Opinion
1:18-CV-00547 EAW
2019-09-16
Patti Elaine KELLER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Taylor Christine Schubauer, William C. Bernhardi Law Offices, William C. Bernhardi, West Seneca, NY, for Plaintiff. Elizabeth Rothstein, Social Security Administration Office of General Counsel, New York, NY, Richard W. Pruett, Laura Ridgell Boltz, Office of the General Counsel Social Security Administration, Denver, CO, for Defendant.
Taylor Christine Schubauer, William C. Bernhardi Law Offices, William C. Bernhardi, West Seneca, NY, for Plaintiff.
Elizabeth Rothstein, Social Security Administration Office of General Counsel, New York, NY, Richard W. Pruett, Laura Ridgell Boltz, Office of the General Counsel Social Security Administration, Denver, CO, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Patti Elaine Keller ("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 applications for disability insurance benefits ("DIB") and disabled widow's benefits ("DWB"). (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. 14). For the reasons discussed below, Plaintiff's motion (Dkt. 9) is denied and the Commissioner's motion (Dkt. 12) is granted. BACKGROUND
Plaintiff protectively filed her applications for DIB and DWB on January 20, 2015. (Dkt. 8 at 20). In her applications, Plaintiff alleged disability beginning October 6, 2014, due to "spinal cord injury due to benign tumor and surgery," fibromyalgia, chronic bowel problems, accelerated heart rate, overactive bladder, "GURD," chronic colitis, and depression. (Id. at 98-105). Plaintiff's applications were initially denied on June 9, 2015. (Id. at 48-56). At Plaintiff's request, a hearing was held on July 31, 2017, in Buffalo, New York before administrative law judge ("ALJ") Sharon Seeley. (Id. at 38-73; 106-107). At the hearing, Plaintiff request a closed period of disability from October 6, 2014, to June 23, 2016. (Id. at 20). On October 10, 2017, the ALJ issued an unfavorable decision. (Id. at 20-37). Plaintiff requested Appeals Council review; her request was denied on March 19, 2018, making the ALJ's determination the Commissioner's final decision. (Id. at 6-11). 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 Bowen 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); see also 20 C.F.R. § 404.1560(c).
A claim for DWB requires a claimant to satisfy additional criteria, as well as to show disability. In particular, to prevail on a claim for DWB, a claimant must show the following: "(1) she is the widow of a wage earner who died fully insured; (2) she is at least 50, but less than 60 years old; (3) she is disabled; and (4) her disability commenced within seven years of the month in which the wage earner died." Miller v. Comm'r of Soc. Sec. Admin. , 988 F. Supp. 2d 347, 357 (E.D.N.Y. 2013).
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. Initially, the ALJ determined that Plaintiff meets the insured status requirements of the Act through December 31, 2020. (Dkt. 8 at 22). The ALJ further noted that it had previously been determined that Plaintiff "met the non-disability requirements for disabled widow's benefits set forth in Section 202(e) of the Social Security Act," and that the prescribed period for Plaintiff's DWB claim ended on May 31, 2016. (Id. at 23).
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity between October 6, 2014, and June 23, 2016, the requested closed period of disability. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of "thoracic intramedullary spinal cord tumor status post T2-3 laminectomy, resection of tumor, and T2-T3 laminoplasty." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of fibromyalgia, chronic bowel problems, accelerated heart rate, dizziness, overactive bladder, hypothyroidism, sensorineural hearing loss, anxiety, and depression were non-severe. (Id. at 23-25).
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 25-26). The ALJ particularly considered the criteria of Listings 1.04 and 11.08 in reaching her conclusion. (Id. at 26). Before proceeding to step four, the ALJ determined that between October 6, 2014, and June 23, 2016, Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the following additional limitations:
[Plaintiff] could perform work that would allow her to alternate after 30 minutes standing to sitting for 10 minutes and after one hour sitting to standing for 10 minutes (while remaining on tasks). She needed to use a single cane when ambulating. She could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs, but never climb ladders, ropes or scaffolds. She could not operate foot controls or perform work that required driving a motor vehicle as an intrinsic part of the job. Finally, [Plaintiff] could have had no exposure to hazards, such as unprotected heights or moving machinery.
