The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
DONNA HOFFMAN,
Plaintiff,
Case No. 1:19-cv-01537-TPK
v,
COMMISSIONER OF SOCIAL OPINION AND ORDER
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Donna Hoffman filed this action under 42 U.S.C. §405(g) asking this Court to
review a final decision of the Commissioner of Social Security. That final decision, issued by
the Appeals Council on September 16, 2019, denied Ms. Hoffman’s applications for social
security disability benefits and supplemental security income. Ms. Hoffman has now moved for
judgment on the pleadings (Doc. 9), and the Commissioner has filed a similar motion in response
(Doc. 13). For the following reasons, the Court will DENY Plaintiff’s motion, GRANT the
Commissioner’s motion, and will direct the Clerk to enter judgment in favor of the defendant.
I. BACKGROUND
Plaintiff was 50 years old when she protectively filed her applications for benefits on
August 7, 2015. Plaintiff alleged that she had been disabled since December 1, 2012. After
initial administrative denials of her claim, Plaintiff appeared at an administrative hearing held on
September 6, 2018, at which she and Alissa Smith, a vocational expert, both testified.
The Administrative Law Judge issued an unfavorable decision on October 25, 2018. In
that decision, he first concluded that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2018, and that she had not engaged in substantial gainful
activity since her alleged onset date. Next, the ALJ determined that Plaintiff suffered from
severe impairments including chronic obstructive pulmonary disease, fibromyalgia, degenerative
disc disease of the cervical spine, right knee chondromalacia patellae, and greater trochanteric
bursitis of the left hip. The ALJ further found that Plaintiff had a number of non-severe
impairments and that none of her impairments met the criteria for disability set out in the Listing
of Impairments.
According to the ALJ, Plaintiff’s impairments limited her to performing work at the light
exertional level. However, she could only occasionally push and pull and operate foot controls
with the bilateral lower extremities, and the same was true for her ability to operate hand controls
with the bilateral upper extremities, She could also occasionally balance, stoop, kneel, crouch,
crawl, and climb ladders or stairs, and could never climb ladders, ropes, or scaffolds.
Additionally, Plaintiff should not work in areas with a high concentration of dust, fumes, gases,
or other pulmonary irritants or where there was exposure to unprotected heights or moving
mechanical parts. She also needed ready access to a bathroom. From a mental point of view,
Plaintiff could do simple, routine, repetitive tasks as part of a low-stress job which required only
occasional decision-making and involved only occasional changes in the work setting.
Given this residual functional capacity, the ALJ determined that Plaintiff was unable to
perform her past relevant work as a home attendant, day care attendant, and child care attendant.
At the administrative hearing, the vocational expert testified that someone of Plaintiff’s age and
educational history and who had the limitations ascribed to her by the ALJ could perform
unskilled light jobs such as small parts assembler, garment sorter, and price marker. The ALJ
accepted this testimony and found that those jobs existed in significant numbers in the national
economy. He therefore concluded that Plaintiff was not disabled within the meaning of the
Social Security Act.
Plaintiff, in her motion for judgment, asserts the following claims of error. She argues (1)
that the ALJ failed to include use of a cane in the list of Plaintiff’s functional restrictions; (2) that
the ALJ erred by not finding that she suffered from another severe disorder, irritable bowel
syndrome, and by not finding that this disorder imposed additional functional restrictions; and
(3) that the ALJ impermissibly based the residual functional capacity finding on his own lay
interpretation of the evidence as opposed to basing it on the medical opinions of record.
II. THE KEY EVIDENCE
The Court will begin its review of the record by summarizing Plaintiff’s testimony at the
administrative hearing. It will then recap the relevant information contained in the medical
records.
Plaintiff first testified that she lived with her husband in a ground floor apartment. She
had a driver’s license and drove three or four times per week. She was a high school graduate.
The last time she worked was in January, 2018 as a home respite care worker for disabled
children. She had done that job for several years on a part-time basis. Before that, she was a
daycare worker, also on a part-time basis, and also worked as a teacher’s aide for young children.
