Bonadonna-Millard v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

JANELLE LYNN BONADONNA-MILLARD,

Plaintiff,

v.

18-CV-782

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the

undersigned conduct any and all further proceedings in this case, including entry of final

judgment. Dkt. No. 14. Janelle Lynn Bonadonna-Millard (“Plaintiff”), who is represented

by counsel, brings this action pursuant to the Social Security Act (“the Act”) seeking review

of the final decision of the Commissioner of Social Security (“the Commissioner”) denying

her application for benefits. This Court has jurisdiction over the matter pursuant to

42 U.S.C. § 405(g). Presently before the Court are the parties’ competing motions for

judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

Dkt. Nos. 9, 12. For the following reasons, Plaintiff’s motion (Dkt. No. 9) is denied, and the

Commissioner’s motion (Dkt. No. 12) is granted.

BACKGROUND

On July 18, 2014, Plaintiff filed for Supplemental Security Income (“SSI”),

alleging disability beginning on March 19, 2014, due to Obsessive Compulsive Disorder,

Anxiety Disorder, Panic Disorder, Agoraphobia, “fear of driving,” and “symptoms of bi-

polar.” Tr. at 70-71.1 Plaintiff’s application was denied at the initial level and she

requested review. Tr. at 79, 91. Administrative Law Judge Elizabeth Ebner (“the ALJ”)

conducted a hearing on January 31, 2017. Tr. at 34. Plaintiff, who was represented by

counsel, testified as did an impartial vocational expert. Tr. at 38-68. On May 2, 2017, the

ALJ issued a decision in which she found that Plaintiff was not disabled and therefore, not

eligible for benefits. Tr. at 10-33. The Appeals Council denied Plaintiff’s request for

review, making the ALJ’s determination the final decision of the Commissioner. Tr. at 1,

147. Plaintiff thereafter commenced this action seeking review of the Commissioner’s

decision. Dkt. No. 1.

LEGAL STANDARD

Disability Determination

An ALJ must follow a five-step process to determine whether an individual is

disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At step

one, the ALJ must determine 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,” meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. 20 C.F.R. §

404.1520(c). If the claimant does not have a severe impairment or combination of

1Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket

No. 5.

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impairments, the analysis concludes with a finding of “not disabled.” If the claimant does,

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”). 20 C.F.R. § 404.1520(d). If the impairment meets or

medically equals a Listings criterion and meets the durational requirement (20 C.F.R.

§ 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 collective impairments. See 20 C.F.R.

§ 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s

RFC permits him or her to perform the requirements of his or her past relevant work. 20

C.F.R. § 404.1520(f). If the claimant can perform such requirements, then he or she is not

disabled. If not, the analysis proceeds to the fifth and final step, wherein the burden shifts

to the Commissioner 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. See Rosa v.

Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R.

§ 404.1560(c).

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District Court Review

42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings

and transcript of the record, a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding the cause for a rehearing.”

42 U.S.C. § 405(g) (2007). Section 405(g) limits the scope of the Court’s review to two

inquiries: whether the Commissioner’s conclusions were based upon an erroneous legal

standard, and whether the Commissioner’s findings were supported by substantial

evidence in the record as a whole. See Green-Younger v. Barnhart, 335 F.3d 99, 105-106

(2d Cir. 2003). Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569

F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. (emphasis added and citation

omitted). The substantial evidence standard of review is a very deferential standard, even

more so than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683 F.3d

443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by

substantial evidence, the Court’s task is “‘to examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be drawn.’”

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d

1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s

determination, the decision must be upheld, even if there is also substantial evidence for

the Plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin ex

rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where the

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evidence is susceptible to more than one rational interpretation, the Commissioner’s

conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

DISCUSSION AND ANALYSIS

The ALJ’s Decision

The ALJ analyzed Plaintiff’s claims using the familiar five-step process

described above. Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y.

Aug. 8, 2008) (detailing the five steps). At step one, the ALJ found that Plaintiff has not

engaged in substantial gainful activity since March 19, 2014, her alleged onset date. Tr. at

15. At step two, she found that Plaintiff had the following severe impairments: anxiety

disorder; panic disorder with agoraphobia; affective disorder; history of “minimally active”

ulcerative colitis in clinical remission; history of hyperactive gallbladder status-post

gallbladder removal surgery; and hypothyroidism. Tr. at 15-16.2 The ALJ noted that

Plaintiff reported that she recently suffered a seizure while working out at the gym, but that

her examining neurologist found that the episode was “almost certainly” a syncopal event

and not a seizure.3 Tr. at 15-16, 326. The ALJ noted that she accommodated Plaintiff’s

historical syncope by requiring that she never climb stairs, ropes, or scaffolds, never drive

as a work duty, and avoid all exposure to hazards such as unprotected heights and

dangerous moving mechanical parts. Tr. at 16.

2 This Court presumes the parties’ familiarity with plaintiff’s medical history, which is summarized at

length in the papers.

3 “Syncope . . . is the medical term for fainting or passing out. It is caused by a temporary drop in

the amount of blood that flows to the brain.” See

https://my.clevelandclinic.org/health/diseases/17536-syncope.

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At step three, the ALJ concluded that Plaintiff’s impairments did not, either

individually or in combination, meet or equal the Listings, giving special consideration to

Listing 5.06 (Inflammatory Bowel Disease) and related gastrointestinal disorders, Listing

9.00 (Endocrine Disorders); Listing 12.04 (Depressive, Bipolar and Related Disorders) and

12.06 (Anxiety and Obsessive-Compulsive Disorders), as well as Social Security Ruling

02-1p (Obesity). Tr. at 16-19. Next, the ALJ found that Plaintiff retained the RFC to

perform light work as defined by 20 C.F.R. § 416.967(b). Specifically:

She can lift, carry, push and/or pull up to 20 pounds occasionally and ten

pounds frequently, and can sit for up to six hours and stand and/or walk for up

to six hours in an eight-hour workday. She can never climb ladders, ropes, or

scaffolds, work around unprotected heights or dangerous moving mechanical

parts or operate a motor vehicle as part of a work duty. The claimant can

perform simple, routine, repetitive tasks not at an assembly line pace involving

simple work-related decisions, occasional changes in work setting, occasional

interaction with co-workers and supervisors, and no interaction with the public.

She would be further off-task up to five percent of an eight-hour workday in

addition to normal breaks.

Tr. at 19.

Continuing to the fourth step, the ALJ found that Plaintiff was unable to

perform her past relevant work. Tr. at 28. Based on Plaintiff’s age (35 years old),

education (at least a high school education), and with the aforementioned RFC, the ALJ

found that she could perform work that exists in significant numbers in the national

economy, specifically, the jobs of price marker (DOT No. 209.5887-034), garment sorter

(DOT No. 222.687-014), and routing clerk (DOT No. 222.587-038). Tr. at 28-29.

Accordingly, concluded the ALJ, Plaintiff was not under a disability from March 19, 2014,

through the date of her decision, May 2, 2017. Tr. at 29.

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Judgment on the Pleadings

As noted above, the parties have cross-moved for judgment on the

pleadings. Dkt. Nos. 9, 12. Plaintiff contends that the ALJ made her RFC finding “with no

medical opinion after rejecting both the consultative examiner and non-examining

opinions,” failed to develop the record, “ignored other source opinion statements from

[Nurse Practitioner Melissa A.] Merlin,” and “cherry picked evidence from Plaintiff’s

treatment notes.”4 Dkt. No. 9-1, pp. 17-30. The Commissioner contends that in

formulating the RFC, the ALJ: properly afforded “little weight” to the opinions of Plaintiff’s

treating providers and “some weight” to the consulting examining opinion and the GAF

scores of record, and because she did not reject the opinions outright, did not create a gap

in the record; considered NP Merlin’s opinions and incorporated a stress limitation into the

RFC that was consistent with those opinions; and considered the totality of the evidence

(Dkt. No. 12-1, pp. 7-15). Having reviewed the record, this Court finds that the ALJ did not

err and that the RFC was substantially supported.

The ALJ’s Assessment of the Medical Opinions

Plaintiff alleges that the ALJ “played doctor” by rejecting all of the medical

opinions in the record and giving her own lay interpretation of the medical evidence. Dkt.

No. 9-1, pp. 17-22. This Court does not agree. As an initial matter, it is inaccurate to state

that the ALJ outright rejected any of the medical opinions in her decision. Rather, the ALJ

assigned varying degrees of weight to the opinions based on the consistency of the

4 Plaintiff has not raised any objections to the ALJ’s findings about her physical impairments.

Although this Court has reviewed the record in its entirety, this decision focuses solely on the

medical evidence relating to Plaintiff’s alleged mental disorders and her ability to handle stress.

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opinion with the record as a whole. For example, she gave “little weight” to the opinions of

Plaintiff’s treatment providers at Suburban Psychiatric Associates (Tr. at 260-298, 330-

394) that she “should stay out of work or work only on a part-time basis,” reasoning that:

the providers “ha[d] not opined that she [was] unable to perform other types of work, such

as unskilled, repetitive, low contact work” as designated in the RFC; “claimant’s reported

activities5 during the period under review demonstrate a notably higher level of function

than she has alleged;” she had not participated in any inpatient treatment or highly

structured intensive mental health programs, “despite her reports of disabling symptoms;”

and her “GAF scores6 ranging from 52 to 66 throughout the period . . . indicate only mild

to moderate symptoms and functional limitations and are inconsistent with disabling

impairments.” Tr. at 26-27.

The ALJ explicitly assigned “some weight” to the opinion of consulting

examiner, Janine Ippolito, Psy.D., that Plaintiff “had no limitations in her ability to follow

and understand simple directions and instructions, perform simple and complex tasks

independently, maintain attention and concentration, learn new tasks, and make

appropriate decisions; moderate limitations maintaining a regular schedule, moderate to

marked limitations relating adequately with others; and marked limitations dealing with

stress.” Tr. at 22. The ALJ likewise gave only “some weight” to the February 2015 opinion

from the state agency consultant who concluded that “claimant had no more than

moderate limitations and could perform work tasks with limited social contact.” Tr. at 23,

5 Plaintiff’s activities are discussed more at length below.

6 Global Assessment of Functioning (”GAF”) scores measure how much a person’s psychological

symptoms impact his or her daily life at a given time.

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77. In giving these opinions “some weight,” the ALJ “also relied upon the longitudinal

treatment notes of record and the claimant’s documented activities and functioning over

time. . [,]” which while not entirely inconsistent with the opinions, “support different

functional restrictions.” Tr. at 23. The ALJ apparently found that Plaintiff was more

restricted than the consulting doctors suggested as the RFC specified that she perform

only “simple, routine, repetitive tasks not at an assembly line pace involving simple work-

related decisions . . . , [only] occasional interaction with co-workers and supervisors, and

no interaction with the public.” Tr. at 19.

The ALJ also relied on Plaintiff’s GAF scores, which are considered medical

opinions by the Commissioner. SSA Administrative Message 13066 (“AM–13066”)

(effective July 22, 2013); see Craig v. Colvin, 659 F. App’x 381, 382 (9th Cir. 2016) (stating

that “the Social Security Administration (SSA) has endorsed the[ ] use [of GAF scores] as

evidence of mental functioning for a disability analysis”). Plaintiff’s scores measured

between 52 and 66 during the relevant period, reflecting mild to moderate symptoms and

functional difficulties, rather than disabling ones. Tr. at 23. The ALJ noted that despite her

alleged mental impairments, Plaintiff went on vacation, attended concerts and festivals,

went to family gatherings, went out to dinner with friends and family, went to the gym

(sometimes on a daily basis), and hosted gatherings in her home. Tr. at 23 (citing Tr. at

281, 334, 343, 346, 349, 352, 355, 358, 367, 370, 373, 379). It was permissible for the

ALJ to consider these activities of daily living in assessing Plaintiff’s RFC. 20 C.F.R. §§

404.1529, 416.929; see Cruz v. Colvin, 278 F. Supp. 3d 694, 699 (W.D.N.Y. 2017)

(holding that an ALJ may discount a treating physician’s opinion that a claimant is greatly

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restricted based on that claimant’s activities of daily living); Poupore v. Astrue, 566 F.3d

303, 307 (2d Cir. 2009) (holding that the ALJ correctly found that Poupore was not

disabled because he was able to care for his one-year-old child, change diapers, vacuum,

wash dishes, occasionally drive, watch television, read, and use the computer).

Based on the foregoing, this Court finds that the ALJ did not err in

weighing the medical opinions, and assigning more weight to certain opinions than others.

It is, in fact, the role of the ALJ to compare specific medical opinions against the record as

a whole. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). The law is clear that an ALJ’s RFC

finding does not need to be based on a particular medical opinion or medical source

statement. Monroe v. Berryhill, 676 F. App’x 5, 9 (2d Cir. 2017); see also Matta v. Astrue,

508 F. App’x 53, 56 (2d Cir. 1013) (reasoning that “[a]lthough the ALJ’s conclusion may

not perfectly correspond with any of the opinions of medical sources cited in h[er] decision,

[s]he was entitled to weigh all of the evidence available to make an RFC finding that was

consistent with the record as a whole”). Moreover, “the ultimate finding of whether a

claimant is disabled and cannot work . . . [is] reserved to the Commissioner.” Snell v.

Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (internal quotations and citations omitted).

Because the ALJ did not, in fact, reject all of the medical opinions in the

record as Plaintiff has alleged, it cannot be said that there was an “obvious gap” in the

record, which the ALJ was duty-bound to develop. See Rosa v. Callahan, 168 F.3d 72, 79

n.5 (2d Cir. 1999) (holding that “where there are no obvious gaps in the administrative

record, and where the ALJ already possesses a complete medical history, the ALJ is under

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no obligation to seek additional information in advance of rejecting a benefits claim”).

Accordingly, the ALJ did not commit reversible error with respect to the record.

Nurse Practitioner Merlin’s Opinions

Plaintiff contends that the ALJ “ignored” NP Merlin’s opinions regarding her

mental capacity for work. This argument is also unavailing. As Plaintiff conceded, NP

Merlin is not an acceptable medical source and, therefore, her opinion is not entitled to the

same deference as other opinions considered by the ALJ. 20 C.F.R. § 404.1502(a)

(setting forth the list of acceptable medical sources, which does not include nurse

practitioner); 20 C.F.R. § 404.1527(a)(1) (defining “medical opinions” as “statements from

acceptable medical sources . . .”); 20 C.F.R. § 404.1527(c)(2). Moreover, an ALJ is not

required to discuss every piece of evidence submitted; and the failure to cite specific

evidence, standing alone, does not indicate that such evidence was not considered.

Brault, 683 F.3d at 448 (2d Cir. 2012).

Notwithstanding the foregoing, the ALJ clearly considered NP Merlin’s

treatment records, making repeated references to her treatment notes in the decision,

although not citing to the NP by name. For example, the ALJ stated, “[it] has been noted

that the claimant’s symptoms are ‘manageable’ when her stress levels are low and

exacerbated when they are high,” citing to notes made by NP Merlin in June of 2015. Tr.

at 24 (citing Tr. at 355); see also Tr. 20 (citing NP’s notes on 4/11/14 that Plaintiff was in

“moderate distress” on examination (Tr. at 261-261); stating on 4/25/14 that Plaintiff

appeared to be in “mild distress” (Tr. at 264-66); observing on 6/11/2014 that Plaintiff was

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“less anxious and brighter” (Tr. at 270-73)). Most importantly, the ALJ incorporated stress

limitations into Plaintiff’s RFC, thereby addressing NP Merlin’s concerns that new or

unexpected stressors would exacerbate Plaintiff’s condition. “To reduce her stress levels,”

the ALJ found that Plaintiff “should be limited to work involving simple, routine, repetitive

tasks involving only occasional workplace changes,” only occasional interaction with her

co-workers and no interaction with the general public. Tr. at 24. Accordingly, remand for

consideration of NP Merlin’s opinions is wholly unwarranted.

Consideration of the Entire Record

Plaintiff argues that the ALJ “cherry-picked” evidence that supported the

RFC, while ignoring evidence that showed that Plaintiff was more restricted. Once again,

the record does not support this argument. This Court finds that the ALJ fairly

characterized the medical record in assessing Plaintiff’s mental ability to perform basic

work functions, and properly noted inconsistencies in the evidence. For example, the ALJ

noted that despite allegedly debilitating symptoms, Plaintiff: regularly exercised at the

gym, including swimming on a daily basis in October 2015; got married in 2016 and went

on a Caribbean cruise for her honeymoon (telling her mental health providers that both

“went well,” but later testifying at her hearing that the honeymoon was “terrible” and “very

difficult”); went on vacation on a plane to California in August of 2014; attended a concert;

went to family gatherings where “there were a lot of people in attendance,” went out to

dinner with family and friends; made social visits to other people’s homes including “larger

type events;” attended weddings; and went for walks. Tr. at 23. “Although she reported

anxiety and/or panic with most of these activities,” the ALJ wrote, “her symptoms have not

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prevented her from continuing to participate in social and community events, which tends

to show a notably higher degree of social and adaptive functioning than she has alleged.”

Tr. at 23.

Plaintiff clearly disagrees with the ALJ’s evaluation of the evidence.

However, the substantial evidence standard is so deferential that “there could be two

contrary rulings on the same record and both may be affirmed as supported by substantial

evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012). That is, “once

an ALJ finds the facts, [a reviewing court] can reject those facts only if a reasonable

factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (emphasis

added). This case does not present such a situation. For all of the foregoing reasons, this

Court finds that the ALJ’s decision is free from legal error and is supported by substantial

evidence.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for judgment on the

pleadings (Dkt. No. 9) is hereby DENIED, and the Commissioner’s motion for

Judgment on the pleadings (Dkt. No. 12) is GRANTED. The Clerk of the Court is directed

to close this case.

SO ORDERED.

DATED: Buffalo, New York

March 9, 2020

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge

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