Green v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

SHEILA G.,

Plaintiff,

v.

20-CV-1393

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the

undersigned conduct any and all further proceedings in this case, including entry of final

judgment. Dkt. No. 15. Sheila G. (“Plaintiff”), who is represented by counsel, brings this

action pursuant to the Social Security Act (“the Act”) seeking review of the final decision

of the Commissioner of Social Security (“the Commissioner”) denying her application for

benefits. This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

Presently before the Court are the parties’ competing motions for judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. Nos. 11,

13. For the following reasons, Plaintiff’s motion (Dkt. No. 11) is denied, and the

Commissioner’s motion (Dkt. No. 13) is granted.

BACKGROUND

On February 9, 2018, Plaintiff filed for Social Security Income (“SSI”)

alleging that she became disabled on March 14, 2013, by rheumatoid arthritis, trouble

walking, herniated discs, carpal tunnel, venous veins, thyroid issues, diabetes, and high

blood pressure. Tr. at 84-85.1 Plaintiff’s claim was denied at the initial level, and she

requested review. Tr. at 110. Administrative Law Judge Timothy Belford (“the ALJ”)

conducted a hearing on April 20, 2019. Tr. at 23-47. Plaintiff, who was represented by

counsel, testified as did a vocational expert. Tr. at 23-47. On November 20, 2019, the

ALJ issued a decision in which he found that Plaintiff was not under a disability as

defined by the Act since February 9, 2018, the date the application was filed. Tr. at 7-

18. The Appeals Council denied Plaintiff’s request for review making the ALJ’s decision

final. Tr. at 1-6. This action followed. Dkt. No. 1.

LEGAL STANDARD

Disability Determination

A person making a claim for Social Security benefits bears the ultimate

burden of proving disability throughout the period for which benefits are sought. See 20

C.F.R. § 416.912(a); Schauer v. Schweiker, 675 F.2d 55, 59 (2d Cir. 1982). The

claimant is disabled only if she shows that she is unable to engage in any substantial

gainful activity due to any medically determinable physical or mental impairment which

has lasted, or can be expected to last, for a continuous period of at least 12 months. 42

U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.909; see Barnhart v. Walton, 535 U.S. 212,

216-22 (2002).

1 Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket

No. 10.

A disabling physical or mental impairment is an impairment that results

from “anatomical, physiological, or psychological abnormalities which are demonstrable

by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §

1382c(a)(3)(D). Congress places the burden upon the claimant to establish disability by

“furnish[ing] such medical and other evidence of the existence [of a disability] as the

Commissioner . . . may require.” 42 U.S.C. § 1382c(a)(3)(H)(i). The function of

deciding whether a person is under a disability within the meaning of the Act belongs to

the Commissioner. 20 C.F.R. § 416.927(e)(1); Pena v. Chater, 968 F. Supp. 930, 937

(S.D.N.Y. 1997).

In keeping with this function, the Commissioner has established a five-

step sequential evaluation for adjudicating disability claims, which is set forth at 20

C.F.R. § 416.920. The claimant has the burden at the first four steps. The

Commissioner has the burden at the fifth step of demonstrating that the claimant can

perform other work existing in significant numbers in the national economy; but the

burden of proving disability is always on the claimant. See 20 C.F.R. § 416.920;

Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (stating that “[t]he claimant bears

the ultimate burden of proving [disability] throughout the period for which benefits are

sought”) (citation omitted).

District Court Review

42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings

and transcript of the record, a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding the cause for a

rehearing.” 42 U.S.C. § 405(g). Section 405(g) limits the scope of the Court’s review to

two inquiries: whether the Commissioner’s conclusions were based upon an erroneous

legal standard, and whether the Commissioner’s findings were supported by substantial

evidence in the record as a whole. See Green-Younger v. Barnhart, 335 F.3d 99, 105-

106 (2d Cir. 2003).

Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569

F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. (emphasis added and citation

omitted). The substantial evidence standard of review is a very deferential standard,

even more so than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683

F.3d 443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by

substantial evidence, the Court’s task is “‘to examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be drawn.’”

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d

1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s

determination, the decision must be upheld, even if there is also substantial evidence

for the plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin

ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where

the evidence is susceptible to more than one rational interpretation, the Commissioner’s

conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

1982).

DISCUSSION AND ANALYSIS

The ALJ’s Decision

The ALJ analyzed Plaintiff’s claims using the familiar five-step process.

Lynch v. Astrue, No. 07-CV-249-JTC, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008)

(detailing the five steps). At step one, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since February 9, 2018, her application date. Tr. at 12. The

ALJ concluded at step two that Plaintiff suffered from the severe impairments of chronic

low back pain and obesity. Tr. at 12. At step three, he concluded that Plaintiff did not

have an impairment or combination of impairments which met or equaled the Listings.

Tr. at 14.

The ALJ found that Plaintiff retained the RFC to perform light work as

defined by 20 C.F.R. 416.967(b) except occasional balancing, stooping, kneeling,

crouching, crawling or climbing of ramps, stairs or ladders. Tr. at 14. Relying on the

VE’s testimony, the ALJ found that there were jobs that existed in significant numbers in

the national economy that Plaintiff could perform, including the jobs of merchandise

marker, inspector and hand packager, and office helper. Tr. at 18. Accordingly, the

ALJ determined that Plaintiff had not been under a disability since February 9, 2018, the

date the application was filed. Tr. at 18.

Judgment on the Pleadings

As noted above, the parties have cross-moved for judgment on the

pleadings. Dkt. Nos. 11, 13. Plaintiff argues that the ALJ failed to properly evaluate

Plaintiff’s limited education and intellectual aptitude in determining her RFC and erred in

concluding that Plaintiff’s chronic knee was not a severe impairment. For the following

reasons, this Court finds that remand is not warranted.

Plaintiff’s Education

“Your [RFC] is the most you can still do despite your limitations.” 20

C.F.R. § 416.945(a). RFC “is an administrative assessment of the extent to which an

individual’s medically determinable impairment(s), including any related symptoms,

such as pain, may cause physical or mental limitations or restrictions that may affect his

or her capacity to do work-related physical and mental activities.” Social Security Ruling

96-8p, 1996 WL 374184, at *2. “This assessment of RFC is used at step 4 of the

sequential evaluation process to determine whether an individual is able to do past

relevant work, and at step 5 to determine whether an individual is able to do other work,

considering his or her age, education, and work experience.” Id. (emphasis supplied).

Plaintiff argues that “the ALJ failed to properly evaluate the impact that

Plaintiff’s limited special education and aptitude would have on her RFC, resulting in an

RFC determination that failed to account for all of her limitations.” Dkt. No. 11-1, p. 9.

In support of her argument, Plaintiff analogizes her case with the following two

examples from Social Security Ruling 85-15:

Example 2: Someone who is of advanced age, has a limited education,

has no relevant work experience, and has more than a non severe mental

impairment will generally be found disabled.

Example 3: [A finding of disabled would be appropriate for s]omeone who

is closely approaching retirement age, has a limited education or less,

worked for 30 years in a cafeteria doing an unskilled job as a "server,"

almost constantly dealing with the public, and now cannot, because of a

severe mental impairment, frequently deal with the public.

1985 WL 56857, at *5 (S.S.A. Jan. 1, 1985).

Neither of these examples compels a finding that Plaintiff is disabled,

however. The record shows that Plaintiff was 50 years old on the date of her February

9, 2018, application and 51 as of the November 20, 2019, ALJ decision. Therefore,

Plaintiff was not of advanced age (age 55 and over) nor was she closely approaching

retirement age (age 60 and over) according to the Medical-Vocational Guidelines during

the relevant time period. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 201.00 (d)

(“advanced age (55 and over)”), 202.00 (f) (“closely approaching retirement age (age 60

or older)”).2

It bears noting here that Plaintiff has never alleged disability due to a

learning disability or mental impairment, a fact which she explicitly acknowledges. Dkt.

No. 11-1, p. 11. Plaintiff was represented before the agency by counsel from the same

firm that represents her before this Court. Tr. at 10 (“The claimant appointed Kenneth

Hiller, Jeanne Murray and Zachary Zabawa, all attorneys, as representatives.

Representative Zabawa appeared with and on behalf of the claimant at the hearing.”).

Neither Plaintiff nor her counsel raised the issue of disabling mental impairment during

the hearing. In fact, Plaintiff testified that she dropped out of school in the ninth grade

2 Further, even if Plaintiff fit the age requirements, the examples cited by Plaintiff only apply

when “there is no exertional impairment.” Titles II & XVI: Capability to Do Other Work-The

medical-Vocational Rules As A Framework for Evaluating Solely Nonexertional Impairments,

SSR 85-15 (S.S.A. 1985). Plaintiff’s RFC limited her to light work with additional restrictions. Tr.

at 14. Therefore, Plaintiff’s reliance on Social Security Ruling 85-15 to overturn her disability

decision is misplaced.

because she “just didn’t like [it,]” not because she was unable to perform. Tr. at 39.

She also testified that although she needed help completing her disability form, she

could “probably” read “some of” a newspaper article. Tr. at 40. Elsewhere in the

record, Plaintiff indicated that she could “read and understand English” and write more

than her name in English, that she read on a daily basis as a hobby, and that she could

follow spoken and written instructions. Tr. at 182, 203, 208. The record also reflects

that Plaintiff was able to follow medical instructions. Tr. at 324 (“Pt states she has been

icing using the instructions to make a homemade ice kit that helped.”).

All of the jobs identified by the vocational expert were SVP 2, in other

words, unskilled jobs. Tr. at 43-44. Unskilled work is defined as “work which needs

little or no judgment to do simple duties that can be learned on the job in a short period

of time . . . .” 20 C.F.R. § 416.968(a); Social Security Ruling 00-4p, 2000 WL 1898704,

at *2. Plaintiff’s argument that her intellectual deficits precluded her from performing

this type of work is belied by the record, including Plaintiff’s own testimony.

Plaintiff’s Knee Pain

Plaintiff argues that the ALJ erred by not finding her chronic knee pain a

severe impairment at step 2 and by not including restrictions in her RFC to

accommodate it. Having reviewed the record in its entirety, this Court finds that the ALJ

properly considered Plaintiff’s knee pain (including her related condition of rheumatoid

arthritis) at step 2 and beyond. At step 2, the ALJ explicitly stated:

In terms of alleged rheumatoid arthritis, I find the condition non-medically

determinable (Ex. B2E/2, B2F). Longitudinal progress records of primary

care provider Ellis Gomez, MD reflect no workup for the alleged condition

and the consultative examiner, Trevor Litchmore, MD relied upon the

subjective allegations of the claimant in support of the diagnosis (Ex. B1F,

B6F, and B2E/3). I am aware that Dr. Litchmore found decreased lumbar

range of motion, deceased range of motion of the knees bilaterally and

knee crepitus bilaterally. However, there is no indication that such findings

are because of rheumatoid arthritis. Moreover, back findings, as detailed

below, are addressed in the residual functional capacity assessment but

the knee findings were isolated to the consultative examination and not

reflected in the over two years of primary care records from Dr. Gomez

(Ex. B1F, B6F). Additionally, although the record documents a prescription

from Dr. Gomez for use of a cane, the prescription is from April 2015 and

evidence detailed in the current record below, including consultative

examination, shows no documented issues with gait and no documented

use of an assistive device for ambulation (Ex. B13E, B1F, B2F, B6F).

Tr. at 13. The ALJ acknowledged that State agency medical consultant D. Brauer, MD

noted that Plaintiff suffered from obesity, back pain, and knee pain. However, the ALJ

concluded that Plaintiff’s knee pain was not sufficiently documented in the record to

support a chronic limitation. Tr. at 13. These are persuasive reasons for concluding

that Plaintiff’s knee pain was not severe.

Even if the ALJ erred in finding Plaintiff’s knee pain not severe at step 2,

this was no more than a harmless error. The Second Circuit Court of Appeals has

explicitly held that any step 2 error is cured where, as here, the ALJ found other severe

impairments and proceeded beyond step 2. See Reices-Colon v. Astrue, No. 12-3013,

2013 WL 1831669, at *1 (2d Cir. 2013) (summary order); Stanton v. Astrue, 370 Fed

App’x 231, 233 n.1 (2d Cir. 2010). Moreover, as the VE explicitly testified, the jobs of

merchandise marker and inspector and hand packager could be performed by an

individual who required the use of a cane for ambulation. Tr. at 45; see also Tr. at 14

(“At the hearing, the claimant testified that she uses a prescribed cane for ambulation

because of bilateral knee pain but more specifically, right knee pain. She stated that

her right knee would give out on her and would limit standing and walking.”). In this

regard, the record supports the ALJ’s finding that Plaintiff was capable of performing at

least two jobs which exist in significant numbers in the national economy. Under the

circumstances, the ALJ’s conclusion that Plaintiff was not disabled was rational and

properly supported.

Plaintiff clearly disagrees with the ALJ’s evaluation of the evidence.

However, the substantial evidence standard is so deferential that “there could be two

contrary rulings on the same record and both may be affirmed as supported by

substantial evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012).

That is, “once an ALJ finds the facts, [a reviewing court] can reject those facts only if a

reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448

(emphasis added). This case does not present such a situation. For all of the foregoing

reasons, this Court finds that the ALJ’s decision is free from legal error and is supported

by substantial evidence.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for judgment on the

pleadings (Dkt. No. 11) is DENIED, and the Commissioner’s motion for

judgment on the pleadings (Dkt. No. 13) is GRANTED. The Clerk of the Court is

directed to close this case.

SO ORDERED.

DATED: Buffalo, New York

May 26, 2022

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge