Pidgeon v. Colvin
DECISION AND ORDER denying 10 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings.Plaintiffs application [#10] for judgment on the pleadings is denied, Defendants cross-motion [#15] is granted, and this action is dismissed. Signed by Hon. Charles J. Siragusa on 10/18/17. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATTI A. PIDGEON,
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
For the Plaintiff:
Howard D. Olinsky, Esq.
Olinsky Law Group
300 South State Street, Suite 420
Syracuse, New York 13202
For the Defendant:
Elizabeth Rothstein, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Kathryn L. Smith, A.U.S.A.
Office of the United States Attorney
for the Western District of New York
100 State Street
Rochester, New York 14614
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Patti Pidgeon (“Plaintiff”) for Social Security Disability
Insurance Benefits (“SSDI”). Now before the Court is Plaintiff’s motion (Docket No.
[#10]) for judgment on the pleadings and Defendant’s cross-motion [#12] for judgment
on the pleadings. Plaintiff’s application is denied, Defendant’s application is granted,
and this action is dismissed.
The reader is presumed to be familiar with the parties’ submissions, which
contain detailed recitations of the pertinent facts. The Court has reviewed the
administrative record [#9] and will reference it only as necessary to explain this Decision
Plaintiff was born in 1963 and completed both high school and four years of
college. (193). Plaintiff previously worked as a general manager of a restaurant, as a
marketing developer for a non-profit organization, as a marketing coordinator for a
manufacturer and as a marketing consultant for a radio station. (216). In January 2009,
Plaintiff was terminated from her radio-station position, which was described as
involving “very high stress.” (251). This termination coincided with other stressors in
Plaintiff’s life, including the diagnosis of her son with bipolar disorder, the death of her
sister-in-law and financial problems. (252, 257, 328). Plaintiff, who had previously
taken medication for depression, suffered a strong emotional reaction to being
terminated, and was taken to the hospital by her husband, where she was diagnosed
with “adjustment disorder and acute stress disorder.” (252).1 Plaintiff claims that on the
day she was fired, she was paranoid, “ha[d] hallucinations and . . . couldn’t think
straight” (9-11). However, the contemporaneous medical notes indicate that she had a
At the hearing, Plaintiff’s counsel stated, in connection with the termination of Plaintiff’s
employment, that she was “originally diagnosed with a psychotic disorder,” citing Exhibit 2F, (11) however
that was incorrect, as Exhibit 2F pertained to an incident that occurred several months after Plaintiff was
fired. See, e.g., (255).
“sad mood,” but appropriate affect, intact memory, normal intellectual functioning, good
judgment and good insight. (252).
Approximately six months later, in July 2009, Plaintiff, who lives in Red Creek,
New York, was hospitalized in Niagara Falls, New York, where she was visiting friends,
after exhibiting “bizarre behavior” following a 2-day bout of drinking alcohol. (255, 328).
Plaintiff claimed to have had racing thoughts, inability to sleep and preoccupation with
finding a religion. (255). Upon examination, Plaintiff was paranoid, guarded,
preoccupied and very labile, with an “inappropriate” affect involving “bursting into tears
and then smiling.” (255, 257). Plaintiff was treated with the antipsychotic drug “Geodon”
and rapidly improved. (255). More specifically, after taking medication, Plaintiff was not
labile or tearful, and was pleasant, appropriate, and in good control. (255). The
discharge diagnosis was “Psychotic disorder NOS. Rule out bipolar disorder manic with
psychotic feature.” (255).
Plaintiff subsequently continued taking medication,2 and eventually began
therapy at Psychiatric Wellness Care, PLLC, where her therapist was Sherie
Ramsgard, NP (“Ramsgard”). Plaintiff indicated, though that she found it difficult “being
told that she need[ed] therapy along with her meds.” (261).
At around this same time, Plaintiff started a new job as the box-office manager of
a theater company. (11, 21-22). However, Plaintiff remained at that job only two
months. (43). On March 18, 2011, Plaintiff told Ramsgard that she had lost her job two
weeks earlier, “because she couldn’t do the tasks that were asked” of her. (263).
See, e.g. (328-335).
Nevertheless, Plaintiff’s mood was stable, she was less anxious, and she was eating
and sleeping well. (263). Upon examination, Ramsgard found no evidence of a thought
disorder, no delusions, no suicidal ideation, intact cognition, intact judgment and intact
On May 12, 2011, Ramsgard noted that Plaintiff was “contin[uing on her] current
medication regime with good effects.” (261). Plaintiff noted, for example, that she was
sleeping well and had not had a manic episode “in over 2 years.” (261). Plaintiff was
upset though, indicating that while her “mood anxiety, energy, motivation, concentration
and attention [were not] horrible, they [were] not where they used to be and she
want[ed] to be like she used to be.” (261-262).
On June 9, 2011, Plaintiff reported to Ramsgard that she “only had 4 bad days
out of the month and [that her] anxiety [had] only lasted about 20 mins each time[, for
which] she didn’t even use the Xanax.” (262). Plaintiff stated that she was considering
going to Florida for four months “for a temporary job working with her niece.” (262).
On June 28, 2011, Ramsgard noted: “Mood and anxiety even and manageable,
sleeping well, not using Risperdal as she was just using it for sleep and is sleeping fine.
Has not needed Xanax. Pt. continues to look for a job and that is [the] most stressful
thing for her.” (264).
On October 26, 2011, Bonnie Sperato, NP (“Sperato”) reported, “mood been bad
lately, depressed, anxiety, no irritability. [sic] Sleep not good lately, both falling and
staying asleep.” (265). Plaintiff also expressed worry about her family’s finances. (265).
On December 1, 2011, Plaintiff’s primary care physician Joh Eppolito, M.D.
(“Eppolito”) reported that Plaintiff’s bipolar disorder was “stable on meds.” (271).
On January 3, 2012, Plaintiff again met with Ramsgard, and “denie[d] depression
or anxiety,” but claimed to “still ha[d] ups and downs, but not as severe.” (265). Plaintiff
reported having some racing thoughts, but was sleeping well, and had good energy,
attention and concentration. (265). Plaintiff indicated that she was looking for a job but
having “no luck.” (265).
On May 14, 2012, Plaintiff met with Ramsgard and reported having “a few bad
days maybe 4 or 5, mostly anxiety, no mood swings, no depression.” (266). Plaintiff
noted that she had an upcoming job interview. (266).
On July 27, 2012, Ramsgard met with Plaintiff and reported: “She feels her mood
is stable on current medications. . . . She is thinking of stopping her medications as
she is doing well.” (267-268). Ramsgard cautioned Plaintiff against stopping her
medications. (268). Ramsgard noted that Plaintiff had obtained new health insurance,
which was going to require her to switch a different care provider. (267-268).
On October 3, 2012, Eppolito noted that Plaintiff’s bipolar disorder remained
stable on medication, and that she had a normal affect, and was “attentive and able to
concentrate.” (278). Eppolito reported that he was referring Plaintiff to Cayuga
Counseling for ongoing long-term treatment of her mental health symptoms. (279).
On January 23, 2013, and again on January 29, 2013, Plaintiff met with her new
therapist, Lisa Clancy, LMSW (“Clancy”), at Cayuga Counseling Services, to provide
information prior to the start of therapy. Plaintiff reportedly indicated that she “ha[d] a
history of delusions,” and described “two psychosis episodes.” (298). Plaintiff further
claimed that she “ha[d] symptoms of anxiety and [was] isolating herself due to fear of
another psychosis episode.” (298).
On February 19, 2013, Clancy reported that she had met with Plaintiff again, but
did not note anything unusual about Plaintiff’s behavior or demeanor. (296).
On February 21, 2013, Christina Caldwell, Ph.D. (“Caldwell”) performed a onetime psychiatric evaluation of Plaintiff, at the Commissioner’s request. (288-292).
Plaintiff acknowledged that she was able to take care of herself and her home,
including preparing food, cleaning, laundry and managing the household finances.
(291). However, Plaintiff reportedly told Caldwell that she had difficulty sleeping,
involving difficulty falling asleep and then frequent awakening during the night; had
panic attacks “three or four times a week”; and had difficulty concentrating. (289).
Plaintiff further stated that she did not like to “go anywhere alone,” and was “too
anxious to grocery shop.” (291). However, upon examination, Caldwell found that
Plaintiff was oriented, with coherent and goal-directed thoughts and no evidence of
hallucinations, delusions or paranoia. (290). Caldwell further reported that Plaintiff’s
attention, concentration and memory were intact, despite her claim to the contrary, and
that her intellectual functioning was average. (290). Caldwell indicated, though, that
Plaintiff appeared dysthymic and anxious, with “fair to poor” insight and judgment.
(290). Caldwell also noted that Plaintiff seemed “very upset throughout the evaluation.”
(290). Caldwell’s medical source statement was as follows:
The claimant is able to follow and understand simple directions and
instructions. She is limited in her ability to perform simple tasks
independently. She is able to maintain attention and concentration,
maintain a regular schedule, and learn new tasks. She is limited in her
ability to perform complex tasks independently, make appropriate
decisions, relate adequately with others, and appropriately deal with
stress. . . . The claimant will be able to manage her own funds.
