Avant v. Colvin

Filing 15

-CLERK TO FOLLOW UP-DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Defendant's Motion for Judgment on the Pleadings. The Commissioner's decision is affirmed. Signed by Hon. Michael A. Telesca on 10/5/16. The Clerk of the Court is directed to close this case. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EMMANUEL JERMAINE AVANT,
No. 6:15-cv-06671(MAT)
DECISION AND ORDER

Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION

Represented by counsel, Emmanuel Jermaine Avant (“Plaintiff”)
brings this action pursuant to Title XVI of the Social Security Act
(“the

Act”),

seeking

review

of

the

final

decision

of

the

Commissioner of Social Security (“the Commissioner”) denying his
application for Supplemental Security Income (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
On October 23, 2012, Plaintiff filed an application for SSI
alleging disability since January 1, 2003, due to depression,
anxiety,

attention

deficit

hyperactivity

disorder

(“ADHD”),

affective disorder, intermittent explosive disorder, asthma, and
rhabdomyolysis. See T.39, 42-44, 47, 67, 77, 139-40, 150.1 After
1

Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.

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this application was denied, Plaintiff requested a hearing, which
was held before administrative law judge Brian Kane (“the ALJ”) on
April 11, 2014. Plaintiff appeared with his attorney and testified,
as did an impartial vocational expert. T.36-65. On July 10, 2014,
the ALJ issued an unfavorable decision. T.19-29. The Appeals
Council denied Plaintiff’s request for review on September 18,
2015,

making

the

ALJ’s

decision

the

final

decision

of

the

Commissioner. This timely action followed.
The parties have filed cross-motions for judgment on the
pleadings and supporting memoranda of law, but neither party has
filed a reply brief. The parties have comprehensively summarized
the administrative transcript in their briefs, and the Court adopts
and incorporates these factual summaries by reference. The Court
will discuss the record evidence in further detail below, as
necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is affirmed.
THE ALJ’S DECISION
The ALJ found at step one that Plaintiff had not engaged in
substantial

gainful

activity

since

October

23,

2012,

the

application date. T.21. At step two, the ALJ assessed Plaintiff as
having the following “severe” impairments: intermittent explosive
disorder,

psychotic

disorder,

mood

disorder,

and

generalized

anxiety disorder. Id. At step three, the ALJ determined that

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Plaintiff’s impairments, considered singly or in combination, did
not meet or medically equal any listed impairment found in 20
C.F.R. Part 404, Subpart P, Appendix 1. T.22-23. The ALJ gave
particular consideration to Listings 12.04 (affective disorders)
and 12.06 (anxiety-related disorders). T.22-23. The ALJ proceeding
to determine that Plaintiff had the residual functional capacity
(“RFC” to perform a full range of work at all exertional levels but
could only frequently (i.e., two-thirds of a workday) have contact
with coworkers and the public. T.23.
At step four, the ALJ determined that Plaintiff, who was 23
years-old on the application date, was a younger individual, with
no past relevant work, a limited education, and the ability to
communicate in English. T.27. At step five, the ALJ referred to the
hypothetical presented to the VE’s at the hearing, namely, a person
with no exertional limitations, but “could only occasionally deal
with” “co-workers and the public.” T.60. The VE testified that a
person with such an RFC and Plaintiff’s vocational profile could
perform jobs existing in significant numbers in the national
economy, such as industrial cleaner (Dictionary of Occupational
Titles (“DOT”) 381.687-018: unskilled, SVP 2, medium exertional
work) and cleaner II (DOT 919.687-014: unskilled, SVP 1, medium
exertional work). T.28. The ALJ found that since Plaintiff’s RFC to
perform a “full range of work at all exertional levels but with a
limitation to frequent contact with coworkers and the public is

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less restrictive than the hypothetical given to the

vocational

expert,” “the jobs provided by the vocational expert [were] still
valid.” T.28. Based on the testimony of the VE, the ALJ concluded
that, considering Plaintiff’s age, education, work experience, and
RFC, he is capable of making a successful adjustment to other work
that exists in significant numbers in the national economy, and a
finding of “not disabled” was appropriate under the framework of
section 204.00 in the Medical-Vocational Guidelines.

Id.

SCOPE OF REVIEW
When considering a claimant’s challenge to the Commissioner’s
decision denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted),

but

“defer[s]

to

the

Commissioner’s

resolution

of

conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118,
122 (2d Cir. 2012) (citation omitted)). “The deferential standard
of

review

for

substantial

evidence

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,

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112 (2d Cir. 1984)).
DISCUSSION
Plaintiff argues that the ALJ’s mental RFC determination was
not supported by substantial evidence because the ALJ (1) failed to
incorporate limitations on maintaining concentration, persistence,
or pace; (2) failed to give reasons for discounting the opinions
issued by consultative psychologist Dr. Yu-Ying Lin and state
agency medical consultant Dr. M. Apacible; and (3) improperly
implicitly rejected Dr. Lin’s and Dr. Apacible’s opinions that
Plaintiff could perform only simple work. See Pl’s Mem. at 8-11.
Plaintiff was examined by Dr. Lin on November 21, 2012, at the
Commissioner’s request. T.319-20. Dr. Lin opined that Plaintiff
could follow and understand simple directions and instructions,
perform

simple

tasks

independently,

maintain

attention

and

concentration, maintain a regular schedule, learn new tasks, and
perform

complex

tasks

with

supervision.

