Alston v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SHAMARA A.,1

Plaintiff,

v. 6:23-CV-6171-LJV

DECISION & ORDER

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

On March 23, 2023, the plaintiff, Shamara A. (“Shamara”), brought this action

under the Social Security Act (“the Act”). Docket Item 1. She seeks review of the

determination by the Commissioner of Social Security (“Commissioner”) that she was

not disabled.2 Id. On June 15, 2023, Shamara moved for judgment on the pleadings,

Docket Item 6; on September 13, 2023, the Commissioner responded and cross-moved

1 To protect the privacy interests of Social Security litigants while maintaining

public access to judicial records, this Court will identify any non-government party in

cases filed under 42 U.S.C. § 405(g) only by first name and last initial. Standing Order,

Identification of Non-Government Parties in Social Security Opinions (W.D.N.Y. Nov.

18, 2020).

2 Shamara applied for Disability Insurance Benefits (“DIB”). One category of

persons eligible for DIB includes any adult with a disability who, based on her quarters

of qualifying work, meets the Act’s insured-status requirements. See 42 U.S.C.

§ 423(c); Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989). A qualified individual

may receive both DIB and Supplemental Security Income (“SSI”), and the Social

Security Administration uses the same five-step evaluation process to determine

eligibility for both programs. See 20 C.F.R. §§ 404.1520(a)(4) (concerning DIB),

416.920(a)(4) (concerning SSI).

for judgment on the pleadings, Docket Item 11; and on September 27, 2023, Shamara

replied, Docket Item 12.

For the reasons that follow, this Court denies Shamara’s motion and grants the

Commissioner’s cross-motion.3

STANDARD OF REVIEW

“The scope of review of a disability determination . . . involves two levels of

inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first

decide whether [the Commissioner] applied the correct legal principles in making the

determination.” Id. This includes ensuring “that the claimant has had a full hearing

under the . . . regulations and in accordance with the beneficent purposes of the Social

Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations omitted)

(quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, 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” means “more than a mere scintilla. It 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) (quoting Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938)). “The substantial evidence standard means

once an ALJ finds facts, [the court] can reject those facts only if a reasonable fact finder

would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443,

3 This Court assumes familiarity with the underlying facts, the procedural history,

and the decision of the Administrative Law Judge (“ALJ”) and refers only to the facts

necessary to explain its decision.

448 (2d Cir. 2012) (internal quotation marks and citation omitted) (emphasis in original);

see McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to

more than one rational interpretation, the Commissioner’s conclusion must be upheld.”).

But “[w]here there is a reasonable basis for doubt whether the ALJ applied correct legal

principles, application of the substantial evidence standard to uphold a finding of no

disability creates an unacceptable risk that a claimant will be deprived of the right to

have her disability determination made according to the correct legal principles.”

Johnson, 817 F.2d at 986.

DISCUSSION

I. THE ALJ’S DECISION

On May 4, 2022, the ALJ found that Shamara had not been under a disability

since December 18, 2020, the date Shamara alleged that her disability began. See

Docket Item 5 at 25-37. The ALJ’s decision was based on the five-step sequential

evaluation process under 20 C.F.R. § 404.1520(a). See id.

At step one, the ALJ found that Shamara met the insured status requirements of

the Act through December 31, 2025, and had not engaged in substantial gainful activity

since her alleged disability onset date. Id. at 27. At step two, the ALJ found that

Shamara suffered from two severe, medically determinable physical impairments:

asthma and migraine headaches. Id. at 28. The ALJ found that Shamara’s “mental

impairments of depressive disorder and anxiety disorder . . . do not cause more than

minimal limitation in [Shamara’s] ability to perform basic mental work activities and are

therefore nonsevere.” Id. In assessing Shamara’s mental impairments, the ALJ found

that Shamara was (1) not limited in understanding, remembering, or applying

information; (2) not limited in interacting with others; (3) mildly limited in concentrating,

persisting, or maintaining pace; and (4) mildly limited in adapting or managing herself.

Id. at 28-29.

At step three, the ALJ found that Shamara’s severe, medically determinable

impairments did not meet or medically equal one of the listed impairments in 20 C.F.R.

Part 404, Subpart P, Appendix 1. See id. at 29-30. More specifically, the ALJ found

that Shamara’s impairments did not meet or medically equal listing 3.02 (chronic

respiratory disorders), 3.03 (asthma), and 11.02 (epilepsy), id. at 29.

The ALJ then found that Shamara had the RFC4 to perform “light work” as

defined in 20 C.F.R. § 404.1567(b) except that Shamara:

can occasionally climb ramps and stairs, but can never climb ladders,

ropes, or scaffolds. [She] can occasionally balance, stoop, kneel,

crouch, and crawl. She must avoid even moderate exposure to

unprotected heights and moving and dangerous machinery, but is

able to operate a motor vehicle. [She] would have to avoid

concentrated exposure to pulmonary irritants and noise, such as very

loud banging.

