noting that an ALJ’s failure to cite specific evidence does not mean it was not considered
How later courts described this case
- noting that an ALJ’s failure to cite specific evidence does not mean it was not considered
Written by the judges who cited it.
The opinion
TES DISTRIC
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UNITED STATES DISTRICT COURT iS 00
WESTERN DISTRICT OF NEW YORK NOV 24 28
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LESTERN DISTRICLS
KELSEY P.,}
Plaintiff,
v. 19-CV-317 (JLS)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
DECISION AND ORDER
Plaintiff Kelsey P. brings this action under the Social Security Act (“the Act”)
and seeks review of a determination by the Commissioner of Social Security
(“Commissioner”) that she was not disabled. Dkt. 1. Plaintiff moved for judgment
on the pleadings pursuant to Fed. R. Civ. P. 12(c). Dkt. 8. The Commissioner
responded and cross-moved for judgment on the pleadings. Dkt. 13. Plaintiff
replied. Dkt. 14.
For the following reasons, this Court denies Plaintiffs motion and grants the
Commissioner’s cross-motion.
1 Pursuant to the Western District of New York’s November 18, 2020 Standing
Order entitled “In Re: The Identification of Non-Government Parties in Social
Security Opinions,” this Decision and Order identifies Plaintiff by first name and
last initial.
PROCEDURAL HISTORY
On July 1, 2015, Plaintiff applied for social security income (“SSI”) under
Title XVI. Dkt. 1-1 at 5. The Commissioner denied that application on September
3, 2015. Id. Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”) on October 19, 2015. Id. The ALJ held a hearing on October 25, 2017 and
issued a decision on January 3, 2018, finding that Plaintiff was not disabled under
Section 1614(a)(3)(A) of the Social Security Act. Dkt. 1-1 at 5, 14. The Appeals
Council denied Plaintiffs request for review on January 10, 2019, making the ALJ’s
decision the Commissioner’s final decision. Dkt 1-2 at 2. Plaintiff brought this
action on March 8, 2019. Dkt. 1 at 2.
LEGAL STANDARD
I. District Court Review
The scope of review of a disability determination involves two levels of
inquiry. See Johnson v. Bowen, 817 F.2d 9838, 985 (2d Cir. 1987). First, the Court
must “decide whether [the Commissioner] applied the correct legal principles in
making the determination.” Id. The Court’s review for legal error ensures “that the
claimant has had a full hearing under the ... regulations and in accordance with
the beneficent purposes” of the Social Security Act. See Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).
Second, the Court “decide[s] whether the determination is supported by ‘substantial
evidence.” Johnson, 817 F.2d at 985 (quoting 42 U.S.C. § 405(g)).
“Substantial evidence” is “more than a mere scintilla” and “means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations
and citations omitted). The Court does not “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal
quotations and citations omitted). But “the deferential standard of review for
substantial evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003). Indeed, if “a reasonable basis
for doubt whether the ALJ applied correct legal principles” exists, applying the
substantial evidence standard to uphold a finding that the claimant was not
disabled “creates an unacceptable risk that a claimant will be deprived of the right
to have her disability determination made according to correct legal principles.”
Johnson, 817 F.2d at 986.
II. Disability Determination
In denying Plaintiffs application, the ALJ evaluated her claim under the
Social Security Administration’s five-step evaluation process for disability
determinations. See 20 C.F.R. § 416.920(a)(2). At the first step, the ALJ
determines whether the claimant currently is engaged in substantial gainful
employment. Id. § 416.920(a)(4)(i). If so, the claimant is not disabled. Jd. If not,
the ALJ proceeds to step two. Id. § 416.920(a)(4).
At step two, the ALJ decides whether the claimant suffers from any severe
impairments. Id. § 416.920(a)(4) (ii). If there are no severe impairments, the
claimant is not disabled. Jd. If there are any severe impairments, the ALJ proceeds
to step three. Id. § 416.920(a)(4).
At step three, the ALJ determines whether any severe impairment or
combination of impairments meets or equals an impairment listed in the
regulations. Id. § 416.920(a)(4)(ii1). If the claimant’s severe impairment or
combination of impairments meets or equals an impairment listed in the
regulations, the claimant is disabled. Id. § 416.920(a)(4)(i1i). But if the ALJ finds
that no severe impairment or combination of impairments meets or equals any in
the regulations, the ALJ proceeds to step four. Id. § 416.920(a)(4).
As part of step four, the ALJ first determines the claimant’s residual
functional capacity (“RFC”). See id. § 416.920(a)(4)(iv); id. § 416.920(d)-(e). The
RFC is a holistic assessment of the claimant that addresses the claimant’s medical
impairments—both severe and non-severe—and evaluates the claimant’s ability to
perform physical or mental work activities on a sustained basis, notwithstanding
limitations for her collective impairments. See id. § 416.945. After determining the
claimant’s RFC, the ALJ completes step four. Jd. § 416.920(e). If the claimant can
perform past relevant work, she is not disabled and the analysis ends.
Id. § 416.920(f). But if the claimant cannot perform past relevant work, the ALJ
proceeds to step five. Id. § 416.920(a)(4)(iv); id. § 416.920(f).
In the fifth and final step, the Commissioner must present evidence showing
that the claimant is not disabled because the claimant is physically and mentally
capable of adjusting to an alternative job. See id. §§ 416.920(a)(4)(v), (g); Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). More specifically, the Commissioner must
prove that the claimant “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) (quoting Bapp v. Bowen, 802 F.2d 601, 604
(2d Cir. 1986)).
DISCUSSION
I. The ALJ Decision
The ALJ analyzed Plaintiffs claim for SSI under the process described above.
At step one, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since her alleged onset date of June 27, 2015.2 Tr. 13.3 At step two, the
ALJ found that Plaintiff had a severe impairment, namely low vision due to
retinopathy of prematurity. Tr. 13. At step three, the ALJ found that this
impairment did not meet or medically equal any impairments listed in the
regulations. Tr. 13. At step four, the ALJ determined that Plaintiff has the RFC to
“perform a full range of work at all exertional levels” with certain non-exertional
limitations. Those limitations include: (1) no hazardous environments; (2) no
climbing ladders or stairs “more than occasionally”; and (3) no driving “automotive
equipment.” Tr. 14. Plaintiff also cannot “read fine print more than occasionally”
or work in “dark environments.” Tr. 14.
2 Plaintiff had first alleged a disability onset date of June 27, 1997 (her date of
birth), but then amended that date at her hearing before the ALJ. This Court
proceeds with June 27, 2015 as the operative alleged onset date.
3 Docket 4 is the transcript of proceedings before the Social Security Administration.
All references to Docket 4 are denoted “Tr. __.”
Completing step four, the ALJ found that Plaintiff had no past relevant work.
Tr. 18. At step five, relying on the testimony of a vocational expert and considering
Plaintiffs age, education, work experience, and RFC, the ALJ determined that jobs
existed “in significant numbers in the national economy” that Plaintiff could
perform. Tr. 19. These jobs included being a dining room attendant, a laundry
worker, a dish washer, a housekeeper, and a sales attendant. Tr. 19. Accordingly,
the ALJ found that Plaintiff was not disabled as defined in the Act. Tr. 20.
Ii. Analysis
A. The ALJ did not err in his RFC analysis.
Plaintiff contends that the ALJ erred by not properly considering “limitations
in color vision” and claimed difficulties in performing daily living activities in the
RFC based on subjective testimony from Plaintiff and her mother. Dkt. 8-1 at 11.
Specifically, Plaintiff argues that the ALJ did not properly credit testimony from
her and her mother that Plaintiff had difficulty distinguishing colors, and that she
struggled with judging how well she completed daily living tasks, such as shaving
and sweeping. Jd. Plaintiff asserts that this failure to fully credit and address this
subjective testimony means that the ALJ’s decision was not based on substantial
evidence and that remand is warranted. Jd. at 15. Additionally, Plaintiff contends
that the ALJ erred by citing her “conservative treatment.” Jd. at 14. This Court
disagrees for the following reasons.
While the ALJ must consider a claimant’s activities and subjective
complaints, he does not need to explicitly “include each subjective complaint
expressed and every observation[] made” in his determination. Balles v. Astrue, No.
3:11-CV-13886 (MAD), 2013 WL 252970, at *3-4 (N.D.N.Y. Jan. 23, 2018); see also
Barringer v. Comm’, 358 F. Supp. 2d 67, 78-79 (N.D.N.Y. 2005) (noting that an
ALJ’s failure to cite specific evidence does not mean it was not considered); 20
C.F.R. § 416.929(c)(3)(). An ALJ is not required to “mention|[] every item of
testimony ... or... explain[] why he considered particular evidence unpersuasive”
where “the evidence of record permits [a court] to glean the rationale of an ALJ’s
decision.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
Such evidence exists here. Plaintiffs claim rests on subjective testimony
from her and her mother that she has difficulty distinguishing colors and that she
has difficulty performing daily living activities. Dkt. 8-1 at 11. The ALJ’s analysis
may have omitted these specific complaints, but that does not mean that he did not
consider them, and he was not required to address them explicitly. Significantly,
Plaintiffs claim that she cannot distinguish colors is based on a single instance that
she and her mother had both testified to at the hearing. Tr. 61, 80. Plaintiff had
testified that she had difficulty distinguishing between black and dark blue clothing
while working a shift at in retail and that a supervisor corrected her. Tr. 61. She
then clarified that it was “really just...one time....” Jd. Further, Plaintiffs
mother’s testimony did not clearly indicate that this was an ongoing problem. See
Tr. 80.
The medical evidence does not support Plaintiffs claim that she has ongoing
problems with color vision. The only other support on the record for Plaintiffs claim
is a teacher report that notes that she could not read the dry erase board when the
teacher wrote in red marker, and that “writing need[ed] to be larger’ for Plaintiff to
read it. Tr. 288. Conversely, a school eye examination found that Plaintiff “was
able to distinguish between all the colors presented to her.” Tr. 303. While this
complaint does not feature explicitly in the ALJ’s determination, this does not
suggest that he did not consider it in light of the conflicting medical evidence and
the hearing testimony regarding her limited vision.
Plaintiff also contends that the ALJ did not properly address her complaint
that she has difficulty performing daily living activities. First, her function report
to the Social Security Administration dated July 29, 2015 asserts that she usually
misses spots when shaving her legs and underarms. Tr. 261. Second, she and her
mother testified that while Plaintiff can clean up after herself, she does not always
see if she has cleaned up fully. Tr. 66, 75. While the ALJ was not explicit in
addressing these complaints, he did consider them. The determination notes that
“[w]hile the claimant may not be perfect at certain task[s] she is clearly capable of
performing many household functions.” Tr. 18. The ALJ based this on the totality
of the medical evidence and the witnesses’ allegations with no single factor being
dispositive. Id. The ALJ did not err in not explicitly addressing these subjective
complaints in his determination.
Plaintiff also contends that the ALJ erred in assigning only slight weight to
her mother’s testimony. This Court disagrees. A non-medical third party’s opinion
must be considered under the SSA’s regulations, but is not entitled to any
particular weight. 20 C.F.R. § 416.927(f). The ALJ should still articulate why a
non-medical witness’s opinion is given a certain weight. Id. § 416.927(f)(2).
However, not every factor that an ALJ would consider in weighing the opinion of
acceptable medical source is relevant, and such a discussion will depend on the facts
of the case. Id. § 416.927(f)(1). The adjudicator may consider whether the non-
medical witness’s opinion conflicts with other evidence in the record, and any
special relationship with the claimant that may color the witness’s view. See
Rusten v. Comm’, 468 F. App’x 717, 719 (9th Cir. 2012).
The ALJ found, and a review of the record supports, that Plaintiffs mother
offered only her own lay opinion that conflicted with both her daughter’s testimony
and with the medical evidence. For instance, Plaintiff testified that she believed
that she could work fulltime, while her mother testified that she felt that Plaintiff
could not. Compare Tr. 57, with Tr. 82. Similarly, Plaintiff testified that she gets
headaches if she reads for too long, but that she normally does not need to take any
over-the-counter medicine to relieve the pain and that taking a short break often
resolves her symptoms. Tr. 62-63. Plaintiffs mother contradicts this by
characterizing the headaches as far more common and far more severe as Plaintiff
herself had stated on the record. See Tr. 76-79. These conflicting statements
between a lay witness and the claimant herself support the ALJ assigning only
slight weight.
This testimony also conflicts with the medical evidence. Plaintiffs claim of
headaches appears once in her medical records—where, in a December 2015
medical visit, her ophthalmologist Steven Awner, M.D. recommended that Plaintiff
remain hydrated and that she should keep a headache diary. Tr. 379. There is no
indication that she ever kept such a diary, and Plaintiff did not mention headaches
at other medical visits. See Tr. 510, 514, 519, 526. The only other evidence comes
from Plaintiff's testimony, and that of her mother’s third party lay opinion. The
severity of these headaches, testified to by Plaintiffs mother, conflicts further with
the medical evidence. For all these reasons, the ALJ was not required to give
Plaintiffs mother any more than slight weight and did not err in doing so.
Finally, Plaintiff argues that the ALJ erred by discounting her treatment
regimen as “conservative.” Dkt. 8-1 at 14. See also Tr. 16. This argument is
unpersuasive. While a recommendation of conservative treatment alone is not
substantial evidence that a claimant is not disabled, Burgess v. Astrue, 537 F.3d
117, 129 (2d Cir. 2008), the ALJ did not base his determination on this. The ALJ
observed that Plaintiffs “treatment has been essentially routine and conservative.”
Tr. 16. This was not the basis of his determination, but rather a characterization of
the treatment history that he then described in greater detail. Even if he
considered Plaintiffs conservative treatment regimen, it is not legally improper to
do so when “that fact is accompanied by other substantial evidence on the
record....” Burgess, 5387 F.3d at 129. The ALJ discusses substantial evidence
beyond Plaintiffs treatment regimen in making his determination. The ALJ’s
mention of conservative treatment was therefore not itself legal error.
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B. Substantial evidence supports the ALJ’s determination.
Having found no legal error in the ALJ’s determination, this Court finds that
substantial evidence supports the ALJ’s determination that Plaintiff is not disabled
as defined in the Act. Plaintiff suffers from retinopathy of prematurity; in April
2014, a low vision examination performed by Dr. James Simmons, O.D., indicated
that Plaintiffs visual acuity in April 2014 was 20/100 and 20/125 in the right eye,
and 5/200 in the left, both with variable adaptive viewing. Tr. 330. Dr. Simmons
recommended that Plaintiff use large print when needed. Tr. 336.
Plaintiff testified at her hearing that, while she was offered such
accommodations throughout her schooling, she did not use them unless she “really
needed it.” Tr. 59. Specifically, she utilized large print on a couple of occasions in
middle school and occasionally used a magnifying glass in high school. Id. She also
had preferential seating at the front of the classroom. Tr. 65. In elementary school
she had a visual aide available to help her once a week. Tr. 65-66. Plaintiff also
testified that she has a computer from the Commission for the Blind that allows her
to zoom in, but that she only uses it sometimes. Tr. 64, 69.
Her ophthalmologist Dr. Awner had previously indicated that she was not a
candidate for a driver’s license. Tr. 340. An August 2015 consultative examination
with Theodore Prawak, M.D. indicated that Plaintiff is legally blind and that she
“cannot drive a motor vehicle, operate machinery, or climb heights.” Tr. 361.
However, Plaintiff reported that she performed daily living activities such as
cleaning, cooking, shopping, and reading. Tr. 360. Based on this examination, Dr.
11
Prawak opined that she could not drive a motor vehicle, operate machinery, or
climb heights, but that her condition did not preclude her from reading. Tr. 361.
At her hearing, Plaintiff testified that she was a junior in college studying for
degrees in veterinary technology and biology and that she maintained a part-time
job in retail. Tr. 50-52. At work, she required extra time to read the buttons on the
cash register and had some difficulty reading portions of the printed receipt. Tr. 60.
Plaintiff also held a summer internship at a veterinary office where she cleaned,
observed appointments, and counted and bottled pills. Tr. 52. She has also worked
for a cat rescue program for three summers and was not limited by her low vision.
Tr. 68. Plaintiff testified that she believed that she is “able to work” if it was not at
a computer or required her to “do microscope stuff for too long.” Tr. 57.
At home, Plaintiff performs household chores and her daily living activities,
however imperfectly. See Tr. 55-71. While she has a hard time reading buttons on
the oven, she can cook, including slicing vegetables. Tr. 71. She can read her
schoolwork without glasses, but she uses them if she reads on the computer. Tr. 62.
She testified that reading for too long can cause her to have a headache, for which
she ordinarily would take a break, taking Ibuprofen “sometimes.” Tr. 62-63.
Plaintiff takes no other medication. Tr. 56.
All these factors reasonably informed the ALJ’s RFC and the non-exertional
limitations noted in his opinion and are substantial evidence to support his
determination. The evidence above would support a reasonable mind in concluding
that Plaintiff is not disabled and can perform fulltime work, with certain limitations
12
based on the medical evidence and the hearing testimony. The ALJ’s RFC
specifically limited her from working in hazardous environments, from climbing
heights more than occasionally, from reading fine print more occasionally, and from
working in dark environments. All of this accounts for her limited vision from her
retinopathy and the medical evidence on the record. The ALJ therefore did not err
in determining that Plaintiff is not disabled because substantial evidence exists on
the record to support that determination.
CONCLUSION
For all the foregoing reasons, this Court GRANTS the Commissioner’s motion
for judgment on the pleadings and DENIES Plaintiffs motion for judgment on the
pleadings. The Commissioner’s final decision is AFFIRMED. The Clerk of the
Court is directed to close this case.
SO ORDERED.
Dated: November 24, 2020
Buffalo, New York
s/John L. Sinatra, Jr.
JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE
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