Swan v. Commissioner of Social Security
Filing
17
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/30/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
CLAYTON C. SWAN,
Plaintiff,
6:18-cv-06293-MAT
DECISION AND ORDER
-vCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Clayton
C.
Swan
(“Plaintiff”),
represented
by
counsel,
brings this action under Title II of the Social Security Act
(“the Act”), seeking review of the final decision of the Acting
Commissioner
“Defendant”)
of
Social
denying
his
Security
application
(“the
for
Commissioner”
Disability
or
Insurance
Benefits (“DIB”). The Court has jurisdiction over the matter
pursuant to 42 U.S.C. § 405(g). Presently before the Court are
the parties’ competing motions for judgment 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
On
September
1,
2015,
Plaintiff
protectively
filed
an
application for DIB, alleging disability as of November 1, 2014,
due to acid reflux, edema in both legs, blindness in the left
eye, and a hernia. Administrative Transcript (“T.”) 62-63. The
claim was initially denied on November 6, 2015. T. 77-87. At
Plaintiff’s request, a hearing was conducted on January 11, 2017,
in Rochester, New York by administrative law judge (“ALJ”) Paul
Greenberg. Plaintiff appeared with his attorney and testified. A
vocational expert (“VE”) also testified. T. 29-61. The ALJ issued
an unfavorable decision on April 7, 2017. T. 11-25. Plaintiff
appealed
the
decision
to
the
Appeals
Council,
which
denied
Plaintiff’s request for review on February 16, 2018, making the
ALJ’s decision the final decision of the Commissioner. T. 1-5.
This action followed.
THE ALJ’S DECISION
The
ALJ
promulgated
claims.
See
applied
by
the
20
the
five-step
Commissioner
C.F.R.
§
for
sequential
evaluation
adjudicating
disability
404.1520(a).
Initially,
the
ALJ
determined that Plaintiff met the insured status requirements of
the Act through December 31, 2018. T. 16.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
November 1, 2014, the alleged onset date. Id.
At
step
two,
the
ALJ
determined
that
Plaintiff
had
the
following “severe” impairments: idiopathic peripheral neuropathy,
diabetes type II, obesity, and vision impairment. Id. The ALJ
also noted Plaintiff’s diagnoses of umbilical and ventral hernia,
hypertension, gout, GERD, and severe obstructive sleep apnea.
2
However, the ALJ determined there was no evidence in the record
that these impairments caused more than minimal limitations on
Plaintiff’s ability to perform basic work activities and thus
were all nonsevere. T. 16-17.
At step three, the ALJ found that Plaintiff’s impairments
did not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. T. 17. The ALJ specifically considered
Listings
2.00
(Special
Senses
and
Speech),
9.00
(Endocrine
Disorders), and 11.00 (Neurological Disorders).
Before proceeding to step four, the ALJ found that Plaintiff
retained
the
residual
functional
capacity
(“RFC”)
to
perform
sedentary work as defined in 20 C.F.R. § 404.1567(a), with the
following additional limitations: can occasionally climb ramps
and
stairs,
kneel,
crouch,
and
crawl;
cannot
perform
work
climbing ladders, ropes, and scaffolds; must avoid concentrated
exposure
heights
to
or
vibrations,
moving
as
well
mechanical
as
work
parts;
around
can
unprotected
operate
motorized
equipment as part of a job, but cannot operate motor vehicles on
public roads
as
part
of
his
work;
must
be
able to
sit
for
5 minutes after standing for 25 minutes, or stand for 5 minutes
after sitting for 25 minutes, but can continue working in either
position. T. 17.
3
At step four, the ALJ relied on the VE’s testimony to find
that Plaintiff was capable of performing his past relevant work
as
a
CAD
designer.
T.
20.
The
ALJ
accordingly
found
that
Plaintiff was not disabled as defined in the Act. Id.
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”
in
the
Commissioner’s
substantial
record.
findings
evidence,
“as
shall
See
42
to
any
be
U.S.C.
fact,
§
if
conclusive”).
405(g)
supported
(the
by
“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
4
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
following
contends
Listing
reasons:
11.14B
supported
by
unsupported
at
(1)
that
the
step
ALJ
three,
substantial
by
remand
failed
warranted
to
resulting
evidence;
substantial
is
evidence;
properly
in
(2)
a
the
(3)
the
evaluate
finding
ALJ’s
the
for
ALJ
not
RFC
is
erred
in
rejecting the opinion of Plaintiff’s treating source by failing
to give good reasons, as required by the treating physician rule;
(4) the ALJ erred in assigning limited weight to a portion of the
consultative examiner’s opinion, based on his own lay opinion;
(5) the ALJ failed at step four to properly evaluate whether
Plaintiff was capable of performing his past relevant work; and
(6) the ALJ failed to properly evaluate Plaintiff’s past relevant
work in comparison to the Dictionary of Occupational Titles. For
the
reasons
arguments
set
forth
below,
without
merit
and
the
affirms
Court
the
finds
Plaintiff’s
Commissioner’s
final
determination.
I.
The ALJ Properly Evaluated the Medical Opinions of Record
(Plaintiff’s Points III and IV)
Plaintiff argues the ALJ erred in rejecting the opinion of
Plaintiff’s treating neurologist, Dr. Philip D. Vitticore and
further
erred
in
rejecting
a
5
portion
of
the
opinion
of
consultative examiner, Dr. Harbinder Toor. For the reasons set
forth below, the Court finds these arguments lack merit.
A.
The ALJ Properly Evaluated the Opinion
Neurologist Dr. Philip D. Vitticore
The
ALJ
provided
a
thorough
summary
of
of
Dr.
Treating
Vitticore’s
treatment notes in his decision. See T. 18-19. Plaintiff’s first
appointment
with
Dr.
Vitticore
was
on
June
19,
2015.
A
neurological examination performed that day showed Plaintiff had
minimal
distal
reaction
to
touch
and
vibration,
and
an
independent gait. The EMG study showed evidence of sensory motor
polyneuropathy.
The
ALJ
noted
that
Dr.
Vitticore
diagnosed
Plaintiff with idiopathic peripheral neuropathy and diabetes type
II and prescribed gabapentin. T. 18. At a follow up visit on July
17,
2015,
somewhat
Plaintiff
alleviate
reported
his
pain
the
and
gabapentin
Dr.
was
Vitticore
helping
increased
to
the
dosage. T. 18-19. The ALJ noted that Plaintiff failed to follow
up
with
Plaintiff
Dr.
Vitticore
returned
the
in
four
months,
following
year,
as
on
advised.
May
9,
Instead,
2016,
and
Dr. Vitticore noted that Plaintiff was not taking the gabapentin
as prescribed because “he generally doesn’t like taking meds.”
T.
19
referring
to
T.
278.
The
ALJ
noted
that
Plaintiff’s
neurological exam was unremarkable and Dr. Vitticore prescribed a
FLEX-IT trial and bilateral stockings. Id.
6
On December 7, 2016, Dr. Vitticore completed a treating
source statement. T. 343-46. Dr. Vitticore stated he had treated
Plaintiff a total of three times between June 2015 and May 2016.
He
also
noted
that
no
future
appointments
were
scheduled.
Dr. Vitticore stated he treated Plaintiff for neuropathy and that
to the best of his knowledge, Plaintiff’s symptoms began around
2014. T. 343. Dr. Vitticore opined Plaintiff was able to sit for
eight hours during a workday and would require the option to sit
or stand atwill. He wrote “unknown” for Plaintiff’s ability to
stand and walk during an eight-hour workday. Dr. Vitticore opined
Plaintiff
did
not
need
a
cane
or
other
assistive
device
to
ambulate effectively. T. 344. He opined Plaintiff had no known
impairments in his hands and was able to occasionally use his
feet
for
foot
Plaintiff
had
controls.
abnormal
T.
EMG
345.
and
Dr.
nerve
Vitticore
conduction
noted
testing
that
and
reported significant symptoms. Dr. Vitticore further noted that
Plaintiff
had
activities
or
no
known
impairments
environmental
relating
limitations.
T.
to
345-46.
postural
He
also
opined that Plaintiff’s symptoms would likely cause him to be
“off task” more than twenty-five percent of a typical workday and
that Plaintiff would likely be absent from work more than four
days per month due to his impairments or treatment. T. 343.
In
Dr.
his
decision,
Vitticore’s
opinion.
the
The
ALJ
gave
ALJ
noted
7
“little”
that
Dr.
weight
to
Vitticore’s
opinion was in the form of a “checklist-type” statement with no
narrative explaining the severe functional limitations. T. 20. He
further noted that Dr. Vitticore treated Plaintiff a total of
three times, with no further treatment scheduled, and thus, it
appeared his treating relationship with Plaintiff was limited.
Id.
Plaintiff
argues
the
ALJ’s
decision
to
afford
“little”
weight to Dr. Vitticore’s opinion was erroneous and not supported
by substantial evidence. In particular, Plaintiff contends that
the
ALJ
failed
Dr.
Vitticore’s
to
provide
opinion,
in
“good
reasons”
accordance
for
the
with
rejecting
“treating
physician rule.” The Court disagrees.
Under the Commissioner’s regulations in place at the time
the ALJ issued his decision, a treating physician’s opinion is
generally
entitled
supported
by
to
controlling
medically
weight
acceptable
where
clinical
it
and
is
well-
laboratory
diagnostic techniques and where it is not inconsistent with the
other substantial evidence of record. See Green-Younger, 335 F.3d
at 106. If an ALJ assigns less than controlling weight to a
treating
physician’s
opinion
because
it
does
not
meet
this
standard, the ALJ must “comprehensively set forth [his or her]
reasons
for
the
weight
assigned
to
a
treating
physician’s
opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004).
When determining what weight to afford a treating physician’s
8
opinion, the ALJ is required to consider “the length of the
treatment
relationship
and
the
frequency
of
examination;
the
nature and extent of the treatment relationship; the relevant
evidence,
particularly medical
signs and
laboratory
findings,
supporting the opinion; the consistency of the opinion with the
record as a whole; and whether the physician is a specialist in
the area covering the particular medical issues.” Burgess v.
Astrue,
537
F.3d
117,
129
(2d
Cir.
2008)
(quotation
marks,
alterations, and citations omitted). However, the ALJ need not
expressly
discuss
each
of
these
factors,
so
long
as
his
“reasoning and adherence to the regulation are clear.” Atwater v.
Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (citing Halloran v.
Barnhart, 362 F.3d 28, 31–32 (2d Cir. 2004)).
The record indicates Plaintiff was treated by Dr. Vitticore
a total of three times. In his decision, the ALJ discussed all
three
of
these
treatment
appointments,
along
with
the
corresponding examination and diagnostic findings. See T. 18-19.
The ALJ found that these notes and findings, along with other
objective medical evidence in the record, were not consistent
with Plaintiff’s allegations of the severity of his symptoms of
diabetic neuropathy and obesity. T. 18.
The ALJ assigned “little” weight to Dr. Vitticore’s opinion
that Plaintiff would likely be “off task” more than twenty-five
percent of the workday and would likely be absent from work more
9
than four days per month due to his impairments. He reasoned that
Dr. Vitticore provided no narrative in the “checklist-type form”
to explain such severe functional limitations. T. 20. Plaintiff
argues
that
including
a
narrative
was
unnecessary
because
Dr. Vitticore’s treatment notes were available. However, this
argument is unavailing because, as noted above, the ALJ found
Dr. Vitticore’s treatment notes did not substantiate the severity
of symptoms and limitations Plaintiff had alleged. Furthermore,
where
a
treating
informative”
and
physician’s
is
opinion
inconsistent
with
is
“not
other
particularly
evidence
in
the
record, it “does not sustain controlling weight.” Halloran, 362
F.3d at 32.
The ALJ further noted that Plaintiff had seen Dr. Vitticore
only three
times
prior to
Dr.
Vitticore
giving
his
opinion.
T. 20. As Plaintiff points out, “there is no arbitrary, minimum
period of treatment by a physician” before he or she is able to
obtain a longitudinal picture of an alleged impairment to warrant
controlling weight under the Regulations. Wilson v. Colvin, 213
F.
Supp.3d
478,
484
(W.D.N.Y.
2016)
(citing
20
C.F.R.
§ 404.1527(c)(2)(i) (internal quotation marks omitted)). Instead,
an ALJ should “focus on the nature of the ongoing physiciantreatment relationship, rather than its length.” Id. (quoting
Simmons v. U.S.R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992)).
Here, the ALJ did just that, noting that Dr. Vitticore pointed
10
out in his opinion that he had examined Plaintiff only three
times over the course of a year and that no further treatment had
been scheduled. T. 20 referring to T. 343. The ALJ permissibly
found that Dr. Vitticore’s treating relationship with Plaintiff
appeared to be limited. See Feliciano v. Berryhill, No. 6:16-cv06311(MAT),
(finding
2017
that
WL
ALJ
instructions
to
3537130,
properly
consider
at
*3
(W.D.N.Y.
applied
“the
the
Aug.
17,
regulation’s
length
of
the
2017)
express
treatment
relationship and the frequency of examination and the nature and
extent of the treatment relationship” in determining the opinion
of plaintiff’s psychiatrist was entitled to “little” weight where
the opinion was issued after only two visits and the doctor
merely checked off boxes and provided little narrative) (citing
20
C.F.R.
§
404.1527(c)(2)(i)
(internal
quotation
marks
omitted)).
Based on the foregoing, the Court finds the ALJ properly
evaluated
Dr.
Vitticore’s
opinion
in
relation
to
the
record
evidence as a whole and provided “good reasons” for assigning it
less than controlling weight. Accordingly, the Court finds remand
on this basis is not warranted.
B.
On
The ALJ Properly Evaluated the Opinion of Consultative
Examiner Dr. Harbinder Toor
October
consultative
27,
2015,
examination
of
Dr.
Harbinder
Plaintiff.
11
T.
Toor
conducted
260-64.
a
Plaintiff
reported that he had a history of diabetes since 2014, but he did
not check his blood sugar. Plaintiff also reported vision loss in
his left eye since 1996; a history of stroke in 1996; blurred
vision in his right eye; a history of acid reflux; sleep apnea; a
history of being overweight for many years; an abdominal hernia
for a few years; a history of diabetic neuropathy in the feet and
lower part of his legs, more marked on the right than the left; a
history of sleep difficulty; and hypertension since 2015. T. 26061.
Plaintiff
reported
he
cooks
and
cleans
daily;
showers,
bathes, and dresses daily; and does laundry and goes shopping
once per week. T. 261. He reported he watches TV, listens to the
radio, reads, socializes with friends, and his hobbies include
the computer and video games. Id.
Upon examination, Plaintiff’s vision in his right eye was
20/25, his left eye was 20/0, and together was 20/25 on a Snellen
chart at 20 feet with glasses. He appeared to be in no distress
and walked with a normal gait. He used no assistive devices and
needed no help changing for the exam. Heel to toe walking was
difficult and Plaintiff’s squat was twenty percent of full. Id.
Plaintiff’s
eyes
showed
clear
conjunctivae
and
normal
fundi.
Plaintiff had tenderness with a small bulging hernia close to the
umbilical area. His bowel sounds were normal and there were no
hepatosplenomegaly or masses. Plaintiff’s cervical spine showed
12
full flexion, extension, lateral flexion bilaterally, and full
rotary movement bilaterally. Plaintiff’s lumbar spine had forward
flexion of thirty degrees, extension of zero degrees, and full
lateral flexion and bilateral rotation. Plaintiff’s straight leg
raising tests were negative bilaterally in both the sitting and
supine positions. He had a full range of motion in both upper and
lower extremities. His joints were stable and nontender. T. 262.
Plaintiff’s deep tendon reflexes were physiologic and equal in
his upper and lower extremities. He had tingling and numbness in
the lower part of his legs and feet bilaterally. He had tingling
and numbness in his hands bilaterally, but his strength was 5/5
in both his upper and lower extremities. T. 263. Plaintiff had
tenderness
and
mild
pitting-type
edema
in
his
legs
and feet
bilaterally. There was no evident muscle atrophy. Plaintiff’s
grip strength was 4/5 bilaterally and he had mild difficulty
grasping, holding, writing, tying shoe laces, zipping a zipper,
buttoning a button, manipulating a coin, and holding objects. Id.
Dr.
Toor
limitations
opined
walking
that
and
Plaintiff
standing
a
had
long
moderate
time
and
to
marked
bending
or
lifting. He further opined that Plaintiff had moderate limitation
doing
routines
requiring
fine
visual
acuity,
and
a
mild
limitation for fine motor activities bilaterally. T. 263.
In his decision, the ALJ gave “great” weight to the portion
of
Dr.
Toor’s
opinion
pertaining
13
to
Plaintiff’s
significant
difficulty walking and standing for extended periods. However,
the ALJ gave only “limited” weight to the portion of Dr. Toor’s
opinion that Plaintiff would have moderate limitation performing
work requiring fine visual acuity. T. 20. The ALJ reasoned that
Plaintiff had lived with vision loss in one eye for an extended
period and was able to sustain employment and a full range of
activities of daily living, notwithstanding the impairment. Id.
Furthermore, the ALJ noted that the medical evidence of record
indicated
sparse
treatment
for
Plaintiff’s
vision
impairment
since the alleged onset date, and that Plaintiff regularly drives
a car. T. 19.
Plaintiff argues the ALJ erred by using his own lay opinion
when giving “limited” weight to the portion of Dr. Toor’s opinion
relating to Plaintiff’s vision. For the reasons set forth below,
the Court finds no error with the ALJ’s weighing of Dr. Toor’s
opinion.
An ALJ is permitted to discount portions of a consultative
examiner’s
opinion
where
it
is
not
supported
by
the
medical
evidence of record. See Christina v. Colvin, 594 F. App’x 32, 33
(2d
Cir.
2015)
dismissing
a
(ALJ
portion
did
of
not
the
commit
opinion
reversible
of
[the]
error
“by
consultative
examiner”). See also Walker v. Colvin, No. 3:15-CV-465 (CFH),
2016 WL 4768806, at *10 (N.D.N.Y. Sept. 13, 2016) (“[A]n ALJ may
properly
credit
those
portions
14
of
a
consultative
examiner’s
opinion which the ALJ finds supported by substantial evidence of
record
and
reject
portions
which
are
not
so
supported.”)
(quotation omitted). Furthermore, an ALJ assessing a disability
claim is required 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 F. App’x 53, 56 (2d Cir. 2013). The ALJ’s
finding need “not perfectly correspond with any of the opinions
of medical sources.” Id.; see also O’Neil v. Colvin, No. 13-CV575-JTC, 2014 WL 5500662, at *6 (W.D.N.Y. Oct. 30, 2014) (“the
ALJ’s finding need not track any one medical opinion”); Breinin
v. Colvin, No. 5:14-CV-01166(LEK TWD), 2015 WL 7749318, at *3
(N.D.N.Y. Oct. 15, 2015), report and recommendation adopted, 2015
WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to
determine
a
claimant’s
RFC,
and
not
to
simply
agree
with
a
physician’s opinion.”).
The Court finds no error in the ALJ’s decision to credit
portions
of
Dr.
Toor’s
opinion
that
were
supported
with
substantial evidence from the record, while discounting portions
that were inconsistent with the record. Comparing the record as a
whole
to
Dr.
Toor’s
opinion,
the
ALJ
considered
Plaintiff’s
testimony that he is able to stand for thirty minutes at a time,
but then must sit down and that he can walk for about thirty
minutes at a time. See T. 18. The ALJ also noted Dr. Vitticore’s
treatment notes indicating Plaintiff had idiopathic peripheral
15
neuropathy
and
that
he
received
some
relief
of
pain
from
gabapentin. T. 18-19. This evidence of record supports the ALJ’s
decision to fully credit Dr. Toor’s opinion regarding Plaintiff’s
limited ability to stand and walk for long periods of time.
Conversely,
Dr.
Toor’s
opinion
regarding
the
impact
of
Plaintiff’s vision on his ability to perform work requiring fine
visual acuity is not supported by substantial evidence of record,
as the ALJ noted. The Court notes that Plaintiff reported to
Dr. Toor he had vision loss in his left eye since 1996. T. 260.
Despite
this
vision
loss,
Plaintiff
testified
he
did
CAD
(computer aided design) work for a company between 2002 and 2004,
which involved working at a desk computer. T. 43. Furthermore, as
the ALJ noted, Plaintiff has received sparse treatment for his
vision impairment during the relevant period and continues to
perform a full range of activities of daily living that include
driving,
watching
TV,
playing
video
games
and
being
on
his
computer. T. 19-20. The Court finds the ALJ adequately supported
his decision to discount a portion of Dr. Toor’s opinion. See
Christina,
594
F.
App’x
at
33.
Accordingly,
remand
is
not
warranted on this basis.
II.
The ALJ’s Step Three Finding Is Supported by Substantial
Evidence (Plaintiff’s Point I)
Plaintiff argues the ALJ failed to properly evaluate Listing
11.14B at step three, resulting in a finding not supported by
16
substantial
evidence.
In
particular,
Plaintiff
argues
that
(1) the ALJ failed to properly synthesize evidence that supports
a finding that Plaintiff meets Listing 11.14B; and (2) the ALJ
failed to properly develop the record by obtaining an expert
opinion as to whether Plaintiff meets Listing 11.14B. For the
reasons set forth below, the Court finds these arguments lack
merit.
At step three of the sequential analysis, an ALJ determines
whether any of the claimant’s medically determinable “severe”
impairments singularly or in combination meet or medically equal
the criteria of an impairment listing in 20 C.F.R. Part 404,
Subpart P, Appendix 1 . If any impairment is of a severity to
meet or medically equal the criteria of a listing and also meets
the durational requirement set forth in 20 C.F.R. § 404.1509, the
claimant is disabled and the analysis is concluded. A claimant
has
the
burden
of
proving
his
or
her
impairments
meet
or
medically equal the requirements of a particular listing. See
Johnson v. Colvin, No. 13-CV-1055-JTC, 2014 WL 6883606, at *5
(W.D.N.Y.
Dec.
4,
2014)
(citing
Naegele
v.
Barnhart,
433
F. Supp.2d 319, 324 (W.D.N.Y. 2006) (“It must be remembered that
plaintiff has the burden of proof at step 3 that she meets the
Listing requirements.”)). An impairment that does not meet all of
the specified medical criteria of a listing does not qualify.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
17
To establish peripheral neuropathy disability pursuant to
Listing 11.14B, the claimant has the burden of proving:
Marked limitation (see 11.00G2) in physical
functioning (see 11.00G3a), and in one of the
following:
1. Understanding, remembering, or applying
information (see 11.00G3b(i)); or
2. Interacting
with
11.00G3b(ii)); or
others
(see
3. Concentrating,
persisting,
or
maintaining pace (see 11.00G3b(iii));
or
4. Adapting
or
managing
11.00G3b(iv)).
20
C.F.R.
Part
404,
Subpart
P,
oneself
Appendix
1
§
(see
11.14.
“Marked
limitation means that, due to the signs and symptoms of your
neurological disorder, you are seriously limited in the ability
to
independently
initiate,
sustain,
and
complete
work-related
physical activities.” Id. § 11.00(G)(2)(a).
Plaintiff contends he meets the criteria for Listing 11.14B
because: (1) he has been repeatedly diagnosed with neuropathy;
(2)
Dr.
Toor
specifically
opined
he
has
moderate
to
marked
limitations walking and standing a long time, and bending and
lifting;
and
(3)
Dr.
