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Lang v. Colvin

United States District Court, Second Circuit

July 24, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security[1], Defendant.

Report and Recommendation

HUGH B. SCOTT, Magistrate Judge.

Before the Court are the parties' respective motions for judgment on the pleadings (Docket Nos. 12 (defendant Commissioner), 13 (plaintiff)).


This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled to disability insurance benefits and Supplemental Security Income benefits.


The plaintiff, Ashley Lynn Lang ("Lang" or "plaintiff"), filed an application for disability insurance benefits on August 15, 2008. That application was denied initially and on reconsideration. The plaintiff appeared before Administrative Law Judge Jennifer Whang ("ALJ"), who considered the case de novo and concluded, in a written decision dated September 22, 2010, that the plaintiff was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner on August 17, 2012, when the Appeals Council denied plaintiff's request for review.

Plaintiff commenced this action on October 17, 2012 (Docket No. 1). The parties moved for judgment on the pleadings (Docket Nos. 12, 13). The motions were submitted on papers (Docket No. 8).


Plaintiff, born in 1989, claims impairments due to arthritis in her knees, obesity, bipolar disorder, depression, and anxiety. Plaintiff has a high school education and employment history of unskilled labor, such as a fast food restaurant cashier. She claims an onset date of February 1, 2007.

At the time of her hearing, Lang was 21 years old (R. 26). She alleged disability due to back pain, thoracic segmental dysfunction, bilateral knee pain, bipolar disorder, personality disorder, anxiety, obstructive sleep apnea, insomnia, obesity, migraines, irritable bowel syndrome, arthritis, and a blood clot in her leg (R. 26). Plaintiff testified that she worked as a cashier doing sales and stocking in 2008 in Arizona but stopped worked because she ended up in the hospital and eventually moved to New York (R. 26). She currently lives alone, travels either by bus or by rides from her mother (R. 26). When depressed, plaintiff did not do much and management of personal care got difficult (R. 26). When not depressed, plaintiff called her friends, went out to dinner, and attended church (R. 26). Since 2009, Lang had been in constant transition and had difficulty adjusting to the changes (R. 26). Prior to moving into her apartment, she had moved from her friend, her sister, and her mother's homes, and to emergency housing because of the "situations with her mother" (R. 26).


The ALJ found that plaintiff has multiple impairments (described below) but on the whole they were not sufficiently severe enough to be an impairment (R. 26). The ALJ found that plaintiff had impairments for arthritis in her knees, bipolar disorder, depression, anxiety, and obesity (R. 23). The ALJ found that plaintiff did not have an impairment or combination of impairments that meet or medically equals a listed impairment in the Social Security regulations (R. 24-25). First, plaintiff complains of deep vein thrombosis in her right leg, but this diagnosis was recent relative to her application and the ALJ concludes was not a disability (R. 23). As for Lang's knees, she had surgery on her left knee in January 2009 and she complained of pain after the surgery. The ALJ notes that Dr. Bradley Williams notes following that procedure (from January 29 to May 5, 2009) noted that plaintiff did very well after the surgery, that she had a pain level of only 3 on a scale of 1 to 10 (with 10 being severe pain) (R. 26-27). The ALJ factored in plaintiff's obesity, with her height and weight stated in her brief as 5'4" and 260 pounds (R. 26, 56; cf. Docket No. 13, Pl. Memo. at 4; R. 452 (vital statistics as of Jan. 29, 2009)), in whether her impairments were severe (R. 25).

As for her depression, anxiety, and other mental impairments, the ALJ concludes that these impairments did not meet the "paragraph B"[3] criteria, 20 C.F.R. pt. 404, Subpart P, Appx. 1, listing 12.04, 12.06, (R. 24-25), needing to show a marked limitation, that is more than moderate but less than extreme (R. 24). Plaintiff only having mild restriction of activities of daily living; and moderate difficulties in maintaining social functioning or in maintaining concentration, persistence, or pace (R. 24), with two episodes of decompensation (id.). Lang did not have at least two "marked" limitations or one "marked" limitation and repeated episodes of decompensation to meet the paragraph B criteria (R. 25). Plaintiff also did not have medical evidence to satisfy "paragraph C"[4] criteria, id., listing 12.04, 12.06. for repeated episodes of decompensation, evidence that the claimant would suffer an episode with a minimal increase in mental or life demands, or the inability to function outside of a highly supportive living arrangement or outside of plaintiff's home, since plaintiff suffered episodes with only a minimal increase in mental or life demands or an inability to function outside of her home or a structured environment (R. 25). The ALJ concludes that the record did not support plaintiff's claims of depression or anxiety (R. 27), noting that her Global Assessment of Functioning ("GAF") was in the range of 72 to 82, scores indicative of no more than a slight impairment in social, occupational, or school functioning (R. 27). Lang had two or three psychiatric treatments and she returned to baseline functioning when she was treated with medication, but decomposed after not complying with medication (R. 27).

The ALJ found that Lang's medically determinable impairments caused the alleged symptoms but did not credit her as to her claimed intensity, persistence, and limiting effects of these symptoms upon her (R. 28). The ALJ did not give any weight to the assessment of nurse practitioner Ann Marie Paser (cf. R. 729-33) since the ALJ did not deem her to be an acceptable medical source (R. 28), since (even if credited) her findings were largely inconsistent with the assessment of Dr. Harold Figueroa who treated plaintiff (id.). But the ALJ did consider Paser's findings, as well as Dr. Jeff Roach, Ph.D., who evaluated Lang five years before, as medical evidence (R. 28).

The ALJ concludes that Lang's physical and mental impairments do "impose significant functional limitations on her ability [to] perform basic work activity, " but she overstated her functional limitations and the ALJ found that plaintiff could perform a range of sedentary work (R. 28). Where medical evidence corroborated plaintiff, the ALJ made accommodations in the type of sedentary work she could perform (R. 28). The ALJ found that plaintiff could perform a residual functional capacity for sedentary work with restrictions regarding pushing or pulling or using foot controls with her lower left extremity; only occasional use of ramps and climbing stairs; never climbing ladders, ropes, or scaffolds; only occasional balancing, stooping, kneeling, crouching, and crawling; avoid hazards (such as moving machinery and unprotected heights) (R. 25). The ALJ found that plaintiff should be limited to simple, routine, and repetitive tasks and that she requires a low-stress job with only occasional decision-making and occasional changes in the work setting (id.). Her residual functional capacity also would limit her interaction with the public, coworkers, and supervisors (R. 25-26). The ALJ concluded that plaintiff could not return to ...

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