Miller v. Colvin

Filing 13

DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/20/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
REBECCA SYDNEY MILLER,
No. 6:16-cv-06467(MAT)
DECISION AND ORDER

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

Represented by counsel, Rebecca Sydney Miller (“Plaintiff”)
instituted this action pursuant to Title II of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner”) denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
Plaintiff

protectively

filed

an

application

for

DIB

on

August 23, 2012, alleging disability as of February 28, 2010, due
to depression, colon prolapse, chronic diarrhea, and malnutrition.
The claim was denied initially, and Plaintiff filed a written
request for a hearing. On July 18, 2014, a hearing was conducted by
administrative
Rochester,

New

law

judge

York.

Connor

(T.33-85).1

J.

O’Brien

Plaintiff

(“the

appeared

ALJ”)
with

in
her

1

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

attorney and testified, as did impartial vocational expert Julie A.
Andrews (“the VE”). The ALJ issued an unfavorable decision on
October 30, 2014. (T.15-28). The Appeals Council denied Plaintiff’s
request for review on May 10, 2016, making the ALJ’s decision the
final decision of the Commissioner. Plaintiff then timely commenced
this action.
Plaintiff

filed

a

motion

for

judgment

on

the

pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and
Defendant filed a cross-motion under Rule 12(c). No replies were
filed. The Court adopts and incorporates by reference herein the
undisputed and comprehensive factual summaries contained in the
parties’ briefs. The Court will discuss the record evidence further
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

followed

the

five-step

sequential

evaluation

established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520, 416.920.
At step one, the ALJ found that Plaintiff meets the insured
status requirements of the Act through December 31, 2015, and has
not engaged in substantial gainful activity (“SGA”) since the
alleged onset date. Plaintiff testified that she has been working
20 hours a week at a cigar shop, which the ALJ found does not meet
the earnings threshold for SGA. (T.20).
-2-

At

step

following

two,

the

“severe”

ALJ

determined

impairments:

that

Plaintiff

depression,

has

anxiety,

the

chronic

irritable bowel syndrome (“IBS”), and history of rectal prolapse.
(T.20).
At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.,
Pt. 404, Subpt. P, App. 1 (“the Listings”). (T.20). The ALJ gave
particular consideration to Listing 12.04 (Affective disorders) and
Listing 12.06 (Anxiety disorders) and found that Plaintiff has
“mild

restriction”

in

activities

of

daily

living;

“moderate

difficulties” in social functioning; “moderate difficulties” in
maintaining

concentration,

persistence,

or

pace;

and

had

not

experienced any episodes of decompensation. (T.21). Therefore, the
“paragraph B” criteria of Listings 12.04 and 12.06 were not met.
The

ALJ

also

found

that

the

“paragraph

C”

of

these

listed

impairments were not met. (Id.).
The ALJ assessed Plaintiff as having the residual functional
capacity

(“RFC”)

to

perform

light

work,

with

the

following

limitations:
she can tolerate occasional exposure to hazards and
occasional changes in work setting. She can work to meet
daily goals, but [can]not maintain an hourly, machinedriven, assembly line production rate. She requires up to
three short, unscheduled, less-than-5-minute breaks in
addition to the regularly scheduled breaks. She can
interact with the public at Dictionary of Occupational
Titles
(DOT)
people
function
levels
6
(speaking/signaling),
7
(serving),
and/or
8
-3-

(helping/taking instructions). She cannot engage in
teamwork. She is restricted to unskilled work, and is
only occasionally able to make work-related decisions or
judgments.
(T.22).
At step four, the ALJ found that Plaintiff had past relevant
work (“PRW”) as a lab assistant; scientific helper; research
assistant

II; laboratory

animal

facility

supervisor;

material

handler; machine packager; sterilizer; eye glass/contact inspector;
and data entry clerk. (T.26). Given Plaintiff’s RFC, the ALJ found
her unable to perform the demands of her PRW since all jobs either
exceeded

her

current

physical

exertional

capability,

or

were

skilled or semi-skilled level.
At step five, the ALJ noted that Plaintiff was a “younger
individual age 18-49” (41 years-old on the onset date), with at
least a high school education (she has a bachelor’s degree in
biological sciences). The ALJ relied on the VE’s testimony to find
that Plaintiff could perform the requirements of representative
occupations such as housekeeper cleaner (DOT 323.687-014, SVP 2,
light, 1.1 million jobs in the national economy); and mail clerk
(DOT 209.687-026, SVP 2, light, 164,563 jobs in the national
economy). (T.27-28). Accordingly, the ALJ entered a finding of not
disabled. (T.28).
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is

-4-

limited to determining whether the Commissioner’s findings were
supported

by

substantial

record

evidence

and

whether

the

Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The 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). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
I.

RFC Not Supported by Substantial Evidence
A.

Erroneous Weighing of Opinions from Treatment Providers

Plaintiff argues that if the ALJ had properly weighed the
medical opinion evidence, the only possible conclusion is that
Plaintiff is disabled based on her difficulty in dealing with
stress. According to Plaintiff, even low-stress work does not
account for her severe limitations in dealing with stress. In
support of this argument, Plaintiff cites the reports issued by the
consultative psychologist and her therapist.
-5-

1.
On

Consultative Psychologist Dr. Christine Ransom

November 12, 2012, Dr. Ransom conducted a consultative

examination of Plaintiff at the Commissioner’s request. Plaintiff
presented as cooperative and socially appropriate, and had average
intellectual

functioning,

coherent

and

goal

directed

thought

processes, and good insight and good judgment. (T.395, 396-97).
However, she also had lethargic motor behavior, downcast eyes, slow
and halting speech, a moderately to markedly dysphoric mood and
affect,

moderately

impaired

moderately

impaired

statement,

Dr.

difficulty

following

memory.

Ransom

attention
(T.396).

opined

and

that

and
For

concentration,
her

Plaintiff

understanding

simple

medical
had

and

source

“moderate”

directions

and

instructions, performing simple tasks independently, maintaining
attention and concentration for simple tasks, maintaining a simple
regular schedule and learning simple new tasks; and would have
“moderate to marked” difficulty performing complex tasks, relating
adequately with others, and appropriately dealing with stress.
(T.396). The ALJ gave “some” weight to Dr. Ransom’s opinion but
found the more restrictive portions to be unpersuasive because they
were inconsistent with treating source records showing relatively
benign examination findings and Plaintiff’s own activities. (T.25).
It was permissible for the ALJ to credit portions, but not all, of
the consultative psychologist’s report since “[g]enuine conflicts
in the medical evidence are for the Commissioner to resolve.” Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citation omitted).
-6-

As discussed below, the ALJ’s weighing of Dr. Ransom’s opinion was
supported by

substantial evidence. See id. (“The record plainly

contained conflicting psychological evaluations of Veino’s present
condition, and it was within the province of the ALJ to resolve
that evidence in the way she did.”); see also Barry v. Colvin, 606
F. App’x 621, 624 (2d Cir. 2015) (summary order) (similar).
After reviewing the entire record, it is apparent that at the
time of her consultative examination with Dr. Ransom in November of
2012, Plaintiff was at a particularly low point in her depression.
She had recently suffered the loss of her father due to pneumonia,
and she informed Dr. Ransom that her depression had worsened that
year

as

a

result.

(T.394).

In

addition,

she

was

on

a

sub-

therapeutic dosage of antidepressant, which was discovered after
she

obtained

a

psychiatric

referral

to

Unity

Mental

Health

Services from her primary care physician Dr. Bharat Gupta. (T.424).
On August 6, 2013, Plaintiff had a screening appointment with
Licensed Clinical Social Worker (“LCSW”) Mary Ann Wilson at Unity
Mental Health Services. (T.442). On October 14, 2013, Dr. Nusrat
Shafiq, a psychiatrist at Unity, evaluated Plaintiff (T.450-54),
and observed that she a sad mood and affect, and thoughts of
helplessness, appropriate behavior, unremarkable motor movements,
average eye contact, normal speech, logical and coherent thought
form, normal perceptions, good insight, good judgment, and no
apparent cognitive

deficits.