Next, Plaintiff testified about her various impairments. She had injured her right knee
and it had never improved, and she also had pain across her lower back and radiating down her
right leg and into her left hip. She used both a cane and a walker, and had a prescription from her
doctor for the cane. Additionally, Plaintiff suffered from neck pain which radiated into her
shoulders and restricted the motion of her neck. Her treatment included ibuprofen and injections
in her hip. Plaintiff had also been diagnosed with fibromyalgia which may have caused all of her
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other symptoms plus random muscle pain, primarily in her arms and head. She also experienced
weakness in her legs and had fallen occasionally, and she had dizzy spells at times. She had had
heart surgery as well and took medication for her heart condition. Ten years before, she had been
diagnosed with COPD, for which she took medication and used an inhaler. Humidity and cold
weather exacerbated that condition. Other problems included hearing loss and sleep apnea as
well as tingling and pain in her hands which followed a double mastectomy. She napped daily
due to difficulty sleeping and as a side effect of her medication.
Plaintiff said that she had been diagnosed with acid reflux disease as well. She took
medication for that but still experienced problems after eating, and she was diagnosed with
irritable bowel syndrome which caused cramping and an urgent need to use the bathroom. She
usually needed ten bathroom breaks per day. Finally, she said that she had a skin condition
which caused soreness and blisters.
From a mental health standpoint, Plaintiff said she was being treated for anxiety. She
could not take antidepressants because of interactions with her heart medicine, so her treatment
was limited to counseling. She experienced depressive symptoms as well as panic attacks. Her
symptoms had gotten worse since she stopped working.
Plaintiff also testified about her daily activities. She got up in time to take her morning
medications, and after breakfast she might visit her children and grandchildren or go to a medical
appointment. She also did some household chores like cleaning and washing dishes. She
alternated sitting and standing to deal with pain and stiffness, and said she could sit for fifteen
minutes and stand and walk for ten. She was able to dress herself but wore clothing that was
easy to get on an off.
The vocational expert, Alissa Smith, identified Plaintiff’s past work as a home attendant,
a daycare attendant, and a child care attendant. She was then asked questions about a
hypothetical person who could do light work with various restrictions. She testified that such a
person could not do Plaintiff’s past jobs but could work as a small parts assembler, garment
sorter, or price marker. She also gave numbers for those jobs as they exist in the national
economy. Ms. Smith also identified some sedentary jobs which a person with those restrictions
could do. Lastly, she said that someone who would miss two days of work per month or would
be off task for 20% of the time could not be gainfully employed at any exertional level.
The medical records are voluminous. They are well summarized by the ALJ and the
parties’ memoranda, and the Court’s review will focus on those portions pertinent to the ultimate
resolution of the case.
The ALJ mentions, in his summary of Plaintiff’s testimony, the fact that she said her
doctor prescribed her a cane. Plaintiff points out in her memorandum that her treating physician,
Dr. Karpie, signed a medical certification on June 13, 2018, in connection with her application
for a disability parking permit, stating that due to Plaintiff’s various conditions, she was
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temporarily in need of an assistive walking device. Dr. Karpie said that she would need it until
March 31, 2019. (Tr. 44). Dr. Karpie also noted, on a form he completed in November, 2018,
that Plaintiff walked with a cane, and he also stated on that form that she was unable to return to
work. (Tr. 53).
In his decision, the ALJ recapped the evidence concerning treatment of Plaintiff’s left hip
pain, noting that she appeared to get significant relief through cortisone injections. She had also
been treated for lower back pain and right hip pain, and although the records showed that
conservative treatment had not improved these conditions, a combination of medications brought
her significant relief. The ALJ also noted that at her consultative physical examination in 2015,
she described a range of daily activities she could perform, including cooking, cleaning, doing
laundry, grocery shopping, and attending church, and the physical examination did not reveal any
substantial abnormalities in her strength, gait, or range of motion.
Since one of Plaintiff’s claims focuses on the opinion evidence, it is helpful to describe it.
