Windom v. Commissioner of Social Security
Filing
18
DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/13/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TACARA WINDOM,
Plaintiff,
6:17-cv-06720-MAT
DECISION AND ORDER
-vsNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
INTRODUCTION
Tacara Windom (“Plaintiff”), represented by counsel, brings
this action pursuant to Title 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 application for supplemental security income (“SSI”).
The Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 1383(c). Presently before the Court are the parties’ competing
motions for judgement 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
Plaintiff protectively filed for SSI benefits on May 15, 2013,
alleging disability as of August 10, 2012 due to depression,
posttraumatic stress disorder, bipolar disorder, anxiety, and high
blood pressure. Administrative Transcript (“T.”) 80-81. The claim
was initially denied on January 10, 2014. T. 104-14. At Plaintiff’s
request,
a
hearing
was
held
before
administrative
law
judge
(“ALJ”)Brian Kane on May 22, 2014. T. 37-79. On June 25, 2014, the
ALJ issued an unfavorable decision. T. 20-32. On September 18,
2014, the Appeals Council denied Plaintiff’s request for review.
T. 1-3. Plaintiff instituted a civil action in this Court, and on
December 15, 2015, this Court remanded the claim for further
administrative proceedings. See Windom v. Colvin, No. 6:14-CV06652(MAT), 2015 WL 8784608 (W.D.N.Y. Dec. 15, 2015).
On remand, the Appeals Council vacated the ALJ’s decision and
remanded the matter for further consideration and development.
T. 818-20. Plaintiff appeared with her attorney at three subsequent
hearings before the ALJ, on June 30, 2016, October 6, 2016, and
July 21, 2017. T. 749-817. A medical expert (“ME”) also testified
at the October 6, 2017 and July 21, 2017 hearings (T. 788-817) and
a vocational expert (“VE”) testified at the July 21, 2017 hearing
(T. 749-87). On August 17, 2017, the ALJ issued an unfavorable
decision. T. 722-39. 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); 20 C.F.R. § 416.920(a)(4). At step one
of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since the application date.
2
T.727. Plaintiff had worked since the onset date and the ALJ found
this work activity could reasonably constitute substantial gainful
activity; however, the ALJ decided not to consider those earnings
as constituting substantial gainful activity and instead decided
the entirety of the relevant period in his decision. In any event,
the ALJ found the work performed since the alleged onset date was
consistent with his RFC finding. Id.
At
“severe”
step
two,
the
impairments
ALJ
of:
determined
major
that
Plaintiff
depressive
disorder,
had
the
bipolar
disorder, border line personality disorder, generalized anxiety
disorder, and posttraumatic stress disorder. T. 728.
The ALJ also considered Plaintiff’s obesity, hypertension with
possible left ventricular strain, pericarditis, and bilateral knee
pain. T. 728. The ALJ determined that, based on the medical
evidence of record, none of the above listed physical impairments
caused more than minimal limitation in the Plaintiff’s ability to
perform basic work activities, and accordingly, these physical
impairments were nonsevere. Id.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. T. 730.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform a full
3
range of work at all exertional levels but with the following
nonexertional
limitations:
can
have
occasional
contact
with
coworkers and the public; can engage in simple work requiring
specific vocational preparation level four or below; and can
understand, remember, and carry out simple unskilled work but is
incapable of repetitive industrial processes, but cannot perform
fast-paced work. T. 731.
At step four, the ALJ determined that Plaintiff had no past
relevant work. T. 738. At step five, the ALJ relied on the VE’s
testimony to find that, taking into account Plaintiff’s age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff can
perform, including the representative occupations of linen grader,
laundry sorter, and photocopy machine operator. T. 738-39. The ALJ
accordingly found that Plaintiff was not disabled as defined in the
Act. T. 739.
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”
4
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)).
DISCUSSION
Plaintiff asks the Court to remand this matter for additional
administrative
proceedings, contending
that
the
ALJ committed
reversible error at step two of the sequential evaluation when he
determined she had no severe physical impairments.