Id. at 30.

At step four, the ALJ found that Shamara no longer could perform any past

relevant work. Id. at 35. But given Shamara’s age, education, and RFC, the ALJ found

at step five that Shamara could perform substantial gainful activity as a case aid. Id. at

36; see Dictionary of Occupational Titles 195.367-010, 1991 WL 671595 (Jan. 1, 2016).

4 A claimant’s residual functional capacity (“RFC”) is the most she “can still do

despite her limitations . . . in an ordinary work setting on a regular and continuing basis.”

Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184,

at *2 (Jul. 2, 1996)). “A ‘regular and continuing basis’ means 8 hours a day, for 5 days a

week, or an equivalent work schedule.” Id.

Therefore, the ALJ found that Shamara had not been under a disability or entitled to DIB

since December 18, 2020. See Docket Item 5 at 37.

II. ALLEGATIONS

Shamara argues that the ALJ erred in two ways. Docket Item 6-1. First, she

argues that the ALJ’s step-two determination that her depressive disorder and anxiety

disorder were not severe was not supported by substantial evidence. Id. at 8. Second,

she argues that the ALJ failed to take her non-severe mental impairments into account

when making his RFC determination. Id. at 13. For the reasons that follow, this Court

disagrees.

III. ANALYSIS

A. The Step-Two Determination

Shamara first argues that the ALJ’s determination at step two that her depressive

disorder and anxiety disorder were not severe impairments was not supported by

substantial evidence. Docket Item 6-1 at 8.

Disability under the Act is determined under a five-step test; at the second step,

the ALJ decides whether the claimant has any “severe” impairment—that is, a medically

determinable impairment or combination of impairments that significantly limits the

claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(c). “Basic work

activities” are “activities and aptitudes necessary to do most jobs.” 20 C.F.R. §

404.1522(b). With respect to mental activities, the ALJ assesses the claimant’s degree

of limitation in four areas: (1) understanding, remembering, and applying information; (2)

interacting with others; (3) concentrating, persisting, and maintaining pace; and (4)

adapting and managing oneself. 20 C.F.R. § 404.1520a(a),(c); see Thomas v. Berryhill,

337 F. Supp. 3d 235, 239 (W.D.N.Y. 2018) (discussing an ALJ’s application of the

“special technique” for non-exertional limitations).

At step two of Shamara’s disability determination, the ALJ found her depressive

disorder and anxiety disorder to be non-severe. Docket Item 5 at 28. Shamara argues

that the ALJ erred in this regard because “the evidence showed [Shamara’s] mental

impairments significantly limited her ability to do basic work activities. Docket Item 6-1

at 8.5 This Court disagrees.

“It is not enough for [Shamara] to merely disagree with the ALJ’s weighing of the

evidence or to argue that the evidence in the record could not support her position.”

See Dailey v. Comm’r of Soc. Sec., 2016 WL 922261, at *6 (N.D.N.Y. Feb. 18, 2016).

Under the substantial evidence standard of review, Shamara must show that the ALJ’s

findings of fact were so inconsistent with the medical record that “a reasonable

factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin. Comm’r, 683

F. 3d 443, 448 (2d Cir. 2012); McIntyre v. Colvin, 758 F. 3d 146, 149 (2d Cir. 2014).

And she has not met that burden.

5 Shamara states that the following conclusively establishes the severity of her

mental conditions:

Primary care records noted Plaintiff continued to struggle with the loss of her son.

She was initially on amitriptyline and fluoxetine. Fluoxetine was stopped as it made

her groggy, and she was started on mirtazapine. She was also on clonazepam.

Anxiety attacks were noted in August 2019, with chest tightening lasting 45

minutes. Moreover, at primary care follow ups, depression screenings were

positive. In addition, she remained on Amitriptyline, and fluoxetine. At her hearing,

she testified that her medications were largely ineffective. She had nervousness

and shaking.

Docket Item 6-1 at 10 (internal citations omitted).

In his decision, the ALJ applied the required “special technique” and supported

his conclusions in each of the four areas with far more than a scintilla of record

evidence. See Docket Item 5 at 28-29. For instance, the ALJ concluded that Shamara

had only a mild impairment in concentrating, persisting, or maintaining pace based on

evidence in the record of “normal and/or intact” attention, concentration, cognitive

functioning, and thought process. Id. at 29-30 (citing id. at 534). Likewise, the ALJ

identified only a mild impairment in Shamara’s ability to adapt or manage herself based

on Shamara’s money management and self-care, as well as reports that Shamara’s

“insight and judgment were normal and/or intact” and her consistent denial of “any

suicidal or homicidal ideation.” Id. (citing id. at 521, 532, 534, 703, 707, 711, 731).6

What is more, and as Shamara concedes, see Docket Item 6-1 at 8, a

consultative psychiatric examiner opined in March 2021 that Shamara had no mental

health limitation or impairment, see id. at 534-35. So the ALJ’s finding was supported

by opinion evidence as well, and Shamara does not cite any opinion evidence to the

contrary. See generally Docket Item 6-1.

In sum, Shamara’s argument boils down to disagreeing with the opinion of the

psychiatric consultant and the ALJ’s weighing of the evidence. But that clearly is not

enough. Therefore, and because the ALJ’s step-two determination is supported by

6 The ALJ determined that Shamara was not impaired in her ability to

understand, remember, or apply information based on reports that “[s]he was

consistently alert and fully oriented,” as well as evidence in the record that Shamara’s

“memory, cognitive functioning, attention, and concentration were normal and/or intact.”

Id. at 28 (citing id. at 533, 703, 707, 711). Similarly, the ALJ found that Shamara was

not limited in her ability to interact with others based on reports that “she stayed in touch

with several friends and close family” and that she had “no problems getting along with

others.” Id. (citing id. at 300, 534), So those findings were likewise well supported and

explained.

substantial evidence, Shamara’s first argument misses the mark. But even if the ALJ

had erred at step two, that error would have been harmless for the reasons that follow.

B. The RFC Determination

The ALJ found that Shamara could perform light work7 with no mental health

limitations whatsoever. Docket Item 5 at 30. Shamara argues that in reaching this

conclusion, the ALJ failed to address her non-severe mental health impairments.

Docket Item 6-1 at 12. Again, this Court disagrees.

An error at step two may be harmless when the ALJ “identifies other severe

impairments such that the analysis proceeds and the ALJ considers the effects of the

omitted impairments during subsequent steps.” Calixte v. Colvin, 2016 WL 1306533, at

*23 (E.D.N.Y. Mar. 31, 2016); see Jatava L. v. Comm’r of Soc. Sec., 2021 WL 4452265,

at *4 (W.D.N.Y. Sept. 28, 2021) (“An error at step two may be harmless if the ALJ

identifies other severe impairments at step two, proceeds through the remainder of the

sequential evaluation process, and specifically considers the ‘non-severe impairment’

during the subsequent steps of the process”). In other words, even if an ALJ incorrectly

finds a severe impairment to be nonsevere, that error is harmless if the ALJ weighs the

nonsevere impairment as part of the RFC determination. See Pacholski v. Berryhill,

2018 WL 3853388, at *3 (W.D.N.Y. Aug. 14, 2018) (“An error at step two—either a

failure to make a severity determination regarding an impairment, or an erroneous

determination that an impairment is not severe—can be harmless if the ALJ continues

7 “Light work” is work that “involves lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 1567(b).

the analysis and considers all impairments in his RFC determination.”). But in

formulating a claimant’s RFC, the ALJ “must account for limitations imposed by both

severe and non[-]severe impairments.” Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d

Cir. 2012); see Felix S. v. Comm’r of Soc. Sec., 630 F. Supp. 3d 423, 428 (W.D.N.Y.

2022) (“Simply because the ALJ concluded that Plaintiff’s mental limitations were non-

severe impairments does not relieve him of the duty to consider them in connection with

assessing the RFC.”).

An ALJ also must “weigh all of the evidence available to make an RFC finding

that [is] consistent with the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d

Cir. 2013); accord Schillo v. Kijakazi, 31 F.4th 64, 78 (2d Cir. 2022). But that does not

mean that the RFC needs to “perfectly correspond with any of the opinions of medical

sources cited in [the ALJ’s] decision,” Matta, 508 F. App’x at 56, or even be based on

opinion evidence, see Corbiere v. Berryhill, 760 F. App’x 54, 56 (2d Cir. 2019). As long

as the ALJ considers all the medical evidence and appropriately analyzes the medical

opinions, an RFC consistent with the record is not error. See 20 C.F.R. § 404.1545; see

also Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (holding that remand is not

necessary “[w]here an ALJ’s analysis at Step Four regarding a claimant’s functional

limitations and restrictions affords an adequate basis for meaningful judicial review,

applies the proper legal standards, and is supported by substantial evidence”).

Here, in formulating Shamara’s RFC, the ALJ explicitly addressed both her

severe physical impairments and her nonsevere mental impairments. See Docket Item

5 at 30-35. Moreover, the ALJ supported his conclusions with both the medical

evidence in the record and the opinions of providers who either examined Shamara or

reviewed her medical records. Id. In other words, the ALJ did exactly what he was

supposed to do.

For example, and specifically with respect to the mental health determination that

Shamara now challenges, the ALJ explicitly addressed the opinions of a consultative

examiner, Christine Ransom, Ph.D., as well as two state agency consultants, D. Brown,

Psy.D., and L. Dekeon, Ph.D. See Docket Item 5 at 34-35. Dr. Ransom examined

Shamara on March 1, 2021, and opined, among other things, that Shamara had no

mental limitations. See Docket Item 5 at 532-35. Dr. Dekeon and Dr. Brown both

reviewed Shamara’s medical records and likewise concluded that any mental

impairments were non-severe. See id. at 95, 114. And those three opinions provided

more than enough support for the ALJ’s decision.

In her report and opinion, Dr. Ransom noted that Shamara “denied any ongoing

clinical level of depression, generalized anxiety, panic attacks, manic symptomatology,

thought disorder, cognitive symptomatology/deficits, suicidal and homicidal ideation, or

phobic and trauma responses.” Id. at 532. Dr. Ransom opined that Shamara had no

mental health limitation or impairment and that any “psychiatric conditions” were

“stabilized on medication.” Id. at 534-35. The ALJ found Dr. Ransom’s opinion to be

“persuasive” because it was consistent with her specialty as a psychologist and the

medical evidence of record and because it was supported by a narrative explanation.

See Docket Item 5 at 34.

The opinions of the two consultants who examined Shamara’s medical records

were consistent with what Dr. Ransom found. After examining Shamara’s chart, Dr.

Brown concluded that any “psychiatric impairments do not impact functioning” and

therefore “are non-severe.” See id. at 96-97 (capitalization omitted). Dr. Dekeon

agreed, finding that updated records “show[ed] no significant problems” and that any

psychiatric conditions “are nonsevere.” See id. at 114-16. The ALJ found the opinions

of Dr. Dekeon and Dr. Brown to be persuasive because “they are both psychologists,

and their opinions are consistent with the medical evidence of record.” Id. at 35.

Indeed, the ALJ noted that because Drs. Brown and Dekeon had been “approved by the

Commissioner,” they are “’highly qualified’ psychologists who are also ‘expert[s] in

Social Security disability evaluation.’” Id.

So contrary to Shamara’s argument, the ALJ explicitly addressed her nonsevere

mental health issues in formulating her RFC. And the opinions of Drs. Ransom, Brown,

and Dekeon provided more than enough support for the ALJ’s conclusion.8

In sum, the ALJ’s RFC determination was consistent with the evidence in the

record and supported by the medical evidence, the opinion evidence, and the

nonmedical evidence such as Shamara’s reports of her daily activities. Because the

8 Shamara argues that the ALJ committed an error identical to the one requiring

remand in David Q. v. Commissioner of Social Security, 2022 WL 806628, at *4

(W.D.N.Y. Mar. 17, 2022). See Docket Item 6-1 at 13. In David Q., remand was

necessary because the ALJ entirely failed to “address or account for any functional

limitations associated “with plaintiff’s major depressive disorder in the RFC

assessment.” 2022 WL 806628, at *5. Moreover, the ALJ’s error was not harmless

because “the only examining source to opine on plaintiff’s mental functioning capacity

assessed plaintiff with various mild and moderate mental functional limitations.” David

Q., 2022 WL 806628 at 6. Those mental functional limitations appeared nowhere in the

ALJ’s decision “despite the fact that the ALJ found [the examining source’s] opinion to

be persuasive and assigned it significant probative value.” Id. at *6 (internal quotation

marks and citation omitted). Id. Here, Shamara cites no comparable opinion that the

ALJ ignored. And here, the ALJ explicitly addressed the opinion evidence in the record

and formulated an RFC consistent with it. So contrary to Shamara’s assertion, David

Q. is inapposite.

ALJ was “entitled to weigh all of the evidence available to make an RFC finding that was

consistent with the record as a whole,” Matta, 508 F. App’x at 56, and because the ALJ

did just that, the ALJ’s RFC determination was supported by substantial evidence. This

Court cannot and will not second guess it.

CONCLUSION

The ALJ’s decision was not contrary to the substantial evidence in the record, nor

did it result from any legal error. Therefore, and for the reasons stated above,

Shamara’s motion for judgment on the pleadings, Docket Item 6, is DENIED, and the

Commissioner’s cross-motion for judgment on the pleadings, Docket Item 11, is

GRANTED. The complaint is DISMISSED, and the Clerk of Court shall close the file.

SO ORDERED.

Dated: December 28, 2023

Buffalo, New York

Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE