Dagonese v. Commissioner of Social Security

awe FILED “50

Ne

JUN ~ § 2020

UNITED STATES DISTRICT COURT Lu ew

WESTERN DISTRICT OF NEW YORK Naki. Loey wen

STERN DISTRICLO™

THOMAS DAGONESE, 18-CV-1021-MJR

DECISION AND ORDER

Plaintiff,

-V-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

Magistrate Judge conduct all proceedings in this case. (Dkt. No. 17)

Plaintiff Thomas Dagonese (“plaintiff”) brings this action pursuant to 42 U.S.C.

§§405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner

of Social Security (“Commissioner” or “defendant”) denying his applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social

Security Act (the “Act”). Both parties have moved for judgment on the pleadings pursuant

to Rule 12(c) of the Federal Rules of Civil Procedure. For the following reasons, plaintiff's

motion (Dkt. No. 10) is denied and defendant's motion (Dkt. No. 15) is granted.

BACKGROUND'

Plaintiff filed for DIB and SSI on November 20, 2014, alleging disability beginning

June 30, 2010. (Tr. 15, 185-92)? His claim was initially denied, and plaintiff then

' The Court presumes the parties’ familiarity with plaintiff's medical history, which is summarized in the

moving papers. The Court has reviewed the medical record, but cites only the portions of it that are relevant

to the instant decision.

2 References to “Tr.” are to the administrative record in this case. (Dkt. No. 7)

appeared and testified at an administrative hearing on June 8, 2017, during which he

amended the alleged onset date to May 8, 2012. (Tr. 15, 18, 34-94, 99-114, 266-72, 307-

09) Administrative Law Judge (“ALJ”) Benjamin Chaykin issued an unfavorable decision

on August 2, 2017. (Tr. 12-33) The Appeals Council subsequently denied review on July

18, 2018. (Tr. 1-6) This action followed. (Dkt. No. 1)

The issue before the Court is whether there was substantial evidence to support

the ALJ’s decision that plaintiff was not under a disability as defined by the Act.

DISCUSSION

I, Scope of Judicial Review

The Court's review of the Commissioner's decision is deferential. Under the Act,

the Commissioner's factual determinations “shall be conclusive” so long as they are.

“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such

relevant evidence as a reasonable mind might accept as adequate fo support [the]

conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks

and citation omitted). “The-substantial evidence test applies not only to findings on basic

evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.

Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner's decision

rests on adequate findings supported by evidence having rational probative force,” the

Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Bamharft,

312 F.3d 578, 586 (2d Cir. 2002}. Thus, the Court's task is to ask “‘whether the record,

read as a whole, yields such evidence as would allow a reasonable mind to accept the

conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574

(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).

Two related rules follow from the Act’s standard of review. The first is that “Tit is

the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to

appraise the credibility of witnesses, including the claimant.” Carrolf v. Sec’y of Health &

Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[glenuine

conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d

at 588. While the applicable standard of review is deferential, this does not mean that the

Commissioner's decision is presumptively correct. The Commissioner's decision is, as

described above, subject to remand or reversal if the factual conclusions on which it is

based are not supported by substantial evidence. Further, the Commissioner's factual

conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d

260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. /d.

lf. standards for Determining “Disability” Under the Act

A “disability” is an “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). The Commissioner may find the

claimant disabled “only if his physical or mental impairment or impairments are 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.” §423(d)(2)(A), The Commissioner

must make these determinations based on “objective medical facts, diagnoses or medical

opinions based on these facts, subjective evidence of pain or disability, and . . . [the

claimant's] educational background, age, and work experience.” Dumas v. Schweiker,

712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in original) (quoting Miles v. Harris,

645 F.2d 122, 124 (2d Cir. 1981)).

To guide the assessment of whether a claimant is disabled, the Commissioner has

promuigated a “five-step sequential evaluation process.” 20 C.F.R. §404.1520(a)(4).

First, the Commissioner determines whether the claimant is “working” and whether that

work “is substantial gainful activity.” fd. §404.1520(b). If the claimant is engaged in

substantial gainful activity, the claimant is “not disabled regardless of [his or her] medical

condition or... age, education, and work experience.” /d. Second, if the claimant is not

engaged in substantial gainful activity, the Commissioner asks whether the claimant has

a “severe impairment.” /d.§404.1520(c). To make this determination, the Commissioner

asks whether the claimant has “any irnpairment or combination of impairments which

significantly limits [the claimant's] physical or mental ability to do basic work activities.”

id. As with the first step, if the claimant. does not have a severe impairment, he or she is

not disabled regardless of any other factors or considerations. /d. Third, if the claimant

does have a severe impairment, the Commissioner asks two additional questions: first,

whether that severe impairment meets the Act's duration requirement, and second,

whether the severe impairment is either listed in Appendix 1 of the Commissioner's

regulations or is “equal to” an impairment listed in Appendix 1. /d. §404.1520(d). If the

claimant satisfies both requirements of step three, the Commissioner will find that he or

she is disabled without regard to his or her age, education, and work experience. /d.

If the claimant does not have the severe impairment required by step three, the

Commissioner's analysis proceeds to steps four and five. Before doing so, the

Commissioner must “assess and make a finding about [the claimant's] residual functional

capacity ["RFC"] based on all the relevant medical and other evidence” in the record. /d.

§404.1520(e). RFC “is the most [the claimant] can still do despite [his or her] limitations.”

Id. §404.1545(a)(1). The Commissioner's assessment of the claimant's RFC is then

applied at steps four and five. At step four, the Commissioner “compare[s] [the] residual

functional capacity assessment . . . with the physical and mental demands of [the

claimant's] past relevant work.” /d. §404.1520(f). If, based on that comparison, the

claimant is able to perform his or her past relevant work, the Commissioner will find that

the claimant is not disabled within the meaning of the Act. /d. Finally, if the claimant

cannot perform his or her past relevant work or does not have any past relevant work,

then at the fifth step the Commissioner considers whether, based on the claimant's RFC,

age, education, and work experience, the claimant “can make an adjustment to other

work.” /d. §404.1520(g)(1)._ If the claimant can adjust to other work, he or she is not

disabled. /d. If, however, the claimant cannot adjust to other work, he or she is disabled

within the meaning of the Act. /d.

The burden through steps one through four described above rests on the claimant.

if the claimant carries their burden through the first four steps, “the burden then shifts to

the [Commissioner] to show there is other gainful work in the national economy which the

claimant could perform.” Carrol/, 705 F.2d at 642.

Il. The ALJ’s Decision

The ALJ followed the required five-step analysis for evaluating plaintiffs claim.

Under step one, the ALJ found that plaintiff did not engage in substantial gainful activity

since the alleged onset date of May 8, 2012. (Tr. 18) step two, the ALJ found that

plaintiff had severe impairments of: (1) obesity; (2) bilateral knee osteoarthritis, status

post total knee replacements; (3) left Achilles’ tendinosis; (4) affective disorder; (5) anxiety

disorder; and (6) panic disorder.’ (/d.) At step three, the ALJ determined that plaintiff did

not have an impairment combination of impairments that meets or medically equals the

severity of one of the listed impairments. (Tr. 19) Before proceeding to step four, the ALJ

assessed plaintiffs RFC as follows:

The claimant has the residual functional capacity to perform sedentary work

as defined in 20 CFR 404.1567(a) and 416.967(a) and SSR 83-10 except

the claimant cannot climb ladders, ropes, or scaffolds; he can occasionally

climb ramps. or stairs, stoop, crouch, balance, kneel, and crawl. He may

have occasional interaction with supervisors, coworkers, and the public.

The claimant is limited to a static work environment; that is, he may be

exposed to few changes in the work setting. Finally, he may occasionally

operate foot controjs with his left lower extremity.

(Tr. 20-21)

Proceeding to step four, the ALJ found that plaintiff was unable to perform his past

relevant work as an HVAC technician. (Tr. 27) Proceeding to step five, and after

considering testimony from a vocational expert, in addition to plaintiffs age, work

experience and RFC, the ALJ found that there were other jobs that exist in significant

numbers in the national economy that plaintiff could perform, such as document preparer,

3 Although plaintiff claimed disability due to mental impairments, they are not at issue in deciding the instant

motions. (See Dkt. No. 15-1 at 4)

addressing clerk, and printed circuit board assembler, (Tr. 27-28) Accordingly, the ALJ

found that plaintiff had not been under a disability within the meaning of the Act. (Tr. 28)

IV. Plaintiff's Challenge

Plaintiff argues that remand is required because the RFC assessment is not fully

reflective of the limitations imposed by plaintiff's physical impairments, and is unsupported

by substantial evidence and the medical opinions. (See Dkt. No. 10-1 at 9-17)

Specifically, he argues that the ALJ erred in not including more limitations due to his

Achilles’ tendonitis and asserts that the ALJ relied on.his own lay opinion without seeking

additional medical opinions. (/d.)

Generally, when assessing a plaintiffs RFC, “[aJn ALJ must rely on the medical

findings contained within the record and cannot make his own diagnosis without

substantial medical evidence to support his opinion.” Goldthrite v. Astrue, 535 F. Supp.