(T.453-54).

-7-

Dr.

Shafiq

diagnosed

Plaintiff

with

depressive

disorder

and

disorder2

anxiety

and

recommended an increased dosage of Effexor. (T.450). However,
because

Plaintiff

obtained

her

medication

through

a

patient-assistance program, the prescription itself had to come
from Dr. Gupta’s office. (T.429). On November 5, 2013, Dr. Gupta
increased Plaintiff’s Effexor dosage as recommended by Dr. Shafiq.
The

medical

records

and

treatment

notes

that

post-date

Dr. Ransom’s November 2012 consultative report reveal a general
trend

of

improvement

in

Plaintiff’s

depressive

symptoms.

On

December 5, 2013, Plaintiff reported to Dr. Gupta that she felt
better, was calm, and was able to sleep better. (T.433). On
examination, Dr. Gupta found that Plaintiff had an appropriate mood
and affect, normal insight and normal judgment. (T.435). Dr. Gupta
noted that her depression was improving. (T.433). On January 9,
2014, Plaintiff reported to Dr. Gupta that her medication “is
working” and she “feels her life is better.” (T.437). Plaintiff saw
Psychiatric Nurse Practitioner (“PNP”) Carol Coy on April 1, 2014,
for medication management, and reported that she was experiencing
relationship problems and had suffered a miscarriage. She was
having “intermittent” thoughts of suicide but had no plan, and PNP
Coy did not consider her to be an imminent risk for self-harm.

2

On initial screening, LCSW Wilson also indicated “rule out” diagnoses of
personality disorder post-traumatic stress disorder (PTSD), but these diagnoses
were never confirmed.

-8-

(T.457-58).3 She explained that she liked her job at a cigar shop
though she was having trouble remembering things. She was meeting
with a therapist, and finding that helpful. (T.458). PNP Coy
increased Plaintiff’s Effexor dosage.
On April 23, 2014, Licensed Mental Health Counselor (“LMHC”)
Elena

Pilato

indicated

that

Plaintiff

had

been

making

“fair

progress” over their six sessions, was insightful, and was actively
engaged in therapy. (T.462). Plaintiff told LMHC Pilato that she
enjoyed her job at the cigar shop and found it fulfilling. (T.462).
The

record

does

indicates

that

Plaintiff

experienced

a

worsening of her depression, but this was caused by her being
switched from brand-name Effexor to venlafaxine, a generic version
of that drug. (See T.512). On May 20, 2014, Plaintiff reported to
LMHC Pilato that she had “noticed such a difference in her mood
since being on generic Effexor.” (Id.). By the time of her next
appointment
obtained

with

LMHC

brand-name

Pilato on

Effexor

and

May

30,

reported

2014,
that

Plaintiff had
her

mood

had

“improved already being on non-generic Effexor.” (T.515). Plaintiff
reported that she felt more stable and in control, and was still
enjoying her job at the tobacconist. On June 5, 2014, Plaintiff saw
her psychiatrist, Dr. Shafiq, and informed him that she felt better
since being on the non-generic Effexor, was eating and sleeping
well, was “not crying anymore for no reason,” and was able to deal

3

Subsequent records do not contain references by Plaintiff to suicidal
ideation or other thoughts of self-harm.

-9-

with her multiple life stressors. (T.518). On June 19, 2014, at her
therapy appointment with LMHC Pilato, Plaintiff presented with an
elevated

mood

and

affect

despite

dealing

with

a

major

life

stressor, namely, her brother being hospitalized due to advanced
alcoholism. (T.524-25).
The record contains additional mental health treatment notes
and reports submitted to the Appeals Council, covering June 26,
2014, through October 30, 2014, the date of the ALJ’s decision. On
June 26, 2014, Plaintiff was “more upbeat and talkative” despite
being worried about her brother’s health problems and struggle with
alcoholism.
boyfriend

She

was

reported

still

going

her

romantic

well.

relationship

(T.529).

