems that might significantly interfere with her ability to function on a daily
basis. (Id.). Jean-Jacques opined that Patterson’s prognosis was good because she was engaged
in outpatient mental health treatment. (Id.).
2.
T. Harding, Psychology
On May 9, 2011, agency medical consultant T. Harding (“Harding”), MD,
completed a Psychiatric Review Technique. (Tr. 351-68). Harding concluded that Patterson’s
mental impairments did not meet or equal a listed impairment. (Tr. 351, 354, 356). According
to Harding, Patterson suffered from mild limitations in her activities of daily living and moderate
limitations in her ability to maintain social functioning and concentration, persistence or pace.
(Tr. 366). According to Harding, Patterson had not suffered from repeated episodes of
deterioration. (Id.). Harding completed a mental Residual Functional Capacity (“RFC”)
assessment. (Tr. 365-68). Harding opined that Patterson suffered from moderate limitations in
her ability to remember locations and work-like procedures, understand, remember and carry out
detailed instructions, maintain attention and concentration for extended periods, complete a
normal workday and workweek without interruptions from psychologically-based symptoms,
accept instructions and respond appropriately to criticism from supervisors, and set realistic
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goals or make plans independently of others. (Id.). Harding opined that Patterson retained the
ability to perform entry-level, unskilled work on a sustained basis. (Id.).
III.
Non-Medical Evidence
A.
School Records
School records indicate that Patterson repeated kindergarten. (Tr. 235). She was
placed into a special education classroom in the third grade after her second grade teacher
referred her due to a learning disability. (Id.). Patterson was placed into a 15:1 classroom,
where she remained throughout the remainder of grade school. (Id.).
Joyce Horstman (“Horstman”) conducted a psychological evaluation of Patterson
on December 11, 2000, when Patterson was in the eleventh grade. (Tr. 235-39). Horstman
reviewed Patterson’s educational records, including previous intelligence testing. (Id.). In 1992,
Patterson’s verbal intelligence scores were 66, her performance scores were 73, and her
full-scale intelligence quotient was 69. (Id.). In 1995, Patterson demonstrated low-average
verbal scores, mentally deficient performance scores and borderline full-scale intelligence
quotient. (Id.).
Horstman administered the Kaufman Brief Intelligence Test (“K-BIT”) to
Patterson. (Id.). During the testing, Horstman noted that Patterson was slow to process
information and needed to have information repeated, rephrased or simplified to aid her
comprehension. (Id.). Patterson demonstrated vocabulary scores of 71, matrices scores of 82
and a composite score of 74. (Id.). Horstman also administered the Wechsler Individual
Achievement Test. (Id.). Patterson’s scores demonstrated that her reading and writing skills
were at a mid-third grade level and her math skills were at a high-fourth grade level. (Id.).
8
According to Horstman, Patterson’s nonverbal skills were in the low average range and her
verbal skills were below average. (Id.). Horstman recommended that Patterson remain classified
as learning disabled and continue to be placed in a 15:1 program. (Id.).
B.
Application for Benefits
In her application for benefits, Patterson reported that she had been born in 1983.
(Tr. 176). According to Patterson, she had previously been employed as a cashier and a
housekeeper. (Tr. 179-98).
Patterson reported that she lived in an apartment with her son and cat, both of
whom she cared for daily without assistance. (Id.). She was able to care for her own personal
hygiene, but has difficulty sleeping and needs assistance to remember to take her medication.
(Id.). Patterson was able to prepare her own meals daily and could perform household chores,
without assistance, including cleaning, laundry and planting flowers. (Id.). Patterson reported
that she needs assistance to mow her lawn and complete household repairs. (Id.). She did not
leave her house often, but was able to walk and use public transportation. (Id.). Patterson does
not have a driver’s license. (Id.). Patterson reported that she went shopping once a week for
approximately one hour and was able to handle her own finances. (Id.).
According to Patterson, she enjoyed watching television and sometimes talked to
people on the phone. (Id.). She reported going to the gym approximately four times a week in
order to clear her mind. (Id.). She reported no problems getting along with others, but stated
that she had decreased the frequency with which she left her house. (Id.). She reported
difficulties maintaining attention, completing tasks and following written or spoken instructions.
(Id.). She also reported difficulties with her memory, particularly when stressed. (Id.).
9
Patterson reported that she experienced sweating, confusion and crying spells
when overwhelmed. (Id.). According to Patterson, she experienced these symptoms weekly,
although she sometimes experienced them daily. (Id.). Patterson reported that talking to people
helped relieve her symptoms, which typically lasted one hour. (Id.). During these episodes, she
was unable to travel or complete tasks such as shopping or driving. (Id.).
