Perez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Ivan Perez,

Decision and Order

Plaintiff,

18-CV-1395 HBS

v. (Consent)

Commissioner of Social Security,

Defendant.

I. INTRODUCTION

The parties have consented to this Court’s jurisdiction under 28 U.S.C. § 636(c). The Court

has reviewed the Certified Administrative Record in this case (Dkt. No. 5, pages hereafter cited in

brackets), and familiarity is presumed. This case comes before the Court on cross-motions for

judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. Nos. 7,

8.) In short, plaintiff is challenging the final decision of the Commissioner of Social Security (the

“Commissioner”) that he was not entitled to Supplemental Security Income under Title XVI of the

Social Security Act. The Court has deemed the motions submitted on papers under Rule 78(b).

II. DISCUSSION

“The scope of review of a disability determination . . . involves two levels of inquiry. We

must first decide whether HHS applied the correct legal principles in making the determination. We

must then decide whether the determination is supported by substantial evidence.” Johnson v. Bowen,

817 F.2d 983, 985 (2d Cir. 1987) (internal quotation marks and citations omitted). When a district

court reviews a denial of benefits, the Commissioner’s findings as to any fact, if supported by

substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). Substantial evidence is defined as

“‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Tejada v. Apfel, 167 F.3d 770, 773-74 (2d Cir.

1999).

The substantial evidence standard applies to both findings on basic evidentiary facts, and to

inferences and conclusions drawn from the facts. Stupakevich v. Chater, 907 F. Supp. 632, 637

(E.D.N.Y. 1995); Smith v. Shalala, 856 F. Supp. 118, 121 (E.D.N.Y. 1994). When reviewing a

Commissioner’s decision, the court must determine whether “the record, read as a whole, yields

such evidence as would allow a reasonable mind to accept the conclusions reached” by the

Commissioner. Winkelsas v. Apfel, No. 99-CV-0098H, 2000 WL 575513, at *2 (W.D.N.Y. Feb. 14,

2000). In assessing the substantiality of evidence, the Court must consider evidence that detracts

from the Commissioner’s decision, as well as evidence that supports it. Briggs v. Callahan, 139 F.3d

606, 608 (8th Cir. 1998). The Court may not reverse the Commissioner merely because substantial

evidence would have supported the opposite conclusion. Id. “The substantial evidence standard

means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to

conclude otherwise.” Brault v. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and

citations omitted).

For purposes of Social Security disability insurance benefits, a person is disabled when

unable “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) &

1382c(a)(3)(A).

Such a disability will be found to exist only if an individual’s “physical or mental impairment

or impairments are of such severity that [he or she] is not only unable to do [his or her] previous

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work but cannot, considering [his or her] age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. §§ 423(d)

(2)(A) & 1382c(a)(3)(B).

Plaintiff bears the initial burden of showing that the claimed impairments will prevent a

return to any previous type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).

Once this burden has been met, “the burden shifts to the [Commissioner] to prove the existence of

alternative substantial gainful work which exists in the national economy and which the plaintiff

could perform.” Id.; see also Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris,

626 F.2d 225, 231 (2d Cir. 1980).

To determine whether any plaintiff is suffering from a disability, the Administrative Law

Judge (“ALJ”) must employ a five-step inquiry:

(1) whether the plaintiff is currently working;

(2) whether the plaintiff suffers from a severe impairment;

(3) whether the impairment is listed in Appendix 1 of the relevant regulations;

(4) whether the impairment prevents the plaintiff from continuing past relevant

work; and

(5) whether the impairment prevents the plaintiff from continuing past relevant

work; and whether the impairment prevents the plaintiff from doing any kind of

work.

20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be either

disabled or not disabled at any step in this sequential inquiry then the ALJ’s review ends. 20 C.F.R.

§§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). However, the

ALJ has an affirmative duty to develop the record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir. 1972).

To determine whether an admitted impairment prevents a plaintiff from performing past

work, the ALJ is required to review the plaintiff’s residual functional capacity (“RFC”) and the

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physical and mental demands of the work done in the past. 20 C.F.R. §§ 404.1520(e) & 416.920(e).