On

July

with
17,

her

2014,

Plaintiff discussed with LMHC Pilato how “happy and great” her
relationship with her boyfriend was. (T.532). On August 28, 2014,
Plaintiff reported that she was going to a cabin in the Adirondacks
with some friends and that everything was going well at her job.
(T.544). Plaintiff saw her new psychiatrist, Dr. Raja Rao, on
September 30, 2014, who described her depressive symptoms as “mild”
and noted that her mood was euthymic. (T.560). On October 1, 2014,
Plaintiff reported to her therapist that she had been working
harder and taking on more responsibilities at the tobacconist. She
liked the added responsibilities and said she would enjoy working
as a supervisor if that job were offered to her. (T.556). Plaintiff
also noted that her stomach issues and other physical problems had
improved since being fitted with an IUD. (Id.). On October 29,
-10-

2014, Plaintiff reiterated to LMHC Pilato that work was going well,
and that she “really enjoyed” working at the tobacco shop. (T.565).
Plaintiff noted that her “only current concern” was her sadness
about her brother’s recent death, and how she missed him. (Id.). On
November 5, 2014, Plaintiff reported that things were going well
with her boyfriend. She was continuing to grieve her brother’s
death. On December 11, 2014, Plaintiff said that things were going
well at work, and she recently had received a raise. (T.577). On
December 23, 2014, Plaintiff reported to Dr. Rao that the sadness
in the pit of her stomach was gone; she was “happy” and “content”.
(T.580). Dr. Rao described her mood as euthymic. (T.581). On
December 30, 2014, Plaintiff told LMHC Pilato that she was “so
happy” about her relationship with her boyfriend and that the
“despair” she had been feeling was “gone.” She reported being able
to deal better with the loss of her brother. (T.584). These records
also reflect a continued trend of improvement in Plaintiff’s
depressive symptoms, notwithstanding the presence of various life
stressors, including her brother’s untimely death.
Finally, the Court notes that Dr. Ransom’s opinion does not
necessarily mandate a conclusion of disability due to the complete
inability to deal with stress. Other courts in this Circuit have
affirmed decisions denying benefits in cases where the record
contains an opinion that the claimant has a “marked” limitation in
performing a work-related function, such as found by Dr. Ransom.
See, e.g., Humes v. Colvin, 3:14-CV-0512, 2016 WL 1417823, at *2
-11-

(N.D.N.Y. Apr. 11, 2016) (no error in Report and Recommendation
finding that a “marked” limitation in lifting, carrying, bending or
squatting assigned by consultative physician was not inconsistent
with State agency medical consultant that claimant could perform
light work); Fiducia v. Comm’r of Soc. Sec., No. 1:13-CV-285, 2015
WL

4078192,

at

*4

(N.D.N.Y.

July

2,

2015)

(“The

fact

that

[claimant] was found to have a marked limitation interacting with
others does not conclusively demonstrate that she is unable to
work, particularly given the fact that the ALJ limited [her] to
work that does not require more than occasional interaction with
the public and co-workers.”).
2.
On

May

Therapist Elena Pilato, LMHC
16,

2014,

LMHC

Pilato

completed

a

mental

RFC

questionnaire (T.501-06), opining that Plaintiff could understand,
remember and carry out very short and simple instructions; maintain
regular attendance and be punctual within customary tolerances;
sustain an ordinary routine without special supervision; make
simple work-related decisions; ask simple questions or request
assistance; interact appropriately with the general public; and be
aware of normal hazards and appropriate precautions. (T.503-04).
LMHC Pilato assessed that, for less than 10 percent of an 8-hour
work day (i.e., less than 48 minutes), Plaintiff’s symptoms would
interfere with her ability to understand and remember work-like
procedures,

maintain

attention

and concentration

for

two-hour

segments; work in coordination with or proximity to others without
-12-

being unduly distracted; perform at a consistent pace without an
unreasonable number and length of rest periods; accept instructions
and respond appropriately to criticism from supervisors; get along
with

co-workers

exhibiting

or

peers

behavioral

without

extremes;

unduly

and

distracting

respond

them

or

appropriately

to

changes in a routine work setting. (T.503-04). From 11 percent to
20 percent of an 8-hour work day (i.e., from 52.8 minutes to 96
minutes),