C.
Administrative Hearing Testimony
During the administrative hearing, Patterson testified that she had completed the
twelfth grade and had received an IEP diploma. (Tr. 39). She testified that she was going
through divorce proceedings and lived with her ten-year-old son. (Tr. 40). Patterson’s uncle
came to her house to assist her in caring for her son when she was depressed. (Tr. 57). She was
typically able to grocery shop, clean her house and prepare meals, although she had difficulty
completing these tasks when depressed. (Tr. 58, 66).
Patterson testified that she was currently working approximately twenty-hours a
week at a nursing home. (Tr. 40). According to Patterson, she worked approximately three days
a week for approximately eight hours per day. (Tr. 40-41). She had been employed by the
nursing home since 2010. (Tr. 42). Patterson had missed some days of work due to her
depression. (Id.). At the nursing home, Patterson spent one day a week performing cleaning
duties. (Tr. 44). The other two days she worked as a dietary aide. (Id.). According to Patterson,
her responsibilities included making drinks for residents, working on a tray line or washing
dishes. (Id.). Patterson testified that she missed approximately five days of work the previous
month. (Tr. 58).
During the approximately first four months that she worked at the nursing home,
Patterson also worked at a hospital. (Tr. 43). Patterson testified that she worked at the hospital
10
beginning in 2008 until December 2010. (Tr. 43-45). Patterson testified that her job at the
hospital ended due to her absences caused by her depression. (Id.). According to Patterson, her
duties included cleaning tasks. (Id.). Initially, Patterson was employed part-time, but she
increased to full-time employment in order to pay her bills. (Id.). According to Patterson, she
worked on a full-time basis for approximately one year. (Tr. 46-47). Patterson also worked at a
company called Janitronics for less than one year, performing cleaning tasks. (Tr. 46, 48).
Patterson also worked previously as a cashier at Walmart for approximately three
or four years. (Tr. 49-50). Her main responsibility was to check out customers. (Id.).
According to Patterson, she was able to perform this job and to give customers correct change,
although sometimes she needed assistance. (Id.). Patterson left this job due to her depression.
(Tr. 53). Patterson also worked at McDonald’s in high school. (Tr. 50). According to Patterson,
she was unable to complete job applications without assistance. (Tr. 53).
Patterson testified that she did not have a driver’s license because she had failed
the permit test twice. (Tr. 47). She also testified that her depression made it difficult to be
around other people. (Tr. 54). Patterson testified that she experiences a racing heart, sweating
and frustration. (Tr. 55). She also experiences anger, which she attempts to manage by
withdrawing from people. (Tr. 57). Patterson also has difficulty sleeping, which causes her to
be drowsy during the day. (Tr. 60).
Patterson received treatment from Pastor for these symptoms and also received
treatment at Evelyn Brandon. (Tr. 55-56). According to Patterson, she was discharged from
treatment at Evelyn Brandon due to missed appointments and had recently recommenced the
intake process. (Tr. 56). Her symptoms are alleviated by walking around or going outside.
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(Tr. 59). She also takes medication for her depression, which has helped “[j]ust a little bit” with
her anger. (Id.).
Dr. Mancy (“Mancy”), a vocational expert, also testified during the hearing.
(Tr. 67-72). The ALJ asked Mancy whether Patterson could be characterized as a younger
individual with a high school education. (Tr. 68). Mancy responded that because Patterson had
received an IEP diploma, he considered Patterson’s education to be limited. (Id.). The ALJ
asked Mancy to characterize Patterson’s previous employment. (Tr. 69). According to Mancy,
Patterson previously had been employed as a fast food worker (Dictionary of Occupational Titles
(“DOT”) 311.477-010), a cleaner/housekeeping (DOT 323.687-010), cleaner/hospital (DOT
323.687-010), dietary aide (DOT 319.677-014) and a cashier or wrapper (DOT 211.462-018).
(Id.).
The ALJ asked Mancy whether a person would be able to perform Patterson’s
previous jobs who was the same age as Patterson, with the same education and vocational
profile, and who was able to perform the full range of work at all exertional levels, but who was
limited to simple tasks and occasional interaction with coworkers and the general public.
(Tr. 69-70). Mancy testified that such an individual would be able to perform the
previously-identified jobs of cleaner/housekeeping, cleaner/hospital and dietary aide. (Tr. 70).
The ALJ then asked Mancy whether any other jobs would exist for the same individual with the
same limitations. (Id.). Mancy opined that such an individual could perform the jobs of hand
packager (DOT 920.587-018) and laundry worker II (DOT 361.685-018). (Id.).
