Cubiotti v. Berryhill

Filing 14

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings; and dismissing the Plaintiff's complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/5/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
DEANNA MARIE CUBIOTTI,
Plaintiff,

17-CV-6114 (MAT)
DECISION AND ORDER

-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security1,
Defendant.
____________________________________
INTRODUCTION

Deanna Marie Cubiotti (“Plaintiff”), represented by counsel,
brings this action under Title XVI of the Social Security Act (“the
Act”),

seeking

Commissioner

review

of

of

Social

the

final

Security

decision
(“the

of

the

Acting

Commissioner”

or

“defendant”), denying her application for Supplemental Security
Income (“SSI”). The Court has jurisdiction over the matter pursuant
to 42 U.S.C. §§ 405(g), 1383(c).

Presently before the Court are

the parties’ competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
For the reasons set forth below, Plaintiff’s motion is denied and
Defendant’s motion is granted.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

PROCEDURAL BACKGROUND
On February 25, 2013, Plaintiff protectively filed for SSI,
alleging disability beginning February 9, 2012. (Administrative
Transcript (“T.”) 280). The claim was initially denied on June 10,
2013, and Plaintiff timely requested a hearing.

(T. 231-33).

A

hearing was conducted on February 25, 2014, in Rochester, New York
by administrative law judge (“ALJ”) John P. Costello.

(T. 170-

215). Plaintiff appeared with her attorney and testified. An
impartial vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on March 27, 2014
(T. 32-48).

Plaintiff

timely

requested

decision by the Appeals’ Council.

(T. 12).

review

of

the

ALJ’s

The Appeals Council

denied Plaintiff’s request for review on September 10, 2014, making
the ALJ’s decision the final decision of the Commissioner.

(T. 1-

3). Plaintiff instituted a civil action in this Court, and on July
15, 2015, this Court remanded the claim for further administrative
proceedings.

See Cubiotti v. Colvin, Case No. 14-cv-6637, Docket

No. 10.
On remand, the Appeals Council vacated the ALJ’s decision and
remanded the matter for further consideration and development.
T. 1107-08.
attorney at
Costello.

On April 18, 2016, Plaintiff appeared with her
a

second

hearing

and

testified

again

before

ALJ

Vocational expert Carol McManus and medical expert

Chukwuemeka K. Efobi, M.D. also testified. T. 1032-82.

2

On May 9,

2016, ALJ Costello issued an unfavorable decision.

T. 1009-30.

This action followed.
THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a).

Additionally, because there was

medical evidence of drug addiction or alcoholism, the ALJ performed
the secondary analysis required by 42 U.S.C. § 423(d)(2)(c).
Pursuant to this secondary analysis, even if a claimant qualifies
for disability benefits under the five-step analysis, the claimant
“shall not be considered disabled . . . if alcoholism or drug
addiction would . . . be a contributing factor material to the
Commissioner’s determination that the individual is disabled”.
42 U.S.C. § 423(d)(2)(c); see also

20 C.F.R. §§ 416.935(a),

404.1535(a). In determining whether a claimant’s alcohol or drug
abuse is a “material” factor, an ALJ applies the following process
codified at 20 C.F.R. §§ 416.935, 404.1535(b):
(1) The key factor we will examine in determining whether
drug addiction or alcoholism is a contributing factor
material to the determination of disability is whether we
would still find you disabled if you stopped using drugs
or alcohol.
(2) In making this determination, we will evaluate which
of your current physical and mental limitations, upon
which we based our current disability determination,
would remain if you stopped using drugs or alcohol and
then determine whether any or all of your remaining
limitations would be disabling.

