Simmons v. Commissioner of Social Security

Filing 14

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 with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/18/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LORRAINE SIMMONS,
6:17-CV-06628-MAT

Plaintiff,

DECISION AND ORDER
-vsNANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Represented by counsel, Lorraine Simmons (“Plaintiff”) has brought
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 (“Defendant” or “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). 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 January 30, 2013, Plaintiff filed an application for DIB,
alleging disability beginning October 23, 2009, due to: depression;
panic attacks; arthritis in hands, right hip, knees, feet, and back;
and

anxiety.

Administrative

Transcript

(“T.”)

68.

Plaintiff’s

application was initially denied and she timely requested a hearing,
which was held before administrative law judge (“ALJ”) Brian Kane on
March 31, 2016. T. 38-67.
On April 29, 2016, the ALJ issued an unfavorable decision. T. 2037.

Plaintiff’s request for review was denied by the Appeals Council

on July 11, 2017, making the ALJ’s decision the final decision of the
Commissioner.

T. 1-6. Plaintiff then timely commenced this action.
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 met the
insured status requirements of the Act through December 31, 2010.
T. 25.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity during the period from the alleged onset
date, October 23, 2009, through her last insured date, December 31,
2010. T. 25. The ALJ noted that Plaintiff had worked after the last
insured date, providing child care for her niece; however, this work
did not amount to substantial gainful activity. T. 25-26.
At step two, the ALJ determined Plaintiff had the medically
determinable impairments of: hypothyroidism; depressive disorder; early
degeneration of the knees; thoracic degenerative changes at the T6-T7
level; and obesity through the date last insured. T. 26. However, the
ALJ

determined

that

none

of

Plaintiff’s

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medically

determinable

impairments, or combination of medically determinable impairments, were
severe. Id. Having determined Plaintiff had no severe impairments
through the date last insured, the ALJ accordingly found Plaintiff was
not disabled as defined in the Act. T. 34.
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 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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DISCUSSION
Plaintiff argues the ALJ’s finding that Plaintiff’s depression was
non-severe

was

improper

and

not

based

on

substantial

evidence.

Specifically, Plaintiff contends the ALJ made his finding based on (1)
a

mischaracterization

of

the

State

agency

review

physician’s

statements; (2) his own lay interpretation; and (3) the improper
rejection of certified registered physician assistant (“RPAC”) Sandra
Williams’ opinion. For the reasons discussed below, the Court finds
these arguments without merit.
I.

The ALJ Properly Found Plaintiff’s Depression was Not a Severe
Impairment
An ALJ is required to follow a five-step sequential evaluation

process for determining whether an individual is disabled. If the ALJ
finds that a claimant is not disabled at any step of the evaluation
process,

the

ALJ

will

not

proceed

to

the

next

step.

20

C.F.R.

§404.1520(a). The claimant bears the burden of proving the requirements
set forth in the first four steps of the sequential process. See
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan,
168 F.3d 72, 77 (2d Cir. 1999). Specifically, at step two, the claimant
bears the burden of demonstrating that an alleged medical impairment
significantly limits her ability to engage in basic work-related
functions. If the impairment does not significantly limit her ability
to

engage

in

basic

work-related

functions,

that

impairment

is

determined to be non-severe. 20 C.F.R. §404.1522(a). Step two acts as
a filter to screen out de minimis disability claims and, “as the Second
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Circuit has emphasized, is not a demanding standard.” McHugh v. Astrue,
No. 11-CV-00578 MAT, 2013 WL 4015093, at *9 (W.D.N.Y. Aug. 6, 2013)
(collecting

cases).

To

be

considered

severe,

an

impairment

or

combination of impairments must cause “more than minimal limitations
in [a claimant’s] ability to perform work-related functions.”