Such evidence is sparse. The consultative examiner, Dr. Siddiqui, whom Plaintiff saw in 2015,
did not believe that Plaintiff had any exertional limitations, but he thought that due to her history
of respiratory illnesses, she should avoid dust, smoke, and other irritants. Plaintiff’s oncologist
said that she could not lift over ten pounds due to her mastectomy. (Tr. 1176). There are also a
number of treatment notes scattered throughout the record indicating short temporary periods
when Plaintiff was unable to work; most of them speak in terms of days or weeks of disability
rather than any period of disability approaching twelve months, and many of them contain a date
on which Plaintiff was released to go back to work.
Plaintiff also argues that her IBS should have been characterized as a severe impairment.
There is evidence in the record that she had a history of that impairment. In September, 2017,
she was treated in the emergency room with an “8 day history of intermittent, waxing and waning
diffuse abdominal pressure and bleeding, associated with severe diarrhea” including more than
ten episodes the day before. (Tr. 820). Testing did not reveal any abdominal abnormalities,
however, and she was discharged in improved condition. At an earlier doctor’s appointment in
2016, Plaintiff reported a history of loose bowel movements during the day with no warning, as
well as some episodes of fecal incontinence. (Tr. 897). She related the same symptoms at other
times. See, e.g., Tr. 921, 988. The latter note indicated that she had some relief with immodium.
A treatment note from December 5, 2017, related that Plaintiff had had an extensive workup for
chronic diarrhea (but not a colonoscopy, which she refused) and that there were no significant
objective findings. That note also recites that Plaintiff was put on a trial of budesonide with “a
remarkable response” which included no episodes of either diarrhea or fecal incontinence. (Tr.
1481). She did report a worsening of her symptoms in early 2018 when she stopped taking the
medication, and her doctor’s recommendation was to restart it. (Tr. 1632-34). There do not
appear to be any additional notes from that treating source indicating how effective this
recommendation was. However, in 2018, Plaintiff was given a prescription for adult diapers to
treat incontinence due to IBS. (Tr. 39). There is no indication whether the 2017 prescription
addressed the issue satisfactorily, but Plaintiff points out in her memorandum that she had to
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leave the administrative hearing twice to use the restroom.
III. STANDARD OF REVIEW
The Court of Appeals for the Second Circuit has stated that, in reviewing a final decision
of the Commissioner of Social Security on a disability issue,
“[i]t is not our function to determine de novo whether [a plaintiff] is disabled.”
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996). Instead, “we conduct a plenary
review of the administrative record to determine if there is substantial evidence,
considering the record as a whole, to support the Commissioner's decision and if
the correct legal standards have been applied.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir.2009); see also 42 U.S.C. § 405(a) (on judicial review, “[t]he findings
of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”).
Substantial evidence is “more than a mere scintilla.” Moran, 569 F.3d at 112
(quotation marks omitted). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quotation marks omitted
and emphasis added). But it is still a very deferential standard of review—even
more so than the “clearly erroneous” standard. See Dickinson v. Zurko, 527 U.S.
150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). The substantial evidence
standard means once an ALJ finds facts, we can reject those facts “only if a
reasonable factfinder would have to conclude otherwise.” Warren v. Shalala, 29
F.3d 1287, 1290 (8th Cir.1994) (emphasis added and quotation marks omitted);
see also Osorio v. INS, 18 F.3d 1017, 1022 (2d Cir.1994) (using the same
standard in the analogous immigration context).
Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 447–48 (2d Cir. 2012)
IV. DISCUSSION
A. Use of a Cane
Plaintiff’s first claim of error is that the ALJ failed to find that she needed to use a cane
for walking despite the fact that her doctor had prescribed it. Citing to Social Security Ruling
96-9p, she notes that in order for a claimant to establish that she needs to use a cane, there must
be medical documentation of that need (which there is here), and if that documentation exists, the
failure of an ALJ to make a finding on the issue constitutes reversible error. The Commissioner
raises multiple arguments in response to this assertion, including the fact that the medical forms
completed by Dr. Karpie were not part of the record considered by the ALJ and that there were
numerous records indicating that Plaintiff walked with a normal gait and without an ambulatory
aid. Plaintiff does not address this issue in her reply.
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The record confirms the Commissioner’s argument that the documents signed by Dr.
Karpie concerning Plaintiff’s use of a cane were submitted to the Appeals Council and were not
before the ALJ when he made his decision. In fact, the second parking permit application post-
dates the ALJ’s decision by about three weeks and therefore could not have been part of the
record which he reviewed. Plaintiff has also not argued that the Appeals Council erred by
refusing to reopen the case based on this evidence. However, the Court must still consider it. As
the court in Jennifer K. v. Comm'r of Soc. Sec., 2019 WL 2995157, at *5 (N.D.N.Y. July 8, 2019)
said, interpreting the Court of Appeals’ decision in Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir.
2015), “Lesterhuis ... held that when reviewing the Commissioner’s decision, “[w]e ‘review the
entire administrative record which includes the new evidence, and determine, as in every case,
whether there is substantial evidence to support the decision of the [Commissioner].’ ” Id. (citing
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)) (emphasis added).” See also Westhoven v.
Comm’r of Social Security, 2019 WL 1541053 (W.D.N.Y. April 9, 2019). Reversal on the basis
of such evidence does depend, however, on whether it is new and material to the ALJ’s decision;
if it would not reasonably have changed the result reached by the ALJ, no further action on the
Court’s part is required.
Here, there are several reasons why the parking permit applications - the only documents
in which a medical source has indicated the need to use a cane - would not have affected the
ALJ’s decision. First, as the Commissioner points out, there are multiple examination notes,
starting with the consultative examination but including many others, which reflect that Plaintiff
walked with a normal gait and which did not mention that she either needed or used a cane. Such
evidence provides substantial support that a claimant does not need to use a cane. See, e.g.,
Kellner v. Colvin, 2013 WL 3200581 (C.D. Cal. June 24, 2013). Second, the earlier permit
application states that Plaintiff’s need to use a cane was temporary and that she was expected to
recover her ability to walk without it in less than twelve months. The later permit application
indicated the condition was permanent, but there is no evidence that she needed to use a cane at
any time before June of 2018, when the first permit application was signed. Additionally, the
vocational expert was asked to, and did, identify sedentary jobs that Plaintiff was capable of
performing. As this Court observed in Stover v. Saul, 2020 WL 897411 (W.D.N.Y. Feb. 25,
2020), using a cane is not inconsistent with the residual functional capacity to do sedentary work,
and on the forms he completed, Dr. Karpie indicated that Plaintiff was unable to walk 200 feet
without stopping, suggesting that she could stand and walk for short periods of time, which is
usually what sedentary work requires. Give this record, it is unlikely that had the ALJ been
provided with these two applications, he would have made a different decision, and the Court
concludes that the decision he did make is supported by substantial evidence even considering
these documents. For all these reasons, the Court finds no merit in Plaintiff’s first claim of error.
B. Irritable Bowel Syndrome as a Severe Impairment
Secondly, Plaintiff asserts that the ALJ erred by failing to find that her IBS was a severe
impairment. She points to the evidence summarized above as proof that her condition was
serious enough to cause functional impairment, and claims that the ALJ erred in the manner in
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which he discounted her claim, finding that she had responded well to treatment. The
Commissioner, in turn, argues that the ALJ reasonably interpreted the record to show that
Plaintiff did respond well to treatment, that the record did not show that the severe symptoms
which Plaintiff reported from time to time were present on a continuous basis, and that the ALJ
did incorporate some functional restrictions from IBS into his residual functional capacity
finding. The Court begins its analysis of this issue by examining what the ALJ said in the
portion of his decision where he found that IBS was not a severe impairment.