3

(I) If we determine that your remaining
limitations would not be disabling, we will
find that your drug addiction or alcoholism is
a
contributing
factor
material
to
the
determination of disability.
(ii) If we determine that your remaining
limitations are disabling, you are disabled
independent
of
your
drug
addiction
or
alcoholism and we will find that your drug
addiction or alcoholism is not a contributing
factor material to the determination of
disability.
20 C.F.R. §§ 416.935(b), 404.1535(b). “The claimant bears the
burden

of

proving

that

drug

or

alcohol

addiction

was

not

a

contributing factor material to the disability determination.”
Newsome v. Astrue, 817 F. Supp. 2d 111, 126–27 (E.D.N.Y. 2011)
(citing White v. Comm’r of Soc. Sec., 302 F. Supp.2d 170, 173
(W.D.N.Y. 2004)).
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
March 6, 2013, the application date. T. 1014.
At

step

following

two,

the

“severe”

ALJ

determined

impairments:

that

substance

Plaintiff
abuse

had

the

disorder,

schizoaffective disorder, borderline personality disorder, bipolar
disorder, post-traumatic stress disorder, depression, anxiety, and
fibromyalgia. T. 1015.
At step three, the ALJ found that Plaintiff’s impairments,
including her substance use disorder, met sections 12.04 and 12.09
of 20 C.F.R. Part 404, Subpart P, Appendix 1.
4

Id.

The ALJ then

performed the secondary analysis required by 20 C.F.R. §§ 416.935,
404.1535(b) and found that (1) if Plaintiff stopped her substance
use, she would continue to have a severe impairment or combination
of impairments but that (2) if Plaintiff stopped her substance
abuse,

she

would

not

have

an

impairment

or

combination

of

impairments that met or medically equaled any of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Before

proceeding

to

step

four,

the

ALJ

T. 1019.2

found

that

if

Plaintiff stopped her substance use, she would have the residual
functional capacity (“RFC”) to perform light work as defined in
20

C.F.R.

§

416.967(b),

with

the

additional

non-exertional

limitations that she is able to perform simple, routine tasks, is
limited

to

occasional

low

stress

decision

work

making),

(defined
and

is

as

work

limited

interaction with coworkers and the general public.

involving
to

only

occasional

T. 1018, 1020.

At step four, the ALJ concluded that Plaintiff did not have any
past relevant work.

T. 1023.

At step five, the ALJ found that Plaintiff’s substance use
disorder was a contributing factor material to the determination of
disability, because Plaintiff would not be disabled if she stopped
her substance use.
use

disorder

was

T. 1024.
a

Accordingly, because the substance

contributing

factor

material

to

the

2

There is a scanning error in the Administrative Transcript, such that page
seven of the ALJ’s decision appears at T. 1019, while page eight of the ALJ’s
decision appears at T. 1018.

5

determination of disability, the ALJ concluded that Plaintiff had
not been under a disability, as defined in the Act, since the
application date. Id.
SCOPE OF REVIEW
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.

42 U.S.C. § 405(g); see also

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”). “Substantial evidence means ‘such relevant evidence
as

a

reasonable

mind

might

accept

as

adequate

to

support

a

conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation

omitted).

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

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,
112 (2d Cir. 1984)).
6

DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ’s RFC assessment is inconsistent with the only
medical

opinion

functioning;

and

of
(2)

record
the

regarding

testimony

of

Plaintiff’s

physical

consultative

physician

Dr. Efobi did not provide “substantial evidence” for the ALJ’s
mental

RFC

assessment.

Defendant

responds

that

the

ALJ’s

determination was supported by substantial evidence and should be
affirmed.

For

the

reasons

discussed

below,

the

Court

finds

Plaintiff’s arguments without merit and affirms the ALJ’s decision.

I.

Consideration of Dr. Cox’s Opinion
Plaintiff’s first argument is that the ALJ’s RFC finding is

inconsistent with the December 14, 2015 opinion of Dr. Megan Cox at
Strong Internal Medicine, the “only medical opinion of record as it
pertained to [Plaintiff’s] physical functioning.”
at 25.

Docket No. 9-1

Plaintiff contends that the ALJ impermissibly rejected

Dr. Cox’s opinion and relied on his own lay opinion to conclude
that she was capable of light work.

For the reasons set forth

below, the Court disagrees.
On

December

Employability

14,

2015,

Assessment

on

Dr.

