The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
JENEVE REEVES,
Plaintiff,
v. DECISION AND ORDER
19-CV-775S
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
1. Plaintiff Jeneve Reeves brings this action pursuant to the Social Security
Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security
that denied her applications for supplemental security income and disability insurance
benefits under Titles XVI and II of the Act. (Docket No. 1.) This Court has jurisdiction
over this action under 42 U.S.C. § 405(g).
2. Plaintiff protectively filed her applications with the Social Security
Administration on February 9, 2016. Plaintiff alleged disability beginning January 1, 2015,
due to cardiac-related impairment; obesity; borderline intellectual functioning; affective
disorder; and anxiety-related disorder. Plaintiff’s applications were denied, and she
thereafter requested a hearing before an administrative law judge (“ALJ”).
3. On June 27, 2018, ALJ Anthony Dziepak held a video hearing at which
Plaintiff—represented by counsel—and Vocational Expert Ralph Richardson appeared
and testified. (R.1 at 30-69.) At the time of the hearing, Plaintiff was 48 years old and
had a limited education, with past relevant work experience as an inspector/hand
packager (R. at 23).
1Citations to the underlying administrative record are designated as “R.”
4. The ALJ considered the case de novo and, on August 6, 2018, issued a
written decision denying Plaintiff’s applications for benefits. After the Appeals Council
denied Plaintiff’s request to review the ALJ’s decision, she filed the current action,
challenging the Commissioner’s final decision.2 (Docket No. 1.)
5. Both parties moved for judgment on the pleadings under Rule 12(c) of the
Federal Rules of Civil Procedure. (Docket Nos. 9, 13.) Plaintiff filed a response on
March 10, 2020 (Docket No. 14), at which time this Court took the motions under
advisement without oral argument. For the reasons that follow, Plaintiff’s motion is
granted, and Defendant’s motion is denied.
6. A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla,” and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than
one rational interpretation, the Commissioner’s conclusion must be upheld. See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
7. “To determine on appeal whether an ALJ’s findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
2The ALJ’s August 6, 2018, decision became the Commissioner’s final decision on this matter when
the Appeals Council denied Plaintiff’s request for review.
evidence from 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). If supported by substantial evidence, the
Commissioner’s finding must be sustained “even where substantial evidence may support
the plaintiff's position and despite that the court’s independent analysis of the evidence
may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference and will not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
8. The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled under the Act. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court of the United States recognized the validity
of this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing
whether a claimant is disabled. 482 U.S. 137, 140-142 (1987).
9. The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If [s]he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits [her] physical
or mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider
[her] disabled without considering vocational factors such as
age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, [s]he has the residual functional capacity to
perform [her] past work. Finally, if the claimant is unable to
perform [her] past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original);
see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
10. Although the claimant has the burden of proof on the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, supra,
482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step
is divided into two parts. First, the Commissioner must assess the claimant's job
qualifications by considering her physical ability, age, education, and work experience.
Second, the Commissioner must determine whether jobs exist in the national economy
that a person having the claimant's qualifications could perform. See 42 U.S.C.
§ 423(d)(2)(A); 20 C.F.R. § 404.1520(f); see also Heckler v. Campbell, 461 U.S. 458, 460
(1983).
11. The ALJ analyzed Plaintiff’s claim for benefits under the process set forth
above. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since onset date of January 1, 2015. (R. at 17.) At step two, the ALJ found that
Plaintiff has the following severe impairment: cardiac-related impairment; obesity;
borderline intellectual functioning; affective disorder; and anxiety-related disorder. Id. at
18. At step three, the ALJ found that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals any impairment(s) listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. Id. at 18-19.
12. Next, the ALJ found that Plaintiff retained the residual functional capacity
(“RFC”) to perform light work including ability to lift or carry 20 pounds occasionally and
10 pounds frequently, sit for six hours total in an eight-hour workday, stand/walk for six
hours in an eight-hour workday, but avoid climbing ladders, ropes, or scaffolds, but can
occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; can frequently balance,
but must avoid working near unprotected heights or exposure to extreme cold or
concentrated fumes/odors/dusts/gases; mentally, Plaintiff can perform simple work-
related tasks, make simple work-related decisions, adapt to simple changes in a routine
work setting (R. at 19; Docket No. 13-1, Def. Memo. at 15; see also id. at 21-22).
