Howell v. Berryhill

Filing 13

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/16/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
JASON HOWELL,
Plaintiff,

6:17-CV-06568(MAT)
DECISION AND ORDER

-v-

NANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Jason Howell (“Plaintiff”), represented by counsel, brings
this action under 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” or “Defendant”)
denying his applications for Disability Insurance Benefits (“DIB”)
and

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.
PROCEDURAL BACKGROUND
On

February

22,

2011

and

April

27,

2011,

Plaintiff

protectively filed applications for DIB and SSI, respectively,
alleging disability as of September 1, 2008, due to a learning
disability, anxiety, speech problems, anger problems, testicular
lesions,

and

mild

thoracolumbar

scoliosis.

Administrative

Transcript (“T.”) 313-20,338. The claims were initially denied on
June 17, 2011.
conducted

on

T. 152-67. At Plaintiff’s request, a hearing was
December

14,

2012,

in

Baltimore,

Maryland

by

administrative law judge (“ALJ”) Andrew Henningfeld, with Plaintiff
appearing via video conference with his attorney. A vocational
expert also testified. T. 75-118.

ALJ Henningfeld issued an

unfavorable decision on February 15, 2013. T. 128-40. Plaintiff
appealed the decision to the Appeals Council (“AC”), which remanded
the case on August 26, 2014 for further development. T. 145-48. A
new hearing was held on May 15, 2015 in Rochester, New York, by ALJ
Brian Kane.

T. 27-74. Plaintiff appeared with his attorney and

testified. An impartial VE also testified.
ALJ Kane issued an unfavorable decision on June 24, 2015.
T. 8-20.

On June 16, 2017, the AC denied Plaintiff’s timely

request for review, making the ALJ Kane’s decision the final
decision of the Commissioner.

T. 1-4. This action followed.

THE ALJ’S DECISION
ALJ

Kane

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a).
At step one of the sequential evaluation, ALJ Kane found that
Plaintiff had not engaged in substantial gainful activity since
September

1,

2008,

the

alleged

onset

date.

T.

13.

Although

Plaintiff had worked on a part-time basis since the onset date, ALJ

2

Kane found this work activity did not rise to the level of
substantial gainful activity. Id.
At step two, ALJ Kane determined that Plaintiff had the
following “severe” impairments: anxiety, depression, and low back
pain. Id. ALJ Kane also noted that Plaintiff alleged he is learning
disabled,

has

a

speech

problem,

and

has

testicular

lesions.

However, ALJ Kane found Plaintiff’s intellectual functioning was
assessed to be in the average range (his full-scale IQ score from
when he was 12 years old was 103); he was able to communicate
appropriately with his providers and during the hearing despite his
stutter; and there was no evidence Plaintiff’s small irregularity
on his right testicle was cancerous. Accordingly, ALJ Kane found
these additional impairments to be non-severe. Id.
At step three, ALJ Kane found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. T. 14.
Before proceeding to step four, ALJ Kane found that Plaintiff
has the residual functional capacity (“RFC”) to perform medium work
as defined in 20 C.F.R. § 404.1567(c) and 416.967(c), with the
following additional limitations: can lift and carry up to fifty
pounds; can sit no more than six hours; can stand or walk for up to
six hours; and is able to perform work requiring training of one
month or less. T. 15. At step four, ALJ Kane concluded that

3

Plaintiff was capable of performing past relevant work as a fast
food worker, cook helper, sales attendant, laborer, or cashier II.
T. 19. ALJ Kane accordingly found at step five that Plaintiff was
not disabled as defined in the Act. 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.”

4

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)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ failed to make a step two severity finding
regarding Plaintiff’s migraines and Osgood-Schlatter’s Disease;
(2)

the

ALJ

failed

to

properly

evaluate

the

opinions

of

consultative examiners Dr. Kristina Luna and Dr. Rita Figueroa,
resulting in a finding not supported by substantial evidence; and
(3)the ALJ improperly used Plaintiff’s failure to seek treatment as
proof his conditions were not as disabling as alleged. For the
reasons discussed below, the Court finds Plaintiff’s arguments
without merit and affirms the Commissioner’s final determination.
I.

The ALJ’s Omission of Plaintiff’s Migraines and Knee Pain at
Step Two was Harmless Error
Plaintiff argues ALJ Kane committed legal error at step two of

the sequential analysis, because he did not consider whether
Plaintiff’s migraines and Osgood-Schlatter’s disease were severe
impairments. For the reasons discussed below, the Court agrees with
the Commissioner that any error by ALJ Kane at step two was
harmless.
At step two, the ALJ is required to consider whether a
claimant’s medically determinable impairments are severe. Notably,
“[i]t is the claimant’s burden to show at step two that [h]e has a
severe impairment.”

Rye v. Colvin, No. 2:14-CV-170, 2016 WL
5

632242, at *3 (D. Vt. Feb. 17, 2016) (internal quotation omitted).
A step two error does not necessitate remand where the record is
devoid of evidence that the allegedly omitted impairments were
severe. Id. at *4 (declining to remand where the plaintiff did not
“specify why each of these impairments [that he contended were
omitted at step two] meets the regulatory definition of a ‘severe’
impairment”).
Moreover, “[c]ourts have developed a specialized variant of
harmless-error analysis with respect to Step 2 severity errors in
social security proceedings. . . . [W]hen an administrative law
judge identifies some severe impairments at Step 2, and then
proceeds through [the] sequential evaluation on the basis of [the]
combined effects of all impairments, including those erroneously
found to be non severe, an error in failing to identify all severe
impairments at Step 2 is harmless.”

Poles v. Berryhill, No. 17 CV

6189 MAT, 2018 WL 1471884, at *3 (W.D.N.Y. Mar. 26, 2018) (quoting
Snyder v. Colvin, No. 5:13-CV-585 GLS/ESH, 2014 WL 3107962, at *5
(N.D.N.Y. July 8, 2014)); see also Reices-Colon v. Astrue, 523 F.
App'x 796, 798 (2d Cir. 2013) (step two error was harmless where
all of the claimant’s conditions “were considered during the
subsequent

steps”).

“Specifically,

when

functional

effects

of

impairments erroneously determined to be non-severe at Step 2 are,
nonetheless, fully considered and factored into subsequent residual
functional capacity assessments, a reviewing court can confidently

6

conclude that the same result would have been reached absent the
error.”

Snyder, 2014 WL 3107962 at *5.

Here, Plaintiff has not shown that

his migraines and Osgood-

Schlatter’s disease, which caused him knee pain, were severe
impairments.

As ALJ Kane noted, Plaintiff’s first treatment for

knee pain did not occur until April 2011 (more than two years after
Plaintiff’s alleged onset date), and there was a nearly two-year
gap before Plaintiff again sought treatment in January 2013.
T. 16, 505, 745.

Moreover, while Plaintiff was provided with a

knee sleeve to assist in walking long distances, he declined
physical therapy and orthopedic care in February 2013 (T. 749),
indicating
problems.

that

his

knee

pain

did

not cause

him

significant

With respect to Plaintiff’s migraines, as ALJ Kane also

noted, Plaintiff sought only sporadic treatment for this condition
and that his

prescribed

medication

controlled

them.

T.

16.

Plaintiff also failed to identify either of these impairments in
his applications. The medical evidence of record therefore does not
compel the conclusion that these impairments were severe.
Moreover, although ALJ Kane did not specifically discuss
Plaintiff’s migraines and Osgood-Schlatter’s disease at step two,
the remainder of the decision makes it clear that ALJ Kane fully
considered and factored these conditions into his RFC finding. In
particular, the Court notes that ALJ Kane considered that Plaintiff
reported that taking his prescribed Depakote was beneficial for

7

relieving his migraines, and that Plaintiff declined physical
therapy or orthopedic care for his knee pain. T. 16. ALJ Kane
specifically noted that Plaintiff had been assessed with OsgoodSchlatter disease, but explained that Plaintiff had failed to seek
any follow up care.

Id.

Additionally, ALJ Kane included in the

RFC finding a limitation of Plaintiff’s ability to stand or walk,
accounting for Plaintiff’s knee pain.

Plaintiff has not shown any

other limitations that should have been assessed as a result of
either his migraines or knee pain, and has therefore failed to
demonstrate that ALJ Kane’s omission of migraines and OsgoodSchlatter’s disease at step two had any meaningful impact on the
remainder of his analysis, or that explicitly considering these
impairments at step two would or could have resulted in a different
outcome. Accordingly, the Court finds that any error by ALJ Kane at
step two was harmless and does not necessitate remand.
II.

Evaluation of Consultative Examiners’ Opinions
Plaintiff

evaluate

next

argues

Plaintiff’s

Dr. Figueroa.

that

ALJ

consultative

Kane

failed

examiners,

to

Dr.

properly
Luna

and

The Court finds this argument without merit for the

reasons discussed below.
A.

