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Conger v. Commissioner of Soc. Sec.

United States District Court, N.D. New York

February 16, 2018

DEVIN JOSEPH CONGER, Plaintiff,
v.
COMM'R OF SOC. SEC., Defendant.

          LAW OFFICES OF STEVEN R. DOLSON STEVEN R. DOLSON, ESQ. Counsel for Plaintiff

          U.S. SOCIAL SECURITY ADMIN. ELIZABETH D. ROTHSTEIN, ESQ. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant

          DECISION AND ORDER

          DANIEL J. STEWART United States Magistrate Judge

          Currently before the Court, in this Social Security action filed by Plaintiff Devin Joseph Conger against Defendant the Commissioner of Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff's Motion for Judgment on the Pleadings and Defendant's Motion for Judgment on the Pleadings. Dkt. Nos. 9 & 11. For the reasons set forth below, Plaintiff's Motion for Judgment on the Pleadings is denied, and Defendant's Motion for Judgment on the Pleadings is granted. The Commissioner's decision denying Plaintiff's disability benefits is affirmed, and Plaintiff's Complaint is dismissed.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1992, making him 19 years old at the alleged onset date, 21 years old at the date last insured, and 22 years old at the date of the ALJ's decision. Plaintiff reported completing the twelfth grade with participation in special education for a learning disability. Plaintiff has past work as a waterproofer and construction laborer. Generally, Plaintiff alleges disability due to mental impairments including panic disorder, agoraphobia, anxiety disorder, and depression.

         B. Procedural History

         Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on February 10, 2013, alleging disability beginning July 1, 2012. Plaintiff's application was initially denied on April 12, 2013, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared at two hearings before ALJ John Murdock on May 19, 2014, and February 3, 2015. On February 26, 2015, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. T. pp. 8-26.[1] On July 19, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Id. at p. 1.

         C. The ALJ's Decision

         In his decision, the ALJ made seven findings of fact and conclusions of law. Id. at pp. 13-22. First, the ALJ found Plaintiff was insured for benefits under Title II until June 30, 2014. Id. at p. 13. Second, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset date. Id. at pp. 13-14. Third, at Step Two, the ALJ made the following findings: (a) Plaintiff has severe impairments including anxiety and depressive disorders, agoraphobia with panic disorder, cannabis dependence in early remission, and reading disorder; (b) the record does not contain any indication that assessments of cellulitis and abscess of the upper arm and forearm, atopic dermatitis, and a history of scabies lasted or were expected to last at least twelve continuous months from their respective dates of onset; (c) assessments of congenital heart murmur (resolved), very slight anemia, and hypokalemia are not severe impairments; and (d) attention deficit hyperactivity disorder ("ADHD") is not a medically determinable impairment during the period at issue. Id. at p. 14. Fourth, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). Id. at pp. 14-15. Specifically, the ALJ considered Listings 12.04 (affective disorders), 12.05 (intellectual disability), and 12.06 (anxiety related disorders). Id. at pp. 14-16. Fifth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform “heavy work as defined in 20 CFR 404.1567(d) and 416.967(d) except he is unable to perform a job requiring more than a fifth grade reading level.” Id. at p. 16. Sixth, the ALJ found that Plaintiff is unable to perform his past work as a waterproofer or construction laborer with the limitations in the above RFC. Id. at p. 20. Seventh, and last, the ALJ found that Plaintiff remains able to perform a significant number of other jobs in the national economy, such as laborer, janitor, and groundskeeper. Id. at p. 21. The ALJ therefore concluded that Plaintiff is not disabled.

         D. The Parties' Briefings on Their Cross-Motions

          1. Plaintiff's Motion for Judgment on the Pleadings

          Generally, Plaintiff contends that the ALJ committed reversible error by substituting his own opinion regarding Plaintiff's ability to perform work-related activities for those of two independent acceptable medical sources. Dkt. No. 9, Pl.'s Mem. of Law, pp. 4-6. Specifically, Plaintiff contends that the opinions from non-examining State Agency consultant A. Hochberg, Ph.D., and consultative examiner Christina Caldwell, Psy.D., “impose significant limitations on the Plaintiff's ability to adequately deal with other people” that the ALJ failed to account for in the RFC. Id. at pp. 5-6. Plaintiff asserts that, in particular, the ALJ's RFC determination places no limitations on Plaintiff's ability to interact with others despite these opinions and other medical evidence. Id. Plaintiff contends that the ALJ's RFC limitation to a fifth-grade reading level fails to incorporate any of the other mental health limits placed on Plaintiff by the acceptable medical sources, and that the ALJ's RFC places no mental functioning limitations on Plaintiff at all despite the ALJ's own Step 2 determination finding that Plaintiff has severe mental health impairments. Id. at p. 6.

         2. Defendant's Motion for Judgment on the Pleadings

         Generally, Defendant makes three arguments in support of her Motion for Judgment on the Pleadings. Dkt. No. 11, Def.'s Mem. of Law, pp. 7-13. First, Defendant argues that, despite the RFC not containing a specific limitation in social interaction, the three representative occupations identified by the vocational expert (“VE”) (and adopted by the ALJ at Step 5) involve minimal social interaction, as evidenced by the VE's testimony in response to additional hypothetical limitations, which included an inability to make work-related decisions and occasional interpersonal interactions with coworkers, supervisors, and the general public. Id. at p. 8. Defendant thus notes that Plaintiff could perform the three jobs identified even if additional mental limitations were assigned because they were unskilled and quite isolated in nature. Id. Therefore, even if the ALJ had included additional limitations in the RFC, those limitations (including those suggested by Dr. Caldwell's opinion) would still be consistent with the ALJ's Step 5 finding. Id.

         Second, Defendant contends that the ALJ properly assessed the medical opinion evidence and that substantial evidence supports the ALJ's finding that Plaintiff could perform a range of unskilled work. Id. at p. 13. Defendant contends that the ALJ specifically limited Plaintiff to unskilled work by finding Plaintiff could not perform a job requiring more than a fifth-grade reading level. Id. at p. 7. Defendant asserts that the ALJ properly considered Dr. Caldwell's report and gave partial weight to her opinion. Id. at p. 8. Specifically, Defendant contends that Dr. Caldwell's opinion regarding moderate limitations in Plaintiff's ability to perform simple and complex tasks independently was “plainly based on Plaintiff's ‘report' of such difficulties, ” rather than objective evidence. Id. Defendant contends that the ALJ therefore properly concluded that portions of Dr. Caldwell's opinion (including that Plaintiff had moderate-to-marked limitation in his ability to make appropriate decisions and to relate adequately with others, and a marked limitation in his ability to deal with stress) were not well-supported and were inconsistent with other record evidence. Id. at pp. 8-11.

         Third, in addressing Plaintiff's argument that the ALJ erred by not adopting Dr. Hochberg's opinion that Plaintiff was moderately limited in several areas, Defendant argues that there is a distinction between the worksheet portion of Dr. Hochberg's disability determination explanation (“DDE”) form (indicating Plaintiff was moderately limited in areas including the ability to work in coordination with or proximity to others and accept instructions from supervisors) and his narrative opinion. Id. at pp. 11-13. Defendant asserts that Dr. Hochberg's actual opinion was that Plaintiff retains the ability to perform simple and semi-skilled work on a sustained basis. Id. at pp. 12-13. Defendant contends that the ALJ's RFC is fully supported by this opinion. Id.

         II. ...


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