The ALJ then asked Mancy whether a person would be able to perform
Patterson’s previous jobs who was the same age as Patterson, with the same education and
vocational profile, and who was able to perform the full range of work at all exertional levels,
12
but who was limited to simple tasks and who must primarily work alone with only occasional
supervision. (Tr. 70-71). Mancy opined that such an individual could perform the
previously-identified jobs of cleaning/housekeeping and cleaning/hospital. (Tr. 71). Mancy also
opined that such an individual could perform the jobs of hand packager and collator operator
(DOT 208.685-010).
The ALJ then asked Mancy whether jobs would exist for the same individual with
the same limitations, except that the individual would be off-task approximately twenty percent
or more of the workday. (Tr. 98). Mancy opined that such an individual would not be able to
maintain full-time competitive employment. (Id.).
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
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
13
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)).
A person is disabled 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;
14
(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)).
A.
The ALJ’s Decision
In his decision, the ALJ followed the required five-step analysis for evaluating
disability claims. (Tr. 15-28). Under step one of the process, the ALJ found that Patterson had
not engaged in substantial gainful activity since December 31, 2010, the alleged onset date.
(Tr. 20). The ALJ noted, however, that Patterson had worked since the alleged onset date at
levels that were just below the substantial gainful activity level for 2011. (Id.). At step two, the
ALJ concluded that Patterson has the severe impairments of borderline intellectual functioning,
depression and anxiety. (Tr. 21). The ALJ determined that Patterson’s asthma was non-severe.
(Id.). With respect to Patterson’s mental impairments, the ALJ found that Patterson suffered
from no restrictions in activities of daily living and moderate difficulties in maintaining
15
concentration, persistence and pace and social functioning. (Tr. 21-22). At step three, the ALJ
determined that Patterson does not have an impairment (or combination of impairments) that
meets or medically equals one of the listed impairments. (Tr. 21-23). The ALJ concluded that
Patterson has the RFC to perform the full range of work at all exertional levels, but that she was
limited to work involving simple tasks and occasional interaction with coworkers and the general
public. (Tr. 23). At step four, the ALJ determined that Patterson was able to perform her
previous work as a cleaner/housekeeping and a cleaner/hospital. (Tr. 26-27). Finally, the ALJ
proceeded to step five and determined that other jobs existed in the national economy that
Patterson could perform, including the positions of hand packager and laundry worker. (Tr. 27).
Accordingly, the ALJ found that Patterson was not disabled. (Id.).
B.
Patterson’s Contentions
Patterson contends that the ALJ’s mental RFC determination is not supported by
substantial evidence and is the product of legal error. (Docket # 8-1). First, Patterson maintains
that the ALJ’s RFC determination is not supported by substantial evidence because the ALJ
failed to account for limitations assessed by Jean-Jacques and Harding. (Id. at 12-16). Next,
Patterson maintains that the ALJ failed to consider her intelligence deficits when formulating the
RFC. (Id. at 16).
Patterson also contends that the ALJ failed to apply the correct legal standards
when evaluating her credibility. (Id. at 17). First, Patterson maintains that the ALJ improperly
compared her credibility to his own RFC assessment. (Id.). Next, Patterson maintains that the
ALJ failed to discuss information contained in her education and medical records when
conducting his credibility assessment. (Id. at 18-19, 21-23). Finally, Patterson maintains that the
16
ALJ mischaracterized her work history and her activities of daily living when evaluating her
credibility. (Id. at 19-20).
With respect to the ALJ’s step four and five findings, Patterson maintains that the
vocational expert’s testimony cannot provide substantial evidence because it was based upon a
flawed RFC assessment. (Id. at 24). Next, Patterson maintains that the ALJ’s conclusion that
Patterson could perform her previous employment as a cleaner/housekeeping was flawed
because there was insufficient evidence in the record to establish that Patterson performed that
job at a level of substantial gainful activity. (Id. at 26-27). With respect to the remaining
positions identified at step four and five, Patterson maintains that they all required a reasoning
level of 2, which was inconsistent with the ALJ’s conclusion that Patterson could perform only
simple work. (Id. at 27-29).
II.
Analysis
A.
Mental RFC Assessment
An individual’s RFC is his “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 (July 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,
17
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 Patterson’s contention that the ALJ failed to account for limitations
assessed by Jean-Jacques and Harding. (Docket ## 8-1 at 12-16; 10 at 1-4). Specifically,
Patterson maintains that the ALJ’s RFC assessment fails to account for Jean-Jacques’s opinion
that Patterson suffered from some limitations in her ability to learn new tasks. (Id.).
