Vargas v. Colvin

Filing 17

DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/25/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ARCADIO VARGAS, JR.,
No. 6:16-cv-06114(MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION

Represented by counsel, Arcadio Vargas, Jr. (“Plaintiff”)
instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying his application for Disability Insurance Benefits (“DIB”)
and

Supplemental

Security

Income

(“SSI”).

This

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
Plaintiff protectively filed concurrent applications for DIB
and SSI on January 31, 2012. After these applications were denied,
Plaintiff requested a hearing, which was scheduled to be held by

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

administrative

law

judge

Joseph

L.

Brinkley

(“the

ALJ”)

on

December 4, 2013. However, the hearing was postponed to give
Plaintiff the opportunity to obtain a representative. Plaintiff was
unable to find representation, and the hearing was held on May 6,
2014.

(T.35-114).2

unfavorable

On

decision.

August

14,

(T.14-34).

2014,
The

the

Appeals

ALJ

issued

Council

an

denied

Plaintiff’s request for review on January 6, 2016, making the ALJ’s
decision the final decision of the Commissioner. (T.1-4). This
timely action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step procedure established by the
Commissioner

for

evaluating

§§ 404.1520, 416.920.

disability

claims.

See

20

C.F.R.

At the first step, the ALJ found that

Plaintiff had not engaged in substantial gainful activity since the
alleged onset date.

2

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.

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At

step

two,

the

ALJ

determined

that

Plaintiff

has

the

following “severe” impairments: Raynaud’s disease, degenerative
disc disease, mechanical instability of the left patella, bilateral
leg/neck/back pain, major depressive disorder, generalized anxiety
disorder, bipolar disorder, and a learning disability. (T.19-20).
At

step

three,

the

ALJ

found

that

Plaintiff’s

severe

impairments, considered singly or in combination, do not meet or
equal one of the impairments listed in the Listings, 20 C.F.R.
Part 404, Subpart P, Appendix I. (T.19-21). The ALJ gave particular
consideration to Listings 1.02, 1.04, 4.00, 11.00, 12.02, 12.04,
12.06, and 14.00.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform a range
of light work, with some modifications to the physical and mental
demands of such work. Specifically, Plaintiff can sit, stand, and
walk each independently for up to one (1) hour at a time without
interruption and without the need to rest in between positions; can
sit for a total of six (6) hours in an eight-hour workday with
interruptions and regularly scheduled breaks; can stand and walk
for a combined total of three (3) hours with interruptions and
regularly

scheduled

breaks;

can

frequently

use

his

upper

extremities to handle, finger, grasp, and feel bilaterally; can
occasionally reach and lift overhead with his upper extremities,
bilaterally; can occasionally operate foot and leg controls with

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his lower extremities, bilaterally; can occasionally climb ramps or
stairs, balance, kneel, and stoop; should never crawl, crouch, or
climb ladders, ropes, or scaffolds; must avoid even moderate
exposure to bright, flashing lights and more than fluorescent
lighting;

and

must

avoid

concentrated

exposure

to

wetness,

vibrations, extreme hot or cold temperatures, and workplace hazards
including unprotected heights, dangerous machinery, and uneven
terrain.

Additionally,

Plaintiff

is

limited

to

performing

unskilled, simple, routine, and repetitive tasks; although he can
frequently engage in superficial contact with the general public.
Finally, he is limited to low-stress work that does not require
high-volume production quotas or fast-paced assembly lines. (T.21).
At step four, the ALJ found that Plaintiff is unable to
perform his past relevant work of building superintendent, delivery
driver, or painter, all of which were medium exertion jobs. (T.27).
At step five, the ALJ relied on the testimony of the VE, who
stated that a person of Plaintiff’s age (40 years-old at the time
of the hearing) and having his RFC, education, and vocational
profile, could perform work a surveillance system monitor (D.O.T.
379.367-010, svp 2, sedentary), of which there were greater than
20,000 jobs in the national economy, and greater than 500 jobs in
the state economy). (T.27-28). Accordingly, the ALJ concluded that
Plaintiff

was

not

disabled

within

(T.28-29).