Dr.

Lin

opined

that

Plaintiff could not make appropriate decisions, relate adequately
with others, or deal appropriately with stress. T.320-21. While the
results

of

the

examination

appeared

to

be

consistent

with

psychiatric problems, Dr. Lin stated that they did not appear to be
significant

enough

to

interfere

with

Plaintiff’s

ability

to

function on a daily basis. T.321. Dr. Lin diagnosed Plaintiff with
intermittent explosive disorder; psychotic disorder, not otherwise
specified (“NOS”); mood disorder, NOS; cannabis abuse, in full

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remission; and generalized anxiety disorder. Plaintiff’s prognosis
was “guarded to fair.”

T.321.

Several weeks later, Dr. Apacible reviewed Plaintiff’s medical
records and opined that he could perform simple jobs, “not working
closely with others.” T.72-74. Dr. Apacible also completed a
psychiatric review technique form (“PRTF”) and found that Plaintiff
had mild restrictions in activities of daily living; moderate
difficulties
maintaining

in

social

functioning;

concentration,

mild

persistence,

experienced no episodes of decompensation.

or

difficulties
pace;

and

in
had

T.70-71.

The Court turns first to Plaintiff’s argument that the ALJ’s
RFC assessment failed to incorporate his findings, at steps two and
three of the sequential evaluation, that Plaintiff had “moderate”
limitations in maintaining concentration, persistence, or pace. As
the Commissioner argues, the ALJ’s finding that Plaintiff had
“moderate” difficulties in maintaining concentration, persistence,
or pace was not an RFC assessment. Rather, that finding pertained
to the ALJ’s determination at steps two and three that, while
Plaintiff’s intermittent explosive disorder, psychotic disorder,
mood disorder, and generalized anxiety disorder were “severe”
impairments, they did not meet or equal a listed impairment because
Plaintiff did not have “marked” limitations in two domains of
functioning

or

an

“extreme”

limitation

in

one

domain

of

functioning. See T.21-23. Indeed, the ALJ specifically stated that

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the limitations assigned to, inter alia, Plaintiff’s ability to
maintain concentration, persistence, or pace were not an RFC
assessment, but were used only to rate the severity of Plaintiff’s
mental impairments at steps two and three.

T.23.

“An ALJ’s decision is not necessarily internally inconsistent
when an impairment found to be severe is ultimately found not
disabling: the standard for a finding of severity under Step Two of
the sequential analysis is de minimis and is intended only to
screen out the very weakest cases.” McIntyre v. Colvin, 758 F.3d
146, 151 (2d Cir. 2014) (citing Dixon v. Shalala, 54 F.3d 1019,
1030 (2d Cir. 1995)). The “special technique” applied at steps two
and three assesses the functional effects of a claimant’s mental
impairments, but it “is entirely separate and analytically distinct
from, a subsequent determination of mental residual functional
capacity[,]” Golden v. Colvin, No. 5:12-CV-665 GLS/ESH, 2013 WL
5278743, at *3 (N.D.N.Y. Sept. 18, 2013) (emphases in original),
where the focus is on “an assessment of an individual’s ability to
do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis.” SSR 96 8p, TITLE II AND
XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, 1996
WL 374184, at *1, *7 (S.S.A. July 2, 1996) (emphases added). Thus,
what is “most essential” in determining a claimant’s mental RFC “is
evaluation

of

functional

effects

of

mental

impairments

on

work-related activities such as understanding, carrying out, and

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remembering instructions; using judgment in making work-related
decisions; responding appropriately to supervision, co-workers and
work situations;

and

dealing

with

changes

in

a

routine

work

setting.” Golden v. Colvin, at 2013 WL 5278743, at *3 (citing SSR
96 8p, 1996 WL 374184, at *1). “If it can be shown that the
itemized evidence which led to the finding of a moderate limitation
on ‘concentration, persistence, or pace’ was ignored during the RFC
assessment, then this would be error.” Peryea v. Comm’r of Soc.
Sec., No. 5:13–CV–0173 (GTS/TWD), 2014 WL 4105296, at *10 (N.D.N.Y.
Aug. 20, 2014). Here, however, Plaintiff has not made such a
showing. In applying the special technique and finding moderate
difficulties in maintaining concentration, persistence, the ALJ
noted that while Plaintiff said he has trouble remembering things
and has a short attention span, he also testified that he could
follow

written

instructions.

instructions,

and

sometimes

follow

spoken

In addition, he testified that he wrote music as a

hobby. During the consultative psychological examination, Dr. Lin
found that Plaintiff’s ability to concentrate was “intact,” though
his memory “appeared to be impaired, due to nervousness in the
examination and possible limited intellectual functioning.” T.320.
Dr.

Lin’s

opinions

thus

were

essentially

consistent

with

Plaintiff’s statements regarding his ability to concentrate and
remember. Dr. Lin opined, at the conclusion of his report, that
Plaintiff

could

follow

and

understand

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simple

directions

and

instructions,

perform

simple

tasks

independently,

maintain

attention and concentration, maintain a regular schedule, learn new
tasks, and perform complex tasks with supervision. The evidence
that

the

ALJ

cited

when

finding

a

“moderate”

limitation

on

concentration, persistence or pace was not inconsistent with Dr.
Lin’s clinical findings and opinions, which supported the RFC
determination. There were additional observations from Plaintiff’s
mental

health

assessment,

care

providers

including

that

that

supported

Psychiatric-Mental

the

mental

Health

RFC

Nurse

Practitioner-Clinical Specialist Jo Ann Streb and Licensed Clinical
Social Worker Amy Meier routinely noted that Plaintiff’s short-term
memory and long-term memory were intact, and Psychiatric Nurse
Practitioner

John

Rushforth

observed

during

an

Evaluation/Management & Psychotherapy appointment in July 2013,
that Plaintiff had an adequate attention span and concentration.
T.360.
The Court turns next to Plaintiff’s contention that the ALJ
improperly afforded only “some weight” to Dr. Lin’s opinion.
Plaintiff’s actual objection is to the ALJ’s failure to adopt
certain aspects of Dr. Lin’s report, namely, the statements that
Plaintiff could not make appropriate decisions, relate adequately
with others or deal appropriately with stress. See T.320-21. Dr.
Lin’s statement that Plaintiff cannot relate adequately with others
appears to be based more on Plaintiff’s subjective description of

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his symptoms rather than the doctor’s clinical observations; Dr.
Lin observed during the examination that Plaintiff’s “demeanor was
cooperative,” he made “appropriate” eye contact, and his “[m]anner
of relating was adequate.” T.319. Moreover, as the ALJ noted,
Plaintiff’s mental status examinations by his treatment providers
were “largely normal” insofar as he displayed a “cooperative”
attitude,

“appropriate”

“appropriate”

affect,

behavior,

“good”

eye

“appropriate”
contact,

and

speech,

an

“appropriate”

judgment. Even when Plaintiff was noted to have an “angry” or
“mildly angry” mood, he nevertheless was “cooperative,” with an
“appropriate” affect, “good” eye contact, “appropriate” behavior,
“calm” motor activity, “appropriate” speech, “logical” thought
processes, “goal directed” thought content, and “intact” short- and
long-term memory. E.g., T.311.
Relatedly, Plaintiff argues that the ALJ failed to adopt Dr.
Apacible’s opinion that Plaintiff can perform a job “not working
closely with others.” The ALJ found that Dr. Apacible “overstate[d]
the extent to which the claimant would have problems working with
co-workers and the public.” T.27. Looking at the more specific
underlying findings regarding Plaintiff’s social functioning, Dr.
Apacible’s

opinion

is

not

inconsistent

with

the

ALJ’s

RFC

assessment. While Dr. Apacible opined that Plaintiff’s ability to
accept instructions and respond appropriately to criticism from
supervisors and to get along with coworkers or peers without

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distracting

them

“[m]oderately

or

exhibiting

limited,”

Dr.

behavioral

Apacible

opined

extremes

that

was

Plaintiff’s

abilities to interact appropriately with the general public, to ask
simple questions or request assistance, and maintain socially
appropriate behavior were “[n]ot significantly limited.” T.73-74.
“Although the ALJ’s conclusion may not perfectly correspond
with any of the opinions of medical sources cited in his decision,
he was entitled to weigh all of the evidence available to make an
RFC finding that was consistent with the record as a whole.” Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (unpublished opn.)
(citing Richardson v. Perales, 402 U.S. 389, 399 (1971) (“We
therefore

are

presented

with

the

not

uncommon

situation

of

conflicting medical evidence. The trier of fact has the duty to
resolve that conflict.”)). All of Plaintiff’s arguments focus on
the substantiality of the evidence supporting the ALJ’s decision.
However, as the Second Circuit has explained, “whether there is
substantial evidence supporting the [claimant]’s view is not the
question

.

.

.

;

rather,

[the

Court]

must

substantial evidence supports the ALJ’s decision.”

decide

whether

Bonet ex rel.

T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (summary order)
(citation omitted). After examining the present record in light of
the highly deferential standard of review that governs factual
sufficiency

of

an

agency’s

substantial

evidence

decision,

supports

the

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the

ALJ’s

Court

finds

determination,

that
and

therefore it must be affirmed. See Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013) (“If there is substantial evidence to support
the [agency’s] determination, it must be upheld.”).
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Judgment on
the Pleadings is denied, Defendant’s Motion for Judgment on the
Pleadings is granted, and the Commissioner’s decision is affirmed.
The Clerk of the Court is directed to close this case.
SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

October 5, 2016
Rochester, New York.

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