Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

SONYA L. BROWN,

DECISION

Plaintiff, and

v. ORDER

ANDREW M. SAUL,1 Commissioner of 19-CV-577F

Social Security, (consent)

Defendant.

______________________________________

APPEARANCES: LAW OFFICES OF KENNETH R. HILLER, PLLC

Attorneys for Plaintiff

KENNETH R. HILLER, and

ELIZABETH ANN HAUNGS, 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 SARA POLLACK

Special Assistant United States Attorney, of Counsel

Social Security Administration

Office of General Counsel

26 Federal Plaza – Room 3904

New York, New York 10278

and

FRANCIS D. TANKARD, and

PAMELA McKIMENS

Special Assistant United States Attorneys, of Counsel

Social Security Administration

Office of General Counsel

601 East 12th Street, Room 965

Kansas City, Missouri 64106

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).

JURISDICTION

On April 7, 2020, this matter was assigned 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. 15). The matter is

presently before the court on motions for judgment on the pleadings filed by Plaintiff on

September 10, 2019 (Dkt. 7), and by Defendant on November 6, 2019 (Dkt. 11).

BACKGROUND

Plaintiff Sonya L. 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 1, 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 September 1, 2014, based on high

blood pressure, lower back pain, and diabetes. AR2 at 179, 181, 237, 251. Plaintiff’s

applications initially were denied on December 15, 2015, AR at 82-83, and at Plaintiff’s

timely request, AR at 92, on June 29, 2018, a hearing was held in Buffalo, New York

before administrative law judge Mary Mattimore (“the ALJ”). AR at 38-67

(“administrative hearing”). Appearing and testifying at the administrative hearing were

Plaintiff, represented by Jeanne Murray, Esq. (“Murray”), and vocational expert Jay

Steinbrenner (“the VE”).

2 References to “AR” are to the page of the Administrative Record electronically filed by Defendant on

July 12, 2019 (Dkt. 6).

On August 3, 2018, the ALJ issued a decision denying Plaintiff’s claim, AR at 13-

33 (“ALJ’s Decision”), which Plaintiff timely appealed to the Appeals Council. AR at

173-76. On March 5, 2019, the Appeals Council denied Plaintiff’s request for review,

AR at 1-9, rendering the ALJ’s Decision the Commissioner’s final decision. On May 3,

2019, Plaintiff commenced the instant action seeking review of the ALJ’s Decision.

On September 10, 2019, Plaintiff moved for judgment on the pleadings (Dkt. 7)

(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion

for Judgment on the Pleadings (Dkt. 7-1) (“Plaintiff’s Memorandum”). On November 6,

2019, Defendant moved for judgment on the pleadings (Dkt. 11) (“Defendant’s Motion”),

attaching Commissioner’s Brief in Response to Plaintiff’s Brief Pursuant to Local Civil

Rule 5.5 on Social Security Cases (Dkt. 11-1) (“Defendant’s Memorandum”). Filed on

January 6, 2020, 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. 14) (“Plaintiff’s

Reply”). Oral argument was deemed unnecessary.

Based on the foregoing, Plaintiff’s Motion is DENIED; Defendant’s Motion is

GRANTED.

FACTS3

Plaintiff Sonya L. Brown (“Plaintiff” or “Brown”), born September 16, 1974, was

39 years old as of September 1, 2014, her alleged disability onset date (“DOD”), and 42

years old as of August 13, 2018, the date of the ALJ’s Decision. AR at 28, 179, 181,

237, 266. As of the June 29, 2018 administrative hearing, Plaintiff was married with

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.

three adult children and lived with her husband in a single-family house. AR at 44-45.

Plaintiff attended high school in regular classes through the 11th grade, and has not

obtained a GED nor received any vocational training. AR at 48, 252, 263. Plaintiff has

a driver’s license and drives daily. AR at 46. Plaintiff babysat her three-year old

grandson and worked 21 hours a week through Western New York Independent Living

as a personal care aide to her grandmother performing such tasks as sitting with her

grandmother, driving her to doctor’s appointments, preparing meals, and light cleaning.

AR at 46-47. In addition to babysitting and working as a personal care aide, Plaintiff did

laundry, washed dishes, mopped and swept the floor, went grocery shopping usually

accompanied by others but occasionally on her own on which occasions she had to limit

the weight of the grocery bags, and visited with family. AR at 50-51, 57-58.

Plaintiff’s past relevant work experience includes as a housekeeper and laundry

worker. AR at 240, 252. In 2014, Plaintiff had a transient ischemic attack (“TIA”) (mini-

stroke). AR at 292. Plaintiff claims she is unable to work largely because of problems

with her back which Plaintiff attributes to an automobile accident on June 15, 2014 (“the

accident”). AR at 49, 52, 302-09. Plaintiff receives treatment for her back from

chiropractor Michael J. Cardamone, D.C. (“Dr. Cardamone”), and Pinnacle Orthopedic

and Spine Specialists where she generally saw orthopedic spine surgeon Cameron B.

Huckell, M.D. (“Dr. Huckell”), who ordered diagnostic tests but never recommended

surgery. AR at 498-538, 540-79. Plaintiff also treated from April 14, 2015 to May 7,

2015, with orthopedic surgeon Roger Warren Rogers, D.O. (“Dr. Rogers”), who referred

Plaintiff to physical therapy. AR at 310-13. Plaintiff attended physical therapy for her

back pain from May 19, 2015 to November 30, 2015. AR at 314-70. At the time of the

accident, Plaintiff’s primary care physician was Brenda L. Perez, M.D. (“Dr. Perez”). AR

at 419-50. On March 29, 2017, Plaintiff began receiving primary care from Daniel

Trock, M.D. (“Dr. Trock”). AR at 411-18. In connection with her disability benefits

applications, on December 2, 2015, Plaintiff underwent a consultative physical

examination by John Schwab, D.O. (“Dr. Schwab”). AR at 292-96.

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,4 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). 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. §§

4 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.

423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth

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). All five steps need not be

addressed because if the claimant fails to meet the criteria at either of the first two

steps, the inquiry ceases and the claimant is not eligible for disability benefits, but if the

claimant meets the criteria for the third or fourth step, the inquiry ceases with the

claimant eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.

In the instant case, the ALJ found Plaintiff met the insured status requirement for

SSDI through December 1, 2019, AR at 18, has not engaged in substantial gainful

activity5 since September 1, 2014, her alleged disability onset date, id., and suffers from

the severe impairments of degenerative joint disease of the lumbar spine and thoracic

spine, other intervertebral disc displacement in the lumbar region, lumbago, lumbar and

thoracic disc herniation without myelopathy, and obesity, id., and non-severe

impairments that do not result in any significant work-related functional limitations

including history of a transient ischemic attack (“TIA”) in February 2014, resulting in

memory changes, diabetes mellitus, hypertension, and gastroesophageal reflux

disorder (“GERD”), id. at 19, 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 19-20. 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 can never

climb ladders, ropes, scaffolds, or ramps, can occasionally rotate her lumbar area, climb

stairs, kneel, crouch, and crawl, can stoop approximately 10% of a workday, can

perform simple, routine work and make simple workplace decisions not at a production

rate (assembly line) pace. Id. at 20-26. Plaintiff is unable to perform any PRW, all of

which was unskilled rendering irrelevant the transferability of skills, 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 surveillance

systems monitor, table worker, and bonding semiconductors. Id. at 26-28. Based on

these findings, the ALJ determined Plaintiff is not disabled as defined under the Act. Id.

at 28.

5 The ALJ’s determination that Plaintiff’s part-time work as a personal care aide for her grandmother did

not rise to the level of substantial gainful employment, AR at 18, is not disputed.

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 erred by rejecting the

medical opinion of treating physician Dr. Trock without giving good reasons. Plaintiff’s

Memorandum at 9-14. Defendant argues the ALJ did not fail to give good reasons for

rejecting Dr. Trock’s opinion, but considered several factors including that Dr. Trock’s

opinion was not the only medical source opinion, Defendant’s Memorandum at 14-16,

and the record as a whole supports the ALJ’s determination that Plaintiff retains the

RFC for substantial gainful employment. Id. at 16-22. In further support of her motion,

Plaintiff reiterates that the ALJ failed to provide good reasons for rejecting key

limitations set forth in treating physician Dr. Trock’s opinion. Plaintiff’s Reply at 1-2.

Because Plaintiff challenges only the ALJ’s determination of Plaintiff’s RFC which is

predicated on discounting Dr. Trock’s November 21, 2017 opinion, AR at 493-96,

particularly that Plaintiff would be off task, absent, or need unscheduled breaks, which

limitations would preclude Plaintiff from participating in all work in the national economy,

the court limits its consideration to whether such determination violated the treating

physician rule, rendering the RFC determination unsupported by substantial evidence in

the record.

For disability benefits claims filed prior to March 27, 2017, an opinion from a

treating medical source is entitled to controlling weight so long as the “opinion on the

issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case record. . . .” 20 C.F.R. §

404.1527(c)(2). See Crowell v. Comm’r of Soc. Sec. Admin., 705 Fed. Appx. 34, 35 (2d

Cir. 2017) (treating physician’s opinion generally entitled to controlling weight when

“well-supported by medically acceptable clinical and laboratory diagnostic techniques

and [ ] not inconsistent with other substantial evidence in the case record.”) (citations

omitted). Where, however, an ALJ discounts a treating physician’s opinion, the ALJ

must set forth “good reasons” for doing so. Burgess v. Astrue, 537 F.3d 117, 129 (2d

Cir. 2008) (citing Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)). The failure to

provide good reasons for rejecting a treating physician’s opinion is grounds for remand.

Schall v. Apfel, 124 F.3d 496, 503-05 (2d Cir. 2004) (per curiam) (“We do not hesitate to

remand when the Commissioner has not provided ‘good reasons’ for the weight given to

a treating physician opinion and we will continue remanding when we encounter

opinions from ALJ’s that do not comprehensively set forth reasons for the weight

assigned to a treating physician’s opinion.”).

In the instant case, in a November 21, 2017 Physical Medical Source Statement

(“medical source statement”), Dr. Trock reported treating Plaintiff for eight months, and

that Plaintiff’s diagnoses include lumbar degenerative disc disease, diabetes, and

history of a TIA, assessing Plaintiff’s prognosis as “guarded.” AR at 493-96. Dr. Trock

assessed Plaintiff as able to sit or stand for 30 minutes at a time, AR at 494, sit, stand

and walk fewer than two hours in an eight hour day, id., required the ability to shift

positions at will including periods to walk, id., and required taking unscheduled five-

minute breaks every thirty minutes, with such restrictions attributed to muscle

weakness, pain, paresthesias, and numbness. Id. Dr. Trock further reported the

severity of Plaintiff’s symptoms would cause Plaintiff to be off-task 20% of a typical

workday, and based on her impairments and treatment, Plaintiff would miss work four

days a month. AR at 496. According to Plaintiff, the ALJ gave Dr. Trock’s medical

source statement only “some weight” but failed to provide the requisite good reasons for

rejecting Dr. Trock’s opinion that Plaintiff would be off task, absent, or need

unscheduled breaks, which limitations the VE testified at the administrative hearing

would preclude all employment. Plaintiff’s Memorandum at 9 (citing AR at 64-65).

There is no merit to Plaintiff’s argument because the ALJ did provide good reasons for

according Dr. Trock’s opinion only “some weight” based on substantial evidence in the

record.

In particular, the ALJ considered that Dr. Trock’s own treatment progress notes

do not support the work-precluding limitations including that upon first examining

Plaintiff on March 29, 2017, Dr. Trock reported no pertinent positive findings relevant to

Plaintiff’s back impairment. AR at 416-18. When next seen on July 24, 2017, Plaintiff

complained of “acute left-sided low-back pain without sciatica” which Dr. Trock

considered an exacerbation of Plaintiff’s chronic back pain but was now presenting in a

“different place.” AR at 413-14. At the November 21, 2017 examination for

“[p]aperwork completion for disability” following which Dr. Trock prepared the medical

source statement, the assessment relative to Plaintiff’s back impairment was “other

vertebral disc displacement – lumbar region,” with Plaintiff’s asserted chronic pain

reported as “mild.” AR at 650-51. In his March 12, 2018 treatment progress note, Dr.

Trock refers to Plaintiff as having “low back pain status post motor vehicle accident,”

Plaintiff at that time denied pain, and also denied musculoskeletal symptoms. AR at

646-49. Further, Dr. Trock encouraged Plaintiff to increase activity to lose weight,

specifically, to walk 30 minutes a day “at an increased pace” for five to seven days a

week. AR at 649. These reasons recited by the ALJ, AR at 24, are “good reasons” for

rejecting the portion of Dr. Trock’s medical source statement containing limitations that

would preclude all work as not supported by Dr. Trock’s treatment progress notes.

Burgess, 537 F.3d at 129. Accordingly, the ALJ did not violate the treating physician’s

rule by according Dr. Trock’s medical source statement only “some weight,” and no

remand is warranted.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion (Dkt. 7) is DENIED; Defendant’s Motion

(Dkt. 11) 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 14th, 2020

Buffalo, New York