Coffin v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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HEATHER C.,

Plaintiff,

-v- 5:21-CV-244

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

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APPEARANCES: OF COUNSEL:

OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ.

Attorneys for Plaintiff

250 South Clinton Street, Suite 210

Syracuse, NY 13202

SOCIAL SECURITY LISA SMOLLER, ESQ.

ADMINISTRATION Special Ass’t U.S. Attorney

Attorneys for Defendant

J.F.K. Federal Building, Room 625

15 New Sudbury Street

Boston, MA 02203

DAVID N. HURD

United States District Judge

MEMORANDUM–DECISION & ORDER

I. INTRODUCTION

On March 2, 2021, plaintiff Heather C.1 (“plaintiff” or “claimant”) filed this

action seeking review of the final decision of defendant Commissioner of

Social Security (“Commissioner” or “defendant”) denying her application for

Supplemental Security Income (“SSI”) under the Social Security Act (the

“Act”). The Commissioner has filed a certified copy of the Administrative

Record and both parties have briefed the matter in accordance with General

Order 18, which provides that an appeal taken from a final decision denying

benefits will be treated as if the parties have filed cross-motions for a

judgment on the pleadings. See FED. R. CIV. P. 12(c). Plaintiff’s appeal will

be considered on the basis of these submissions without oral argument.

II. BACKGROUND

On April 28, 2015, plaintiff initially applied for SSI alleging that her

anxiety, high blood pressure, pinched nerve in her left arm, back pain, neck

pain, and knee pain rendered her disabled. R. at 97–98.2 Plaintiff’s claim

was initially denied on September 14, 2015. Id. at 107. Thereafter,

1 In accordance with a May 1, 2018 memorandum issued by the Judicial Conference’s

Committee on Court Administration and Case Management and adopted as local practice in this

District, only claimant’s first name and last initial will be mentioned in this opinion.

2 Citations to “R.” refer to the Administrative Record. Dkt. No. 11.

Administrative Law Judge (“ALJ”) Elizabeth W. Koennecke held two

hearings on plaintiff’s claim: the first occurred on May 1, 2018, and the

second occurred on August 29, 2018. Id. at 35–74. The ALJ conducted both

hearings from Syracuse, New York. Id. Plaintiff, represented by attorney

Megan Marie Savaia Ortiz, appeared in person and testified at the first

hearing.3 Id. At the second hearing, the ALJ also heard testimony from

Vocational Expert Joseph M. Atkinson. Id. at 63–74.

On September 10, 2018, ALJ Koennecke issued a written decision denying

plaintiff’s application for benefits. R. at 15–28. This decision became final on

July 8, 2019, when the Appeals Council denied plaintiff’s request for

review. Id. at 1–3. Plaintiff timely appealed this unfavorable

determination. Heather C. v. Comm’r of Soc. Sec., 5:19-CV-1111-TWD.

After plaintiff filed her opening brief, the parties stipulated to vacatur of

the Commissioner’s final decision and a remand for renewed proceedings

before a different ALJ. Heather C., 5:19-CV-1111-TWD at Dkt. No. 12. U.S.

Magistrate Judge Thérèse Wiley Dancks so-ordered the parties’ stipulation

on April 9, 2020, id. at Dkt. No. 13, and the Appeals Council sent the matter

back to a new ALJ for further consideration, R. at 827–829.

3 Claimant appeared by telephone at the second hearing. See R. at 15.

On December 11, 2020, ALJ Jeremy Eldred held a new hearing on

plaintiff’s claim for benefits. R. at 769–84. Because of the COVID-19

pandemic, plaintiff consented to proceed by telephone. Id. Plaintiff,

represented by attorney Valerie Didamo, appeared and testified. Id. The

ALJ also heard testimony from Vocational Expert Joseph Young. Id.

On December 29, 2020, the ALJ issued a written decision denying

plaintiff’s claim for benefits. R. at 743–754. Because plaintiff did not file

written exceptions with the Appeals Council, the ALJ’s written decision

became the final decision of the Commissioner on February 28, 2021. See id.

at 741. Plaintiff timely appealed.

III. LEGAL STANDARD

The Act defines “disability” as the “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental

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.” 42 U.S.C. § 423(d)(1)(A).

To qualify as disabled within the meaning of this definition, the Act

requires that a claimant’s:

physical or mental impairment or impairments [must

be] of such severity that he is not only unable to do his

previous work but cannot, considering his age,

education, and work experience, engage in any other

kind of substantial gainful work which exists in the

national economy, regardless of whether such work

exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A).

The ALJ follows a five-step sequential evaluation process to decide

whether a claimant is disabled. 20 C.F.R. § 404.1520.4 At step one, the ALJ

determines whether the claimant is currently engaged in “substantial gainful

activity.” § 404.1520(a)(4)(i). If so, the claimant is not disabled regardless of

his medical condition or other factors. § 404.1520(b).

If the claimant is not engaged in substantial gainful activity, then step

two requires the ALJ to determine whether the claimant has a “severe”

impairment or combination of impairments; i.e., a medically determinable

condition that “significantly limits” his physical or mental ability to do basic

work activities. § 404.1520(c).

If the claimant suffers from a severe impairment or combination of

impairments, then step three requires the ALJ to determine whether the

impairment(s) meet or equal an impairment specifically listed in Appendix 1

of the Regulations (the “Listings”). § 404.1520(d). If the claimant’s severe

4 Section 404.1520 sets forth the five-step evaluation used for DIB claims. A parallel set of

regulations govern SSI applications. See 20 C.F.R. § 416.920(a)(4).

impairment(s) meet or equal one or more of the Listings, then the claimant is

presumed to be disabled regardless of any other factors. § 404.1520(a)(4)(iii).

If the claimant is not presumed disabled under one or more of the Listings,

then step four requires the ALJ to assess whether—despite the claimant’s

severe impairment(s)—he has the residual functional capacity (“RFC”) to

perform his “past relevant work.” § 404.1520(e)–(f). If so, the claimant is not

disabled. § 404.1520(a)(4)(iv).

Finally, if the claimant cannot perform his past relevant work, the

Commissioner must determine if the claimant’s RFC, in combination with his

age, education, and work experience, permits the claimant to do any other

work in the national economy. § 404.1520(a)(4)(v), (f)–(g).

The burden of proof for the first four steps is on the claimant. Perez v.

Chater, 77 F.3d 41, 46 (2d Cir. 1996). However, if the claimant shows he

cannot perform his past relevant work at step four, the burden shifts to the

Commissioner for step five. Id.

The Act further provides for judicial review of “any final decision . . . made

after a hearing” by the Social Security Administration (“SSA” or the

“Agency”). 42 U.S.C. § 405(g). However, the scope of this review is limited to

determining whether (1) the Commissioner applied the correct legal standard

to his analysis and, if so, (2) whether the final decision is supported by

“substantial evidence.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per

curiam) (cleaned up).

“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) (cleaned

up). “If the reviewing court finds substantial evidence to support the

Commissioner’s final decision, that decision must be upheld, even if

substantial evidence supporting the claimant’s position also exists.” Morales

v. Berryhill, 484 F. Supp. 3d 130, 140 (S.D.N.Y. 2020) (citation omitted).

However, this “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). Thus, “where there is a reasonable basis for

doubting whether the Commissioner applied the appropriate legal

standards,” the decision should not be affirmed. Johnson v. Bowen, 817 F.2d

983, 986 (2d Cir. 1987). This is so regardless of whether or not the decision is

otherwise supported by “substantial evidence.” See id.

IV. DISCUSSION

The ALJ applied the five-step analysis to find that: (1) plaintiff had not

engaged in substantial gainful activity since April 28, 2015, the alleged onset

date; (2) plaintiff’s degenerative disc disease, stenosis of the cervical spine,

and history of corrective surgery for scoliosis of the thoracic and lumbar spine

were “severe” impairments within the meaning of the Regulations; and

(3) these impairments, whether considered individually or in combination,

did not meet or equal any of the Listings. R. at 745–748.

At step four, the ALJ determined that plaintiff retained the RFC to

perform “light work as defined in 20 CFR 416.967(b), except [that she] can

stoop, reach, or crouch no more than occasionally.” R. at 748. Next, the ALJ

determined that plaintiff had no past relevant work. Id. at 752. However,

after considering plaintiff’s age, education, and RFC in light of the Vocational

Expert’s testimony, the ALJ concluded that plaintiff could still perform such

representative unskilled jobs as a “gate guard,” a “furniture rental sales

clerk,” or an “usher.” Id. at 753.

Because these representative jobs existed in the sufficient numbers in the

national economy, the ALJ concluded that plaintiff was not disabled between

April 28, 2015, the alleged onset date, and December 29, 2020, the date of his

written decision. R. at 753–54. Accordingly, the ALJ denied plaintiff’s

application for benefits. Id. at 754.

A. Plaintiff’s Appeal

Plaintiff contends the ALJ (1) failed to incorporate any limitations from

her mental health condition into the RFC finding; and (2) improperly

assessed an August 17, 2015 medical opinion rendered by Elke Lorensen,

M.D., a consultative physical examiner. Pl.’s Opp’n, Dkt. No. 16 at 7–12.5

1. Mental Health Limitations & the RFC

First, plaintiff contends the ALJ failed to include any mental health

limitations in the RFC despite the fact that evidence in the record showed

she suffers from a “mild” limitation in dealing with others and in dealing

with stress and “mild” difficulties in maintaining social functioning. Pl.’s

Mem. at 7. According to plaintiff, the failure to account for these mental

limitations in the RFC finding amounts to a “significant” error because the

three representative jobs on which the ALJ relied in finding plaintiff not

disabled—a “gate guard,” a “furniture rental sales clerk,” or an “usher”—all

require a particular “temperament”; i.e., an ability to deal with people.6 Id.

“Where, as here, the ALJ finds at step two that a claimant has one or more

‘severe’ impairments but determines at step three that the claimant is not

presumptively disabled, the ALJ must go on to make an RFC finding, which

is an assessment of ‘what an individual can still do despite his or her

limitations.’” Tammy Lynn B. v. Comm’r of Soc. Sec., 382 F. Supp. 3d 184,

192 (N.D.N.Y. 2019) (quoting Cox v. Astrue, 993 F. Supp. 2d 169, 183

5 Pagination corresponds with CM/ECF.

6 Temperaments “are the adaptability requirements made on the worker by specific types of

jobs.” Sara A. v. Saul, 2019 WL 6606861, at *24 (N.D. Ind. Dec. 5, 2019) (citation omitted).

(N.D.N.Y. 2012) (McAvoy, J.)). “In making a residual functional capacity

determination, the ALJ must consider a claimant’s physical abilities, mental

abilities, [and symptomatology], including pain and other limitations which

could interfere with work activities on a regular and continuing basis.”

Samantha S. v. Comm’r of Soc. Sec., 385 F. Supp. 3d 174, 183 (N.D.N.Y.

2019) (citation omitted).

“The claimant’s RFC is determined based on all of the relevant medical

and other evidence in the record, including the claimant’s credible testimony,

objective medical evidence, and medical opinions from treating and

consulting sources.” Rivera v. Comm’r of Soc. Sec., 368 F. supp. 3d 626, 640

(S.D.N.Y. 2019). “In practice, administrative law judges rely principally on

medical source opinion and subjective testimony when assessing impaired

individuals’ ability to engage in work-related activities.” Tammy Lynn B.,

382 F. Supp. 3d at 192–93 (citation omitted).

Upon review, this first argument must be rejected. The “mild” mental

health limitations identified by plaintiff were assessed by Jacqueline Santoro,

Ph.D, a consultative psychologist who examined plaintiff on August 17, 2015,

and reviewed by S. Juriga, Ph.D, a State agency medical consultant who

analyzed the record on September 8, 2015. R. at 102, 429–32.

“Where, as here, mental impairments are at issue, the Commissioner

directs administrative adjudicators to employ a ‘psychiatric review technique’

(sometimes referred to as a ‘special technique’).” Amanda R. v. Comm’r of

Soc. Sec., 556 F. Supp. 3d 145, 151 (N.D.N.Y. 2021) (citation omitted). This

“special technique” permits ALJs to determine “whether medically[ ]

determinable mental impairments are severe (a Step 2 issue) and whether

they meet or are equivalent in severity to any presumptively disabling

mental disorder (a Step 3 issue).” Id.

A review of the record shows that the ALJ analyzed these two medical

opinions, first at step two and then again as part of his later RFC finding. At

step two, the ALJ correctly noted that plaintiff had been diagnosed with

anxiety disorder. R. at 746. However, after applying the “special technique,”

he concluded that it was not a “severe” impairment within the meaning of the

Regulations. Id.

In reaching that conclusion, the ALJ relied primarily on the findings from

Dr. Santoro’s consultative evaluation. See R. at 746–47. The ALJ noted that

his conclusion was also reinforced by the fact that plaintiff was not involved

in any ongoing mental health treatment and that records from her primary

care provider showed that her anxiety condition was “under control with

medication.” Id. at 747.

Plaintiff does not directly challenge this step two finding. Instead, she

argues that the ALJ should still have incorporated some kind of mental

health limitation(s) in his later RFC determination. Of course, “[a] RFC

determination must account for limitations imposed by both severe and

nonsevere impairments.” Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir.

2012) (summary order). Importantly, though, a “non-severe” impairment is,

by definition, a condition which causes only a “slight abnormality” which

would have “no more than a minimal effect on an individual’s ability to

work.” Samantha S. v. Comm’r of Soc. Sec., 385 F. Supp. 3d 174, 187

(N.D.N.Y. 2019) (citation omitted).

In other words, it is hard to argue that the ALJ erred in failing to include

limitations related to this mental health condition without first claiming that

the underlying condition itself was sufficiently “severe” so as to impose more

than a “minimal effect” on plaintiff’s ability to work. That is especially so

when the ALJ’s written decision shows that he did analyze and account for

plaintiff’s mental health condition when formulating the RFC. R. at 750.

For example, in his discussion of the medical evidence, the ALJ reiterated

that Dr. Juriga concluded that plaintiff’s anxiety was non-severe and that Dr.

Santoro had found plaintiff’s mental limitations to be “mild” at best. R. at

750. The ALJ gave these opinions “significant weight,” further noting that

plaintiff had not participated in any ongoing mental health treatment and

that other evidence showed the “anxiety is well controlled by medication.” Id.

In short, the ALJ acted within his discretion to analyze this evidence and

ultimately conclude that it did not warrant the imposition of any mental RFC

limitations. See Michelle B. v. Comm’r of Soc. Sec., 2021 WL 3022036, at *8

(N.D.N.Y. July 16, 2021) (rejecting similar argument where “the ALJ clearly

considered plaintiff’s mental impairments as part of his larger RFC

analysis”); see also Amanda R., 556 F. Supp. 3d at 152 (“It is well-established

that the ALJ has both the ability and the responsibility to resolve conflicts in

the evidence.”). As the Commissioner points out in her own brief, plaintiff

has failed to show that adopting Dr. Santoro’s mental health findings (or

rejecting Dr. Juriga’s opinion about non-severity) would have precluded her

from performing the representative jobs later identified by the ALJ. See

Defs.’ Mem., Dkt. No. 17 at 4–5. Accordingly, this argument will be rejected.

2. Dr. Lorensen

Second, plaintiff contends that the ALJ improperly assessed the medical

opinion rendered by Dr. Lorensen. Pl.’s Mem. at 9–12. In plaintiff’s view, the

ALJ failed to sufficiently explain why he did not adopt Dr. Lorensen’s finding

that she suffered from “mild restrictions on turning the head.” Id. at 9.

Broadly speaking, the Regulations divide evidence from a claimant’s

medical sources into three categories: (1) treating; (2) acceptable; and

(3) other.7 The most important of these is the treating source category, which

7 On January 18, 2017, the SSA revised the rules regarding the evaluation of medical

evidence. Because plaintiff’s claim was filed before March 27, 2017, the prior Regulations still

govern this appeal. See, e.g., Cheri Lee H. v. Comm’r of Soc. Sec., 2020 WL 109007, at *6 n.7

(N.D.N.Y. Jan. 9, 2020).

includes a claimant’s “own physician, psychologist, or other acceptable

medical source” who has provided “medical treatment or evaluation and who

has, or has had an ongoing treatment relationship” with the

claimant. Tammy Lynn B., 382 F. Supp. 3d at 193 (citation omitted).

The opinion of a treating source regarding the nature and severity of a

claimant’s impairments is entitled to controlling weight when it is

“well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in

[the] record.” Tammy Lynn B., 382 F. Supp. 3d at 193 (citation omitted).

However, “[a] treating physician’s statement that the claimant is disabled

cannot itself be determinative.” Tammy Lynn B., 382 F. Supp. 3d at 193

(citation omitted). And when a treating source’s opinion contradicts other

substantial evidence in the record, such as the opinions of other medical

experts, an ALJ may afford it less than controlling weight. Id.

A treating physician’s opinion may also be properly discounted, or even

entirely rejected, when: (1) it is internally inconsistent; (2) the source lacks

underlying expertise; (3) the opinion is brief, conclusory, or unsupported by

clinical findings; or even where (4) it “appears overly sympathetic such that

objective impartiality is doubtful and goal-oriented advocacy reasonably is

suspected.” Tammy Lynn B., 382 F. Supp. 3d at 193 (citation omitted).

Where an ALJ decides to afford a treating source’s opinion less than

controlling weight, he must still consider various factors in determining how

much weight, if any, to give the opinion, including: (1) the length of the

treatment relationship and the frequency of examination; (2) the nature and

extent of the treatment relationship; (3) what evidence supports the treating

physician’s report; (4) how consistent the treating physician’s opinion is with

the record as a whole; (5) the area of specialization of the physician in

contrast to the condition being treated; and (6) any other factors which may

be significant in claimant’s particular case. Tammy Lynn B., 382 F. Supp. 3d

at 193–94 (citation omitted).

Beyond this so-called “treating physician rule,” the same six factors set

forth above apply with equal force to the evaluation of the remaining

categories of medical evidence recognized by the Regulations: the “acceptable”

and “other” sources mentioned earlier. Erik Allen M. v. Berryhill, 2019 WL

3565944, at *7 (N.D.N.Y. May 22, 2019). The former, those deemed

“acceptable” sources, include “licensed physicians (medical or osteopathic

doctors, psychologists, optometrists, podiatrists, and speech-language

pathologists.” Id. (citation omitted). The latter category, deemed “other” in

Administration parlance, are “ancillary providers such as nurse practitioners,

physician assistants, licensed clinical social workers, and therapists.” Id.

Only evidence from a “treating” or “acceptable” source can be relied upon

to establish the existence of a medically determinable impairment. Erik

Allen M., 2019 WL 3565944, at *7 (citation omitted). However, evidence from

all three sources “can be considered when determining severity of

impairments and how they affect individuals' ability to function.” Id.

Finally, while the six-factor analysis set forth above applies in all cases

except where “controlling” weight is given to a treating physician's opinion,

an ALJ need not mechanically recite these factors as long as the record

reflects a proper application of the substance of the rule. See, e.g., Petrie v.

Astrue, 412 F. App'x 401, 407 (2d Cir. 2011) (summary order) (noting that an

ALJ need not expressly recite each factor so long as it is “clear from the

record as a whole that the ALJ properly considered” them).

Upon review, plaintiff’s argument about Dr. Lorensen’s opinion must be

rejected. The record shows that the ALJ considered Dr. Lorensen’s opinion at

length as part of his narrative discussion of the medical evidence. R. at 752.

Although he gave this opinion “substantial weight,” the ALJ declined to adopt

Dr. Lorensen’s statement about “restrictions on turning the head,” which

even Dr. Lorensen described “as mild.” Id.; see also R. at 434–438.

In deciding to discount this particular restriction, the ALJ noted that

plaintiff had regularly reported that her neck pain improved with medication,

and that various physical examinations in the record failed to substantiate

any evidence of ongoing or even consistent neck pain that would limit her

range of motion. See R. at 752. Ultimately, the ALJ concluded “there has

been no continuous 12-month period during which the claimant has had any

particular limitations in the range of motion of her head and neck, beyond

those that are [already] accommodated by a restriction to light work.” Id.

A review of the record demonstrates that this was a reasonable conclusion

for the ALJ to reach, and that he reached it by relying on substantial

evidence in the entire record. Contrary to plaintiff’s assertion, the ALJ was

not obligated to adopt all of Dr. Lorensen’s restrictions or to discuss every

shred of conflicting evidence before partially discounting some of them.

After all, even plaintiff acknowledges that “[t]he record does not show

constantly present neck issues.” Pl.’s Mem. at 11. While plaintiff argues that

this does not necessarily mean that her “neck limitations are not relevant,”

nor does it necessarily mean that they required the assessment of additional

limitations in her RFC. See, e.g., Cage v. Comm’r of Soc. Sec., 692 F.3d 118,

122 (2d Cir. 2012) (holding that a reviewing court “defer[s] to the

Commissioner’s resolution of conflicting evidence”). In sum, “[p]laintiff’s

disagreement with the ultimate factual determinations that the ALJ drew

from this record evidence is not a basis for remand.” Tammy Lynn B., 382 F.

Supp. 3d at 195. Accordingly, this argument will also be rejected.

IV. CONCLUSION

The ALJ applied the correct legal standards and supported his written

decision with substantial evidence in the record.

Therefore, it is

ORDERED that

1. The Commissioner’s motion for a judgment on the pleadings is

GRANTED;

2. Plaintiff's motion for a judgment on the pleadings is DENIED;

3. The Commissioner’s decision is AFFIRMED; and

4, Plaintiff's complaint is DISMISSED.

IT IS SO ORDERED.

Dated: May 19, 2022 PUG

Utica, New York. U.S. Disfrict Judge