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O'Bara v. Colvin

United States District Court, W.D. New York

June 16, 2017

JODIE LYNN O'BARA, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Represented by counsel, Jodie Lynn O'Bara (“plaintiff”) brings this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Commissioner's motion is granted.

         II. Procedural History

         The record reveals that in September 2011, plaintiff filed applications for DIB and SSI, alleging disability beginning November 15, 2010. After her applications were denied, plaintiff requested a hearing, which was held before administrative law judge Donald McDougall (“the ALJ”) on March 18, 2013. The ALJ issued an unfavorable decision on April 19, 2013. The Appeals Council denied review of that decision and this timely action followed.

         III. The ALJ's Decision

         Initially, the ALJ found that plaintiff satisfied the insured status requirements of the Act through December 31, 2015. At step one of the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged in substantial gainful activity since November 15, 2010, the alleged onset date. At step two, the ALJ found that plaintiff suffered from the severe impairments of lumbar spondylosis, cervical degenerative disease, and fibromyalgia. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment.

         Before proceeding to step four, the ALJ found that plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with the following limitations: she should be able to change positions briefly at least every half hour; she should engage in no climbing, balancing, stooping, kneeling, crouching, or crawling; she should avoid ladders, ropes, and scaffolds; and she could only occasionally bend and twist her spine. At step four, the ALJ found that plaintiff could not perform any past relevant work. At step five, the ALJ found that considering plaintiff's age, education, work experience, and RFC, jobs existed in the national economy which she could perform. Accordingly, he found that she was not disabled.

         IV. Discussion

         A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

         A. Consulting Examiner's Opinion

         Plaintiff contends that a consulting examination performed by Dr. Guatam Arora at the request of the state agency was too vague to support the ALJ's RFC determination. Dr. Arora examined plaintiff on December 19, 2011. Plaintiff reported that was able to cook, clean, do laundry, and shop “if she [was] not too sore because of body pain.” T. 339. She was also able to shower, bathe, and dress herself. On physical examination, plaintiff was in no visible distress, her gait and stance were normal, she did not use assistive devices, she needed no help changing or getting on or off the exam table, and she was able to rise from her chair without difficulty. Plaintiff had limited range of motion (“ROM”) of the lumbar spine, but full ROM of the cervical spine, shoulders, elbows, forearms, wrists, hips, knees, and ankles. She did not exhibit redness, heat, swelling or effusion, but she demonstrated tenderness in 12 out of 18 trigger points. Dr. Arora opined that plaintiff had “moderate limitation to bending, lifting, twisting, and carrying secondary to lumbar spondylosis, and moderate limitation of physical activity secondary to fibromyalgia.” T. 341.

         The ALJ gave Dr. Arora's opinion great weight, and found that “[m]oderate limitations in physical activities would seem to reasonably correlate with ‘light work, ' as light work is really quite limited, exertionally.” T. 17. Plaintiff takes issue with this conclusion, and argues that Dr. Arora's use of the word “moderate” rendered his opinion impermissibly vague. In support of her argument, plaintiff cites two Second Circuit cases, contending that they constitute binding precedent requiring this Court to find Dr. Arora's opinion impermissibly vague because the opinion used the word “moderate” as a descriptor of plaintiff's limitations.

         The two Second Circuit cases cited by plaintiff, Curry v. Apfel, 209 F.3d 117, 123-24 (2d Cir. 2000), superseded by statute on other grounds, 20 C.F.R. § 416.960(c)(2), and Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013), are readily distinguishable from this case. In Curry, the “only evidence supporting the ALJ's conclusion that [plaintiff] ‘retain[ed] the [RFC] to perform . . . at least sedentary work, ' [was] [a consulting examiner's] opinion that [plaintiff]'s ‘impairment was: [l]ifting and carrying moderate; standing and walking, pushing and pulling and sitting mild.'” 209 F.3d at 123. The Court went on to emphasize that the physician's “use of the terms ‘moderate' and ‘mild, ' without additional information, [did] not permit the ALJ . . . to make the necessary inference that [plaintiff could] perform the exertional requirements of sedentary work.” Id. ...


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