United States District Court, N.D. New York
OFFICES OF STEVEN R. DOLSON STEVEN R. DOLSON, ESQ. Counsel
SOCIAL SECURITY ADMIN. ELIZABETH D. ROTHSTEIN, ESQ. OFFICE OF
REG'L GEN. COUNSEL - REGION II Counsel for Defendant
DECISION AND ORDER
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
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.
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. 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.
The ALJ's Decision
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.
The Parties' Briefings on Their Cross-Motions
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.
Defendant's Motion for Judgment on the Pleadings
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.
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.
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