Opinion
1:19-CV-01552 EAW
2021-02-26
TAMMY C.-J., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Corinne Marie Manfredi, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Dennis J. Canning, Joletta Marie Friesen, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
Corinne Marie Manfredi, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Dennis J. Canning, Joletta Marie Friesen, Office of the General Counsel Social Security Administration, Kansas City, MO, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Tammy C.-J. ("Plaintiff") brings this action pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her application for supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 8; Dkt. 10), and Plaintiff's reply (Dkt. 12). For the reasons discussed below, the Commissioner's motion (Dkt. 10) is granted and Plaintiff's motion (Dkt. 8) is denied.
BACKGROUND
Plaintiff protectively filed her application for SSI on July 26, 2016. (Dkt. 6 at 24, 103). In her application, Plaintiff alleged disability beginning February 22, 2013, due to bipolar disorder, depression, and digestive disorder. (Id. at 24, 93-94). Plaintiff's application was initially denied on September 23, 2016. (Id. at 24, 105-16). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Mary Mattimore in Buffalo, New York, on September 24, 2018. (Id. at 24, 40-92). On November 5, 2018, the ALJ issued an unfavorable decision. (Id. at 21-35). Plaintiff requested Appeals Council review; her request was denied on September 18, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 5-7). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions 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) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Parker v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since July 26, 2016, the application date. (Dkt. 6 at 26).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of bipolar disorder, depression, and generalized anxiety disorder. (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of alcohol use disorder, heroin dependence, status post laparotomy for upper gastrointestinal bleeding, digestive disorder, and left shoulder injury were non-severe. (Id. at 26-27). With respect to Plaintiff's history of left anterior cruciate ligament repair, the ALJ concluded that this was not medically determinable impairment. (Id. at 27).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. ). The ALJ particularly considered the criteria of Listings 12.04 and 12.06 in reaching her conclusion. (Id. at 27-29).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform medium work as defined in 20 C.F.R. § 416.967(c), except:
she can occasionally stoop and kneel; can perform simple, routine work and make simple workplace decisions not at a production rate pace (assembly line); can sustain attention and concentration for 2 hour blocks of time; can tolerate minimal changes in workplace processes and settings; and can have occasional interaction with supervisors, coworkers, and the public.
(Id. at 29). At step four, the ALJ found that Plaintiff has no past relevant work. (Id. at 34).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of marker, tumble operator, and linen room attendant. (Id. at 34-35). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 35).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ failed to properly evaluate and account for Plaintiff's physical and exertional impairments, and (2) the RFC is based on the ALJ's lay judgment, and is not supported by substantial evidence. (Dkt. 8-1 at 1, 11-20). The Court has considered each of these arguments and, for the reasons discussed below, finds them without merit.
A. Consideration of Plaintiff's Physical Impairments
Plaintiff's first argument is that the ALJ failed to properly evaluate and account for Plaintiff's physical and exertional impairments. (Dkt. 8-1 at 11-14). Plaintiff points specifically to the ALJ's determination at step two of the sequential analysis that her left shoulder injury is a non-severe impairment, and there are no medical opinions in the record addressing that injury. (Id. at 12-13).
At step two of the disability analysis, the ALJ determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. 20 C.F.R. § 416.920(c). "The following are examples of ‘basic work activities’: ‘walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling ... seeing, hearing, and speaking ... [u]nderstanding, carrying out, and remembering simple instructions ... [u]se of judgment ... [r]esponding appropriately to supervision, co-workers and usual work situations.’ " Taylor v. Astrue , 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citations omitted), adopted , 32 F. Supp. 3d 253 (N.D.N.Y. 2012).
"The claimant bears the burden of presenting evidence establishing severity." Id. Step two's "severity" requirement is de minimis and is meant only to screen out the weakest of claims. Dixon v. Shalala , 54 F.3d 1019, 1030 (2d Cir. 1995). However, despite this lenient standard, the " ‘mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment’ is not, by itself, sufficient to render a condition ‘severe.’ " Taylor , 32 F. Supp. 3d at 265 (quoting Coleman v. Shalala , 895 F. Supp. 50, 53 (S.D.N.Y. 1995) ). Rather, "to be considered severe, an impairment or combination of impairments must cause ‘more than minimal limitations in [a claimant's] ability to perform work-related functions.’ " Windom v. Berryhill , No. 6:17-cv-06720-MAT, 2018 WL 4960491, at *3 (W.D.N.Y. Oct. 14, 2018) (quoting Donahue v. Colvin , No. 6:17-CV-06838(MAT), 2018 WL 2354986, at *5 (W.D.N.Y. May 24, 2018) ) (alteration in original). Further, and as significant with regard to this case, a severe impairment must persist for at least twelve months. See 42 U.S.C. § 423(d)(1)(A) (disability involves 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 12 months.").
The ALJ discussed Plaintiff's left shoulder injury at step two of the sequential analysis and explained, in detail, why he found it to be a non-severe impairment:
The claimant also testified that she suffered an injury on her left shoulder. In April 2017, the claimant reported a 3-week history of shoulder pain, and on exam, the claimant showed tenderness, reduced strength, and reduced range of motion in the left shoulder with positive impingement testing. However, the record fails to document an[y] continued treatment for the claimant's left shoulder, and at ... primary care visits in ... October [and] September 2017, the claimant made no mention of shoulder pain or symptoms. In fact, she denied musculoskeletal or neurological symptoms at the time, and on exam, she exhibited full range of motion and normal strength in the upper extremities. The claimant also reported in mid-2017 that her Pilates classes w[ere] helping her shoulder pain "considerably." Therefore, there is no evidence of a left shoulder disorder causing more than minimal work-related limitations for a period of at least 12-months and the undersigned finds this condition to be nonsevere.
(Dkt. 6 at 27 (internal citations omitted)).
In Plaintiff's motion papers, she points to evidence from April 2017, May 2017, and June 2017, in support of her claim that her left shoulder injury qualifies as a severe impairment (Dkt. 8-1 at 11-12); however, this evidence supports the ALJ's conclusion that although Plaintiff experienced some limitations due to shoulder pain for a period after her injury, there is no evidence in the record that those limitations were continuing and persisted for at least 12 months. Plaintiff also offers that she "testified at her disability hearing, held on September 24, 2018, that due to her rotator cuff injury, she had been going to physical therapy and a medi[cally] oriented gym." (Id. at 12). The Court has reviewed the transcript from Plaintiff's administrative hearing, where Plaintiff's testimony focused mostly on her mental impairments. (Dkt. 6 at 53-83). At the outset of the hearing, Plaintiff's attorney stated her severe impairments included bipolar disorder, depressive disorder, anxiety, osteoarthrosis, and degenerative joint disease. (Id. at 42-43). When prompted, Plaintiff noted that she had sustained an injury to her shoulder, for which she received therapy and attended a "Medically Oriented Gym" (id. at 47), but then later testified that she did therapy on her knee and leg at the gym (id. at 48), and explained that she also went to the gym for mental health reasons (id. at 69-70, 74). While Plaintiff testified that she was not able to bend and kneel properly due to a lower-body injury (id. at 47-48), she did not testify to any limitations for using her shoulder. Accordingly, the Court does not find that Plaintiff's testimony at the administrative hearing supports that her left-shoulder injury continued to be "severe" through November 2018, as Plaintiff suggests in her papers.
As explained by the ALJ, the medical record does not support that Plaintiff's left shoulder injury caused more than minimal limitations in her ability to perform work-related functional limitations for 12 months. While the record reflects that Plaintiff initially reported worsening pain to her primary care physician on April 28, 2017 in the weeks after she fell, and received physical therapy (id. at 452-53, 613), at her next appointment with her primary care physician on July 14, 2017, Plaintiff's main complaint was "bilateral leg swelling as well as her legs feeling heavy and achy," and a physical examination was normal (id. at 456). By September 2017, Plaintiff did not report any continuing shoulder pain to her primary care physician, and her physical examinations were normal, with full range of motion and normal strength in her upper extremities (id. at 458-66). Accordingly, Plaintiff has failed identify evidence supporting that her left shoulder injury qualifies as a severe impairment, and the ALJ did not err in concluding that it was non-severe.
Plaintiff contends that, even if the ALJ found that her left shoulder injury did not qualify as a severe impairment, he still should have accounted for it when assessing the RFC. (Dkt. 8-1 at 13). As further explained below, the assessed RFC accounts for Plaintiff's physical limitations by limiting her to medium work, and it accounts for the exertional limitations identified by Plaintiff at her administrative hearing. (See, e.g., Dkt. 6 at 47 (in response to question by ALJ if she had any other exertional impairments, Plaintiff testifying that she "can't bend or kneel properly")). Accordingly, remand is not required on this basis.
B. Assessment of the Physical RFC
Plaintiff's second and final argument is that the ALJ erred in assessing the RFC. (Dkt. 8-1 at 14-20). Plaintiff focuses specifically on the ALJ's assessment of the physical RFC requiring her to perform "medium work" with occasional stooping and kneeling, which Plaintiff claims is not supported by any evidence in the record, including the opinion offered by Samuel Balderman, M.D., the consultative examiner. (Id. at 15). Plaintiff contends that Dr. Balderman's opinion is "undoubtedly vague," as it does not address "a single specific physical function, and is nothing more than a blanket statement based on a one-time brief examination of Plaintiff." (Id. at 15-16). Plaintiff further contends that the ALJ should have re-contacted Dr. Balderman to clarify his opinion, and that his opinion is stale, given he examined Plaintiff before she sustained her shoulder injury. (Id. at 16-18).
In deciding a disability claim, an ALJ is tasked with "weigh[ing] 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). An ALJ's conclusion need not "perfectly correspond with any of the opinions of medical sources cited in his decision." Id. However, an ALJ is not a medical professional, and "is not qualified to assess a claimant's RFC on the basis of bare medical findings." Ortiz v. Colvin , 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). In other words:
An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may not substitute his own judgment for competent medical opinion.... This rule is most often employed in the context of the RFC determination when the claimant argues either that the RFC is not supported by substantial evidence or that the ALJ has erred by failing to develop the record with a medical opinion on the RFC.
Quinto v. Berryhill , No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (citations omitted). "[A]s a result[,] an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence." Dennis v. Colvin , 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation omitted).
The physical RFC requires Plaintiff to perform medium work, with the additional limitations that Plaintiff can occasionally stoop and kneel. (Dkt. 6 at 29). In reaching the RFC, the ALJ explained that he considered the opinion evidence offered by Dr. Balderman. (Id. at 33). Dr. Balderman examined Plaintiff on September 15, 2016. (Id. at 367-70). Plaintiff's main medical problem was upper GI bleeding. (Id. at 367). Her physical examination was normal, with the exception that her squat was "50% of full." (Id. at 368-69). As a result of his exam, Dr. Balderman found that Plaintiff had "mild limitations sustaining physical activities due to deconditioning." (Id. at 369). The ALJ gave Dr. Balderman's opinion "significant weight," based on his knowledge of the regulations and that he personally examined Plaintiff, and because the opinion was consistent with the record as a whole, "including the claimant's conservative treatment history, lack of continued gastrointestinal, musculoskeletal, or neurological complaints, and generally normal physical examinations aside during treatment for acute injuries." (Id. at 33). The ALJ further clarified that he accommodated Plaintiff's reports of pain by limiting her to medium work. (Id. ).
The ALJ's assessment of Plaintiff's physical RFC is supported by substantial evidence. Although Dr. Balderman examined Plaintiff on only one occasion, it is well-settled that an ALJ may rely on the opinion of a consultative examiner in assessing the RFC. See Healy v. Comm'r of Soc. Sec. , No. 1:18-CV-00624 EAW, 2020 WL 1428931, at *4 (W.D.N.Y. Mar. 24, 2020) ; see also Bona v. Comm'r of Soc. Sec. , No. 1:15-CV-00658 EAW, 2016 WL 4017336, at *11 (W.D.N.Y. July 22, 2016) ("It is well settled that an ALJ is entitled to rely upon the opinions of consultative examiners, and such written reports can constitute substantial evidence." (quotation omitted)). Additionally, the limitations assessed by Dr. Balderman—that Plaintiff had mild limitations sustaining physical activities—is consistent with an RFC requiring medium work. See Mark H. v. Comm'r of Soc. Sec. , No. 5:18-CV-1347 (ATB), 2020 WL 1434115, at *7 (N.D.N.Y. Mar. 23, 2020) (medical opinions that a claimant has no physical limitations or mild physical limitations support an RFC for medium work (collecting cases)); see also Rojas v. Comm'r of Soc. Sec. , No. 15-CV-1080 (RRM), 2017 WL 943931, at *8 (E.D.N.Y. Mar. 9, 2017) (plaintiff's "treatment notes in the record showed normal or mild physical limitations, consistent with an ability to perform a range of medium work."). Dr. Balderman's opinion—that Plaintiff had "mild" limitations is not vague; rather, it reflects that, based on an in-person examination of Plaintiff, he concluded that she did not have any serious physical limitations. See Annette M. v. Comm'r of Soc. Sec. , No. 19-CV-6845S, 2021 WL 248012, at *4 (W.D.N.Y. Jan. 26, 2021) (opinion that the plaintiff has "mild to moderate" limitations is not vague, particularly where conclusions are "well supported by an extensive examination" or "rendered ‘more concrete’ by other facts and evidence in the record"). The more specific exertional limitations in the RFC, including that Plaintiff is limited to occasional stooping and kneeling, is consistent with Dr. Balderman's finding that Plaintiff could squat "50% of full" (Dkt. 6 at 368), as well as Plaintiff's own hearing testimony that her exertional limitations included that she "can't bend or kneel properly ... [a]nd [her] left leg does have atrophy because of [it]" (id. at 47-48). Plaintiff points to no medical opinion or evidence in record that she requires greater physical limitations than those assessed in the RFC.
Finally, Dr. Balderman's opinion is not stale. While a medical opinion may be stale "if it does not account for the claimant's deteriorating condition," it is not necessarily stale based on its age. Biro v. Comm'r of Soc. Sec. , 335 F. Supp. 3d 464, 470 (W.D.N.Y. 2018). As explained above, Plaintiff's physical condition is not "deteriorating," and she has failed to demonstrate that her shoulder injury amounted to a severe impairment. Rather, the record reflects that Plaintiff sustained an acute shoulder injury, the effects of which resolved within a few months. Notably, the results of Plaintiff's physical examinations from September and October 2017, which occurred after Plaintiff fell and injured her shoulder, are markedly similar to the results of the physical examination performed by Dr. Balderman. Accordingly, the ALJ was not required to obtain additional opinion evidence, and remand is not required on this basis.
In sum, Plaintiff raises several arguments challenging the ALJ's assessment of the physical RFC. However, it is clear from the written determination that the ALJ, after considering all the evidence in the record, including the opinion evidence, Plaintiff's own testimony, and the medical records, assessed a physical RFC that is well-supported by the record.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 10) is granted and Plaintiff's motion for judgment on the pleadings (Dkt. 8) is denied.
SO ORDERED.