Garcia 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. (clerk to close case.) Signed by Hon. Michael A. Telesca on 6/18/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LISA M. GARCIA,
1:17-cv-06573-MAT

Plaintiff,

DECISION AND ORDER
-vsNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
I.

INTRODUCTION
Represented by counsel, Lisa M. Garcia (“Plaintiff”) has brought

this action pursuant to Titles II and XVI of the Social Security Act
(“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“Defendant” or “the Commissioner”)
denying her applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). This Court has jurisdiction over
the matter pursuant to 42 U.S.C. § 405(g).

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

and

reasons

set

forth

below,

Plaintiff’s

motion

is

denied

Defendant’s motion is granted.
II.

PROCEDURAL BACKGROUND
On April 15, 2014, Plaintiff protectively filed applications for

DIB and SSI, alleging disability beginning April 11, 2014, due to

anxiety, panic attacks, depression, memory problems, and high blood
pressure. Administrative Transcript (“T.”) 156-68, 182. Plaintiff’s
applications were initially denied and she timely requested a hearing,
which was held before administrative law judge (“ALJ”) Bruce Fein on
April 29, 2016, in Syracuse, New York. T. 32-59. On July 13, 2016, the
ALJ issued an unfavorable decision.

T. 8-31.

Plaintiff’s request for

review was denied by the Appeals Council on June 22, 2017, making the
ALJ’s

decision

the

final

decision

of

the

Commissioner.

T.

1-5.

Plaintiff then timely commenced this action.
III. 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). Initially, the ALJ determined that Plaintiff meets the
insured status requirements of the Act through December 31, 2019.
T. 13. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful employment since her alleged onset date. Id. At
step two, the ALJ determined that Plaintiff had the severe impairments
of generalized anxiety disorder, unspecified depressive disorder,
diabetes, and obesity. Id. The ALJ further found that Plaintiff’s
breast cancer in remission, hypertension, hyperlipidemia, hearing loss,
left arm mobility problems, pinched nerve in her leg, and low back pain
were

all

non-severe.

T.

14.

At

step

three,

the

ALJ

considered

Plaintiff’s impairments and found that singly or in combination, they

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did not meet or medically equal the severity of a listed impairment.
T. 15.
Prior

to

proceeding

to

step

four,

the

ALJ

determined

that

Plaintiff had the residual functional capacity (“RFC”) to lift and/or
carry ten pounds frequently and twenty pounds occasionally; sit for a
total of six hours in an eight-hour workday; stand and/or walk for a
total of six hours in an eight-hour workday; and occasionally climb,
balance, stoop, kneel, crouch, and crawl. The ALJ further found the
Plaintiff would be able to perform unskilled work that is limited to
simple, routine, and repetitive tasks and that she retains the ability
to work in a low-stress job, requiring only occasional decision-making,
occasional changes in the work setting, and occasional judgment. T. 18.
At step four, the ALJ determined that Plaintiff was unable to
perform any past relevant work. T. 23. At step five, the ALJ found
that, considering Plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that Plaintiff could perform. T. 25. Accordingly, the ALJ found
that Plaintiff was not disabled as defined in the Act. Id.
IV.

DISCUSSION
A.

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 Green-Younger v. Barnhart, 335
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F.3d 99, 105-06 (2d Cir. 2003). “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).

“Where

the

Commissioner's

decision

rests on

adequate findings supported by evidence having rational probative
force, [the district court] will not substitute [its] judgment for that
of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.
2002). This deferential standard is not applied to the Commissioner's
application of the law, and the district court must independently
determine whether the Commissioner's decision applied the correct legal
standards in determining that the claimant was not disabled. Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984).
Plaintiff’s sole argument in this case is that the ALJ’s step five
determination was not supported by substantial evidence. In particular,
Plaintiff contends that the ALJ’s reliance on the Medical Vocational
Guidelines (the “Grids”), rather than a vocational expert (“VE”), was
inappropriate

because

Plaintiff’s

non-exertional

limitations

significantly diminished her work capacity.
B.

The ALJ’s Step Five Determination

Plaintiff contends that the ALJ’s step five determination was not
supported by substantial evidence. Specifically, Plaintiff argues that
the ALJ indicated in his decision that he had taken into consideration
several

of

psychiatrist

the
Dr.

“moderate

limitations”

Thundathill

Abraham

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identified

by

and

these

that

Plaintiff’s
moderate

limitations were significant enough to preclude reliance on the Grids.
For the reasons discussed below, the Court disagrees.
On April 11, 2016, Dr. Abraham completed a “check the box” mental
capacity assessment for Plaintiff. Dr. Abraham opined that Plaintiff
had no limitations in her ability to carry out very short and simple
instructions, ask simple questions or ask for assistance, maintain
socially appropriate behavior and to adhere to basic standards of
neatness and cleanliness, and be aware of normal hazards and take
appropriate precautions. T. 623-25. Dr. Abraham further opined that
Plaintiff had slight limitations in her ability to remember locations
and work-like procedures, carry out detailed instructions, and sustain
an ordinary routine without special supervision. T. 623-24.

He also

indicated that Plaintiff had moderate limitations (defined as “[t]he
individual can generally perform satisfactorily in this area but not
always”) in her ability to understand and remember very short and
simple and detailed instructions, maintain attention and concentration
for extended periods, perform activities within a schedule, maintain
regular attendance, be punctual within customary tolerances, interact
appropriately with the general public, respond appropriately to changes
in

the work

setting, travel

in

unfamiliar

places or use

public

transportation, and set realistic goals or make plans independently of
others. T. 623-25. Dr. Abraham assigned no “marked” or “extreme”
limitations for any of Plaintiff’s abilities. Id. He selected “unknown”
for the assessment’s section pertaining to sustained concentration and

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persistence, including an estimate of how many absences Plaintiff would
likely have in an average month. T. 624. Finally, he noted that
Plaintiff’s

“depression,

anxiety,

[and]

panic

attacks”

were

the

medical/clinical findings that supported his opinions. T. 623, 625.
Plaintiff

contends

that

the

ALJ’s

step

five

conclusion

was

erroneous because the ALJ adopted the moderate limitations identified
by Dr. Abraham, and therefore should not have relied upon the Grids to
conclude that Plaintiff was not disabled. However, Plaintiff’s argument
is based on a misreading of the ALJ’s decision. Contrary to Plaintiff’s
contentions, the ALJ’s decision does not indicate that he has adopted
the moderate limitations identified by Dr. Abraham. Instead, the ALJ
explained that Dr. Abraham had seen Plaintiff on only two occasions
since her alleged onset date, and that his treatment notes from those
occasions were “fairly benign.”

T. 23. The ALJ expressly rejected

Dr. Abraham’s conclusion that Plaintiff was moderately limited in
appropriately dealing with the general public, explaining that it was
inconsistent with the opinion of consultative examiner Dr. Kristina
Luna. Id. With respect to the other moderate limitations identified by
Dr. Abraham, the ALJ explained that, to the extent these limitations
were supported by the record, he had accounted for them by limiting
Plaintiff to performing simple tasks in a low-stress work environment.
Id. Plaintiff’s argument is therefore based on an unsupported reading
of the ALJ’s decision, inasmuch as the ALJ did not make a wholesale

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adoption of the moderate limitations identified by Dr. Abraham as
Plaintiff claims.
Plaintiff particularly claims that Dr. Abraham stated that she was
moderately limited in her ability to understand and remember short and
simple instructions, and that this was unaccounted for in the ALJ’s RFC
finding. However, Plaintiff fails to mention that Dr. Abraham also
checked the box for “no limitations” for the ability to carry out short
and

simple

instructions

and

checked

the

box

for

only

“slight

limitations” for the ability to carry out detailed instructions.
Plaintiff makes no attempt to reconcile this apparent inconsistency in
Dr.

Abraham’s

opinion,

nor

does

she

explain

how

the

ALJ’s

reconciliation of the conflict was improper.
To the extent that Plaintiff’s moving papers can be read to
implicitly argue that the ALJ was required to accept Dr. Abraham’s
opinion, that argument lacks merit.

As a threshold matter, and as the

ALJ explained, the record in this case indicates that Dr. Abraham had
examined Plaintiff on only one or two occasions, entitling his opinion
to less weight. See Petrie v. Astrue, F. App’x 401, 405 (2d Cir. 2011)
(“[A] physician who only examined a claimant ‘once or twice’ did not
see that claimant regularly and did not develop a physician/patient
relationship with the claimant. . . .

As a result, . . . such a

physician’s medical opinion was not entitled to the extra weight of
that of a treating physician.”) (internal quotation omitted).

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In any event, even were Dr. Abraham to be considered a treating
physician,

the

ALJ

articulated

good,

well-supported

reasons

for

assigning less than controlling weight to Dr. Abraham’s opinion. This
Circuit has repeatedly held that although a treating physician’s
medical opinion generally receives deference, it is not afforded
controlling weight when, as here, it is “not consistent with other
substantial evidence in the record, such as the opinions of other
medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(internal citations omitted); see also 20 C.F.R. § 404.1527(d)(2).

In

this case, Dr. Abraham’s opinion was unsupported by his own treatment
notes and the thorough examination performed by Dr. Luna.

The ALJ was

therefore not obligated to afford it controlling weight.
Having

appropriately

addressed

Dr.

Abraham’s

opinion

and

formulated a well-supported RFC finding, the ALJ did not err in relying
on the Grids.

The nonexterional limitations included in the ALJ’s RFC

finding were not of the type to prevent Plaintiff from performing the
basic mental demands of competitive and unskilled work. Understanding,
carrying out and remembering simple instructions, use of judgement,
responding appropriately to supervision, co-workers and unusual work
situations, and dealing with changes in a routine work setting are all
included in the Social Security Administration’s definition of basic
work activities for unskilled work. See Lawler v. Astrue, 512 F. App’x
108, 111-12 (2d Cir. 2013). When a claimant’s impairments do not
significantly limit her ability to perform these basic work activities,

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an ALJ may rely on the Grids to adjudicate the claim. See Woodmancy v.
Colvin, 577 F. App’x 72, 76 (2d Cir. 2014) (affirming use of the Grids
where the RFC limited the claimant to “understand, carry out, and
remember

simple

instructions

.

.

.

respond

appropriately

to

supervision, coworkers, and usual work situations and to deal with
changes in a routine work setting”). Here, the ALJ’s RFC finding
limited Plaintiff to performing simple, routine, repetitive tasks, in
low-stress jobs, defined as requiring no more than occasional decisionmaking,

occasional

changes

in

the

work

setting,

and

occasional

judgement. T. 18, 24-25. None of these restrictions were so limiting
as to prevent Plaintiff from finding meaningful employment performing
competitive and remunerative unskilled work in the national economy.
See Torres v. Comm’r of Soc. Sec., No. 15-CV-1382 (KBF), 2016 WL
3911980, at *12 (S.D.N.Y. July 15, 2016) (“None of the exertional
limits identified by the ALJ . . . [including] no more than occasional
decision making or exercise of judgement . . . no interaction with the
public; [and] occasional work-related interaction with co-workers and
supervisors . . . narrows plaintiff’s possible range of unskilled work
so as to deprive [her] of meaningful employment opportunities.”).
Accordingly, the ALJ’s reliance on the Grids in the present case in
adjudicating Plaintiff’s claim was appropriate.

See Jordan v. Comm’r

of Soc. Sec., 194 F. App’x 59, 61 (2d Cir. 2006) (application of the
Grids is appropriate “when the claimant’s non-exertional impairments
do

not significantly

limit

the range

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of

work

permitted

by

[the

claimant’s

other]

limitations”)

(internal

quotations

omitted

and

alteration in original). The Court therefore finds no error in the
ALJ’s step five determination and concludes that remand of this matter
is not warranted.
V.

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
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 18, 2018
Rochester, New York

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