The ALJ must then determine the individual’s ability to return to past relevant work given the RFC.

Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994).

Plaintiff challenges the ALJ’s decision to craft an RFC without an explicit medical source

statement that received significant weight. The ALJ found that plaintiff had the severe impairments

of left shoulder dysfunction, bipolar disorder, and polysubstance use. [17.] After reviewing the

record, the ALJ crafted the following RFC, reprinted here in its entirety:

After careful consideration of the entire record, I find that the claimant has

the residual functional capacity to perform light work as defined in 20 CFR

416.967(b), except with the following additional limitations: The claimant

occasionally can perform overhead reaching with the non-dominant, left upper

extremity. The claimant can perform work involving simple, routine tasks. He can

have frequent interaction with supervisors as part of a job, occasional interaction

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

[19.] Plaintiff argues that the level of detail in the RFC went beyond the information available on

the record and would have required an opinion from a treating source or from a consultative

examiner:

The only opinion on the record was that of the M. Totin, MD on April 27,

2015, which indicated that the Plaintiff had severe affective and anxiety disorders,

however there was insufficient evidence at the time of the opinion to determine the

level of disability. T.146-48. The ALJ granted no weight to this opinion, finding it

inconsistent. T. 19. The ALJ then went on to determine the Plaintiff’s residual

functional capacity using the “mild objective imaging reports, somewhat inconsistent

clinical signs and statements from the claimant, cessation of treatment for physical

limitations within the last couple of years, scarce mental health treatment with

reports of medication noncompliance, urine drug screens and alcohol intake, and the

claimant’s range of activities of daily living”. T. 19. The ALJ came to residual

functional capacity that the Plaintiff could perform light work involving simple tasks,

with frequent interaction with supervisors, occasional interaction with co-workers,

and no interaction with the public. T. 15. However, as this was unsupported by

medical opinion evidence, the ALJ erred when coming to this decision. Wilson, 2015

WL1003933 at *20.

The ALJ does not explain why the Plaintiff can have no interaction with the

public, occasional interaction with co-workers, and frequent interaction with

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supervisors. T. 15-19. Plaintiff reported being frustrated very easily with other

people. T. 126. It was noted that he had been kicked out of treatment for

inappropriate behavior once. T. 340-42. The ALJ did find that the Plaintiff had

moderate limitations in the domain of social functioning. T. 14. However, A

limitation to interacting with the public is not equivalent to a limitation to interacting

with coworkers or supervisors. Smith v. Colvin, 2017 WL 489701 at *3 (W.D.N.Y.

2017), citing Nickens v. Colvin, 2014 WL 4792197 at *2 (W.D.Pa. 2014) (“The public,

supervisors, and co-workers are distinct groups ...Thus, limitations on two of these

types of interactions in the RFC does not account for limitations on the third.”). A

vocational expert’s testimony based on hypotheticals “infected” by the omission of

social groups the Plaintiff may be limited in dealing with warrants remand. Nickens,

2014 WL 4792197 at *2. An RFC that does not limit Plaintiff to simple work or

routine tasks, but rather occasionally carrying out complex and detailed tasks, or

occasional interaction with the public but frequent interaction with coworkers and

supervisors does not account for their limitations. Herb v. Comm’r of Soc Sec, 336

F.Supp.3d 441, 447 (W.D.N.Y. 2019).

(Dkt. No. 7-1 at 11–13; see also Dkt. No. 9 at 2.) The Commissioner responds that plaintiff

gave inconsistent information to his treatment providers over the years and that he has not met his

burden of showing what portions of the record weigh against the RFC:

Plaintiff points to no evidence that establishes he could not perform the

range of light, unskilled, low-contact work outlined in the ALJ’s RFC finding. Pl.

Mem. 11-12. In fact, Plaintiff barely points to any record evidence at all, and the

evidence he relies upon was fully considered by the ALJ in rendering the RFC

finding. As Plaintiff notes, and as the ALJ considered, Plaintiff sought hospital

treatment in March 2014 for a left shoulder injury. Tr. 16, referring to Tr. 289-93, 303-

06. At the initial visit, Plaintiff reported that he injured his left shoulder moving

furniture at home. Tr. 16, referring to Tr. 289-93. The examination was normal but

for decreased and painful range of motion. Tr. 16, referring to Tr. 304. X-ray

evidence was mild, and Plaintiff was accordingly prescribed only ibuprofen to treat

pain. Tr. 16 referring to Tr. 299, 305.

As the ALJ also considered, which Plaintiff overlooks, in his subsequent

course of care, Plaintiff introduced significant inconsistencies and his medical

records demonstrated that Plaintiff would be capable of a range of light work. Tr.

17. For instance, when Plaintiff sought hospital care for left shoulder pain in April

2014, this time he attributed his injury to falling down stairs at his home, which he

asserted caused him to pull and injure his arm. Tr. 17, referring to Tr. 568; see also Tr.

565. During a third hospital visit to address left shoulder pain in June 2014, Plaintiff

attributed his pain to a motor vehicle accident, but did not report any earlier injuries

related to falling down stairs or moving furniture. Tr. 17, referring to Tr. 274-84.

Regardless of the origin of Plaintiff’s left shoulder pain, the record simply

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does not provide any evidence that this impairment precluded Plaintiff from

performing a range of light work with reaching limitations. As the ALJ considered,

Plaintiff testified that he had limitations with lifting very heavy objects and when

reaching overheard, though he could reach in front of his body without difficulty,

consistent with the RFC finding. Tr. 16, referring to Tr. 129-30. In fact, the record is

in keeping with this testimony. For instance, after the three above-discussed hospital

visits, Plaintiff was advised to take ibuprofen or Motrin for pain, and to attend

physical therapy. Tr. 16-17, referring to Tr. 279, 286, 299, 571. In July 2014, after

inconsistent attendance at physical therapy for three months (Tr. 17, referring to Tr.

568-89), Plaintiff reported that his pain was only exacerbated by lifting or reaching,

and physical therapy records showed some improvement in shoulder function. Tr.

17, referring to Tr. 566-67. The record shows Plaintiff did not receive ongoing care for

left shoulder pain, with the exception of an EMG study in February 2015, Tr. 17,

referring to Tr. 272-72, 366; see Tr. 17, referring to Tr. 129-30 (Plaintiff’s testimony that

he was no longer receiving any treatment for left shoulder pain). Despite a lack of

treatment, Plaintiff did not suffer any particular exacerbation of pain nor did he seek

additional hospital treatment, providing ample additional support for the RFC

finding. See Johnson v. Colvin, 669 F. App’x 44 (2d Cir. September 29, 2016) (The

Court found that substantial evidence supported the ALJ’s RFC for light work,

despite a lack of supportive functional assessment from a physician. This included

Johnson’s testimony regarding his abilities and activities, as well as a note from his

doctor indicating his once severe limitations had improved and that he would benefit

from exercise.); see also Reynolds v. Colvin, 270 F.App’x 45, 46 (2d Cir. 2014) (“A lack

of supporting evidence on a matter where the claimant bears the burden of proof,

particularly when coupled with other inconsistent record evidence, can constitute

substantial evidence supporting a denial of benefits.”).

(Dkt. No. 8 at 13–15.)

The Commissioner has the better argument. “If all of the evidence we receive, including all

medical opinion(s), is consistent and there is sufficient evidence for us to determine whether you are

disabled, we will make our determination or decision based on that evidence.” 20 C.F.R.

