Opinion
6:19-CV-06791 EAW
2020-12-11
KYA M., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Kelly Elizabeth Laga-Sciandra, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Francis D. Tankard, Joletta Marie Friesen, Office of the General Counsel Social Security Administration, Kansas City, MO, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Kelly Elizabeth Laga-Sciandra, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.
Francis D. Tankard, Joletta Marie Friesen, Office of the General Counsel Social Security Administration, Kansas City, MO, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Kya M. ("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. 10; Dkt. 12), and Plaintiff's reply (Dkt. 15). For the reasons discussed below, the Commissioner's motion (Dkt. 12) is granted and Plaintiff's motion (Dkt. 10) is denied.
BACKGROUND
Plaintiff protectively filed her application for SSI on October 15, 2015. (Dkt. 7 at 18, 92). In her application, Plaintiff alleged disability beginning October 1, 2015, due to the following impairments: back and neck issues from a 2015 car accident; chronic pain and muscle spasms; inability to stand or walk for long periods of time; depression and anxiety since 2007; panic attacks; a dislike of being in crowds; possible bipolar disorder ; ulcers; low blood sugar; and anemia. (Id. at 18, 81-82). Plaintiff's application was initially denied on January 25, 2016. (Id. at 18, 101-12). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Eric Eklund in Rochester, New York, on April 30, 2018. (Id. at 18, 34-80). On May 15, 2018, the ALJ issued an unfavorable decision. (Id. at 15-29). Plaintiff requested Appeals Council review; her request was denied on August 29, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 4-6). 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).
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 October 15, 2015, the application date. (Dkt. 7 at 20).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "anxiety disorder; depressive disorder ; bipolar disorder ; post-traumatic stress disorder (PTSD); and intermittent explosive disorder." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of gallstones, gastric ulcer, jaundice, anemia, status post cholecystectomy, hypoglycemia, gastritis, degenerative disc disease of the spine, alcohol dependence, and marijuana abuse were non-severe. (Id. at 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 22). The ALJ particularly considered the criteria of Listings 12.04, 12.06, 12.08, and 12.15 in reaching his conclusion. (Id. at 22-23).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at all exertional levels, but with the following non-exertional limitations:
[Plaintiff] is limited to simple, unskilled work in a "low stress" job defined as a position with no more than occasional decision-making and no more than occasional changes in work setting. She can have no more than superficial interaction
with the public, as part of her job duties, and have no more than occasional interaction with co-workers and supervisors, but her interactions cannot involve any tandem tasks.
(Id. at 23-24). At step four, the ALJ found that Plaintiff has no past relevant work. (Id. at 27).
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 hand packer, industrial cleaner, and sub-assembler of electronics. (Id. at 28). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 29).
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 the RFC is not supported by substantial evidence because the ALJ relied "too heavily" on the opinion of R. Nobel, Ph.D., the state agency psychological consultant, which was contradicted by the opinion of Yu-Ying Lin, Ph.D., the consultative examiner and other evidence in the record. (Dkt. 10-1 at 12). As further explained below, the Court finds that the ALJ properly weighed the opinion evidence in the record and, even if the ALJ erred in his assessment of the opinion evidence, the RFC incorporates the limitations assessed by Dr. Lin and Dr. Nobel, and therefore any error was harmless. Accordingly, remand for further administrative proceedings is not required.
In assessing a disability claim, an ALJ must consider and weigh the various medical opinions of record. Pursuant to the Commissioner's regulations:
the ALJ must consider various factors in deciding how much weight to give to any medical opinion in the record, regardless of its source, including: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the ... physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.