2d. 329, 339 (W.D.N.Y. 2008). However, when the medical. evidence shows only minor

impairments, “an ALJ permissibly can render a common-sense judgment about functional

capacity even without a physician's assessment.” Wilson v. Colvin, 13-C\V-6286, 2015

WL 1003933, “21 (W.D.N.Y. Mar. 6, 2015); see also Matta v. Astrue, 508 Fed. Appx. 53,

56 (2d Cir. 2013) (“Although the ALJ’s conclusion may not perfectly correspond with any

of the opinions of medical sources cited in his decision, he was entitled to weigh all of the

evidence available to make an RFC finding that was consistent with the record as a

whole.”)

Here, the ALJ found Plaintiff retained the ability to perform sedentary work with

postural limitations involving no climbing of ladders, ropes or scaffolds and the ability to

occasionally climb ramps, stairs, stoop, crouch, balance, kneel, crawl and operate foot

controls with his left lower extremity. (Tr. 20-21) The ALJ found that despite improvement

in plaintiff's bilateral knee osteoarthritis after surgery, his Achilles’ tendonitis beginning in

2015 would continue to limit plaintiffs ability to stand, walk, and perform postural

activities. (Tr. 25, 26) In formulating the RFC, the ALJ considered plaintiffs function

report and hearing testimony, the objective medical evidence, and the opinions of

plaintiff's treating and consulting physicians. (Tr. 21-27)

Initially, the ALJ did rely in part on the opinion evidence in formulating the RFC.

Plaintiffs treating physician Kenneth Krackow, M.D., issued a medical opinion on March

2, 2015, three months after plaintiff's right knee replacement and five months before his

left knee replacement. (Tr. 395-401) He reported that plaintiff had bilateral knee

osteoarthritis and was-status post right knee replacement. (Tr. 395, 396) He noted that

plaintiff had a good prognosis for his right knee but his left knee prognosis was poor. (Tr.

386) Dr. Krackow reported plaintiff's left knee osteoarthritis limited physical activity due

to. pain. (Tr. 398) He opined plaintiff could occasionally lift and carry 20 pounds, was

limited to stand and/or walk up to two hours in a work day, and had no other limitations

(sitting, pushing, pulling, including foot controls). (Tr. 398) Dr. Krackow reported that

plaintiff had limitations still present due to his left knee osteoarthritis. (Tr. 399)

The ALJ afforded this opinion partial weight because it was consistent with the

objective medical evidence. He further noted that, “although the claimant would receive

a successful left knee replacement within a few months, his subsequent Achilles’

tendonitis would impose similar restrictions. Consequently, additional restrictions on the

operation of left-side foot controls, climbing and postural activities are appropriate.” (Tr.

26)

With respect to the diagnosis of Achilles’ tendonitis, there is only one treatment

note in the administrative record, dated August 30,.2016. (Tr. 677-79). Plaintiff saw Dr.

Jennifer Gurseke-Deperlo for complaints of pain in his left foot and ankle pain that first

arose after his left knee surgery one year earlier. He told the doctor he first had the pain

when he awoke after that surgery. He described it as daily, intermittent, and very position

based — activity had less effect on it than his foot position did. He mentioned stiffness in

the morning and after he rested. He said he could not sleep on his. right side because

the left ankle was unsupported. His pain improved with a recliner or elevation and when

he pointed his foot. There was no mechanical locking, instability, or radiating pain. (Tr.

677) Upon examination, plaintiffs ankle had 5-40 degrees of range and was nontender.

He had a stable anterior drawer test. There was edema over his hind foot/Achilles area.

Dr. Gurseke-Deperlo found significant tenderness to palpation of his Achilles’ tendon

midsubstance, but no tenderness at the Achilles’ insertion. (Tr. 678) Plaintiffs x-ray

review showed no fracture, dislocation, malalignment or degenerative changes. (Tr. 678)

Dr. Gurseke-Deperlo assessed plaintiff with left Achilles tendinosis midsubstance with

acute tendonitis which was evident clinically by a thickened and tender midsubstance

Achilles’ tendon due to lack of good blood flow. (Tr. 678) She prescribed Plaintiff a CAM

boot and walker. (Tr. 679) She also prescribed a heel lift, physical therapy, stretching,

rest and activity modification. (/d.)

At the administrative hearing on June 8, 2017, plaintiff testified that he had

tendonitis in his ankle since August 2015,4 and that he was trying to stay off the foot,

* Although there were no treatment records for the Achilles’ tendonitis prior io August, 2016, the ALJ

appears to credit plaintiff's testimony that his pain began immediately after his left knee surgery a year prior.

(Tr. 25, 59-60)

keeping it elevated after walking, and using ice for relief. (Tr. 44) He stated that his ankle

would “act up” if he walked a block or block and-a-half, but that his knees “fe[It] great.”

(Tr. 53) He could stand for about 20 minutes before having to lift his ankle, and could sit

for about 30-45 minutes before the ankle would become tight and uncomfortable. (Tr. 53-

54) He could climb stairs and lived in a-second-floor apartment, but could not climb a

ladder. (Tr. 54-55) Plaintiff stated that he did not get assistance from anyone performing

household chores, shopping, preparing meals, or doing laundry. (Tr. 58)

The ALJ considered all of the above evidence in formulating the RFC, including

the single treatment note by Dr. Gurseke-Deperlo which revealed largely unremarkable

findings and negative left ankle x-rays.5 Not withstanding the lack of medical treatment,

largely benign findings on examination, and conservative measures for relief, the ALJ

nonetheless credited many of plaintiff's subjective complaints and incorporated additional

restrictions into the RFC specific to the left ankle impairment. (Tr. 25, 27) Where, as

here, the medical records do not reflect disabling impairments, an ALJ may render a

“common sense judgment” where medical evidence shows relatively minor impairments.

Gross v. Astrue, No. 12-CV-6207, 2014 WL 1806779, *18 (W.D.N.Y. May 7, 2014); see

e.g., Countryman v. Colvin, No. 15-CV-06131, 2016 WL 4082730, *13 (W.D.N.Y. Aug. 1,

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, No. 14-CV-981, 2016 WL

5 Plaintiffs challenge specifically relates to the impairment of Achilles’ tendonitis, as the treatment notes

and his own testimony indicates that his bilateral osteoarthritis had resolved after surgery. Accordingly, the

Court need not delve into the balance of the medical record. (Tr. 23,.26)

10

3355436, *7 (W.D.N.Y. June 16, 2016) (ALJ was permitted to consider medical records

and use common sense judgment to arrive “at a reasonable conclusion regarding

[plaintiffs RFC, as permitted by the [rJegulations”); Rouse v. Colvin, No. 14-CV-817, 2015

WL 7431403 at *6 (Nov. 23, 2015) (no per se error where record did not contain “recent

medical opinion that specifies [p]laintiffs specific functional abilities, or evidence 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,

and he was not obligated to seek out additional medical opinions specific to Plaintiffs

functional abilities.”). Thus, any failure by the ALJ to request the opinion of a medical

source does not require remand where “the récord contains sufficient evidence from

which an ALJ can assess the [claimant's residual functional capacity.” Tankisi v. Comm'r

of Social Sec., 521 Fed. Appx. 29, 34 (2d Cir. 2013) (citing cases). Accordingly, the ALJ

did not improperly substitute his own lay opinion in assessing Plaintiffs RFC.

Plaintiff urges the Court to find that the ALJ should have further accepted plaintiff's

assertion that he had to take breaks and elevate his legs, which he claims conflicts with

the formulated RFC. (See Dkt. No. 16) However, “ijt is the function of the

[Commissioner], not [reviewing courts], to resolve evidentiary conflicts and to appraise

the credibility of witnesses, including the claimant,” and that “[i]f there is substantial

evidence in the record to support the Commissioner's findings, ‘the court must uphold the

ALJ's decision to discount a claimant's subjective complaints of pain.” Schlichting v.

Astrue, 11 F. Supp. 3d at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705

F.2d 638, 642 (2d Cir. 1983); Aponte v. Sec’y, Dep't of Health and Human Servs., 728

F.2d 588, 591 (2d Cir. 1984)). While the ALJ credited the majority of plaintiff's testimony,

11

he was not required to accept all of plaintiff's subjective complaints without question. See

Campbell v. Astrue, 465 Fed. Appx. 4, 7 (2d Cir. 2012) (Summary order).

In any event, the ALJ in this case assessed an RFC more restrictive than the record

evidence supports. See, e.g., Byrd v. Saul, No. 18-C\V-01244F, 2020 WL 888044, at *4

(W.D.N.Y. Feb. 24, 2020) (“[I]n the instant case, the medical record is devoid of similar

assessments regarding any factors relevant to Plaintiffs ability to remain on-task such

that the fact the ALJ’s inclusion of the 5% off-task limitation is not based on any medical

evidence in the record establishes only that the ALJ assessed Plaintiff with a more

restrictive RFC than the record supports.”) (emphasis in original). And plaintiff does not

point to any evidence that would support a more restrictive RFC, as is his burden to do.

See Smith v. Berryhill, 740 Fed. Appx. 721, 726 (2d Cir. 2018).

In sum, the Court finds that ALJ did not rely on his own lay opinion, but rather,

properly weighed the evidence as a whole when making the RFC determination. The

ALJ’s decision is therefore supported by substantial evidence and free of legal error.

CONCLUSION

For the foregoing reasons, plaintiffs motion for judgment on the pleadings (Dkt.

No. 10) is denied and the Commissioner's motion for judgment on the pleadings (Dkt. No.

15) is granted.

The Clerk of Court shall take all steps necessary to close this case.

SO ORDERED.

Dated: June $, 2020

Buffalo, New York

il. be

United States Magistrate Judge

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