Plaintiff
further argues that the ALJ compounded this error by failing to
include any exertional limitations in his RFC finding.
The Court
finds these arguments without merit and affirms the final decision
of the Commissioner, for the reasons discussed below.
5
I.
Step Two Severity Standard
At step two of the sequential analysis, the ALJ considers the
medical severity of the claimant’s impairments. See 20 C.F.R.
§ 416.920(a)(4)(ii). If an impairment is found to significantly
limit the claimant’s physical or mental ability to do basic work
activities, that impairment will be found to be severe. 20 C.F.R.
§
416.920(c).
Notably,
the
claimant
bears
the
burden
of
demonstrating that an alleged medical impairment significantly
limits her ability to engage in basic work-related functions at
step two. See Cox v. Astrue, 993 F. Supp. 2d 169, 178 (N.D.N.Y.
2012) (“The claimant bears the burden of presenting evidence
establishing severity.”).
Step two acts as a filter to screen out de minimis disability
claims and, “as the Second 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).
Nonetheless, 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).
II.
Consideration of Plaintiff’s Physical Impairments
In this case, Plaintiff originally alleged disability due to
depression,
posttraumatic
stress
6
disorder,
bipolar
disorder,
anxiety, and high blood pressure. T. 80-81. Plaintiff now asserts
that several additional physical impairments affect her functional
capacity, including knee pain, hypertension, and pericarditis. See
Docket No. 12-1 at 16.
In his decision, the ALJ noted the record reflected that
Plaintiff
had several
physical conditions,
hypertension,
pericarditis,
However,
ALJ
the
found
and
each
bilateral
of
these
including obesity,
knee
pain.
conditions
T.
was
728.
either
controlled, minimally treated, anomalously episodic, or lacking in
specific complaints to support a finding that it caused more than
minimal limitation in Plaintiff’s ability to perform basic work
activities.
Id.
The
ALJ
also
noted
that
the
medical
record
demonstrates Plaintiff’s principal treatments have been related to
mental health issues, with only isolated care related to her
hypertension and pericarditis. Id.
The
ALJ’s
conclusions
regarding
Plaintiff’s
physical
impairments are well-supported by the medical evidence of record.
Considering first Plaintiff’s hypertension, the medical record
demonstrates Plaintiff’s ongoing treatment with medication, diet,
and exercise counseling. See T. 333, 422, 1730. The medical record
also indicates Plaintiff has a history of noncompliance for her
hypertension treatment. For example, on March 23, 2017, nurse
practitioner Sara Genovese reported in a treatment note that
Plaintiff stated she did not know the last time she took her blood
7
pressure medication and that she was not doing blood pressure
checks at home. T. 1738.
As the ALJ correctly concluded, nothing
in the record suggests that Plaintiff’s hypertension interferes
with her ability to perform work-related activities.
Turning to Plaintiff’s pericarditis, in February 2015, an
echocardiogram revealed borderline pulmonary hypertension and a
small posterior pericardial effusion with mild circumferential
thickening consistent with pericarditis. T. 1227. However, on
April 23, 2015, a comprehensive cardiovascular examination was
within
normal
limits
and
an
echocardiogram
showed
normal
pericardium with no evidence of a pericardial effusion. T. 1252-54.
On
October
1,
2015,
an
echocardiogram
revealed
vital
signs
consistent with pericarditis. T. 1330. On September 15, 2016,
Plaintiff was seen at the Highland Cardiology clinic for a reevaluation of her “mild chest pain.” T. 1763. Plaintiff reported
she had
been
chest
pain
free,
with
some
intermittent,
short
durations of chest pressure unrelated to activity such as walking,
leaning forward or back. Id. She stated she was not sure why she
needed to be evaluated, and denied chest pain, shortness of breath,
lightheadedness,
and
dizziness.