Plaintiff

could

not

complete

a

normal

workday

and

workweek without interruptions from psychologically based symptoms
and deal with normal work stress. (Id.). According to LMHC Pilato,
Plaintiff would be off-task more than 30 percent of the time due to
her symptoms, and could not work more than part-time or per diem.
(T.504). The ALJ assigned “some weight” to LMHC Pilato’s mental RFC
questionnaire. (T.25-26).
Under the Commissioner’s Regulations, LMHC Pilato is not an
“acceptable medical source,” but instead is considered an “other
source.” See SSR 06-03P, 2006 WL 2329939, at *2 (S.S.A. Aug. 9,
2006).

While

sources,’”

the

id.,

Commissioner
only

“may

“acceptable

use

evidence

medical

from

sources”

‘other
can

be

considered treating sources, whose medical opinions may be entitled
to controlling weight. Id. (citations omitted).
Plaintiff faults the ALJ for declining to accept LMHC Pilato’s
opinion that she could only work part-time or per diem. (T.26). The
ALJ reasoned, based on other evidence in the record, that Plaintiff
could perform some jobs full-time if they had lower demands.
-13-

(T.26). Plaintiff’s testimony supports this aspect of the RFC
assessment. At the hearing, Plaintiff explained that she left her
last full-time job as a cancer researcher and laboratory manager
because of a loss of funding in her research laboratory at the
University

of

Michigan,

rather

than

because

of

her

medical

conditions (including issues with stress). (T.42). Upon moving to
western New York, she declined a research job at the University of
Rochester because the salary offered was too low—not because she
could not cope with the demands of the position based on her stress
and other medical conditions. (T.45). As Defendant argues, the fact
that Plaintiff stopped working full-time due to issues unrelated to
her impairments undermines LMHC Pilato’s conclusion that Plaintiff
is incapable of full-time work.
Furthermore, the Court notes that LMHC Pilato’s restrictive
RFC questionnaire was completed on May 16, 2014, at the same time
that Plaintiff was experiencing a significant exacerbation of her
symptoms due to her medication being switched from the brand-name
to the generic version. As noted in the foregoing section, on
May 20, 2014, Plaintiff reported to LMHC Pilato that she had
noticed a significant difference in her mood since being on generic
Effexor; she was much more irritable and depressed. Furthermore, as
set forth above, LMHC Pilato’s treatment notes reflect an overall
improvement in Plaintiff’s depression and anxiety as a result of
her

compliance

with

her

medication

regimen

and

consistent

participation in therapy. The ALJ’s decision to accord only “some
-14-

weight” to LMHC Pilato’s opinion was not legally erroneous and was
supported by substantial evidence.
B.

Failure to Account for Plaintiff’s Limitations in Dealing
with Stress

Plaintiff argues that the RFC is not supported by substantial
evidence

because

the

ALJ

failed

to

fully

address

what

she

characterizes as the “marked and preclusive” limitation in dealing
with stress found by Dr. Ransom. Plaintiff asserts that the ALJ’s
inclusion of a “5-minute break” is not adequate to account for
these difficulties in handling stress.
The Commissioner recognizes that “[s]ince mental illness is
defined and characterized by maladaptive behavior, it is not
unusual that the mentally impaired have difficulty accommodating to
the demands of work and work-like settings.” SSR 85-15,

1985 WL

56857, at *5 (S.S.A. 1985). Routine or trivial demands in the
workplace,

such

as

“having

their

performance

supervised,

and

remaining in the workplace for a full day,” can cause mentally
impaired claimants to “cease to function effectively.” Id. at *6.
Indeed, “the reaction to the demands of work (stress) is highly
individualized[,]”

id.

