Morrow v. Commissioner of Social Security
Filing
6
OPINION AND ORDER denying 4 MOTION for Order Reversing the Decision of the Commissioner; granting 5 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge Christina Reiss on 7/27/2020. (kp)
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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
2020 JUL 27 PH I: 03
Laurie M.,
)
)
Plaintiff,
)
)
v.
)
)
Commissioner, Social Security Administration, )
)
Defendant.
)
Case No. 2:18-cv-00094
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND GRANTING THE
COMMISSIONER'S MOTION TO AFFIRM
(Docs. 4 & 5)
Plaintiff Laurie Morrow ("Plaintiff') brings this action for Title II Social Security
Disability Insurance Benefits ("DIB") under the Social Security Act ("SSA"). Plaintiff
moves to reverse the decision of the Social Security Commissioner (the "Commissioner")
that she is not disabled pursuant to 42 U.S.C. § 405(g) on the ground that Administrative
Law Judge ("ALJ") Thomas Merrill's determinations with respect to Plaintiffs mental
and physical limitations are not supported by substantial evidence. She seeks a remand
for the calculation of benefits. (Doc. 4.) The Commissioner moves to affirm. (Doc. 5.)
The court took the pending motions under advisement on January 7, 2019.
Plaintiff is represented by Craig A. Jarvis, Esq. Special Assistant United States
Attorney Peter Jewett represents the Commissioner.
I.
Procedural Background.
On March 1, 2013, Plaintiff applied for DIB, alleging a disability onset date of
November 1, 2011. Her claim was initially denied on April 17, 2013 and upon
reconsideration on July 5, 2013. Pursuant to Plaintiff's timely request, ALJ Merrill
presided over a hearing on September 17, 2014. Plaintiff was represented by counsel and
testified at the hearing, and vocational expert ("VE") Elizabeth McLean testified by
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telephone. ALJ Merrill issued an unfavorable decision on December 8, 2014. Plaintiff
timely appealed to the Office of Disability Adjudication and Review Appeals Council,
which denied review on February 3, 2015. Thereafter, Plaintiff filed suit in this court
seeking review of ALJ Merrill's December 8, 2014 decision. Magistrate Judge John M.
Conroy remanded the case for further proceedings on January 30, 2017. A second hearing
was held by videoconference on January 3, 2018, at which Plaintiff was again
represented by counsel and at which Plaintiff and VE Lynn Paulson testified. On
February 27, 2018 ALJ Merrill issued a second unfavorable decision which stands as the
Commissioner's final decision. Plaintiff filed this action on June 7, 2018.
II.
The ALJ's Application of the Five-Step, Sequential Framework.
In order to receive DIB benefits under the SSA, a plaintiff must be disabled 1 on or
before her date last insured. Disability is determined using a five-step, sequentialevaluation framework that assesses:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a
"residual functional capacity" assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). "The claimant has the general burden of
proving that he or she has a disability within the meaning of the Act, and bears the burden
of proving his or her case at [S]teps [O]ne through [F]our of the sequential five-step
1
Disability is defined as the inability "to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
twelve months[.]" 42 U.S.C. §§ 423(d)(l)(A), 1382c(a)(3)(A). A claimant's "physical or mental
impairment or impairments" must be "of such severity" that the claimant is not only unable to do
any previous work but cannot, considering the claimant's age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy. 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
2
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framework established in the SSA regulations[.]" Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008) (internal quotation marks and citations omitted). At Step Five, "the burden
shifts to the Commissioner to show there is other work that the claimant can perform."
McIntyre, 758 F.3d at 150 (internal brackets, quotation marks, and citation omitted).
Plaintiff was born on October 19, 1953 and was fifty-eight years old at the time of
the alleged onset of her disability. She holds a bachelor's degree from the University of
Vermont and a Ph.D. in English from the University of Kansas. Prior to the onset of her
disability, Plaintiff worked full-time as a grant writer. Her other work experience includes
positions as a university professor, fundraiser, public relations executive, and radio
broadcaster. She claims disability due to "anxiety with panic attacks[,]" attention deficit
disorder ("ADD"), depression, insomnia, a thyroid condition, transient ischemic attack
("TIA"),2 high blood pressure, and an arthritic condition in her spine. (AR 147.)