ALJ Kane Permissibly Assigned “Little Weight” to the
Opinion of Dr. Figueroa

Plaintiff was examined by State consultative examiner Dr. Rita
Figueroa

on

December

15,

2014.

In

her

source

statement,

Dr. Figueroa opined that “Plaintiff may have a moderate limitation
8

for prolonged walking and standing due to left leg limp. There may
be a mild limitation for activities requiring repetitive use of
fine motor skills due to his wrist injury.”

No

additional

limitations were noted. T. 702.
In

his

decision,

ALJ

Kane

assigned

“little

weight”

to

Dr. Figueroa’s opinion, noting it was inconsistent with Plaintiff’s
reported activities of being able to help with oil changes and
rotating tires at his uncle’s auto body shop. T. 18-19. At the
May 15, 2015 hearing, Plaintiff testified he sweeps his uncle’s
shop, helps his uncle with oil changes, and can lift car tires to
help with tire rotations. T. 39-40.
As a threshold matter, the Court notes that the ALJ has
discretion to weigh the opinion of a consultative examiner and
attribute the appropriate weight based on his review of the entire
record. See Burnette v. Colvin, 564 F. App’x 605, 605 (2d Cir.
2014) (finding that the ALJ properly exercised his discretion in
giving little weight to the consultative examiner’s opinion, as it
was inconsistent with the record as a whole). Furthermore, the ALJ
may properly discount a medical opinion where it is inconsistent
with

the

claimant’s

own

testimony

regarding

his

“daily

functioning.” Domm v. Colvin, 579 F. App’x 27, 28 (2d. Cir. 2014).
Here, ALJ Kane’s finding that Plaintiff’s activities were
inconsistent with moderate limitations for prolonged walking and
standing and mild limitations for activities requiring repetitive

9

use of fine motor skills was reasonable and consistent with the
evidence

of

record.

Moreover,

and

as

ALJ

Kane

noted,

Dr. Figueroa’s physical examination of Plaintiff demonstrated a
full range of motion in the cervical and lumbar spines with full
strength in all extremities. T. 18. Accordingly, the Court finds
that ALJ Kane permissibly exercised his discretion in affording
little weight to Dr. Figueroa’s opinion.
B.

ALJ Kane’s Failure to Explicitly Assign Weight to the
Opinion of Dr. Luna was Harmless Error

Plaintiff was also examined by State consultative examiner
Dr. Kristina Luna on December 15, 2014. In her source statement,
Dr. Luna opined “[t]he claimant has no limitations in his ability
to

follow

perform

and

simple

understand
tasks

simple

directions

independently,

and

maintain

instructions,
attention

and

concentration, maintain a regular schedule, perform complex tasks
independently, and make appropriate decisions. He is mildly limited
in his ability to learn new tasks and relate adequately with
others. He is moderately limited in his ability to appropriate[ly]
deal with stress. Difficulties are caused by distractibility and
cognitive deficits.” T. 694.
In his decision, ALJ Kane found Dr. Luna’s opinion to be
inconsistent with the evidence of record, including Plaintiff’s
testimony. T. 18. Specifically, ALJ Kane noted Plaintiff’s fullscale IQ score of 103 and that his testimony indicated he is
capable of dealing with stress and performing complex tasks such as
10

fixing cars and playing computer games. Id. ALJ Kane also noted
Plaintiff’s therapy records, consultative evaluation reports, and
testimony indicate he is able to control his anger and deal with
others. Id.

However, despite ALJ Kane’s thorough discussion of

Dr. Luna’s evaluation and his reasoning for not fully incorporating
it into the RFC, he did fail to specifically identify the weight he
gave to it.
ALJ Kane’s failure to expressly assign a weight to Dr. Luna’s
opinion does not necessitate remand. Remand is not warranted
“‘[w]here application of the correct legal standard could lead to
only one conclusion.’” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.
2010) (quoting Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998))
(declining to remand for consideration of an improperly excluded
physician’s report which was essentially duplicative of evidence
already considered by the ALJ); see also Williams v. Colvin,
98 F.Supp.3d 614, 632 (W.D.N.Y. 2015) (ALJ was not required to
expressly weigh the medical opinion of a consultative examiner when
the specific assignment of weight to that opinion would not have
impacted the outcome of the ALJ’s decision); Blabac v. Comm’r of
Soc. Sec., No. 308-CV-0849, 2009 WL 5167650, at *9 (N.D.N.Y.,
Dec. 18, 2009) (collecting cases finding harmless error where the
opinions the ALJ failed to weigh either did not conflict with the
ALJ’s findings or written consideration of the opinions would not
have changed the outcome of the ALJ’s decision.).
11

Here, ALJ Kane fully discussed and analyzed Dr. Luna’s opinion
in his decision. Moreover, the majority of Dr. Luna’s opinion
assessed mild or no limitations, which is fully consistent with ALJ
Kane’s RFC finding.

As to those limitations ALJ Kane rejected, he

explained why they were not incorporated into the RFC assessment.
It is therefore clear from the record that ALJ Kane afforded
Dr. Luna’s opinion some weight.

The ALJ’s failure to explicitly

make a statement to that effect was harmless error.
III. Plaintiff’s Treatment History
Plaintiff’s

third

and

final

argument

is

that

ALJ

Kane

improperly used Plaintiff’s failure to seek treatment as proof that
his conditions were not as disabling as alleged. The Court finds no
merit to this argument.
An ALJ is permitted to considered a claimant’s failure to seek
treatment for alleged disabilities when evaluating the claimant’s
credibility with respect to statements regarding the extent of
their

impairments.

Miller

v.

Colvin,

85

F.Supp.3d

742,

755

(W.D.N.Y. 2015); see also Arnone v. Bowen, 882 F.2d. 34, 39
(2d Cir. 1989)(finding claimant’s failure to seek medical attention
“seriously undermine[d]” contention of disability). Furthermore,
“[i]n making a credibility determination, [the ALJ] ‘is required to
take the claimant’s reports of pain and other limitations into
account, but is not required to accept the claimant’s subjective
complaints without question.’” Greene v. Colvin, 936 F.Supp.2d 216,

12

at 226 (W.D.N.Y. 2013) (quoting Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010)). Rather, the ALJ “may exercise discretion in
weighing the credibility of the claimant’s testimony in light of
the other evidence of the record.” Id.
During the relevant period, Plaintiff occasionally went to the
hospital for injuries, including on-going back pain, dental pain,
and knee sprain and possible wrist fracture, but diagnostic imaging
revealed little evidence of severe impairments and Plaintiff was
never admitted for his injuries. T. 441, 468, 483, 498. At the
May 15, 2014 hearing, Plaintiff testified repeatedly that he does
not want to go to the doctor or receive treatment for his medical
conditions. T. 50-52. At the December 14, 2012 hearing, Plaintiff
testified there were many times he thought he should see a doctor
but did not because he does not like public places or being around
people. He further testified he does not trust doctors and thinks
they are using him as a “test guinea pig” and are “just out to get
their money for the drugs they prescribe.” T. 99-100.
Plaintiff was incarcerated for approximately two years during
the relevant period. While incarcerated, Plaintiff received some
mental health treatment, which focused on the issues complained of
during his incarceration. Treatment records reveal he responded
well to therapy. T. 619-21. During his incarceration, Plaintiff was
also prescribed Depakote for his migraines and received Motrin for
his complaints of hip and arm pain. T. 643. However, in February

13

2013, Plaintiff declined any physical therapy or orthopedic care
for his knee pain caused by Osgood-Schlatter’s disease. T. 748-49.
ALJ Kane noted that since Plaintiff’s release in 2014, he has
received little medical treatment because he does not want to see
any doctors. T. 17.
In
medical

his

decision,

treatment,

ALJ

Kane

including

the

detailed

Plaintiff’s

treatment

he

sporadic

received

while

incarcerated and the lack of treatment he has sought or received
since his release in 2014. T. 16-17. Based on the foregoing, as
well as Plaintiff’s reported daily activities, ALJ Kane found
Plaintiff’s allegations of disability were not wholly credible.
T. 19. This finding is supported by the record, as discussed above
and is well within ALJ Kane’s discretion. See Naval v. Astrue, 303
F. App’x 18, 20 (2d Cir. 2008) (ALJ appropriately relied on absence
of medical records “to find that [claimant’s] claims of total
disability were undermined by his failure to seek regular treatment
for his allegedly disabling condition”); Salvaggio v. Apfel, 23 F.
App’x 49, 51 (2d Cir. 2001) (holding that “the plaintiff’s choice
to seek only minimal medical attention of her symptoms . . .
supports

the

disability”).

finding

that

the

plaintiff

was

not

under

a

Accordingly, the Court finds no error in ALJ Kane’s

credibility assessment.

The Court accordingly further finds that

remand of this matter is not warranted.

14

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. 11) 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:

July 16, 2018
Rochester, New York

15