Additionally, Patterson contends that the ALJ ignored Jean-Jacques’s conclusion that Patterson
appeared to suffer from psychiatric problems that might significantly interfere with her ability to
function on a day-to-day basis. (Id.). Patterson also maintains that the ALJ failed to account for
the moderate limitations assessed by Harding, which included limitations in Patterson’s ability to
remember locations and work-like procedures, understand, remember and carry out detailed
instructions, maintain attention and concentration for extended periods, complete a normal
workday and workweek without interruptions from psychologically-based symptoms, accept
instructions and respond appropriately to criticism from supervisors, and set realistic goals, and
make plans independently of others. (Id.). Patterson maintains that despite giving considerable
weight to Jean-Jacques’s opinion and “some weight” to Harding’s opinion, the ALJ overlooked
their opinions that Patterson suffered from mental limitations that would preclude her ability to
work. (Id.).
I disagree. Although both Jean-Jacques and Harding acknowledged that Patterson
had mental limitations in certain categories of mental work-related functions, both concluded
that Patterson was capable of understanding simple directions and performing simple tasks
independently. (Tr. 344, 367). For instance, despite the limitations assessed by Harding, he
opined that Patterson retained the ability “to perform entry-level, unskilled work on a sustained
18
basis.” (Tr. 367). Similarly, although Jean-Jacques stated that Patterson’s ability to learn new
tasks may be negatively affected by her reading difficulties, Jean-Jacques also determined that,
despite those limitations, Patterson retained the ability to understand and follow simple
directions, perform simple tasks, maintain attention and concentration, maintain a schedule,
make appropriate decisions, relate adequately with others, and adequately deal with stress.
(Tr. 344). These conclusions are consistent with the ALJ’s conclusion that Patterson was able to
perform the basic mental demands of unskilled work. SSR 85-15, 1985 WL 56857, *4 (1985)
(“[t]he basic mental demands of competitive, remunerative, unskilled work include the abilities
(on a sustained basis) to understand, carry out, and remember simple instructions, to respond
appropriately to supervision, coworkers and usual work situations, and to deal with changes in a
routine work setting”). Similarly, Jean-Jacques’s conclusion that Patterson’s psychiatric
problems might significantly interfere with her ability to function on a daily basis is not
inconsistent with the ALJ’s conclusion that Patterson could perform simple work tasks. This is
particularly true when viewed in the context of Jean-Jacques’s entire opinion, which, as
discussed above, essentially concluded that Patterson retained the ability to perform the basic
mental demands of unskilled work. See Taylor v. Comm’r of Soc. Sec., 2015 WL 4649820, *5
(N.D.N.Y. 2015) (ALJ properly relied upon and considered consulting psychiatrist’s opinion in
determining that claimant’s mental impairments were not severe; although psychiatrist opined
that impairments could significantly interfere with daily functioning, psychiatrist also concluded
that claimant “possessed requisite mental capacity for basic work activities”); Williams v. Colvin,
2014 WL 4146191, *9 (N.D.N.Y. 2014) (plaintiff’s reliance on consultant’s opinion that his
psychiatric problems may significantly interfere with his daily functioning was misplaced where
psychiatrist also concluded that plaintiff had no mental functioning limitations and plaintiff took
19
the statement about daily functioning out of context); Cross v. Astrue, 2009 WL 3790177, *6-7
(N.D.N.Y. 2009) (ALJ did not ignore consultant’s opinion that claimant’s mental impairments
may significantly interfere with daily functioning where ALJ considered specific limitations
assessed by consultant and where there was “little in [the] report to suggest [p]laintiff’s
psychological symptoms were so debilitating that she could not engage in any substantial gainful
activity”). I find that the ALJ’s RFC assessment accounted for the limitations assessed by
Jean-Jacques’s and Harding’s opinions and was entirely consistent with their opinions that
Patterson could perform unskilled work. Accordingly, I conclude that the ALJ properly
evaluated and incorporated into his RFC assessment the limitations identified in the medical
opinions, even if he did not explicitly discuss each limitation. See Retana v. Astrue, 2012 WL
1079229, *6 (D. Colo. 2012) (ALJ was not required to thoroughly discuss each moderate
limitation; “ALJ’s RFC adopted some of [doctor’s] moderate limitations such as restricting
plaintiff to unskilled work not involving complex tasks, reflecting plaintiff’s moderate
limitations in his ability to carry out detailed instruction and to maintain concentration for
extended periods”); Ryan v. Astrue, 650 F. Supp. 2d 207, 217 (N.D.N.Y. 2009) (“despite
granting little weight to [the doctor’s] opinions, [the ALJ] accounted for [p]laintiff’s difficulties
with concentration and stress in his RFC[;] [t]herefore, had the ALJ opted to grant [the doctor] a
greater weight, it would not have affected his RFC”).
I likewise reject Patterson’s remaining challenges to the ALJ’s mental RFC
assessment. (Docket ## 8-1 at 16; 10 at 5-6). A review of the ALJ’s decision demonstrates that
he considered Patterson’s intellectual functioning when assessing her RFC. During the step two
and three analysis, the ALJ discussed Patterson’s intellectual functioning at length, including
discussing her education records and results of various intelligence testing. (Tr. 21). The ALJ
20
acknowledged that Patterson’s IQ scores varied between low average to deficient, but noted that
Patterson had exhibited an ability to maintain full-time employment without special
accommodations, despite her limited intellectual functioning. (Id.). Similarly, when assessing
her RFC, the ALJ noted that Patterson was able to complete various activities of daily living and
had maintained several jobs, including a semi-skilled job without special accommodations.
(Tr. 24). Although Jean-Jacques did not administer intelligence testing, as noted by the ALJ, she
examined Patterson and did not observe any evidence of a cognitive deficit, and indeed opined
that her intellectual functioning was average and that she had a general fund of information
appropriate to her experience. (Id.).
I disagree with Patterson that the ALJ’s discussion implicitly “rejects” Patterson’s
level of intellectual functioning or that he failed to evaluate her test scores and education records.
(Docket # 8-1 at 16). The ALJ accurately described the varying results of Patterson’s cognitive
testing and compared those results with her daily functioning, work history and Jean-Jacques’s
observations of her cognitive functioning during a face-to-face examination.
Nothing in the record suggests that Patterson is unable to perform unskilled work.
Indeed, the record reflects that Patterson was able to perform activities of daily living and
maintain employment without accommodations despite her intellectual limitations. Although
Patterson testified that she received assistance from her uncle to complete household
responsibilities, she reported to her treating physicians and in her application for benefits that she
was able to care for herself, her son and her household without assistance. Similarly, although
Patterson reported work-attendance difficulties due to her depression, Jean-Jacques concluded
that Patterson would be able to maintain a regular schedule. I conclude that the ALJ’s RFC
assessment was based upon a thorough review of the record and was supported by substantial
21
record evidence; accordingly, remand is not warranted. Zabala v. Astrue, 595 F.3d 402, 410 (2d
Cir. 2010) (“[n]one of the clinicians who examined [claimant] indicated that she had anything
more than moderate limitations in her work-related functioning, and most reported less severe
limitations[;] [a]lthough there was some conflicting medical evidence, the ALJ’s determination
that [p]etitioner could perform her previous unskilled work was well supported”).
Patterson argues for the first time in her reply papers that the ALJ erred because
he failed to seek a medical opinion from her treating physicians. (Docket # 10 at 4). Patterson
also argues for the first time in reply that the ALJ erred by failing to order intelligence testing.
(Id. at 5). As an initial matter, these arguments appear procedurally barred because Patterson
failed to raise them in her opening brief. See Jones v. Astrue, 2013 WL 802778, *5 (E.D.N.Y.
2013) (claimant’s argument procedurally deficient when not raised in its opening brief)
(collecting cases). In any event, I conclude that these alleged errors do not warrant remand.
With respect to the failure to seek an opinion from a treating physician, the
“Second Circuit has held that absence of a medical source statement from a treating physician
does not require remand ‘where the record contains sufficient evidence from which an ALJ can
assess the petitioner’s residual functional capacity.’” Prince v. Colvin, 2015 WL 1408411, *17
(S.D.N.Y. 2015) (quoting Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33-34 (2d Cir.
2013)). In the case, it is not clear whether any of Patterson’s doctors would qualify as treating
sources because the record contains evidence of only one appointment with Pastor, two
appointments with Ewer and three appointments with Pierce. See Wearen v. Colvin, 2015 WL
1038236, *14 (W.D.N.Y. 2015) (“I disagree with [plaintiff’s] characterization of [the doctor] as
a treating doctor because the record reflects that [the doctor] only treated [plaintiff] on one
occasion before rendering her opinion”) (citing Hamilton v. Astrue, 2013 WL 5474210, *11
22
(W.D.N.Y. 2013) (“it is not clear that [the doctor] may be considered a treating physician
because [plaintiff] testified that the first time she was examined by [the doctor] was when he
completed her disability paperwork”) (collecting cases)). In any event, the record contained the
treatment notes from Patterson’s doctors, as well as assessments by state consultants.
