# Dressler v. Commissioner of Social Security

> District Court, W.D. New York · September 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10362720

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10362720

## How later opinions describe it (automated extraction)

- finding a reviewing court does not try a benefits case de novo

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BRADLEY SCOTT DRESSLER,

Plaintiff,
v. DECISION & ORDER

ANDREW SAUL, Commissioner of 19-CV-15-MJP
Social Security,

Defendant.

INTRODUCTION
Pedersen, M.J. Bradley Scott Dressler (“Plaintiff”) 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
(“Commissioner”) denying his application for disability benefits and Supplemental
Security Income Benefits (“SSI”). Pursuant to 28 U.S.C. § 636(c), the parties have
consented to the disposition of this case by a United States magistrate judge.
(Consent to Jurisdiction, ECF No. 16.) For the reasons stated below, the Court grants
the Commissioner’s motion for judgment on the pleadings (ECF No. 14) and denies
Plaintiff’s motion for judgment on the pleadings (ECF No. 12).
BACKGROUND
On June 14, 2012, Plaintiff applied for a period of disability and disability
insurance benefits, alleging a disability beginning on December 2, 2010. (Record1
(“R.”) 139–41.) On September 21, 2012, Plaintiff’s claim was denied by the Social

1 Record refers to the filed record of proceedings from the Social Security
Administration, filed on June 17, 2019, ECF No. 7.
Security Administration, (R. 61, 64–68), and he timely requested a hearing on
September 27, 2012. (R. 76–77.) Plaintiff appeared and testified at a hearing held in
Buffalo, New York, on November 26, 2013, before an Administrative Law Judge

(“A.L.J.”). (R. 30.) On January 29, 2014, the A.L.J. issued an unfavorable decision,
finding the Plaintiff was not disabled. (R. 7–19.) Plaintiff timely filed a request for
review by the Appeals Council on March 25, 2014. (R. 29.) The Appeals Council denied
the request for review on May 8, 2015. (R. 1–3.) Plaintiff timely filed a civil action in
district court, seeking judicial review of the A.L.J.’s decision. (R. 326–52) The case
was remanded by stipulation. (R. 353.) A second hearing was held, (R. 299), with the

same eventual result: a stipulation requiring remand. (R. 510.) After another
unfavorable decision at the second hearing before an A.L.J. (R. 434–56), and denial
by the Appeals Council, (R. 511–16), Plaintiff filed a new complaint on January 3,
2019. (Compl., ECF No. 1.) Both parties now seek judgment on that complaint.
STANDARD OF REVIEW
Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims
based on the denial of Social Security benefits. Section 405(g) provides that the
district court “shall have the power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g) (2007). It directs that when considering a claim, the
Court must accept the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record. 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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the Commissioner’s
findings, the Court must “examine the entire record, including contradictory evidence
and evidence from which conflicting inferences can be drawn.” Brown v. Apfel, 174
F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983) (per curiam)). Section 405(g) limits the scope of the Court’s review to two
inquiries: whether the Commissioner’s findings were supported by substantial

evidence in the record, and whether the Commissioner’s conclusions are based upon
an erroneous legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105–06 (2d
Cir. 2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try
a benefits case de novo).
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 A.L.J. must employ a five-step sequential analysis. 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 impairments listed 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 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 377, 383 (2d Cir. 2004) (quoting Balsamo v. Chater, 142 F.3d 75,
80 (2d Cir. 1998)).
The A.L.J.’s Decision
In her decision, the A.L.J. followed the required five-step analysis for
evaluating disability claims. (R. 440–50.) Under step one of the process, the A.L.J.
found that Plaintiff had not engaged in substantial gainful activity since February
11, 2011, the onset date. (R. 440.) At step two, the A.L.J. concluded that Plaintiff had
the following severe impairments: status-post contusion of the right foot with
capsulitis of the second metatarsal phalangeal joint, mild hallux valgus deformity of
the great toe and resulting in hammertoe of the right foot. 20 C.F.R. § 404.1520(c).
(R. 440.) At step three, the A.L.J. determined that Plaintiff does not have an
impairment (or combination of impairments) that meets or medically equals one of
the listed impairments. (R. 441.) At step four, the A.L.J. concluded that Plaintiff has
the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with
additional exceptions and conditions listed in the decision. (R. 442–47.) The A.L.J.

determined that Plaintiff was unable to perform past relevant work. (R. 447–48.) The
A.L.J. proceeded to step five and found that jobs existed in the national and regional
economy that Plaintiff could perform. (R. 448–50.) Accordingly, the A.L.J. found that
Plaintiff was not disabled. (R. 450.)
Plaintiff’s Contentions
Plaintiff contends that the A.L.J. erred in two respects. First, Plaintiff claims
A.L.J. erred by mechanically applying the age groups from the medical-vocational
guidelines. (Pl.’s Mem. of Law at 12, ECF No. 12.) Additionally, Plaintiff argues that

the A.L.J. should have considered Plaintiff’s education and lack of transferable job
skills and that the A.L.J.’s failure to consider these meant the A.L.J.’s decision was
not substantially supported by the evidence in the record. (Id.) Second, Plaintiff
claims that the A.L.J. substituted her opinion for that of Bernard Rohrbacher, M.D.,
when the A.L.J. determined “that Plaintiff did not need to elevate his legs at all
during an 8-hour workday.” (Id. at 17.)
ANALYSIS
Application of the Age Groups of the Medical-Vocational Guidelines
General Provisions of Law and the Standard of Review
The A.L.J. is required by 20 C.F.R. § 404.1563(b) to avoid “apply[ing] the age
categories mechanically in a borderline situation.” However, this provision also states
that in borderline cases, the A.L.J. need only “consider whether to use the older age
category.” Use of the higher age category is not required: A.L.Js need only “consider
whether using the higher age category would be appropriate.” Woods v. Colvin, 218
F. Supp. 3d 204, 209 (W.D.N.Y. 2016) (emphasis in original).
The appropriate standard of review is unclear because the Second Circuit has

not addressed the issue of applying the age groups of the medical-vocational index to
borderline situations. Battaglia v. Comm’r of Soc. Sec., No. 1:18-CV-00390 EAW, 2019
WL 3764660, at *5 (W.D.N.Y. Aug. 7, 2019). The Tenth Circuit determined that “like
any factual issue,” findings about the appropriate age category “must be supported
by substantial evidence.” Daniels v. Apfel, 154 F.3d 1129, 1134 (1998). Other circuits
agree. Phillips v. Astrue, 671 F.3d 699, 706 (8th Cir. 2012). The Ninth, Sixth, and

Eleventh Circuits have held, however, that an A.L.J. need not provide express
discussion that would comport with the substantial evidence requirement to satisfy
§ 404.1563(b). Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071–72 (9th
Cir. 2010); Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008); Miller v.
Comm’r of Soc. Sec., 241 F. App’x 631, 635–36 (11th Cir. 2006).
Ultimately, this Court need not determine which standard is more appropriate
because the question is not dispositive. The A.L.J. provided both substantial evidence

showing the reasoning for the decision, and satisfied the requirement to “consider”
under § 404.1563(b).
Plaintiff’s Age
The Second Circuit has not addressed the issue of applying the age groups of
the medical-vocational index at all, and has not addressed the specific issue of the
appropriate date to use in applying the index. Battaglia, 2019 WL 3764660, at *5.
Plaintiff and Defendant agree, however, that the date to be used is the date Plaintiff
was last insured (DLI). (See Pl.’s Mem. of Law at 12, ECF No. 12.; Def.’s Mem. of Law
at 4, ECF No. 14.) This accords with sister-circuit precedent. Byers v. Astrue, 506 F.
App’x 788, 791 (10th Cir. 2012); Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068

(9th Cir. 2010).
Requirement to “Consider” Borderline Age Situations under § 404.1563(b)
The A.L.J. here clearly considered use of the older age category, as required by
§ 404.1563(b), despite Plaintiff’s contention that the A.L.J. applied the age groups of
the medical-vocational guidelines “mechanically.” (Pl.’s Mem. of Law at 13, ECF No.
12). Mechanical application of the guidelines would involve the A.L.J. failing to place
into the record any information about her “reasoning regarding [the Plaintiff’s]
potential borderline age.” Justice v. Astrue, 589 F. Supp. 2d 110, 112 (D. Mass. 2008).

Here, the A.L.J. did not fail to consider which age group to apply.
First, the A.L.J. was required to satisfy the baseline requirement of 20 C.F.R.
§ 404.1563(b) by acknowledging the existence of a borderline situation. Battaglia,
2019 WL 3764660, at *5. The A.L.J. did so. (R. 448.) Second, the A.L.J. provided
enough discussion to “build an accurate and logical bridge from the evidence to [her]
conclusion to enable a meaningful review” of how the A.L.J. resolved the borderline
age issue. Hickman ex rel. M.A.H. v. Astrue, 728 F. Supp. 2d 168, 173 (N.D.N.Y. 2010).

The A.L.J. accomplished this by providing specific reasons from the Record
supporting her position that use of the age category for individuals ages 50–55 was
inappropriate. (R. 448.)
Application of the Substantial Evidence Standard to the A.L.J.’s Decision
Regarding the Borderline Age Situation
The A.L.J.’s decision regarding application of the medical-vocational index is
clearly supported by substantial evidence. An A.L.J.’s decision need not be
watertight, and “may also adequately support contrary findings.” Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The A.L.J. may use all relevant evidence in record in
assessing a plaintiff’s RFC. 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c); Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (the ultimate responsibility to determine claimant’s
RFC rests solely with the A.L.J.); accord Johnson v. Colvin, 669 F. App’x 44, 46–47

(2d Cir. 2016) (citing 20 C.F.R. § 416.945(a)(3) (explaining that an A.L.J. looks to “all
of the relevant medical and other evidence” including relevant medical reports,
medical history, and statements from the plaintiff when assessing a plaintiff’s RFC)).
The RFC need not correspond to any particular medical opinion; rather, the A.L.J.
weighs and synthesizes all evidence available to render an RFC finding consistent
with the record as a whole. Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)

(summary order). Here, the A.L.J. noted specifically the medical findings in the record
that comported with her application of the medical-vocation guidelines regarding
Plaintiff’s age. (R. 448.) The A.L.J. also noted Plaintiff’s hearing testimony which
indicated the Plaintiff’s ability “to engage in a wide-range of activities of daily living.”
(R. 448; R. 472–74.) This application of the medical-vocational index is clearly
supported by substantial evidence because the A.L.J.’s RFC finding substantially
paralleled both with the medical evidence and with Plaintiff’s own testimony. Monroe

v. Colvin, 676 F. App’x 5, 8–9 (2d Cir. 2017) (summary order) (substantial evidence
supported the A.L.J.’s finding for unskilled work, despite a lack of supporting
functional assessment from a medical source; that evidence included objective
examination findings and Plaintiff’s activities of daily living.) In finding that Plaintiff

could perform “substantially all of the exertional demands” for sedentary work, (R.
449), the A.L.J. stated that “considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant was capable of making a
successful adjustment to other work that existed in significant numbers in the
national economy.” (R. 450.) The A.L.J.’s application of the medical-vocational index
concerning Plaintiff’s age group was not erroneous.

Finally, the A.L.J.’s failure to specify whether Plaintiff’s job skills were
transferable was harmless error because under the medical-vocational guidelines the
A.L.J. determined, with substantial evidence, that the Plaintiff was a “younger
person,” which meant the A.L.J. was not required to consider whether Plaintiff has
transferable job skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2. Although the Second
Circuit has held that A.L.J.s should make specific findings regarding transferability
of job skills, this applies only where a plaintiff was of advanced age. Draegert v.

Barnhart, 311 F.3d 468, 472–73 (2d Cir. 2002).
The A.L.J.’s Assessment of Dr. Rohrbacher’s Opinion
Plaintiff contends that the A.L.J. erred in evaluating the opinion of Bernard
Rohrbacher, M.D. (Pl.’s Mem. of Law at 17, ECF No. 12.) The A.L.J. gave little weight
to Dr. Rohrbacher’s opinion concerning Plaintiff’s need to elevate his legs during the
workday. (R. 447.) Plaintiff argues that the A.L.J. erred by substituting her own
opinion. (Pl.’s Mem. of Law at 17, ECF No. 12.). A.L.J.s are not permitted to
“substitute [their] own expertise or view of the medical proof for the treating
physician’s opinion.” Flynn v. Comm’r of Soc. Sec., 729 F. App’x 119, 121 (2d Cir. July
6, 2018) (summary order)(quoting Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)).

While Plaintiff is correct that “no other medical opinion specifically contradicted Dr.
Rohrbacher” concerning Plaintiff’s need to elevate his legs occasionally during the
day, (Pl.’s Mem. of Law at 17, ECF No. 12.), the A.L.J. was justified in comparing Dr.
Rohrbacher’s recommendations against the whole record. Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002) (treating physician’s opinion is not controlling when
contradicted “by other substantial evidence in the record”); see also Smith v. Berryhill,

740 F. App’x 721, 726 (2d Cir. 2018) (summary order) (holding that when there is
conflicting evidence in the record, the Court should defer to the A.L.J.’s resolution of
it “and accept the weight assigned to the inconsistent opinions as a proper exercise of
the A.L.J.’s discretion.”). Comparing the Record with Dr. Rohrbacher’s
recommendation regarding Plaintiff’s need to elevate his legs, the A.L.J. determined
that Dr. Rohrbacher’s opinion should be given little weight. (R. 447.) The A.L.J.
pointed to medical evidence within Dr. Rohrbacher’s evaluation of Plaintiff that was

consistent with Plaintiff’s ability to perform sedentary work. (R. 444, 447.) The A.L.J.
also compared Plaintiff’s need to elevate his legs during the workday against the
broader RFC determination that the Plaintiff was able to perform sedentary work.
(R. 447.) The A.L.J.’s RFC finding makes use of evidence from treating and non-
treating physicians. (R. 442–47.) While the A.L.J. did accord the greatest weight to
consultative physicians, the substance of the consultative physicians’ findings was
consistent with much that the treating physicians found. (R. 445–46.) Finally, the
A.L.J. noted that Dr. Rohrbacher offered his opinion concerning Plaintiff’s need to
elevate his legs after the date last insured. (R. 447.) The A.L.J.’s decision to afford Dr.

Rohrbacher’s opinion little weight is appropriately based in part on the fact that the
evaluation took place after the DLI.2 Parker v. Berryhill, 733 F. App’x 684, 687 (4th
Cir. 2018). Thus, the A.L.J. did not substitute her own opinion or expertise, but
appropriately compared Dr. Rohrbacher’s indications against the entire record and
determined Dr. Rohrbacher’s opinion was entitled to little weight in forming an RFC.
Additional support for the conclusion that the A.L.J. did not substitute her own

expertise or opinion for the doctor’s comes from the A.L.J.’s thorough consideration of
the factors laid out in Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019) when
determining the appropriate weight to give Dr. Rohrbacher’s evaluation. Id. at 95–96
(requiring explicit analysis of “(1) the frequen[cy], length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the
consistency of the opinion with the remaining medical evidence; and (4) whether the
physician is a specialist.”) Based on substantial evidence, the A.L.J. determined that

Dr. Rohrbacher’s opinion was entitled to little weight because of inconsistencies with
the whole record and internal inconsistencies within Dr. Rohrbacher’s medical

2 The Fourth Circuit held that the A.L.J. merely needs to consider the post-DLI
evidence to determine if there is “linkage” between the pre-DLI and post-DLI evaluations.
Parker, 733 F. App’x at 687. In Parker, where there was no evidence of linkage provided by
the physician, the Fourth Circuit held that the A.L.J.’s choice to accord the physician’s
evaluation little weight was “entitled to deference.” Id. (citing Johnson v. Barnhart, 434 F.3d
650, 653 (4th Cir. 2005)). Here, there does not appear to be explicit evidence of linkage
because, similarly to Parker, Dr. Rohrbacher included only a brief note and several circled
items. (R. 281.)
evaluation. (R. 444, 447); see also Fugle v. Comm of Soc. Sec., No. 1:18-CV-0707
(CJS), 2020 WL 1242407, at *6 (W.D.N.Y. Mar. 16, 2020) (citing Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)) (holding that the treating physician rule is
“not traversed” where the physician’s “opinion was not entitled to controlling weight
because it was inconsistent with other substantial evidence in the record.”) The A.L.J.
noted that Plaintiff's treatment with Dr. Rohrbacher was “sporadic.” (R. 447) The
A.L.J. also acknowledged Dr. Rohrbacher’s status as an “orthopedist,” but clearly
determined this factor was outweighed by the others. (R. 444.) Thus, the A.L.J. did
not substitute her opinion, instead properly determining, in accordance with Second
Circuit precedent, that Dr. Rohrbacher’s opinion should not be given controlling
weight.
CONCLUSION
After a careful review of the entire Record, the Court finds that the
Commissioner’s denial of Disability Insurance Benefits was based on substantial
evidence and was not erroneous as a matter of law. Accordingly, the Court affirms
the A.L.J.’s decision. For the reasons stated above, the Court grants the
Commissioner’s motion for judgment on the pleadings (ECF No. 14) and denies
Plaintiff's motion for judgment on the pleadings (ECF No. 12). The Clerk will enter
judgment for the Commissioner and close the case.
IT IS SO ORDERED.
Dated: September 2, 2020 Wat, deren —_
Rochester, New York MARK. W. PEDERSEN
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362720. Public record. Not legal advice.