The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
FANTASIA SHELIKA BROWN,
DECISION
Plaintiff, and
v. ORDER
ANDREW M. SAUL,1 Commissioner of 19-CV-6193F
Social Security, (consent)
Defendant.
______________________________________
APPEARANCES: LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, and
ANTHONY JOHN ROONEY, of Counsel
6000 North Bailey Avenue
Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
KATHRYN L. SMITH
Assistant United States Attorney, of Counsel
United States Attorney’s Office
100 State Street
Rochester, New York 14614
and
KRISTINA DANIELLE COHN
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza
Room 3904
New York, New York 10278
1 Andrew M. Saul became the Commissioner of the Social Security Administration on June 17, 2019, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to
continue this suit by reason of sentence one of 42 U.S.C. § 405(g).
and
KRISTIN M. ROGERS
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
61 Forsyth Street, S.W.
Suite 20T45
Atlanta, Georgia 30303
JURISDICTION
On April 7, 2020, this matter was reassigned to the undersigned before whom the
parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed in
accordance with this court’s June 29, 2018 Standing Order (Dkt. 17). The matter is
presently before the court on motions for judgment on the pleadings filed by Plaintiff on
August 14, 2019 (Dkt. 11), and by Defendant on November 14, 2019 (Dkt. 15).
BACKGROUND
Plaintiff Fantasia Shelika Brown (“Plaintiff”), brings this action under Titles II and
XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of the Commissioner of Social Security’s final decision denying Plaintiff’s
applications filed with the Social Security Administration (“SSA”), on October 22, 2015,
for Social Security Disability Insurance (“SSDI”) under Title II of the Act, and for Social
Security Supplemental Income (“SSI”) under Title XVI of the Act (together, “disability
benefits”). Plaintiff alleges she became disabled on October 19, 2013, based on a back
injury, arthritis, and right knee pain/numbness. AR2 at 276, 282. Plaintiff’s applications
initially were denied on December 28, 2015, AR at 78-98, and at Plaintiff’s timely
2 References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
June 13, 2019 (Dkt. 7).
request, AR at 145-49, on February 5, 2018, a hearing was held in Rochester, New
York (“Rochester”), via teleconference before administrative law judge Jonathan P.
Baird in Lawrence, Massachusetts (“the ALJ”). AR at 35-70 (“administrative hearing”).
Appearing and testifying at the administrative hearing were Plaintiff, represented by
Mary Ellen Gill, Esq. (“Gill”), and vocational expert Edmond Calandra (“the VE”).
On April 17, 2018, the ALJ issued a decision denying Plaintiff’s claim, AR at 9-34
(“ALJ’s Decision”), which Plaintiff timely appealed to the Appeals Council. AR at 73-77.
On January 16, 2019, the Appeals Council issued a decision denying Plaintiff’s request
for review, rendering the ALJ’s Decision the Commissioner’s final decision at that time.
AR at 1-8. On March 14, 2019, Plaintiff commenced the instant action in this court
seeking judicial review of the ALJ’s Decision.
On August 14, 2019, Plaintiff moved for judgment on the pleadings (Dkt. 11)
(“Plaintiff’s Motion”), attaching Plaintiff’s Memorandum of Law in Support of Plaintiff’s
Motion for Judgment on the Pleadings (Dkt. 11-1) (“Plaintiff’s Memorandum”). On
November 14, 2019, Defendant moved for judgment on the pleadings (Dkt. 15)
(“Defendant’s Motion”), attaching Commissioner’s Brief in Support of the
Commissioner’s Motion for Judgment on the Pleadings and in Response to Plaintiff’s
Brief Pursuant to Local Civil Rule 5.5 (Dkt. 15-1) (“Defendant’s Memorandum”). Filed
on December 5, 2019, was Plaintiff’s Response to the Commissioner’s Brief in Support
and in Further Support for Plaintiff’s Motion for Judgment on the Pleadings (Dkt. 16)
(“Plaintiff’s Reply”). Oral argument was deemed unnecessary.
Based on the foregoing, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED.
FACTS3
Plaintiff Fantasia Shelika Brown (“Plaintiff” or “Brown”), born December 10, 1984,
was 28 years old as of October 19, 2013, her alleged disability onset date (“DOD”),4 and
33 years old as of April 20, 2018, the date of the ALJ’s Decision. AR at 27, 41, 228,
235, 276. As of the administrative hearing, Plaintiff lived in an apartment with her
teenage daughter. AR at 41. Plaintiff takes care of her daughter, and tends to her own
activities of daily living and grooming. AR at 290. Plaintiff was able to perform
household chores, AR at 42, including washing dishes, tidying up and dusting and
Plaintiff’s daughter helped with laundry. AR at 52. Plaintiff was able to prepare and
cook meals, and used a mobile scooter to grocery shop. AR at 53. Plaintiff has a
driver’s license and drives for up to 25 minutes, and socializes mostly with her daughter
and a friend. AR at 54. Plaintiff attended school in regular classes until ninth grade and
completed training as a home health aide in November 2009, is working on obtaining
her graduate equivalency degree (“GED”), and participated for two years in ACCESS-
VR, a vocational rehabilitation program. AR at 59, 64, 282. Plaintiff subsequently
worked as a nurse’s aide and home health aide until February 2013, a job requiring
Plaintiff frequently lift 25 lbs. and occasionally 100 lbs. AR at 58-59, 283.
On January 30, 3011, Plaintiff sustained a work-related injury to her back while
doing laundry. AR at 40, 815. Plaintiff also sustained injuries in automobile accidents
while driving on April 29, 2016, AR at 40, 1083 (t-bone crash causing low back, neck
and right arm) (“first accident”), and on September 8, 2016. AR at 1087 (rear-end crash
3 In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.
4 Plaintiff’s alleged DOD was later amended to January 13, 2015, the day after a previous disability
benefits claim was denied. AR at 276-77.
causing headaches and neck pain) (“second accident”) (together, “the automobile
accidents”).
DISCUSSION
1. Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district 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 and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,5 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2. Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI
benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable
regulations set forth a five-step analysis the Commissioner must follow in determining
eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). If the claimant meets the criteria at any of the five steps, the inquiry ceases and
the claimant is not eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.
The first step is to determine whether the applicant is engaged in substantial gainful
activity during the period for which the benefits are claimed. 20 C.F.R. §§ 404.1520(b)
and 416.920(b). The second step is whether the applicant has a severe impairment
which significantly limits the physical or mental ability to do basic work activities, as
defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Third, if
there is an impairment and the impairment, or its equivalent, is listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or “the Listings”), and
meets the duration requirement of at least 12 continuous months, there is a
presumption of inability to perform substantial gainful activity, and the claimant is
deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§
423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth
5 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
step, however, if the impairment or its equivalent is not listed in Appendix 1, the
Commissioner must then consider the applicant’s “residual functional capacity” or “RFC”
which is the ability to perform physical or mental work activities on a sustained basis,
notwithstanding the limitations posed by the applicant’s collective impairments, see 20
C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant work
(“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains capable of
performing PRW, disability benefits will be denied, id., but if the applicant is unable to
perform PRW relevant work, the Commissioner, at the fifth step, must consider whether,
given the applicant’s age, education, and past work experience, the applicant “retains a
residual functional capacity to perform alternative substantial gainful work which exists
in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of
proof is on the applicant for the first four steps, with the Commissioner bearing the
burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4);
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found Plaintiff met the insured status requirement for
SSDI through March 31, 2015, AR at 15, has not engaged in substantial gainful activity
since October 19, 2013, her initially alleged disability onset date, id., and suffers from
the severe impairments of degenerative disc disease of the lumbar spine with
radiculopathy, obesity, depressive disorder, and anxiety disorder, id., non-severe
impairments of headaches and neuropathy, id., and Plaintiff’s alleged knee pain is not a
medically determinable impairment, id., but that Plaintiff does not have an impairment or
combination of impairments meeting or medically equal to the severity of any listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 15-17. Despite her
impairments, the ALJ found Plaintiff retains the RFC to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except that Plaintiff requires the
ability to alternate between sitting and standing positions every 30 minutes, can never
climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs, and can
occasionally stoop, kneel, crouch, and crawl, but must avoid concentrated exposure to
extreme cold, is limited to performing simple, routine, repetitive tasks with no more than
occasional interaction with the public, and cannot understand, remember, or carry out
detailed tasks. Id. at 17-25. The ALJ found Plaintiff is unable to perform her PRW as a
home health aide, yet given Plaintiff’s RFC, age, limited education and ability to
communicate in English, Plaintiff can perform jobs that exist in significant numbers in
the national economy including automatic grinding machine operator, jewelry stringer,
and bench hand. Id. at 25-26. Based on these findings, the ALJ determined Plaintiff is
not disabled as defined under the Act. Id. at 26.
Plaintiff does not contest the ALJ’s findings with regard to the first three steps of
the five-step analysis, but argues that at the fourth step, the ALJ failed to properly
considered the consultative examining psychologist’s opinion so as to account for
Plaintiff’s stress, Plaintiff’s Memorandum at 13-17, and erred in failing to obtain a
medical opinion assessing Plaintiff’s RFC after Plaintiff’s two automobile accidents. Id.
at 17-20. Defendant argues the ALJ properly considered the consultative examining
psychologist’s opinion and accounted for Plaintiff’s stress in assessing Plaintiff’s RFC,
Defendant’s Memorandum at 6-8, and the ALJ was not required to obtain a medical
opinion dated after Plaintiff’s automobile accidents prior to assessing Plaintiff’s RFC. Id.
at 8-10. In reply, Plaintiff reiterates her arguments that the ALJ failed to properly
account for the impact of Plaintiff’s stress on her RFC, Plaintiff’s Reply at 1-2, and
further erred by failing to rely on any opinion dated after Plaintiff’s automobile accidents.
Id. at 2-3. The court limits its consideration to whether the ALJ’s Decision is supported
by substantial evidence in the record particularly with regard to Plaintiff’s asserted
stress and the lack of a new medical opinion after Plaintiff’s automobile accidents.
With regard to Plaintiff’s stress, Plaintiff maintains the ALJ failed to properly
account for her stress limitation found by the consultative examining psychologist Yu-
Ying Lin, Ph.D. (“Dr. Lin”). Plaintiff’s Memorandum at 13-17; Plaintiff’s Reply at 1-2.
Defendant maintains the ALJ properly considered Dr. Lin’s opinion and incorporated its
stress limitations into the hypotheticals the ALJ posed to the VE at the administrative
hearing. Defendant’s Memorandum at 56. As relevant here, on December 2, 2015,
Plaintiff underwent a psychiatric evaluation by Dr. Lin on a consultative basis in
connection with Plaintiff’s disability benefits applications. AR at 804-808. Dr. Lin found
Plaintiff to be “moderately limited in appropriately dealing with stress” and that Plaintiff’s
“[d]ifficulties are caused by stress-related problems and lack of motivation.” AR at 807.
Dr. Lin concluded that although Plaintiff’s psychiatric examination results are consistent
with “psychiatric problems,” and diagnosed Plaintiff with unspecified depressive disorder
and unspecified anxiety disorder, the results were “not significant enough to interfere
with Plaintiff’s ability to function on a daily basis.” Id. at 807-08. Significantly, in his
hypothetical posed to the VE at the administrative hearing, the ALJ included that
Plaintiff “would be limited to simple, routine and competitive tasks. She could not
understand, carry out were there ever any detailed instructions. Additionally, the work
would have to be in a low-stress job that would be defined as having only occasional
decision making required and only occasional changes in the work setting,” AR at 66-
67, and later added being able to “only tolerate occasional interaction with the public.”
AR at 67. The VE took these stress-related limitations into account in assessing that
Plaintiff was able to perform work as an automatic grinding machine operator, jewelry
stringer, and bench hand even with such stress-related limitations. AR at 68.
Furthermore, Dr. Lin, despite assessing Plaintiff as “moderately limited in appropriately
dealing with stress,” AR at 808, opined that Plaintiff’s “psychiatric problems” are not
“significant enough to interfere with the claimant’s ability to function on a daily basis.”
AR at 807-08. Accordingly, the ALJ’s incorporation of Plaintiff’s stress-related problems
in his decision is supported by substantial evidence in the record, and there is no merit
to Plaintiff’s argument that the ALJ failed to properly account for Plaintiff’s stress in
determining Plaintiff is not disabled as defined under the Act.
Nor is there any merit to Plaintiff’s argument, Plaintiff’s Memorandum at 17-20,
that the ALJ erred in relying only on medical assessments of Plaintiff’s functioning
prepared prior to Plaintiff’s two automobile accidents. In particular, where “‘the record
contains sufficient evidence from which an ALJ can assess the [claimant’s] residual
functional capacity,’ . . . a medical source statement or formal medical opinion is not
necessarily required.” Monroe v. Commissioner of Social Security, 676 Fed.Appx. 5, 8
(2d Cir. 2017) (brackets in original) (quoting and citing Tankisi v. Commissioner of
Social Security, 521 Fed.Appx. 29, 34 (2d Cir. 2013)). In the instant case, the ALJ
considered evidence of Plaintiff’s impairments after the automobile accidents.
Specifically, ALJ considered that after a physical examination of Plaintiff in connection
with Plaintiff’s complaints of neck and back pain performed at Rochester Regional
Health emergency department on April 30, 2016, the day after the first accident, Plaintiff
had tenderness in her right lower back, but no deficits in gait, cranial nerves, or motor
strength. AR at 20 (citing AR at 1083-85). Plaintiff was reported as able to ambulate
without difficulty, with intact full range of motion, and without obvious spasms, although
Plaintiff had right lateral neck tenderness and tenderness to her right lower back without
acute deformity. AR at 1084-85. Imaging of Plaintiff’s lower back was not
recommended, and Plaintiff was provided with prescriptions for Tylenol, Flexeril (muscle
relaxant) and vitamins. AR at 1085. The ALJ commented that Plaintiff did not seek
follow-up treatment until August 3, 2016. AR at 20 (citing AR at 1001-05 and 1018-24).
In particular, on August 3, 2016, Plaintiff presented to Rochester Brain & Spine for a
comprehensive chiropractic examination performed by chiropractor Jared Anderson,
D.C. (“Dr. Anderson”). AR at 1001-05. Plaintiff reported she previously received
chiropractic care in connection with her “work related back injury which is said to have
fully resolved prior to this [first] accident.” AR at 1002. Upon examination, Plaintiff
demonstrated range of motion deficits in her cervical, lumbar, and lumbosacral spines,
her gait was “slow and somewhat antalgic, with an antalgic lean forward,” and Plaintiff
“appear[ed] to be in moderate distress.” AR at 1003. A course of conservative
treatment with electric stimulation, moist heat applications, stretching and chiropractic
manipulations was recommended. AR at 1004. Following the second accident, Plaintiff
continued seeking chiropractic care from Rochester Brain and Spine and on September
8, 2016, neurosurgeon Seth Zeidman, M.D. (“Dr. Zeidman”), recommended an MRI of
Plaintiff’s cervical and lumbar spines. AR at 1028. The cervical and lumbar spine MRIs
were performed at Borg & Ide Imaging, P.C. in Rochester respectively on November 10
and 11, 2016. AR at 1032-34. The cervical MRI showed central disc extrusion at C3-
C4, mild central canal narrowing at C3-C4, moderate bilateral neuroforaminal narrowing
at C4-C5, and moderate neuroforaminal narrowing at C5-C6. AR at 1034. The lumbar
MRI showed central disc protrusion at L4-L5 with mild-to-moderate central canal
narrowing, and moderate bilateral neuroforaminal narrowing at L4-L5. AR at 1033. Dr.
Zeidman interpreted the MRI results as indicating “no major change in pathology” but
that the second accident exacerbated Plaintiff’s injuries from the first accident, and
recommended Plaintiff commence aqua therapy twice a week for three months. AR at
1036. Plaintiff continued to walk with an antalgic gait, but treatment remained
conservative with stretching, applications of moist heat, and chiropractic manipulations.
AR at 1086-90. On April 6, 2017, Plaintiff began receiving epidural steroid injections
which helped reduce Plaintiff’s pain for three weeks. AR at 1044, 1052, 1056, 1059.
Accordingly, there is sufficient evidence in the record from which the ALJ
assessed Plaintiff’s RFC, including the effects of the automobile accidents on Plaintiff,
such that that ALJ was not required to obtain a medical opinion following the automobile
accidents. See Monroe, 676 Fed.Appx. at 8. The ALJ’s assessment of Plaintiff’s RFC,
as well as the ALJ’s Decision that Plaintiff is not disabled are thus supported by
substantial evidence in the record.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 11) is DENIED; Defendant’s
Motion (Dkt. 15) is GRANTED. The Clerk of Court is directed to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: September 3rd, 2020
Buffalo, New York