Id.
An
updated
echocardiogram
showed no significant changes from the October 1, 2015 report.
Specifically,
the
report
showed
normal
biventricular
systolic
function, no significant valvular abnormalities, and no pericardial
effusion. T. 1766.
This evidence, particularly Plaintiff’s denial
8
of any significant symptoms, amply supports the ALJ’s conclusion
that Plaintiff’s pericarditis was not severe.
Plaintiff also claims the ALJ should have found her knee and
toe pain severe.
Again, and as the ALJ correctly found, the
medical evidence of record does not show that these impairments had
any significant impact on Plaintiff’s ability to perform workrelated activity. On September 13, 2016, at a routine physical
exam,
Plaintiff
complained
of
pain
in
her
right
knee
to
NP
Genovese. T. 1729. On examination, Plaintiff had a normal gait.
T. 1730. No additional information regarding Plaintiff’s knee was
noted. T. 1729-32. On February 23, 2017, Plaintiff complained that
she had numbness in both of her big toes for two years. T. 1741. NP
Genovese noted that Plaintiff was irate no one had addressed the
issue with her. Id. NP Genovese assessed Plaintiff’s toe issue as
“likely a benign finding” with “no sensory deficit.” T. 1743.
As
the ALJ noted, the record contains no evidence of a diagnosed knee
or toe impairment and there is no evidence Plaintiff ever had
orthopedic, neurological, or rheumatological consultations for
knee-related complaints. Plaintiff has not satisfied her burden of
demonstrating a severe knee or toe-related impairment.
The ALJ also noted the Plaintiff made complaints of migraine
headaches;
however,
he
found
no
evidence
of
a
diagnosis
or
treatment under a neurologist to establish Plaintiff’s headaches
were medically determinable impairments. T. 729. Nonetheless, the
9
ALJ considered their impact on Plaintiff’s basic work activities
and determined that Plaintiff’s migraine headaches caused no more
than minimal limitation and accordingly found them to be nonsevere.
Id.
Again, the ALJ’s conclusion is well-supported by the medical
evidence of record, and the Court finds no error in it. 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 nonsevere); 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 nonsevere).
II.
Assessment of Consultative Examiners’ Opinions
Plaintiff further contends that the ALJ relied on his own lay
opinion at step two, because he afforded only “little weight” to
the opinion of consultative examiner of Dr. Carolyn Ling. In
particular, Plaintiff argues that the ALJ was required to credit
Dr. Ling’s opinion over the opinion of consultative examiner
Dr.
Nikita
Dave,
because
Dr.
Dave’s
examination
Plaintiff’s pericarditis diagnosis and treatment.
lacks merit.
predated
This argument
Dr. Dave examined Plaintiff on November 13, 2013.
T. 341-44. Plaintiff’s chief complaints to Dr. Dave were bipolar
disorder, posttraumatic stress disorder, depression, anxiety, and
suicidal
ideation.
T.
341.
Plaintiff
mentioned
the
recent
occurrence of chest pain and an abnormal EKG. Plaintiff also
10
mentioned bilateral knee pain she believed was caused by her
obesity. Id.
Upon examination, Plaintiff showed no signs of distress,
exhibited a normal gait, full flexion of her spine, and full range
of motion of all joints. T. 343. Dr. Dave diagnosed Plaintiff with
hypertension with possible EKG evidence of left ventricular strain,
with no recurrence of chest pain; mild bilateral knee pain; and
obesity. Id. Dr. Dave opined that based on his physical examination
of Plaintiff, she had “no limitations.” Id.
In his decision, the ALJ afforded great weight to Dr. Dave’s
opinion and findings that Plaintiff’s physical functioning and
systems were all within normal limits. T. 729. He noted that
Plaintiff’s repeated primary care evaluations were all within
normal
limits
Furthermore,
he
and
consistent
noted
Dr.
with
Dave’s
Dr.
opinion
Dave’s
is
assessment.
consistent
with
Plaintiff making no allegations of physical limitations at her
hearing. Id.