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the

meaning

of

the

Act.

DISCUSSION
I.

Failure to Perform the “Special Technique” Regarding Mental
Impairments
Plaintiff argues that the ALJ did not properly follow the

“special

technique”

for

evaluating

mental

impairments,

which

allegedly affected the ALJ’s analysis at steps two and three of the
sequential evaluation. As the Second Circuit has explained, the
Commissioner

has

promulgated

additional

regulations

governing

evaluations of the severity of mental impairments, see 20 C.F.R.
§§ 404.1520a, 416.920a, which “require application of a ‘special
technique’

at

the

second

and

third

steps

of

the

five-step

framework, Schmidt v. Astrue, 496 F.3d 833, 844 n. 4 (7th Cir.
2007), and at each level of administrative review.” Kohler v.
Astrue, 546 F.3d 260, 265–66 (2d Cir. 2008) (citing 20 C.F.R.
§ 404.1520a(a)); see also 416.920a(a)). The special technique
“requires the reviewing authority to determine first whether the
claimant has a ‘medically determinable mental impairment[,]’” id.
(quoting 20 C.F.R., § 404.1520a(b)(1), and, “[i]f the claimant is
found to have such an impairment, the reviewing authority must
‘rate the degree of functional limitation resulting from the
impairment(s) in accordance with paragraph (c),’” id. (quoting
20

C.F.R.

§

404.1520a(b)(2)). Paragraph

(c)

of 20

C.F.R.

§§

404.1520a and 416.920a “specifies four broad functional areas:
(1)

activities

of

daily

living;

(2)

social

functioning;

(3) concentration, persistence, or pace; and (4) episodes of
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decompensation.”

Kohler,

546

F.3d

at

266

(citing

20

C.F.R.

§ 404.1520a(c)(3)); see also 20 C.F.R. § 416.920a(c)(3)). These
four broad functional areas are also contained in the “paragraph B”
criteria for several listed impairments, see 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.00; as well as in “paragraph D” of Listing
12.05, the Listing for intellectual disability. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.05. In the first three areas, the
degree of limitation is assessed using a five-point scale: none,
mild, moderate, marked and extreme. In the fourth area, the degree
of limitation is assessed using a four-point scale: none, one or
two,

three,

four

416.920a(c)(4).
findings

and

ALJs

or

more.

must

conclusions

20

C.F.R.

incorporate
in

§§

their

their

404.1520a(c)(4),
special

decisions.

technique
20

C.F.R.

§§ 404.1520a(e)(2), 416.920a(e)(2).
The Commissioner argues that the ALJ did in fact perform the
special technique analysis. (See Def’s Mem. at 17 (citing Pl’s Mem.
at 18 (citing T.20-21)). Plaintiff concedes this, but contends that
the application of the special technique was flawed because “the
ALJ never considered whether Mr. Vargas had a severe impairment of
intellectual disability.” (Pl’s Mem. at 17). Although the ALJ did
identify

a

learning

disability

as

one

of

Plaintiff’s

severe

impairments (T.20), a finding which Plaintiff acknowledges, the
ALJ’s “application of the special technique was not made pursuant
to Listing 12.05.” (Pl’s Mem. at 18). The Commissioner counters

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that the special technique is not performed separately for each
Listing; instead, the same findings for each of the four functional
areas are referenced when considering whether the applicable listed
mental impairments are met. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00. The Court agrees with the Commissioner. Even
assuming that there was error, which the Court does not find to be
the case, it was harmless because the ALJ rated Plaintiff’s four
areas

of

functional

limitation

listed

in

20

C.F.R.

§§ 404.1520a(c)(3) and 416.920a(c)(3), and explained how he weighed
the relevant evidence and reached his conclusions regarding the
severity

of

Plaintiff’s

mental

impairments.

Contrast

with

Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 662 (4th
Cir. 2017) (“We cannot affirm the ALJ’s evaluation of Patterson’s
mental impairment because his decision did not explain how he
weighed all relevant evidence: he did not rate Patterson’s four
areas

of

functional

limitation

listed

in

§

404.1520a(c)(3)

according to the prescribed scale, nor did he explain how he
reached

his

conclusions

about

the

severity

of

the

mental

impairment.”) (citing 20 C.F.R. §§ 404.1520a(c), 404.1520a(d)).
Furthermore, Plaintiff’s argument that the ALJ erred because
the “application of the special technique was not made pursuant to
Listing 12.05” rings hollow since Plaintiff does not actually argue
that he meets or equals Listing 12.05. Moreover, Plaintiff does not
challenge the ALJ’s special technique findings on as unsupported by

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substantial evidence or based on an inaccurate characterization of
the record.
II.

Failure to Adequately Develop the Record
Plaintiff asserts that the ALJ was obligated to seek more

information from his primary care physician, Dr. Jae Hyun Shin.
(See Pl’s Mem. at 19-23).

Plaintiff does not claim that the record

evidence was inadequate to reach a decision or that specific
records were missing. Instead, Plaintiff asserts that the ALJ was
required to request that Dr. Shin elaborate on her medical source
statements. (See id. at 22-23).
“[B]y statute, an ALJ is duty bound to develop a claimant’s
complete medical history for at least twelve months prior to the
filing of an application for benefits, but also to gather such
information for a longer period if there [is] reason to believe
that the information [is] necessary to reach a decision.” DeChirico
v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998); see also 20 C.F.R.
§§ 404.1512(d), 416.912(d). Whether to seek further evidence is a
matter within an ALJ’s discretion. See Rosa v. Callahan, 168 F.3d
72, 79, n.5 (2d Cir. 1999) (“[W]here there are no obvious gaps in
the administrative record, and where the ALJ already possesses a
‘complete medical history,’ the ALJ is under no obligation to seek
additional information . . . .”) (citing Perez v. Chater, 77 F.3d
41, 48 (2d Cir. 1996)).

-8-

Here, the substance of the actual evidence from Dr. Shin did
not obligate the ALJ to re-contact him. Moreover, they do not
support Plaintiff’s disability claim and were not entitled to any
significant weight. The Commissioner’s regulations provide that
medical opinions reflect judgments on what the claimant can still
do,

and

in

particular

judgments

based

on

objective

medical

evidence. 20 C.F.R. §§ 404.1527(a)(2), (c)(3)-(4), 416.927(a)(2),
(c)(3)-(4). Dr. Shin did not provide actual medical opinions or
assessments of Plaintiff’s alleged functional limitations. To the
contrary,

in

response

to

Plaintiff’s

repeated

requests

for

disability forms, Dr. Shin agreed to provide responses outside her
specialty, in the form of notes taking Plaintiff “off work” for a
few months at a time. For instance, on July 25, 2012, Plaintiff
brought Dr. Shin a “DSS form,” saying that he needed it “filled
[out] stating he cannot work due to his psychiatric conditions.”
(T.463; see also T.412. 459-68). Dr. Shin issued another referral
for a psychiatric evaluation, and completed the “DSS form” by
indicating that Plaintiff was not able to work for three months due
to depression. (T.464). He instructed Plaintiff to have any future
forms completed by one of his mental health providers. (T.464).
Plaintiff did not comply, however, and returned to Dr. Shin with
the same type of form on October 5, 2012, and made the same
request. Notably, Dr. Shin, who was not a specialist in psychiatry
or mental health issues, did not endorse any physical limitations

