Opinion
1:20-CV-00211 EAW
2021-05-24
MARY DIANE K., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Kenneth R. Hiller, Mary Ellen Gill, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Francis D. Tankard, Nicol Fitzhugh, Dennis J. Canning, Office of the General Counsel Social Security Administration, Kansas City, MO, Justin Lane Martin, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Kenneth R. Hiller, Mary Ellen Gill, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Francis D. Tankard, Nicol Fitzhugh, Dennis J. Canning, Office of the General Counsel Social Security Administration, Kansas City, MO, Justin Lane Martin, 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 Mary Diane K. ("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. 12; Dkt. 14), and Plaintiff's reply (Dkt. 15). For the reasons discussed below, the Commissioner's motion (Dkt. 14) is granted and Plaintiff's motion (Dkt. 12) is denied.
BACKGROUND
Plaintiff protectively filed her application for DIB on May 27, 2016. (Dkt. 11 at 16, 71). In her application, Plaintiff alleged disability beginning May 14, 2016. (Id. at 16, 73). Plaintiff's application was initially denied on December 15, 2016. (Id. at 16, 89-93). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Tanya Dvarishkis on September 25, 2018, with Plaintiff appearing in person in Boise, Idaho, and the ALJ presiding by video from Billings, Montana. (Id. at 16, 31-56, 126). On January 13, 2019, the ALJ issued an unfavorable decision. (Id. at 13-29). Plaintiff requested Appeals Council review; her request was denied on December 20, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 5-10). 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. § 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).
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 met the insured status requirements of the Act through December 31, 2021. (Dkt. 11 at 19). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since May 14, 2016, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of bilateral carpal tunnel syndrome, cervical degenerative disc disease, and mononeuritis (Id. ). The ALJ did not identify any non-severe impairments.
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 1.04 and 11.14 in reaching her conclusion. (Id. at 19-20).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), with the following additional limitations:
[Plaintiff] is limited to lifting, carrying, pushing, pulling 20 pounds occasionally and up to 10 pounds frequently. [She] is limited to sitting for up to 6 hours in an 8-hour workday. [She] is limited to standing and walking for up to 6 hours in an 8-hour workday. [She] is limited to occasionally operating hand controls with the bilateral upper extremities. [She] is limited to occasionally reaching
overhead with the bilateral upper extremities. [She] is limited to occasionally handling, fingering and feeling with the bilateral upper extremities. [She] is limited to never climbing ladders, ropes or scaffolds. [She] is limited to frequently climbing ramps or stairs. [She] is limited to frequently balancing, stooping, kneeling and crouching. [She] is limited to occasionally crawling. [She] must have no exposure to unprotected heights, moving mechanical parts and other workplace hazards. [She] is limited to not more than occasional operation of a motor vehicle as part of [her] job duties. [She] must avoid exposure to extreme cold, extreme heat and vibrations.
(Id. at 20).
At step four, the ALJ relied on the testimony of a vocational expert to conclude that Plaintiff was capable of performing her past relevant work as an activity director. (Id. at 23). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 24).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Reversible Error
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that the ALJ substituted her own lay opinion for competent medical opinion in formulating her RFC finding. (Dkt. 12-1). The Court has considered this argument and, for the reasons discussed below, finds it without merit.
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 [her] 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). "[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 omitted).
In this case, the ALJ relied on the opinions of consultative examiners Dr. Rex Head and Dr. Wenceslao Cabaluna in making an RFC finding. (Dkt. 11 at 22-23) . The ALJ gave "great weight" to the opinions of both Dr. Head and Dr. Cabaluna, and her RFC finding is largely consistent with their conclusions, with the following exceptions: (1) the ALJ assessed more restrictive limitations in handling, fingering, feeling, and reaching limitations than those identified by the consultative examiners; (2) the ALJ assessed more restrictive environmental limitations than those assessed by Dr. Cabaluna; and (3) the ALJ rejected Dr. Head's opinion that Plaintiff was required to alternate positions every 45 minutes. (Id. ).
The record also contains a statement from January 2014 from treating physician Dr. Hank Williams that Plaintiff was "unable to work at this time." (Dkt. 11 at 407). The ALJ gave little weight to this opinion by Dr. Williams because it addressed an issue reserved to the Commissioner and was issued several months before Plaintiff's alleged disability onset date. (Id. at 23). Plaintiff has not argued that the ALJ erred in her assessment of Dr. Williams’ opinion.
The Court finds no error in the ALJ's consideration of and reliance upon the medical opinions of record. Plaintiff's contention that the ALJ engaged in impermissible cherry picking (see Dkt. 12-1 at 8-9) is entirely without merit. While it is true that "[t]he selective adoption of only the least supportive portions of a medical source's statements is not permissible," Phelps v. Colvin , No. 12-CV-976S, 2014 WL 122189, at *4 (W.D.N.Y. Jan. 13, 2014), that is plainly not what the ALJ did in this case. To the contrary, as noted above, the ALJ imposed restrictions that were in some ways more severe than those identified by Drs. Head and Cabaluna, and thus cannot be said to have merely adopted the portions of their opinions that were detrimental to Plaintiff while ignoring more favorable aspects.
Further, contrary to Plaintiff's argument, it was not error for the ALJ to reject Dr. Head's opinion regarding the frequency at which Plaintiff was required to change positions. Under the regulations applicable to Plaintiff's claim, the opinion of a consultative examiner is not entitled to any particular weight, and an ALJ is free to discount those portions of the opinion that are not supported by the other evidence of record. See Dukes v. Comm'r of Soc. Sec. , No. 6:19-CV-06025 EAW, 2020 WL 5651610, at *5 (W.D.N.Y. Sept. 23, 2020) ("Dr. Chu and Dr. Jonas were both consultative examiners and their opinions were thus not entitled to any particular weight; instead, the ALJ was ‘free to disregard identified limitations ... not supported by the evidence of record.’ " (quoting Torbicki v. Berryhill , No. 17-CV-386(MAT), 2018 WL 3751290, at *5 (W.D.N.Y. Aug. 8, 2018) )).
Here, the ALJ explained that Dr. Head's opinion that Plaintiff needed to change positions every 45 minutes was inconsistent with the objective medical evidence and Plaintiff's own testimony regarding her activities of daily living. (Dkt. 11 at 22). The record amply supports this conclusion. As the ALJ noted, Plaintiff testified that she was able to attend a book club and church, watch movies, shop in stores without assistance, and do yoga at the YMCA. (Id. ). The ALJ further noted that the majority of Plaintiff's musculoskeletal examinations had found her to have a full range of motion in her upper extremities, normal strength in her upper extremities, and supple neck movements. (Id. ). Indeed, as Dr. Cabaluna noted in his opinion, x-rays of Plaintiff's thoracic spine and a CT scan of her cervical spine in June 2016 showed "no acute osseous abnormality." (Id. at 316). In his own examination of Plaintiff's back and spine, Dr. Cabaluna observed no evidence of "kyphosis, scoliosis, or paravertebral muscle tenderness or spasms," and he further observed that Plaintiff had a "normal gait, weight-bearing and posture" and no difficulty getting on and off the examining table, tandem walking, or walking on her heels and toes. (Id. at 319). Dr. Cabaluna opined that "standard breaks and lunch period" would be sufficient with respect to Plaintiff's need to alternate between standing and sitting. (Id. at 323).
Plaintiff has pointed to other evidence in the record, including her own testimony, that she claims is evidence she required a sit/stand option. (See Dkt. 12-1 at 10-11). However, "whether there is substantial evidence supporting the [plaintiff's] view is not the question here; rather, [the Court] must decide whether substantial evidence supports the ALJ's decision." Bonet ex rel. T.B. v. Colvin , 523 F. App'x 58, 59 (2d Cir. 2013). As set forth above, the ALJ was well within her discretion in determining that Plaintiff did not need to switch positions every 45 minutes.
It was further not erroneous for the ALJ to partially credit Plaintiff's testimony regarding her own limitations and assess more restrictive manipulative and environmental limitations than those identified by the consultative examiners. See Hamilton v. Comm'r of Soc. Sec. , No. 19-CV-770 (JLS), 2020 WL 5544557, at *6 (W.D.N.Y. Sept. 16, 2020) ("[The plaintiff] essentially argues that the ALJ was wrong to accept portions of her testimony regarding her limitations, which were not covered in a medical source opinion. But this does not constitute reversible error."); Kearney v. Berryhill , No. 1:16-CV-00652-MAT, 2018 WL 5776422, at *5 (W.D.N.Y. Nov. 2, 2018) ("The ALJ explained that he had credited aspects of Plaintiff's testimony regarding her limitations, and so assessed a somewhat more restrictive RFC than identified by the consultative examiners. The Court finds no error in this determination by the ALJ."). Here, the ALJ explained that she was affording Plaintiff the benefit of the doubt and crediting her statement that her symptoms increased with use of her hands, as well as taking into account her testimony regarding her cervical spine impairments. (Dkt. 11 at 23-24). This is simply not a basis for reversal.
In sum, the Court finds that the ALJ appropriately based her assessment of Plaintiff's RFC on the evidence as a whole, including the medical opinions and Plaintiff's own testimony. Accordingly, there is no basis for the Court to disturb the Commissioner's finding of non-disability.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 14) is granted and Plaintiff's motion for judgment on the pleadings (Dkt. 12) is denied.
SO ORDERED.