Cottrell v. Commissioner of Social Security
Filing
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DECISION AND ORDER: The Commissioner's Motion for Judgment on the Pleadings 16 is GRANTED and Plaintiff's Motion for Judgment on the Pleadings 14 is DENIED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. The Clerk of Court will enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 1/15/2019. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
REBECCA SUE COTTRELL,
Plaintiff,
v.
Case # 17-CV-6893-FPG
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Rebecca Sue Cottrell brings this action pursuant to the Social Security Act seeking
review of the final decision of the Commissioner of Social Security that denied her applications
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles
II and XVI of the Act. ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§
405(g), 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 14, 16. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On January 6, 2015, Cottrell protectively applied for DIB and SSI with the Social Security
Administration (“the SSA”). Tr.1 762-74. She alleged disability since June 30, 2013 due to back
and shoulder pain, borderline diabetes, ulcers, a fatty liver, anxiety, depression, and social phobia.
Tr. 791-92. On November 18, 2016, Cottrell and a vocational expert (“VE”) testified at a video
hearing before Administrative Law Judge Rosanne M. Dummer (“the ALJ”). Tr. 43-74. On
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“Tr.” refers to the administrative record in this matter. ECF No. 8.
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December 27, 2016, the ALJ issued a decision finding that Cottrell was not disabled. Tr. 19-38.
On October 31, 2017, the Appeals Council denied Cottrell’s request for review. Tr. 1-7. This
action seeks review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether the
SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence
means more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(quotation marks omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation marks
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990)
(holding that review of the Secretary’s decision is not de novo and that the Secretary’s findings are
conclusive if supported by substantial evidence).
II.
Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and determines whether the claimant has an impairment, or combination of
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impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the
claimant does not have a severe impairment or combination of impairments, the analysis concludes
with a finding of “not disabled.” If the claimant does, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing
and meets the durational requirement (Id. § 404.1509), the claimant is disabled. If not, the ALJ
determines the claimant’s residual functional capacity (“RFC”), which is the ability to perform
physical or mental work activities on a sustained basis, notwithstanding limitations for the
collective impairments. See Id. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the
Commissioner must present evidence to demonstrate that the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in the national
economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
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DISCUSSION
I.
The ALJ’s Decision
The ALJ analyzed Cottrell’s claim for benefits under the process described above. At step
one, the ALJ found that Cottrell had not engaged in substantial gainful activity since the alleged
onset date. Tr. 21. At step two, the ALJ found that Cottrell has the following severe impairments:
status post 2010 left shoulder arthroscopy with tendinopathy and 2010 left knee arthroscopy; status
post March 2015 right shoulder arthroscopy; obesity; and depressive and anxiety disorders. Tr.
22. At step three, the ALJ found that these impairments, alone or in combination, did not meet or
medically equal any Listings impairment. Tr. 22-24.
Next, the ALJ determined that Cottrell retains the RFC to perform light work2 with
additional limitations. Tr. 24-35. Specifically, the ALJ found that Cottrell can lift and carry 20
pounds occasionally and 10 pounds frequently; sit, stand, and walk for six hours total in an eighthour workday; occasionally climb, balance, stoop, kneel, crouch, crawl, and reach overhead; and
frequently (but not continuously or repetitively) push and pull bilaterally.3 Tr. 24.
At step four, the ALJ found that Cottrell cannot perform her past relevant work. Tr. 36.
At step five, the ALJ relied on the VE’s testimony and found that Cottrell can adjust to other work
that exists in significant numbers in the national economy given her RFC, age, education, and work
experience.
Tr. 36-37.
Specifically, the VE testified that Cottrell can work as a router,
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
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Cottrell’s RFC determination also included several mental limitations; however, the Court focuses its opinion on
Cottrell’s physical limitations because she argues only that the ALJ’s physical RFC findings lack substantial evidence.
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merchandise marker, mail clerk, photocopying machine operator, routing clerk, and inserting
machine tender. Id. Accordingly, the ALJ concluded that Cottrell was not disabled. Tr. 37-38.
II.
Analysis
Cottrell argues that remand is required because the physical RFC determination is not
supported by substantial evidence. ECF No. 14-1 at 24-28; ECF No. 17. Specifically, Cottrell
asserts that the ALJ rejected the opinions of treating physician James Fennelly, M.D. and
consultative examiner Harbinder Toor, M.D. and relied on her own lay opinion to determine
Cottrell’s ability to stand, walk, push, pull, and reach. Id.
A claimant’s RFC reflects what he or she “can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To determine a claimant’s RFC, “the
ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain
and other limitations that could interfere with work activities on a regular and continuing basis.”
Id. (citing 20 C.F.R. § 404.1545(a)); see also 20 C.F.R. § 416.945(a). The ALJ assesses RFC
“based on all of the relevant medical and other evidence.”
20 C.F.R. §§ 404.1545(a)(3),
416.945(a)(3).
The RFC determination does not have to “perfectly correspond” with any of the medical
source opinions cited in the ALJ’s decision; rather, the ALJ is “entitled to weigh all of the evidence
available to make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue,
508 F. App’x 53, 56 (2d Cir. 2013) (citation omitted) (summary order). The Court upholds an
RFC finding “when there is substantial evidence in the record to support each requirement listed
in the regulations.” Desmond, 2012 WL 6648625, at *5 (citation omitted).
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Cottrell asserts that the ALJ relied on her lay opinion to formulate the RFC because she
“rejected” Drs. Fennelly and Toor’s opinions. ECF No. 14-1 at 24. She also asserts that, because
the ALJ rejected those opinions, she had to provide a function-by-function assessment of Cottrell’s
work-related capacity. Id. at 26-27. The Court disagrees.
Contrary to Cottrell’s assertion, the ALJ did not wholly reject Drs. Fennelly and Toor’s
opinions; instead, she afforded them “partial” and “some” weight and, as discussed in greater detail
below, relied on portions of them to determine Cottrell’s RFC. Tr. 31-33. Just because the ALJ
did not afford either opinion controlling weight does not mean that she substituted her own view
of the medical evidence for those opinions. See Currie v. Comm’r of Soc. Sec., No. 17-CV602(MAT), 2018 WL 5023606, at *3 (W.D.N.Y. Oct. 17, 2018) (“Simply because the ALJ
afforded no single opinion controlling weight does not mean . . . that she substituted her own
expertise of the medical proof for medical opinion.”). Moreover, because the ALJ relied on those
opinions and other record evidence to determine Cottrell’s RFC, she was not required to perform
a function-by-function assessment.
See Guttierez v. Berryhill, 333 F. Supp. 3d 267, 272
(W.D.N.Y. 2018) (“When an ALJ does not rely on a medical opinion to formulate the RFC, she
must provide a function-by-function analysis of [the claimant]’s work-related capacity.”
(quotation mark and citation omitted) (emphasis added)).
Thus, the Court finds that the ALJ did not rely on her lay opinion and, for the reasons that
follow, that the ALJ’s conclusions as to Cottrell’s ability to stand, walk, push, pull, and reach are
supported by substantial evidence.
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A.
Standing and Walking
The ALJ found that Cottrell could stand and walk for six hours4 total in an eight-hour
workday. On April 13, 2015, Dr. Toor opined that Cottrell has moderate limitation in her ability
to stand and walk. Tr. 985. It appears that the ALJ rejected this opinion; in affording “some
weight” to Dr. Toor’s assessment, she indicated that she relied on his opinion to determine that
Cottrell could occasionally reach overhead and frequently push and pull. Tr. 31. She did not
discuss Dr. Toor’s opinion as to Cottrell’s ability to stand and walk, but it is worth noting that
moderate limitations in these areas do not necessarily render Cottrell disabled. In fact, “several
courts have upheld an ALJ’s decision that the claimant could perform light or sedentary work even
when there is evidence that the claimant had moderate difficulties” in standing or walking. Carroll
v. Colvin, No. 13-CV-456S, 2014 WL 2945797, at *4 (W.D.N.Y. June 30, 2014) (citations
omitted); see also Stacey v. Comm’r of Soc. Sec., No. 09-CV-0638 (DNH/VEB), 2011 WL
2357665, at *6 (N.D.N.Y. May 20, 2011) (the ALJ’s determination that the claimant could walk
and stand for six hours total in an eight-hour workday was “generally consistent” with the
consultative examiner’s assessment of moderate limitations in those areas).
On February 15 and June 18, 2015 and January 8, 2016, Dr. Fennelly opined that Cottrell
has an unlimited ability to stand and walk, meaning that she could perform those activities for
more than four hours. Tr. 1092, 1131, 1167. These opinions support the RFC determination that
Cottrell can stand and walk for six hours total in an eight-hour workday.
On November 11, 2016, Dr. Fennelly opined that Cottrell can stand and walk about two
hours total in an eight-hour workday. Tr. 1227. The ALJ gave this opinion “minimal weight”
because it “appear[ed] to have been prepared solely in contemplation of litigation.” Tr. 33. In
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Cottrell incorrectly asserts that the ALJ found she could do these activities for eight hours. ECF No. 14-1 at 25.
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accordance with the regulatory factors for weighing medical opinions, the ALJ also discounted
this opinion as inconsistent with Dr. Fennelly’s own treatment notes and the overall record
evidence, especially Cottrell’s conservative treatment. Id.; see 20 C.F.R. §§ 404.1527(c)(3)-(4),
416.927(c)(3)-(4) (the ALJ will give more weight to an opinion that is supported by relevant
evidence and consistent with the record as a whole).
In further support of her RFC determination, the ALJ acknowledged and discussed
Cottrell’s knee and foot pain, both of which could interfere with her ability to stand and walk. Tr.
28-31. The ALJ noted that Cottrell’s providers did not recommend left knee surgery and that she
engaged in only conservative treatment like physical therapy, flexibility and conditioning
exercises, anti-inflammatory medications, weight loss, wearing supportive shoes, and knee
injections. Tr. 28 (citing Tr. 1206-12). Although she continued to complain of left knee pain, an
MRI revealed only “some bursitis” but no “internal derangement,” and her doctor recommended
that she avoid “provocative positions including deep knee bending and particularly kneeling,” but
did not limit her ability to stand or walk. Tr. 28 (citing Tr. 1211).
As for Cottrell’s foot pain, the ALJ noted that she reported pain in July of 2016 but
continued to work two jobs. Tr. 29 (citing Tr. 1220). Examination revealed a normal gait, no
gross deformity in the foot, and only some tenderness to palpation. Id. An x-ray suggested
minimal early midfoot arthritis but was otherwise unremarkable with no acute findings. Id.
Cottrell’s doctor told her to avoid flat-soled footwear but did not tell her to avoid standing or
walking. Id.
The ALJ also discussed Cottrell’s daily activities and specifically noted that Cottrell
“reported increased walking as she could walk with her granddaughter about double the distance
she used to.” Tr. 30 (citing Tr. 945, which also notes that Cottrell has “no limitation” in standing
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and only “mild limitation” in walking). The ALJ pointed out that, although Cottrell alleged very
limited physical abilities, including standing and walking, she “maintains rather normal activities,”
like working 20 hours per week, performing household chores, and regularly caring for her
granddaughter. Tr. 31.
Accordingly, based on the evidence discussed above, the Court finds the ALJ’s RFC
determination as to standing and walking supported by substantial evidence.
B.
Pushing and Pulling
On February 6, 2015, Dr. Fennelly opined that Cottrell cannot push or pull. Tr. 1092. On
April 13, 2015, Dr. Toor opined that Cottrell has moderate limitation in her ability to push and
pull. Tr. 985. On January 8, 2016, Dr. Fennelly opined that Cottrell can push and pull with “some”
limitations, meaning she could perform those activities for two to four hours. Tr. 1167.
The ALJ found that Cottrell could frequently push and pull bilaterally. Tr. 24 (citing Tr.
955-67, 1084-1201, 1203-22). “Frequently” means that Cottrell must push and pull one-third to
two thirds of the workday, which is about two-and-a-half to five-and-a-half hours per day. See
S.S.R. 83-10, 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983). This determination is supported by Dr.
Toor’s assessment of moderate limitation in Cottrell’s ability to push and pull and Dr. Fennelly’s
January 2016 assessment that Cottrell can do these activities for two to four hours. Moreover, the
record does not reveal, and Cottrell does not point out, any evidence demonstrating that she cannot
frequently push and pull.
Accordingly, based on the evidence discussed above, the Court finds the ALJ’s RFC
determination as to pushing and pulling supported by substantial evidence.
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C.
Reaching
On April 13, 2015, Dr. Toor opined that Cottrell has moderate limitation in her ability to
reach that is “more severe” in the right shoulder than in the left. Tr. 985. Dr. Fennelly did not
assess any reaching limitations. Tr. 1228.
The ALJ found that Cottrell could occasionally reach overhead. 5 Tr. 24. “Occasionally”
means that Cottrell must reach overhead “from very little up to one-third of the time,” i.e. less than
three hours total in an eight-hour workday. See S.S.R. 83-10, 1983 WL 31251, at *5. Although
Dr. Toor did not define the term “moderate,” it seems that limiting Cottrell to less than three hours
of overhead reaching reasonably accounts for any issues she may have in this area.
Cottrell asserts, without citing any supporting medical evidence, that the ALJ should have
explained how she determined that Cottrell was only limited with reaching overhead and not with
reaching in other directions. ECF No. 14-1 at 25. The record, however, supports the ALJ’s
conclusion. Dr. Toor’s examination notes reveal that Cottrell could not fully elevate her right or
left arm. Tr. 984. Other record treatment notes contain similar findings and indicate that Cottrell
had pain with range of motion and activity above shoulder height. See, e.g., Tr. 926, 958, 959,
962, 1206. After Cottrell had right shoulder surgery in March of 2015, treatment notes indicate
Cottrell asserts that the ALJ’s errors in this case were not harmless in part because the Dictionary of Occupational
Titles (“DOT”) reveals that the jobs the VE identified require frequent reaching. ECF No. 14-1 at 27-28. The
Commissioner interprets this as an argument that the ALJ did not adequately resolve the conflict between the VE’s
testimony and the DOT before she made her step five findings. ECF No. 16-1 at 11; see, e.g., Patti v. Colvin, No. 13CV-1123-JTC, 2015 WL 114046, at *6 (W.D.N.Y. Jan. 8, 2015) (citation omitted) (noting that it is the ALJ’s duty
“to identify and resolve any conflict between the [VE]’s testimony and the DOT before relying on such testimony”);
see also S.S.R. 00-4p, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000).
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Although Cottrell’s brief does not seem to go this far, the Court agrees with the Commissioner that the ALJ did not
err. The ALJ asked the VE whether his testimony was consistent with the DOT, and the VE testified that, although
the DOT indicates that the jobs he provided require frequent reaching, his professional experience indicated that they
only require occasional overhead reaching in accordance with the ALJ’s hypothetical RFC determination. Tr. 71-72.
The ALJ’s decision acknowledged that the VE’s testimony was inconsistent with the DOT and was instead based on
his professional experience. Tr. 37. The Court finds that the hearing discussion and the language in the ALJ’s decision
fulfilled her duty to identify and resolve this conflict between the VE’s testimony and the DOT.
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that she was doing well and reported better range of motion and less pain. See, e.g., Tr. 26, 30,
964, 970, 974, 1204. One note recommended that Cottrell finish her post-surgery physical therapy
but indicated that she otherwise had “no restrictions” with respect to the right shoulder. Tr. 27,
30, 1204. The ALJ discussed Cottrell’s left and right shoulder issues and treatment in her decision,
and she specifically indicated that she was “mindful” of Cottrell’s shoulder surgery when she made
the RFC determination. Tr. 26, 27, 30.
Accordingly, based on the evidence discussed above, the Court finds the ALJ’s RFC
determination as to reaching supported by substantial evidence.
CONCLUSION
For all of the reasons stated, the Court finds the ALJ’s physical RFC determination
supported by substantial evidence. Accordingly, the Commissioner’s Motion for Judgment on the
Pleadings (ECF No. 16) is GRANTED and Plaintiff’s Motion for Judgment on the Pleadings (ECF
No. 14) is DENIED. Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The
Clerk of Court will enter judgment and close this case.
IT IS SO ORDERED.
Dated: January 15, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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