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on any of these forms.3 A statement such as this by Dr. Shin that
an

individual

instead,

it

is
is

unable
a

to

statement

work

is

not

a

on

an

issue

medical
reserved

opinion;
to

the

Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d); see also SSR
96-5p, 1996 WL 374183. Even a treating source’s statement as to a
claimant’s

disability

status

is

not

entitled

to

any

special

significance and can never be given controlling weight. Finally,
Plaintiff does not suggest what would have been gained had Dr. Shin
been re-contacted. See Reices-Colon v. Astrue, 523 F. App’x 796,
799 (2d Cir. 2013) (unpublished opn.) (“Reices–Colon’s record
supplementation argument is similarly baseless. She identifies no
specific record that was missing, much less explains how it would
have affected her case.”). A
III. Failure to Weigh Opinion from Examining Physician
Plaintiff contends that the ALJ erred by failing to mention,
much less explain the weight given to, what he describes as an
“opinion” from Dr. Barbara E. Weber at Rochester General Hospital
TWIG Medical Associates. The complete notation by Dr. Weber to
which Plaintiff refers states as follows: “qualifies for SSD/SSI
likely.” (T.410). However, Plaintiff omits the word “likely” from
his memorandum of law. That discrepancy aside, the Court agrees

3

A fair reading of the record indicates Dr. Shin was not inclined to support
Plaintiff’s disability claim, given that he consistently attempted to decline
completing the disability forms that Plaintiff presented to him.

-10-

with the Commissioner that the ALJ did not err in his handling of
Dr. Weber’s statement.
Medical opinions reflect judgments on what the claimant can
still do, and in particular judgments based on objective medical
evidence.

20

C.F.R.

§

404.1527(a)(2),

(c)(3)-(4);

id.

§ 416.927(a)(2), (c)(3)-(4). “The final question of disability is
. . . expressly reserved to the Commissioner.” Snell v. Apfel, 177
F.3d

128,

133–34

(2d

Cir.

1999)

(citing

20

C.F.R.

§ 404.1527(e)(1)); see also 20 C.F.R. § 416.927(e)(1). Therefore,
a statement, even by a treating physician, that a claimant is
unable to work or qualifies for disability, is never entitled to
any special significance or weight. See Titles II & Xvi: Med.
Source Opinions on Issues Reserved to the Comm’r, SSR 96-5P, 1996
WL 374183, at *2 (S.S.A. July 2, 1996) “[T]reating source opinions
on issues that are reserved to the Commissioner are never entitled
to controlling weight or special significance. Giving controlling
weight to such opinions would, in effect, confer upon the treating
source the authority to make the determination or decision about
whether an individual is under a disability, and thus would be an
abdication

of

the

Commissioner’s

statutory

responsibility

to

determine whether an individual is disabled.”).
As noted above, the complete notation by Dr. Weber to which
Plaintiff refers is that “learning disability qualifies for SSD/SSI
likely poor employment h/x [history].” The comment was made in the

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treatment note for Plaintiff’s appointment to establish care with
Dr.

Weber.

appointment

Thus,

given

with

Dr.

that

Weber,

it
it

was
is

Plaintiff’s

clear

that

very

this

first

comment

represents Dr. Weber merely summarizing Plaintiff’s subjective
statements about his conditions. Dr. Shin, who provided care to
Plaintiff at the same facility as Dr. Weber, notably did not
endorse Plaintiff’s claim that he was disabled based on a learning
disability.

In

one

of

his

notes

under

the

heading

“Learning

disability,” Dr. Shin wrote, “Patient qualifies for SSD/SSI? Will
discuss with Dr. Weber, who has seen the patient on his first visit
about possible evaluation for this reason[.]” (T.437; emphases
supplied).

This

note

from

Dr.

Shin

shows

that

Plaintiff’s

qualification for SSD/SSI based on a learning disability was by no
means an established or consistent opinion on the part of Dr. Weber
or

Dr.

Shin.

Nor

did

any

of

Plaintiff’s

mental

health

care

providers ascribe to this conclusion that his alleged learning
disability was disabling. Any error in failing to discuss this
comment in detail was harmless since it would have had no bearing
on the ALJ’s ultimate decision. See Zabala v. Astrue, 595 F.3d 402,
409-10 (2d Cir. 2010) (finding remand was unwarranted “[b]ecause
the report that the ALJ overlooked was not significantly more
favorable to” the claimant, and there was “no reasonable likelihood
that her consideration of [that evidence] would have changed the
ALJ’s determination that [the claimant] was not disabled”).

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IV.

ALJ’s Mistaken Reference to Single Decision Maker
Plaintiff argues that remand is warranted because the ALJ

erroneously referred to the conclusions of a single decision maker
(“SDM”) that Plaintiff retained the ability to perform light,
unskilled

work

comprised

of

simple

tasks,

in

a

low-contact

environment. (T.115, 122). In his decision, the ALJ noted that an
SDM “evaluated the claimant for a functional assessment. While a
single decision maker is an unacceptable medical source, I have
nonetheless accounted for this evaluation in assessing the severity
of the claimant’s alleged conditions.” (T.24). However, Plaintiff
argues, “SDM-completed forms are not opinion evidence at the appeal
levels.” Program Operations Manual System (POMS) DI 24510.050.
Courts in this Circuit and elsewhere have held that In any event,
the POMS guidelines “‘have no legal force, and they do not bind the
Commissioner.’” Lluberes v. Colvin, No. 13 CIV. 4027 RJS GWG, 2014
WL 2795256, at *10 (S.D.N.Y. June 20, 2014) (quoting Tejada v.
Apfel, 167 F.3d 770, 775 (2d Cir. 1999) (citing Schweiker v.
Hansen, 450 U.S. 785, 789 (1981)) (internal brackets omitted);
Binder & Binder PC v. Barnhart, 481 F.3d 141, 151 (2d Cir. 2007);
Carillo–Yeras v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011) (noting
that POMS “does not impose judicially enforceable duties on either
this court or the ALJ”) (internal quotation marks and citations
removed); Miller v. Astrue, No. 3:07–CV–1093(LEK/VEB), 2009 WL

-13-

2568571, at *14 (N.D.N.Y. Aug. 19, 2009) (“[F]ailing to apply the
POMS is not legal error.”)).
Plaintiff

has

offered

nothing

but

speculation

that

this

erroneous reference by the ALJ had any bearing whatsoever on the
decision. The Court has found nothing in the record to suggest that
the ALJ’s consideration of the SDM’s functional assessment led him
to formulate a RFC with fewer restrictions. In fact, the ALJ’s RFC
assessment was generally more restrictive than the SDM’s opinion.
After considering the remaining evidence in the record, excluding
the SDM’s report, the Court finds that the ALJ’s RFC determination
remains supported by substantial evidence. Accordingly, even if
there was error any error by the ALJ in relying upon the opinion an
SDM, it was harmless. See Shaw v. Astrue, No. 1:10-CV-02350-JLT,
2013 WL 204742, at *18 (E.D. Cal. Jan. 17, 2013) (ALJ gave weight
to multiple SDMs; district court did “not consider[ ] the opinions
of the single decision makers in its evaluation, and the ALJ’s RFC
determination remains supported by substantial evidence, including
the opinions of several physicians. Accordingly, any error by the
ALJ in relying upon the opinions of single decision makers was
harmless”)

(citation

omitted);

Anderson

v.

Astrue,

No.

09-CV-01436-LTB, 2010 WL 1553797 (D. Colo. Apr. 16, 2010) (ALJ’s
reference to the opinion of SDM was no more than harmless error
since there were numerous references in the SSI claimant’s medical
record concerning the claimant’s dependency on pain medication to

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manage her complaints; these records were largely consistent with
the opinions of the SDM that formed the primary basis for the ALJ's
decision).
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is free of harmful legal error and is based
on substantial evidence. Accordingly, it is affirmed. Defendant’s
motion for judgment on the pleadings is granted, and Plaintiff’s
motion for judgment on the pleadings is denied. The Clerk of Court
is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 25, 2017
Rochester, New York.

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