Vitticore
opined
Plaintiff’s
neuropathy
symptoms were severe enough to interfere with his attention and
concentration, likely causing him to be “off task” more than
twenty-five percent of a typical workday. See T. 263, 343. The
18
Court acknowledges that if the opinion of Dr. Vitticore was given
controlling
weight,
it
would
appear
Plaintiff
does
meet
the
criteria of Listing 11.14B in that he can show marked limitation
in his ability to stand and walk for a long period of time (part
1
of
the
Listing)
as
well
as
a
marked
limitation
in
concentration, persisting, or maintaining pace (part 2 of the
Listing).
However,
permissibly
as
determined
discussed
that
Dr.
in
detail
Vitticore’s
above,
the
ALJ
opinion
was
not
supported by substantial evidence and thus, was not entitled to
controlling weight. Accordingly, Plaintiff has not demonstrated
he meets both requirement prongs of the Listing.
define
concentrating,
persisting,
or
The Regulations
maintaining
pace
as
the
ability to “focus attention on work activities and to stay ontask at a sustained rate.” 20 C.F.R. § 404, Subpt. P, App. 1,
§ 11.00(G)(3)(b)(iii). The Court finds that substantial evidence
of record demonstrates Plaintiff has minimal, if any limitations
in
concentrating,
function
report
persisting,
Plaintiff
or
completed
maintaining
as
part
pace.
of
his
In
the
initial
application for benefits, he stated he is able to finish what he
starts, though he takes his time, and that he is able to follow
written and spoken instructions. T. 207-08. Plaintiff testified
he plays video games, does housework, watches television, looks
at the internet and emails on his computer, and cooks meals.
T. 49-50, 201. He further testified that when he feels pain and
19
tenderness in his feet and lower legs, he sits down. T. 49. In
treatment notes, Dr. Vitticore noted Plaintiff was alert and
attentive.
See,
e.g.,
T. 240,
242.
Plaintiff
has
offered
no
additional evidence supporting the contention that he meets the
second set of criteria of Listing 11.14B. Accordingly, the Court
finds
Plaintiff
has
not
provided
the
evidence
necessary
to
support the finding his limitations meet or medically equal all
of the criteria of Listing 11.14B.
Plaintiff also argues the ALJ should have further developed
the
record
with
Plaintiff’s
testimony
neuropathy
to
from
a
medical
expert
regarding
establish
whether
or
Plaintiff
not
meets Listing 11.14B. The Court disagrees.
It is well settled than an ALJ has an affirmative duty to
develop the medical record or seek additional information where
the evidence of record is inconsistent or contradictory, or where
an evidentiary gap exists. See, e.g., Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999). However, where there are no obvious gaps,
and the record presents a “complete medical history,” an ALJ is
not under
a
duty to
seek
additional
before rejecting a claim. Id.
evidence
or
information
at 79, n. 5 (citing Perez v.
Chater, 77 F.3d 41, 48 (2d Cir. 1996). Furthermore, as noted
above, the claimant carries the burden of supplying evidence at
step three showing that the requirements of a particular listing
have been met or medically equaled. An ALJ “may . . . ask for and
20
consider opinions from medical experts on the nature and severity
of
[a
claimant’s]
impairment(s)
and
on
whether
[the]
impairment(s) equals the requirements of any impairment” in the
Listings. 20 C.F.R. § 404.1527(f)(2)(iii). However, this is an
option available to the ALJ, and not a mandate. See Carter v.
Commissioner
of
Social
Security,
No.
06-CV-186C(F),
2008
WL
1995122, at *5 (W.D.N.Y. May 6, 2008).
At step three, the ALJ found that “the medical evidence
falls short of the criteria of [§ 11.00 Neurological Disorders],
and
no
medical
source
has
mentioned
findings
equivalent
in
severity to the criteria of any listed impairment, individually
or in combination.” T. 17. Throughout his decision, the ALJ noted
medical findings, treatment notes, and Plaintiff’s testimony that
supported this finding. See T. 17-19. Contrary to Plaintiff’s
assertion, there was no “gap” in the record simply because the
record did not support the finding that Plaintiff’s impairments
meet Listing 11.14B. Furthermore, Plaintiff has otherwise failed
to
identify
any
information
to
suggest
additional
expert
testimony might have led the ALJ to reach a different conclusion.
Accordingly, the Court finds the ALJ was under no duty to further
develop the record or obtain the opinion of a medical expert
before
making
his
step
three
finding.
See
Ortiz
v.
Colvin,
No. 13-CV-6463(MAT), 2014 WL 3784108 at *7 (W.D.N.Y. July 31,
2014) (ALJ did not abuse his discretion by failing to consult a
21
medical expert to determine whether plaintiff’s impairments met
or medically equaled the Listings). The Court therefore finds
remand is not warranted on this basis.
III. The RFC Finding Is Supported
(Plaintiff’s Point II)
by
Substantial
Evidence
Plaintiff also argues the ALJ created a highly specific RFC
finding
that
is
unsupported
by
substantial
evidence.
In
particular, Plaintiff argues there is no evidence of record to
support the specific sit/stand limitations assessed by the ALJ.
For the reasons set forth below, the Court finds this argument
lacks merit.
As previously noted, an ALJ is required to “weigh all of the
evidence available to make an RFC finding that [is] consistent
with
the
record
as
a
whole.”
Matta,
508
F.
App’x
at
56.
Furthermore, where an ALJ makes an RFC assessment that is more
restrictive than the medical opinions of record, it is generally
not
a
basis
00113(MAT),
for
2017
remand.
WL
See
3939362,
Castle
at
*3
v.
Colvin,
(W.D.N.Y.
No.
Sept.
1:15-CV8, 2017)
(finding that “the fact that the ALJ’s RFC assessment did not
perfectly match Dr. Balderman’s opinion, and was in fact more
restrictive
than
that
opinion,
is
not
grounds
for
remand”);
Savage v. Comm’r of Soc. Sec., No. 2:13-CV-85, 2014 WL 690250, at
*7 (D. Vt. Feb. 24, 2014) (finding no harm to claimant where ALJ
22
adopted
an
RFC
determination
that
was
more
restrictive
than
medical source’s opinion).
Based on the record as a whole, the ALJ found that Plaintiff
was
capable
of
sedentary
work
with
several
additional
limitations, including the option to sit for five minutes after
standing for twenty-five minutes, or stand for five minutes after
sitting for twenty-five minutes. See T. 17. According to the
Regulations,
sedentary
work
“involves
sitting,
[although]
a
certain amount of walking and standing is often necessary in
carrying
out
job
duties.
Jobs
are
sedentary
if
walking
and
standing are required occasionally and other sedentary criteria
are met.” 20 C.F.R. § 404.1567(a).
The Court finds the portion of the RFC with which Plaintiff
takes issue is appropriately supported by both Dr. Toor’s opinion
that Plaintiff “has moderate to marked limitations walking and
standing for a long time,” (T. 263) and Plaintiff’s testimony
that he can stand or walk for thirty minutes at a time before
needing to sit down (T. 44, 47). The ALJ assigned “great” weight
to
Dr.
Toor’s
limitations.
T.
opinion
20.
And
regarding
Plaintiff’s
Plaintiff’s
own
exertional
testimony
provides
additional support for the ALJ’s findings that he requires the
option
to
Furthermore,
change
Dr.
positions
Vitticore
after
opined
twenty-five
Plaintiff
was
minutes.
capable
of
sitting for eight hours with the ability to sit or stand at will
23
and also stated Plaintiff’s standing and walking limitations were
“unknown.” T. 344.
In light of Plaintiff’s testimony and the medical evidence
described above, Plaintiff’s argument that the ALJ’s inclusion of
a sit/stand option in the RFC was reversible error lacks merit.
See Jackson v. Berryhill, No. 16-CV-33(MAT), 2018 WL 2235166, at
*3 (W.D.N.Y. May 15, 2018) (consultative examiner’s opinion and
plaintiff’s testimony provided substantial evidence to support
the sit/stand option in the RFC finding). Accordingly, the Court
finds remand is not warranted on this basis.
IV.
The ALJ Properly Evaluated Plaintiff’s Past Relevant Work
(Plaintiff’s Points V and VI)
Plaintiff further contends the ALJ failed at step four to
properly evaluate whether Plaintiff is capable of performing his
past
relevant
work
as
a
CAD
designer,
and
further
erred
by
failing to evaluate the position as a composite job. The Court
finds these arguments are without merit, for the reasons set
forth below.
A.
The ALJ’s Step Four Finding Is Supported by Substantial
Evidence
At step four, the ALJ found that Plaintiff was capable of
performing his past relevant work as a CAD designer, as it is
generally performed in the national economy. T. 20-21. Plaintiff
argues the
ALJ
did
not
properly evaluate
or
secure
evidence
establishing that Plaintiff could perform the physical and visual
24
demands of a CAD designer. Specifically, Plaintiff contends that
the ALJ failed to address how Plaintiff’s vision loss in his left
eye and blurriness in his right eye would allow him to perform
the
visually
demanding
duties
of
a
CAD
designer.
The
Court
disagrees.
Plaintiff reported to Dr. Toor that he lost vision in his
left eye in 1996. T. 260. At the hearing, Plaintiff testified
that he recently started wearing glasses to see and read, and
that the glasses corrected the vision changes in his right eye.
T. 46. Plaintiff also testified he worked as a CAD designer from
2002 through 2004 and was a delivery driver in 2004 - both
positions held after he lost vision in his left eye in 1996.
T. 41-43. Furthermore, Plaintiff testified he is able to use a
computer. T. 38.
The VE classified the position of CAD drafter, as generally
performed,
as
a
skilled
sedentary
position,
pursuant
to
the
Dictionary of Occupational Titles (“DOT”). T. 54. The VE further
testified that a hypothetical individual with Plaintiff’s RFC
would be able to perform work as a CAD designer, as generally
performed, but not as Plaintiff had actually performed it. T. 56.
Specifically,
the
VE
noted
that
the
occasional
on-site
and
delivery duties that Plaintiff said he did in his role as a CAD
designer eliminated the position as it was actually performed.
T. 57. The VE further testified that job duties would vary by
25
employer,
but
that
the
general
title
of
CAD
designer
was
considered a (sedentary) desk job that fell within Plaintiff’s
RFC. T. 57-58.
As
an
initial
point,
the
Court
notes
it
is
Plaintiff’s
burden to show he was unable to perform his past relevant work,
both as he had performed it and as it is generally performed in
the national economy. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
§§ 404.1520(f), 404.1560(b); see also Jasinksi v. Barnhart, 341
F.3d 182, 185 (2d Cir. 2003) (holding that at step four, “the
claimant has the burden to show an inability to return to her
previous
specific
job
and
an
inability
to
perform
her
past
relevant work generally”) (citations omitted).
While the VE’s testimony supports the finding that Plaintiff
would be unable to perform his past work as a CAD designer as he
actually performed it, Plaintiff has not demonstrated that he is
unable to perform the work as generally performed in the national
economy. Furthermore, in addition to the VE’s testimony that
Plaintiff would be able to perform the work as a CAD designer, as
generally performed, the record as a whole supports the ALJ’s
step four finding. The ALJ noted that Plaintiff’s vision loss is
longstanding and that he worked as a CAD designer after losing
vision in his left eye. T. 18. Moreover, the ALJ noted that
despite needing glasses to correct blurriness in his right eye,
Plaintiff continues to drive, and that he sustains a full range
26
of activities of daily living, which include using a computer,
watching
television,
Accordingly,
the
requirements
of
finding
that
and
Court
playing
finds
Plaintiff’s
Plaintiff
the
ALJ
past
has
video
properly
work,
the
games.
as
ability
a
19-20.
evaluated
CAD
to
T.
the
designer
perform
in
those
requirements as generally performed in the national economy.
B.
Substantial Evidence Does Not Support a Finding that
Plaintiff’s Past Relevant Work as a CAD Designer Was a
Composite Job
Plaintiff
further
argues
the
ALJ
erred
by
not
finding
Plaintiff’s past relevant work as a CAD designer was a composite
job.
For
the
reasons
set
forth
below,
the
Court
finds
this
argument lacks merit.
Social Security Ruling (“SSR”) 82-61 defines composite jobs
as
those
which
have
“significant
elements
of
two
or
more
occupations and, as such, have no counterpart in the DOT.” SSR
82-61, 1982 WL 31387, at *2 (S.S.A. Jan. 1, 1982). The Social
Security Administration’s Program Operations Manual System (POMS)
states “[t]he claimant’s [past relevant work] may be a composite
job if it takes multiple DOT occupations to locate the main
duties of the [past relevant work] as described by the claimant.”
POMS DI 25005.020. Therefore, Plaintiff carries the burden at
step
four
to
demonstrate
he
is
unable
to
perform
his
past
relevant work, as actually performed or as generally performed.
27
See
42
U.S.C.
§
423(d)(2)(A);
20
C.F.R.
§§
404.1520(f),
404.1560(b).
Plaintiff testified that as a CAD designer, he occasionally
would
go
on
site
to
perform
field
measurements
or
make
deliveries. T. 43-44. The VE testified that Plaintiff would be
unable to return to his position as a CAD designer as he actually
performed it. The VE acknowledged that specific job duties will
vary
by
employer,
however
variations
in
the
performance
of
certain duties do not rise to the level of a composite job.
T. 57-58. See Weiser v. Berryhill, No. 1:16-CV-00763(MAT), 2018
WL 6011163, at *3 (W.D.N.Y. Nov. 16, 2018) (“the main duties of a
composite job will only be adequately described by multiple DOT
occupations”) (internal citation and quotation marks omitted).
Plaintiff’s past relevant work as a CAD designer, as actually
performed did not rise to the level of a composite job simply
because he occasionally performed field measurements on site or
made deliveries. The VE determined that Plaintiff’s past relevant
work was
light
work;
however,
as
generally
performed,
a
CAD
designer’s work is sedentary work. The VE determined that as
Plaintiff performed it, his past relevant work was light work;
however,
as
generally
performed,
a
CAD
designer
position
is
sedentary work. T. 55-57. Accordingly, the Court finds the ALJ’s
step four finding that Plaintiff was capable of performing his
past relevant work as a CAD designer as generally performed was
28
supported by substantial evidence and further finds that remand
is not warranted.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment
on the pleadings (Docket No. 9) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 13) is granted.
The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
April 30, 2019
Rochester, New York
29
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?