United States District Court, W.D. New York
JOSHUA P. WASHBURN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
G. LARIMER, UNITED STATES DISTRICT JUDGE
appeals from a denial of disability benefits by the
Commissioner of Social Security (“the
Commissioner”). The action is one brought pursuant to
42 U.S.C. § 405(g) to review the Commissioner's
September 25, 2012, plaintiff, then thirty years old, filed
an application for a period of disability and disability
insurance benefits, and an application for Supplemental
Security Income benefits under Title II of the Social
Security Act. In both applications, plaintiff alleged an
inability to work since July 23, 2011. (Administrative
Transcript, Dkt. #6 at 9). His applications were initially denied.
Plaintiff requested a hearing, which was held on July 18,
2014 before Administrative Law Judge (“ALJ”)
Connor O'Brien. The ALJ issued a decision on November 3,
2014, concluding that plaintiff was not disabled under the
Social Security Act. (Dkt. #6 at 9-20). That decision became
the final decision of the Commissioner when the Appeals
Council denied review on March 17, 2016. (Dkt. #6 at 1-3).
Plaintiff now appeals from that decision. The plaintiff has
moved (Dkt. #10), and the Commissioner has cross moved (Dkt.
#12) for judgment on the pleadings pursuant to Fed. R. Civ.
Proc. 12(c). For the reasons set forth below, the
plaintiff's motion is denied, the Commissioner's
cross motion is granted, and the Commissioner's decision
that plaintiff is not disabled is affirmed.
of whether a claimant is disabled within the meaning of the
Social Security Act requires a five-step sequential
evaluation. See Bowen v. City of New York, 476 U.S.
467, 470-71 (1986). See 20 CFR §§404.1509,
404.1520. If the ALJ concludes that the claimant is not
engaged in substantial gainful employment and suffers from a
severe impairment, the ALJ examines whether the
claimant's impairment meets or equals the criteria of
those listed in Appendix 1 of Subpart P of Regulation No. 4.
If the impairment does, and has continued for the required
duration, the claimant is disabled. If not, analysis proceeds
and the ALJ determines the claimant's residual functional
capacity (“RFC”), which is the ability to perform
physical or mental work activities on a sustained basis,
notwithstanding limitations for the collective impairments.
See 20 CFR §404.1520(e), (f). If the
claimant's RFC permits him to perform relevant jobs he
has done in the past, he is not disabled. If not, analysis
proceeds to the final step, and the burden shifts to the
Commissioner to show that the claimant is not disabled, by
presenting evidence demonstrating that the claimant
“retains a residual functional capacity to perform
alternative substantial gainful work which exists in the
national economy” in light of his age, education, and
work experience. See Rosa v. Callahan, 168 F.3d 72,
77 (2d Cir.1999) (quoting Bapp v. Bowen, 802 F.2d
601, 604 (2d Cir.1986)). See also 20 CFR
Commissioner's decision that a plaintiff is not disabled
must be affirmed if it is supported by substantial evidence,
and if the ALJ applied the correct legal standards.
See 42 U.S.C. §405(g); Machadio v.
Apfel, 276 F.3d 103, 108 (2d Cir. 2002). Substantial
evidence is defined as “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 Consolidated Edison Co. v. N.L.R.B., 305
U.S. 197, 229 (1938)). “The Court carefully considers
the whole record, examining evidence from both sides
‘because an analysis of the substantiality of the
evidence must also include that which detracts from its
weight.'” Tejada v. Apfel, 167 F.3d 770,
774 (2d Cir. 1998) (quoting Quinones v. Chater, 117
F.3d 29, 33 (2d Cir.1997)). Still, “it is not the
function of a reviewing court to decide de novo
whether a claimant was disabled.” Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “Where the
Commissioner's decision rests on adequate findings
supported by evidence having rational probative force, [this
Court] will not substitute our judgment for that of the
Commissioner.” Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002).
summarized plaintiff's medical records, particularly his
treatment notes for back pain, hearing loss, anxiety,
depression, posttraumatic stress disorder and attention
deficit hyperactivity disorder, which she concluded together
constituted a severe impairment not meeting or equaling a
listed impairment. I believe the evidence supports the
ALJ's findings concerning the nature and extent of
plaintiff's resulting limitations, and that her finding
that the plaintiff was not disabled was supported by
substantial evidence and contained no legal error.
appeal, plaintiff objects to the ALJ's RFC finding
relative to his nonexertional (psychological) limitations.
When assessing nonexertional limitations, in addition to the
usual five-step analysis, the regulations “require
application of a ‘special technique' at the second
and third steps of the five-step framework.” Kohler
v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the
claimant is found to have a medically determinable mental
impairment, the ALJ must assess the claimant's degree of
resulting limitations in four broad functional areas: (1)
activities of daily living; (2) social functioning; (3)
concentration, persistence or pace; and (4) episodes of
decompensation. 20 CFR §404.1520a(c)(3). If and how the
analysis proceeds from that point depends upon the degree of
impairment found. However, the ALJ must document his
analysis, and his written decision must “reflect
application of the technique, and . . . ‘include a
specific finding as to the degree of limitation in each of
the [four] functional areas.'” Kohler, 546
F.3d 260 at 266 (quoting 20 CFR §404.1520a(e)(2)).