Pike v. Colvin , No. 14-CV-159-JTC, 2015 WL 1280484, at *5 (W.D.N.Y. Mar. 20, 2015) (quotation and alterations omitted). While an ALJ "should not rely heavily on the findings of consultative physicians after a single examination," see Selian v. Astrue , 708 F.3d 409, 419 (2d Cir. 2013), "[a]n ALJ has discretion to weigh the opinion of a consultative examiner and attribute the appropriate weight based on his review of the entire record," see Guerra v. Comm'r of Soc. Sec. , No. 1:16-CV-00991(MAT), 2018 WL 3751292, at *7 (W.D.N.Y. Aug. 7, 2018), aff'd , 778 F. App'x 75 (2d Cir. 2019). An ALJ may give the opinion of a consultative examiner "great weight" when it is consistent with the underlying medical evidence. Suttles v. Colvin , 654 F. App'x 44, 46 (2d Cir. 2016) ; see also Colbert v. Comm'r of Soc. Sec. , 313 F. Supp. 3d 562, 577 (S.D.N.Y. 2018) ("It is also generally accepted that a consultative examiner's opinion may be accorded greater weight than a treating source's opinion where the ALJ finds it more consistent with the medical evidence."). Further, the ALJ may rely on the opinions of non-examining state agency medical consultants, "since such consultants are deemed to be qualified experts in the field of social security disability." Woytowicz v. Comm'r of Soc. Sec. , No. 5:15-CV-0960 (GTS/WBC), 2016 WL 6427787, at *5 (N.D.N.Y. Oct. 5, 2016), adopted , 2016 WL 6426385 (N.D.N.Y. Oct. 28, 2016). Significantly, "where ... the record does not contain medical opinions from an acceptable medical source such as a treating physician or psychiatrist concerning a severe impairment, the opinions of consulting and examining physicians, as well as non-acceptable medical sources such as therapists, can ‘take on particular significance.’ " Estrella-Martinez v. Saul , No. 19-CV-6606L, 2020 WL 2042396, at *3 (W.D.N.Y. Apr. 28, 2020) (quoting Montanez v. Berryhill , 334 F. Supp. 3d 562, 564 (W.D.N.Y. 2018) ).
Plaintiff disputes the ALJ's weighing of opinions offered by Drs. Lin and Nobel. Dr. Lin, the consultative examiner, examined Plaintiff on January 18, 2016. (Dkt. 7 at 358-63). Dr. Lin reviewed Plaintiff's background information, psychiatric history, medical history, and current functioning. (Id. at 358-60). These were notable for dysphoric moods, irritability, suicidal ideations, anxiousness and depression, difficulty sleeping, panic attacks, anger issues, and hallucinations. (Id. ). Plaintiff was cooperative during the examination, but her manner of relating and eye contact were poor. (Id. at 360). Plaintiff's receptive language was poor, and she oftentimes reported that Dr. Lin's questions were confusing to her. (Id. ). Plaintiff's thought processes were coherent and goal-directed, but her affect was dysphoric and apathetic. (Id. at 361). Plaintiff's attention and concentration were "moderately impaired due to anxiety ... and possibly limited intellectual functioning." (Id. ). Her recent and remote memory skills were "moderately impaired" due to anxiety and distractibility, and her cognitive functioning was below average, with a general fund of information that was "somewhat limited." (Id. ). Plaintiff's insight and judgment were poor. (Id. ). Dr. Lin offered the following medical source statement:
The claimant can follow and understand simple directions and instructions without limitations. She can perform simple tasks independently without limitations. She is moderately limited in maintaining attention and concentration. She is able to maintain a regular schedule without limitations. She is mildly limited in learning new tasks. She is markedly limited in making appropriate decisions and relating adequately with others. She is moderately to markedly limited in appropriately dealing with stress. These difficulties are caused by anger issues and lack of motivation.
The results of the examination are consistent with psychiatric problems, and this may significantly interfere with the claimant's ability to function on a daily basis.
(Id. at 362).
The ALJ gave Dr. Lin's opinion "partial weight," because it was "partially inconsistent with the opinion of Dr. Nobel, who had the opportunity to review more of the medical record." (Id. at 26). The ALJ also found that, "[i]n addition, Dr. Lin's opinion concerning the severity of the claimant's ability to adapt and manage herself is not entirely consistent with the objective medical findings or the subjective reporting of the claimant." (Id. ). The ALJ explained that, "[f]or example, the claimant has the ability to maintain a relationship with her significant other and work part-time," and "[t]hese activities are not consistent with marked limitations in her ability to adapt and manage herself." (Id. ). The ALJ also noted that Dr. Lin examined Plaintiff on only one occasion. (Id. ).
The ALJ gave "great weight" to the opinion of state agency psychological consultant, Dr. Nobel. (Id. ). Dr. Nobel opined that Plaintiff retained the capacity to perform the demands of unskilled work but would work best in a setting requiring limited contact with the public due to her irritability. (Id. at 89). The ALJ explained that Dr. Nobel had the opportunity to review the medical evidence in the record, including the consultative examination report, "which allowed him to base some of his opinion from an examining source." (Id. at 26). Further, Dr. Nobel "provided detailed notations to the record to support his determinations." (Id. ; see also id. at 87-89).
As an initial matter, "[a]lthough an examining source is ‘generally’ afforded more weight than a non-examining source, an ALJ is allowed to afford a non-examining source more weight than an examining one." Christy v. Comm'r of Soc. Sec. , No. 5:13-CV-1552(GTS/WBC), 2015 WL 6160165, at *9 (N.D.N.Y. Sept. 24, 2015), adopted , 2015 WL 6160165 (N.D.N.Y. Oct. 20, 2015). For example, an ALJ may assign greater weight to the opinion of a non-examining source when it is better supported by the record. See Ridosh v. Berryhill , No. 16-CV-6466L, 2018 WL 6171713, at *6 (W.D.N.Y. Nov. 26, 2018) ("a non-examining physician opinion may be entitled to more weight than the opinion of an examining physician ... such as where the opinion of a treating or examining physician is contradicted by substantial evidence in the record." (citation omitted)). Here, the ALJ identified and discussed all the opinion evidence in the record, including the opinions offered by Dr. Lin and Dr. Nobel. Further, the ALJ offered an adequate explanation as to why he found Dr. Nobel's opinion more persuasive. Given that neither Dr. Lin nor Dr. Nobel is a treating physician, neither of the opinions are entitled to controlling weight, and the ALJ's explanation for his weighing of the opinions is sufficient.
Even assuming the ALJ improperly weighed the opinions offered by Drs. Nobel and Lin, the limitations assessed by Dr. Lin are accounted for in the RFC, and therefore any error in weighing the opinions is harmless. See Ryan v. Astrue , 650 F. Supp. 2d 207, 217 (N.D.N.Y. 2009) ("[A]lthough the ALJ improperly discounted Dr. Barry's opinions, but nevertheless included those opinions in his RFC, whatever error he may have committed, the Court considers it also constitutes harmless."); see also Carol D. v. Comm'r of Soc. Sec. , No. 6:18-CV-1181 (ATB), 2020 WL 772668, at *7 (N.D.N.Y. Feb. 18, 2020) ("Failure to consider or assign specific weight to an opinion may be considered harmless error where consideration would not have changed the outcome.").
"[C]ourts within the Second Circuit have repeatedly held that ‘[m]arked limitations in mental functioning, including a marked limitation in ability to deal with stress, do not mandate a finding of disability, but can be addressed with additional limitations to a plaintiff's RFC, such as limiting plaintiff to simple, routine and repetitive tasks in a work environment free of fast-paced production requirements.’ " Blocker v. Saul , No. 18-CV-6788F, 2020 WL 1047737, at *6 (W.D.N.Y. Mar. 4, 2020) (second alteration in original) (quoting Uplinger v. Berryhill , No. 18-CV-481-HKS, 2019 WL 4673437, at * 7 (W.D.N.Y. Sept. 25, 2019) ). For example, an RFC limiting a claimant to "simple routine tasks," "occasional interaction with coworkers and the general public," and "low stress work defined as work involving only occasional decision making," adequately accounts for a marked limitation in dealing with stress. Id. Further, an RFC limiting a claimant to simple, routine tasks addresses limitations in concentration, persistence, and pace. See Broadbent v. Saul , No. 3:18-cv-02127(WIG), 2019 WL 4295328, at *5 (D. Conn. Sept. 11, 2019) ("courts routinely find that a claimant who has moderate limitations in memory and concentration can perform simple routine, tasks"); Williams v. Colvin , 98 F. Supp. 3d 614, 633 (W.D.N.Y. 2015) ("[T]he ALJ's finding that Plaintiff can engage in simple tasks is consistent with the opinions of Dr. Jones and Dr. Altmansberger, who determined that although Plaintiff had mild to moderate difficulties with regard to concentration, persistence, or pace, she was capable of performing unskilled work."). The assessed RFC also addresses Plaintiff's limitation for making appropriate decisions. Wilson v. Comm'r of Soc. Sec. , No. 1:19-CV-00544 EAW, 2020 WL 4434919, at *5 (W.D.N.Y. Aug. 3, 2020) (finding the plaintiff's moderate to marked limitation for making decisions, among other limitations, did not preclude him from performing simple work, where the plaintiff was also able to follow and understand simple directions and instructions and perform simple tasks independently while maintaining attention and concentration); Robert L.M. v. Berryhill , No. 8:18-CV-0208(GTS), 2018 WL 5313452, at *7 (N.D.N.Y. Oct. 26, 2018) ("[T]he ALJ accounted for the opined marked limitation in decision-making and dealing with stress and moderate limitations in performing work at a consistent pace, by restricting Plaintiff to only simple decision-making and routine daily tasks and duties in a consistent workplace that do not significantly change in pace or location on a daily basis."); Mejia v. Comm'r of Soc. Sec. , No. 1:15-CV-1279 (GTS/WBC), 2017 WL 1133350, at *5 (N.D.N.Y. Mar. 1, 2017) (ALJ's mental RFC limiting Plaintiff to "simple work related decisions" was consistent with doctor's opinion that Plaintiff had a marked limitation in her ability to make complex work-related decisions), adopted , 2017 WL 1133410 (N.D.N.Y. Mar. 24, 2017).
Further, the RFC limits Plaintiff to superficial interaction with the public, and occasional interaction with co-workers and supervisors, without involving any tandem tasks, which address Dr. Lin's opinion that Plaintiff is markedly limited in relating adequately with others. Fiducia v. Comm'r of Soc. Sec. , No. 1:13-CV-285, 2015 WL 4078192, at *4 (N.D.N.Y. July 2, 2015) ("The fact that plaintiff was found to have a marked limitation interacting with others does not conclusively demonstrate that she is unable to work, particularly given the fact that the ALJ limited [her] to work that does not require more than occasional interaction with the public and co-workers."); see also Perry v. Comm'r of Soc. Sec. , No. 3:15-CV-0758 (GTS), 2017 WL 5508775, at *7 (N.D.N.Y. Jan. 23, 2017) ("This Court has found that a claimant with a marked limitation in performing a work-related function could perform that function occasionally."), aff'd , 711 F. App'x 9 (2d Cir. 2017).
Plaintiff does not explain how the assessed RFC is inconsistent with Dr. Lin's opinion. Rather, Plaintiff claims that the ALJ's error in weighing Dr. Lin's opinion was "not harmless," because:
[h]ad the ALJ fully credited [Dr. Lin's] opinion, this would have led the ALJ to make a determination of disability. If Plaintiff's marked limitation to make appropriate decisions and relate with others led to an inability to work with co-workers or supervisors without conflict the vocational expert testified they would not be employable because no contradiction, insubordination, noncompliance or any disruption of the workforce would be tolerated at all. Additionally, if Plaintiff had a marked level of inability to deal with stress and that led to loss of productivity or unscheduled breaks which led to her being "off task" up to 15% of any given workday would result in lack of employability.
(Dkt. 10-1 at 14). While insubordination and time off-task would further limit the types of work Plaintiff could perform (see Dkt. 7 at 78-79), Dr. Lin did not opine that Plaintiff had no ability to work with co-workers or supervisors due to contradiction, insubordination, noncompliance, or disruption, or that Plaintiff would be off-task up to 15 percent of the workday. As such, Plaintiff's argument is wholly speculative. See Swanson v. Comm'r of Soc. Sec. , No. 1:18-CV-00870 EAW, 2020 WL 362928, at *5 (W.D.N.Y. Jan. 21, 2020) ("[T]here is no medical opinion or other evidence in the record to suggest that Plaintiff's limitations would cause Plaintiff to be off-task 15 percent or more of the day. As such, Plaintiff's argument is wholly speculative."); Melisa G. v. Berryhill , No. 3:18-CV-508 (DJS), 2019 WL 2502726, at *5 (N.D.N.Y. June 17, 2019) (upholding ALJ's determination that opinion regarding Plaintiff's need for off-task time was speculative where it was unsupported by the medical record). 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 sum, the ALJ properly weighed the opinion evidence in the record, and the assessed RFC is consistent with the opinions relating to Plaintiff's mental functional limitations. Accordingly, remand for further administrative proceedings is not required.
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. 10) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.