Donahue

v. Colvin, No. 6:17-CV-06838(MAT), 2018 WL 2354986, at *5 (W.D.N.Y. May
24, 2018).
The Court agrees with the Commissioner that Plaintiff failed to
demonstrate that her depression had more than a minimal affect on her
ability to engage in basic work-related activities during the relevant
period.1 Specifically, during the relevant period of October 23, 2009
(the alleged onset date) through December 31, 2010 (the date last
insured), Plaintiff only sought medical treatment on two occasions. T.
300-01, 306-07. On March 11, 2010, Plaintiff saw RPAC Williams for
prescription refills, to discuss her menses, and follow-up on her
hypothyroidism. RPAC Williams noted Plaintiff’s mood was “great” with
no euphoria or grandiosity; she further assessed Plaintiff’s diagnosed
depression NOS as stable. T. 306. On October 13, 2010, Plaintiff saw
Dr. Matthew Brown for cold symptoms. Dr. Brown noted Plaintiff had no
unusual anxiety or evidence of depression. T. 300-01. There is no
additional medical evidence in the record for the relevant time period.

1

In order to qualify for DIB, an individual must demonstrate disability that
began prior to the date last insured. See Monette v. Astrue, 269 F. App'x 109,
111 (2d Cir. 2008). Accordingly, Plaintiff’s DIB claim required her to show that
she had become disabled prior to December 31, 2010.

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Plaintiff sought treatment only once in 2011, after her last
insured date of December 31, 2010, had passed. On May 23, 2011
Plaintiff saw RPAC Williams and reported her mood was stable on her
current medication and she had no side effects from the medication.
Again, Plaintiff’s mental status examination showed no unusual anxiety
or evidence of depression. T. 298-99.
In his decision, the ALJ noted that the record indicates no
specialized mental health treatment during the relevant period, other
than medication from Plaintiff’s primary care providers. He further
considered Plaintiff’s medical treatment during the relevant period,
as noted above, as well as treatment Plaintiff received through January
2013, when RPAC Williams switched Plaintiff’s medication from Celexa
to Zoloft. T. 31. He noted Plaintiff reported some increased depressive
symptoms in August 2012, due to her daughter cancelling her wedding,
which resulted in Plaintiff losing a large sum of money. Id. referring
to T. 290. A review of the August 16, 2012, treatment notes indicate
that RPAC Williams suggested Plaintiff seek treatment from a counselor,
but Plaintiff declined. T. 291-93. The ALJ noted that RPAC Williams
diagnosed stable depression that was worse due to situational factors
and continued Plaintiff on her current medication, with a follow-up
visit in a year. T. 31. On January 2, 2013, Plaintiff reported she was
unable to find a job and was struggling financially. RPAC Williams
switched Plaintiff’s medication from Celexa to Zoloft. T. 289. On July

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9, 2013, Dr. Brown reported Plaintiff’s depression was stable and
controlled by Zoloft, which she was tolerating well. T. 283.
The ALJ correctly determined that the medical evidence of record
did not support the conclusion that Plaintiff’s depression was a severe
impairment. As discussed above, Plaintiff underwent highly conservative
(as well as limited) treatment throughout the relevant time period.
Plaintiff’s treatment providers noted that her depression was stable
and that her mood was “great” (T. 306), and at least one treating
source noted no sign of depression at all. Under these circumstances,
the ALJ’s conclusion that Plaintiff’s depression would have only
minimal impact on her ability to perform basic work-related functions
was reasonable and supported by substantial evidence. See, e.g., Perez
v. Astrue, 907 F.Supp.2d 266, 272 (E.D.N.Y. 2012) (finding no error
with the ALJ’s step two determination that claimant’s impairment was
non-severe); Donahue, 2018 WL 2354986, at *5 (finding no step two error
where mental impairments cause only mild limitations in functioning);
Terrance v. Colvin, No. 1:14-CV-00708 (LGF)(MAT), 2017 WL 3393576, at
*2 (finding no step two error where claimant’s carpal tunnel syndrome
did not significantly limit her abilities to perform basic work
activities and thus was
II.

non-severe).

Consideration of State Agency Reviewing Physician’s Opinion
Plaintiff also argues the ALJ’s denial of her claim relied on a

mischaracterization of State agency reviewing physician Dr. T. ImmanDundon’s opinion. For the reasons set forth below, the Court disagrees.

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On March 12, 2014, Dr. Imman-Dundon reviewed Plaintiff’s medical
records and concluded there was insufficient evidence to determine the
claim

of

disability

prior

to

the

date

last

insured.

T.

68-73.

Specifically, Dr. Imman-Dundon noted there was no indication of medical
or other opinion evidence from any source to consider. T. 72. As
discussed

further

below,

RPAC

Williams

submitted

a

Mental

RFC

Assessment form on February 19, 2014 (T. 333-37), which was included
in the records Dr. Imman-Dundon reviewed. However, this opinion was
completed more than three years after Plaintiff’s date last insured had
passed and nothing in the opinion indicated it was retrospective or
meant to address the relevant time period of October 23, 2009 through
December 31, 2010. Therefore, Dr. Imman-Dundon was correct that there
were no opinions, medical or otherwise, related to the relevant time
period.
In his decision, the ALJ gave significant weight to Dr. ImmanDundon’s opinion because it was generally consistent with the overall
evidence of record, including the minimal treatment Plaintiff received
between the alleged

onset

date

and

the

date

last insured.

This

treatment, as the ALJ pointed out, consisted of two visits to her
primary care doctor. T. 33.
The Court finds no error in the ALJ’s consideration of Dr. ImmanDundon’s

report.

In

determining

a

disability

claim,

“[t]he

[Commissioner] is entitled to rely not only on what the record says,
but also on what it does not say.” Dumas v. Schweiker, 712 F.2d 1545,

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1553 (2d Cir. 1983). The absence of medical treatment is therefore a
relevant consideration at step two of the ALJ’s analysis. Moreover, and
as noted above, it was Plaintiff’s burden at step two to present
sufficient evidence to establish that she suffered from a severe
impairment. Talavera v. Astrue, 697 F.3d at 151. In this case, the ALJ
properly relied on Dr. Imman-Dundon’s opinion that the evidence of
record was insufficient to show that Plaintiff was disabled. Plaintiff
has not argued nor is there any indication that the record was
incomplete or that she had undergone treatment of which the ALJ was not
aware.
Furthermore, it is axiomatic that there will be no medical record
showing a disabling condition if that condition does not in fact exist,
nor is an ALJ obliged to seek such nonexistent evidence out. See Schaal
v. Apfel, 134 F.3 496, 505 (2d Cir. 1998) (finding ALJ adequately
developed the record where there was little indication in the record
suggesting claimant had a disabling mental disorder during the relevant
period). The lack of any medical records demonstrating that Plaintiff’s
depression was a severe impairment, as noted by Dr. Imman-Dundon,
supports the ALJ’s step two determination.
III. Consideration of RPAC Williams’ Opinion
Plaintiff also contends that the ALJ improperly rejected the
opinion of RPAC Williams, which was the only medical opinion of the
record.

Plaintiff

“overwhelmingly

argues

compelling”

the

ALJ

reasons

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was

for

required

rejecting

to

RPAC

provide
Williams’

opinion and that he failed to do so in his decision. For the reasons
set forth below, the Court finds this argument without merit.
In an opinion dated February 19, 2014 (more than three years after
Plaintiff’s date last insured), RPAC Williams reported Plaintiff had
been treating with her since 2003, approximately five times per year.2
Plaintiff’s primary diagnoses were depression and hypothyrodism. T.
333. RPAC Williams reported Plaintiff’s clinical findings demonstrating
the severity of her symptoms included crying, anhedonia, poor eye
contact, sarcasm, irritability, and decreased attention to her personal
appearance. She opined Plaintiff’s prognosis was fair-to-good. Id. RPAC
Williams opined Plaintiff would have mild limitations (precluding
performance for less than ten percent of an eight-hour work day) in her
ability to: remember work-like procedures; understand and remember
detailed

instructions;

carry

out

detailed

instructions;

maintain

attention for two hour segments; maintain regular attendance and be
punctual within customary and usually strict tolerances; complete a
normal workday and workweek without interruptions from psychologically
based symptoms; respond appropriately to changes in a routine work
setting; and travel to unfamiliar places or use public transportation.
T. 335-36. She further opined Plaintiff would have mild-to-moderate
limitations (precluding performance for eleven to twenty percent of an

2

It is clear that this form was completed by RPAC Williams. What is not
clear is whether it was co-signed by Dr. Brown. There is an indecipherable
signature on the final page that may be Dr. Brown’s. See T. 337. However,
regardless of the source, the opinion was not relevant to the time period at
issue, as further discussed below.

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eight-hour work day) in her ability to: perform at a consistent pace
without an unreasonable number of rest periods; interact appropriately
with the general public; accept instructions and respond appropriately
to criticism from supervisors; get along with co-workers or peers
without unduly distracting them or exhibiting behavioral extremes; deal
with

normal

work

stress;

set

realistic

goals;

and

make

plans

independently of others. Id. RPAC Williams identified no moderate or
severe limitations; however, she opined Plaintiff would be “off task”
twenty-five percent of the time during an eight-hour workday and about
four days per month. T. 336-37. Finally, RPAC opined Plaintiff’s
symptoms could worsen, improve, or remain unchanged if Plaintiff was
working full-time. T. 337.
In his decision, the ALJ gave limited weight to the opinion of
RPAC Williams, noting it was inconsistent with the evidence of record
related to the relevant time period. T. 33. Specifically, RPAC Williams
reported she saw Plaintiff approximately five times per year since
2003; however, review of the record reveals three visits in 2009 prior
to the alleged onset date, two visits during the relevant period, one
visit in 2011, and two visits per year thereafter. T. 33. The ALJ
further noted that Plaintiff reported on March 11, 2010 that her mood
was “great” on her medication, which she had been taking for five years
at that time, and that Plaintiff’s diagnoses repeatedly included stable
depression. T. 33-34. The ALJ accurately noted treatment records

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indicated Plaintiff’s treatment had been minimal, conservative, and
routine. T. 34.
The Court finds no error in the ALJ’s consideration of RPAC
Williams’ opinion, which was rendered more than three years after
Plaintiff’s date last insured. “While the existence of a pre-existing
disability can be proven by a retrospective opinion, such an opinion
must refer clearly to the relevant period of disability and not simply
express an opinion as to the claimant’s current status.” Vitale v.
Apfel, 49 F. Supp.2d 137, 142 (E.D.N.Y. 1999). In this case, RPAC
Williams’ opinion relates to Plaintiff’s functioning as of February 19,
2014, and does not clearly refer to her functioning during the relevant
time period. Indeed, in her February 19, 2014 opinion, RPAC Williams
noted Plaintiff’s symptoms were “recently worse than typical for her
[and]

currently

uncontrolled”

and

that

her

depression

had

been

previously controlled by her medication. T. 333, 337. These statements
indicate that the limitations identified by RPAC Williams were a result
of Plaintiff’s recently worsening condition, and not reflective of her
functioning during the relevant time period. The opinion includes no
indication that Plaintiff’s symptoms were disabling or uncontrolled
prior to Plaintiff’s last insured date of December 31, 2010.
As such, the ALJ did not err in affording limited weight to RPAC
Williams’ opinion. Moreover, this conclusion would hold even if the
opinion were co-authored by Dr. Brown and the treating physician rule
applied. See Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir. 2012) (ALJ

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properly declined to afford controlling weight to treating physician’s
opinion rendered four years after the date last insured where it was
unsupported by contemporaneous treatment records and inconsistent with
the other medical evidence of record). Plaintiff has therefore not
shown that the ALJ’s treatment of RPAC Williams’ opinion constituted
reversible error.
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
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

July 18, 2018
Rochester, New York

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