United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
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.
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.
The ALJ's Decision
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.
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.
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).
Consulting Examiner's Opinion
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.
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
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.”