Ryion v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

THOMAS MICHAEL RYION

Plaintiff, 19-CV-169Sr

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

As set forth In the Standing Order of the Court regarding Social Security

Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have

consented to the assignment of this case to the undersigned to conduct all proceedings

in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).

Dkt. #13.

BACKGROUND

Plaintiff applied for disability insurance and supplemental security income

(“SSI”), benefits with the Social Security Administration (“SSA”), on November 17, 2014,

alleging disability beginning August 23, 2014, at the age of 30, due to stroke, floating

ribs, occupational asthma, fatigue, stabbing chest pains and anxiety. Dkt. #7, pp.81 &

270.

On September 15, 2017, plaintiff appeared with counsel and testified,

hearing before Administrative Law Judge (“ALJ”), Paul Georger. Dkt. #7, pp.35-80.

Plaintiff testified that he is a high school graduate. Dkt. #7, p.43. Plaintiff was working

as a roofer’s apprentice but couldn’t handle the chemical exposure. Dkt. #7, pp.47 & 55.

He testified that he cannot work because of fatigue. Dkt. #7, p.48. He cannot stand for

more than a half hour or walk more than a half of a block. Dkt. #7, pp.58-59. He

experiences chest pain from asthma attacks at least twice a day or when he engages in

physical activity, especially if it is humid or cold. Dkt. #7, pp.48, 50 & 61. He suffers

memory loss and confusion when it’s really hot out. Dkt. #7, pp.51-52. Plaintiff has a

driver’s license, but does not drive often because he falls asleep while driving. Dkt. #7,

p.43. He lives with his parents and is capable of caring for his personal needs, cooking

simple meals for himself and cutting grass with a riding lawn mower. Dkt. #7, pp.53 &

60.

The VE testified that plaintiff’s past relevant work was as a construction

worker, which is a semi-skilled position requiring heavy exertion. Dkt. #7, p.73. When

asked whether plaintiff could perform his past work if he could not have any exposure to

dust, odors, fumes or pulmonary irritants, the VE testified that plaintiff could do his past

work so long as his employer was compliant with OSHA standards regarding pulmonary

irritants. Dkt. #7, pp.73-74. If limited to light work with frequent reaching in all directions

bilaterally, occasional use of ramps and stairs, ladders, ropes, scaffolds, balancing,

stooping, kneeling, crouching and crawling, with no exposure to extreme cold or heat

and no exposure to humidity and wetness, dust, odors, fumes or pulmonary irritants,

the VE testified that plaintiff could not perform his past work, but could work as a

cashier, sales attendant or cafeteria attendant, each of which are unskilled, light

exertion positions. Dkt. #7, pp.74-75. Upon further questioning, the VE conceded that

the cafeteria attendant and cashier positions in stores with food preparation would be

precluded if plaintiff could not be exposed to any cleaning chemicals. Dkt. #7, p.77.

The ALJ rendered a decision that plaintiff was not disabled on January

29, 2018. Dkt. #7, pp.17-28. The Appeals Council denied review on December 11 2018.

Dkt. #7 p.6. Plaintiff commenced this action seeking review of the Commissioner’s final

decision on February 6, 2019. Dkt. #1.

DISCUSSION AND ANALYSIS

“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). Substantial evidence is defined as “such relevant evidence as

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

569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one

rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.

Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on

adequate findings sustained by evidence having rational probative force, the court

should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145

F.3d 106, 111 (2d Cir. 1998).