Accordingly, I conclude that the record was sufficiently developed to permit the ALJ to assess
Patterson’s RFC. See Prince v. Colvin, 2015 WL 1408411 at *17 (collecting cases).
I further conclude that there was no gap in the record with respect to intelligence
testing. As an initial matter, Patterson does not challenge the ALJ’s conclusion that she did not
meet Listing 12.05, arguing instead that the ALJ failed to consider her intelligence when
assessing her RFC and that the ALJ ignored or mischaracterized her testing scores. Patterson
contends that the ALJ improperly relied upon her K-BIT scores from 2000 while rejecting her
earlier, lower scores from 1992 and 1996. I disagree with Patterson’s characterization of the
ALJ’s decision. As explained above, the ALJ reviewed and explicitly discussed the range of
scores that Patterson received on her intelligence testing. (Tr. 21). The ALJ evaluated
Patterson’s varying intelligence scores in the context of the entire record, including Patterson’s
ability to independently engage in a wide variety of activities of daily living and her work
history, which demonstrated an ability to maintain employment without special accommodations
or assistance, and concluded that her level of functioning was consistent with the scores
suggesting a borderline level of functioning. See Rodriguez v. Colvin, 2014 WL 3882191, *14
(W.D.N.Y. 2014) (“[t]he [c]ourt agrees that [p]laintiff’s ability to live independently belies his
contention that he has deficits in adaptive functioning”). The ALJ considered this limited
functioning when assessing Patterson’s RFC. Nothing in the record suggests that additional
testing was necessary or would have assisted the ALJ in his analysis. Accordingly, I conclude
23
that the ALJ did not err by failing to order additional intelligence testing. Daniels v. Astrue,
2012 WL 1415322, *18 (S.D.N.Y. 2012) (record was complete where ALJ ordered two
consultative evaluations and obtained relevant medical records and where plaintiff had a work
history as a parking lot cashier, a store cashier and a hairstylist).
B.
Credibility Assessment
I turn next to Patterson’s contention that the ALJ’s credibility analysis is flawed
because he applied the incorrect legal standards and failed to support his credibility
determination with a complete discussion of the record. (Docket ## 8-1 at 17-23; 10 at 6-8).
An ALJ’s credibility assessment should reflect a two-step analysis. Robins v.
Astrue, 2011 WL 2446371, *4 (E.D.N.Y. 2011). First, the ALJ must determine whether the
evidence reflects that the claimant has a medically determinable impairment or impairments that
could produce the relevant symptom. Id. (citing 20 C.F.R. § 404.1529). Next, the ALJ must
evaluate “the intensity, persistence and limiting effects of the symptom, which requires a
credibility assessment based on the entire case record.” Id. (citing 20 C.F.R. § 404.1529(c)).
The relevant factors for the ALJ to weigh include:
(1) the claimant’s daily activities; (2) the location, duration,
frequency and intensity of the claimant’s pain or other symptoms;
(3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medication the claimant takes
or has taken to alleviate [his] pain or other symptoms;
(5) treatment, other than medication, the claimant receives or has
received for relief of her pain or other symptoms; (6) any measures
the claimant uses or has used to relieve her pain or other
symptoms; and (7) other factors concerning the claimant’s
functional limitations and restrictions due to pain or other
symptoms.
Id. (citing 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii)).
24
The ALJ concluded that Patterson’s statements “concerning the intensity,
persistence and limiting effects of [her] symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” (Tr. 24). In doing so, the
ALJ assessed Patterson’s subjective complaints in the context of a comprehensive review of the
entire record. I disagree with Patterson’s contention that the ALJ relied only on part of the
record in conducting his credibility assessment or that he mischaracterized the evidence.
The ALJ recounted Patterson’s reported daily activities and work history. (Id.).
Significantly, the ALJ noted that despite Patterson’s allegations that she is disabled due to a
learning disability, Patterson was able to manage her household and maintain employment
without special accommodations or assistance. (Id.). Patterson maintains that the ALJ
mischaracterized the record because Patterson testified that her uncle assisted her at home and
that she sometimes used a calculator or requested assistance when working as a cashier. (Docket
# 8-1 at 19-20). I disagree. Although Patterson testified that her uncle assisted her at home
during periods of depression, she reported in her application and to evaluating doctors that she
was able to manage her household and care for her son without assistance. (Tr. 180-82, 344).
Similarly, despite her testimony that she sometimes needed assistance when calculating change,
she testified that as a general matter she was able to perform her duties as a cashier, and the
record does not reflect that she was terminated or left any employment positions due to her
cognitive limitations. (Tr. 49-50).