On October 10, 2013, Clancy reported that Plaintiff claimed to experience
depression, tearfulness, hopelessness, negative thinking, low self esteem, worry and
relationship issues. (367). Clancy indicated that Plaintiff seemed “tearful, reactive,
anxious and sad.” (369). In that regard, Clancy noted that Plaintiff reported “a high level
of anxiety and panic attacks due to her current” living situation with particular family
members, which were triggering “old traumas and experiences.” (371). Plaintiff claimed
to be irritable, sad, and worried, and to have difficulty sleeping and making decisions.
On October 21, 2013, Plaintiff met with Eppolito to have him fill out “papers . . .
for disability.” (354). Plaintiff reported having anxiety, bipolar disorder, difficulty
concentrating, depression, panic disorder, paranoia, racing thoughts and sleep
disturbance. (354). Upon examination, Eppolito noted that Plaintiff appeared to be in
no acute distress, and further stated: “Displays comfort and cooperation during
encounter. Affect is normal. Attentive and able to concentrate.” (355). Also on
October 21, 2013, Clancy reported that Plaintiff seemed “talkative, anxious and
On November 18, 2013, Clancy reported that Plaintiff appeared “talkative,
tearful, anxious and sad.” (364).
On February 10, 2014, Clancy filled out a Mental Residual Functional Capacity
Assessment form for Plaintiff. (362-365). Although, at the administrative hearing held
on March 24, 2014, Plaintiff indicated that she was no longer seeing Clancy for therapy.
(19). Accordingly, it appears that Clancy’s treatment relationship with Plaintiff lasted
approximately one year, or slightly less. In any event, Clancy indicated that Plaintiff
would be either “moderately limited” or “markedly limited” in almost every single one of
the twenty categories set forth on the form. (362-365). The only exception was in
regard to the “ability to perform activities within a schedule,” in which Clancy indicated
that Plaintiff was “not significantly limited.” (362). More specifically, Clancy stated that
Plaintiff would be “moderately limited” with regard to remembering work locations and
procedures, understanding and remembering short and simple instructions,
understanding and remembering detailed instructions, carrying out detailed instructions,
interacting with the public, asking simple questions or requesting assistance, getting
along with co-workers, maintaining socially-appropriate behavior, responding to
changes in the workplace, being aware of normal hazards, traveling to unfamiliar places
and setting realistic goals. (362-365). Clancy further stated that Plaintiff would be
“markedly limited” with regard to maintaining attention and concentration for extended
periods, sustaining an ordinary routine without supervision, working with others, making
simple work-related decisions, completing a normal workday or workweek without
interruptions from mental health symptoms, and accepting direction and criticism from
On September 14, 2012, Plaintiff applied for SSDI benefits, claiming a disability
onset date of January 23, 2009. In connection with that application, the Commissioner
had Plaintiff examind by Dr. Caldwell, as noted earlier. The Commissioner denied
Plaintiff’s claim initially, in part based upon a Mental Residual Functional Capacity
Assessment performed by non-examining, non-treating psychologist T. Inman-Dundon,
Ph.D. (“Inman-Dundon”). (66-68). In making that assessment, Inman-Dundon had
access to Plaintiff’s treatment records and Dr. Caldwell’s consultative report. (61-63).
Inman-Dundon opined that there was no evidence of Plaintiff being limited in her
ability to carry out “very short and simple instructions,” and that Plaintiff was “not
significantly limited” in being able to carry out detailed instructions, sustaining an
ordinary routine without supervision, making simple work-related decisions, and
maintaining socially-appropriate behavior. (66). Inman-Dundon opined, though, that
Plaintiff was “moderately limited” in maintaining attention and concentration for
extended periods, performing activities within a schedule, being punctual, interacting
appropriately with the public, accepting criticism and instruction from supervisors,
getting along with coworkers, responding to changes in the workplace, setting realistic
goals and plans independently of others, completing a normal workday and workweek
without interruptions from psychologically based symptoms and performing at a
consistent pace without an unreasonable number of rest periods. (66-67).
Nevertheless, Inman-Dundon opined that despite these moderate limitations Plaintiff
“would be able to work in a low-stress work environment, not working closely with
On March 24, 2014, a hearing was held before an Administrative Law Judge
(“ALJ”). (5-27). Plaintiff indicated, inter alia, that she was primarily unable to work due
to her mental impairments. For example, Plaintiff acknowledged that her physical
impairments mainly only prevented her from “bending down,” due to knee pain, and
from lifting more than twenty-five pounds. (19). With regard to mental impairments,
Plaintiff stated that she could not return to work because she was “very anxious” and
“depressed,” had “panic attacks,” and “c[ould]n’t sleep,” all of the time. (11-12). When
asked if she could concentrate so as to read a book or finish a television program,
Plaintiff answered, “Sometimes. Sometimes I can’t.” (16). When asked to be more
specific, Plaintiff indicated that she was unable to finish those tasks “probably 50
percent of the time.” (16). Plaintiff indicated that her two-month work attempt as a boxoffice manager failed because she couldn’t concentrate or focus on the computer tasks
she was given. However, Plaintiff also indicated that when she was not working she
spent part of her time performing internet searches for family members. (21-22).
Plaintiff also stated that she kept track of the family’s finances, including making and
scheduling online payments. (22). During the hearing the ALJ took testimony from a
vocational expert (“VE”), which is discussed further below. (23-26).
On July 3, 2014, the ALJ issued her decision, denying Plaintiff’s application for
benefits. (41-53). Applying the familiar five-step sequential analysis used to evaluate
disability claims, the ALJ found, at step one, that Plaintiff had not engaged in
substantial gainful activity since January 23, 2009. (43). At step two, the ALJ found that
Plaintiff has the following severe impairments: “degenerative disc disease, degenerative
joint disease, bipolar disorder, adjustment disorder and anxiety.” (43). The ALJ also
found that Plaintiff’s asthma was a non-severe impairment. (43).
At step three of the analysis, the ALJ found that none of Plaintiff’s impairments
met or medically-equaled the severity of a listed impairment. (44-46). With regard to
Plaintiff’s mental impairments, the ALJ noted that to meet a listed impairment, Plaintiff
would have to demonstrate “marked” difficulties in at least two of four areas, one of
which was the ability to “maintain concentration, persistence or pace.” The ALJ found
that Plaintiff did not exhibit marked difficulties in any of the four areas, and stated, in
[Claimant’s] activities indicate no greater than moderate limitations to [her]
concentration, persistence or pace. These moderate limitations are
reflected within the residual functional capacity finding, which limits the
claimant to simple, routine, and repetitive tasks and low-stress work,
defined as requiring only occasional decisionmaking.
(45). The ALJ noted, however, that her findings at step 3 were “not a residual
functional capacity assessment.” (46).
Prior to reaching step four of the analysis, the ALJ found that Plaintiff had the
following residual functional capacity:
[C]laimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b), except occasional kneel; [sic] able to
perform simple, routine, repetitive tasks; able to work in a low-stress job,
defined as having only occasional decisionmaking required; [sic] no
interaction with the public; and only occasional, superficial interaction with
coworkers and supervisors.
(46). The ALJ indicated that in making that assessment, she had considered the
medical evidence and opinion evidence in accordance with the Commissioner’s
In discussing the medical opinion evidence concerning mental impairments, the
ALJ gave limited weight to aspects of the opinions of Clancy and Caldwell, and great
weight to the opinion of Inman-Dundon. (50-51). The ALJ stated that she gave little
weight to Caldwell’s consultative opinion that Plaintiff was “limited in her ability to
perform simple tasks independently” because it was vague and unsupported by the
examination findings. (51). The ALJ stated that such opinion was vague because it did
not quantify or explain the term “limited.” (51). The ALJ further stated that such opinion
was contrary to the record evidence, which showed that Plaintiff “demonstrated normal
behavior, speech, thought, cognition, orientation, attention, and concentration, despite
some problems with mood and affect” throughout the relevant period. (51). The ALJ
emphasized that such evidence did “not support a finding that [Plaintiff] is limited in her
ability to perform simple tasks independently.” (51). However, the ALJ evidently
credited most of the other aspects of Caldwell’s opinion, such as her opinion that
Plaintiff had limitations relating with people and dealing with stress, since she included
corresponding limitations in the RFC. (46).
The ALJ also indicated that she gave little weight to the portion of Clancy’s
opinion which indicated that Plaintiff had “marked” limitations in various areas, because
it was inconsistent with Plaintiff’s “demonstrations at the consultative examination,” was
unsupported by Clancy’s treatment notes, and contradicted “the overall weight of the
evidence.” (50). The ALJ stated, for example, that Clancy’s opinion that Plaintiff had
“marked” limitations in her ability to maintain attention and concentration was
inconsistent with numerous findings in the record that Plaintiff had normal attention and
The ALJ indicated that she gave great weight to Inman-Dundon’s opinion that
Plaintiff “had no greater than moderate mental limitations and was capable of working in
a low-stress environment, not working closely with others.” (51). The ALJ indicated that
Inman-Dundon’s opinion was consistent with the evidence of record, stating:
Dr. Inman-Dundon’s opinion that the claimant can perform work with
limited social contact and stress levels is supported by the medical record,
which indicates that the claimant had normal behavior, speech, thought,
cognition, orientation, attention, and concentration, despite some
problems with mood, affect, socialization, insight and judgment.
(51). However, the ALJ went even further than Inman-Dundon, by limiting Plaintiff to
“simple, routine, repetitive tasks,” to further limit Plaintiff’s stress. (51).
The ALJ found that Plaintiff’s claims about the severity of her symptoms were not
entirely credible in various respects. (47-51). For example, the ALJ emphasized that
although Plaintiff claimed to have “diminished memory and concentration,” (47), and
problems with “attention,” (48), repeated examinations by both treating- and nontreating sources had found that her attention and concentration were “intact.” (49).
Further, when summarizing “the medical record pertaining to [Plaintiff’s] mental
functioning,” the ALJ found that despite problems with her “mood and affect,” she
“regularly exhibited normal behavior, speech, thought, cognition, orientation, attention
and concentration.” (49). The ALJ therefore concluded that Plaintiff’s complaints to be
not entirely credible, stating:
Based on the claimant’s demonstrations of intact thought, behavior,
cognition, attention, and concentration throughout the period, and
considering her alleged difficulties with concentration and attention, I find
that she is capable of simple, routine, repetitive tasks. . . . [T]he
claimant’s allegations are found to lack credibility based upon their
inconsistency with the objective medical record. For instance, the record
does not support her allegations that she . . . has significantly [sic] mental
limitations. On the contrary, the record indicates . . . [that she has] intact
behavior, speech, thought, cognition, orientation, attention and
concentration, despite problems with mood, affect, socialization, insight,
(50); see also, id. (“[T]he overall weight of the evidence . . . indicates that [Plaintiff] had
normal behavior, speech, though, cognition, orientation, attention, and concentration,
despite some problems with mood and affect.”); (51) (Reiterating, in summary, that
neither the “medical evidence” nor Plaintiff’s “daily activities” corroborated Plaintiff’s
At step four of the sequential analysis, the ALJ found that Plaintiff was unable to
perform her past relevant work, based in part on the VE’s testimony to that effect. (5152).
However, at the fifth and final step, the ALJ found, based upon the VE’s
responses to hypothetical questions, that Plaintiff could perform other work that exists
in significant numbers in the national economy. (52-53). In particular, the ALJ asked
the VE to consider
[a]n individual of the same age, education and work experience as the
claimant . . . able to perform work at a light exertional level as defined by
the regulations, [able to] occasional[ly] kneel, able to perform simple,
routine and repetitive tasks, able to work in a low-stress job defined as
having only occasional decision-making required, no interaction with the
public, only occasional superficial interaction with coworkers and
(24). The VE stated that such a person could perform the jobs of “photocopy machine
operator,” “tagger” and “weight recorder,” all of which are categorized as both light and
unskilled. (53). Consequently, the ALJ concluded that Plaintiff was not disabled at any
Plaintiff appealed, but the Appeals Council declined to review the ALJ’s
On September 25, 2015, Plaintiff commenced this action. On May 20, 2016,
Plaintiff filed the subject motion [#10] for judgment on the pleadings; on July 18, 2016,
Defendant filed the subject cross-motion [#12] for the same relief; and on August 8,
2016, Plaintiff filed a reply [#13].
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). 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.” Id. If the Commissioner applies the correct standards and the
decision is supported by substantial evidence, “the Commissioner's decision must be
upheld, even where substantial evidence may support the plaintiff's position and despite
that the Court's independent analysis of the evidence may differ from the Secretary's.”
Alves v. Colvin, No. 13-CV-3898 RPP, 2014 WL 4827886, at *5 (S.D.N.Y. Sept. 29,
2014) (citation omitted).
The ALJ’s RFC Determination
Plaintiff broadly asserts that “[t]he residual functional capacity finding was the
product of legal error and was unsupported by substantial evidence.”3 However, this
Pl. Memo of Law [#10-1] at p. 10.
portion of Plaintiff’s brief actually makes several discrete arguments: That the ALJ did
not adequately account for Plaintiff’s moderate deficits in concentration, persistence
and pace merely by limiting her to performing “simple, routine, repetitive tasks”; that the
ALJ’s finding that Plaintiff’s “thought, attention, and concentration” were “intact” is
unsupported by substantial evidence; and finally, that the ALJ interpreted InmanDundon’s report “inconsistently,” by giving it “great weight,” yet not expressly
incorporating all of the “moderate limitations” identified therein into the RFC finding.
The Court finds that Plaintiff’s arguments lack merit. In that regard, to the extent
Plaintiff contends that the ALJ was required to expressly include the moderate
limitations (in concentration, persistence and pace) identified at Step 3 in the RFC
determination,4 such argument lacks merit because the ALJ’s findings at step 3 of the
sequential analysis are not an RFC determination.5 See, Whipple v. Astrue, 479 F.App’x
367, 369, 2012 WL 1522005 at *1 (2d Cir. May 2, 2012) (Explaining that the factors for
evaluating the severity of a mental impairment at the third step are not to be applied
when determining the claimant’s RFC). Nor is it necessarily error for an ALJ not to
include findings made at Step 3 in the RFC. See, McIntyre v. Colvin, 758 F.3d 146,
150-151 (2d Cir. 2014) (“McIntyre”) (Rejecting claimant’s argument that ALJ’s decision
was internally inconsistent because findings made at Step 3 were not included in
Pl. Memo of Law [#10-1] at p. 12.
