Kirshblum v. Commissioner of Social Security

Filing 17

DECISION AND ORDER The plaintiff's motion for judgment on the pleadings 9 is denied, the Commissioner's cross motion for judgment on the pleadings 14 is granted, and the Commissioner's decision that plaintiff is not disabled is affirmed in its entirety. Signed by Hon. David G. Larimer on 3/13/2019. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
PA’JE KIRSHBLUM,
DECISION AND ORDER
Plaintiff,
17-CV-6769L
v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________________

Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security
(“the Commissioner”). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the
Commissioner’s final determination.
On December 30, 2013, plaintiff, then twenty-two years old, filed an application for
Supplemental Security Income benefits under Title II of the Social Security Act, alleging an
inability to work since November 4, 2012. (Administrative Transcript, Dkt. #8 at 24). Her
application was initially denied. Plaintiff requested a hearing, which was held on March 22, 2016
before Administrative Law Judge (“ALJ”) John P. Costello. The ALJ issued a decision on May
12, 2016, concluding that plaintiff was not disabled under the Social Security Act. (Dkt. #8 at
24-35). That decision became the final decision of the Commissioner when the Appeals Council
denied review on September 10, 2017. (Dkt. #8 at 1-4). Plaintiff now appeals from that decision.
The plaintiff has moved (Dkt. #9), and the Commissioner has cross moved (Dkt. #14) for
judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons set forth below,

the plaintiff’s motion is denied, the Commissioner’s cross motion is granted, and the
Commissioner’s decision that plaintiff is not disabled is affirmed.

DISCUSSION
Determination of whether a claimant is disabled within the meaning of the Social Security
Act requires a five-step sequential evaluation, familiarity with which is presumed. See Bowen v.
City of New York, 476 U.S. 467, 470-71 (1986). See 20 CFR §§404.1509, 404.1520. The
Commissioner’s decision that a plaintiff is not disabled must be affirmed if it is supported by
substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. §405(g);
Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002).
The ALJ summarized plaintiff’s medical records in detail, with particular focus on
plaintiff’s mental health treatment for depressive disorder and anxiety disorder/post-traumatic
stress disorder, which the ALJ concluded constituted a severe impairment. Based on the evidence
of record, the ALJ found that the plaintiff retained the RFC to perform a full range of work at all
exertional levels, except that plaintiff is limited to simple, routine tasks; is limited to low-stress
work, defined as involving no more than occasional decision-making; and cannot interact more
than occasionally with coworkers and/or the general public. (Dkt. #8 at 30). When presented with
this RFC, vocational expert Peter A. Manzi testified that plaintiff can perform the representative
unskilled positions of hand packager and laundry worker. (Dkt. #8 at 34).
Plaintiff argues that the ALJ’s RFC determination was not supported by substantial
evidence, and that the ALJ ignored or mischaracterized the evidence of record. Specifically,
plaintiff argues that the ALJ improperly rejected the opinions of plaintiff’s treating therapists and
a psychologist as inconsistent with the evidence of record, when they were not.

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Intern mental health counselor Nicole Miceli treated plaintiff through October 2012, prior
to plaintiff’s Social Security benefits application and prior to her alleged disability onset date.
She opined that plaintiff’s ability to engage in work-related mental functions was “very limited,”
and that plaintiff was incapable of performing any activity except for therapy. (Dkt. #8 at 560-63).
As the ALJ noted, however, Ms. Miceli’s opinion was flatly contradicted by plaintiff’s treatment
records from Ms. Miceli and others in her office, which noted no serious clinical deficits, typically
documented good progress with depression and social interaction issues, and expressed in
plaintiff’s October 2013 discharge assessment that plaintiff was “resil[i]ent, strong and capable of
anything she chooses to do. She has done a great deal of good work.” (Dkt. #8 at 544). See
Dkt. #8 at 581, 597, 604 (January 5, 2012 assessment, “[plaintiff] is a very mature 21 year ol[d]
and wants nothing more than to be productive in society and as a mother”); 584 (January 16, 2013
progress note: “[plaintiff] stated that for the first time she is [n]ot acting reactive and exploding
straight from her emotions”); 587 (January 23, 2013, “Pa’je seemed much more motivated and
future[-oriented] than this writ[]er has ever seen her”); 585 (January 30, 2013, plaintiff reports
that, “anger levels are lowering and she is not so mad all the time. This is making her les[s]
depressed and more able to do things. She filled out all her GED paperwork and is getting ready
to send it off . . .”).
Psychologist Dr. Christine Ransom, whose relationship to the plaintiff (whether treating,
examining, or otherwise) is not clear from the record, submitted an assessment in May 2012 (six
months prior to plaintiff’s alleged disability onset date), relating that plaintiff had reported “serious
auditory hallucinations” which interfered with her thought processes. Dr. Ransom opined that
plaintiff’s mood and affect were “moderately to markedly dysphoric,” that her attention and
concentration and memory skills were “moderately” impaired, and that her cognitive functioning,

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insight and judgment were normal. Ultimately, Dr. Ransom concluded that plaintiff’s ability to
maintain attention and concentration in a work environment, or to perform low stress and simple
tasks, was “very limited,” and that plaintiff was capable of nothing more than engaging in therapy
for a period of six months. (Dkt. #8 at 536-41). Because there were no supporting treatment
records (indeed, Dr. Ransom reported that plaintiff is “not currently in mental health treatment”
and had not been treated since 2009) and no evidence to suggest any ongoing treating relationship
between plaintiff and Dr. Ransom, or to otherwise support limitations which could meet the
12-month durational requirement for disability, the ALJ assigned “little” weight to Dr. Ransom’s
opinion.
Licensed mental health counselor Kristin Tripp, who began treating plaintiff for depression
and PTSD in or before November 2015 (three years after the alleged disability onset date),
submitted a letter opining in conclusory fashion that “[i]t is not recommended that [plaintiff] be
employed . . . emotional and behavioral issues [affect] her activities of daily living, limiting her
ability to be employed at this time.” (Dkt. #8 at 618). Given the vagueness of the opinion and
the lack of any supporting evidence that plaintiff’s symptoms interfere with her functioning to the
extent described by Ms. Tripp, the ALJ afforded it “limited” weight.
Having granted limited weight to the opinions of plaintiff’s treating therapists and Dr.
Ransom – none of whom submitted an opinion that reflected substantially on plaintiff’s limitations
during the relevant time period, or that was well-supported by plaintiff’s treatment records – the
ALJ relied most heavily on the opinion of consulting psychiatrist Dr. Kristina Luna in making his
RFC finding. Dr. Luna examined plaintiff on March 7, 2014, and noted that although plaintiff
exhibited some anxiety and depression, she was cooperative and appropriate, with coherent and
goal-directed thought processes, and no evidence of hallucinations. (Dkt. #8 at 567). After

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examining plaintiff and testing plaintiff’s attention, concentration, and memory skills, Dr. Luna
opined that plaintiff has no limitations in following and understanding simple directions, can
perform simple tasks independently and maintain a regular schedule, and can make appropriate
decisions. She further opined that plaintiff is “mildly” limited with respect to attention and
concentration, performance of complex tasks, and relating adequately with others. Plaintiff
would have “moderate” difficulty coping with stress. (Dkt. #8 at 568).
The ALJ gave Dr. Luna’s opinion “some” weight, crediting her opinion as to plaintiff’s
moderate difficulties with stress, and ultimately concluding based on plaintiff’s treatment records
and testimony that plaintiff’s ability to engage in social functioning and to maintain attention and
concentration were actually more limited than Dr. Luna had opined, and that plaintiff was
“moderately” limited in both areas. (Dkt. #8 at 29, 568).
While “the ALJ’s conclusion may not perfectly correspond with any of the opinions of
medical sources cited in his decision, he was entitled to weigh all of the evidence available to make
an RFC finding that was consistent with the record as a whole.” Matta v. Astrue, 508 Fed. Appx.
53, 56 (2d Cir. 2013) (unpublished opinion). Furthermore, it is “not require[d] that [the] ALJ
have mentioned every item of testimony presented to him or have explained why he considered
particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.”
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.1983).
Here, the ALJ discussed the medical opinion evidence provided by each source, set forth
his reasoning for the weight afforded to each opinion, and cited and discussed specific, relevant
evidence in the record which supported his determination. As such, I do not find that the ALJ
improperly substituted his “own expertise or view of the medical proof [in place of] any competent

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medical opinion,” or that his assignment of lesser weight to the opinions of Dr. Ransom and/or
plaintiff’s treating therapists was improper. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
Nor do I find that the ALJ misconstrued the record. While plaintiff argues that the ALJ
overlooked evidence of plaintiff’s consistently angry and anxious mood and tendency to react (and
overreact) to situations with aggression, the ALJ did explicitly recognize plaintiff’s “ongoing
social anxiety and anger,” and tailored his RFC finding to account for it, by limiting plaintiff to
simple, routine work in a low-stress setting with no more than occasional decision making and no
more than occasional interaction with coworkers or the public. (Dkt. #8 at 32).
Plaintiff also argues that the ALJ’s characterization of plaintiff’s daily activities as
encompassing a “good range of independent daily tasks” was inaccurate, because although plaintiff
was technically maintaining a household and caring for a child, she had undergone two evictions,
and required intervention from Child Protective Services to address her parenting. Although
plaintiff did not testify concerning these issues, she stated that her activities of daily living involve
cooking, cleaning, caring for her toddler son “24/7,” hand-sewing clothes for him, using her phone
to text a friend or engage with social media for 5-6 hours per day, and occasionally engaging in
errands like grocery shopping. (Dkt. #8 at 55-63).
While plaintiff’s discharge of her household and parental duties may have been imperfect,
this evidence is not in conflict with the ALJ’s observations: the record establishes that despite these
difficulties, plaintiff has maintained an independent household (and custody of her son) throughout
the relevant time period, caring for herself and her child with little assistance and with only
sporadic, conservative mental health treatment. As such, the ALJ’s conclusion that plaintiff’s
activities of daily living demonstrated the ability to independently perform “a good range of basic
mental activities which could translate reasonably into an ability to perform fulltime, unskilled

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work,” with the additional limitations he prescribed, was supported by substantial evidence. (Dkt.
#8 at 32). Moreover, to the extent that the plaintiff’s difficulties with respect to housing and
parenting could be interpreted as evidence of limitations in her ability to make appropriate
decisions or interact with others, the ALJ accounted for them by limiting plaintiff to simple,
unskilled work with no more than occasional decision making, and no more than occasional
interaction with coworkers or the public.
It is well settled that a limitation to unskilled work sufficiently accounts for moderate
limitations in work-related functioning, and there is no dispute that the positions identified by the
vocational expert – hand packager and laundry worker – meet that description. See generally
Martinez v. Commissioner, 2017 U.S. Dist. LEXIS 93475 at *20-*21 (N.D.N.Y. 2017) (collecting
cases, and noting that the “Second Circuit has held that moderate limitations in work related
functioning [including making appropriate decisions, relating adequately with others, and dealing
with stress] does not significantly limit, and thus prevent, a plaintiff from performing unskilled
work”); Saxon v. Colvin, 2015 U.S. Dist. LEXIS 83447 at *14 (W.D.N.Y. 2015) (moderate
limitations in ability to make appropriate decisions, relate adequately with others, and cope with
stress are sufficiently accommodated by an RFC limited to routine tasks in a low stress, low contact
environment).
In summary, I find that the ALJ’s determination that plaintiff, at the time of her application
a 22-year-old woman with a limited education and no past relevant work, retains the RFC to
perform a limited range of unskilled, simple, routine, low-stress work with no more than occasional
interaction with coworkers and the public, is supported by substantial evidence, and was not the
product of legal error.
I have considered the rest of the plaintiff’s claims, and find them to be without merit.

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CONCLUSION
For the forgoing reasons, I find that the ALJ’s decision was supported by substantial
evidence, and was not based on legal error. The plaintiff’s motion for judgment on the pleadings
(Dkt. #9) is denied, the Commissioner’s cross motion for judgment on the pleadings (Dkt. #14) is
granted, and the Commissioner’s decision that plaintiff is not disabled is affirmed in its entirety.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
March 13, 2019.

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