Richardson v. Commissioner of Social Security

Filing 11

-CLERK TO FOLLOW UP-ORDER granting the Commissioner's 9 Motion for Judgment on the Pleadings and dismissing the complaint. Signed by Hon. David G. Larimer on 3/27/15. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
LANEE M. RICHARDSON,

Plaintiff,
DECISION AND ORDER
14-CV-6369L
v.
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
________________________________________________

Plaintiff appeals, pro se, from a denial of disability insurance benefits by the
Commissioner of Social Security (“the Commissioner”). She brings this action pursuant to 42
U.S.C. ' 405(g) to review the Commissioner’s final determination.
On July 12, 2012, plaintiff, then 18 years old, filed an application for Supplemental
Security Income benefits under Title II of the Social Security Act. Plaintiff alleged an inability to
work, due to bilateral ankle instability and pain. Her application was initially denied. Plaintiff
requested a hearing, which was held via videoconference on March 5, 2013 before Administrative
Law Judge (“ALJ”) Roxanne Fuller. (T. 9, 46-51). Plaintiff was represented by counsel. (T.
36). The ALJ issued a decision on March 29, 2013, concluding that plaintiff was not disabled
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under the Social Security Act. (T. 9-19). That decision became the final decision of the
Commissioner when the Appeals Council denied review on June 11, 2014. (T. 1-3). Plaintiff
now appeals. The Commissioner has moved for judgment on the pleadings pursuant to Fed. R.
Civ. Proc. 12(c). (Dkt. #9). To date, plaintiff has not filed a response, or otherwise opposed the
Commissioner’s motion.

DISCUSSION
Determination of whether a claimant is disabled within the meaning of the Social Security
Act requires an ALJ to follow a five-step sequential evaluation. See Bowen v. City of New York,
476 U.S. 467, 470-71 (1986). At step one, the ALJ must determine whether the claimant is
engaged in substantial gainful work activity. See 20 CFR '404.1520(b). If so, the claimant is
not disabled. If not, the ALJ proceeds to step two, and determines whether the claimant has an
impairment, or combination of impairments, that is “severe” within the meaning of the Act, e.g.,
that imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
CFR '404.1520(c). If not, the analysis concludes with a finding of “not disabled.” If so, the ALJ
continues to step three.
At step three, the ALJ examines whether the claimant’s impairment meets or equals the
criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4. If the impairment
meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR
'404.1509), the claimant is disabled.

If not, analysis proceeds to step four, and the ALJ

determines the claimant’s residual functional capacity (“RFC”), which is the ability to perform
physical or metal work activities on a sustained basis, notwithstanding limitations for the
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collective impairments. See 20 CFR '404.1520(e), (f). Then, the ALJ determines whether the
claimant’s RFC permits her to perform the requirements of her past relevant work. If so, the
claimant is not disabled. If not, analysis proceeds to the fifth and final step, wherein the burden
shifts to the Commissioner to show that the claimant is not disabled, by presenting evidence
demonstrating that the claimant “retains a residual functional capacity to perform alternative
substantial gainful work which exists in the national economy” in light of her age, education, and
work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Bapp v. Bowen,
802 F.2d 601, 604 (2d Cir.1986)). See 20 CFR '404.1560(c).
The Commissioner’s decision that plaintiff is not disabled must be affirmed if it is
supported by substantial evidence, and if the ALJ applied the correct legal standards. See 42
U.S.C. ' 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence has
been described 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. N.L.R.B., 305 U.S. 197, 229 (1938)). “The Court
carefully considers the whole record, examining evidence from both sides ‘because an analysis of
the substantiality of the evidence must also include that which detracts from its weight.’” Tejada
v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (quoting Quinones v. Chater, 117 F.3d 29, 33 (2d
Cir.1997)). Still, “it is not the function of a reviewing court to decide de novo whether a claimant
was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “Where the Commissioner’s
decision rests on adequate findings supported by evidence having rational probative force, [this
Court] will not substitute our judgment for that of the Commissioner.” Veino v. Barnhart, 312
F.3d 578, 586 (2d Cir.2002).

