Goodson v. Commissioner of Social Security
Filing
22
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. 19) 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
______________________________________
JAZMIN GOODSON,
Plaintiff,
v.
DECISION AND ORDER
18-CV-6243S
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
1.
Plaintiff Jazmin Goodson 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 her application for supplemental security income (“SSI”) under Title XVI of the
Act. (Docket No. 1). This Court has jurisdiction over this action under 42 U.S.C. § 405(g).
2.
Plaintiff protectively filed her application for SSI with the Social Security
Administration on May 7, 2014. (R. 1 at 15, 163, 495). Plaintiff alleged disability beginning
on May 1, 1998, due to a learning disability, attention deficit hyperactivity disorder
(“ADHD”), short attention span, distracted easily, neurofibromatosis, pain in knees, tumor
in left eye, optic nerve glioma, tumor on brain, brain lesions, and menorrhagia. (R. at
163-167). Plaintiff’s application was denied (R. at 81), and Plaintiff thereafter requested
a hearing before an administrative law judge (“ALJ”) (R. at 96).
3.
On September 14, 2016, ALJ Connor O’Brien held a hearing at which
Plaintiff—represented by counsel—and Vocational Expert Dawn Blythe appeared and
1
Citations to the underlying administrative record are designated as “R.”
testified. (R. at 491-536). At the time of the hearing, Plaintiff was 23 years old (R. at
151), with an 11th grade education and no past work experience. (R. at 168, 528).
4.
The ALJ considered the case de novo and, on March 24, 2017, issued a
written decision denying Plaintiff’s application for benefits. (R. at 15-27). On January 24,
2018, the Appeals Council denied Plaintiff’s request to review the ALJ’s decision. (R. at
1-5). Plaintiff filed the current action, challenging the Commissioner’s final decision, 2 on
March 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, 19). Plaintiff filed a response on May
21, 2019 (Docket No. 20), at which time this Court took the motions 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
evidence is deemed susceptible to more than one rational interpretation, the
2
The ALJ’s March 24, 2017 decision became the Commissioner’s final decision on this matter when the
Appeals Council denied Plaintiff’s request for review.
2
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 [s]he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits [her] physical
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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
[her] 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, [s]he has the residual functional capacity to
perform [her] past work. Finally, if the claimant is unable to
perform [her] 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); see also 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 7, 2014, the application date. (R. at 17). At step two, the ALJ found
that
Plaintiff
has
the
following
severe
4
impairments:
ADHD,
cognitive
impairment/developmental delay, neurofibromatosis with tumor growth, left knee
impairment, right hand impairment, and optic nerve glioma. 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 18).
12.
Next, the ALJ found that Plaintiff retained the residual functional capacity
(“RFC”) to perform light work with certain exceptions:
[Plaintiff] requires a sit/stand option that allows her to change
position every 60 minutes for up to 5 minutes. She cannot
balance on a narrow, slippery or moving surface, and cannot
kneel or crawl. She needs to avoid hazards, such as open
waters and unprotected heights. She can tolerate moderate
noise, such as an office, light traffic or grocery. She needs to
avoid anything more than occasional outdoor or bright lights,
anything brighter than an office or a grocery. [Plaintiff]
requires up to three additional short, less-than-5-minute,
unscheduled breaks beyond normal scheduled breaks. She
can adjust to occasional changes in the work setting. She can
perform simple, unskilled, rote work. She can work to meet
daily goals, but not maintain an hourly, machine[-]driven,
assembly line production rate. She can occasionally interact
with the public, but she cannot perform teamwork.
(R. at 20).
13.
At step four, the ALJ found Plaintiff does not have past relevant work. (R.
at 25). At step five, the ALJ found that there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform. (R. at 25-26). Accordingly, the ALJ found
that Plaintiff is not disabled. (R. at 26-27).
14.
Plaintiff argues that the Commissioner’s denial of benefits is not supported
by substantial evidence because (1) the ALJ failed to properly evaluate the opinion of a
treating physician; and (2) the ALJ failed to properly evaluate Plaintiff’s subjective
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statements. (Docket No. 13 at 12-30). For the reasons that follow, these arguments are
unavailing.
15.
Plaintiff first contends that the ALJ improperly evaluated the opinion of
treating physician, Dr. Joy Burke, and instead relied on his own lay opinion in determining
Plaintiff’s RFC. Id. at 12-25.