Indeed, with regard to “concentration, persistence or pace,” the issue before the ALJ at step
three of the analysis was only whether Plaintiff had “marked” difficulties in those areas, and the ALJ
answered that question in the negative, finding that Plaintiff had “no greater than moderate limitations.”
RFC).6 Rather, “Step Four findings need only afford an adequate basis for meaningful
judicial review, apply the proper legal standards, and be supported by substantial
evidence such that additional analysis would be unnecessary or superfluous.” McIntyre
v. Colvin, 758 F.3d at 150 (citation and internal quotation marks omitted).
Here, the ALJ’s RFC determination meets those requirements. As shown by the
discussion above, the ALJ conducted a thorough examination of the evidence and
concluded that Plaintiff’s moderate impairments do not prevent her from performing
light work, subject to the specified modifications.7 The finding is supported by
substantial evidence, including the opinion of Inman-Dundon, who indicated that
Plaintiff is able to work notwithstanding her moderate impairments, provided that she is
in a “low-stress work environment, not working closely with others.” (68).8 The RFC
finding also largely tracks Dr. Caldwell’s opinion, except for her statement regarding
Plaintiff’s ability to perform simple tasks independently, discussed further below. (291).
Although Plaintiff cites this Court’s decision in Thompson v. Astrue, No. 10-CV-6576 CJS, 2012
WL 2175781 (W.D.N.Y. May 30, 2012) to argue that any limitations as to concentration, persistence or
pace must be expressly included in the RFC, at least one other Judge in this District has explained that to
the extent such a rule existed at the time Thompson was issued, it no longer applies after McIntyre. See,
Figgins v. Berryhill, 2017 WL 1184341 at *12, n. 2 (W.D.N.Y. Mar. 29, 2017) (“It is important to note here
that before McIntyre, courts appeared to require explicit discussion concentration, persistence, and pace
in the RFC and in the questions asked of the VE, without exception. See Thompson v. Astrue, No.
10-CV-6576 CJS, 2012 WL 2175781, at *13 (W.D.N.Y. May 30, 2012) (Siragusa, J.)”) (emphasis added;
other citation omitted).
“[O]ccasional kneel[ing] . . . simple, routine repetitive tasks . . . low stress . . . defined as
[requiring] only occasional decisionmaking . . . no interaction with the public . . . only occasional interaction
with coworkers and supervisors.”
In this regard, Dr. Inman-Dundon’s opinion was actually less-restrictive than the RFC finding, in
that Inman-Dundon did not limit Plaintiff to performing simple work. In an apparent abundance of caution,
the ALJ went even further, and limited Plaintiff to “simple, routine, repetitive tasks,” in order to “further
limited the stress of any potential job.” (51).
Plaintiff nevertheless contends that the ALJ’s determination in this regard, and
particularly her determination that “Plaintiff demonstrated intact thought, attention, and
concentration,” is unsupported by substantial evidence. However, the Court strongly
disagrees, based upon the evidence of record mentioned earlier, consisting of repeated
findings, by multiple examiners, that Plaintiff’s attention and concentration remained
intact despite fluctuations in her mood. Indeed, Plaintiff’s care providers consistently
found that her overall mental functioning, including her attention and concentration, was
intact, even when she subjectively claimed otherwise.
Plaintiff alternatively contends that the ALJ committed reversible error by failing
to expressly incorporate the aforementioned “moderate limitations” (found at Step 3)
into the hypothetical questions posed to the VE. In that regard, Plaintiff maintains that
an ALJ is not permitted to “account for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical question to simple, routine tasks or
unskilled work,”9 because such limitations do not adequately compensate for a
claimant’s ability to persevere and remain on task. For this proposition, however,
Plaintiff’s supporting memo of law [#10-1] primarily cites authority from other circuits,
while ignoring McIntyre.10
In McIntyre, the Second Circuit held that an ALJ’s failure to explicitly include
non-exertional limitations in hypothetical questions to a VE, while erroneous, may not
require reversal. In particular, the Court stated:
Pl. Memo of Law [#10-1] at p. 11 (quoting an opinion from the Fourth Circuit).
Plaintiff’s reply brief [#13] cites McIntyre.
The hypothetical presented to the vocational expert . . . closely tracked
the ALJ's residual functional capacity assessment made at Step Four of
the analysis, which, as the Commissioner concedes, failed to mention
explicitly McIntyre's non-exertional limitations. The hypothetical added,
however, a limitation to “simple, routine, low stress tasks.”
We have not specifically decided whether an ALJ's hypothetical question
to a vocational expert must account for limitations in concentration,
persistence, and pace. But our case law is plain that the combined effect
of a claimant's impairments must be considered in determining disability;
the Commissioner must evaluate their combined impact on a claimant's
ability to work, regardless of whether every impairment is severe.
Accordingly, an ALJ's hypothetical should explicitly incorporate any
limitations in concentration, persistence, and pace.
We hold, however, that an ALJ's failure to incorporate non-exertional
limitations in a hypothetical (that is otherwise supported by evidence in the
record) is harmless error if (1) medical evidence demonstrates that a
claimant can engage in simple, routine tasks or unskilled work despite
limitations in concentration, persistence, and pace, and the challenged
hypothetical is limited to include only unskilled work; or (2) the
hypothetical otherwise implicitly accounted for a claimant's limitations in
concentration, persistence, and pace.
[S]ubstantial evidence in the record demonstrates that McIntyre can
engage in “simple, routine, low stress tasks,” notwithstanding her physical
limitations and her limitations in concentration, persistence, and pace. By
explicitly limiting the hypothetical to such tasks (after fully explaining
McIntyre's physical restrictions), the ALJ sufficiently accounted for the
combined effect of McIntyre's impairments. The ALJ's error therefore was
McIntyre v. Colvin, 758 F.3d at 151–52 (citations and internal quotation marks omitted).
In the instant case, the Court similarly finds that any error in the ALJ’s
hypothetical question to the VE -- committed by describing Plaintiff as being able to
perform “simple, routine and repetitive tasks,” rather explicitly describing her “moderate
limitations” in concentration, persistence or pace -- was harmless under McIntyre’s
harmless-error test. More specifically, there is substantial medical evidence, such as
Inman-Dundon’s report, indicating that Plaintiff can engage in simple, routine tasks
and/or unskilled work despite her limitations in concentration, persistence, and pace.
(64-68).11 Moreover, the hypothetical question implicitly inquired about only unskilled
jobs, by asking about “simple, routine and repetitive tasks,” and the only jobs identified
by the VE were unskilled. The Court therefore finds, pursuant to McIntyre, that any
error was harmless.
Plaintiff nevertheless contends that the ALJ’s treatment of Inman-Dundon’s
opinion was inconsistent, because she purportedly gave the opinion great weight, but
did not expressly incorporate all of the moderate limitations (in concentration,
persistence or pace) that Inman-Dundon identified into the RFC finding or into
questions posed to the VE. Plaintiff reiterates that the ALJ improperly “reduced” those
opinions by limiting Plaintiff to “simple, routine, repetitive tasks.”12 However, this is just
a variation of Plaintiff’s previous argument, and lacks merit for the same reasons.
The ALJ’s Treatment of Dr. Caldwell’s Report
Plaintiff next contends that the ALJ “selectively relied” on Caldwell’s report, while
failing to ask Caldwell to explain the parts of her report that were vague. In particular,
Again, Inman-Dundon actually indicated that despite Plaintiff’s moderate limitations, she could
work at jobs that were low-stress and did not involve working closely with others, even if they were not
“simple, routine and repetitive.” The ALJ’s addition of the terms “simple, routine and repetitive” benefitted
Plaintiff by further reducing the occupational base. Nevertheless, even with those additional limitations,
the VE identified jobs that Plaintiff could perform.
Pl. Memo of Law [#10-1] at p. 14.
Plaintiff contends that the ALJ erroneously discounted as “vague” that portion of
Caldwell’s report, which indicated that Plaintiff was “limited in her ability to perform
simple tasks independently.” (51). Plaintiff maintains that the ALJ should have sought
clarification from Caldwell as to what she meant by “limited.”13
Plaintiff’s argument on this point lacks merit. Plaintiff contends that the ALJ
“selectively relied upon” Caldwell’s opinion, except for the portion indicating that Plaintiff
was limited in her ability to perform simple tasks independently. However, this is just
another way of indicating that the ALJ’s RFC finding is almost entirely consistent with
Caldwell’s opinion. Indeed, as already discussed, Caldwell opined that Plaintiff could
follow and understand simple directions and instructions, maintain attention and
concentration, maintain a regular schedule, learn new tasks, and manage her own
funds. (291-292). Thus, the “inconsistent treatment” consists of the fact that the ALJ
rejected a single sentence from Caldwell’s report: “She is limited in her ability to perform
simple tasks independently.” (291).
On this point, the Court does not agree that the ALJ was required to re-contact
Caldwell before giving little weight to that single opinion. The ALJ gave two reasons for
affording “little weight” to that opinion: First, because it was vague; and second,
because it was not supported by the overall record. Both observations are supported
by substantial evidence. Caldwell’s statement that Plaintiff is “limited” in performing
simple tasks independently is, in fact, vague, because it does not quantify the limitation.