Cox

Plaintiff

completed
for

the

a

Physical

Monroe

County

Department of Human Services immediately after evaluating Plaintiff
for a foot injury. T. 1647-50. During the examination, Plaintiff

7

reported her foot went through a step a week prior. T. 1645.
Plaintiff stated she was on her feet all day while at home with
children and that her foot was painful all day and throbbed at
night. Id. Dr. Cox observed that Plaintiff’s right foot was not
significantly swollen compared to her left foot but the foot had
tenderness over the first metatarsophalangeal

joint and extensor

tendon for the great toe. Dr. Cox reported that Plaintiff’s general
appearance was comfortable, and her cardiac, respiratory, and
abdominal examinations were all unremarkable. T. 1646. Dr. Cox
opined Plaintiff that may have had a small fracture that was not
picked up by X-ray, or that she may have had tendinitis or
ligamentous injury. A walking boot and 15 milligrams daily of
meloxican were prescribed. Id.
In the Monroe County Department of Human Services Assessment,
Dr. Cox opined that Plaintiff was able to participate in activities
for up to 40 hours per week with reasonable accommodations made for
her foot injury, for 12 weeks. Specifically, Dr. Cox limited
Plaintiff’s activities to sitting during those 12 weeks and noted
that other restrictions due to chronic illnesses would need to be
re-evaluated once the foot injury had resolved. T. 1648. On the
assessment’s chart for Estimated Functional Limitations in an
8 Hour Work Day, Dr. Cox opined Plaintiff’s walking, standing,
pushing,

pulling,

bending,

and

8

lifting

should

be

limited

to

1-2 hours per day. There were no limitations assigned to sitting,
seeing, hearing, or speaking. T. 1650.
In
opinion.

his opinion, the ALJ gave limited weight to Dr. Cox’s
The ALJ explained that the record did not support the

conclusion that Plaintiff’s foot injury was a severe impairment and
that Dr. Cox’s opinion was not a medical source statement, but was
merely a form indicating whether Plaintiff should continue to
receive state social service benefits.

T. 1022.

The ALJ did,

however, limit Plaintiff to light work, as a result of the fact
that Dr. Cox had diagnosed her with fibromyalgia.

Id.

Plaintiff contends that the ALJ erred in affording only
limited weight to Dr. Cox’s opinion, and that the error was harmful
because Dr. Cox’s opinion was more restrictive than the ALJ’s RFC
assessment.

For the reasons set forth below, the Court finds no

error in the ALJ’s assessment of Dr. Cox’s opinion.
In assessing a claimant’s RFC, an ALJ must “weigh all of the
evidence available to make an RFC finding that [is] consistent with
the record as a whole.”

Matta v. Astrue, 508 F. App’x 53, 56

(2d Cir. 2013). “Genuine conflicts in the medical evidence are for
the Commissioner to resolve,” Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002), and the ALJ “has the discretion to grant various
degrees of weight to the opinion[s]” of record.”

Heitz v. Comm’r

of Soc. Sec., 201 F. Supp. 3d 413, 422 (S.D.N.Y. 2016).

9

In this case, Dr. Cox’s opinion was issued in the specific
context of an acute foot injury suffered by Plaintiff.

Dr. Cox

expressly opined that this condition was expected to continue for
only 12 weeks. T. 1648. Dr. Cox also specifically noted that any
additional restrictions that should continue past the 12 weeks
would need to be re-evaluated following the resolution of the foot
injury. The opinion gave no indication that Dr. Cox was basing her
restrictions on anything more than Plaintiff’s foot injury nor that
Dr. Cox was treating Plaintiff for anything other than the foot
injury.

Id.

An

ALJ

may

appropriately

give

less

weight

to

a

physician’s opinion where it relates to a transitory condition.
It was also appropriate for the ALJ to consider the fact that
Dr. Cox’s opinion was a form in which she merely checked off boxes,
as opposed to a medical source statement.

Courts in this Circuit

have consistently held that “lack of supporting detail and/or
objective findings provides a . . . reason for affording [an]
opinion less weight.” Wright v. Colvin, No. 5:12-cv-0440, 2013 WL
3777187,

at

*15

(N.D.N.Y.

July

17,

2013)

(citing

20

C.F.R.

§§ 404.1527(d)(3), 416.927(d)(3)) (“The more a medical source
presents relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for an
opinion, the more weight we will give that opinion.”); see also
Halloran

v.