The ALJ also thoroughly reviewed Patterson’s medical history, which
demonstrated limited treatment for depression and no treatment for anxiety. (Tr. 25). The ALJ
also reviewed the consultative opinions provided by Jean-Jacques and Harding, both of whom
assessed limitations but ultimately concluded that Patterson was able to sustain simple,
25
entry-level employment. (Tr. 25-26). Patterson maintains that the ALJ failed to fully discuss
information contained in her education records. (Docket ## 8-1 at 18-19; 10 at 7-8). Yet, as
discussed above, the ALJ’s decision makes clear that he reviewed and considered her education
records when conducting his analysis. In any event, “an ALJ is not required to discuss all the
evidence submitted, and his failure to cite specific evidence does not indicate that it was not
considered.” Adams v. Colvin, 2014 WL 5529395, *7 (W.D.N.Y. 2014) (internal quotations
omitted).
Similarly, Patterson contends that the ALJ failed to consider Pierce’s treatment
records that were submitted after the hearing. (Docket # 8-1 at 21-22). As the government
correctly notes, although the ALJ incorrectly indicated at the beginning of his decision that the
additional records from Pierce were never received (Tr. 18), the ALJ repeatedly cited to the
records in his decision, thus demonstrating that he had reviewed and considered them in
rendering his decision (Docket # 9-1 at 21-22 (citing Tr. 25-26)).
After a comprehensive review of the record, the ALJ concluded that Patterson’s
credibility concerning the severity of her impairments was undermined by several facts. First,
the ALJ determined that Patterson made inconsistent statements regarding the cause of her
depression. (Tr. 25). Next, the ALJ concluded that Patterson, on the one hand, testified that she
frequently stays home, and, on the other hand, told her therapist that she frequently goes to the
gym, the movies and walks with her son. (Id.). Finally, the ALJ noted that Patterson complained
of anxiety-related symptoms during her consultative examination, but did not report similar
complaints to her treating physicians. (Id.). I conclude that the ALJ applied the proper legal
standards in analyzing Patterson’s subjective complaints and that substantial evidence supports
the ALJ’s determination that Patterson’s complaints were “not credible” to the extent they were
26
inconsistent with the ALJ’s RFC assessment. See Luther v. Colvin, 2013 WL 3816540, *7
(W.D.N.Y. 2013) (ALJ properly assessed subjective complaints where she “reviewed all of
[p]laintiff’s subjective complaints . . . [and] properly considered [p]laintiff’s activities of daily
living, inconsistent testimony and how her symptoms affected her attempts at maintaining a
job”).
I also reject Patterson’s argument that the ALJ incorrectly found that her
statements were not credible solely because they were inconsistent with the ALJ’s RFC finding.
To the contrary, the ALJ’s decision demonstrates that he evaluated Patterson’s credibility after
carefully reviewing the evidence. Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 318 (W.D.N.Y.
2013) (“[t]his argument has been rejected by a number of courts[;] . . . [t]he ALJ specifically
stated that she assessed [claimant’s] statements concerning the intensity, persistence and limiting
effects of his symptoms after careful consideration of the evidence”) (internal quotation omitted)
(collecting cases). In sum, I conclude that the ALJ applied the correct legal standard in assessing
Patterson’s credibility and that his credibility determination is supported by substantial evidence
in the record.
C.
Steps Four and Five Assessments
I turn next to Patterson’s challenge to the ALJ’s steps four and five
determinations. (Docket ## 8-1 at 24-29; 10 at 8-10). First, Patterson contends that remand is
warranted because she did not perform her prior employment as a cleaner/housekeeping at a
level that constituted substantial gainful activity under the earnings guidelines and that her job as
a cleaner/housekeeping thus cannot be considered “past relevant work.” (Id.).
The record suggests that Patterson worked part-time at Janitronics as a
cleaner/housekeeping in 2008 and 2009. (Tr. 191). According to regulatory earnings guidelines,
27
if Patterson’s monthly earnings during those years met or exceeded $ 940 and $ 980,
respectively, then a rebuttable presumption arises that she was engaged in substantial gainful
activity for those years.4 See 20 C.F.R. §§ 404.1574(b)(2)(i)-(ii); see also Social Security
Administration Program Operations Manual System (“POMS”) DI 10501.015, available at
https://secure.ssa.gov/poms.nsf/lnx/0410501015). In her application for SSI/DIB, Patterson
represented that when she was employed at Janitronics, she worked five days a week for three
hours per day at an hourly rate of $ 7.46 per hour. (Tr. 194). Based upon this representation,
Patterson earned approximately $ 492.36 per month – below the $ 940 to $ 980 monthly earnings
set forth in the guidelines for 2008-2009. I agree with Patterson that the record suggests that she
worked as a cleaner/housekeep at a level below the earnings guidelines, but conclude that any
error by the ALJ in considering this work as past relevant work was ultimately harmless because
the ALJ identified another position at step four and, in any event, the ALJ proceeded to step five.
