D'Angelo v. Colvin
Filing
13
ORDER denying 9 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 8/17/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SEBASTIAN D’ANGELO,
No. 6:16-cv-06680(MAT)
DECISION AND ORDER
Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Sebastian D’Angelo (“Plaintiff”), represented by counsel,
brings this action pursuant to Title II 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 Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II.
Procedural Status
On
August
22,
2013,
Plaintiff
protectively
filed
an
application for DIB, alleging disability beginning January 1, 2013.
The application was initially denied on October 17, 2013. Plaintiff
timely filed a written request for a hearing on October 28, 2013,
which was held on June 23, 2015, by administrative law judge John
P. Costello (“the ALJ”). Plaintiff appeared with his attorney and
testified, as did Carol G. McManus, an impartial vocational expert
(“the VE”). (T.31-69).1 The ALJ issued an unfavorable decision on
August
20,
2015,
finding
that
Plaintiff
was
not
disabled.
(T.17-26). Plaintiff’s request for review by the Appeals Council
was denied on August 24, 2016, making the ALJ’s decision the final
decision of the Commissioner.
Presently before the Court are the parties’ motions 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 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.
III. The ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that
Plaintiff met the insured status requirements of the Act through
September 30, 2016, and had not engaged in substantial gainful
activity (“SGA”) since January 1, 2013, the alleged onset date
(“AOD”).
At the hearing, Plaintiff testified that since the AOD,
he has been working part-time as a driver’s education instructor;
1
Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.
-2-
however, the ALJ found, the earnings from that job do not reach the
level of SGA within the meaning of the Act.
At
step
two,
the
ALJ
determined
that
Plaintiff
has
the
following “severe” impairments: sensorineural hearing loss and
tinnitus. The ALJ found that Plaintiff’s diabetes mellitus and
benign essential hypertension were not “severe” as they are both
well
controlled
complications.
with
Likewise,
medications,
the
ALJ
without
determined
any
that
apparent
Plaintiff’s
anxiety is not “severe” based on Plaintiff’s testimony that his
anxiety symptoms are controlled with medications that he takes on
a
per
need
basis
only,
and
he
does
not
participate
in
any
psychotherapy or any other treatment modality for this impairment.
In addition, while Plaintiff reported depressive symptoms during
the
consultative
psychological
examination,
he
denied
any
anxiety-related symptomatology. Applying the special technique, the
ALJ assessed Plaintiff as having no limitations in any of the
relevant functional areas (activities of daily living; social
functioning; and
maintaining concentration, persistence or pace).
Furthermore, Plaintiff has not had any episodes of decompensation.
At step three, the ALJ determined 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.
Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525
and 404.1526).
-3-
The
ALJ
then
formulated
Plaintiff’s
residual
functional
capacity (“RFC”) as follows: He can perform a full range of work at
all exertional levels but cannot climb ladders or scaffolds or work
at unprotected heights, and he is limited to working in no more
than a moderate noise level environment.
At step four, the ALJ found that Plaintiff, who was 62 yearsold as of the onset date, is capable of performing past relevant
work as an elementary school teacher (Dictionary of Occupational
Titles
(“DOT”)
#092-227-010,
Specific
Vocational
Preparation
(“SVP”) 7, light exertional level) because this work does not
require the performance of any work-related activities precluded by
his RFC, and does not require him to work in an environment with a
greater than moderate noise-level.
The ALJ proceeded to make
an alternative step five finding that there are other jobs existing
in the national economy that Plaintiff is also able to perform.
Based
on
the
VE’s
testimony,
the
ALJ
determined
that
given
Plaintiff’s age (closely approaching retirement age), education (at
least a high school education), work experience, and RFC, Plaintiff
can perform the requirements of representative occupations such as
hospital
cleaner
(DOT
#915.687-034,
SVP
2,
medium
exertional
level), of which there are 929,540 jobs in the national economy;
and hospital food service worker (DOT #319.677-014, SVP 2, medium
exertional level), of which there are 250,840 jobs in the national
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economy. The ALJ determined that a finding of “not disabled” was
therefore appropriate under the framework of Section 204.00 in the
Medical-Vocational Guidelines.
IV.
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
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)).
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V.
Discussion
A.
RFC Unsupported by Substantial Evidence
Plaintiff argues that the RFC is unsupported by substantial
evidence
because
the
ALJ
failed
to
incorporate
several
nonexertional limitations into the RFC assessment.
At
the
outset,
the
Court
observes
that
“‘[s]ubstantial
evidence’ is ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Because Plaintiff’s argument focuses solely on the substantiality
of the evidence supporting the RFC, it is subject to a “very
deferential standard of review.” Brault v. Social Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012). Notably, “once an ALJ
finds facts, [the reviewing court] can reject those facts only if
a reasonable factfinder would have to conclude otherwise.” Id.
(emphasis in original; internal quotation marks omitted).
Plaintiff contends that the ALJ failed to incorporate his
“recurring inability to hear or receive communication” or his “need
to
handle
concentration
problems
tinnitus.” (Pl’s Mem. at 16).
related
to
hearing
loss
or
To support these limitations,
Plaintiff relies on his own testimony that his hearing loss “flares
up” from time to time and the notation by treating source Paul O.