Barnhart,

362

F.3d

10

28,

31

n.

2

(2d

Cir.

2004)

(describing standardized form checklist as “only marginally useful
for purposes of creating a meaningful and reviewable factual
record”); Llorens–Feliciano v. Astrue, No. 6:11-cv-924, 2012 WL
6681772, at *3 (N.D.N.Y. Dec. 21, 2012) (“‘Form reports in which a
physician’s obligation is only to check a box or fill in a blank
are weak evidence at best.’”) (quoting Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993)).

This factor therefore also supports

the ALJ’s determination that Dr. Cox’s opinion should be given only
limited weight.
Finally, and contrary to Plaintiff’s argument, the ALJ did not
err in assessing her RFC in the absence of any other medical
opinion regarding her physical limitations.

“[I]t is not per se

error for an ALJ to make the RFC determination absent a medical
opinion.” Lewis v. Colvin, No. 13-cv-1072, 2014 WL 6609637, at *6
(W.D.N.Y.
evidence

Nov.
shows

20,

2014).

relatively

In

particular,

minor

physical

“where

the

impairments,

medical
an

ALJ

permissibly can render a common sense judgment about functional
capacity even without a physician’s assessment.” Id. (internal
quotation omitted). In this case, the record is replete with
Plaintiff’s own reports that she was in good health during the
relevant period. In March 2013, Plaintiff denied any current
medical issues. T. 637. On assessment in June 2013, Plaintiff
denied any history of musculoskeletal issues. T. 601. Plaintiff
again denied any major medical problems in July 2013. T. 580.

11

Plaintiff reported her physical health as “good” in August 2013.
T.

531.

In

March

2014,

on

exam

Plaintiff

gave

no

physical

complaints. T. 1694. At her February 2014 hearing, Plaintiff
identified no physical complaints in her testimony. T. 335-38. In
April 2014, Plaintiff reported her health status as “excellent”.
T. 1233. In February 2015, Plaintiff first complained of diffuse
pain and was prescribed Lyrica for possible fibromyalgia. T. 102021. In April 2015, Plaintiff reported that her pain was improving
while on medication. T. 1068. In March 2015, Plaintiff reported she
was applying to Home Depot for a job and in October, 2015 she
stated she wanted to start school to become a home health aid.
T. 1419, 1627. In December 2015, Plaintiff reported to Dr. Cox that
she was regularly on her feet all day caring for children. T. 1645.
In March 2016, she reported she had no difficulty with daily living
activities. T. 1897. In sum, the evidence of record overwhelmingly
shows that Plaintiff had minimal physical limitations. Under these
circumstances, the ALJ did not err in rendering a common sense
judgment about Plaintiff’s functional capacity, even in the absence
of a physician’s assessment other than Dr. Cox’s. See, e.g., Lay v.
Colvin,14-cv-981, 2016 WL 3355436, at *7 (W.D.N.Y. June 17, 2016).

For the foregoing reasons, the Court finds that the ALJ
properly afforded limited weight to Dr. Cox’s opinion, which was a
“check the box” form and was specifically based on an acute foot

12

injury that was only expected to last for 12 weeks.

The Court

further finds that the ALJ appropriately weighed the evidence of
record and issued an appropriate, common sense judgment regarding
Plaintiff’s physical limitations.

Accordingly, the Court finds no

error in the ALJ’s assessment of Plaintiff’s physical RFC.
II.

Reliance on Dr. Efobi’s testimony
Plaintiff’s second argument is that Dr. Efobi’s testimony did

not

provide

conclusions.

substantial

evidence

in

support

of

the

ALJ’s

Plaintiff contends that Dr. Efobi’s opinion was

“baseless” and inconsistent with the opinions of Plaintiff’s mental
health counselor, Kelly Morell.

The Court finds this argument

without merit.
An ALJ is permitted to rely on the opinion of a testifying
physician such as Dr. Efobi, so long as he reviewed Plaintiff’s
records and his opinion is consistent with the evidence.

