Lamphier Deuel v. Commissioner of Social Security
Filing
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DECISION AND ORDER. IT HEREBY IS ORDERED, that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 13) is DENIED. FURTHER, that Defendant's Motion for Judgment on the Pleadings (Docket No. 15) is GRANTED. FURTHER, that the Clerk of Court is directed to CLOSE this case. SO ORDERED. Signed by William M. Skretny, United States District Judge on 10/1/2019. (JCM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
AARON LAMPHIER-DEUEL,
Plaintiff,
v.
DECISION AND ORDER
18-CV-6161S
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
1.
Plaintiff Aaron Lamphier-Deuel brings this action pursuant to the Social
Security Act (“the Act”), seeking review of the final decision of the Commissioner of Social
Security that denied his applications for disability insurance benefits and supplemental
security income under Titles II & XVI of the Act. (Docket No. 1). This Court has jurisdiction
over this action under 42 U.S.C. § 405(g).
2.
Plaintiff filed his applications with the Social Security on May 29, 2014. (R. 1
at 12, 217). Plaintiff alleged disability beginning on June 22, 2012, due to “anxiety, PTSD,
seasonal adjustment disorder, panic attacks, dizziness, legs/hands shake, heart
races/sweats, blackouts, allergies, and stomach pains.”
(R. at 221).
Plaintiff’s
applications were denied (R. at 101-112), and Plaintiff thereafter requested a hearing
before an administrative law judge (“ALJ”) (R. at 113).
3.
On October 20, 2016, ALJ Michael W. Devlin held a hearing at which
Plaintiff—represented by counsel—and Vocational Expert Andrew Pasternak appeared
and testified. (R. at 33-66). At the time of the hearing, Plaintiff was 27 years old (R. at
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Citations to the underlying administrative record are designated as “R.”
38, 217), with a General Equivalency Degree (“GED”) and an education certificate in
building trades (R. at 38-39, 222). Plaintiff had no past relevant work experience. (R. at
63).
4.
The ALJ considered the case de novo and, on February 9, 2017, issued a
written decision denying Plaintiff’s applications for benefits. (R. at 13-27). On December
27, 2017, the Appeals Council denied Plaintiff’s request to review the ALJ’s decision. (R.
at 6-11). Plaintiff filed the current action, challenging the Commissioner’s final decision,2
on February 23, 2018. (Docket No. 1).
5.
Both parties moved for judgment on the pleadings under Rule 12(c) of the
Federal Rules of Civil Procedure. (Docket Nos. 13, 15). Plaintiff filed a response on
February 15, 2019 (Docket No. 16), at which time this Court took the matter under
advisement without oral argument. For the reasons that follow, Plaintiff’s motion is denied
and Defendant’s motion is granted.
6.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla,” and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842, 852 (1971). Where
2
The ALJ’s February 9, 2017 decision became the Commissioner’s final decision when the Appeals
Council denied Plaintiff’s request for review.
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evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
7.
“To determine on appeal whether an ALJ’s findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams ex rel. Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner’s
finding must be sustained “even where substantial evidence may support the plaintiff's
position and despite that the court’s independent analysis of the evidence may differ from
the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable
deference and will not substitute “its own judgment for that of the [Commissioner], even
if it might justifiably have reached a different result upon a de novo review.” Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
8.
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled under the Act. See 20 C.F.R. §§
404.1520, 416.920. The Supreme Court of the United States recognized the validity of
this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing
whether a claimant is disabled. 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291, 96 L. Ed.
2d 119, 126-127 (1987).
9.
The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
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the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age,
education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original);
see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
10.
Although the claimant has the burden of proof on the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is divided
into two parts. First, the Commissioner must assess the claimant's job qualifications by
considering her physical ability, age, education, and work experience. Second, the
Commissioner must determine whether jobs exist in the national economy that a person
having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20
C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954, 76
L. Ed. 2d 66, 70 (1983).
11.
The ALJ analyzed Plaintiff’s claim for benefits under the process set forth
above. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since May 29, 2014. (R. at 14). At step two, the ALJ found that Plaintiff has the
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following severe impairments: left shoulder impairment; asthma; dysthymic disorder;
major depressive disorder; panic disorder; anxiety disorder; and post-traumatic stress
disorder (“PTSD”). Id. At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals any
impairment(s) listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15).
12.
Next, the ALJ found that Plaintiff retained the residual functional capacity
(“RFC”) to perform a full range of work at all exertion levels but with the following
nonexertional limitations:
[Plaintiff] can frequently reach with his non-dominant left arm;
he must avoid concentrated exposure to fumes, odors, dusts,
gases, and poor ventilation; he can understand, remember,
and carry out simple instructions and tasks, he can only
occasionally interact with coworkers and supervisors and
have little to no contact with the general public; he is only able
to work in low-stress environments, defined as having no
supervisory duties, no independent decision-making required,
no strict production quotas, and minimal changes in work
routines and processes; and he can consistently maintain
concentration and focus only up to two hours at a time.