Plaintiff's last date insured was December 31, 2014.
At Step One, the ALJ determined that Plaintiff has not engaged in substantial
gainful activity since her alleged disability onset date of November 1, 2011. At Step Two,
ALJ Merrill found that Plaintiff had severe medically determinable impairments of
affective disorder, anxiety disorder, and "[ADD]/attention deficit hyperactivity
disorder." 3 Id. at 497. The ALJ determined that Plaintiff's other alleged impairments
imposed no more than minimal limitations on her ability to perform basic work activities
for a continuous period of at least twelve months, and therefore were not severe.
At Step Three, ALJ Merrill found that Plaintiff did not have an impairment or
combination of impairments that met or equaled the severity of any listed impairment,
observing that "[n]o accepted medical source ... has offered an opinion that any of the
2
A transient ischemic attack is "a transient decrease in the supply of blood to a localized region
of the brain, resulting in some neurological disturbance, [such] as loss of memory." Transient
ischemic attack, J.E. Schmidt, ATTORNEY'S DICTIONARY OF MEDICINE, Lexis (database updated
October 2019).
3
At the January 3, 2018 hearing, Plaintiff testified that she has "ADD but not hyperactive." (AR
532.) Nonetheless, several medical opinions in the record as well as the ALJ's decision refer to
attention deficit hyperactivity disorder ("ADHD") as one of Plaintiffs impairments.
3
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[Plaintiffs] impairments equal a section of the listed impairments[,]" that Plaintiff had
not alleged her impairments equaled the severity of a listing, and that the record did not
contain medical evidence to support a finding oflisting-level severity. Id. at 503.
At Step Four, ALJ Merrill determined that Plaintiff had the residual functional
capacity ("RFC") to:
perform medium work as defined in 20 C.F.R. [§] 404.1567(c). The
[Plaintiff] has the ability to understand and carry out instructions. While the
[Plaintiffs] persistence and pace may be affected on a temporary basis, it
would not be to an unacceptable level. The [Plaintiff] could otherwise
sustain concentration, persistence, and pace during the typical two[-]hour[]
periods of an eight-hour workday and forty-hour workweek. The [Plaintiff]
can tolerate routine and ordinary social interactions. The [Plaintiff] can set
goals, recognize hazards, travel, and manage routine changes.
Id. at 506. The ALJ found that with this RFC, Plaintiff was capable of performing her
past relevant work as a grant writer and college or university faculty member and
therefore was not disabled from her alleged onset date of November 1, 2011, through her
date last insured, December 31, 2014. Because the ALJ determined that Plaintiff was
capable of performing past relevant work at Step Four, he did not reach Step Five of the
disability analysis.
III.
Conclusions of Law and Analysis.
A.
Standard of Review.
The court "conduct[ s] a plenary review of the administrative record to determine if
there is substantial evidence, considering the record as a whole, to support the
Commissioner's decision and if the correct legal standards have been applied." Cichocki
v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013) (internal quotation marks and citation
omitted). "Substantial evidence is 'more than a mere scintilla' and 'means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."'
Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales,
402 U.S. 389,401 (1971)).
"If evidence is susceptible to more than one rational interpretation, the
Commissioner's conclusion must be upheld." McIntyre, 758 F.3d at 149. Even where
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"substantial evidence supporting the claimant's position ... exists[,]" the ALJ's decision
must be upheld if record also contains substantial evidence to support a contrary
conclusion. Jones v. Berryhill, 415 F. Supp. 3d 401,411 (S.D.N.Y. 2019) (citation
omitted). "It is the function of the Secretary, not the reviewing courts, to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant."
Aponte v. Sec'y, Dep't ofHealth & Human Servs. of US., 728 F.2d 588,591 (2d Cir.
1984) (internal quotation marks, brackets, and citation omitted).
B.
Whether ALJ Merrill's RFC Determination Concerning Plaintifrs
Mental Impairments Is Supported By Substantial Evidence.
Plaintiff disputes the ALJ's finding that her mental impairments would not affect
her persistence and pace "to an unacceptable level[.]" (AR 506.) She further asserts that
the ALJ erred by omitting restrictions that would limit Plaintiff to simple, routine, and
unskilled work.
An RFC determination represents "the most [a claimant] can still do despite [her]
limitations[,]" and is determined based on "all the relevant evidence" in the record,
including evidence of both severe and non-severe medically determinable impairments.
20 C.F.R. § 404.1545(a)(l)-(2). The regulations provide that "[a] limited ability to carry
out certain mental activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision, co-workers, and
work pressures in a work setting, may reduce [a claimant's] ability to do past work and
other work." 20 C.F.R. § 404.1545(c).
In evaluating a Plaintiffs ability to work, "[a]n ALJ is tasked with weighing all of
the evidence available to make an RFC finding that is consistent with the record as a
whole." Lawton v. Comm 'r ofSoc. Sec., 351 F. Supp. 3d 378,383 (W.D.N.Y. 2019)
(internal quotation marks, brackets, and citation omitted). "[A]n ALJ is free ... to choose
between properly submitted medical opinions" in rendering his or her analysis, Balsamo
v. Chafer, 142 F.3d 75, 81 (2d Cir. 1998) (internal alterations, quotation marks, and
citation omitted), and need not "reconcile every conflicting shred of medical testimony"
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as long as the ALJ "acknowledge[ s] relevant evidence or explains his implicit rejection of
it." Falcon v. Apfel, 88 F. Supp. 2d 87, 90 (W.D.N.Y. 2000) (citations omitted).
From February to December 2010, Plaintiff worked as a Director of Development
for the National Association of Scholars. In a questionnaire, Plaintiffs supervisor noted
that Plaintiff had "great difficulty" with learning job duties in the expected amount of
time, accepting instructions and reasonable criticism, asking questions, requesting help,
adapting to work changes, and performing repetitious tasks. (AR 181-82.) The supervisor
commented that Plaintiff was "[p]ersonable, friendly, [and] creative, but undisciplined
and not forthcoming with problems" and he "dismissed her for non-performance." Id.
Thereafter, Plaintiff worked part time for the Heritage Foundation from March
2011 through October 2011. On October 18, 2011, Plaintiff reported to her treating
psychiatrist, Alan Zaur, M.D., that she had lost her job, which she later attributed to
"personality conflicts" with her supervisor. Id. at 442. In November 2011, Dr. Zaur noted
that Plaintiff was taking Adderall for her ADD and that she had made contacts to do a
radio show.
In March 2012, Plaintiff went to the emergency room with symptoms of aphasia
and an altered mental state, although it was noted that Plaintiffs "slurred speech and
sense of [left] leg weakness had already improved markedly by arrival and fully resolved
at [discharge]." Id. at 292. Plaintiff was noted to be under significant stress as the "sole
breadwinner" in her family and as the parent of an autistic teenager. Id. She reported that
she was unemployed and spending twelve hours each day on the computer looking for
work. Plaintiff was diagnosed with a TIA and discharged with instructions to follow up
with her primary care physician.
In September 2012, Plaintiff reported to Dr. Zaur that she was doing some work as
a copywriter for an advertising agency based in Boston, but that she had experienced "a
deep depression" approximately one month earlier due to financial stressors and stressors
related to the care of her son. Id. at 357. By November 2012, Plaintiffs treating primary
care physician, Joseph Brock, M.D., noted that Plaintiffs "mood disorder ha[d] stabilized
under Dr. Zaur's care[,]" although Plaintiff reported a "gradual decline in her cognitive
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function over the last [two] years[,]" including her word finding and vocabulary. (AR
335.)
On November 15, 2012, Plaintiff saw neurology specialist Deborah Black, M.D.,
for an initial evaluation due to her reported symptoms of short- and long-term memory
problems, difficulty with organization, prioritizing, and completing projects, slow word
retrieval, clumsiness, and irritability. Dr. Black found Plaintiff to be "[v]ery pleasant,
alert, intelligent," and an "excellent historian" who displayed "[r]apid speech" and a
"circumstantial, highly anxious, overinflected and dramatic interpersonal style[.]" Id. at
442. Dr. Black recommended that Plaintiff take antidepressants, but Plaintiff had opposed
antidepressant medication because she had "seen ill adverse side effects in her son when
he was treated with SSRI[s]." Id. at 329.
At an appointment with Dr. Brock on December 7, 2012, Plaintiff reported her
depression had worsened, she remained unemployed, and she faced the potential loss of
her home. She described feeling stress, sadness, hopelessness, and despair with
occasional suicidal ideation, but stated that she did not have a suicidal plan. Dr. Zaur
prescribed fluoxetine (Prozac), which led to a temporary improvement in Plaintiffs
mood.
In a questionnaire administered by Dr. Black on December 12, 2012, Plaintiff
indicated that she was "limited a little" in "[v ]igorous activities, such as running, lifting
heavy objects, [and] participating in strenuous sports[,]" but "not limited at all" in
[m ]oderate activities" such as moving a table, vacuuming, bowling, golfing, lifting and
carrying groceries, climbing several flights of stairs, bending, kneeling, or stooping. Id. at
313. She felt she would be "limited a lot" in walking more than one mile. Id.
At the December 12, 2012 appointment, Dr. Black screened Plaintiff for
neurocognitive problems and found that Plaintiff attained average scores in some areas of
testing but scored in the low range for cognitive flexibility, executive functioning, and
sustained attention, as well as in the very low range for working memory. The testing
report indicated that Plaintiffs sustained attention and working memory results may have
been invalid and recommended, "a clinician should evaluate whether or not the test
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subject understood the test, put forth their best effort, or has a clinical condition requiring
further evaluation." Id. at 309. Consistent with this guidance, Dr. Black noted that
Plaintiff "may have misunderstood the test instructions on the[] latter two tests." (AR
307.) Dr. Black further observed that Plaintiffs performance "improved into the normal
range" as the difficulty of the test increased, "suggesting that she was able to mobilize her
attention sufficiently to perform well on the third, most challenging" portion. Id. at 308.
Dr. Black concluded that Plaintiffs neurological functioning would not qualify her as
disabled, but suggested that Plaintiff "may qualify for Disability on the basis of her
affective symptoms[.]" Id. The ALJ found Dr. Black's opinion that Plaintiff could
perform "a mid-level job without major organizational responsibilities" was supported by
the results of mental status examinations and deserved "great weight" because it was
within Dr. Black's area of expertise and because she examined Plaintiff on multiple
occasions. Id. at 510.
In January 2013, Plaintiffs mood returned to her baseline, prompting Dr. Zaur to
increase Plaintiffs dose offluoxetine. In April 2013, Plaintiff attempted to switch
medications but ultimately returned to fluoxetine after her depression worsened. By May
2013, Dr. Zaur's notes indicate that Plaintiffs mood was "much improved[,]" she
reported she was "[f]eeling better than she ha[d] in months[,]" and she appeared to be her
"[n]ormal happy self." Id. at 387-88. Plaintiffs mental status examinations yielded
normal results through the remainder of 2013.
In July 2013, treating primary care physician Dr. Brock completed an RFC
questionnaire in which he noted that Plaintiffs anxiety and inattention caused poor focus
that interfered with her ability to perform one- to three-step tasks for two-hour periods
and opined that her productivity would be reduced by twenty percent or more as a result.
Dr. Brock further opined that Plaintiff could work twenty hours per week in a low stress
job due to the limitations imposed by her anxiety, depression, and ADD.
In January 2014, Dr. Zaur observed that Plaintiff had a sad affect, but her mental
function appeared intact. In March 2014, Plaintiff switched medications to Zyprexa and
reported a good response. At an appointment with Dr. Brock in September 2014, Plaintiff
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complained of decreased executive functioning, with difficulty following and completing
simple instructions and short-term memory loss. Cognitive testing, however, revealed no
deficits in the areas of attention/calculation, recall, and ability to follow a three-stage
command. After Dr. Zaur closed his practice in February 2015, Dr. Brock prescribed
Plaintiff trials of several other medications for her anxiety and depression. In February
2016, Plaintiff discontinued medication treatment for those conditions after reporting
decreased anxiety and stress.
The ALJ afforded great weight to the opinion of non-examining state agency
consultant Joseph Patalano, Ph.D., who opined in April 2013 that Plaintiff had moderate
limitations in activities of daily living, maintaining social functioning, and maintaining
concentration, persistence, or pace, but had not experienced repeated episodes of
decompensation for extended periods of time. He further opined that Plaintiff:
May have episodic problems with concentration/pace due to ADHD and
occasional increases in anxiety/depression associated with health and
environmental stressors which temporarily undermine cognitive efficiency.
Otherwise from a psych perspective, can sustain
concentration/persistence/pace for [two-]hour periods over [eight-]hour
day[ s] through [a] typical work week.
(AR 52.)
Non-examining state agency consultant Roy Shapiro, Ph.D., reviewed the record
on reconsideration in June 2013 and opined that Plaintiff"still [wa]s able to do [one] [four] step tasks with the limitations suggested" in Dr. Patalano's assessment. Id. at 62.
Dr. Shapiro adopted Dr. Patalano's earlier evaluation in full.
VE Paulson testified that Plaintiffs past relevant work is classified as skilled with
either a sedentary or light level of exertion. She opined that a claimant with no physical
limitations and the ability to understand, remember, and carry out detailed instructions
with some temporary lapses in persistence and pace "not to an unacceptable level" who
could tolerate ordinary social interaction, set goals, recognize hazards, and manage
routine changes would be capable of performing Plaintiffs past relevant work as a grant
writer or adjunct professor. Id. at 542. A claimant with the same limitations who was
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further limited to four-step instructions would only be able to perform semi-skilled work,
which would exclude Plaintiffs past relevant occupations.
In determining that Plaintiff may experience temporary problems with persistence
and pace but "could otherwise sustain concentration, persistence, and pace during the
typical two[-] hour[] periods of an eight-hour workday and forty-hour workweek[,]" id. at
506, the ALJ noted that although Plaintiff reported difficulty with memory,
comprehension, completing tasks, and following instructions, these complaints were not
fully consistent with Plaintiffs self-reported ability to work on the computer, read, and
serve as a board member for local organizations including Washington County Mental
Health Services and the Vermont Autism Task Force. He also noted that Plaintiff scored
twenty-nine out of thirty on a mini-mental status exam administered by Dr. Brock in
September 2014, indicating no cognitive impairment.
The ALJ accorded little weight to Dr. Brock's opinions regarding Plaintiffs
mental impairments, finding them inconsistent with Plaintiffs performance on minimental status examinations and noting that Dr. Brock is not a psychiatrist. Although
Plaintiffs treating psychiatrist, Dr. Zaur, did not provide a medical source opinion, his
treatment records reflect that Plaintiffs depression responded to treatment with
medication and that her symptoms improved when the significant familial and economic
stressors she faced abated. See Monroe v. Comm 'r ofSoc. Sec., 676 F. App'x 5, 9 (2d Cir.
2017) (holding that RFC determination based on a "year's worth of treatment notes" from
treating physician was adequately supported by substantial evidence).
Citing Dr. Black's opinion that Plaintiff could tolerate a mid-level occupation and
the state agency consultants' opinions that Plaintiff experienced only temporary, episodic
difficulties as a result of her ADHD, the ALJ chose this evidence to support Plaintiffs
RFC. See Burgess, 537 F.3d at 128 ("Generally, the opinion of the treating physician is
not afforded controlling weight where the treating physician issued opinions that are not
consistent with the opinions of other medical experts[.]") (internal alterations and citation
omitted). Where the medical opinions and other evidence are not in complete agreement,
the Social Security Administration empowers the ALJ to resolve "[g]enuine conflicts in
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the medical evidence[.]" Veino v. Barnhart, 312 F.3d 578,588 (2d Cir. 2002) (citing
Richardson, 402 U.S. at 399). "The fact that the assessed RFC does not perfectly
correspond" with any single medical source opinion "does not require remand,
particularly where the ALJ explained, in detail, how he arrived at" his determination.
Martinov. Comm 'r ofSoc. Sec., 339 F. Supp. 3d 118, 126 (W.D.N.Y. 2018). Because the
ALJ's decision is "[b]ased on a thorough examination of ... [Plaintiffs] relevant
limitations and restrictions," Plaintiffs motion for remand on the basis that the ALJ's
mental RFC determination is not supported by substantial evidence is DENIED.
Cichocki, 729 F .3d at 178.
C.
Whether ALJ Merrill's Determinations Concerning Plaintifrs Physical
Impairments Are Supported By Substantial Evidence.
Plaintiff contends that the ALJ' s determination that her back condition is not
severe and imposes no functional limitations is not supported by substantial evidence and
reflects the ALJ's improper weighing of the medical and non-medical opinions in the
record. A "severe" impairment "significantly limits the plaintiffs ability to do basic work
activities" that are "necessary to do most jobs." Burgos v. Berryhill, 2018 WL 1182175,
at *2 (D. Conn. Mar. 7, 2018) (quoting 20 C.F.R. §§ 404.1520(c), 404.1521(b)). The
severity determination at Step Two is "intended only to screen out the very weakest
cases." McIntyre, 758 F.3d at 151 (citing Dixon v. Shala/a, 54 F.3d 1019, 1030 (2d Cir.
1995)). "[W]hen functional effects of impairments ... determined to be non-severe at
Step [Two] are, nonetheless, fully considered and factored into subsequent residual
functional capacity assessments," any error in the severity determination is harmless.
Snyder v. Colvin, 2014 WL 3107962, at *5 (N.D.N.Y. July 8, 2014).
In 2011 and 2012, Plaintiff reported back spasms associated with sitting at her
computer for twelve hours a day, five days a week. She was diagnosed with a lumbar
strain due to the ergonomics of her workplace environment, and received an injection of
Toradol. In August 2012, an x-ray revealed moderate narrowing of the disc spaces in
Plaintiffs lumbar spine, small oseteophytes, and sclerotic changes at the L5-Sl joint,
while a physical examination found that Plaintiff had a normal range of motion in her
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spine as well as normal gait, strength, muscle tone, and reflexes. She was prescribed
Tramadol and completed physical therapy to treat her back pain until November 2012,
when she was discharged upon achieving her short- and long-term goals. Plaintiffs
treating primary care physician, Dr. Brock, noted in April 2013 that Plaintiffs lower limb
radicular symptoms were much improved through physical therapy and treatment with
Tramadol and cyclobenzaprine.
In evaluating Plaintiffs physical impairments, the ALJ afforded "substantial
weight" to the opinions of non-examining state agency consultants Francis Cook, M.D.,
who opined that Plaintiffs impairments were non-severe, and Geoffrey Knisley, M.D.,
who opined that Plaintiff could perform medium work with restrictions on heavy lifting
to avoid exacerbating her back pain. (AR 500.) Although Dr. Cook and Dr. Knisley did
not review all of the medical evidence in the record, the ALJ noted that they are familiar
with the Social Security Administration's rules and regulations and found their opinions
consistent with Plaintiffs "primarily normal musculoskeletal examination" results. Id.
Consultative examiner Roger B. Kellogg, M.D. evaluated Plaintiff in April 2013
and noted that Plaintiff described herself as a "mental train wreck" but "otherwise
physically feels fine." Id. at 324. Dr. Kellogg found Plaintiff was able to bend and touch
the floor, tip from side to side, and get on and off the examining table easily. She had no
pain or pressure in her lower back and no sciatic notch tenderness. Her straight leg raises
were unremarkable and her deep tendon reflexes were normal.
Plaintiff asserts that ALJ Merrill erred in weighing three state agency opinions that
concluded Plaintiffs back impairment is non-severe. Non-examining consulting
physicians Dr. Cook and Dr. Knisely opined that Plaintiff had no severe physical
impairments, and Dr. Knisely recommended that Plaintiff could lift or carry up to fifty
pounds occasionally and up to twenty-five pounds frequently. This level of exertion is
consistent with "medium work" as defined by SSA regulations. 20 C.F .R. § 404.1567( c)
("Medium work involves lifting no more than [fifty] pounds at a time with frequent
lifting or carrying of objects weighing up to [twenty-five] pounds."). Dr. Kellogg found
no abnormalities upon examination of Plaintiffs back, noting that Plaintiff experienced
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pain "every [three] months or so if she sits too long" and "can avoid it by staying
relatively active, not sitting too long, ... walking if necessary[,]" and by taking her
prescribed medication. (AR 324.)
Plaintiff further contends that the ALJ erred in his consideration of the opinions of
Dr. Brock and G. Mark Coleman, OTR/L, who opined that Plaintiff is limited to lifting
no more than ten pounds. As a preliminary matter, Plaintiff acknowledges there are two
opinions from Dr. Brock in the record that are not entirely consistent. (See Doc. 4 at 8
n.1) (explaining that Plaintiff "focus[es] on the later opinion"). In July 2013, Dr. Brock
opined that Plaintiff could frequently lift and carry less than ten pounds, occasionally
carry ten to twenty pounds, and rarely to never carry fifty pounds. Records from
Plaintiffs December 2013 functional capacity evaluation by Mr. Coleman reflect that
Plaintiff lifted twenty pounds "but felt she could manage that amount about [once] per
hour" and carried ten pounds for fifty feet, reporting she "felt that she could manage
[fifteen] [pounds] a couple of times per day." (AR 427.) In both cases, Plaintiffs capacity
was noted to be "[l]imited by reports oflow back pain." Id. In July 2014, Dr. Brock
opined that he "concur[red]" with Mr. Coleman's proposed ten-pound lifting restriction.
Id. at 491.
In affording little weight to Mr. Coleman's opinion that Plaintiff could
occasionally lift up to ten pounds, the ALJ noted that Mr. Coleman is not an acceptable
medical source and examined Plaintiff on only one occasion. See Diaz v. Shala/a, 59 F .3d
307, 314 (2d Cir. 1995) (holding an ALJ "has the discretion to determine the appropriate
weight to accord" to a non-medical source opinion). The ALJ further considered that
although Dr. Brock is Plaintiffs treating physician, both Dr. Brock and Mr. Coleman
based their lifting limitation on Plaintiffs self-reports of pain which were inconsistent
with the conservative treatment she received and primarily normal physical examination
results. Where a treating physician's opinion is "inconsistent with the other substantial
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evidence in the case record[,]" it is not entitled to controlling weight, Estrella v.
Berryhill, 925 F.3d 90, 95 (2d Cir. 2019) (citation omitted). 4
The ALJ also considered that Plaintiff testified she could "sometimes ... lift
something quite heavy, ... [thirty] to [forty] pounds even," to spare her husband from
exerting himself and that effort would not "necessarily trigger a back attack" for Plaintiff.
Id. at 537. Although Plaintiff asserts that the ALJ took her testimony out of context, the
hearing transcript reveals that Plaintiff made no reference to "an emergency situation"
(Doc. 4 at 9) and explained that lifting does not trigger her back pain "regularly enough"
for her to conclude that she should not lift a specific amount of weight. (AR 537.) ALJ
Merrill acknowledged that Plaintiffs impairments could reasonably be expected to
produce some back pain, but determined that her reported abilities were inconsistent with
relevant considerations including her wide range of daily activities, the frequency and
duration of the pain, the course of treatment, and other evidence in the record. See 20
C.F .R. § 404.1529( c) (outlining procedure for evaluating reports of symptoms and pain
and identifying factors to be considered). "[T]he ALJ's decision not to credit [Plaintiffs]
subjective [reports] regarding [her] symptoms was appropriate" where those reports were
"not supported by the objective medical evidence or evidence regarding [her] daily
activity[.]" Lewis v. Colvin, 548 F. App'x 675, 678 (2d Cir. 2013).
ALJ Merrill's determination that Plaintiff could work at a medium level of
exertion with no additional physical limitations is thus supported by the opinions of three
physicians, as well as plaintiffs own testimony, reports of symptoms, reports of daily
activities, and normal examination results. The medical evidence supports the ALJ's
determination that Plaintiffs back pain was relatively well-controlled and imposed no
more than minimal limitations on her ability to work. The ALJ also accounted for
4
Plaintiff asserts the ALJ erred because he did not discuss the fact that Dr. Brock considered
Plaintiffs 2012 spinal x-ray in rendering his second opinion. An ALJ who gives less than
controlling weight to a treating physician opinion need only set forth good reasons for doing so
and "is not required to address every piece of evidence submitted." Brault v. Soc. Sec. Admin.,
Comm 'r, 683 F.3d 443,448 (2d Cir. 2012). In his decision, the ALJ expressly referenced the xray in question.
14
Case 2:18-cv-00094-cr Document 6 Filed 07/27/20 Page 15 of 16
Plaintiffs back pain in formulating her RFC notwithstanding his conclusion it was not a
severe impairment by limiting her to medium work "in deference to the testimony of the
claimant regarding her physical limitations." (AR 502.) As "the written determination
contains a thorough and lengthy discussion" of Plaintiffs back pain and the RFC
includes a limitation to accommodate that condition, any error in the ALJ' s Step Two
determination was harmless because his RFC finding is supported by substantial
evidence and properly concludes that Plaintiffs past relevant work does not exceed her
exertional limits. Smith v. Comm 'r ofSoc. Sec., 351 F. Supp. 3d 270,278 (W.D.N.Y.
2018) (finding harmless error where ALJ considered conditions determined to be nonsevere in subsequent analysis).
For the reasons stated above, Plaintiffs motion to reverse the Commissioner's
decision based on the ALJ' s assessment of Plaintiffs physical limitations must be
DENIED. Zabala v. Astrue, 595 FJd 402,410 (2d Cir. 2010) (affirming ALJ's decision
and noting it was "well supported" notwithstanding "some conflicting medical
evidence"); Veino, 312 F.3d at 588 (finding "it was within the province ofthe ALJ to
resolve [conflicting] evidence in the way that she did").
D.
Whether Remand for the Calculation of Benefits is Warranted.
Plaintiff points out that her action for benefits has been pending for nearly six
years and requests that her case be remanded for the calculation of benefits because the
record evidence shows she is limited to sedentary or light unskilled work, which she
contends mandates a finding that she is disabled. A remand for benefits cannot be ordered
merely because of the passage of time. See Bush v. Shala/a, 94 FJd 40, 46 (2d Cir. 1996)
("[A]bsent a finding that the claimant was actually disabled, delay alone is an insufficient
basis on which to remand for benefits."). Instead, a remand for the calculation of benefits
is only warranted where "the records provide[] persuasive evidence of total disability that
render[s] any further proceedings pointless." Williams v. Apfel, 204 FJd 48, 50 (2d Cir.
1999); see also Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990) (remanding for
calculation of benefits where there was an "infinitesimal likelihood that employment of
any kind would be available" to claimant).
15
Case 2:18-cv-00094-cr Document 6 Filed 07/27/20 Page 16 of 16
Because the ALJ's decision that Plaintiff is capable of performing her past
relevant work is supported by substantial evidence, Plaintiffs request for a remand for
the calculation of benefits must be DENIED.
CONCLUSION
For the foregoing reasons, Plaintiffs motion to reverse the decision of the
Commissioner (Doc. 4) is DENIED and the Commissioner's motion to affirm (Doc. 5) is
GRANTED.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this ,27~y of July, 2020.
~
.
Christina Reiss, District Judge
United States District Court
16
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