However,

as

Defendant

argues,

the

ALJ

included additional limitations in the RFC formulation designed to
address Plaintiff’s difficulties in handling work-related stress.
For instance, the ALJ restricted Plaintiff to unskilled jobs that
involve only occasional changes in the work environment, that
require her to make only occasional work-related decisions and
-15-

judgments, and do not entail teamwork or collaboration. (T.22). By
definition, unskilled work requires little or no judgment to do
simple duties that can be learned on the job in a short period of
time, and requires working primarily with objects, rather than data
or people. See SSR 85-15, 1985 WL 56857, at *4. The ALJ also
restricted Plaintiff to work that does not require her to meet
hourly production rates, such machine-driven assembly-line work.
(T.22).
Furthermore, as discussed above, Dr. Ransom’s report does not,
on its face, indicate Plaintiff cannot handle any stress at all. As
also discussed above, courts have found that opinions assigning
“marked” limitations in various work-related functions do not
conclusively demonstrate that a claimant is unable to work. See
Fiducia, 2015 WL 4078192, at *4 (“[T]he assessment completed by
Dr. Wasfi and Ms. Graham did not find extreme limitations in any
category which would have meant that they believed plaintiff had
‘no

useful

ability

to

function

in

this

area.’

Instead,

the

assessment found that plaintiff had a marked limitation with
respect to interacting with others-that she had a ‘substantial loss
in the ability to effectively function.’”). Even if Plaintiff “were
found to have extreme limitations, and to be unable to work by her
healthcare providers, this determination would not be controlling.”
Id. (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“The
‘ultimate finding of whether a claimant is disabled and cannot work

-16-

. . . [is] reserved to the Commissioner.’ ”) (internal quotation
marks and citation omitted); other citations omitted).
II.

Erroneous Severity Finding at Step Two
Plaintiff also argues that the ALJ should have found her past

diagnosis of cancer, foot neuroma, thumb arthritis, attention
deficit hyperactivity disorder (“ADHD”), and post-traumatic stress
disorder (“PTSD”) to be “severe” impairments at step two of the
sequential evaluation. As discussed below, the Court finds that the
ALJ’s step two finding was correct.
A claimant has the burden of establishing that she has a
“severe impairment,” which is “any impairment or combination of
impairments which significantly limits [her] physical or mental
ability to do basic work.” 20 C.F.R. § 404.1520(c). Green–Younger,
335 F.3d at 106; see also SSR 85-28, 1985 WL 56856, at *3 (S.S.A.
1985). Basic work-related physical activities include walking,
standing,

sitting,

reaching,

carrying,

hearing,

seeing,

and

speaking. See SSR 85-28, 1985 WL 56856, at *3. Basic work-related
mental

abilities

remembering

simple

include

understanding,

instructions;

using

carrying
judgment;

out,

and

responding

appropriately to supervisors, coworkers, and usual work situations;
and dealing with changes in a routine setting. See id.
Plaintiff’s in situ cervical cancer occurred in 1998, more
than 12 years before the alleged onset date. (T.313, 398, 468). At
that time, Plaintiff had a LEEP procedure; her pap smears since
have been normal. (Id.). Plaintiff has not alleged, nor does the
-17-

record show, that she had any abnormal sequelae from her cervical
cancer. When she saw her OB/GYN in February of 2014, she had “no
complaints,”

other

than

Consultative

physician

Dr.

heavy

menstrual

Hongbao

Liu

periods.

did

not

(T.468).

assign

any

limitations due to this remote cancer. Rather, after examining
Plaintiff, his only diagnosis was IBS, which he opined would result
in “mild” limitations in routine activities. (T.400).
Plaintiff’s foot neuroma was diagnosed in October 2006, again
well before the alleged onset date. (T.308, 315). Despite this
condition, Plaintiff continued to work full-time in a research lab
until 2010, when her grant funding ended. During the disability
period, she consistently worked 20 hours per week at the cigar
shop, which required her to stock and clean (T.41), and therefore
be

on

her

feet.

Plaintiff

did

not

allege

present difficulty

standing or walking due to her foot neuroma. (T.252-53). For
instance, she did not mention any complaints about her foot neuroma
to Dr. Liu, who found that she had a normal gait and stance, could
walk on her heels and toes, and had no sensory deficits or motor
strength deficits. (T.399). There is no indication that her foot
neuroma deteriorated during the relevant disability period, which
undermines a finding that it was “severe” enough to cause any
limitations in work-related functions. See Snell, 177 F.3d at 136.
Plaintiff also testified that she had arthritis in her right
thumb since she had worked for Kodak in 1996. (T.49-50, 68). Again,
Plaintiff continued to work until February 2010, when her research
-18-

grant funding expired. (T.42). Plaintiff admitted that she has not
sought any treatment for her right-thumb arthritis. When asked how
she knew she had arthritis, she responded that used her mother’s
arthritis cream and it helped. (T.68). See Woodmancy v. Colvin, 577
F. App’x 72, 74 (2d Cir. 2014) (summary order) (“[S]ubstantial
record evidence indicated that Woodmancy either failed to pursue or
to benefit from treatment for substance abuse but did benefit from
treatment for the other conditions in ways that minimized their
impairing effect.”) (citing Mongeur v. Heckler, 722 F.2d 1033, 1039
(2d Cir. 1983) (holding condition was not severe impairment where
it improved after treatment)). Moreover, consultative physician
Dr. Liu found that she had full grip strength in her hands as well
as intact manual and finger dexterity, and he did did not assign
any manipulative limitations. (T.400).
Plaintiff’s ADHD, diagnosed in January of 2005, likewise did
not prevent her from working full-time until the loss of her grant
funding in February of 2010. (T.314, 335). Plaintiff did not
mention ADHD to her healthcare providers in Rochester, and it was
never included as a diagnosis by Dr. Shafiq, LMHC Pilato or any of
her other providers at Unity Mental Health Services. Plaintiff did
not mention it to consultative psychologist Dr. Ransom, who also
did not include it as a diagnosis. The record also contains
admissions by Plaintiff that she could finish what she started and
that she read daily. (T.21 (citing Ex. 3E at 6, 9); T.251, 254).

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The

Court

notes

that

Plaintiff

did

complain

of

general

difficulties with concentration to Dr. Ransom. On examination,
Plaintiff could count backwards from ten, but could only do 2 out
of 3 simple calculations, and had difficulty with serial 3’s. Based
on this, Dr. Ransom opined that Plaintiff’s “[a]ttention and
concentration were moderately impaired” “by depression.” (T.39596). The ALJ’s RFC assessment is not inconsistent with these
“moderate” limitations assigned by Dr. Ransom; the ALJ restricted
Plaintiff to unskilled (simple) work that required only occasional
judgments, occasional changes, no assembly-line production, and no
teamwork. (T.22).
Plaintiff has not established that her alleged PTSD was a
“severe” impairment. As an initial matter, PTSD—unlike depressive
disorder and anxiety disorder—was never a confirmed diagnosis by an
“acceptable medical source,” much less an “other source.” Rather,
on intake at Unity Mental Health Services, LCSW Wilson indicated
PTSD as a “rule out” diagnosis. In all subsequent treatment notes
by Plaintiff’s therapists and psychiatrists, PTSD was listed as a
“rule out” diagnosis. Even if Plaintiff had been diagnosed with
PTSD, “severity” is not established based on a medical diagnosis or
medical findings, standing alone. See SSR 85-28, 1985 WL 56856, at
*4 (“A determination that an impairment(s) is not severe requires
a careful evaluation of the medical findings which describe the
impairment(s) and an informed judgment about its (their) limiting
effects on the individual’s physical and mental ability(ies) to
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perform

basic

work

activities.

.

.

.”);

emphasis

supplied.

Plaintiff has not established that she had significant limitations
in basic work-related functions specifically attributable to her
alleged PTSD; thus, any error at step two in mentioning PTSD as a
“severe” impairment was harmless. See Singleton v. Comm’r of Soc.
Sec., No. 5:15-CV-1523(ATB), 2016 WL 6156000, at *8 (N.D.N.Y.
Oct. 21, 2016) (“Even if the ALJ erred in this case in failing to
mention the diagnosis of PTSD, it is clear that this impairment did
not cause further limitations in the domains of functioning than
were already considered by the ALJ.”).
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is not legally erroneous and is supported
by substantial evidence. Accordingly, the Commissioner’s decision
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:

September 20, 2017
Rochester, New York.

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