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ALJ Fuller issued a lengthy decision analyzing plaintiff's claim of disability, and supported
her determination with appropriate findings of fact. Upon careful review of the record, I believe
that the ALJ applied the correct legal standards, and that her finding that plaintiff is not totally
disabled is supported by substantial evidence.
The ALJ described plaintiff’s medical records, noting her diagnoses of migraines, sleep
apnea, obesity, right ankle instability and pain, and left lateral ankle ligament reconstruction. I
believe the evidence supports the ALJ’s conclusion that plaintiff, then a 19-year-old woman with a
high school education and no past relevant employment, was not totally disabled, due to the ALJ’s
finding at step five that several positions existed in the economy that plaintiff could perform,
including document preparer, final assembler, and food and beverage order clerk. (T. 18).
In determining plaintiff=s RFC, the ALJ considered, inter alia, plaintiff’s treatment notes
for bilateral ankle pain, noting that plaintiff and her orthopedist considered her January 18, 2011
left lateral ankle ligament repair surgery to have been successful, and to have resulted in
significant improvement in her left ankle, in terms of stability and comfort. (T. 189). The same
surgery was scheduled to take place on plaintiff’s right ankle shortly after the hearing, although
x-rays had shown no evidence of fracture, dislocation or osteochondral defects (areas of articular
and/or cartilage damage and injury of the adjacent bone). (T. 14, 41). Plaintiff’s medical records
also included treatment notes showing that plaintiff takes ibuprofen for migraine headaches, and
was diagnosed with sleep apnea following a sleep study, for which use of a CPAP machine had
been recommended. Plaintiff reported that she lives with her mother, cares for herself, assists
with household chores, grocery shopping, and with her mother’s in-home daycare business, is able
to drive and walk, and socializes occasionally. (T. 16). She testified that she has been prescribed

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pain medication to treat her ankle pain, which she takes only “as needed”: plaintiff variously
described needing to take pain medication once every one to two weeks, and once every three
weeks. (T. 43, 48).
Based on this evidence, the ALJ determined that plaintiff retained the residual functional
capacity to perform a range of sedentary work, with the following limitations: never climb ramps,
stairs, ladders, ropes or scaffolds; never balance; no more than occasionally stoop, crouch, kneel or
crawl; no more than occasionally be exposed to moving mechanical parts or unprotected heights,
and no more than occasionally operate a motor vehicle. I find that this determination is supported
by the substantial evidence cited by the ALJ.
While the ALJ chose not to afford controlling weight to the RFC assessment of plaintiff’s
treating orthopedist, John Ketz, M.D., which opined that plaintiff would miss three days per month
of work due to ankle pain and instability, the ALJ articulated sound reasons for doing so. See
generally Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (the medical opinion of a claimant’s
treating physician is given controlling weight if it is well supported by medical findings and not
inconsistent with other substantial record evidence). Specifically, the ALJ noted that Dr. Ketz’s
opinion that plaintiff would miss work due to ankle pain and/or instability was unsupported by any
medical findings or other evidence of record, and appeared to conflict with the rest of Dr. Ketz’s
RFC assessment as well as plaintiff’s treatment records, which showed a longitudinal history of
improvement in her left ankle following surgery, with pain only upon standing for long periods.
Moreover, although pain in plaintiff’s right ankle persisted, an identical surgery was scheduled to
take place within days after the hearing. See e.g., T. 182 (July 31, 2012 records by Dr. Ketz:
“patient is [in] no distress . . . She has good motion at the [left] ankle . . . the patient is progressing

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well”); T. 242-244 (February 28, 2013 RFC Report by Dr. Ketz: plaintiff can walk 2-4 city blocks
without pain, can sit for at least 6 hours and stand or walk up to 2 hours in a work day, and will not
require unscheduled breaks). Plaintiff did not appear to be incapacitated for any lengthy duration
by her ankle pain – indeed, she testified that she needed to take pain medication for her ankles no
more than once a week – and had not required the use of any assistive mobility devices except for
the occasional use of an ankle brace. (T. 43, 48). Plaintiff’s self-reports of daily activity included
getting up around 8:00am, leaving the house every day, and engaging regularly in light housework
and shopping. (T. 45-48, 155). Nothing in the record would seem to indicate a level of pain or
incapacity so great as to logically explain or support Dr. Ketz’s opinion that plaintiff’s
impairments would cause her to miss at least 3 days of work per month, and there was substantial
evidence of record that plaintiff’s ankle pain and instability did not impair her gait or otherwise
hinder her from “getting around” and going out on a daily basis: as such, the ALJ’s decision not to
grant Dr. Ketz’s opinion controlling weight was proper.
On balance, the plaintiff’s medical records simply do not support her claim of total
disability. I concur with the ALJ and conclude that there is substantial evidence to support her
determination that plaintiff retained the residual functional capacity to perform sedentary work,
with the following limitations: never climb ramps, stairs, ladders, ropes or scaffolds; never
balance; no more than occasionally stoop, crouch, kneel or crawl; no more than occasionally be
exposed to moving mechanical parts or unprotected heights, and no more than occasionally
operate a motor vehicle. (T. 12). There is no dispute that the positions identified by vocational
expert Thomas Heiman, at the plaintiff’s hearing B document preparer, final assembler, and food
and beverage order clerk – are consistent with this RFC, as well as with plaintiff’s age, educational

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background and lack of past work experience. I therefore find no reason to modify the ALJ’s
decision.

CONCLUSION
The Commissioner’s motion for summary judgment (Dkt. #9) is granted.

The

Commissioner’s decision that plaintiff, Lanee Richardson, was not disabled is in all respects
affirmed, and the complaint is dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
March 27, 2015.

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