13. At step four, the ALJ found Plaintiff was able to perform her past relevant
work as an inspector/hand packager. (R. at 23.) Although Plaintiff could perform this
work, the ALJ alternatively found other jobs that a claimant like Plaintiff could perform in
the national economy. The ALJ accepted the vocational expert’s opinion that such a
claimant could perform such sedentary occupations as bench worker/preparer, printed
circuit board assembly/touch up screener, or film touch up inspector. (Id. at 23-24.) At
step five, the ALJ found that there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. (R. at 24.) Accordingly, the ALJ found that Plaintiff
is not disabled. (Id.)
14. Plaintiff argues that the RFC determination is not supported by substantial
evidence because the ALJ erred in finding Plaintiff had moderate limitation in
concentrating, persisting, or maintaining pace (R. at 18) but failed to account for this
limitation in the RFC (Docket No. 9-1, Pl. Memo. at 1, 15, 15-18). After finding Plaintiff
had borderline intellectual functioning as a severe impairment, the ALJ failed to satisfy
the duty to include the impairment in questions to the vocational expert (Docket No. 9-1,
Pl. Memo. at 1, 15, 18-19; cf. R. at 59-63, 18, 23-24). Plaintiff then contends that the ALJ
erred in cherry-picking notes from the treatment record to support the ALJ’s conclusion
that Plaintiff’s headaches would not cause any functional limitation (R. at 21, 431-32, 743-
44), yet the ALJ imposed a heightened standard to find that these headaches did not
constitute a severe impairment (Docket No. 9-1, Pl. Memo. at 1, 15, 20-24).
15. Defendant responds that the RFC accurately reflects findings regarding
Plaintiff’s concentration, persistence, and pace (Docket No. 13-1, Def. Memo. at 16-21).
Defendant states that substantial evidence supports the borderline intellectual functioning
findings (id. at 21-25) and the ALJ’s analysis of Plaintiff’s headaches (id. at 25-26).
16. For the reasons that follow, this Court accepts Plaintiff’s arguments.
17. Starting with Plaintiff’s mental limitation regarding concentration,
persistence, and pace, she faults the ALJ for not accounting for her moderate limitation
in this domain in the RFC (Docket No. 9-1, Pl. Memo. at 15, 17-18; see Docket No. 14,
Pl. Reply at 1-2). As defendant notes (Docket No. 13-1, Def. Memo. at 16-17), the special
technique used at steps two and three (where the ALJ found moderate limitation) is not
an RFC assessment at step four. The ALJ may take the same information finding a
moderate limitation for “paragraph B” criteria and conclude that Plaintiff’s functional
capacity is not impaired by that moderate limitation.
18. Unlike Karabinas v. Colvin, 16 F. Supp.3d 206, 215 (W.D.N.Y. 2014)
(Telesca, J.) (Docket No. 9-1, Pl. Memo. at 16), where that ALJ merely found that claimant
merely could perform simple work, the ALJ here cited medical opinions that found Plaintiff
had normal or intact concentration. Dr. Adam Brownfield, Ph.D., was consultant and
examined Plaintiff and found that she had normal concentration (R. at 499-500, 21;
Docket No. 13-1, Def. Memo. at 18-19). Dr. Brownfield noted that Plaintiff had intact
concentration (R. at 499) and concluded that Plaintiff had no evidence of limitation in
following and understanding simple directions, perform simple tasks independently (R. at
500). Dr. Anthony Racaniello, Plaintiff’s treating psychiatrist, observed in November 2015
that she had intact concentration (R. at 486, 19; Docket No. 13-1, Def. Memo. at 19).
Dr. Tara Russow, Ph.D., conducted a consultative evaluation of Plaintiff on March 5,
2018, and did not observe attention deficits (R. at 913-14, 908, 19, 21; Docket No. 13-10,
Def. Memo. at 19). Dr. Russow recommended vocational needs if Plaintiff returned to
work such as modeling of target tasks by supervisor or trainer; hands on practice of new
tasks with corrective feedback; use of visual cues; extended time for learning new tasks
by 100%; and assistance with all written tasks as needed for accuracy (R. at 915). Abigail
Heineman, LMHC, conducted a psychosocial assessment of Plaintiff in April 2018 and
found that her concentration was normal, that her “attention/concentration is
characterized by ability to attend and maintain focus” (R. at 825, 19, 21; Docket No. 13-
10, Def. Memo. at 19).
19. The ALJ thus had substantial evidence that Plaintiff’s concentration,
persistence and pace did not hinder her from performing simple tasks, as determined in
the RFC.
20. Next, on inclusion of Plaintiff’s borderline intellectual functioning in the
hypotheticals posed to the vocational expert, the ALJ found Plaintiff had borderline
intellectual functioning (R. at 18) but did not include that limitation in the hypotheticals to
the vocational expert (Docket No. 9-1, Pl. Memo. at 18-19; Docket No. 14, Pl. Reply at 1,
2-4; cf. R. at 59-62 (colloquy with vocational expert). In reply, Plaintiff also notes that the
ALJ improperly evaluated and explained relevant opinions regarding her borderline
intellectual functioning (Docket No. 14, Pl. Reply at 4).
21. Defendant made several responses. First, at step three, the ALJ found
Plaintiff could perform simple work, incorporating the borderline functioning, claiming that
these impairments were included in the hypotheticals posed to the vocational expert
(Docket No. 13-1, Def. Memo. at 21-22, 24; R. at 18-19). Borderline intellectual
functioning is not a de facto disability, contrary to Plaintiff’s arguments (Docket No. 13-1,
Def. Memo. at 22). Defendant argues that Plaintiff made conclusory arguments that she
could not perform unskilled work (id. at 23). Plaintiff, however, did not challenge the ALJ’s
finding that she could perform her past relevant work as a packer (id. at 24; R. at 23).
22. The RFC did find that Plaintiff could perform simple work-related tasks,
make simple work-related decisions and adapt to simple changes (R. at 19). Comparing
this RFC to her past relevant work, the ALJ found Plaintiff could perform her past work,
relying upon the opinion of the vocational expert that she could perform light work (R. at
23, 58-61). Plaintiff’s past relevant work is an occupation in the national economy and
the ALJ here has presented vocational expert testimony regarding the existence of jobs
in the national economy for a person with Plaintiff’s limitations, Gonzalez v. Colvin,
No. 15CV6216, 2016 WL 5793425, at *6 (W.D.N.Y. Sept. 30, 2016) (Feldman, Mag. J.)
(quoting Isaacs v. Astrue, 07CV257, 2009 WL 528252 (W.D.N.Y. Mar. 2009) (Arcara,
C.J., adopting Report & Rec. of McCarthy, Mag. J.)) (cf. Docket No. 9-1, Pl. Memo. at 18),
on remand, Gonzalez v. Saul, No. 18CV6268, 2019 WL 478359 (W.D.N.Y. Oct. 1, 2019)
(Scott, Mag. J.) (see also Docket No. 13-1, Def. Memo. at 22).
23. The ALJ posed physical limitations in hypotheticals to the vocational expert
(R. at 59-62), absenteeism and being on task by the claimant (R. at 62-63), and separately
considered Plaintiff’s mental impairments without posing her mental impairment as a
hypothetical to the expert (R. at 63-66).
24. Since the ALJ separated Plaintiff’s ability to perform her past relevant work
from her mental limitations, the vocational expert could not opine on her ability (given her
mental limitations) to perform that work. The opinion from the expert merely addressed
her physical ability to perform (R. 59-60). That the Plaintiff did not challenge the past
relevant work finding does not diminish the omission on the mental impairment. The
record supports vocational expert providing his opinion on her borderline functioning, see
Swope v. Barnhart, 436 F.3d 1023, 1026 (8th Cir. 2006).
25. The cases cited by Defendant are distinguishable because they did not find
the claimants there did not prove their borderline functioning, Sanders v. Comm’r,
No. 18CV753, 2020 WL 255538, at *5 (W.D.N.Y. Jan. 17, 2020) (Schroeder, Mag. J.);
Gonzalez v. Saul, supra, 2019 WL 478359 (affirming Commissioner) (but cf. Docket
No. 13-1, Def. Memo. at 22).
26. Thus, it is unclear from this record the basis for the ALJ finding that Plaintiff
could perform either her past relevant work or the occupations opined by the vocational
expert based on her borderline functioning. Plaintiff’s motion on this ground is granted
and the case is remanded for further proceedings posing to the vocational expert her
borderline intellectual functioning for her past relevant work and other occupations
Plaintiff might qualify to perform.
27. As for Plaintiff’s headaches, in September 2013, she sought treatment at
United Memorial Medical Center for pain on the right side of her face and head (R. at
773). On December 27, 2014, she was treated for head pain and swollen lips (R. at 755).