However, that fact is somewhat irrelevant, because even if Caldwell had quantified her
Defendant responds that the ALJ had no duty to develop the record, since there were no obvious
gaps in the record.
opinion, the ALJ went on to indicate that Caldwell’s own report, and, more importantly,
the overall record, fail to indicate that Plaintiff is limited in her ability to perform simple
tasks independently (51). As the ALJ correctly observed, apart from finding that
Plaintiff had “problems with mood, affect, insight, judgment and social skills,” Caldwell’s
examination was largely unremarkable, as Plaintiff “demonstrated normal behavior,
speech, thought, cognition, orientation, attention and concentration.” (51). Moreover,
Caldwell’s report acknowledged that Plaintiff performed a large number of simple tasks
independently each day. (290-291). The ALJ continued by noting that, according to the
overall record, “throughout the period, the claimant demonstrated normal behavior,
speech, thought, cognition, orientation, and concentration, despite some problems with
mood and affect. (Ex. 1F-4F, 8F, 10F, 11F).” (51). Accordingly, the ALJ’s observation,
that the record contradicts Caldwell’s opinion that Plaintiff would be limited in
performing simple tasks independently, is supported by substantial evidence.14
Plaintiff attempts to argue otherwise by asserting that “[a]ll of the evidence in this
case points to serious limitations in [Plaintiff’s concentration, persistence and pace] and
[her] ability to engage in simple tasks.”15 However, the Court disagrees for the reasons
already discussed. Namely, there is substantial evidence that Plaintiff can work on a
sustained basis despite her moderate nonexertional impairments.
In sum, the Court does not agree with Plaintiff that the ALJ was required to seek
clarification from Caldwell before assigning “little weight” to her opinion that Plaintiff is
The evidence of record indicating that Plaintiff is able to perform simple tasks independently is
so voluminous, and the evidence to the contrary so lacking, that the Court wonders whether Caldwell’s
statement in that regard was a drafting error.
Pl. Memo of Law [#10-1] at p. 17 (emphasis added).
limited in performing simple tasks independently.
The ALJ’s Credibility Determination
Plaintiff next contends that the ALJ’s credibility determination was erroneous and
unsupported by substantial evidence. For example, Plaintiff contends that the ALJ
failed to support her finding, that medications “improved her mental functioning,” with
citations to the record.16 Indeed, Plaintiff suggests that her mental functioning did not
“improve” while on medication.17 Plaintiff further indicates that the ALJ failed to
consider that her medications “affect[ed her] ability to concentrate, persist or maintain a
consistent pace throughout a workday.”18 Additionally, Plaintiff maintains that the ALJ
“failed to consider the corroborating opinion evidence regarding [her] subjective
complaints of psychological symptoms.”19
However, the Court disagrees with all of those assertions. To begin with,
Plaintiff’s suggestion that her condition did not improve with medication is clearly
refuted by the record. Rather, the record indicates that medication greatly improved,
but did not entirely eliminate, her symptoms. Indeed, as noted above, in July 2012,
Plaintiff indicated that she wanted to stop taking her medications because she was
“doing [so] well.” (267-268). The ALJ therefore accurately noted that Plaintiff’s
condition improved with medication. See, e.g., (50) (“Despite ongoing symptoms related
to her mental impairments, such as mood fluctuations, the medical record indicates that
Pl. Memo of Law [#10-1] at p. 18.
Pl. Memo of Law [#10-1] at p. 18-19.
Pl. Memo of Law [#10-1] at p. 19.
Pl. Memo of Law [#10-1] at p. 19.
her condition improved and stabilized with medication.”).
Further, Plaintiff’s assertion that her medications negatively affected her
concentration, persistence or pace (and that the ALJ failed to consider such fact), is
unsupported by the record. At the very least, there is substantial evidence that Plaintiff
did not experience side-effects from her medications. For example, on October 26,
2011, Ramsgard noted that Plaintiff was not experiencing side effects from her
medications. (340) (“Pt. notes she is stable on current meds, no SE [side effects] or
complaints.”); see also, (261) (“Pt. continues on current medication regiment with good
effects, denies any noted side effects[.]”).
Nor does the Court agree that the ALJ failed to consider “corroborating opinion
evidence” when assessing Plaintiff’s credibility. Rather, the ALJ’s decision indicates
that she carefully considered all of the opinion evidence, and her conclusions regarding
the weight to be assigned to those opinions are supported by substantial evidence.
Plaintiff’s application [#10] for judgment on the pleadings is denied, Defendant’s
cross-motion [#15] is granted, and this action is dismissed.
Dated: Rochester, New York
October 18, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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