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To be disabled under the Social Security Act (“Act”), a claimant must

establish an inability to do 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

twelve months. 20 C.F.R. § 404.1505(a). The Commissioner must follow a five-step

sequential evaluation to determine whether a claimant is disabled within the meaning of

the Act. 20 C.F.R. § 404.1520(a). At step one, the claimant must demonstrate that he is

not engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the

claimant must demonstrate that he has a severe impairment or combination of

impairments that limits the claimant’s ability to perform physical or mental work-related

activities. 20 C.F.R. § 404.1520(c). If the impairment meets or medically equals the

criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation

No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled to

disability benefits. 20 C.F.R. § 404.1520(d). If the impairment does not meet the criteria

of a disabling impairment, the Commissioner considers whether the claimant has

sufficient RFC for the claimant to return to past relevant work. 20 C.F.R. § 404.1520(e)-

(f). If the claimant is unable to return to past relevant work, the burden of proof shifts to

the Commissioner to demonstrate that the claimant could perform other jobs which

exist in significant numbers in the national economy, based on claimant’s age,

education and work experience. 20 C.F.R. § 404.1520(g).

In the instant case, the ALJ made the following findings with regard to the

five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful

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activity since the alleged onset date of August 23, 2014; (2) plaintiff’s occupational

asthma, leukocytosis and anemia constitute severe impairments; (3) plaintiff’s

impairments did not meet or equal any listed impairment; (4) plaintiff retained the

residual functional capacity to perform light work and can lift 20 pounds occasionally

and 10 pounds frequently, stand and walk for 6 hours, push/pull as much as he can lift

and carry, frequently reach, including overhead to the left and right, stoop and kneel,

occasionally climb ramps, stairs, ladders, ropes or scaffolds, crouch and crawl and can

never be exposed to humidity and wetness, dust, odors, fumes, pulmonary irritants and

extreme cold or extreme heat; and (5) plaintiff was not capable of performing his past

work as a construction worker but could work as a cashier, sales attendant, or cafeteria

attendant, each of which were unskilled jobs requiring light exertion, and was not,

therefore, disabled within the meaning of the SSA. Dkt. #7, pp.22-27.

Plaintiff argues that the ALJ failed to properly evaluate and explain the

weight afforded to medical opinion evidence from Dr. Sfeir in January of 2017; failed to

provide adequate reasons for rejecting opinions from Dr. Duvivier and Dr. Steinagle;

selectively read the record to afford great weight to Dr. Sfeir’s 2014 opinion; and failed

to account for limitations provided by Kevin King and consultative examiner, Dr.

Balderman. Dkt. #9-1, pp.17-18. Plaintiff argues that the ALJ failed to appreciate the

implications of plaintiff’s need to avoid chemical exposure or to incorporate limitations

resulting from his occupational asthma and fatigue, including time off-task and missed

work days. Dkt. #9-1, pp.20-25. Plaintiff also argues that the ALJ failed to develop the

record regarding plaintiff’s cognitive and anger issues, as identified by Dr. Kang and Dr.

DiPirro. Dkt. #9-1, pp.25-30.

The Commissioner responds that the ALJ properly weighed the objective

medical evidence, medical source opinions and plaintiff’s subjective complaints and

provided sufficient explanation to support his determination that plaintiff was capable of

performing light work that did not involve exposure to pulmonary irritants. Dkt. #11-1,

pp.12-17. The Commissioner further responds that the ALJ’s determination was based

upon a complete record and that the ALJ properly considered all of plaintiff’s

complaints. Dkt. #11-1, pp.17-20.

An ALJ is required to consider and evaluate every medical opinion

received, regardless of its source. 20 C.F.R. § 416.927(c). Generally speaking, the ALJ

will afford more weight to the opinion of a treating physician because he or she is most

able to provide a detailed, longitudinal picture of the plaintiff’s medical impairment and

may bring a unique perspective to the medical evidence that cannot be obtained from

the objective medical findings alone or from reports of individual examinations, such as

consultative examinations. Moscatello v. Saul, 18-CV-1395, 2019 WL 4673432, at *11

(S.D.N.Y.Sept. 25, 2019), citing 20 C.F.R. § 416.927(c)(2). Thus, where the treating

physician’s opinion is well supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with other substantial evidence in the

record, it will be afforded controlling weight. White v. Saul, 414 F. Supp.3d 377, 383

(W.D.N.Y. 2019), quoting 20 C.F.R. § 404.1527(c)(2). The ALJ may afford less than

controlling weight to a treating physician’s opinion if it fails to meet this standard, but is

required to provide good reasons for the weight assigned upon consideration of, inter

alia: (1) the frequency, 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. Greek v.

Colvin, 802 F.3d 370, 375 (2d Cir. 2015). If the ALJ fails to provide a sufficient basis for

discrediting the opinion of a treating physician, remand is required. Id.

The opinion of a treating physician is not entitled to controlling weight if it

contains internal inconsistencies or contradicts the treating physician’s treatment notes.

Monroe v. Cimm’r of Soc. Sec., 676 Fed. App’x 5, 7 (2d Cir. 2017). Moreover, the

opinion of a treating physician need not be given controlling weight if it is not consistent

with other substantial evidence in the record, including the opinions of other medical

experts, such as a consulting physician. Halloran v. Branhart, 362 F.3d 28, 32 (2d Cir.

2004); See Baszto v. Astrue, 700 F. Supp.2d 242, 249 (N.D.N.Y. 2010) (ALJ may rely

upon the opinion of examining State agency medical consultants, since such

consultants are deemed to be qualified experts in the field of social security disability).

The factors to be considered in evaluating opinions form non-treating medical sources

are the same as those for assessing treating sources, except that the first factor is

replaced with consideration of whether the non-treating source examined the plaintiff.

White, 414 F. Supp.3d at 383.

Genuine conflicts in the medical evidence are for the ALJ to resolve.

Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Even where the ALJ’s

determination does not perfectly correspond with any of the opinions of medical

sources cited in his decision, the ALJ is entitled to weigh all of the evidence available to

make a residual functional capacity finding that is consistent with the record as a whole.

Trepanier v. Comm’r of Soc. Sec., 752 Fed. App’x 75, 79 (2d Cir. 2018); Matta v.

Astrue, 508 Fed. App’x 53, 56 (2d Cir. 2013). While the ALJ is not obligated to explicitly

reconcile every conflicting shred of medical evidence, the ALJ cannot selectively

choose evidence in the record to support her conclusions. Gecevic v. Sec. of Health &

Human Servs., 882 F. Supp. 278, 286 (E.D.N.Y. 1995). A plaintiff is entitled to

understand why the ALJ chose to disregard portions of medical opinions that were

beneficial to her application for benefits. Dioguardi v. Comm’r of Soc. Sec., 445 F.

Supp.2d 288, 297 (W.D.N.Y. 2006).

In the instant case, the Court finds that the ALJ appropriately weighed the

medical opinions of plaintiff’s pulmonologist, hematologist, primary care physician and

consultative examiners, along with the underlying treatment notes and plaintiff’s

subjective complaints and reported activities of daily living to determine plaintiff’s RFC,

which is supported by substantial evidence.

Prior to plaintiff’s alleged disability onset date, Dr. Sfeir, a pulmonologist,

diagnosed plaintiff with mild occupational asthma following his exposure to isocyanates

on a construction site. Dkt. #7, p.341. On August 27, 2014, days after plaintiff’s alleged

disability onset date, Dr. Sfeir opined that plaintiff could return to work. Dkt. #7, p.411.

The ALJ afforded this opinion great weight, because it was consistent with other

opinions of record, as well as the overall record that shows the claimant is capable of

working on a sustained basis. Dkt. #7, p.25. Dr. Sfeir also opined that plaintiff could

never work around isocyanates again (Dkt. #7, p.344), an opinion which the ALJ

incorporated into the environmental limitations imposed upon plaintiff’s RFC and his

finding that plaintiff could no longer perform his past relevant work as a construction

worker. Dkt. #7, p.26.

On January 4, 2017, Dr. Sfeir noted that plaintiff was stable on all of his

bronchodilators, but essentially homebound, explaining that plaintiff “has the potential to

worsen dramatically if he spends time outdoors or if he is exposed to environmental

allergens or irritants”. Dkt. #7, p.1088. Dr. Sfeir indicated that he would send plaintiff’s

lawyer a note, because he believed that plaintiff “will not be able to work again.” Dkt. #7,

p.1088. Although the ALJ did not specifically address this opinion, it is well established

that the ultimate question of disability is reserved for the Commissioner. Snell v. Apfel,

177 F.3d 128, 133-34 (2d Cir. 1999). Moreover, Dr. Sfeir’s limitations with respect to

environmental allergens or irritants are accounted for in the ALJ’s determination that

plaintiff could not be exposed to humidity and wetness, dust, odors, fumes, pulmonary

irritants and extreme cold or extreme heat. Dkt. #7, p.24.

The environmental limitations imposed by the ALJ are also consistent with

the limitations suggested by consultative examiner, Samuel Balderman, M.D. who

noted that pulmonary function tests performed by plaintiff’s physician revealed mild

pulmonary disease and opined that plaintiff should avoid further chemical exposure and

dusty environments. Dkt. #7, p.693. Further limitations are not supported by Dr. Sfeir’s

treatment notes, which generally indicate that plaintiff’s occupational asthma was under

good control and stable, with consistent notations of clear bilateral breath sounds

without wheezing and normal peak expiratory flow rate (“PEFR”). Dkt. #7, pp.348, 352,

364-365, 417, 420, 441, 1077, 1088, 1090.

Although the ALJ afforded little weight to the opinion of Gordon Steinagle,

D.O., at Comprehensive Occupational Medical Services, following examinations of

plaintiff for workers’ compensation, the ALJ’s determination that plaintiff was not

capable of performing his past relevant work as a roofer and required significant

environmental limitations is consistent with Dr. Steinagle’s opinion that plaintiff could not

return to roofing work or isocyanate exposure and should be referred to VESID to

establish capabilities for future employment. Dkt. #7, pp.370, 422, 426, 782, 786.

Plaintiff’s suggestion that he is precluded from any exposure to any chemical or any

potential environmental irritant is unsupported by the medical record as well as

plaintiff’s activities of daily living, which include cutting grass with a riding lawn mower,

cooking, general cleaning, preparing food, laundry, taking public transportation, and

denial of asthma symptoms upon normal activity Dkt. #7, pp.53, 60, 286-87, 688, 1081.

Herbert Duvivier, M.D., at CCS Oncology examined plaintiff for elevated

white blood count and mild anemia on October 22, 2014. Dkt. #7, p.637. Upon

examination on November 11, 2014, plaintiff’s blood work was within normal limits with

no explanation for his previous leukocytosis and mild anemia. Dkt. #7, p.643.

Subsequent examinations revealed normal blood work, with no evidence of

leukocytosis or anemia, with an exception on October 19, 2016 when plaintiff reported

exposure to chemicals. Dkt. #7, p.685, 697, 747, 810, 916, 919, 922, 925, 1190.

Subsequent to that exposure, however, plaintiff’s blood work returned to baseline,

prompting Dr. Duvivier to advise plaintiff to avoid future chemical exposure. Dkt. #7,

pp.810, 925. Despite these objective findings, Dr. Duvivier completed medical

examination forms for social services opining that plaintiff was 100% disabled due to

fatigue and cannot return to work exposure to isocyanate. Dkt. #7, pp.324, 799, 819,

1157. The ALJ afforded this opinion little weight, as it was conclusory and inconsistent

with the opinion of other medical providers. Dkt. #7, p.25. This assessment of Dr.

Duvivier’s opinion is supported by substantial evidence, including Dr. Duvivier’s

determination that plaintiff’s anemia and leukocytosis had resolved and the absence of

any treatment plan for plaintiff’s complaints of fatigue, as well as the results of a

functional capacity evaluation conducted one-month prior to Dr. Duvivier’s completion of

the medical examination form for social services.

On May 10, 2017, Kevin King, Registered/Licensed Occupational

Therapist at Buffalo Ergonomics OT Services, PLLC, conducted a functional capacity

evaluation of plaintiff to establish safe physical demand levels to assist the New York

Workers’ Compensation Board in determining plaintiff’s mandated permanency rating.

Dkt. #7, pp.803-806. The summary and recommendations of that evaluation stated,

inter alia:

3. At this time [plaintiff] has demonstrated the ability to

perform up to 40# of medium physical demand level work.

However, the client’s waist to floor lift was 25#s and waist to

shoulder lift was 20#s.

4. Based upon the FCE and the client‘s increased overall

fatigue levels demonstrated during the evaluation I would

recommend that [plaintiff] not work above a light physical

demand level with the ability to take breaks as needed.

Dkt. #7, p.803. The ALJ afforded this assessment great weight as it was based on an

examination of the plaintiff and supported by objective findings. Dkt. #7, p.25. Although

the ALJ did not address the caveat that plaintiff be afforded the ability to take breaks as

needed, that recommendation should be considered in light of the specific findings

upon evaluation. Dkt. #7, pp.805-806. For example, plaintiff was observed to show

signs of upper extremity and trunk muscle fatigue, deterioration of gait, and increased

overall fatigue with increased weight and reps when performing horizontal lift and front

lift carry for twenty feet, prompting a finding that plaintiff should not perform such

activity continuously, but should intermix it with other activity. Dkt. #7, p.805.

Notwithstanding this finding, plaintiff was expected to be able to lift 40 pounds

occasionally and 20 pounds frequently over the course of an eight-hour day and forty-

hour week. Dkt. #7, pp.803 & 805. Similarly, plaintiff displayed signs of trunk muscle

fatigue and increased overall fatigue with increased duration of standing and distance in

walking, prompting a finding that plaintiff should intermix standing and walking with

other activity, even while indicating that plaintiff was capable of standing and walking up

to two-thirds of a workday. Dkt. #7, p.806. Thus, the functional capacity evaluation

supports the ALJ’s determination that plaintiff was capable of employment at the light

exertion level notwithstanding his fatigue.

A consultative psychiatric evaluation was completed on May 29, 2015 with

Gregory Fabiano, Ph.D., who opined that plaintiff did not appear to have psychiatric

problems that would be significant enough to interfere with the plaintiff’s ability to

function on a daily basis. Dkt. #7, p.689. More specifically, Dr. Fabiano opined that

plaintiff did not appear to have any limitations in his ability to follow and understand

simple directions or instruction, perform simple tasks independently, maintain attention

and concentration, maintain a regular schedule, learn new tasks, perform complex

tasks independently, make appropriate decisions, relate adequatley with others, and

appropriately deal with stress. Dkt. #7, p.688. The ALJ afforded Dr. Fabiano’s opinion

great weight. Dkt. #7, p.25. The ALJ was within his discretion to credit this opinion

notwithstanding the recommendation of neurologist Minsoo Kang. M.D., that plaintiff

obtain a formal neuropsychometric evaluation to assess multiple changes on an MRI

scan of plaintiff’s brain. Dkt. #7, p.1153. Moreover, Dr. DiPirro’s prescription of an anti-

depressant to treat his diagnosis of chronic and stable anxiety (Dkt. #7, pp.568, 624),

does not suggest a severe mental impairment or contradict Dr. Fabiano’s consulting

opinion.

CONCLUSION

Based on the foregoing, plaintiff’s motion for judgment on the pleadings

(Dkt. #9), is denied and the Commissioner’s motion for judgment on the pleadings (Dkt.

#11), is granted.

The Clerk of the Court is directed to close this case.

SO ORDERED.

DATED: Buffalo, New York

September 17, 2020

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge