McCoy v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

CARLA JEAN McCOY,

DECISION & ORDER

Plaintiff,

19-CV-0646MWP

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_______________________________________

PRELIMINARY STATEMENT

Plaintiff Carla Jean McCoy (“McCoy”) brings this action pursuant to Section

205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision

of the Commissioner of Social Security (the “Commissioner”) denying her applications for

Supplemental Security Income and Disability Insurance Benefits (“SSI/DIB”). Pursuant to the

Standing Order of the United States District Court for the Western District of New York

regarding Social Security cases dated June 1, 2018, this case has been reassigned to, and the

parties have consented to the disposition of this case by, the undersigned. (Docket # 9).

Currently before the Court are the parties’ motions for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 5, 7). For the

reasons set forth below, this Court finds that the decision of the Commissioner is supported by

substantial evidence in the record and is in accordance with applicable legal standards.

Accordingly, the Commissioner’s motion for judgment on the pleadings is granted, and McCoy’s

motion for judgment on the pleadings is denied.

DISCUSSION

I. Standard of Review

This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner

applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)

(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether

the correct legal standards were applied and whether substantial evidence supports the

decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also

Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo

whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s

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

erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.

§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits

is directed to accept the Commissioner’s findings of fact unless they are not supported by

“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to

any fact, if supported by substantial evidence, shall be conclusive”). 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) (internal quotation omitted).

To determine whether substantial evidence exists in the record, the court must

consider the record as a whole, examining the evidence submitted by both sides, “because an

analysis of the substantiality of the evidence must also include that which detracts from its

weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent

they are supported by substantial evidence, the Commissioner’s findings of fact must be

sustained “even where substantial evidence may support the claimant’s position and despite the

fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.

Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d

60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).

A person is disabled for the purposes of SSI and disability benefits if he or she is

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). In assessing whether a claimant is disabled, the ALJ must

employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)

(per curiam). The five steps are:

(1) whether the claimant is currently engaged in substantial

gainful activity;

(2) if not, whether the claimant has any “severe impairment”

that “significantly limits [the claimant’s] physical or mental

ability to do basic work activities”;

(3) if so, whether any of the claimant’s severe impairments

meets or equals one of the Listings in Appendix 1 of

Subpart P of Part 404 of the relevant regulations;

(4) if not, whether despite the claimant’s severe impairments,

the claimant retains the residual functional capacity

[(“RFC”)] to perform his or her past work; and

(5) if not, whether the claimant retains the [RFC] to perform

any other work that exists in significant numbers in the

national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.

“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t

step five the burden shifts to the Commissioner to ‘show there is other gainful work in the

national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383

(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).

II. The ALJ’s Decision

In his decision, the ALJ followed the required five-step analysis for evaluating

disability claims. (Tr. 10-21).1 At step one of the process, the ALJ found that McCoy had not

engaged in substantial gainful activity since March 31, 2015, the alleged onset date. (Id.). In

reaching this determination, the ALJ recognized that McCoy had engaged in work activity

subsequent to the alleged onset date and that she had earned substantial gainful activity during

several quarters after the alleged onset date. (Id.). Nevertheless, “as a prophylactic adjudicatory

measure,” the ALJ found that she had not engaged in substantial gainful activity and proceeded

through the remaining steps of the analysis. At step two, the ALJ concluded that McCoy had the

severe impairments of chronic obstructive pulmonary disease (“COPD”), major depressive

disorder, dysthymia, and panic disorder without agoraphobia. (Id.). At step three, the ALJ

determined that McCoy did not have an impairment (or combination of impairments) that met or

medically equaled one of the listed impairments. (Id.). With respect to McCoy’s mental

limitations, the ALJ found that she suffered from moderate limitations in understanding,

remembering, or applying information and concentrating, persisting or maintaining pace, and

mild limitations in interacting with others and adapting or managing oneself. (Id.). The ALJ

concluded that McCoy had the RFC to perform work at all exertional levels, but that she was

unable to perform any complex work involving multiple simultaneous goals or objectives or the

1 The administrative transcript (Docket # 4) shall be referred to as “Tr. ___,” and references thereto utilize

the internal Bates-stamped pagination assigned by the parties.

need to independently set quality or quantity standards, and was limited to work involving

simple, repetitive 1-2 step tasks, no public contact, occasional contact with coworkers and

supervisors, and no more than one change per day in work task or locations. (Id.). At steps four

and five, the ALJ determined that McCoy was unable to perform her past relevant work but that

jobs existed in the national economy that McCoy could perform, including the positions of

laundry laborer and factory helper. (Id.). Accordingly, the ALJ found that McCoy was not

disabled. (Id.).

III. McCoy’s Contentions

McCoy contends that the ALJ’s determination that she is not disabled is not

supported by substantial evidence and is the product of legal error. (Docket # 5-1). First,

McCoy maintains that the ALJ’s physical RFC assessment is flawed because it was not based

upon a medical opinion of McCoy’s functional limitations. (Id. at 9-12). Second, McCoy asserts

that the ALJ failed to account for the moderate mental limitations assessed by the non-examining

consultant Janet Souder (“Souder”), Psy.D. (Id. at 12-15).

IV. Analysis

An individual’s RFC is her “maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198

F.3d 45, 52 (2d Cir.1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (July 2, 1996)). When

making an RFC assessment, the ALJ should consider “a claimant’s physical abilities, mental

abilities, symptomology, including pain and other limitations which could interfere with work

activities on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221

(N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider

all the relevant evidence, including medical opinions and facts, physical and mental abilities,

non-severe impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue,

2009 WL 1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 370

F. App’x 231 (2d Cir. 2010).

A. The ALJ’s Physical RFC Determination

I turn first to McCoy’s challenge to the ALJ’s physical RFC assessment. (Docket

# 5-1 at 9-12). McCoy reasons that because the ALJ did not rely upon any medical opinion

containing a functional assessment of her physical work-related capabilities, her RFC is not

based upon substantial evidence. (Id.). I disagree.

“It is well established in the Second Circuit that an ALJ is under an obligation to

develop the administrative record fully, to ensure that there are no inconsistencies in the record

that require further inquiry, and to obtain the reports of treating physicians and elicit the

appropriate testimony during the proceeding.” Martello v. Astrue, 2013 WL 1337311, *3

(W.D.N.Y. 2013). Given the non-adversarial nature of a Social Security hearing, “[t]he duty of

the ALJ, unlike that of a judge at trial, is to ‘investigate and develop the facts and develop the

arguments both for and against the granting of benefits.’” Vincent v. Comm’r of Soc. Sec., 651

F.3d 299, 305 (2d Cir. 2011) (quoting Butts, 388 F.3d at 386). Although the Commissioner has a

general duty to develop the record, it is ultimately “the plaintiff’s burden to furnish . . . medical

and other evidence of disability.” Threatt v. Colvin, 2016 WL 1103864, *4 (W.D.N.Y. 2016).

Despite a general duty to develop the record, including obtaining medical

opinions of the claimant’s functional capabilities, the “regulatory language provides ample

flexibility for the ALJ to consider a broad array of evidence as ‘medical opinions.’” Rouse v.

Colvin, 2015 WL 7431403, *5 (W.D.N.Y. 2015) (quoting Sickles v. Colvin, 2014 WL 795978,

*4 (N.D.N.Y. 2014)). In any event, “it is not per se error for an ALJ to make the RFC

determination absent a medical opinion.” Lewis v. Colvin, 2014 WL 6609637, *6 (W.D.N.Y.

2014) (citing Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29 (2d Cir. 2013)). This is

particularly true where the medical evidence shows relatively minor physical impairments such

that the ALJ “permissibly can render a common sense judgment about functional capacity even

without a physician’s assessment.” Id. (quotations omitted). The salient question is whether the

record “contains sufficient evidence from which an ALJ can assess the [claimant’s RFC].” Id.

(quoting Tankisi v. Comm’r of Soc. Sec., 521 F. App’x at 34).

Having carefully reviewed the administrative record, I conclude that there is no

gap, the ALJ properly formulated McCoy’s physical RFC based upon a comprehensive review of

the record, and his determination is supported by substantial evidence in the record. McCoy’s

medical records, imaging results, and her own statements regarding her capabilities demonstrate

that the ALJ permissibly formulated McCoy’s RFC to account for any physical impairments

supported by the record without the assistance of a medical opinion.

As an initial matter, McCoy’s medical records demonstrate that she has sought

limited, if any, treatment for any ongoing physical impairments. To the contrary, McCoy’s

treatment history primarily addressed her ongoing mental health impairments. (Tr. 296-377).

With respect to her physical well-being, she sporadically sought treatment for complaints of

polyuria and a rash, both of which apparently resolved with treatment. (Tr. 390-93, 398-400,

409-18). She also visited her doctor in September and November of 2016 with complaints of

weight loss, dizziness, neck pain that had improved, and tooth pain. (Tr. 381-82, 385-89).

Between 2014 and 2016, McCoy visited her primary care physician several times

complaining of a persistent cough, which was attributed to various potential causes, including an

infection, her prescribed medications, and allergies. (Tr. 387-89, 401-03, 405-08). A chest x-ray

conducted on April 27, 2015 was unremarkable, demonstrating clear and well-aerated lungs.

(Tr. 403). In 2016, McCoy’s physician advised her to stop smoking and ordered another chest

x-ray, which was not completed. (Tr. 383-89).

In July 2017, McCoy began treatment with Qamrunnisa Rahman (“Rahman), MD,

reporting that she was applying for work in the caregiving field and needed a physical evaluation

form completed. (Tr. 459-64). Upon examination, Rahman observed that McCoy had decreased

airflow. (Id.). She assessed COPD and ordered a chest x-ray and a pulmonary function test.

(Id.). According to Rahman, McCoy was a longtime smoker, but had not had any recent

pulmonary functioning tests. (Id.). The chest x-rays revealed no active cardiopulmonary process

and the pulmonary function test demonstrated “essentially normal spirometric data and lung

volume.” (Tr. 470-71). Rahman prescribed Symbicort and her subsequent examinations

demonstrated clear auscultation in McCoy’s lungs. (Tr. 452-58). During these visits, McCoy

was described as “physically quite active,” having reported that she engaged in exercise and

walking at home. (Tr. 460-64). During a follow-up visit on October 2, 2017, Rahman did not

identify COPD as an ongoing impairment and did not recommend any additional

respiratory-related treatment. (Tr. 452-54).

In her application for benefits, McCoy did not identify any physical impairments

as impediments to her ability to work; instead, she only identified mental impairments, including

a nervous breakdown in July 2015, major depression, panic attacks, and slow learning, as

conditions that limited her ability to work. (Tr. 238). Contrary to McCoy’s current contentions

(Docket # 5-1 at 10), her testimony during the administrative hearing does not support that she

suffered from any ongoing physical impairments, and she did not attribute her inability to work

to physical infirmities, particularly any respiratory issues. (Tr. 51-53). Indeed, after vague

testimony concerning her difficulty with balance at her previous job, the ALJ directly asked

McCoy’s counsel whether there was anything in the record to support that McCoy suffered from

any physical impairment. (Tr. 54). Her counsel responded that there was not. (Id.).

Evidence in the record is consistent with the ALJ’s conclusion that McCoy did

not suffer from any ongoing physical limitations. The evidence demonstrated that during the

relevant period McCoy was employed as a cashier, welder, and as a nurse’s aide, at times at

substantial gainful levels. (Tr. 35, 38-41). McCoy testified that she was unable to maintain these

jobs, primarily due to her mental impairments, which caused her to have poor attendance and

difficulty interacting with others. (Tr. 40-41). Although she testified that she was unable to

“physically” perform the welder position, she clarified that she was unable to maintain the pace

that the position required. (Id.). Additionally, the record suggests that McCoy participated in

substantial activities of daily living including, attending GED classes, working, household

chores, shopping, cooking, and exercising. (Tr. 34-41, 49-50, 262-64).

In sum, the record contained McCoy’s medical treatment records and testing

results, and there are no apparent gaps in those records. A comprehensive review of the record

demonstrates that McCoy suffered from COPD. Nothing in the record suggests that this physical

impairment limited her ability to engage in work-related activities. Under such circumstances, I

conclude that the ALJ was permitted to formulate an RFC without a medical opinion that directly

assessed McCoy’s physical ability to complete work-related functions. See Crouse v. Colvin,

2017 WL 975973, *6 (N.D.N.Y. 2017) (ALJ did not err by rejecting all medical opinions of

record and assessing plaintiff’s RFC based upon the medical record where the medical evidence

demonstrated relatively minor physical impairment); Countryman v. Colvin, 2016 WL 4082730,

*13 (W.D.N.Y. 2016) (ALJ was permitted to make common sense judgment regarding plaintiff’s

reaching limitation despite absence of medical opinion assessing that limitation where record

showed relatively minor impairment and where “lack of . . . evidence in the record support[ed] a

more restrictive limitation”); Lay v. Colvin, 2016 WL 3355436, *7 (W.D.N.Y. 2016) (ALJ was

permitted to consider medical records and use common sense judgment to arrive “at a reasonable

conclusion regarding [p]laintiff’s RFC, as permitted by the [r]egulations”); Rouse v. Colvin,

2015 WL 7431403 at *6 (no “per se error” where record did not contain “recent medical opinion

that specifies [p]laintiff’s specific functional abilities, or evidence that an RFC report was

requested” where “RFC determination was based on substantial evidence because the record

contained ample evidence for the ALJ to make a finding on disability”); Lewis v. Colvin, 2014

WL 6609637 at *6 (“[i]n light of the record evidence, the relatively minor physical impairments

at issue, and the absence of physician/patient relationships, this [c]ourt concludes it was

permissible for the ALJ to make an RFC determination without a treating source’s opinion”);

Schade v. Colvin, 2014 WL 4204946, *23 (E.D. Mo. 2014) (ALJ did not err by failing to order

consultative examination to assess plaintiff’s mental capabilities where plaintiff did not include

allegations of depression or anxiety in her application and did not testify to any mental

impairments that limited her ability to work); Gillard v. Colvin, 2013 WL 954909, *3 (N.D.N.Y.

2013) (ALJ did not err in failing to order consultative psychological exam where plaintiff sought

sporadic treatment for mental health issues and did not identify any limitations caused by

depression in application or hearing testimony); Brown v. Astrue, 2013 WL 310292, *3

(N.D.N.Y. 2013) (ALJ permissibly rendered common sense judgment regarding plaintiff’s

ability to lift and carry despite absence of medical source statement opining as to weight plaintiff

could manage where record demonstrated relatively minor physical impairment and ALJ’s

determination was supported by medical evidence of record); Bianco v. Astrue, 2012 WL

441147, *11 (E.D. Mo. 2012) (ALJ did not err by failing to obtain medical opinion assessing

plaintiff’s functional capacity; “[w]ith respect to plaintiff’s obesity and alleged depression,

plaintiff and his physicians have not identified additional functional limitations attributable to

either condition[, and] [u]nder these circumstances, the ALJ was not required to obtain additional

consultative examinations”); Taylor v. Astrue, 2012 WL 294532, *7 (D. Md. 2012) (ALJ

adequately accounted for plaintiff’s visual limitations caused by cataracts where visual acuity

tests demonstrated corrected vision between 20/50 and 20/70 and ALJ “incorporated a specific

visual acuity limitation reflecting these results into his RFC”).

In essence, McCoy suggests that her age, limited education and work history

somehow placed a burden upon the Commissioner to demonstrate that she was capable of

performing the exertional requirements of medium work. (Docket # 5-1 at 11 (“[t]here is no

indication from this file that [p]laintiff had the requisite strength, especially considering her age,

to perform medium work”)). To the contrary, the burden lies with McCoy, not the

Commissioner, to establish that she suffers from limitations resulting in a restricted RFC. See

Mitchell v. Colvin, 2015 WL 3970996, *4 (W.D.N.Y. 2015) (“[i]t is, however, [p]laintiff’s

burden to prove h[er] RFC”); Williams v. Berryhill, 2018 WL 987257, *5 (N.D.N.Y. 2018)

(“[t]he plaintiff bears the burden of producing evidence to establish any functional limitations

that would prevent him or her from engaging in substantial gainful activity”) (citing 20 C.F.R.

§ 416.929(a)(3)). As recounted above, there is very little in the record to suggest, much less

establish, that McCoy suffers from any physical limitations.

B. The ALJ’s Mental RFC Assessment

I turn next to McCoy’s contention that the ALJ failed to account for the moderate

limitations assessed by Souder. (Docket # 5-1 at 12-15). Specifically, McCoy maintains that the

ALJ’s RFC assessment fails to account for her limited ability to maintain attendance, a regular

work schedule, and attention or concentration for extended periods. (Id.).

I disagree. McCoy is correct that Souder opined that McCoy would be

moderately limited in her ability to understand, remember, and carry out detailed instructions,

maintain attention and concentration for extended periods, perform activities within a schedule,

maintain regular attendance, and be punctual within customary tolerances, work in coordination

with or in proximity to others without being unduly distracted by them, complete a normal

workday and workweek without interruptions from psychologically-based symptoms and to

perform at a consistent pace without an unreasonable number and length of rest periods, interact

appropriately with the general public, accept instructions and respond appropriately to criticism

from supervisors, and get along with coworkers or peers without distracting them or exhibiting

behavioral extremes. (Tr. 92-94). Nevertheless, Souder concluded that despite these limitations

McCoy retained the mental ability to understand, recall, and carry out 2-3 step tasks in an

environment where contact with others was superficial and infrequent, and would be able to

adapt to routine changes and work pressures. (Tr. 94).

I find that the ALJ’s RFC assessment accounted for the limitations assessed by

Souder and was entirely consistent with her opinion that McCoy could perform unskilled work

requiring superficial and infrequent contact with others. Accordingly, I conclude that the ALJ

properly evaluated and incorporated into his RFC assessment the limitations identified in

Souder’s opinion, even if he did not explicitly discuss each limitation. See Patterson v. Colvin,

2015 WL 5036934, *11 (W.D.N.Y. 2015); Ross v. Colvin, 2015 WL 1189559, *12 (W.D.N.Y.

2015); Crawford v. Astrue, 2014 WL 4829544, *22 (W.D.N.Y. 2014). McCoy’s contention that

Souder’s opinion was impermissibly vague is similarly unavailing. See Burgos v. Colvin, 2016

WL 5661738, *13 (W.D.N.Y. 2016) (citing Rosenbauer v. Astrue, 2014 WL 4187210, *16

(W.D.N.Y. 2014) (collecting cases)).

The record does not support McCoy’s contention that she is unable to perform

unskilled work with the limitations identified by the ALJ. Indeed, the record reflects that McCoy

was able to perform activities of daily living and maintain employment, at times at substantial

gainful levels, despite her mental limitations. I conclude that the ALJ’s RFC assessment was

based upon a thorough review of the record and was supported by substantial record evidence;

accordingly, remand is not warranted. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)

(“[n]one of the clinicians who examined [claimant] indicated that she had anything more than

moderate limitations in her work-related functioning, and most reported less severe limitations[;]

[a]lthough there was some conflicting medical evidence, the ALJ’s determination that

[p]etitioner could perform her previous unskilled work was well supported”).

CONCLUSION

After careful review of the entire record, this Court finds that the Commissioner’s

denial of SSI/DIB was based on substantial evidence and was not erroneous as a matter of law.

Accordingly, the ALJ’s decision is affirmed. For the reasons stated above, the Commissioner’s

motion for judgment on the pleadings (Docket # 7) is GRANTED. McCoy’s motion for

judgment on the pleadings (Docket # 5) is DENIED, and McCoy’s complaint (Docket # 1) is

dismissed with prejudice.

IT IS SO ORDERED.

s/Marian W. Payson

MARIAN W. PAYSON

United States Magistrate Judge

Dated: Rochester, New York

June 18, 2020