(Id. ). At step four, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, during the requested closed period, Plaintiff was capable of performing her past relevant work as an accounting clerk. (Id. at 30). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act during the requested closed period of disability. (Id. at 31).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to reverse the Commissioner's decision and "remand solely for the calculation and payment of benefits, or, alternatively, for further administrative proceedings[.]" (Dkt. 9-1 at 23). Plaintiff makes the following three arguments in support of this request: (1) the ALJ failed to develop the record and reached an RFC finding unsupported by substantial evidence; (2) the ALJ erred in concluding that Plaintiff's spinal cord condition did not meet or medically equal the criteria of Listing 11.08; and (3) the hypothetical questions posed to the VE did not incorporate all of Plaintiff's limitations. (See Dkt. 9-1). The Court has considered each of these arguments and, for the reasons discussed below, finds them to be without merit.
A. The ALJ's RFC Finding
Plaintiff contends that the ALJ's RFC finding in this case was unsupported by substantial evidence, because "[f]he record contains absolutely no opinions concerning Plaintiff's functional limitations from any consultative examiners, treating sources, or other medical experts." (Dkt. 9-1 at 16). To place this argument in context, it is necessary to briefly summarize Plaintiff's medical history during the requested closed period of disability.
The evidence of record shows that on October 6, 2014, Plaintiff underwent surgery to remove a benign tumor from her spine. (Dkt. 8 at 371-73). As the ALJ noted in her decision, in the immediate aftermath of this surgery, Plaintiff had "significant difficulties with ambulation, daily activities, and uncontrolled symptoms[.]" (Id. at 29). She underwent a period of inpatient rehabilitation and was required to use a walker for several months. (See id. at 702, 706). She further fell and broke her foot in February 2015, but was released from care for this injury in March 2015. (See id. at 560-61, 615). A spinal MRI taken on March 16, 2015, was stable. (Id. at 707).
Plaintiff's condition steadily improved following her surgery. By April 21, 2015 (just over six months after her surgery), her treating neurologist, Dr. Luisa Rojas of the Dent Neurological Institute ("Dent"), noted her ongoing improvement. (Id. at 615). Plaintiff had progressed to walking with a cane, and had only mild weakness in the right iliopsoas of her lower extremity, with full strength in all other muscle groups. (Id. at 616-17). Plaintiff was still having "significant gait difficulties," and Dr. Rojas recommended that she continue to abstain from driving and working, as well as continuing with physical therapy. (Id. at 617).
Plaintiff also followed up with her treating neurosurgeon, Dr. Michael Stoffman, on April 7, 2015. (Id. at 708-09). Dr. Stoffman noted a "dramatic improvement" in Plaintiff, who reported she had made "great progress" towards regaining strength in her lower extremities and that she was using only a cane for support. (Id. ). On physical examination, Plaintiff had full strength in her upper and lower extremities, proximally and distally. (Id. at 709). Dr. Stoffman recommended continued physical therapy. (Id. ).
On July 28, 2015, Plaintiff reported additional improvement to Dr. Rojas. (Id. at 786-89). Plaintiff continued to use a cane, and had mild residual weakness in her right hip and knee, as well as decreased pinprick sensation in her left lower extremity. (Id. ). She could walk on her heels and toes but could not tandem walk. (Id. at 788). Dr. Rojas again recommended that Plaintiff remain out of work because of her issues with gait. (Id. at 789).
Plaintiff saw treating rheumatologist Dr. Joseph Grisanti for a yearly follow-up on August 12, 2015, and had a completely unremarkable physical exam. (Id. at 719-21). She exhibited full strength and range of motion in all her extremities, with no significant muscle atrophy. (Id. at 720-21). She further had normal gait and normal vibratory sensation in both lower extremities. (Id. ).
An MRI taken in September 2015 demonstrated stable findings without evidence of recurrence or residual tumor. (Id. at 714). On October 6, 2015 (one year from her surgery), Plaintiff had a follow-up appointment at Dr. Stoffman's office. (Id at 711-13). Plaintiff had full strength in her upper and lower extremities and was ambulating with a straight cane. (Id. at 712). She reported being able to walk without any assistive device at home and denied any significant pain. (Id. at 711). She was continuing to experience patchy areas of numbness in her chest and lower extremities, and felt that she lacked endurance. (Id. ). Dr. Stoffman opined that she was doing "remarkably well," and instructed her to follow up in one year. (Id. at 712).
Plaintiff treated with Dr. Rojas on November 17, 2015, and reported "continuous improvement in her gait and lower extremity weakness." (Id. at 783). Plaintiff had mild (4+/5) weakness in her right iliopsoas, but full strength in all other muscle groups. (Id. at 785). She had a "mildly spastic gait," but was able to walk without a cane. (Id. ). Unlike on her previous visits, Dr. Rojas did not recommend that Plaintiff continue to abstain from work.
Plaintiff began to experience some issues with dizziness in November 2015. (Id. at 783-85). A vestibular test study battery in January 2016 was normal. (Id. at 742). By February 2016, after her medication was changed, Plaintiff reported a "significant decrease" in her dizziness symptoms (id. at 753) and by May 2016, she had experienced "almost complete resolution of her dizziness symptoms." (Id. at 745)
Plaintiff had issues with increased numbness in her left leg in the spring of 2016. (Id. at 749-50). She continued to be able to walk without a cane. (Id. at 751). On June 15, 2016, Plaintiff was seen at Dent. (Id. at 741-43). She denied any dizziness, and her physical examination was largely normal, though she did have mild weakness of her right iliopsoas and decreased pinprick sensation in her left leg. (Id. at 743). She had spastic gait, but was able to walk without a cane. (Id. ).
Based on this medical history, the Court cannot find that the ALJ erred in concluding that Plaintiff was not disabled during the closed period from October 6, 2014, to June 23, 2016. "A closed period of disability is applicable to instances where a claimant is found disabled for a finite period of time, albeit a continuous period of not less than 12 months, following the date of the claim." Rosado v. Berryhill , No. 15-CV-00717-LGF, 2018 WL 618103, at *5 (W.D.N.Y. Jan. 30, 2018) (quotation omitted and emphasis in original). In this case, the ALJ concluded that "while [Plaintiff] had significant functional difficulties in late 2014 and early 2015, these improved significantly and she regained her capacity for sedentary work and ambulation with a cane in less than one year." (Dkt. 8 at 30). This finding is amply supported by the medical evidence of record. It is undisputed that Plaintiff was severely limited immediately following her spinal surgery in October 2014. However, by August 12, 2015—approximately ten months after her surgery—Dr. Grisanti's thorough physical examination revealed no significant physical abnormalities, including normal gait and station, and full strength and range of motion in all her extremities. (Dkt. 8 at 719-21). Indeed, Dr. Grisanti indicated that he believed Plaintiff needed to be more active, and encouraged her to "engage[ ] in a regular exercise program." (Id. ). This improvement in Plaintiff's condition was confirmed by Dr. Stoffman on October 6, 2015, one year from Plaintiff's surgery. Again, Plaintiff had full strength in her upper and lower extremities, reported being able to walk without any assistive device at home, and denied any significant pain. (Id. at 711-12). Thereafter, Plaintiff had only mild issues with dizziness and numbness, which were quickly resolved. On this record, the ALJ was well within her discretion to conclude that while Plaintiff suffered potentially disabling limitations in the immediate aftermath of her spinal surgery, those limitations did not last for the required twelve-month period to warrant finding a closed period of disability.
The Court is further unpersuaded by Plaintiff's argument that the lack of a function-by-function assessment from a physician created a gap in the record that the ALJ failed to fill. The Second Circuit has rejected the argument that remand is required due to a lack of medical opinions when "the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity." Tankisi v. Comm'r of Soc. Sec. , 521 F. App'x 29, 34 (2d Cir. 2013). Moreover, "under certain circumstances, particularly where the medical evidence shows relatively minor physical impairment, an ALJ permissibly can render a common-sense judgment about functional capacity even without a physician's assessment." Glena v. Colvin , No. 1:15-CV-00510(MAT), 2018 WL 739096, at *4 (W.D.N.Y. Feb. 6, 2018) (quotation omitted); see Mack v. Comm'r of Soc. Sec. , No. 1:18-CV-00265-MAT, 2019 WL 1994279, at *4 (W.D.N.Y. May 6, 2019) (explaining that where "the treatment notes and recommendations provided by Plaintiff's treatment providers regarding his physical impairments do not reflect disabling functional limitations ... it was not impermissible for the ALJ to render a common-sense judgment regarding Plaintiff's physical functional limitations"). Here, as discussed in detail above, the medical evidence of record demonstrates that by August 2015, Plaintiffs physical condition was largely normal, with only mild ongoing complications from her spinal surgery. Under these circumstances, it was not reversible error for the ALJ to make a common-sense assessment of Plaintiff's physical RFC. Moreover, the specific limitations set forth in the ALJ's RFC finding are fully consistent with the medical evidence of record, reflecting Plaintiff's ongoing mild issues with gait and strength in her hips and legs, as well as her dizziness.
Because the record was sufficient to allow the ALJ to assess Plaintiff's RFC, the ALJ was not required to further develop the record by seeking out a physician's function-by-function assessment of Plaintiff. See Roscoe v. Berryhill , No. 17-CV-6502P, 2018 WL 4519880, at *7 (W.D.N.Y. Sept. 21, 2018) (explaining that ALJ does not violate duty to develop the record where the record "provides sufficient information for the ALJ to render a common-sense RFC determination in the absence of a medical opinion assessing her ... work-related limitations"). The Court accordingly rejects Plaintiff's argument that remand is required on this basis.
B. Evaluation of Listing 11.08
Plaintiff also argues that the ALJ erred in her consideration of Listing 11.08, which relates to disorders of the spinal cord. Specifically, Plaintiff contends that she met the requirements of Listing 11.08 during the requested closed period of disability, because she required the use of a walker. (Dkt. 9-1 at 18-19). Plaintiff further claims that there are "internal inconsistencies in the ALJ decision" regarding her use of a walker "because at one point it noted that Plaintiff had used a walker until October 2015 and at other portions it noted that she only used a walker until April 2015." (Id. at 19).
Plaintiff's argument regarding Listing 11.08 relies upon a misreading of the ALJ's decision. At no time in her decision did the ALJ state that Plaintiff had used a walker until October 2015. Instead, the ALJ noted at one point that Plaintiff had testified that while she initially relied on a walker, "[b]y October 2015, she had switched to a cane." (Dkt. 8 at 26). This did not represent a finding by the ALJ, but was a summary of Plaintiff's hearing testimony. (Cf. id. at 52-53 (Plaintiff testified at hearing that she "believe[d]" she was walking with a cane "by October 2015")). Moreover, the phrase "by October 2015" is not, as Plaintiff appears to contend, synonymous with the phrase "in October 2015." In other words, without more, the phrase "by October 2015" simply means at some point prior to October 2015.
Further, as the ALJ concluded in her decision, the medical evidence of record demonstrates that Plaintiff was using a cane by the spring of 2015. For example, on April 21, 2015, Dr. Rojas expressly noted that Plaintiff was "no longer having to use a walker," but was instead using a cane. (Dkt. 8 at 615). Similarly, on April 7, 2015, Dr. Stoffman recorded that Plaintiff had "been able to convert with using a walker to now simply using a cane for gait stabilization." (Id. at 708).
As Plaintiff notes, there is a reference in Dr. Stoffman's treatment note from October 6, 2015, to Plaintiff using a walker. (See id. at 711). However, this appears to be a typographic error, as that same treatment note later indicates that Plaintiff "ambulates with use of a straight cane" and is able to walk at home without the use of any assistive device. (Id. at 711-12). Moreover, to the extent this solitary reference to use of a walker in October 2015 created a conflict in the medical record, that conflict was a matter for the ALJ to resolve. See Martes v. Comm'r of Soc. Sec. , 344 F. Supp. 3d 750, 760 (S.D.N.Y. 2018) ("It is within an ALJ's discretion to resolve genuine conflicts in the medical evidence." (quotation omitted)). In sum, the Court finds the ALJ's conclusion that Plaintiff had ceased using a walker by April 2015 amply supported by the evidence of record. Accordingly, the ALJ did not err in concluding that Plaintiff did not meet the requirements of Listing 11.08, because she did not use a walker for the necessary twelve-month period. See Crotty v. Comm'r of Soc. Sec. , No. 17-CV-97-FPG, 2018 WL 5076923, at *6 (W.D.N.Y. Oct. 18, 2018) (explaining that to establish disability under a Listing, a claimant must satisfy the Listing's criteria and the durational requirement); see also 20 C.F.R. § 404.1509 ("Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months. We call this the duration requirement.").
C. Hypothetical Questions to VE
Finally, Plaintiff argues that the VE's testimony was not substantial evidence for the ALJ's conclusion at step four, because the ALJ's hypothetical questions did not incorporate all of Plaintiffs limitations. (Dkt. 9-1 at 20-21). This argument depends entirely on Plaintiff's contention that the ALJ incorrectly found that she stopped using a walker in April 2015. (See id. ). However, as noted above, the ALJ's conclusion regarding Plaintiff's use of a walker was supported by substantial evidence. Accordingly, Plaintiff's argument regarding the hypothetical questions posed to the VE also fails. See Vazquez v. Colvin , No. 5:15-CV-485, 2016 WL 5173278, at *10 (N.D.N.Y. Sept. 20, 2016) ("Because the RFC is supported by substantial evidence, the Court finds no error in the questions presented to the VE[.]").
CONCLUSION
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.