Dutcher, M.D. that Plaintiff’s hearing loss, which is caused by an
-6-
autoimmune
disorder,
is
progressive
and
will
be
marked
by
fluctuations in his ability to hear. Dr. Dutcher opined that due to
Plaintiff’s hearing loss, he would be “off task” more than 30% of
an
8-hour
workday.
The
ALJ
did
not
specifically
dispute
Dr. Dutcher’s notation, in July of 2013, that Plaintiff’s hearing
fluctuated despite hearing aid use, but he did afford only “some
weight” to Dr. Dutcher’s RFC assessment issued on May 22, 2015,
opining that Plaintiff would be “off task” more than 30% of an 8hour
work
day
restrictive
due
to
opinion
to
his
be
hearing
“not
loss.
entirely
The
ALJ
found
consistent
with
this
the
clinical evidence of record, and in particular, [Dr. Dutcher]’s own
audiological and physical examination findings or the conservative
treatment history.” As the ALJ noted, Dr. Dutcher reported that
Plaintiff’s “hearing was stable with treatment and use of hearing
aids[,]” and “as [Plaintiff]’s hearing had improved, the doctor
suggested that [Plaintiff] [be] re-evaluated every 12 months.”
Specifically, in June of 2014, Dr. Dutcher observed that Plaintiff
communicated
well
one-on-one
with
hearing
aids.
Clinically,
Plaintiff’s tympanic membranes were clear, intact, and mobile; the
right membrane had healed completely, and there were no noted
abnormalities.
Given
the
stability
in
Plaintiff’s
condition,
Dr. Dutcher suggested that Plaintiff return in a year for a followup. On May 22, 2015, Dr. Dutcher issued his highly restrictive RFC
assessment; however, there are no contemporaneous clinical notes
-7-
indicating a worsening in Plaintiff’s condition from June of 2014.
Dr. Dutcher’s RFC assessment also was inconsistent with the benign
findings
evaluated
of
consultative
Plaintiff on
physician
October
3,
Dr.
2013.
Harbinder
Dr.
Toor
Toor,
noted
who
that
Plaintiff “hears well and has no difficulty communicating with the
hearing aids in place . . . during the examination.” The ALJ
remarked that, according to Dr. Toor, “except for the hearing loss
when not using a hearing aid, bilaterally, [Plaintiff] has no other
functional
limitations.”
Moreover,
Plaintiff’s
own
reported
activities do not support a greater restriction due to fluctuations
in hearing-ability; as the ALJ noted, Plaintiff works part-time as
a driver’s education instructor and acknowledged that he had
improvement of hearing with the use of amplifiers. Plaintiff
testified that loud noises, not one-on-one conversations, caused
created hearing difficulties for him. The ALJ incorporated a
restriction
in
workplace
noise-levels,
which
is
supported
by
substantial evidence as discussed above.
Plaintiff also asserts that the ALJ failed to include his
“need to handle moments of dizziness with associated vomiting, or
his need to handle concentration problems related to hearing loss
or tinnitus.” (Pl’s Mem. at 16). However, on the RFC questionnaire,
when asked about whether Plaintiff experienced limitations due to
dizziness
and
vertigo
attacks,
Dr.
Dutcher
responded,
“N.A.”
(T.531). In other words, Dr. Dutcher apparently did not consider
-8-
dizziness
and
constellation
vertigo
of
attacks
symptoms
to
related
be
to
part
his
of
Plaintiff’s
hearing
impairment.
Moreover, Plaintiff has not contested the ALJ’s step two finding,
which did not analyze dizziness or vertigo attacks as potentially
“severe” impairments. Thus, there is a lack of substantial evidence
in the record to a restriction based on alleged vertigo attacks and
dizziness.
B.
RFC Fails to Align with a Medical Expert Opinion
Plaintiff contends that no particular medical expert opinion
supports the ALJ’s RFC assessment. (See Pl’s Mem. at 18-19).
However, as noted above, consultative physician Dr. Toor opined
that
apart
from
bilaterally,
(T.397).
hearing
Plaintiff
Thus,
while
loss
when
has
no
the
RFC
not
other
using
a
functional
assessment
does
hearing
aid,
limitations.
not
track
Dr. Dutcher’s restrictive assessment, it is inaccurate to say that
there
is
no
medical
expert
opinion
supportive
of
the
RFC
assessment. Courts have consistently ruled that “the opinion of a
treating
physician
is
not
binding
if
it
is
contradicted
by
substantial evidence.” Gonzalez v. Chater, No. 93 Civ. 7200, 1996
WL 442798, at *5 (S.D.N.Y. Aug. 6, 1996) (citing Mongeur v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)), aff’d, 152 F.3d 918
(2d Cir. 1998). “In this regard, the report of a consultative
physician
may
constitute
substantial
contrary
evidence.”
Id.
(citing Mongeur, 722 F.2d at 1039 (citing Parker v. Harris, 626
-9-
F.2d 225 (2d Cir. 1980))). Dr. Toor’s consultative report here
provides “substantial contrary evidence” to treating physician
Dr. Dutcher’s restrictive opinion.
VI.
Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s determination was not the product of legal error and
is supported by substantial evidence. Therefore, the Commissioner’s
decision to deny Plaintiff benefits is affirmed. Accordingly, it is
hereby
ORDERED that Defendant’s Motion for Judgment on the Pleadings
is granted, and it is further
ORDERED that 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
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
August 17, 2017
Rochester, New York
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