On June 20, 2015, Plaintiff was in the emergency room for treatment of her headaches
(R. at 431-32, 743-44). On January 29, 2016, Plaintiff was again admitted to United
Memorial for headaches (R. at 390). (Docket No. 9-1, Pl. Memo. at 8-9.) On June 30,
2016, Plaintiff was again at United Memorial complaining of body-wide tingling (R. at 715).
28. The ALJ noted Plaintiff’s complaints of headaches at step two but found
they were not severe because the evidence did not show that her headaches limited her
work capability over a twelve-month period (R. at 18). Defendant concedes this because
the ALJ found that the headaches had not limited Plaintiff’s work for twelve months
(Docket No. 13-1, Def. Memo. at 25). At step four and developing the RFC, the ALJ found
that Plaintiff had a headache at a pain rating of 9 (of 10) but was not in distress (R. at 21).
29. Plaintiff faults the ALJ for cherry picking from the record to discount the
impact of her headaches (Docket No. 9-1, Pl. Memo. at 15, 20, 21-22, 24). The ALJ also
erred in imposing his own heightened standard for establishing severity of a headache in
requiring Plaintiff to support this claim by having CT or MRI show substantiation for her
condition (Docket No. 9-1, Pl. Memo. at 15, 20, 22-24).
30. In her Reply, Plaintiff also argues that the ALJ failed to consider non-severe
impairments (such as Plaintiff’s hyperactive encephalopathy, a general brain dysfunction
caused by significantly high blood pressure, with symptoms that include headaches,
Docket No. 9-1, Pl. Memo. at 21 n.1) in combination with severe impairments (Docket
No. 14, Pl. Reply at 5). The ALJ also did not consider episodic symptoms in the RFC and
failed to account for Plaintiff being off-task time and other limitations (id. at 6-7).
Defendant contends that Plaintiff’s headaches did not meet the twelve-month duration for
consideration (Docket No. 13-1, Def. Memo. at 26). Plaintiff replies that these episodic
symptoms needed to be considered (Docket No. 14, Pl. Reply Memo. at 6), see Merritt v.
Comm’r, No. 15V6633, 2016 WL 6246436, at *8 (W.D.N.Y. Oct. 26, 2016) (Siragusa, J.).
31. Judge Siragusa’s decision in Merritt, supra, is distinguishable because the
ALJ there “explicitly accounted for” that claimant’s headaches. That clamant was treated
for headaches, diagnosed with chronic intractable headaches, and that claimant testified
that headaches caused her the most pain, id. at *4, the ALJ cited the lack of treatment
notes to support finding her headaches were disabling, id. at *5. The ALJ also determined
that Merritt had no longitudinal history for twelve months of intractable headaches, id., but
Judge Siragusa noted that the administrative record contradicted that ALJ found, id. at
*5-6.
32. The record here, however, is more episodic than the record in Merritt.
Plaintiff points to six hospitalizations from September 2013 to September 2017 without
asserting that her headaches were daily. Plaintiff’s MRI scans during this period did not
have any intracranial abnormalities (R. at 393, 397, 720, 678). During some of these
intermittent treatments, Plaintiff denied having headaches (R. at 715) although she
claimed before that her primary physician diagnosed her with migraines (R. at 431, 433,
390). As noted by Defendant (Docket No. 13-1, Def. Memo. at 26), Plaintiff’s
hypertension-related headaches were resolved within a day (R. at 760-61). The
consideration of MRI or CT scans are part of the ALJ’s determination of the severity and
duration of Plaintiff’s headaches.
33. Contrast Plaintiff’s record with the record in Merritt, where that claimant had
medical records from January 2013 to February 2014 citing that she had daily headaches
or headaches for 30 days a given month, 2016 WL 6246436, at *5, meeting the twelve-
month duration requirement.
34. Plaintiff’s headaches were properly found not to be severe.
35. As for considering non-severe impairments including Plaintiff’s headaches
with other, severe impairments, given the lack of duration and the infrequency of Plaintiff
seeking treatment, with the remand ordered herein, the ALJ may reconsider her
headaches as a non-severe impairment.
36. In sum, Plaintiff’s Motion (Docket No. 9) is granted on the grounds of the
consideration of her borderline intellectual functioning.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 9) is GRANTED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket
No. 13) is DENIED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this opinion.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated: August 13, 2020
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge