Opinion
1:18-CV-00931 EAW
2020-01-24
Anne Marie FILER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Taylor Christine Schubauer, William C. Bernhardi, William C. Bernhardi Law Offices, West Seneca, NY, for Plaintiff. Francis D. Tankard, Nicol Fitzhugh, Office of the General Counsel Social Security Administration, Kansas City, MO, Lauren Elizabeth Myers, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Taylor Christine Schubauer, William C. Bernhardi, William C. Bernhardi Law Offices, West Seneca, NY, for Plaintiff.
Francis D. Tankard, Nicol Fitzhugh, Office of the General Counsel Social Security Administration, Kansas City, MO, Lauren Elizabeth Myers, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, plaintiff Anne Marie Filer ("Plaintiff") brings this action pursuant to Title II 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 disability insurance benefits ("DIB"). (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. 9; Dkt. 12), and Plaintiff's reply (Dkt. 15). For the reasons discussed below, Plaintiff's motion (Dkt. 9) is denied and the Commissioner's motion (Dkt. 14) is granted.
BACKGROUND
Plaintiff protectively filed her application for DIB on July 8, 2015. (Dkt. 7 at 16, 91). In her application, Plaintiff alleged disability beginning April 30, 2015, due to right rotator cuff injury, complications arising out of replacement of both knees, depression, anxiety, hypothyroidism, and fatigue. (Id. at 81). Plaintiff's application was initially denied on October 13, 2015. (Id. at 92-97). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Lynette Gohr in Buffalo, New York, on October 18, 2017. (Id. at 36-80). On December 27, 2017, the ALJ issued an unfavorable decision. (Id. at 13-32). Plaintiff requested Appeals Council review; her request was denied on June 18, 2018, making the ALJ's determination the Commissioner's final decision. (Id. at 4-12). 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. § 404.1520(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. § 404.1520(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. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), 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. § 404.1520(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. § 404.1520(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. § 404.1520(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); see also 20 C.F.R. § 404.1560(c).
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. § 404.1520. Initially, the ALJ determined that Plaintiff meets the insured status requirements of the Act through December 13, 2021. (Dkt. 7 at 18). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since April 30, 2015, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the following severe impairments: bilateral knee osteoarthritis ; status post bilateral total knee replacements ; lumbar degenerative disc disease ; cervical degenerative disc disease ; right shoulder rotator cuff tear, status post-surgical repair; and obesity. (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of hypercholesterolemia, hypothyroidism, left shoulder bursitis and tendinosis, major depressive order, and generalized anxiety disorder were non-severe. (Id. at 19-21).
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. at 21-22). The ALJ particularly considered the requirements of Listings 1.02, 1.03, and 1.04 in reaching this conclusion. (Id. ).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except that Plaintiff:
can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. [Plaintiff] can occasionally balance, stoop, kneel, crouch, and crawl. She cannot reach overhead or perform overhead work. [Plaintiff] must occasionally use a cane for prolonged ambulation. She can sit for 60 minutes, but then [must] change position to standing for 5 minutes; however, she can remain on task while doing so.
(Id. at 22). At step four, the ALJ found that Plaintiff was capable of performing past relevant work ("PRW") as a Customer Service Representative. (Id. at 27). The ALJ relied on the testimony of a vocational expert ("VE") who testified that the Dictionary of Occupational Titles ("DOT") classified Plaintiff's PRW as Customer Service Representative (DOT #249.362-026), "which [is] sedentary exertion, semi-skilled work with a specific vocational preparation ("SVP") of 4." (Id. ). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act at any time from the alleged onset date through the date of the decision. (Id. ).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Harmful Legal Error
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner. Plaintiff argues the ALJ's decision was unsupported by substantial evidence because the ALJ failed to: (1) resolve the conflict between the VE's testimony that an individual limited to "no overhead reaching" could perform Plaintiff's PRW and information contained in the DOT showing Plaintiff's PRW requires frequent reaching; and (2) "evaluate the objective test results of the functional capacity evaluation completed by Joseph Higgins, OTL, CWA." (Dkt. 9-1 at 18-26). The Court has considered each of these arguments and, for the reasons discussed below, finds them to be without merit.
A. The ALJ's Failure to Obtain a Reasonable Explanation for the Conflict Between the VE's Testimony and the DOT was Harmless Error
Plaintiff argues the VE's testimony that an individual limited to no overhead reaching could perform Plaintiff's PRW conflicts with the DOT's description of Plaintiff's PRW as requiring frequent reaching. (Dkt. 9-1 at 19). Plaintiff cites Lockwood v. Comm'r of Soc. Sec. , 914 F.3d 87, 92-94 (2d Cir. 2019) for the proposition that where the ALJ credits VE testimony that a claimant "with overhead reaching limitations is capable of performing a job that the DOT describes as requiring ‘reaching[,]’ " an apparent conflict is created that "triggers the ALJ's duty to elicit an explanation that would justify crediting [the VE's] testimony." (Id. at 20).