(R. at 16-17).
13.
At step four, the ALJ found that Plaintiff had no past relevant work
experience. (R. at 20). At step five, the ALJ found that “[c]onsidering [Plaintiff’s] age,
education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can perform.”
Id.
Accordingly, the ALJ found that Plaintiff is not disabled. (R. at 22).
14.
Plaintiff argues that the ALJ’s RFC determination is not supported by
substantial evidence because (1) the ALJ failed to properly consider Plaintiff’s panic
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attacks; and (2) the ALJ failed to properly evaluate the medical opinion evidence of record.
(Docket No. 13 at 9-15). For the reasons that follow, these arguments are unavailing.
15.
Plaintiff first argues that the ALJ failed to properly evaluate Plaintiff’s panic
attacks in determining his RFC. (Docket No. 13 at 9).
16.
A claimant's RFC reflects "what an individual can still do despite his or her
limitations." Desmond v. Astrue, 2012 U.S. Dist. LEXIS 179805, *14, 2012 WL 6648625,
*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)).
17.
An ALJ is “entitled to weigh all of the evidence available to make an RFC
determination that [is] consistent with the record as a whole.” Matta v. Astrue, 508 Fed.
App’x 53, 56 (2d Cir. 2013) (summary order). In doing so, “[t]he [ALJ] 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, 1553 (2d Cir. 1983).
18.
Here, Plaintiff contends both that the ALJ “did not account for Plaintiff’s
panic attacks” (Docket No. 13 at 12) and that the ALJ “accounted for Plaintiff’s panic
attacks with essentially a limited range of simple work.” (Docket No. 13 at 9). Neither of
these statements is accurate.
19.
Here, the ALJ found Plaintiff’s panic disorder to be a severe impairment.
(R. at 14) and noted that Plaintiff “has significant panic attacks that impact his social
functioning.” (R. at 16).
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20.
Although the record shows that “medication has had some benefit to him,”
the ALJ found that Plaintiff “has continued experiencing panic attacks despite treatment,
and these have certainly eroded his functioning.” (R. at 20). Specifically, the ALJ
determined that “[Plaintiff’s] panic attacks, coupled with his other mental symptoms,
including anxious and depressed mood, would limit his ability to understand, remember,
and carry out instructions, deal with others, and manage stress, as well as his ability to
maintain concentration and focus.” Id.
21.
Accordingly, the ALJ found Plaintiff to have a reduced RFC, with limitations
in the areas of social interaction and stress management as follows:
[Plaintiff] can only occasionally interact with coworkers and
supervisors and have little to no contact with the general
public; he is only able to work in low-stress environments,
defined as having no supervisory duties, no independent
decision-making required, no strict production quotas, and
minimal changes in work routines and processes; and he can
consistently maintain concentration and focus only up to two
hours at a time.
(R. at 16).
22.
Plaintiff’s dismissal of the ALJ’s findings as “essentially a range of simple
work” ignores the ALJ’s careful consideration of Plaintiff’s limitations and significantly
reduced RFC. Moreover, Plaintiff fails to point to evidence in the record that demonstrates
that a more restrictive RFC is appropriate. See 20 C.F.R. § 404.1545(a)(3) (the claimant
is responsible for providing the evidence used in the residual functional capacity
determination); see also Dumas, 712 F.2d at 1553.
23.
Instead, Plaintiff asserts that “panic attacks […] are episodic in nature and
would preclude Plaintiff’s ability to perform any work at random times that Plaintiff is
unable to anticipate,” and that “[t]he logical functional effect of Plaintiff’s panic attacks
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would the need [sic] for unscheduled breaks, or difficulty maintaining a consistent
schedule.” (Docket No. 13 at 9, 11).
24.
Plaintiff further maintains that “[w]here a claimant’s impairments cause
episodic symptoms, the ALJ must adequately account for that in the RFC.” Id. at 11,
citing Merritt v. Comm’r of Soc. Sec. 2016 U.S. Dist. LEXIS 148356, at *23, 2016 WL
6246436 (W.D.N.Y. Oct. 26, 2016).
25.
However, Merritt did not involve “episodic symptoms” or how an ALJ should
assess them. Rather, the portion of the Merritt holding that Plaintiff relies on is concerned
with the ALJ’s erroneous step two determination that a claimant’s headaches were not a
severe impairment. Merritt at *23. The Merritt court found this determination to be
“contradicted by the full record,” and held that “[t]his error requires reversal and remand
for reconsideration.” Id. at *16.
26.
Here, the ALJ properly found Plaintiff’s panic disorder to be a severe
impairment at step two.
(R. at 14-15).
Therefore, Plaintiff’s reliance on Merritt is
misplaced. Moreover, it is clear that the ALJ did account for Plaintiff’s panic attacks and
incorporated multiple, detailed limitations in the RFC due to these episodes. (R. at 20).
27.
Because Plaintiff has not demonstrated that a more restrictive RFC is
warranted, this Court finds Plaintiff’s first argument to be without merit.
28.
Plaintiff next argues that the ALJ failed to properly evaluate the opinion of
consultative examiner Dr. Harbinder Toor. (Docket No. 13 at 13). Specifically, Plaintiff
contends that the ALJ erred in affording Dr. Toor’s opinion significant weight but omitting
limitations on pushing, pulling and lifting in the RFC. Id. This argument is also unavailing.
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29.
Dr. Toor examined Plaintiff on August 18, 2014. (R. at 364-67). Plaintiff
complained of pain in his left shoulder, anxiety, depression, PTSD, and seasonal
adjustment disorder. (R. at 364). Plaintiff’s reported daily activities included cooking,
cleaning, laundry, and shopping, and he also fished as a hobby. (R. at 365).
30.
Dr. Toor noted that Plaintiff “had slight difficulty changing for the exam
because of pain in the left shoulder” and had less than full range of motion of the left
shoulder. (R. at 365-66). Dr. Toor opined that “[Plaintiff] has mild to moderate limitation
pushing, pulling, lifting, and reaching with left shoulder pain [and] [h]e should avoid
irritants or other factors which can precipitate asthma.” (R. at 367).
31.
The ALJ found that “Dr. Toor’s findings largely match those found elsewhere
in the record showing mostly modest restrictions in physical functioning” and gave the
opinion “significant weight.” (R. at 18). The ALJ found that the record supported Dr.
Toor’s recommendation that Plaintiff avoid irritants, noting that “[g]iven [Plaintiff’s] asthma,
he would need to avoid concentrated exposures to environmental irritants.” (R. at 20).
32.
However, the ALJ also noted that Dr. Toor “examin[ed] [Plaintiff] only once”
(R. at 18) and that “[t]here is little in the record to indicate that [Plaintiff] has any problem
with exertional abilities” (R. at 20).
33.
The ALJ found that “[Plaintiff’s] left shoulder impairment has not impeded
his ability to lift or carry, and he has even been demonstrated as having full ranges of
motion and full strength.” (R. at 20). “At most,” the ALJ observed, Plaintiff’s left shoulder
impairment “limits him to only frequent reaching with that non-dominant extremity.” Id.
34.
A review of the record supports this assessment. Plaintiff demonstrated a
“[f]ull range of motion of the left shoulder with 5/5 hand grip” on December 13, 2013, (R.
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at 319) and November 4, 2014, (R. at 496). On March 4, 2015 (R. at 503), and again on
June 9, 2015 (R. at 509), Plaintiff had symmetrical, 5/5 motor strength throughout with no
obvious weaknesses.
On October 5, 2016, Plaintiff reported no musculoskeletal
symptoms and his strength was normal in all extremities. (R. at 630-31).
35.
Plaintiff’s reported daily activities also tend to belie the need for additional
exertional limitations. On July 17, 2014, Plaintiff completed an adult function report
detailing how his impairments and symptoms limit his activities. (R. at 230-40).
36.
Plaintiff indicated that he needs no assistance with personal care or
cleaning, he cooks daily, and is able to drive, shop, and manage money. (R. at 231-34).
Plaintiff enjoys fishing and hiking, which he does daily, although he does “less hiking” now
but can still walk a mile before having to stop and rest. (R. at 234).
37.
Asked to explain how his conditions limit his abilities with respect to lifting,
standing, walking, sitting, climbing stairs, kneeling, squatting, reaching, and using hands,
Plaintiff gave no answer. (R. at 235-36).
38.
In the section of the form that asks about pain, Plaintiff wrote only about his
anxiety. (R. at 238). In response to a question about where he feels pain, Plaintiff
responded, “no pain anxiety.” Id. In the same section, Plaintiff indicated that his activities
include walking, fishing, chores, and driving. (R. at 240). Asked to describe how these
activities have been affected by pain, Plaintiff gave no answer. Id.
39.
Where, as here, “the medical evidence shows relatively minor physical
impairment, ‘an ALJ permissibly can render a common sense judgment about functional
capacity even without a physician's assessment.’” Wilson v. Colvin, 2015 U.S. Dist.
LEXIS 27804, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015) (quoting House v.
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Astrue, 2013 U.S. Dist. LEXIS 13695, 2013 WL 422058 at *4 (N.D.N.Y. Feb. 1, 2013)
(internal quotation omitted in original; further citations omitted)).
40.
For the foregoing reasons, this Court finds that the ALJ’s RFC determination
is supported by the record and that Plaintiff has failed to demonstrate that any more
restrictive limitations are warranted by the medical evidence. Because this Court finds
that the ALJ’s decision is supported by substantial evidence, remand is not warranted.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 13) is DENIED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
15) is GRANTED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated:
October 1, 2019
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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