Wright v. Commissioner of Social Security
DECISION AND ORDER granting 10 Motion for Judgment on the Pleadings. Plaintiff defaulted in responding to Defendants motion, and the Court is therefore cancelling oral argument and issuing its decision. Defendants application is granted and this action is dismissed.Signed by Hon. Charles J. Siragusa on 6/23/17. Copy of this Decision and Order and the NEF mailed to pro se plaintiff at 183 Metropolitan Drive, Rochester, NY 14620 (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
For the Plaintiff:
Lesa Wright, pro se
183 Metropolitan Drive
Rochester, New York 14620
For the Defendant:
David L. Brown
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 Lesa Wright (“Plaintiff”) for Supplemental Security
Income Benefits. Now before the Court is Defendant’s motion (Docket No. [#10]) for
judgment on the pleadings. Oral argument had been scheduled to be heard on August
3, 2017. However, Plaintiff defaulted in responding to Defendant’s motion, and the
Court is therefore cancelling oral argument and issuing its decision. Defendant’s
application is granted and this action is dismissed.
The reader is presumed to be Defendant’s motion [#10], which contains a
recitation of the pertinent facts. The Court has reviewed the administrative record [#8]
and will reference it only as necessary to explain this Decision and Order.
Plaintiff claims to be disabled due to both physical and mental impairments, but it
is clear that the physical impairments are not disabling in and of themselves, and merely
limit the exertional level at which Plaintiff can work. In that regard, Plaintiff claims to
have significant pain in her left shoulder, from a healed fracture. Plaintiff treats the pain
with Ibuprofen as needed. (53). Plaintiff maintains that the shoulder pain limits her
ability to lift the left arm above her head or to use it repetitively. (55). Medical opinion
evidence indicates that Plaintiff has a moderate limitation on pushing, pulling, lifting and
reaching involving the left shoulder. (236-239). 1 Plaintiff also has diabetes that she
treats with medication, diet and exercise. During her consultative internal medication
examination, Plaintiff reportedly “denie[d] any complications from diabetes.” (236).
The main thrust of Plaintiff disability claim is her contention that non-exertional
impairments limit her ability to work. More specifically, Plaintiff claims to suffer from
depression and anxiety, for which she takes Paxil. (53). Plaintiff contends that the Paxil
otherwise noted, citations are to the administrative record [#8].
causes her to feel fatigued. (56, 57). Plaintiff contends that the depression, anxiety and
fatigue limit her ability to concentrate, and require her to take a nap after any period of
prolonged concentration. Plaintiff further claims that she has difficulty getting along with
people. (58). 2
On September 24, 2014, the ALJ conducted a hearing at which Plaintiff appeared
by herself and waived her right to have an attorney. (49). The issue before the ALJ was
whether Plaintiff was disabled at any time between May 28, 2013 (the date that the SSI
application was filed) and the date of his decision. 3 Plaintiff’s treatment records,
covering the period 2011-2014, were sparse, and consisted primarily of office notes
from her visits to her primary care physician, for monitoring of her diabetes and other
routine matters. 4 Plaintiff was prescribed Paxil for anxiety and depression during that
period, but did not seek mental health counseling or other treatment. Plaintiff indicates
that she had previously received counseling between 2006-2008, and did not find it
The only medical source opinions were from a consulting internist and a
consulting psychologist, each of whom examined Plaintiff once, and a non-examining
agency review physician. None of these medical source opinions indicated that Plaintiff
was unable to work. The consulting internist, Harbinder Toor, M.D. (“Toor”), reported
assertion, unlike most of her others, appears to be amply supported by the record, as
Plaintiff was astonishingly rude and combative toward the Administrative Law Judge (“ALJ”) throughout
the entire hearing. (45-74). Plaintiff apparently has had several prior disability claims processed and
denied, and therefore wrongly assumed that the ALJ ought to know everything about her.
3See, Frye ex rel. A.O. v. Astrue, 485 Fed.Appx. 484, 485 n.1 (2d Cir. Jun. 13, 2012) (Observing
that the relevant time period for an SSI benefits application is “the date the SSI application was filed, to ...
the date of the ALJ's decision”).
4Transcript [#8], Exhibits B1F, B5F and B6F (66 pages total).
that Plaintiff engaged in normal activities of daily living, such as cooking, cleaning,
shopping and providing childcare. (237). The consultative psychologist, Yu-Ling Lin,
Ph.D. (“Dr. Lin”), noted that Plaintiff’s “manner of relating was poor,” that her affect and
mood were “irritable,” and that she had stated, in response to being asked to perform a
certain test of attention and concentration, that she “was not in the mood to perform the
task.” (243). The psychologist indicated that Plaintiff was “markedly limited in relating
adequately with others and [in] dealing with stress.” (244). On this point, the
psychologist commented that Plaintiff’s “difficulties are caused by a lack of motivation
and stress-related problems.” (244). The psychologist further opined that while
Plaintiff’s examination results were “consistent with psychiatric problems,” those
problems did “not appear to be significant enough to interfere with [her] ability to
function on a daily basis.” (244).
The ALJ gave “significant weight” to the medical opinions, and found, with regard
to exertional limitations, that Plaintiff could perform light work, except that she could not
engage in “overhead reaching” with her left arm. (15). With regard to non-exertional
impairments, the ALJ found, inter alia, that Plaintiff could perform simple unskilled work
(with breaks every two hours), requiring only “routine, superficial” contact with coworkers during 1/3 of the workday or less, and further requiring no contact with the
public. (15). Overall, applying the familiar five-step sequential analysis used to evaluate
disability claims, the ALJ found that Plaintiff could not perform any past relevant work,
but that she could perform other jobs, such as “Inspector,” DOT 559.687-074, and
“Packager,” DOT 753.687-038. (18). Consequently, the ALJ denied Plaintiff’s
application for SSI benefits.
Plaintiff appealed, alleging only that “a lot of the [ALJ’s] statements” were “lies
[that were] not true.” (6). While the appeal was pending, Plaintiff sent a letter to the
Appeals Council, indicating that her diabetes condition had worsened. The Appeals
Council declined to review the ALJ’s determination.
On March 10, 2016, Plaintiff filed the subject action, proceeding pro se. Plaintiff’s
Complaint [#1] does not indicate why she believes that the Commissioner’s
determination is incorrect. On March 9, 2017, Defendant filed a motion for judgment on
the pleadings, and on March 14, 2017, the Court issued a Motion Scheduling Order
[#11], directing Plaintiff to file and serve any response on or before May 8, 2017.
Plaintiff did not file a response, nor has she otherwise contacted the Court.
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.
Plaintiff’s Complaint [#1] does not explain why she filed this action, and she
defaulted in responding to Defendant’s motion for judgment on the pleadings.
Consequently, the Court has no idea why Plaintiff believes that the Commissioner’s
ruling should be reversed, except that she apparently thinks that the ALJ’s
determination contains “lies.” Despite that, the Court cannot simply grant Defendant’s
unopposed motion. Rather,
[w]hen, as here, the Court is presented with an unopposed motion, it may
not find for the moving party without reviewing the record and determining
whether there is sufficient basis for granting the motion. Although failure
to respond may allow the district court to accept the movant's factual
assertions as true, the moving party must still establish that the
undisputed facts entitle him to a judgment as a matter of law. Additionally,
pro se litigants are entitled to a liberal construction of their pleadings, and
therefore their complaints should be read to raise the strongest arguments
that they suggest.
Diaz v. Colvin, No. 13-CV-664 MAT, 2014 WL 2931583, at *3 (W.D.N.Y. June 27, 2014)
(citations and internal quotation marks omitted).
Having reviewed the entire record, the Court believes that the strongest
argument that Plaintiff could have raised is that the ALJ failed to develop the record.
However, for the reasons discussed below, that argument lacks merit.
Plaintiff reportedly obtained mental health counseling at “Rochester
Rehabilitation” between 2006 and 2008. (146, 196). Plaintiff indicated that she stopped
attending such therapy because she felt that she was “getting worse” as a result, not
better. (61-62) (“I already went to counseling for two years, it didn’t work. . . .
Counseling didn’t help me, made me worse.”); (196) (“I was getting worse.”). The
record does not contain any notes from those sessions. 5 However, the Court cannot
appears that the agency reviewer who initially denied Plaintiff’s claim unsuccessfully attempted
to obtain the records. (40).
say that the ALJ erred by failing to obtain them. The ALJ has a duty to “develop a
complete medical history of at least the preceding twelve months” before the hearing.
42 U.S.C.A. § 423(d)(5)(B) (West 2017); see also, 20 C.F.R. § 416.912(b)(1) (“[W]e will
develop your complete medical history for at least the 12 months preceding the month
in which you file your application unless there is a reason to believe that development of
an earlier period is necessary or unless you say that your disability began less than 12
months before you filed your application.”); but see, DeChirico v. Callahan, 134 F.3d
1177, 1184 (2d Cir. 1998) (“[T]he ALJ was required not only to develop DeChirico's
complete medical history for at least the twelve-month period prior to the filing of his
application, but also to gather such information for a longer period if there was reason to
believe that the information was necessary to reach a decision.”) (citation omitted). The
Rochester Rehabilitation records involve Plaintiff’s condition as it existed five years prior
to the date of her application, and the Court cannot say that the ALJ abused his
discretion by failing to obtain them.
The ALJ obtained records from Plaintiff’s primary care physician, Eric Richard,
M.D. (“Richard”), who apparently had been providing the only mental health treatment
that Plaintiff received in the years leading up to the ALJ’s decision. (23, 62). Such
treatment consisted of prescribing Paxil for anxiety and depression. (23). On May 27,
2014, during an office visit, Plaintiff reportedly “state[d] [that] her mood is well controlled
with use of Paxil 25 mg total daily.” (275).