Johnson v. Astrue, 2009 WL 1650415, *6 (W.D.N.Y. 2009) (failure to properly examine past
relevant work is harmless when ALJ makes a correct ruling at step five).
Patterson argues that any error by the ALJ was not harmless because the
remaining positions identified by the ALJ at step four and five required reasoning or language
levels that were inconsistent with the ALJ’s conclusion that Patterson could only perform simple
work. (Docket ## 8-1 at 27-29; 10 at 9-10). I disagree. Patterson correctly notes that the
positions of cleaner/hospital, hand packager and launder worker II, each have general
educational development (“GED”) requirements, including reasoning level 2 and language level
of 1 or 2. See DOT 323.687-010, 1991 WL 672782 (2008) (cleaner/hospital); DOT
4
The guidelines provide that a claimant’s earnings beginning in 2001 and each year thereafter ordinarily
will show that she engaged in substantial gainful activity if the earnings increased over the previous year or the
average monthly earnings were more than $ 700, adjusted for changes in the national wage index. See 20 C.F.R.
§ 404.1574(b)(2)(i)-(ii).
28
920.587-018, 1991 WL 687916 (2008) (hand packager); DOT 361.685-018, 1991 WL 672987
(2008) (laundry worker II). Despite Patterson’s arguments to the contrary, courts have routinely
held that an “RFC determination limiting a plaintiff to simple and routine tasks means that a
plaintiff is capable of working at reasoning development level two.” Prince, 2015 WL 1408411,
*21 (S.D.N.Y. 2015); McCusker v. Comm’r of Soc. Sec., 2014 WL 6610025, *4 (N.D.N.Y.
2014) (“a number of courts have held that jobs with DOT reasoning levels of two or three are
comparable with limitations to simple and low stress work”); Rivera v. Colvin, 2014 WL
3732317, *42 (S.D.N.Y. 2014) (“[m]ost courts, in this circuit and others, have held that an RFC
that limits a claimant to only simple and routine tasks is consistent with GED level 2
reasoning”); Chaffin v. Colvin, 999 F. Supp. 2d 468, 474-75 (W.D.N.Y. 2014) (“[w]orking at
reasoning level 2 does not contradict a mandate that work be simple, routine and repetitive”)
(quoting Edwards v. Astrue, 2010 WL 3701776, *15 (N.D.N.Y. 2010)); Jones-Reid v. Astrue,
934 F. Supp. 2d 381, 408 (D. Conn. 2012) (“[a] number of courts have found that a limitation of
simple tasks or instructions is consistent with GED level 2 reasoning”), aff’d, 515 F. App’x 32
(2d Cir. 2013); Carrigan v. Astrue, 2011 WL 4372651, *10 (D. Vt.) (“[t]he weight of the
authority compels a conclusion that, generally, someone like [plaintiff], who is able to perform
simple, repetitive tasks, is capable of performing Reasoning Level 2 jobs”) (collecting cases),
report and recommendation adopted, 2011 WL 4372494 (D. Vt. 2011). Significantly, in this
case, Patterson has worked for several years as a cleaner/hospital on both a full-time and
part-time basis. (Tr. 42-43, 45-46, 195). Although she contends that she has trouble maintaining
her attendance due to her depression, there is nothing in the record to suggest that she is unable
to perform the job because its responsibilities exceed her reasoning or language capabilities.
29
Finally, I turn to Patterson’s contention that the ALJ erred in relying on the
vocational expert because the hypothetical posed to the expert was based upon a flawed RFC
assessment. (Docket # 8-1 at 25-26). Having determined that substantial evidence supports the
ALJ’s RFC determination, this argument is rejected. See Wavercak v. Astrue, 420 F. App’x 91,
95 (2d Cir. 2011) (“[b]ecause we have already concluded that substantial record evidence
supports the RFC finding, we necessarily reject [plaintiff’s] vocational expert challenge”).
CONCLUSION
After careful review of the entire record, 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 pleadings (Docket # 9) is GRANTED. Patterson’s motion for
judgment on the pleadings (Docket # 8) is DENIED, and Patterson’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
August 26, 2015
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