See Lugo

v. Comm’r of Soc. Sec., No. 3:16-CV-0746 (GTS), 2017 WL 4005621, at
*9

(N.D.N.Y.

Sept.

11,

2017);

see

also

Flores

v.

Astrue,

No. 3:09-CV-1829 JCH, 2010 WL 5129110, at *2 (D. Conn. Dec. 9,
2010) (it was “wholly appropriate” for the ALJ to rely on the
testimony of a testifying physician who was a specialist in the
relevant medical

field

and

who

had

“reviewed

the

record

and

concluded that the evidence [did] not support [the claimant’s]
claim of disability”).

In this case, Dr. Efobi, a psychiatrist,

throughly examined Plaintiff’s medical records and concluded that

13

she

would

not

have

disabling

impairments

if

she

ceased

her

substance use. Dr. Efobi opined that Plaintiff’s illness and
symptoms during her period of substance abuse, prior to May, 2014
satisfied the listings 12.03 and 12.04, but as her vast improvement
following her sobriety indicated, much of her illness and symptoms
were due to the substance abuse, and therefore she would not meet
or equal any of the listings for that time period. T. 1044-45.
Dr. Efobi’s opinion was supported by the record, which shows no
hospitalizations or emergency room visits after the Plaintiff last
reported drug use in May 2014. T. 1050. Furthermore, in his
testimony, Dr. Efobi pointed to reports from Plaintiff’s outpatient
program showing Plaintiff was asymptomatic, managing her household
well, and maintaining her stability for her daughter subsequent to
the end of her substance abuse. T. 1051. Dr. Efobi’s review of the
record showed that in her sobriety, Plaintiff demonstrated she was
able to advocate for her daughter, call to set up appointments for
her daughter, and attend those appointments for her daughter.
T. 1055.

Dr. Efobi therefore set forth in detail the basis for his

opinion, which was consistent with the medical evidence of record.

The ALJ further did not err in crediting Dr. Efobi’s opinions
over Ms. Morell’s opinions.

As an initial matter, and as the ALJ

correctly explained, Ms. Morell’s opinions failed to address the
critical issue of what Plaintiff’s functioning would be in the

14

absence of her substance use disorder.

T. 1022.

As such, nothing

in Ms. Morell’s opinions contradicts Dr. Efobi’s opinions regarding
Plaintiff’s ability to function were she to cease her substance
use, because Ms. Morell did not offer an opinion on this subject.
Moreover, the ALJ gave additional appropriate reasons for
affording limited weight to Ms. Morrell’s opinions “despite her
treating relationship with the claimant.”

Id.

In particular, the

ALJ noted that Ms. Morell’s opinions were forms with check boxes
and without supporting narratives.

As discussed at length above,

this is an appropriate factor for the ALJ to have considered in
assigning weight to Ms. Morell’s opinions.
3777187 at *15.

See Wright, 2013 WL

The ALJ further noted that Ms. Morell’s opinions

were inconsistent with her own treatment records, which indicated
that Plaintiff had only moderate limitations. An ALJ may reject the
opinion of a mental health counselor where it is inconsistent with
the claimant’s treatment records. See Bulavinetz v. Astrue, 663
F. Supp. 2d 208, 212 (W.D.N.Y. 2009).
In essence, Plaintiff’s argument is that the ALJ should have
given less weight to Dr. Efobi’s opinion and more weight to Ms.
Morell’s opinions. However, that determination was for the ALJ and
not this Court to make, and “[i]f evidence is susceptible to more
than one rational interpretation, the Commissioner’s conclusion
must be upheld.”

McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir.

2014); see also Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59

15

(2d Cir. 2013) (“whether there is substantial evidence supporting
the [claimant’s] view is not the question . . .; rather, [the
Court] must decide whether substantial evidence supports the ALJ’s
decision.”) (emphasis in original).

In this case, the Court finds

that Dr. Efobi’s testimony provided substantial evidence in support
of the ALJ’s findings and that those findings are therefore not
subject to revision by this Court.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 9) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 12) is granted.
Plaintiff’s complaint is dismissed in its entirety with prejudice.
The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

April 5, 2018
Rochester, New York

16