Dr. Ling examined Plaintiff on April 27, 2015.
T. 1291-95.
Upon physical examination, Plaintiff appeared in no acute distress.
Plaintiff had a limping gait and was unable to walk on her heels or
toes secondary to left knee pain. Id. Plaintiff’s stance was
normal, she used no assistive devices, and was able to change and
get on and off the exam table without help or difficulty. T. 129293. Plaintiff’s heart had a regular rhythm, with no murmur, gallop,
11
or rub audible. T. 1293. Tenderness to palpation was present over
the
substernal
area
of
Plaintiff’s
chest.
Id.
The
remaining
portions of the physical examination were entirely unremarkable.
T. 1293-94. Dr. Ling opined Plaintiff had moderate limitation for
activities requiring mild or greater exertion because of her
cardiac condition and pericarditis. Id. She also opined Plaintiff
had moderate limitation for standing, walking, squatting, and
kneeling due to her left knee pain. Id.
In his decision, the ALJ afforded little weight to the opinion
of Dr. Ling, noting the opinion conflicts with Plaintiff’s level of
treatment and was based primarily uncorroborated subjective reports
pertaining to knee pain and pericarditis. T. 728. Moreover, the ALJ
noted, that by April 23 2015 (four days prior to Dr. Ling’s
examination and opinion), Plaintiff’s follow-up cardiac testing was
within normal limits and inconsistent with pericardial effusion or
any other cardiological impairments. Id. referring to 1251-54.
The Court finds no error in the Court’s assessment of the
consultative examiners’ opinions. An 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).
Moreover,“[g]enuine conflicts in the medical evidence are for the
Commissioner to resolve, and . . . an ALJ is entitled to select
between the conflicting evidence in the record.”
12
Rolon v. Comm’r
of Soc. Sec., 994 F. Supp. 2d 496, 506 (S.D.N.Y. 2014) (quotation
omitted
and
alteration
in
the
original).
Here,
the
ALJ
appropriately resolved the conflict between Dr. Dave’s opinion and
Dr. Ling’s opinion by assessing each opinion’s consistence with the
evidence as a whole, and appropriately concluding that Dr. Ling’s
opinion was unsupported by Plaintiff’s medical record.
The ALJ’s reliance on Dr. Dave’s opinion was not improper
simply because it predated Plaintiff’s diagnosis of pericarditis.
As discussed at length above, Plaintiff’s most recent cardiac
examinations were essentially normal and she denied any significant
symptoms related to her pericarditis. “A gap of time does not
automatically invalidate a medical source’s opinion,” so long as
the claimant’s condition has not meaningfully deteriorated after
the
opinion
was
rendered.
Wilson
v.
Comm’r
of
Soc.
Sec.,
No. 17-CV-1003-FPG, 2018 WL 4901070, at *4 (W.D.N.Y. Oct. 9, 2018).
In this case, there is nothing to suggest that Plaintiff’s cardiac
condition meaningfully deteriorated after Dr. Dave’s examination,
and the ALJ did not err in relying on Dr. Dave’s opinion.
For the reasons set forth above, the Court finds that the
ALJ’s step two finding that Plaintiff had no severe physical
impairments was well-supported by the evidence of record.
In
particular, Dr. Dave’s opinion and the treatment records discussed
in
detail
by
the
ALJ
demonstrate
that
Plaintiff’s
physical
impairments had no significant impact on her ability to perform
13
work-related functions.
Accordingly, the ALJ also did not err in
failing to include any exertional limitations in his assessment of
Plaintiff’s RFC, and the Court finds no error therein and no basis
for remand.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the
pleadings
(Docket
No.
12)
is
denied.
The
Commissioner’s
opposing motion for judgement on the pleadings (Docket No. 16) is
granted. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
October 13, 2018
Rochester, New York
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?