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Harmon v. Commissioner of Social Security

United States District Court, W.D. New York

April 1, 2018

PAMELA S. HARMON, Plaintiff,




         Pamela S. Harmon brings this action pursuant to the Social Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner of Social Security that denied her applications for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act. ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c)(3).

         Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). ECF Nos. 8, 12. For the reasons that follow, the Commissioner's motion is GRANTED and Plaintiff's motion is DENIED.


         On November 5, 2013, Harmon applied for DIB and protectively applied for SSI with the Social Security Administration (“the SSA”). Tr.[1] 179-206. She alleged disability since December 31, 2012 due to a traumatic brain injury (“TBI”), neurological disorders, memory loss, headaches and migraines, a left eye impairment, and hearing loss. Tr. 226. On May 10, 2016, Harmon and a vocational expert (“VE”) appeared and testified at a hearing before Administrative Law Judge Bryce Baird (“the ALJ”). Tr. 29-76. On September 6, 2016, the ALJ issued a decision finding that Harmon was not disabled within the meaning of the Act. Tr. 13-23. On January 27, 2017, the Appeals Council denied Harmon's request for review. Tr. 1-4. Thereafter, Harmon commenced this action seeking review of the Commissioner's final decision. ECF No. 1.


         I. District Court Review

         “In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation marks omitted). It is not the Court's function to “determine de novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation marks omitted); see also Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence).

         II. Disability Determination

         An ALJ must follow a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71 (1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant restrictions on the claimant's ability to perform basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the ALJ continues to step three.

         At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the “Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is disabled. If not, 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 C.F.R. § 404.1520(e)-(f).

         The ALJ then proceeds to step four and determines whether the claimant's RFC permits him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. To do so, the Commissioner must present evidence to demonstrate that the claimant “retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).


         I. The ALJ's Decision

         The ALJ's decision analyzed Harmon's claim for benefits under the process described above. At step one, the ALJ found that Harmon had not engaged in substantial gainful activity since the alleged onset date. Tr. 15. At step two, the ALJ found that Harmon has the following severe impairments: TBI, depression, anxiety, and cervicalgia. Tr. 15-16. At step three, the ALJ found that these impairments, alone or in combination, did not meet or medically equal any Listings impairment. Tr. 16-17.

         Next, the ALJ determined that Harmon retains the RFC to perform medium work[2] with additional limitations. Tr. 17-20. Specifically, the ALJ found that Harmon can lift and carry 50 pounds occasionally and 25 pounds frequently; can sit for six hours and stand and walk for four hours in an eight-hour workday; can occasionally climb ramps and stairs, but cannot climb ladders, ropes, or scaffolds; can occasionally balance and frequently kneel or crouch, but can never crawl; can tolerate only moderate noise levels; cannot be exposed to hazards like unprotected heights or moving machinery; and is limited to jobs that do not require near and far visual acuity with the left eye. Tr. 17-18. As to Harmon's mental capacity, the ALJ found that she requires simple, routine tasks that can be learned after a short demonstration or within 30 days; cannot travel to unfamiliar places; can occasionally interact with the public and frequently interact with coworkers; and is limited to work that requires the same tasks everyday with little variation in location, hours, or tasks. Tr. 18.

         At step four, the ALJ relied on the VE's testimony and found that Harmon cannot perform her past relevant work. Tr. 21. At step five, the ALJ relied on the VE's testimony and found that Harmon can adjust to other work that exists in significant No. in the national economy given her RFC, age, education, and work experience. Tr. 21-22. Specifically, the VE testified that Harmon could work as an office helper, mail clerk, and document preparer. Tr. 22. Accordingly, the ALJ concluded that Harmon was not “disabled” under the Act. Tr. 22-23.

         II. Analysis

         Harmon argues that remand is required because the ALJ (1) violated the treating physician rule; (2) relied on a fraudulent opinion from a consultative examiner; and (3) erred at step three in evaluating her impairments under the Listings. ECF No. 8-1 at 10-17. These arguments are addressed in turn below.

         A. Treating Physician Rule

         Harmon argues that the ALJ violated the treating physician rule when he gave “limited weight” to the opinion of her treating physician Ann Wands, M.D. without providing the requisite good reasons for doing so. ECF No. 8-1 at 10-12. Harmon also asserts that the ALJ should have re-contacted Dr. Wands to obtain additional support for her opinion.

         i. Good Reasons The “treating physician rule” is “a series of regulations set forth by the Commissioner . . . detailing the weight to be accorded a treating physician's opinion.” De Roman v. Barnhart, No. 03 Civ. 0075 (RCC) (AJP), 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003) (citing 20 C.F.R. § 404.1527); 20 C.F.R. § 416.927. Under this rule, the ALJ must give controlling weight to a treating physician's opinion when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Green-Younger v. Barnhart,335 F.3d 99, 106 (2d Cir. 2003). While an ALJ may discount a treating physician's opinion if it does not meet this standard, the ALJ must “comprehensively set forth [his] reasons for the weight assigned to a treating physician's opinion.” Halloran v. Barnhart,36 ...

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