There is no indication that the ALJ sought an opinion from Dr. Richard
concerning the effect, if any, of Plaintiff’s anxiety or depression on her ability to work.
Many courts in this circuit have held that the ALJ has a duty to develop the record to
obtain an opinion from a treating source whenever possible:
The duty to develop the record goes hand in hand with the treating
physician rule, which requires the ALJ to give special deference to the
opinion of a claimant's treating physician. An ALJ cannot, of course, pay
deference to the opinion of the claimant's treating physician if no such
opinion is in the record. Thus, consideration of the duty to develop the
record, together with the treating physician rule, produces an obligation
that encompasses the duty to obtain information from physicians who can
provide opinions about the claimant. The ALJ must make reasonable
efforts to obtain a report prepared by a claimant's treating physician even
when the treating physician's underlying records have been produced.
Paredes v. Comm'r of Soc. Sec., No. 16-CV-00810 (BCM), 2017 WL 2210865, at *17
(S.D.N.Y. May 19, 2017) (citations and internal quotation marks omitted). 6
The Second Circuit has indicated, however, that an ALJ’s failure to obtain such a
report does not necessarily require remand where the record otherwise contains
sufficient information about the claimant’s residual functional capacity. See, Tankisi v.
Comm'r of Soc. Sec., 521 F. App'x 29, 34 (2d Cir. 2013) (Interpreting the
Commissioner’s regulations to mean that “remand is not always required when an ALJ
fails in his duty to request opinions, particularly where, as here, the record contains
sufficient evidence from which an ALJ can assess the petitioner's residual functional
capacity.”); see also, Swiantek v. Comm'r of Soc. Sec., 588 F. App'x 82, 84 (2d Cir.
also, Marcano v. Berryhill, No. 13CV3648NSRLMS, 2017 WL 2571353, at *16, n. 52
(S.D.N.Y. Mar. 29, 2017) (“It is true that, in many respects, an ALJ's obligation to develop the record
dovetails with the treating physician rule. The duty to develop a full record compels the ALJ to obtain
from the treating source expert opinions as to the nature and severity of the claimed disability. Until he or
she satisfies this threshold requirement, the ALJ cannot even begin to discharge his or her duties under
the treating physician rule.”) (citations and internal quotation marks omitted), report and recommendation
adopted sub nom. ISMAEL MARCANO, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER
OF SOCIAL SECURITY, Defendant., No. 13CV3648NSRLMS, 2017 WL 2560926 (S.D.N.Y. June 13,
2015) (“Given the extensive medical record before the ALJ in this case, we hold that
there were no ‘obvious gaps’ that necessitate remand solely on the ground that the ALJ
failed to obtain a formal opinion from one of MLS's treating physicians.”).
Here, the Court does not believe that the ALJ’s failure to obtain a report from
Richard requires remand. Indeed, the Court believes that a remand for that purpose
would be an exercise in futility, since the medical notes give no indication that such a
report would support Plaintiff’s claim of disability. The subject records, spanning a
period of several years (2011-2014), contain only a few passing references to Plaintiff’s
alleged anxiety and depression, within office notes devoted to other medical issues
unrelated to Plaintiff’s claim. The most extensive of these was the following twosentence statement, written on January 28, 2013: “Continues to take Paxil, is afraid to
taper off because she has ‘anger management problems.’ Not interested in seeing a
therapist now but considering contacting psychiatrist for med management.”7 (211). A
subsequent office note indicated that Plaintiff’s anxiety was well-controlled with Paxil.
The notes do not indicate that any mental status exams were performed, nor do they
suggest that Plaintiff’s anxiety/depression were evident or limited her activities.
On the other hand, the report of the consulting psychologist, Dr. Lin, who
conducted a full psychological examination, contains far more information than Dr.
Richard’s notes about Plaintiff’s mental condition. Dr. Lin observed Plaintiff when her
irritability and poor manner of relating to people were on full display, and she
nevertheless opined that Plaintiff’s mental impairments were not severe enough to
appears that Plaintiff was interested in changing medications because she was “aware that
Paxil [was] . . . contraindicated for use in pregnancy.” (211).
interfere with her ability to function on a daily basis. Accordingly, the Court finds that
the ALJ had sufficient information upon which to make a determination without
requesting a report from Dr. Richard.
Further, the Court finds that the Commissioner’s decision is supported by
Defendant’s motion [#10] for judgment on the pleadings is granted and this action
is dismissed. The Clerk of the Court is directed to close this action. The Court hereby
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not
be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is
denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed
on appeal as a poor person should be directed, on motion, to the United States Court of
Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of
Dated: Rochester, New York
June 23, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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