As this Court said in Mitchell v. Comm'r of Soc. Sec., 2019 WL 4415123, at *3
(W.D.N.Y. Sept. 16, 2019), “[a]n impairment is ‘not severe’ if it does not significantly limit a
claimant's physical or mental capacity to perform basic work activities. See 20 C.F.R. §
404.1522; Social Security Ruling (SSR) 96-3p....” In finding that Plaintiff’s IBS was not severe,
the ALJ concluded that this condition (along with several others) were non-severe “because the
medical evidence establishes that the claimant has only a slight abnormality that has no more
than a minimal effect on the claimant’s ability to perform basic work activities ... for at least
twelve months.” (Tr. 16). In support of this conclusion, the ALJ referred to Exhibit 38F/2 (the
note about the trial of budesonide) as showing that “the claimant had a remarkable response to
medication regarding her IBS symptoms....” Id. The ALJ also found that Plaintiff’s testimony
about her symptoms (presumably including those caused by IBS) was not entirely consistent with
the medical evidence (Tr. 21), a conclusion which Plaintiff has not disputed. Last, he found that
there were some functional limitations stemming from Plaintiff’s need to use the bathroom
during working hours, even though he did not regard the condition as severe. Id. As noted
above, the residual functional capacity finding included the fact that Plaintiff “must have ready
access to a bathroom, meaning in general proximity of the work area....” (Tr. 19).
Courts have held that evidence of improvement in IBS symptoms due to medication can
justify a finding that a claimant’s IBS was not a severe impairment. See, e.g., Danielle G. v.
Berryhill, 2019 WL 364467 (N.D.N.Y. Jan. 30, 2019). This Court has also held that, given that
“it is [p]laintiff's burden to prove a more restrictive RFC than the RFC assessed by the ALJ,”
Beaman v. Commissioner, 2020 WL 473618, *6 (W.D.N.Y. 2020), the absence of medical
evidence that a claimant’s IBS causes more functional limitations than those imposed by the ALJ
justifies affirming the ALJ’s determination. See Robert D.M. v. Comm’r of Social Security, 2021
WL 1169187 (March 29, 2021). Although it can be reversible error for an ALJ not to include
functional restrictions from intestinal disorders found not to be severe, see Ames v. Berryhill
2017 WL 1276706 (W.D.N.Y. Apr. 6, 2017), that is not what happened here. There was
evidence in the record from which a reasonable person could have concluded, as did the ALJ,
that Plaintiff’s IBS was controllable with medication at least to the extent that the only
accommodation she needed was ready access to a bathroom in the workplace. That being so, the
Court must, under the substantial evidence standard, affirm that conclusion.
C. Residual Functional Capacity Determination
Plaintiff’s third claim of error focuses on the ALJ’s residual functional capacity
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determination. She notes that the ALJ did not exactly follow any of the opinion evidence in
determining her functional capacity and argues that he must therefore have substituted his own
lay judgment for that of the medical professionals. According to Plaintiff, the ALJ’s rejection of
each medical opinion deprived his ultimate conclusion of substantial evidentiary support and
necessitates a remand. The Commissioner, citing to Tankisi v. Comm’r of Social Security, 521
Fed. App’x 29 (2d Cir. Apr. 2, 2013), argues that the mere fact that a residual functional capacity
finding does not mirror any medical opinion does not require remand, and that the generally
normal examination findings and her range of daily activities support a finding that Plaintiff
could do a limited range of light work.
This Court has confronted this issue multiple times. In Coleman v. Comm'r of Soc. Sec.,
335 F. Supp. 3d 389, 400 (W.D.N.Y. 2018), the Court said that “[s]imply because the ALJ did
not adopt precisely the opinions of [the medical sources] does not mean that the RFC assessment
is not consistent with their assessment of Plaintiff's capabilities.” In other words, the absence of
a medical opinion (or compilation of opinions) that are exactly tracked in an ALJ’s finding is not
automatically grounds for remand. Rather, it is the Court’s task, on review, to determine if the
ALJ’s finding is consistent with the record. Consequently, “the ALJ's opinion need ‘not perfectly
correspond with any of the opinions of medical sources cited in his decision,’ and the ALJ is
‘entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with
the record as a whole.’” Ortiz v. Colvin, 298 F. Supp. 3d 581, 587 (W.D.N.Y. 2018), quoting
Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013).
The ALJ in this case did not give a great amount of weight to any of the opinion
evidence. He discounted Dr. Siddiqui’s opinion that Plaintiff had few, if any, functional
restrictions because “the longitudinal record supports that the claimant experienced pain from her
musculoskeletal impairments, which limited her ability to perform exertional and other
activities...” (Tr. 22). He also gave little weight to the oncologist’s opinion concerning
Plaintiff’s lifting capabilities, concluding that the same longitudinal record showed that she was
more capable than Dr. Soniwala believed. He was similarly not convinced by any other opinion
in the record, noting that many of the opinions were unsupported by any evidence and did not
contain specific functional limitations or that they dealt with limited time frames. Ultimately, the
ALJ derived his residual functional capacity finding from the evidence that Plaintiff had been
treated for both musculoskeletal and respiratory impairments, indicating that exertional, postural,
and environmental limitations existed, but concluded that the evidence also showed that she was
not totally precluded from working because she had many normal examinations and could engage
in a wide range of daily activities. (Tr. 24).
There are some troubling aspects about this decision. It is not, strictly speaking, a blend
of competing opinion evidence because there was only one opinion - Dr. Siddiqui’s - which
addressed a relatively full range of work-related functions, and that opinion was almost
completely disregarded. Dr. Soniwala expressed views only on Plaintiff’s ability to lift and carry
weight, and he did so only from the perspective of her oncologist, apparently not taking any of
her musculoskeletal impairments into account. Those were the predominant conditions for
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which Plaintiff received treatment. On the other hand, the ALJ resolved a number of issues in
Plaintiff’s favor, such as including the need to have ready access to a bathroom and finding that
Plaintiff had limitations in the use of her arms and legs to push, pull, or operate controls. He also
included a host of environmental restrictions and psychological limitations, despite his finding
that she had no severe mental impairment. The record also contains testimony that even if
Plaintiff were limited to sedentary work, she could do jobs like document specialist, toy stuffer,
and printed board screener. The question then becomes whether, assuming that the ALJ
committed error by crafting a residual functional capacity finding which, in part, contains
limitations that are only thinly supported by the record, was that error prejudicial enough to
require a remand?
In this particular case, and on this particular record, the answer is no. This Court has
declined to find reversible error where an ALJ’s residual functional capacity finding is in many
ways more restrictive than that of the medical experts, see Glab v. Comm’r of Social Security,
2018 WL 3422062 (W.D.N.Y. July 16, 2018), and has concluded, as well, that if such a finding
is made in error, the error is harmless. See, e.g. Cheryl T. v. Comm'r of Soc. Sec., 2021 WL
695100, at *4 (W.D.N.Y. Feb. 23, 2021). This Court has also considered it relevant that no
medical opinion or other evidence would preclude a claimant from working at the particular
exertional level described in the ALJ’s residual functional capacity finding. See, e.g., Wiggins v.
Berryhill, 2019 WL 1856259 (W.D.N.Y. Apr. 25, 2019).
Here, with the exception of the oncologist’s opinion, there is no evidence stating that
Plaintiff could not do light work, and the ALJ’s decision is certainly more restrictive than Dr.
Siddiqui’s opinion. Additionally, even if the lifting limitation imposed by Dr. Soniwala were
honored, it basically limited Plaintiff to sedentary work, and the vocational expert identified a
significant number of such jobs available to Plaintiff. Therefore, while it is problematic that an
ALJ would come up with a residual functional capacity finding which has many restrictions that
appear loosely connected to the record or are not supported by expert opinion, in this particular
case Plaintiff does not appear to have been prejudiced. Under those circumstances, the Court
finds no merit in her final claim of error.
V. CONCLUSION AND ORDER
For the reasons set forth in this Opinion and Order, the Court DENIES Plaintiff’s motion
for judgment on the pleadings (Doc. 9), GRANTS the Commissioner’s motion for judgment on
the pleadings (Doc.13), and directs the Clerk to enter judgment in favor of the defendant.
/s/ Terence P. Kemp
United States Magistrate Judge
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