16.
In general, the "opinion of a treating physician is given controlling weight if
it is well supported by medical findings and not inconsistent with other substantial
evidence." Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); see also Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008); 20 C.F.R. § 404.1527. “However, the ALJ may
set aside the opinion of a treating physician that is contradicted by the weight of other
record evidence.” Smith v. Berryhill, 740 Fed. Appx. 721, 724, (2d Cir. 2018) (citing Snell
v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)) see also 20 C.F.R. § 404.1527(c)(2).
Furthermore, “[a] physician's opinions are given less weight when his opinions are
internally inconsistent.” Micheli v. Astrue, 501 F. App'x 26, 28 (2d Cir. 2012) (summary
order); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
17.
The ALJ is "entitled to weigh all of the evidence available to make an RFC
finding that [is] consistent with the record as a whole." Matta v. Astrue, 508 Fed. App’x
53, 56 (2d Cir. 2013) (summary order); see also 20 C.F.R. § 404.1545(a)(3) (“[The ALJ]
will assess your residual functional capacity based on all of the relevant medical and other
evidence”). 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). “A lack of supporting evidence on a matter for which the claimant bears the burden
of proof, particularly when coupled with other inconsistent record evidence, can constitute
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substantial evidence supporting a denial of benefits.” Barry v. Colvin, 606 Fed. Appx.
621, 622, (2d Cir. 2015) (summary order) (citing Talavera v. Astrue, 697 F.3d 145, 153
(2d Cir. 2012)).
18.
At issue here is a medical source statement form completed by Dr. Burke
on September 28, 2016. (R. at 450-54). Dr. Burke noted that Plaintiff’s “main limitation
would be cognitive: attention and processing” (R. at 452) and opined that Plaintiff was
unable to work because of “cognitive impairment/developmental delay.” (R. at 451).
However, Dr. Burke also opined that Plaintiff’s “cognitive limitations would require her to
work at a simple job with minimal stress.” (R. at 454).
19.
Dr. Burke further opined that Plaintiff had no significant limitations with
reaching, handling or fingering, but also that she can use her hands to grasp, turn or twist
objects only 25% of the time, can use her fingers for fine manipulations only 25% of the
time, and can use her arms for reaching only 25% of the time. (R. at 454). Below that,
Dr. Burke wrote “physical limitations are minimal.” Id.
20.
The form also indicates that Plaintiff can sit for 90+ minutes before needing
to get up, can stand for 30 minutes before needing to sit or walk around, and would need
a job that permits shifting positions at will from sitting, standing or walking. Id. Dr. Burke
used a checkmark to indicate that Plaintiff would be “off task” more than 30% of the time
but would never be absent due to her impairments. (R. at 452).
21.
The ALJ considered Dr. Burke’s opinion, and afforded it some weight. The
ALJ explained that although Dr. Burke is a treating source, she treated Plaintiff only “twice
over the past three months” and the opinion is “internally inconsistent,” “conclusory,” and
unsupported by the record. (R. at 24, 451).
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22.
Plaintiff alleges these “are not good reasons” to afford “less than controlling
weight” to Dr. Burke’s opinion and further claims it “is a stretch of reasonableness to
accept the inconsistencies identified by the ALJ as actual inconsistencies.” (Docket No.
13 at 14-15). This argument fails.
23.
In one form, Dr. Burke opined both that Plaintiff is unable to work, and that
she would require “a simple job with minimal stress.” (R. at 451-454). The same
document also indicates that Plaintiff’s “physical limitations are minimal” however she is
able to use her hands, fingers, and arms only 25% of the time. Id. The form also indicates
that Dr. Burke believed that Plaintiff has been limited as described since at least May of
2014, and yet Dr. Burke met with Plaintiff for only “2 appointments over 3 months.” Id.
24.
At both appointments, on April 6, 2016, and again on July 6, 2016, Dr. Burke
performed a mental status examination that revealed that Plaintiff “can follow multiple
step commands” and has “good attention, concentration and fund of knowledge.” (R. at
372, 441). Notes from these appointments also indicate that Plaintiff complained of pain
and swelling in the left hand and left knee, but Plaintiff averred that neither impairment
“limit[s] her functionally.” (R. at 369, 439).
25.
This Court finds no error in the ALJ's assessment of Dr. Burke’s opinion,
which was internally inconsistent, based on only two meetings with Plaintiff, and
contradicted by Dr. Burke’s own treatment notes. See Atwater v. Astrue, 512 F. App’x
67, 70 (2d Cir. 2013) (The ALJ is not required to provide a “slavish recitation of each and
every factor [provided in the treating physician rule] where the ALJ’s reasoning and
adherence to the regulation are clear.”)
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26.
Plaintiff claims that after discounting Dr. Burke’s opinion, the ALJ relied
solely on his lay interpretation of the treatment notes to formulate the RFC finding.
(Docket No. 13 at 22). This is a distortion of the ALJ’s decision.
27.
The ALJ did not grant Dr. Burke’s opinion controlling weight for the above
good reasons but did afford it “some weight.” (R. at 24). The ALJ noted that Dr. Burke’s
opinion that Plaintiff be limited “to simple jobs with minimal stress is generally consistent
with the treatment notes” and that the record of Plaintiff’s complaints of knee pain supports
the imposition of exertional and nonexertional postural limitations. Id.
28.
The record provides substantial evidence to support these RFC limitations
and Plaintiff has not demonstrated that she is incapable of performing activities at this
level. See Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (affirming the ALJ’s
denial of benefits where “[Plaintiff] had a duty to prove a more restrictive RFC, and failed
to do so.); 42 U.S.C. §423(d)(5). Thus, this Court finds no error in the ALJ’s RFC
determination.
29.
Plaintiff next argues that the ALJ failed to properly consider Plaintiff’s
subjective statements regarding her symptoms. (Docket No. 13 at 25). This argument
also fails.
30.
An ALJ must consider a claimant's subjective complaints, but “is not
required to accept [them] without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010). Here, the ALJ found that “[Plaintiff’s] allegations of debilitating symptoms are not
wholly consistent with the evidence.” (R. at 25). The ALJ’s consistency findings are borne
out by the record.
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31.
The ALJ explained that “the treatment notes above do not indicate that
[Plaintiff’s] impairments are especially limiting” and noted that mental status exams
“showed that [Plaintiff] had normal attention and concentration and intact recent and
remote memory.” Id.
32.
Further, the ALJ noted that “although [Plaintiff] alleged that she suffers from
ADHD, there is no evidence of treatment for this around the application date or
afterwards.” Id. Plaintiff’s testimony confirms that she is no longer being treated for
ADHD. (R. at 506). See Navan v. Astrue, 303 F. App’x 18, 20 (2d Cir. 2008) (affirming
the ALJ’s finding that “[an individual’s] claims of total disability were undermined by his
failure to seek regular treatment for this allegedly disabling condition.”)
33.
Plaintiff testified that she is prevented from working because she has “pain
in [her] knees and [her] left hand swells up.” (R. at 503). The record does indicate that
Plaintiff complained of pain in her knee and hand related to her neurofibromatosis,
however Plaintiff denied that these impairments caused functional limitations. (R. at 357,
369, 439). Plaintiff also testified that she cleans, cooks, does laundry, and helps with
childcare. (R. at 514-15). When the ALJ asked what would stop her from working fulltime, Plaintiff responded, “[n]othing.” (R. at 515).
34.
As previously discussed, Dr. Burke’s mental status exams showed Plaintiff
has “good attention, concentration and fund of knowledge” along with the ability to “follow
multiple step commands.” (R. at 372, 441).
35.
The ALJ’s consistency finding is supported by the record, and it was
reasonable for the ALJ to rely both on the available medical evidence and the lack of
evidence when determining Plaintiff's RFC. See Ortiz v. Colvin, 2014 U.S. Dist. LEXIS
10
105191, *21, 2014 WL 3784108 (W.D.N.Y. 2014) (“Because Plaintiff bears the burden of
proving her RFC, the ALJ could reasonably rely on the lack of evidence that Plaintiff was
unable to perform a range of sedentary work.”)
36.
This Court is satisfied that the ALJ did not substitute his lay opinion for those
of Plaintiff's doctors, but rather, properly weighed the evidence as a whole when making
the RFC determination.
37.
For the foregoing reasons, this Court finds that substantial evidence
supports the ALJ’s determination, which is devoid of legal error. Therefore, 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.
19) 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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