At the hearing, the ALJ described the limitations set forth in the RFC that she ultimately assessed, and asked whether "a hypothetical individual [with Plaintiff's age and education] [could] perform [Plaintiff's PRW] as actually performed or generally performed in the national economy." (Dkt. 7 at 76). Upon asking for clarification, the VE confirmed that the hypothetical individual, with an RFC that includes a limitation of "no reaching overhead," could perform Plaintiff's PRW as actually performed or generally performed in the national economy. (Id. at 76-77).
The VE's testimony that Plaintiff could perform her PRW as generally performed conflicts with the DOT. According to the DOT, Plaintiff's PRW requires frequent reaching. See Dictionary of Occupational Titles 249.362-026, 1991 WL 672320. However, the RFC assessment limits Plaintiff to no overhead reaching. This conflict triggered the ALJ's affirmative duty to "elicit a reasonable explanation that would justify crediting the [VE's] testimony." Lockwood , 914 F.3d at 92. As explained by the Second Circuit:
A 2000 Social Security Administration Policy Interpretation Ruling (the "Ruling") governs the Commissioner's assessment of whether any particular job can accommodate a given claimant's physical limitations. Under the Ruling, the Commissioner "rel[ies] primarily on the [Dictionary] ... for information about the [job's] requirements" but "may also use [vocational experts] ... to resolve complex vocational issues." SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). If the Commissioner does consider the testimony of such experts, however, she must be alert to the possibility of "apparent unresolved conflict[s]" between the testimony and the Dictionary. Id. In light of this possibility, the Ruling tasks the Commissioner with "an affirmative responsibility to ask about any possible conflict," id. at *4, and to "elicit a reasonable explanation for [any such] conflict before relying on the [vocational expert's testimony]," id. at *2.
Id. (citation omitted). The ALJ here failed to satisfy her affirmative obligation to identify and resolve the apparent conflict between the DOT and the VE's testimony that Plaintiff could perform her PRW as generally performed.
However, the Court finds that this error does not necessitate remand because no conflict was created by the VE's testimony that Plaintiff could perform her PRW as actually performed. "Past relevant work is ‘either the specific job a claimant performed or the same kind of work as it is customarily performed throughout the economy.’ " Mack v. Comm'r of Soc. Sec. , No. 17-CV-924, 2019 WL 2027214, at *4 (W.D.N.Y. May 8, 2019) (citation omitted). "The regulations do not require explicit findings at step four regarding a claimant's past relevant work both as generally performed and as actually performed." Id. (citation omitted). "In other words, the claimant has the burden of showing that she cannot perform past relevant work as she actually performed it and as that work is performed generally." Id.
In determining whether Plaintiff could perform her PRW as actually performed, the ALJ did not (and could not) have relied on the DOT. The DOT "is used to evaluate jobs as they are generally performed.... The Second Circuit has noted many specific jobs differ from those jobs as they are generally performed, and an individual may identify those unique aspects without contradicting the [DOT]. Deviations from the [DOT's] description of a job as generally performed when describing a specific previous job do not actually conflict with the [DOT]." Albano v. Colvin , 99 F. Supp. 3d 355, 368 (E.D.N.Y. 2015) (quotations, citations, and alterations omitted).
"Social Security Regulations name two sources of information that may be used to define a claimant's past relevant work as actually performed: a properly completed vocational report, SSR 82-61, and the claimant's own testimony, SSR 82-41." Mack , 2019 WL 2027214, at *4 (citation omitted). In this case, Plaintiff provided a properly completed vocational report in which she indicated that her PRW required zero hours of reaching each day. (Dkt. 7 at 172). This was consistent with the VE's testimony that Plaintiff could perform her PRW as actually performed. Contrary to Plaintiff's assertion, the conflict between the DOT and the VE's testimony regarding Plaintiff's PRW as generally performed is immaterial to whether Plaintiff could perform her PRW as actually performed. Accordingly, Plaintiff did not meet her burden to show that she was unable to perform her PRW both as actually and as generally performed and, thus, remand on this basis is not warranted. See Reices-Colon v. Astrue , 523 F. App'x 796, 798 (2d Cir. 2013) (rejecting argument that ALJ erred at step four because "[a] disability claimant bears the burden of proving that she cannot return to her past relevant work, either as it is performed in the national economy, or as she actually performed it," and the record showed that the plaintiff's "argument that working as a jeweler requires years of training that she lacked is belied by her own ‘as performed’ experience"); see also Lewis v. Comm'r of Soc. Sec. , No. 3:16-CV-1267 (WBC), 2018 WL 557869, at *11 (N.D.N.Y. Jan. 16, 2018) ("[T]he ALJ erred in his determination that Plaintiff could perform the occupation as generally performed. However, any error would be harmless because Plaintiff could perform the occupation as actually performed. Because the ALJ's finding that Plaintiff could perform this past relevant work ... as actually performed is sufficient to negate a finding of disability at step four, any error in determining that Plaintiff could perform this work as generally performed is harmless error.").
B. The ALJ Did Not Err in Affording "Partial Weight" to the Opinion of Joseph Higgins, OTL, CWA
Plaintiff next argues the ALJ erred by according partial weight to the opinion of Joseph Higgins, OTL, CWA ("Higgins") because Higgins's "findings demonstrate that Plaintiff is unable to perform work on a ‘regular and continuing basis’ in the competitive economy." (Dkt. 9-1 at 22). The Court disagrees.
Higgins, an occupational therapist, is not an "acceptable medical source." See 20 C.F.R. § 404.1502(a). Nonetheless, "[t]he evaluation of an opinion from a medical source who is not an ‘acceptable medical source’ depends on the particular facts in each case." SSR 06-03p, 2006 WL 2329939. "[I]t may be appropriate to give more weight to the opinion of a medical source who is not an ‘acceptable medical source’ if he or she has seen the individual more than the treating source and has provided better supporting evidence and a better explanation for his or her opinion." Id. However, here, Higgins only examined Plaintiff once and, in completing Plaintiff's functional capacity evaluation, Higgins did not review Plaintiff's medical records. (See Dkt. 7 at 448-57). As such, Higgins's opinion was not entitled to more weight.
Plaintiff also argues the ALJ erred by failing to expressly note Higgins's observation that during his functional capacity evaluation of Plaintiff, Plaintiff got up "after 37 minutes of [the] sitting task" (Dkt. 7 at 455). (Dkt. 9-1 at 24). However, Higgins ultimately opined that Plaintiff was limited to sitting "35 [to] 40 minutes at one session for functional bench type or clerical work." (Dkt. 7 at 455). Additionally, Plaintiff testified at the hearing that she could sit for "[a]n hour or so" before needing to get up and move. (Dkt. 7 at 56). The ALJ was entitled to credit Plaintiff's testimony by "resolv[ing] conflicts in the evidence and ... weighting] all of the evidence available to make an RFC finding that is consistent with the record as a whole." Breau v. Comm'r of Soc. Sec. , No. 1:17-CV-01235 EAW, 2019 WL 989154, at *6 (W.D.N.Y. Feb. 5, 2019) (quotation omitted). Moreover, the ALJ was not required to expressly cite Higgins's objective findings. See Shari Lee Z. v. Saul , No. 5:19-CV-0268 (GTS), 2019 WL 6840134, at *4 (N.D.N.Y. Dec. 16, 2019) ("[T]he ALJ need not discuss every piece of evidence to show that it was considered."). Nonetheless, it is evident from the decision that the ALJ thoroughly considered Higgins's functional capacity evaluation. (See Dkt. 7 at 26).
Plaintiff next argues that consultative physician Dr. Hongbiao Liu's opinion was not entitled to "significant weight" because he, like Higgins, "evaluated Plaintiff only once and there [was] no indication from his report that he reviewed Plaintiff's medical records." (Dkt. 9-1 at 25). However, in his medical source statement, Dr. Liu specifically cited information from Plaintiff's past medical history, including, most recently, Plaintiff's right and left knee surgery in 2014, and right shoulder surgery in 2015. (See Dkt. 7 at 304). As such, Plaintiff's assertion is not supported by the record.
Plaintiff cites Curry v. Apfel , 209 F.3d 117, 123 (2d Cir. 2000) and argues Dr. Liu's opinion that Plaintiff was moderately limited in prolonged walking, bending, kneeling, and overhead reaching "was ‘so vague as to render it useless’ in aiding the ALJ in formulating Plaintiff's RFC finding." (Dkt. 9-1 at 25). However, courts have routinely held that " Curry does not stand for the broad proposition that a medical source opinion which uses terms like ‘mild’ or ‘moderate’ is always too vague to constitute substantial evidence" where the "examiner conducts a thorough examination and explains the basis for the opinion." Richardson v. Colvin , No. 15-CV-6276 CJS, 2016 WL 3179902, at *7 (W.D.N.Y. June 8, 2016) ; see also Richardson v. Comm'r of Soc. Sec. , No. 1:16-CV-00658-MAT 2018 WL 3633199, at *3 (W.D.N.Y. July 30, 2018) (although the doctor's source statement was "relatively brief," her opinion was "not impermissibly vague" where "she performed a thorough and complete examination of Plaintiff"); Caci v. Colvin , No. 5:14-CV-01407, 2015 WL 9997202, at *10 (N.D.N.Y. Dec. 22, 2015) (holding Curry inapplicable where doctor's thorough examination supported his opinion that the plaintiff was moderately limited in standing, walking, and climbing). Upon examining Plaintiff, Dr. Liu observed: "[c]ervical spine shows full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally"; full range of motion of elbows, forearms, wrists, hips, and ankles bilaterally; stable and nontender joints; no redness, heat, swelling, or effusion. (Dkt. 7 at 306). Dr. Liu's notes also indicate that he reviewed Plaintiff's past medical history. (Id. at 305). Dr. Liu's thorough examination, as evidenced by his detailed findings, provided a sufficient basis for his opinion. Accordingly, Dr. Liu's opinion provided substantial evidence for the ALJ's conclusions. See 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)).
The ALJ also properly afforded Dr. Liu's opinion's significant weight on the basis that it was "consistent with the record as a whole." (Dkt. 7 at 26). Plaintiff's own testimony was consistent with limitations outlined by Dr. Liu. Plaintiff testified that she: performed her own personal care; prepared simple meals; completed household chores, including laundry, dishes, sweeping, and cleaning the bathroom; shopped in box stores; went out to eat; went out to the movies, but infrequently; socialized with family twice a week, and with friends once a month; did some container gardening; and was the primary caregiver for her two dogs. (Id. at 51-57). These statements are inconsistent with Higgins's opinion that Plaintiff, at one time without interruption, could only sit for 35 to 40 minutes, stand for 15 minutes, and walk for 10 minutes. See Carter v. Astrue , No. 11 Civ. 2517 (RA) (HBP), 2013 WL 1499414, at *17 (S.D.N.Y. Jan. 22, 2013) (finding plaintiff's testimony that he could only sit or stand for 15-20 minutes and could only lift the weight of a pillow was inconsistent with daily activities like cooking, cleaning, and attending church services, and therefore the ALJ properly discredited this testimony).
The ALJ also determined that Plaintiff's treatment was inconsistent with her allegations of disability. Specifically, the ALJ cited Dr. Edward Simmons's opinion that Plaintiff "did not appear to reach the threshold for requiring surgery." (Dkt. 7 at 25). Additionally, the ALJ noted that in April 2016, Plaintiff declined Dr. Lisa Daye's offer of an ultrasound evaluation with a possible injection because Plaintiff did not believe her current pain level warranted an injection and that "too much was going on at the time due to her husband's end stage liver disease." (Id. ). Further, the ALJ noted that although Plaintiff "alleged a severely limited ability to sit, stand, walk, lift, and carry," her "orthopedic surgeon recommended [that Plaintiff] remain active and suggested swimming, biking, and walking for exercise." (Id. ). Accordingly, there was substantial evidence for the ALJ to conclude that Plaintiff's allegations of disability were not consistent with the record in this case. See Robinson v. Comm'r of Soc. Sec. , No. 1:16-CV-00648 (MAT), 2018 WL 3583236, at *6 (W.D.N.Y. July 26, 2018) (doctor's conservative treatment and recommendation that plaintiff engage in extensive exercise is incompatible with the plaintiff's allegations of disability).
Ultimately, it is Plaintiff's burden to prove a more restrictive RFC than the RFC assessed by the ALJ. See Smith v. Berryhill , 740 F. App'x 721, 726 (2d Cir. 2018). The ALJ reasonably concluded that Plaintiff failed to meet her burden in this case. In formulating the RFC assessment, the ALJ considered the objective medical evidence, Plaintiff's activities of daily living, treatment history, allegations, and the opinions of treating and non-treating physicians. As such, the RFC assessment in this case is consistent with the record and is supported by substantial evidence. Accordingly, neither reversal nor remand is warranted. CONCLUSION
Plaintiff raises a new argument in her reply brief, arguing that the ALJ's recitation of the evidence mischaracterized the record. (Dkt. 15 at 3). However, it is generally "inappropriate to raise new arguments in a reply brief." Shanks v. Vill. of Catskill Bd. of Trustees , 653 F. Supp. 2d 158, 165 n.6 (N.D.N.Y. 2009). Nonetheless, the Court has reviewed the record and finds the ALJ did not mischaracterize the record and that her conclusion was supported by substantial evidence, as set forth above.
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 12) is granted and Plaintiff's motion for judgment on the pleadings (Dkt. 9) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.