§ 416.920b(a). “We will assess your residual functional capacity based on all of the relevant medical

and other evidence.” 20 C.F.R. § 416.945(a)(3). Here, plaintiff had normal range of motion as of

March 2, 2015 [282], though a radiology report from March 15, 2014 suggested a limited range of

motion in the left shoulder. [303.] On August 9, 2013, plaintiff was diagnosed with a mood

disorder after reporting paranoid thoughts toward another physician and after reporting a “moody

outburst.” [342.] On February 4, 2017, plaintiff had a domestic violence incident while intoxicated;

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the incident included plaintiff locking himself in a room and threatening to kill his girlfriend and

stepchildren. [374–75.] Plaintiff blamed his alcohol use; he was diagnosed with polysubstance use

and post-traumatic stress disorder, though he did show fair insight and judgment in a mental status

examination. [391.] An anger management session on April 9, 2014 ended prematurely when

plaintiff decided that he did not want to stay; he stayed long enough to express agitation and sadness

about his current financial status. [569.] An examination on August 1, 2014 showed persistent left

shoulder pain with decreased strength and range of motion. [571.] The Commissioner has cited

other portions of the record as well, and the clinical notes as a whole show a consistent profile: left

shoulder problems that might have improved over time but that gave plaintiff diminished strength

and range of motion for at least a while; and significant issues with mood, anxiety, and depression

that seemed to be somewhat under control during the better portions of plaintiff’s medication and

polysubstance history. Cf. Gregory v. Comm’r, No. 1:14-CV-1012, 2016 WL 900647, at *6 (N.D.N.Y.

Mar. 9, 2016) (RFC limiting interaction with the public affirmed, where mental health treatment

notes and consultative examiner appointed only to “issues concerning generalized stress,” and ALJ

relied in part on claimant’s own testimony); see also Titles II & XVI: Residual Functional Capacity for

Mental Impairments, SSR 85-16, 1985 WL 56855, at *3 (Jan. 1, 1985) (suggesting consultative

examination as an option “when treating medical sources cannot provide essential information”).

This pattern is consistent with statements from plaintiff such as, “I just get frustrated very easily

with people. And I just don’t like being around a lot of people.” [130.] Cf. Tankisi v. Comm’r, 521 F.

App’x 29, 34 (2d Cir. 2013) (summary order) (“The medical record in this case is quite extensive.

Indeed, although it does not contain formal opinions on Tankisi’s RFC from her treating physicians,

it does include an assessment of Tankisi’s limitations from a treating physician, Dr. Gerwig. Given

the specific facts of this case, including a voluminous medical record assembled by the claimant’s

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counsel that was adequate to permit an informed finding by the ALJ, we hold that it would be

inappropriate to remand solely on the ground that the ALJ failed to request medical opinions in

assessing residual functional capacity.”) (citations omitted). Additionally, although the ALJ did not

invoke 20 C.F.R. § 416.935(b) explicitly, he did cite portions of the record indicating that plaintiff

felt independent with activities of daily living and would have better functioning without medication

noncompliance and without polysubstance abuse. Cf. Halmond v. Comm’r, No. 18-CV-6337 HBS,

2019 WL 3450972, at *4 (W.D.N.Y. July 31, 2019) (“The Commissioner has pointed to additional

parts of the record indicating the same pattern as what the Court has cited above: a long history of

dependency interrupted with some level of functioning and a desire to work during periods of

sobriety. These circumstances suffice to persuade a reasonable mind that plaintiff’s overall

functioning and RFC would be better, as the ALJ has described, in the absence of substance

abuse.”). The record here required no interpretation at the level that caused concern in Brown v.

Apfel, 174 F.3d 59 (2d Cir. 1999). See id. at 63 (ALJ decided on his own that plaintiff’s “seizures were

caused by a failure to take his medication” when no treatment provider said so). Plaintiff’s clinical

profile is consistent with the regulatory description of light work: “Light work involves lifting no

more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10

pounds.” 20 C.F.R. § 416.967(b). Substantial evidence thus supported the ALJ’s RFC, and more

detailed medical source statements were not necessary.

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III. CONCLUSION

The Commissioner’s final determination was supported by substantial evidence. For the

above reasons and for the reasons stated in the Commissioner’s briefing, the Court grants the

Commissioner’s motion (Dkt. No. 8) and denies plaintiff’s cross-motion (Dkt. No. 7).

The Clerk of the Court is directed to close the case.

SO ORDERED.

__/s Hugh B. Scott________

Hon. Hugh B. Scott

United States Magistrate Judge

DATED: March 13, 2020

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