the ALJ found that the plaintiff was mildly restricted in
activities of daily living, moderately restricted in social
functioning, moderately restricted with regard to
concentration, persistence and pace, and had experienced one
or two episodes of decompensation. She determined that:
plaintiff could perform light work with a sit/stand option,
with no more than occasional reaching overhead bilaterally,
and no more than occasional reaching in all directions with
his left arm. She further found that plaintiff can tolerate
noise and can focus for up to two-hour periods, but no more,
and requires up to three short, unscheduled,
less-than-5-minute breaks in addition to regularly-scheduled
breaks. Plaintiff is also limited to unskilled work with no
interaction with the public, and no teamwork. Plaintiff can
occasionally make work-related decisions or judgments, and
can work to meet daily goals, but not maintain an hourly,
machine-driven assembly-line production rate. (Dkt. #6 at
argues that the ALJ's RFC determination was not supported
by substantial evidence. Specifically, plaintiff contends
that the ALJ's conclusion that plaintiff could
occasionally make work-related decisions and judgments, as
well as the ALJ's implicit finding that plaintiff could
interact with supervisors, and could tolerate some level of
work-related stress, were erroneous and unsupported, because
they failed to incorporate the opinion of consultative
psychologist Dr. Yu Ying Lin.
examined plaintiff on January 23, 2013, and opined that
although plaintiff's psychiatric problems “d[id]
not appear to be significant enough to interfere with the
claimant's ability to function on a daily basis, ”
plaintiff's “stress-related problems, anger issues,
and lack of motivation, ” left plaintiff with
“no” ability to make appropriate decisions,
relate adequately with others, or deal appropriately with
stress. (Dkt. #6 at 655). The ALJ declined to fully credit
this portion of Dr. Lin's opinion, noting that
plaintiff's part-time employment as a grocery store
cashier evidenced at least “some capacity” for
making simple work-related decisions, and that these portions
of Dr. Lin's opinion were unsupported by the record and
not sufficiently specific (e.g., did not quantify
plaintiff's limitations using terms such as
“moderate” or “marked”). (Dkt. #6 at
17). Consideration of plaintiff's work history was
appropriate, as “[t]he Commissioner's regulations
provide that part-time work, even if not substantial gainful
activity, may show a claimant is able to do more than they
actually did.” Downs v. Colvin, 2016 U.S.
Dist. LEXIS 131290 at *12 (W.D.N.Y. 2016). The ALJ's
decision also noted that plaintiff's global assessment of
functioning score had been assessed during mental health
treatment in 2012 as 52 (Dkt. #6 at 609, 622-23), consistent
with moderate limitations in social, occupational
functioning. The ALJ also observed that plaintiff's daily
activities, including caring for a child with autism and
epilepsy, demonstrated a level of physical and emotional
functioning “that are not limited to the extent one
would expect, given the complaints of disabling symptoms and
limitations.” (Dkt. #6 at 17).
“the ALJ's conclusion may not perfectly correspond
with any of the opinions of medical sources cited in [her]
decision, [she is] entitled to weigh all of the evidence
available to make an RFC finding that [i]s consistent with
the record as a whole.” Matta v. Astrue, 508
Fed.Appx. 53, 56 (2d Cir. 2013) (unpublished opinion).
Furthermore, it is “not require[d] that [the] ALJ have
mentioned every item of testimony presented to h[er] or have
explained why [s]he considered particular evidence
unpersuasive or insufficient to lead h[er] to a conclusion of
disability.” Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir.1983). Here, the ALJ discussed the medical
opinion evidence provided by Dr. Lin, set forth her reasoning
for the weight afforded to that opinion, and cited and
discussed specific evidence in the record which supported her
determination, both in connection with her discussion of Dr.
Lin's opinion, and elsewhere in her decision. As such, I
do not find that the ALJ improperly substituted her
“own expertise or view of the medical proof [in place
of] any competent medical opinion.” Greek v.
Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
also argues that the ALJ improperly failed to consider the
opinion of non-examining State agency medical consultant Dr.
E. Kamin, who opined after reviewing the entire record
(including Dr. Lin's opinion) that plaintiff was
“moderately” limited in his ability to accept
instructions and respond appropriately to criticism from
supervisors. (Dkt. #6 at 123, 131). While plaintiff is
correct that the ALJ's decision does not discuss Dr.
Kamin's opinion, I find that to the extent that this
omission constitutes an error, it is a harmless one. Dr.
Kamin opined that plaintiff has “moderate”
difficulties with respect to supervision, but is capable of
unskilled work in a low contact setting. Even if fully
credited, that opinion is consistent with the RFC as
determined by the ALJ, which limits plaintiff to, among other
things, unskilled work requiring no interaction with the
public and no teamwork. (Dkt. #6 at 13, 19). It is well
settled that a limitation to unskilled work sufficiently
accounts for moderate limitations in work-related
functioning, and there is no dispute that both positions
identified by the vocational expert, mail clerk and label
pinker, meet that description. See generally Martinez v.
Commissioner, 2017 U.S. Dist. LEXIS 93575 at *20-*21
(N.D.N.Y. 2017) (collecting cases, and noting that the
“Second Circuit has held that moderate limitations in
work related functioning [including handling stress, making
appropriate decisions, relating adequately with others, and
dealing with ...