Simmons v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SARA TAMARA SIMMONS,

Plaintiff,

Case # 18-CV-1462-FPG

v.

DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION

Plaintiff Sara Tamara Simmons brings this action pursuant to the Social Security Act

seeking review of the final decision of the Commissioner of Social Security that denied her

application for Supplemental Security Income (“SSI”) under Title XVI of the Act. ECF No. 1;

ECF No. 12-1 at 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g),

1383(c)(3).

Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). ECF Nos. 12, 14. For the reasons that follow, the Commissioner’s motion is

GRANTED and Simmons’s motion is DENIED.

BACKGROUND

In November 2014, Simmons applied for SSI under Title XVI of the Act with the Social

Security Administration (the “SSA”). Tr.1 10, 141. She alleged disability due to borderline

intellectual functioning, a learning disability, depression, and anxiety. Tr. 10, 304. In July 2017,

Simmons and a vocational expert (“VE”) appeared at a hearing before Administrative Law Judge

Paul Georger (“the ALJ”). Tr. 10, 18. On September 28, 2017, the ALJ issued a decision finding

1 “Tr.” refers to the administrative record in this matter. ECF No. 8.

that Simmons was not disabled. Tr. 10–18. On October 12, 2018, the Appeals Council denied

Simmons’s request for review. Tr. 1–3. This action seeks review of the Commissioner’s final

decision. ECF No. 1.

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the SSA, this Court is limited to determining whether the

SSA’s conclusions were supported by substantial evidence in the record and were based on a

correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation

marks omitted); see also 42 U.S.C. §§ 405(g), 1383(c)(3). The Act holds that a decision by the

Commissioner is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g).

“Substantial evidence means more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d

108, 112 (2d Cir. 2009) (internal quotation marks omitted). It is not the Court’s “function to

determine de novo whether [claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.

1998) (internal quotation marks omitted).

II. Disability Determination

An ALJ must follow a five-step sequential evaluation process to determine whether a

claimant is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467,

470–71 (1986); 20 C.F.R. § 416.920(a). At step one, the ALJ must determine whether the claimant

is engaged in substantial gainful work activity. See 20 C.F.R. § 416.920(a)(4)(i). If so, the claimant

is not disabled. Id. If not, the ALJ proceeds to step two and determines whether the claimant has

an impairment, or combination of impairments, that is “severe” within the meaning of the Act,

meaning that it imposes significant restrictions on the claimant’s ability to perform basic work

activities. Id. § 416.920(a)(4)(ii), (c). If the claimant does not have a severe impairment or

combination of impairments, the analysis concludes with a finding of “not disabled.” Id. 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”). Id. § 416.920(a)(4)(iii). If the impairment meets or medically equals the criteria of a

Listing and meets the durational requirement, the claimant is disabled. Id. 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 caused by his

or her collective impairments. See id. § 416.920(a)(4)(iv), (e)–(f).

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

claimant to perform the requirements of his or her past relevant work. Id. § 416.920(a)(4)(iv). If

the claimant can perform such requirements, then he or she is not disabled. Id. If he or she cannot,

the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to

show that the claimant is not disabled. Id. § 416.920(a)(4)(v), (g). To do so, the Commissioner

must present evidence 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 his

or her age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)

(internal quotation marks omitted); see also 20 C.F.R. § 416.960(c).

DISCUSSION

I. The ALJ’s Decision

The ALJ analyzed Simmons’s claim for benefits using the process described above. At step

one, the ALJ found that Simmons had not engaged in any substantial gainful activity since her

application date. Tr. 12. At step two, the ALJ found that Simmons had three severe impairments:

borderline intellectual functioning, major depressive disorder, and anxiety. Id. At step three, the

ALJ found that these impairments did not meet or medically equal any Listings impairment. Id.

Next, the ALJ determined that Simmons had the RFC to perform work at all exertional

levels with specific limitations. Tr. 14–17. Specifically, the ALJ found that Simmons could

frequently: work at unprotected heights; work with moving mechanical parts; operate a motor

vehicle; and interact with supervisors, co-workers, and the public. Tr. 14. The ALJ further found

that Simmons was limited to simple work-related decisions and simple, routine, and repetitive

tasks. Id. At steps four and five, the ALJ found that Simmons did not have past relevant work but

that there were jobs that existed in significant numbers in the national economy that she could

perform. Tr. 17. The ALJ therefore found that Simmons had not been disabled from November 25,

2014 through the date of his decision. Tr. 18.

II. Analysis

Simmons argues that the ALJ’s RFC determination was not supported by substantial

evidence and makes three related arguments that that the ALJ cherry-picked evidence, did not

present an appropriate hypothetical to the VE, and improperly discounted the testimony of

Simmons and her mother. ECF No. 12-1 at 17–24. The Court addresses each argument below.

A. RFC Determination

Simmons argues that the ALJ failed to account for her depression, anxiety, and mental

limitations in his RFC determination. ECF No. 12-1 at 17–20. The Court disagrees.

A claimant’s RFC reflects what she “can still do despite . . . her limitations.” Melville v.

Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (internal quotation marks omitted). ALJs “weigh all of the

evidence available to make an RFC finding that [i]s consistent with the record as a whole.” Matta

v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order).

The relevant evidence in this case consists of one medical opinion; treatment notes by

nurses and mental health counselors regarding mental health treatment Simmons received through

Child and Family Services; documents from several organizations describing Simmons’s attempts

to develop the necessary skills to join the workforce and attempt at employment with Goodwill

Industries of Western New York; and the hearing testimony.

Although most of the evidence is mixed in that portions support a more restrictive RFC

and other portions do not, the relevant medical opinion clearly supports the ALJ’s RFC

determination. Michael P. Santa Maria, Ph.D., diagnosed Simmons with nonverbal learning

disorder, borderline intellectual functioning, major depressive disorder (mild), and a history of

very low birth weight. Tr. 308–16. Dr. Santa Maria opined that Simmons “demonstrate[d] adequate

capacity to handle part time or full time entry-level competitive employment so long as she has a

job of a relatively routine and repetitive nature with relatively limited demands on reading and

writing and very limited demands on basic mathematics or problem solving or memory for new

information.” Tr. 316.2

The ALJ’s RFC assessment is further supported by other portions of the record. Child and

Family Services’ treatment notes reflect mild symptoms and periods of improvement with

medication. See Tr. 420, 421, 428, 430, 439–41, 463, 468, 475, 500, 503–05, 528, 597, 603, 606,

2 Simmons criticizes the ALJ’s reliance on Dr. Santa Maria’s conclusions because he also noted that

Simmons “might best transition to . . . such positions with the assistance of a job coach, particularly given

that cognitive weaknesses include a consistent weakness in the ability to learn and remember new

information.” Tr. 316. Finding that Simmons might best transition to competitive employment with the

assistance of a job coach, however, is entirely consistent with the ALJ’s conclusion that Simmons could

perform such work if limited to simple work-related decisions and simple, routine, and repetitive tasks. Tr.

14.

609, 636. Further, Simmons’s course of treatment for her mental impairments has been

conservative; there is no record that Simmons had inpatient mental health treatment, and it appears

that she and her mother have previously declined outpatient mental health services. Tr. 310, 328,

390.

There is certainly evidence weighing against the ALJ’s RFC determination. Simmons relies

upon her mother for care. Tr. 71. As of the hearing, Simmons had never held competitive

employment, despite robust efforts to do so. Tr. 34–35, 230–96, 650–52. Her counseling notes are

replete with references to difficulty managing her anxiety and depression. E.g., Tr. 639–43. Certain

records suggest that Simmons is not capable of working outside of a “supported employment”

environment, see, e.g., Tr. 247, which the VE testified would render her unemployable in

“competitive” employment, Tr. 64.

Simmons also extensively cites the records of vocational organizations that attempted to

assist her in obtaining employment, ECF Nos. 12-1, 15; Tr. 230–96, but those records can be read

as suggesting that Simmons is capable of engaging in substantial gainful activity with further

development or vocational training. See, e.g., Tr. 271–73. (noting that Simmons was “commended

for her good overall performance” in her “first work experience”). Goodwill Industries of Western

New York completed a diagnostic vocational evaluation, which reflects some deficiencies but also

an overall capacity to engage in various types of employment. Tr. 317–25. She attempted to work

for Goodwill for about a month. Tr. 35. Although Goodwill ultimately determined she was not

currently suitable for their employ, the position “involve[d] a high degree of judgment . . . , comfort

in interacting with strangers, and day to day task retention.” Tr. 272. Accordingly, her position at

Goodwill required her to exceed the functional limitations found by the ALJ and thus does not

necessarily demonstrate that she is incapable of working in a position that complies with those

limitations, particularly with additional vocational training. Cf. Poupore v. Astrue, 566 F.3d 303,

305 (2d Cir. 2009) (finding that medical reports that consistently stated that claimant “was not

disabled from all work, but rather would be an excellent candidate for vocational rehabilitation[]

and capable of performing lighter work” supported the ALJ’s determination that claimant was not

disabled (emphasis added)); Felix v. Astrue, No. 11-CV-925, 2012 WL 424381, at *3 (C.D. Cal.

Feb. 9, 2012) (“Plaintiff would apparently have this Court find that any individual worker who

might take more than thirty days to learn an unskilled job would be precluded from doing unskilled

work. The Court has been unable to find any authority supporting this proposition . . . .”).

Even if the evidence cited by Simmons substantially supports her position that she is

disabled, the Court’s task here is to decide whether substantial evidence supports the ALJ’s

decision, not Simmons’s contrary position. Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d

Cir. 2013) (summary order). It was up to the ALJ to resolve and weigh conflicting evidence.

Simmons has identified evidence that conflicts with the ALJ’s RFC determination but has failed

to show that the ALJ’s determination was not supported by substantial evidence. See, e.g., Cage

v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (when the court reviews a denial of

disability benefits it must “defer to the Commissioner’s resolution of conflicting evidence”). For

the foregoing reasons, the ALJ’s RFC determination was supported by substantial evidence.

B. Cherry-Picking Evidence

Simmons cites Starzynski v. Colvin for the proposition that it is “improper for an ALJ to

cherry-pick evidence that supports a finding of not-disabled while ignoring other evidence

favorable to the disability claimant.” No. 15-CV-940, 2016 WL 6956404, at *3 (W.D.N.Y. Nov.

29, 2015). The ALJ, however, was not obligated to “reconcile explicitly every conflicting shred”

of evidence. Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983).

Here, Simmons claims that the ALJ improperly cherry-picked portions of the Child and

Family Services treatment records that supported his RFC analysis while ignoring unfavorable

portions, particularly the assessment of Katherine Hage, a nurse practitioner. ECF No. 12-1 at 17–

18; ECF No. 15 at 3–4; Tr. 643. The ALJ explicitly acknowledged, however, that the “treatment

records support a history of anxiety and frustration.” Tr. 15. The ALJ’s analysis of the treatment

records does not constitute cherry-picking. See Matta, 508 F. App’x at 56–57 (holding that ALJ

did not engage in cherry-picking where there was evidence that claimant had severely fluctuating

symptoms but substantial evidence supported ALJ’s conclusion that claimant could work with

proper treatment).

Simmons further points to Ms. Hage’s “Initial Psychiatric Evaluation,” which states that

Simmons’s “[j]udgment is poor” and “she is unable to manage life responsibilities independently.”

Tr. 639–43. The ALJ did not explicitly discuss Ms. Hage’s evaluation. Tr. 14–17. Even if the Court

accepts that this were error, Wahler v. Colvin, No. 11-CV-1096, 2014 WL 6390320, at *10

(W.D.N.Y. Nov. 17, 2014) (“It was error for the ALJ to reject ARNP McCool’s opinion simply

because it was the opinion of a nurse practitioner.”), any such error would be harmless, Brown v.

Colvin, No. 13-CV-356, 2014 WL 1679761, at *5 (W.D.N.Y. Apr. 28, 2014) (finding that ALJ’s

failure to consider and weigh a nurse practitioner’s opinion was harmless error where it was

consistent with RFC determination and did not state functional limitations).

Ms. Hage’s opinion echoes the testimony of Simmons’s mother, who testified that

Simmons could not live independently. Tr. 16, 51–60. The ALJ considered and rejected that

opinion based on the evidence discussed above and the opinion of Dr. Santa Maria, to which the

ALJ assigned “great weight.” Tr. 16. Accordingly, although not explicitly stated by the ALJ, there

is a reasoned basis upon which he could have rejected Ms. Hage’s conclusion, stated in her initial

assessment of Simmons,3 that the ALJ discussed in his decision. Although the ALJ certainly could

have been more explicit in his discussion of the Child and Family Services records that did not

support his opinion, the Court does not fault the ALJ for failing to “reconcile explicitly every

conflicting shred” of evidence. Fiorello, 725 F.2d at 176; see also Wider v. Colvin, 245 F. Supp.

3d 381, 388–89 (E.D.N.Y. 2017) (holding that an ALJ is not obligated to give a nurse practitioner’s

opinion any weight).

C. Step Five Determination

Simmons argues that the ALJ’s step five determination was not supported by substantial

evidence. ECF No. 12-1 at 20–22. Simmons claims that the ALJ erred in posing a hypothetical to

the VE that did not include limitations for work in supported employment or with the assistance

of a job coach. Id. “A VE’s opinion in response to an incomplete hypothetical question cannot

provide substantial evidence to support a denial of disability.” Karabinas v. Colvin, 16 F. Supp.

3d 206, 220 (W.D.N.Y. 2014). Accordingly, if an ALJ’s RFC assessment is incomplete and an

ALJ’s hypothetical is based upon that RFC, then the ALJ’s hypothetical will often fail to account

for the full spectrum of a claimant’s limitations and the VE’s response will not constitute

substantial evidence to support the ALJ’s finding. Id.

Here, however, the ALJ asked the VE to assume that Simmons would have limitations

consistent with the ALJ’s RFC determination, which was supported by substantial evidence. Tr.

14, 62. Accordingly, Simmons has failed to show error in the ALJ’s step five determination. Potter

v. Colvin, No. 15-CV-6337, 2016 WL 5468108, at *4 (W.D.N.Y. Sept. 29, 2016) (holding that it

3 Also as discussed by the ALJ, Tr. 15–16, Ms. Hage noted improvements in Simmons’s condition with

medication and treatment. For instance, less than a month after her initial assessment, Ms. Hage noted that

Simmons’s “mother report[ed] . . . a ‘significant difference’ in her attitude, irritability[,] and even

communication skills.” Tr. 472.

was not error for ALJ to rely on VE’s response to hypothetical where hypothetical accurately

reflected claimant’s impairments supported by medical evidence).

D. Credibility Assessments

Simmons argues that the ALJ improperly discounted her credibility and the credibility of

her mother. ECF No. 12-1 at 22–24. The Court disagrees.

“The ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an

independent judgment, in light of medical findings and other evidence, regarding the true extent

of the [limitations] alleged by the claimant.” Jackson v. Astrue, No. 05-CV-1061, 2009 WL

3764221, at *7 (N.D.N.Y. Nov. 10, 2009) (internal quotation marks omitted); see also Genier v.

Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (“When determining a claimant’s RFC, the ALJ is required

to take the claimant’s reports of pain and other limitations into account, . . . but is not required to

accept the claimant’s subjective complaints without question; he may exercise discretion in

weighing the credibility of the claimant’s testimony in light of the other evidence in the record.”

(internal citations omitted)). “Because the ALJ has the benefit of directly observing a claimant’s

demeanor and other indicia of credibility, his decision to discredit subjective testimony is entitled

to deference and may not be disturbed on review if his disability determination is supported by

substantial evidence.” Baker ex rel. Baker v. Berryhill, No. 15-CV-943, 2018 WL 1173782, at *5

(W.D.N.Y. Mar. 6, 2018) (internal quotation marks omitted).

Simmons argument here is simply a repackaged version of her argument regarding the

ALJ’s RFC determination. Although portions of her and her mother’s testimony support more

restrictions than those found in the ALJ’s RFC determination, Simmons has not shown that it was

error for the ALJ to explicitly consider and reject her and her mother’s testimony to the extent it

conflicted with Dr. Santa Maria’s opinion and the other evidence that supports his RFC

determination. See Quintana v. Colvin, No. 15-CV-6473, 2017 WL 752187, at *18-20 (S.D.N.Y.

Feb. 27, 2017) (rejecting claimant’s challenge to ALJ’s credibility determination where ALJ’s

decision was supported by substantial evidence); Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp.

2d 133, 152 (N.D.N.Y. 2012) (‘After considering . . . subjective testimony, the objective medical

evidence, and any other factors deemed relevant, the ALJ may accept or reject . . . subjective

testimony.”).*

CONCLUSION

For all of the reasons stated, the Commissioner’s Motion for Judgment on the Pleadings,

ECF No. 14, is GRANTED and Simmons’s Motion for Judgment on the Pleadings, ECF No. 12,

is DENIED. The complaint is DISMISSED WITH PREJUDICE, and the Clerk of Court is directed

to enter judgment and close this case.

IT IS SO ORDERED.

Dated: August 10, 2020

Rochester, New York

H ANK P. GER , JR.

Chief Judge

United States District Court

“ Simmons makes a related argument that the ALJ improperly relied upon her testimony that “she helps

with household chores, including sweeping, cleaning bathrooms and washing dishes, and spends time with

relatives.” ECF No. 12-1 at 23 (quoting Tr. 16-17). Even assuming this were error, substantial evidence,

such as Dr. Santa Maria’s opinion, still supports the ALJ’s RFC determination and thus the error would not

be a proper basis for reversal. See Polidoro v. Apfel, No. 98-CV-2071, 1999 WL 203350, at *8—9 (S.D.N.Y.

Apr. 12, 1999) ¢‘[T]he ALJ’s treatment of [claimant]’s subjective statements of pain [based on routine

activities] does not provide a basis for reversal because there is substantial evidence in the record to support

the conclusion that plaintiff's pain was not so severe as to preclude gainful employment.”).

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