Robbins v. Commissioner of Social Security

WUENSITTEEDR NST DAITSETSR IDCITS TORFI CNTE WCO YUORRTK

_______________________________________

BARBARA ANN ROBBINS,

Plaintiff DECISION AND ORDER

-vs-

6:18-CV-6592 CJS

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

________________________________________

APPEARANCES

For the Plaintiff: Gregory T. Phillips

Segar & Sciortino PLLC

400 Meridian Centre, Suite 320

Rochester, New York 14618

For the Defendant: David L. Brown

Social Security Administration

Office of General Counsel

26 Federal Plaza, Room 3904

New York, New York 10278

Kathryn L. Smith

U.S. Attorney's Office

100 State Street

Rochester, New York 14614

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final

determination of the Commissioner of Social Security (“Commissioner” or “Defendant”)

which denied the application of Barbara Robbins for Social Security Disability Insurance

(“SSDI”) benefits. Now before the Court is Plaintiff’s motion (ECF No. 12) for judgment on

the pleadings and Defendant’s cross-motion (ECF No. 13) for the same relief. For the

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reasons discussed below, Plaintiff’s application is denied, Defendant’s application is

granted, and this action is dismissed.

FACTUAL BACKGROUND

The reader is presumed to be familiar with the facts and lengthy procedural history

of this action. The Court will summarize the record only as necessary for purposes of this

Decision and Order.

The instant action focuses on a decision issued on January 17, 2018, by an

Administrative Law Judge (“ALJ”) finding that Plaintiff was not disabled at any relevant

time. (Record (“R.”) 10–19).1 In pertinent part, the ALJ found that Plaintiff had severe

impairments consisting of “lumbar disc disease; left shoulder impingement; left knee

meniscus repair; basal joint arthritis; tennis elbow; obesity; and diabetes mellitus,” and

non-severe impairments consisting of “bunions and a grief related mood disorder.” (R. 13).

Despite those conditions, the ALJ found that Plaintiff had the following residual functional

capacity (“RFC”):

[T]hrough the date last insured, the claimant had the [RFC] to perform

sedentary work as defined in 20 CFR 404.1567(a) except that the claimant is

[only] occasionally able to stoop, kneel, crouch, crawl, and climb stairs. She

is not able to balance. She can occasionally reach, handle and finger. She

need[s] to have the opportunity to change position every forty-five minutes,

e.g., she c[an] sit for forty-five minutes and then need[s] to stand and stretch

for a few minutes.

(R. 14). The ALJ further found that Plaintiff could not perform her past relevant work, but

that she could perform other work that was identified by a vocational expert (“VE”).

Following Plaintiff’s unsuccessful appeal to the Appeals Council, the ALJ’s decision is now

1 Unless otherwise noted citations are to the Administrative Record.

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the Commissioner’s final decision.

Significantly, for purposes of this action, the ALJ determined that Plaintiff’s

impairments would not cause her to miss so much work that she would be unemployable.

At the hearing, after the VE identified particular jobs that a hypothetical claimant (with the

RFC ultimately found by the ALJ) could perform (R. 414), Plaintiff’s attorney asked the VE

what number of medical absences would make a claimant unemployable in those jobs,

and the VE responded that a claimant could miss “up to two full days per month” and still

maintain employment:

ATTORNEY: What would the absenteeism, the permissible absenteeism for

the types of jobs that you’ve identified in response to question 10, what

would be the expected tolerance for absenteeism in those positions?

VE: So, on a regular sustained basis it would be up to two full days per

month.

(R. 45-46). The VE further clarified that by “two full days” he was referring to “the

equivalent of two full shifts, two eight hour shifts per month.” (R. 46). The ALJ referred to

this testimony in his decision and found that Plaintiff would not miss more than the

allowable number of days of work, stating:

At the supplemental hearing, the claimant’s representative questioned

whether the claimant would be able to sustain employment if she were to be

absent from work [more than two days per month]. Although [the vocational

expert (“VE”)] testified that the claimant would be unable to sustain

employment under such circumstances, I find that the record does not

support such a restrictive residual functional capacity assessment. The

claimant has the residual functional capacity to attend work on a regular

basis.

(R. 18).

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Plaintiff now contends that the ALJ’s finding concerning her absenteeism from work

is not supported by substantial evidence. According to Plaintiff, “[t]he Commissioner

failed to properly consider that Plaintiff’s frequent need for medical treatment, including

surgeries, would have caused her to be absent from work far in excess of what is generally

tolerated in competitive employment[.]”2 On this point, Plaintiff observes that “RFC is the

individual’s maximum remaining ability to do sustained work activities in an ordinary setting

on a regular and continuing basis, [and] a ‘regular and continuing basis’ means 8 hours

a day, for 5 days a week, or an equivalent work schedule.”3 Plaintiff further indicates that

the alternative jobs identified by the ALJ at step 5 of the sequential evaluation would allow

“no more than two full absences from work per month,” according to the VE.4 However,

Plaintiff maintains that the record indicates that she would have missed more than two

days of work per month due to her impairments during the 21-month period at issue before

the ALJ, namely, March 29, 2012 (the alleged disability-onset date) through December 31,

2013 (her last-insured date).5

In support of this argument, Plaintiff calculates that according to the VE’s testimony,

the allowable number of absences during the relevant 21-month period would have been

“42 lost work days.”6 Plaintiff then indicates that she had “four surgical procedures”

during that period, namely: 1) a “laparoscopic gastric bypass procedure for her morbid

obesity condition” on August 9, 2012; 2) a “pulley release with flexor tenosynovectomy and

2 Pl. Memo of Law [#12-1] at p. 7.

3 Pl. Memo of Law [#12-1] at p. 8 (emphasis in original).

4 Pl. Memo of Law [#12-1] at p. 9.

5 Pl. Memo of Law [#12-1] at p. 9.

6 Pl. Memo of Law [#12-1] at p. 9.

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excision of multilobular flexor sheath ganglion cyst procedure on her left hand” on

November 28, 2012; 3) a “left knee arthroscopy with partial menisectomy” on April 25,

2013; and 4) a “right thumb basil joint athroscopy with tendon transfer” on October 18,

2013. Plaintiff does not indicate how long her actual recuperation period was for each of

those procedures. Plaintiff, though, argues that “if” the recuperation period for each

procedure was 30 days, then she would have missed more than 42 days during the

relevant period.

Alternatively, Plaintiff lists forty-five (45) medical appointments (including the

aforementioned surgical procedures) referenced in the record during the relevant 21-

month period. All but thirteen (13) of those appointments were either office visits or

independent medical examinations (“IMEs”). The remaining thirteen appointment consist

of the four surgical procedures already mentioned, along with nine (9) office visits at which

some type of treatment was received. Those treatments consisted of a “radiofrequency

lumbar medial branch neuolysis procedure”; a “gastroscopy procedure under sedation”;

“an epidural injection [in the] lumbar spine”; another “radiofrequency lumbar medial branch

neurolysis procedure”; an “MRI of [the] left knee”; a “radiofrequency ablation procedure to

[the] lumbar medial branch"; a "lidocaine injection into [the] left shoulder”; a “sacroiliac joint

injection procedure”; and a “lumbar epidural steroid injection.”7 Plaintiff does not indicate

how long each of those visits lasted. Nevertheless, Plaintiff contends that she “had

approximately 50 days with notable ‘medical events’ during the 21-month period at issue in

this claim,” and that “[o]n each of those days, she would have had to have been absent for

7 Pl. Mem. of Law [#12-1] at p. 14.

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all or part of the workday.” Plaintiff therefore maintains that she exceeded the acceptable

number of absences during the relevant period and that the ALJ erred in failing to find that

she was disabled. (R. 42).

Defendant responds that Plaintiff’s argument lacks merit and that the ALJ’s decision

is supported by substantial evidence. Defendant maintains, first, that Plaintiff has the

burden to establish disability, and that she therefore had the burden to show that her

absences exceeded the allowable number identified by the VE. Defendant further

indicates that apart from the absences “surrounding the laparoscopic bypass surgery on

August 9, [2012] through August 11, 2012, hand surgery on November 28, 2012,

arthroscopic knee surgery on April 25, 2013, [ ] right hand surgery on October 18, 2013,

[and] the gastroscopy procedure on August 1, 2012,” Plaintiff “has not shown that she was

required to be absent from work an entire day, or even to be absent at all, and has not

explained why she could not have seen the doctors outside of work hours.” Def. Memo of

Law [#13-1] at p. 5 (citations to record omitted).

The Court has considered the record and the parties’ submissions.

STANDARDS OF LAW

42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the Commissioner

of Social security as to any fact, if supported by substantial evidence, shall be conclusive.”

The issue to be determined by this Court is whether the Commissioner’s conclusions “are

supported by substantial evidence in the record as a whole or are based on an erroneous

legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence

8 Pl. Mem. of Law [#12-1] at pp. 14–15.

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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.” Id. (citation omitted).

The substantial evidence standard is a very deferential standard of review—

even more so than the ‘clearly erroneous’ standard, and the Commissioner’s

findings of fact must be upheld unless a reasonable factfinder would have to

conclude otherwise.” Brault v. Social Sec. Admin., Comm’r, 683 F.3d 443,

448 (2d Cir. 2012) (per curiam) (emphasis in original). “An ALJ is not

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

specific evidence does not indicate that such evidence was not considered.

Id.

Banyai v. Berryhill, 767 F. App'x 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019)

(internal quotation marks omitted).

In applying this standard, a court is not permitted to re-weigh the evidence. See,

Krull v. Colvin, 669 F. App'x 31, 32 (2d Cir. 2016) (“Krull's disagreement is with the ALJ's

weighing of the evidence, but the deferential standard of review prevents us from

reweighing it.”); see also, Riordan v. Barnhart, No. 06 CIV 4773 AKH, 2007 WL 1406649,

at *4 (S.D.N.Y. May 8, 2007) (“The court does not engage in a de novo determination of

whether or not the claimant is disabled, but instead determines whether correct legal

standards were applied and whether substantial evidence supports the decision of the

Commissioner.”) (citations omitted).

Plaintiff Has Not Shown That the ALJ Erred in Finding that She

Could Attend Work Regularly Despite Her Impairments

Plaintiff maintains that the ALJ erred in failing to consider that the frequency of her

medical appointments would make her unable to maintain regular employment. In this

regard, Plaintiff refers to the VE’s testimony that a claimant who was absent from work

more than two full days per month would be unemployable. Plaintiff further contends that

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the record indicates she would have missed more than two days of work per month during

the relevant 21-month period under consideration in this action. Consequently, Plaintiff

maintains that the ALJ’s determination that she was capable of performing other work on a

sustained basis is not supported by substantial evidence.

However, the Court agrees with Defendant that the record does not support

Plaintiff’s argument.9 Indeed, while Plaintiff alludes to “approximately 50” “notable

‘medical events’” during the relevant 21-month period, she lists only forty-five such events,

most of which were office visits. More specifically, of those forty-five events, twenty-four

were simple office visits, designated as “follow-up” visits or visits to discuss treatment

options. As for the other events, six were IMEs related to a motor vehicle accident or to

Plaintiff’s SSDI application; two were office visits at which Plaintiff had sutures removed;

nine were office visits at which Plaintiff received some type of treatment such as a pain

injection; and four were surgery dates.10

Contrary to Plaintiff’s position, this information does not indicate that she missed

more than 42 days of work during the relevant period. The record does not indicate, for

example, that any of the office visits mentioned earlier resulted in her missing any work, let

alone a “full day” of work. See, Best v. Berryhill, 730 F. App'x 380, 382 (7th Cir. 2018) (“As

9 For purposes of this Decision and Order only, the Court will assume arguendo that Plaintiff is correct to

argue that she can demonstrate disability by showing that she would miss too much work due to medical

appointments. But see, Cherkaoui v. Comm'r of Soc. Sec., 678 F. App'x 902, 904 (11th Cir. 2017) (“[W]e are

unpersuaded by Cherkaoui’s argument that the excessive number of medical appointments she attended

rendered her disabled. For starters, whether the number of medical appointments affects her ability to work

is not an appropriate consideration for assessing her residual functional capacity because that determination

considers only the functional limitations and restrictions resulting from medically determinable impairments.

See SSR 96-8p. The number of medical appointments she attended is not a functional limitation caused by

her impairments that would affect her physical or mental capabilities.”).

10 See, Pl. Mem. of Law [#12-1] at pp. 10–14.

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for his doctors’ appointments, Best has not shown that they would preclude him from

working. The vocational expert testified that employers generally tolerate up to three

absences per month, and Best cannot point to anything in the record to suggest that his

appointments would require him to miss a full day of work or that he could not schedule his

appointments outside of working hours.”); Barnett v. Apfel, 231 F.3d 687, 691 (10th Cir.

2000) (“[T]he ALJ did not err by failing to consider plaintiff's absenteeism. No such

evidence was presented at the hearing, and plaintiff's current extrapolation of how many

days she must have missed from work based on her medical record is faulty both in that it

is not limited to time missed due to her back impairment, neuropathy, and heart condition,

and in that it assumes she was required to miss entire days of work for each

appointment.”); Campbell v. Colvin, No. 14 CIV. 5385 KPF, 2015 WL 5311239, at *11, n.13

(S.D.N.Y. Sept. 11, 2015) (“[W]hile Campbell has had numerous medical procedures and

doctors’ visits, no evidence has been presented to show that such interruptions preclude

his keeping a generally normal schedule.”); Chestine G. v. Saul, No. 18 C 4980, 2020 WL

1157384, at *9 (N.D. Ill. Mar. 10, 2020) (“In essence, Chestine argues that her medical

appointments necessitated that she would consistently be absent from work more than 12-

18 days per year, but she has not met her burden to show that her primary care physician

appointments and physical therapy and chiropractor treatments preclude her from working.

Putting aside the ALJ’s appropriate rejection of Dr. Griffin’s finding that Chestine would

likely miss more than four days of work per month, Chestine did not identify any evidence

demonstrating that medical appointments would interfere with a full-time retail position and

that she would be unable to schedule those routine appointments during non-working

hours.”); Martin v. Berryhill, No. 7:16-CV-260-KKC, 2018 WL 1571906, at *4 (E.D. Ky. Mar.

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30, 2018) (“Martin claims the ALJ failed to properly consider her absenteeism necessitated

by her doctor's appointments. But Martin has not identified any evidence on the record that

the length of these appointments would require her to miss work.”). Nor does the record

indicate that Plaintiff’s surgical procedures resulted in her missing more than the

acceptable number of days of work. Consequently, the Court finds that Plaintiff’s

argument lacks merit.

CONCLUSION

For the reasons discussed above, Plaintiff’s motion for judgment on the pleadings

(ECF No. 12) is denied, Defendant’s cross-motion (ECF No. 13) for the same relief is

granted, and this matter is dismissed. The Clerk of the Court is directed to enter judgment

for Defendant and close this action.

So Ordered.

Dated: Rochester, New York

March 25, 2020

ENTER:

/s/ Charles J. Siragusa

CHARLES J. SIRAGUSA

United States District Judge

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