Reyes v. Berryhill, No. 1:2017cv01851 - Document 19 (S.D.N.Y. 2018)
Court Description: OPINION & ORDER. The Commissioner's motion is GRANTED and Plaintiff's motion is DENIED. This Clerk of Court is respectfully directed to close this case. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 8/6/18) (yv)
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Reyes v. Berryhill Doc. 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------X VIELKA M. REYES, 8-6-2018 Plaintiff, OPINION & ORDER 17-CV-01851 (KHP) -againstNANCY BERRYHILL, Acting Commissioner of the Social Security Administration Defendant. ---------------------------------------------------------------X KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE Plai tiff Vielka M. Re es Plai tiff , who is represented by counsel, commenced this action against Defendant Commissioner of the Social Security Administration (the Co issio e , pu sua t to the “o ial “e u it A t the A t , e ie of the Co U.“.C. §§ 405(g), seeking issio e ’s de isio that Plaintiff was not disabled under Sections 216(i) and 223(d) of the Act from August 1, 2013, the alleged disability onset date DOD , through the date of the decision. The parties submitted a joint stipulation in lieu of cross-motions for judgment on the pleadings ( the Joi t “tipulatio No. o J“, Doc. No. 18) pu sua t to this Cou t’s O de at Do . . Fo the easo s set fo th elo , the Co issio e ’s otio is GRANTED a d Plai tiff’s motion is DENIED. BACKGROUND I. Summary of Claim and Procedural History Plaintiff’s disa ilit a ises primarily out of a workplace accident. In or about June 2013, when she was approximately 38 years old and working as a home attendant/home health aide, Dockets.Justia.com Plaintiff fell while mopping. (See Ad i ist ati e Re o d R. at 56, 283.) This accident caused injury to her back, knee and shoulder. Additionally, Plaintiff consulted mental health providers about depression, anxiety, and post-traumatic stress resulting from the accident. Plaintiff’s appli atio fo disability insurance e efits DIB ) cites disability due to right leg impairment, lumbar spine impairment, cervical spine impairment, herniated disc, bulging disc, bilateral hip pain, and right arm impairment. (Id. at 81-82, 196.) She also alleges depression and post-traumatic stress disorder. (Id. at 226.) Based on her asserted disability, high school education, limited skills given her past work as a hotel housekeeper and home health aide (id. at 87, 198), and asserted lack of fluency in English, she contends that she satisfies the criteria for receiving DIB.1 Plaintiff saw medical providers about migraines and low back pain prior to the accident but complained of more extensive pain thereafter, ultimately leading to surgery for her right knee and right shoulder, physical therapy, a lumbar epidural steroid injection and fleuroscopic guidance, and the occasional use of prescription medications (including Cymbalta, Ibuprofen, Gabapentin, and Naproxen). (Id. at 199, 248, 253, 259-60, 293-94, 326-33, 335-36, 338, 386, 414, 428, 460.) Plaintiff filed for workers’ compensation benefits after her accident but was not awarded benefits. (Id. at 178.) She consulted the following medical providers in connection ith he o ke s’ o pe satio lai : D . Ale ios Apazidis (orthopedic surgeon), Dr. Marc The Cou t otes that Plai tiff’s Fu tio Repo t, filed i o e tio ith Plai tiff’s appli atio fo disa ilit benefits is filled out in Spanish, and no English translation is included in the record. (R. 204-213.) The Court therefore relies exclusively o Plai tiff’s testi o f o he hea i g he e ie i g Plai tiff’s state e ts concerning her alleged disability, including her physical and mental abilities and limitations. 1 2 Appel (orthopedic surgeon), Dr. Solomon Miskin (psychiatrist), Dr. Yolanda Bernard (internist/emergency care), Dr. Mitchell Zeren (chiropractor), Dr. Gabriel Dassa (orthopedic surgeon), and Dr. Aric Hausknecht (neurologist and pain management specialist). (Id. at 284, 300, 319, 327, 329, 333, 335, 343, 345, 347, 349, 351, 374, 378, 474-80, 481-84.) In addition, Plaintiff saw the following additional medical providers: Jacobi Medical Center, Dr. Arden Kaisman, Dr. Marilee Mescon, and Dr. Juraci Da Silva. (Id. at 264-65, 267-69, 270, 283-84, 313, 351-63, 435-39.) The Court conducted a plenary review of the entire administrative record. The Court assumes knowledge of and does not repeat here all of the stipulated facts o e i g Plai tiffs’ edi al t eat e t. (See JS at 3-26.) On January 8, 2014, Plaintiff filed an application for a period of disability insurance benefits, alleging disability beginning August 1, 2013. (R. 26, 178-79.) The claim was denied on April 15, 2014. (Id. at 93-104.) On April 21, 2014, Plaintiff submitted a request for a hearing. (Id. at 105.) A video hea i g as held o Ap il , efo e Ad i ist ati e La Judge ALJ Lynn Neugebauer. (Id. at 26-41.) Plaintiff was represented by counsel at the hearing. Yaakov Taitz, PhD., a vocational expert, testified at the hearing. (Id. at 46-79.) On July 26, 2016, ALJ Neugebauer issued a decision holding that Plaintiff was not disabled, and therefore not entitled to benefits. (Id. at 20-41.) On September , , Plai tiff e uested e ie of the ALJ’s decision, (id. at 19), which the Appeals Council denied on January 27, 2017. (Id. at 1-5.) Notwithstanding her application for DIB, Plaintiff performed work as a babysitter in 2014 and 2015, earning $13,920 and $13,575 in those respective years. (Id. at 191.) At the April 2016 hearing before the ALJ, Plaintiff testified that she stopped working as a babysitter because the family moved and she was no longer able physically to babysit. (Id. at 54-55.) 3 At the hearing, Plaintiff described her symptoms and physical limitations. She testified that she cannot walk for more than ten minutes without pain because the pain in her legs is so strong. (Id. at 58.) When asked about her current inability to work, she stated that she is always tired and has shoulder pain and limited strength. (Id. at 56-60.) Plaintiff testified that she has difficulty walking, standing, a d sitti g due to k ee pai a d e ause he k ees lock up. (Id. at 58.) She also testified that that she has lost balance and fallen because of her knee problems. (Id. at 64.) She testified that she cannot lift or carry more than five pounds due to problems with her hands and torn tendons in her shoulder. (Id. at 60.) Plaintiff asserted that she has no strength in her right hand. (Id. at 59-60.) She also testified that she has neck pain, which makes it difficult to move from side to side. (Id. at 62.) Finally, she stated that she has difficulty concentrating and sleeping due to her discomfort. (Id. at 65-66.) With regard to her daily routines and functioning, Plaintiff testified that, due to shoulder pain, she has difficulty getting dressed or washing herself. (Id.) She told the ALJ she cannot cook, do laundry, or shop, but is able do light chores such as dusting. (Id. at 60-61.) Plaintiff stated that she spends most days lying down to alleviate her pain and that she has headaches. (Id. at 63.) She testified that she feels depressed because she cannot do anything for herself, that she sometimes has crying episodes, and that she no longer likes to see any of her friends. (Id. at 64-65.) II. The Co issio er’s De isio The ALJ set forth the rationale for her decision denying benefits according to the fivestep sequential process contemplated in the applicable regulations. 20 C.F.R. § 404.1520(c)(a)(4)(i-v). As a threshold matter, the ALJ determined that Plaintiff meets the 4 insured status requirements of the Act through December 31, 2019. (R. 28.) At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the DOD, August 1, 2013.2 (Id.) At the second step of the analysis, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar and cervical spines, right shoulder impairment post-arthroscopic rotator cuff repair, right knee impairment postarthroscopic meniscus repair, bilateral hip pain, depression and anxiety disorders. (Id. at 29.) However, the ALJ concluded that none of these impairments, considered alone or in combination, met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Pa t , “u pa t P, Appe di the Listi gs . Id.) With regard to Plai tiff’s deg ee of limitation resulting from her mental disorders, the ALJ found that Plaintiff had the following limitations under 20 CFR, Part 404, Subpart P, Appendix 1: mild restriction in activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation. (Id.) The ALJ subsequently fou d that Plai tiff etai ed the esidual fu tio al apa it sedentary work, provided such work involved only si ple tasks. RFC to pe fo Id. at 31.) Based on this RFC, at step four, the ALJ concluded Plaintiff is unable to perform any of her past relevant work (i.e., as a housekeeper or home health aide). (Id. at 39.) Nevertheless, considering Plai tiff’s age, education, work experience, and RFC, the ALJ concluded at step five of her analysis that there are jobs that exist in significant numbers in the national economy that Plaintiff can The ALJ did ote Plai tiff’s continued work as a babysitter, but concluded that it was unnecessary to determine whether the work constitutes substantial gainful activity because there exists another valid basis for denying the Plai tiff’s appli atio . Id.) 2 5 perform. (Id. at 40.) Accordingly, the ALJ determined that Plaintiff has not been disabled from August 1, 2013 through the date of the decision. (Id.) DISCUSSION I. The Applicable Law A. Judicial Standard of Re ie of Co issio er’s De isio The ou t’s e ie of a appeal of a de ial of disa ilit e efits is li ited to t o inquiries. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine whether the Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C. § 405(g); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Second, the court must decide hethe the Co issio e ’s de isio is suppo ted su sta tial e ide e i the e o d. Id. So long as they are supported by substantial evidence in the administrative record, the findings of the ALJ after a hearing as to any facts are conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). A ALJ’s failu e to appl the o e t legal sta da d o stitutes e e si le e o if that failure might have affected the disposition of the case. Kohler v. Astrue, 546 F.3d 260, 265 (2d Ci . . This applies to a ALJ’s failure to follow an applicable statutory provision, egulatio , o “o ial “e u it Ruli g ““R . See, e.g., id. (regulation); Schaal v. Callahan, 993 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In such a case, the court may remand the matter to the Commissioner under sentence four of 42 U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair record or to explain his or her reasoning. Crysler v. Astrue, 563 F. Supp. 2d 418, 429 (N.D.N.Y 2008). If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the ou t ust o du t a ple a e ie of the ad i ist ati e e o d to dete 6 i e if the e is su sta tial e ide e, o side i g the e o d as a hole, to suppo t the Co de isio . Brault v. Soc. Sec. Ad i . Co issio e ’s ’r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). The substantial evidence standard ea s o e a ALJ fi ds fa ts, a e ie i g ou t fa tfi de ould ha e to o lude othe a eje t those fa ts o l if a reasonable ise. Id. at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted). To e suppo ted su sta tial e ide e, the ALJ’s de isio ust e ased o o side atio of all e ide e a aila le i [the lai a t]’s ase e o d. d B, a H i . The A t e ui es the ALJ to set fo th a dis ussio of the e ide e a d the easo s upo the ALJ’s de isio eed ot hi h [the de isio ] is ased. e tio [] e e ite of testi o Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam , o o fli ti g sh ed of U.“.C. §§ U.“.C. § . While p ese ted, Mongeur v. e o ile e pli itl e e edi al testi o , Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (internal quotation marks omitted), the ALJ may not ignore or mischaracterize evidence of a pe so ’s alleged disa ilit . See Ericksso v. Co ’r of Soc. Sec., 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-cv-1120 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence); see also Zabala, 595 F.3d at 409 (reconsideration of improperly excluded treating physician evidence typically requires remand). If the decision denying benefits applied the correct legal standards and is based on substantial evidence, the reviewing court must affirm; if not, the court may modify or reverse the decision, with or without remand. 42 U.S.C. § 405(g). 7 B. Legal Pri iples Appli a le To The Co U de the “o ial “e u it A t, e e issio er’s Disa ility Deter i atio i di idual o side ed to ha e a disa ilit is entitled to disability insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines disa ilit i a ilit to e gage i a su sta tial gai ful a ti it easo of a edi all dete as a i a le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of ot less tha d A, a A . A lai a t’s i pai e ts o ths. U.“.C. §§ ust e of su h se e it that he is ot only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national e o o . U.“.C. §§ d A, a B. To determine whether an individual is entitled to receive disability benefits, the Commissioner is required to conduct the following five-step inquiry: (1) First, determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). (2) Second, if not gainfully engaged in any activity, determine whether the claimant has a se e e i pai e t that sig ifi a tl li its his o he a ilit to do asi o k a ti ities. Under the applicable regulations, an impairment or combination of impairments that sig ifi a tl li its the lai a t’s a ilit to pe fo asi o k a ti ities is o side ed se e e. 20 C.F.R. § 404.1520(c)(a)(4)(ii). Thi d, if the lai a t has a se e e i pai e t, dete i e hethe the i pai e t is one of those listed in Appendix 1 of the regulations – if it is, the Commissioner will presume the claimant to be disabled and the claimant will be eligible for benefits. 20 C.F.R. § 8 . a iii . At this stage, the Co esidual fu tio al apa it issio e also ust dete RFC ; that is, he a ilit to pe fo i e the lai a t’s ph si al a d e tal o k activities on a sustained basis despite her impairments.3 20 C.F.R. § 404.1520(e). (4) Fourth, if the claimant does not meet the criteria for being presumed disabled, the Commissioner next must determine whether the claimant possesses the RFC to perform her past work. 20 C.F.R. § 404.1520(a)(4)(iv). (5) Fifth, if the claimant is not capable of performing work she performed in the past, the Commissioner must determine whether the claimant is capable of performing other work. 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Gonzalez v. Apfel, 61 F. Supp. 2d 24, 29 (S.D.N.Y. 1999). The claimant bears the burden at the first four steps. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). However at the last step, the Commissioner has the u de of sho i g that the e is othe gai ful o k i the atio al e o o lai a t ould pe fo II. hi h the . Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998). Analysis A. The ALJ’s Application of Legal Principles i. Development of the Record In Social Security proceedings, the ALJ must affirmatively develop the record on behalf of all claimants. See Moran, 569 F.3d at 112. As part of this duty, the ALJ must investigate the A lai a t’s esidual fu tio al apa it is the ost [she] a still do despite [he ] li itatio s. C.F.R. § 404.1545(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also SSR 96- P la if i g that a lai a t’s residual functional capacity is his maximum ability to perform full-time work on a regular and continuing basis). The ALJ’s assess e t of a lai a t’s esidual fu tio al apa it ust e ased o all ele a t edi al a d othe e ide e, i ludi g o je ti e edi al e ide e, su h as x-rays and MRIs, the opinions of treating and consultative ph si ia s, a d state e ts the lai a t a d othe s o e i g the lai a t’s i pai e ts, s pto s, ph si al limitations, and difficulty performing daily activities. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1545(a)(3)). 3 9 facts and develop the arguments both for and against granting benefits. Id. Whether the ALJ has met his/her duty to develop the record is a threshold question. Thus, before reviewing hethe the Co § issio e ’s fi al de isio is suppo ted g , the ou t su sta tial evidence under 42 U.S.C. ust fi st e satisfied that the ALJ p o ided plai tiff ith a full hea i g u de the “e eta ’s egulatio s a d also full a d o pletel de eloped the ad i ist ati e e o d. Scott v. Astrue, No. 09-cv-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (internal quotations and citations omitted). Plaintiff argues that the ALJ failed to fully develop the record regarding Plai tiff’s o k after the DOD. (JS 42.) But, Plaintiff fails to identify any evidence that is missing from the record concerning the work she performed after her alleged onset of disability. The Court has carefully reviewed the full record and finds that the ALJ sufficiently developed the record o e i g Plai tiff’s o k after August 13, 2013 by questioning her about her babysitting and earnings from that work as well as her reasons for stopping that work. (R. 54-55.) The ALJ analyzed this testimony in her decision as well. (Id. at 32.) Thus, the ALJ adequately developed the record. ii. Treating Physician Rule Plaintiff alleges that the ALJ improperly failed to afford considerable weight to treating physicians Dr. Dassa and Dr. Da Silva and failed to provide good reasons for her decision to not afford considerable weight to the opinions. (JS 33-34.) Under the treating physician rule, an ALJ is required to give controlling weight to the medical opinion of a lai a t’s treating physician if it is well-supported by medical findings and is ot i o siste t ith the othe su sta tial e ide e i the e o d. See Mo roe v. Co 10 ’r of Soc. Sec., F. App’ , d Ci . iti g Shaw, 221 F.3d at 134; 20 C.F.R. § 404.1527(c)(2)). If there are genuine conflicts in the medical evidence, the Commissioner may esol e the a d fi d that the t eati g ph si ia ’s opi io is ot e titled to o t olli g eight. Id. (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)). When controlling weight is not given to a treating physician's assessment, the ALJ must consider the following factors to determine the weight to give the opinion: (1) the length of treatment relationship and frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence in support of the opinion; (4) the opinion's consistency with the record as a whole; (5) whether the opinion is that of a specialist; and (6) any other relevant factors. Id. (citing 20 C.F.R. § 404.1527). The ALJ must comprehensively set forth her easo s fo the eight assig ed to a t eati g ph si ia ’s opi io . Id. (internal citation omitted). He e, the ALJ’s consideration of D . Dassa’s a d D . Da “il a’s opi io s o po ts ith the treating physician rule. D . Dassa opi ed that Plai tiff as totall disa led. The ALJ was not required to give D . Dassa’s opi io that Plaintiff was totally disabled any weight, let alone controlling weight. The uestio of hethe a lai a t is disa led is a dete i atio ese ed e lusi el to the Commissioner. See 20 C.F.R. § 404.1527(d)(1); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. A t eati g ph si ia ’s state e t that the laimant is disabled cannot itself be dete i ati e. . Moreover, the ALJ sufficiently set forth the reasons why she was not giving D . Dassa’s opi io o t olli g eight; the ALJ fou d that the e as little o je ti e suppo t fo D . Dassa’s opi io that Plai tiff as totall disa led a d that the opi io ith the edi al e ide e of e o d a d the [Plai tiff’s] o 11 as i di e t o fli t post-o set o k a ti it . R. . This Court has carefully reviewed the full record and finds that the ALJ’s o lusion that Plaintiff as ot totall disa led is supported by substantial evidence in the record, including Dr. Dassa’s o epo ts. D . Dassa epo ted that Plai tiff had so e s elli g, dis o fo t, a d limited range of motion on her right shoulder, but that her overall restriction of motion and tenderness were mild. (Id. at 291-92.) Dr. Dassa also routinely reported intact motor, sensory a d eu o as ula e a i atio s of the ight shoulde , a d o eu ologi al defi its i Plai tiff’s right knee. (Id. at 289, 324, 414-15, 460-64, 472.) The Court is also mindful that Dr. Dassa evaluated Plaintiff in connection with her application for o ke s’ o pe satio . [F]indings of disa ilit fo o ke s’ o pe satio purposes are of limited utility for disability purposes under the [Act]. . . The [Act] uses its own defi itio of disa ilit . DeJesus v. Chater, 899 F. Supp. 1171, 1177 (S.D.N.Y. 1995); see also Fortier v. Astrue, No. 09-cv-993 (RJS) (HBP), 2010 WL 1506549, at *24 (S.D.N.Y. Apr. 13, 2010). Thus, the ALJ p ope l assessed o luded that D . Dassa’s edi ilit a d ele a e e ause of his i ol e e t ith Plai tiff’s o ke s’ o pe satio ust e a efull laim. (R. 37.) The ALJ’s analysis of D . Da “il a’s opi io is less st aight-forward, though still adequate under the treating physician rule. Dr. Da Silva conducted a clinical psychological evaluation of Plaintiff and opined that Plaintiff appeared to be presently functioning on the low average native endowment range of cognitive intelligence with slightly affected attention, concentration, and memory functioning. (Id. at 438.) Dr. Da Silva found that Plaintiff presented difficulty recalling daily expe ie es a d see ed spa ed out a d dist a ted at ti es. Id.) The ALJ efe e ed D . Da “il a’s epo t u e ous ti es th oughout he de isio , relied on it as support he assessi g Plai tiff’s RFC, a d ha a te ized D . Da “il a as a 12 edi al[l ] a epta le sou e. R. , , . At the same time, the ALJ criticized D . Da “il a’s opi io s, iti g that his state e ts a out Plai tiff o tai ed to [Plai tiff’s] a ilit to pe fo o k a ti it . R. o e pla atio of ho [the ] o elate[d] .) The ALJ also stated that she was giving little eight to the glo al assess e t of fu tio i g GAF scores of 50-604 that Dr. Da Silva assigned Plaintiff, but provided clear and sufficient reasons for the weight she gave to the GAF scores. (Id. at 38.) Although the ALJ dis ussed D . Da “il a’s epo t, she did not explicitly state the p e ise eight she affo ded to D . Da “il a’s o e all opi io . Ho e e , D . Da “il a’s reports are consistent with the other medical evidence indicating that Plaintiff had mild to moderate difficulty in the areas of attention, concentration, and memory. (Compare R. 438 with R. 259, 262, 481-84.) Plaintiff also testified that she did not have memory issues. (Id. at . The ALJ’s dete i atio that Plaintiff has moderate difficulties in maintaining concentration, persistence or pace is thus o siste t ith D . Da “il a’s opi io a d the othe evidence in the record. (R. 30.) Therefore, notwithstanding the ALJs failure to state the weight given to D . Da “il a’s opinion, this was harmless error. The ALJ’s ultimate conclusion would not have changed as it was fully consistent with D . Da “il a’s opi io and other medical evidence ega di g Plai tiff’s li itatio s a d RFC. See, e.g., Carway v. Astrue, No. 06-cv-13090 (LMS), 2010 WL 6121686, at *11 “.D.N.Y. Aug. , D . Tsai is’ epo ts a e o siste t ith the epo ts of Plai tiff’s othe t eati g ph si ia s. The efo e, the ALJ’s failu e to them or explain the weight given to Dr. Tsaris is ha less e o e tio ; Walzer v. Chater, No. 93-cv- The Diagnostic and Statistical Manual of Mental Disorders D“M notes that a GAF score of 41-50 reflects serious symptoms, whereas a GAF score of 51-60 reflects moderate symptoms. See Diagnostic and Statistical Manual of Mental Disorders, 27-34 (4th ed., te t e . . D . Da “il a’s fo s t eak these s o es a d des i e a GAF score 50-60 as reflecting moderate symptoms. (R. at 352-63.) Regardless, the fifth edition of the DSM no longer includes GAF s o es as a elia le ea s of e aluati g a i di idual’s fu tio i g. 4 13 WL 6240 (LAK), , at * “.D.N.Y. “ept. , While the ALJ should ha e dis ussed [the t eati g ph si ia ’s] epo t i his de isio . . . the ALJ’s failu e to do so as harmless error, since his itte o side atio of [the t eati g ph si ia ’s] epo t ould ot ha e ha ged the out o e of the ALJ’s de isio (SHS), 2003 WL 94172 , at * ; see also Jones v. Barnhart, No. 02-cv-0791 “.D.N.Y. Ma . , ALJ’s failu e to e plai the eight that he ga e to the opi io s of Plai tiff’s t eati g ph si ia s o stitutes ha less e o e ause the ALJ e gaged i a detailed dis ussio of thei fi di gs . . . a d his de isio does ot o fli t ith the . . Plai tiff’s Credi ility iii. Plaintiff alleges that she is e titled to su sta tial edi ilit e ause of he good o k e o d. J“ . To the e te t that Plai tiff is a gui g that the ALJ’s de isio good o k histo as e o eous, Plai tiff’s a gu e t is ithout a good o k histo fa to s app op iatel a e dee ed p o ati e of ot to el o he e it. Although it is true that edi ilit , it e ai s just o e of o side ed i assessi g edi ilit . Campbell v. Astrue, a F. App’ , (2d Cir. 2012) (summary order) (quoting Schaal v. Apfel, 134 F.3d 496, 502-03 (2d Cir. 1998)). He e, othe fa to s, su h as the i o siste et ee Plai tiff’s testi o a d he edi al e o ds, eigh agai st a positi e edi ilit fi di g as to Plai tiff’s su je ti e assess e t of he symptoms. See id. For example, Plaintiff testified at her hearing that she cannot hold anything in her right hand and can only occasionally reach, handle, or feel with her right hand. (R. 5960.) However, the medical evidence in the record does not support such a limitation on the use of he ight ha d. Rathe , the e ide e i di ates that Plai tiff’s g ip st e gth and sensory motor function were grossly intact. (See, e.g., r. at 85-86, 253, 259, 262, 316.) 14 Fu the , the ALJ did ot ig o e Plai tiff’s o k histo . To the o t a , the ALJ ited to Plai tiff’s e plo e t histo a de e alleged onset date. (R. 28, 38Plai tiff’s good o k histo Wavercak v. Astrue, o side ed ho Plai tiff o ti ued to o k afte the . A o di gl , the ALJ’s de isio not to rely exclusively on as ot e o eous. See, e.g., Campbell, F. App’ , d Ci . su a o de F. App’ at ; That [Plai tiff’s] good work history was not specifically referenced i the ALJ’s de isio does ot u de edi ilit assess e t, gi e the su sta tial e ide e suppo ti g the ALJ’s dete i e the i atio . ; Rousey v. Comm’r of Social Security, 285 F. Supp. 3d 723, 744 (S.D.N.Y. 2018). iv. Vocational Expert Testimony Plai tiff asse ts that the ALJ failed to take i to a ou t ho [Plai tiff’s] illite a ha pe he sea h fo a jo E glish o the jo a d failed to full o side Plai tiff’s a ilit to o ould u i ate i ase. (JS 43.) This Court i te p ets Plai tiff’s o te tio to a gue that the ALJ failed to rely on the testimony of vocational expert Dr. Taitz in concluding that jobs exist in significant numbers in the national economy that Plaintiff could perform. To the extent Plaintiff is arguing that the ALJ impermissibly relied on the Medical-Vocational Guidelines the Grids , athe tha the o atio al e pe t testi o , i light of Plai tiff’s educational and/or nonexertional limitations, Plai tiff’s a gu e t is ithout The Co atio al e o o e it. issio e has the u de of sho i g that the e is othe gai ful o k i the hi h the lai a t ould pe fo . Balsamo, 142 F.3d at 418. Ordinarily, the Commissioner may satisfy this burden by relying on the applicable Grids in 20 C.F.R. Part 404, Subpart P, Appendix 2. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). However, where a claimant suffers from both exertional and non-exertional impairments, and where a 15 lai a t’s o -e e tio al i pai e ts sig ifi a tl li it the a ge of work permitted by his e e tio al li itatio s, reliance on the Grids is insufficient and the ALJ must require the Co issio e to p ese t the testi o of a o atio al e pe t o othe si ila e ide e regarding the existence of jobs in the national e o o li itatio s. Id. at 603-06. A non-exertional i pai fo a i di idual ith lai a t’s e t is sig ifi a tl li iti g a o s a lai a t’s possi le a ge of o k as to dep i e hi oppo tu it . Lewis v. Colvin, F. App’ , d Ci . He e, a o atio al e pe t as ot e essa ea i gful e plo e t . e ause Plai tiff’s o -exertional li itatio s did ot sig ifi a tl li it the a ge of o k pe li itatio s. Lewis v. Colvin, of a he it so itted [he ] e e tio al F. App’x 675, 678 (2d Cir. 2013) (quoting Bapp, 802 F.2d at 603). The ALJ did find that Plaintiff had additional limitations (she is limited to performing si ple tasks , ut o luded, ased o the e o d e ide e as a hole, that Plai tiff’s additional limitation had little or no effect on the occupational base of unskilled sedentary work e ause Plai tiff is a le to u de sta d, a out, a d e e e si ple i st u tio s; to respond appropriately to supervision, coworkers and usual work situations, and she is able to deal ith ha ges i a outi e o k setti g. e plai ed ho Plai tiff’s li itatio R. . I so o ludi g, the ALJ ade uatel ould i pede he apa it to pe fo sede ta o k, ut that the limitation would not significantly limit the range of work that she could perform. This determination is supported by substantial evidence in the record.5 As the ALJ explains (r. 40), SSR 85- lists the e ui e e ts of u skilled o k to i lude the a ilit[ ] o a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supe isio , o o ke s a d usual o k situatio s; to deal ith ha ges i a outi e o k setti g a d o di a il i ol e[s] deali g p i a il ith o je ts, athe tha ith data o people. ““R -15, 1985 WL 56857, at *4 (1985); see also SSR 96-9p, 1996 WL 374185 (1996) (providing same requirements for a finding of not disabled 5 16 Moreover, the ALJ found that Plaintiff had only mild restrictions in her activities of daily living and in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation. (Id. at 30.) These non-exertional i pai e ts a e si pl ot sig ifi a t e ough to ha e i te fe ed ith Plai tiff’s a ilit to o k. See Mitchell v. Colvin, No. 14-cv-4156 (JGK), 2015 WL 5306208, at *7 (S.D.N.Y. Sept. 10, 2015) The e o d i this ase does ot esta lish a o -exertional limitations that significantly di i ished the plai tiff’s a ilit to o k. The ALJ fou d that Plai tiff had at ost mild difficulties in activities of daily living and social functioning, an[d], at most, moderate problems i o e t atio , pe siste e, a d pa e. . Finally, the fact that Plaintiff has both exertional and non-exertional impairments does not require the ALJ to rely on vocational expert testimony. The Second Circuit has held that the e e e iste e of a o -exertional impairment does not automatically require the p odu tio of a o atio al e pe t o p e lude elia e o the [G ids]. Bapp, 802 F.2d at 603. I stead, the appli atio of the [G ids] a d the e essit fo e pe t testi o ust e determined on a case-by- ase asis. Id. at 605. Instead, the ALJ properly relied on the Grids when determining whether there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed.6 The Grids take i to a ou t Plai tiff’s RFC i o ju tio ith Plai tiff’s age, education, and previous work experience. See 20 C.F.R. Part 404, Subpart P, Appendix 2 he e lai a t has a RFC fo less tha a full a ge of sede ta o k . Thus, [a] su sta tial loss of a ilit to meet any of these basic work- elated a ti ities ould se e el li it the pote tial o upatio al ase. Id. The record reflects no such substantial loss, but rather that Plaintiff was only mildly or moderately limited in her ability to meet these requirements. (R. 352-63, 435-439, 481-84.) 6 The ALJ did efe e e D . Taitz’s testi o ega di g Plai tiff’s past ele a t o k i he opi io . R. . 17 Colu th ee la eled Edu atio i Ta le No. – Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a Result of Severe Medically Determinable Impairment(s)); see also Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996). Thus, appl i g the G ids, the ALJ e essa il o side ed Plai tiff’s le el of edu atio . Specifically, the ALJ determined that Plaintiff was born in February 1975, and thus was a younger individual (i.e., between the ages of 18-44), that she was illiterate but able to communicate in English, and that transferability of job skills was not material. (R. 39.) These findings squarely correspond to Rule 201.23 of the Grids7, which directs a finding of not disabled for a younger individual age 18-44, who is illiterate or unable to communicate in English, with unskilled or no previous work experience. Thus, the ALJ sufficiently considered Plai tiff’s language capabilities and education he dete Rega di g Plai tiff’s a ilit to o does ot u de sta d E glish ut late i i g Plai tiff’s a ilit to fi d a jo . u i ate i E glish, the ALJ opined that Plaintiff o luded Plai tiff is a le to o u i ate i E glish. (Id. at 32, 39.) Plaintiff testified with the assistance of an interpreter at her hearing, though some of her medical providers noted that she spoke English (id. at speaks E glish, t a slato , , patie t ot e ui ed ), 306), or at least had li ited E glish p ofi ie id. at 245, 248). Further, Plaintiff attended high school through the 10th grade in the United States, and then graduated from high school in the Dominican Republic. (Id. at 53.) The record thus supports a conclusion that Plaintiff can speak some English and can communicate in 7 The ALJ mistakenly referred to Rule 201.25 in the Grids. However, because the correct rule in the Grids (201.23) also di e ted a fi di g of ot disa led, the ALJ’s isappli atio of the G id ule as ha less e o . See Pritchard v. Colvin, No. 13-cv-945 (CFH), 2014 WL 3534987, at *8- N.D.N.Y. Jul. , ALJ’s elia e o o g G id ule is harmless error where there exists another Grid rule applicable to plaintiff which would support the same determination made using the wrong Grid rule). 18 English, though not fluently. Even though Plaintiff has a limited education, does not speak English fluently, and has no transferable skills, under Rule 201.23 of the Grids, she is not disabled. See Hernandez v. Commissioner of Social Security, No. 96-cv-1585 (DLC), 1997 WL , at * “.D.N.Y. “ept. , [Plai tiff] as thi t -eight years old at the time he applied for disability. Even though plaintiff has a limited education, does not speak English fluently, and he has no transferable skills, under the Vocational Medical Guidelines for a residual functional apa it fo sede ta o k, plai tiff is ot disa led. . Thus, the ALJ did not err in her finding of Plai tiff’s RFC o la k of disa ilit . A o di gl , the ALJ did ot e i faili g to el o the o atio al e pe t’s testi o e ause she o luded that Plai tiff’s o -exertional impairments had little to no effect on Plai tiff’s a ilit to pe fo u skilled sede ta o k. B. Su sta tial E ide e i Support of Co issio er’s De isio The ALJ determined that Plaintiff retained the RFC to perform sedentary work, except that Plai tiff is li ited to pe fo i g si ple tasks. Id. at 31.) “ede ta o k i ol es lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a e tai a ou t of alki g a d sta di g is ofte C.F.R. § . a . Ho e e , [j]o s a e sede ta occasionally and other sedentary c ite ia a e togethe ith Plai tiff’s o e essa i a i g out jo duties. if alki g a d sta di g a e e ui ed et. Id. Medical evidence in the record, state e ts a out he fu tio al a ilities du i g the ele a t ti e pe iod, suppo ts the ALJ’s RFC dete i atio of sede ta 19 o k. The Cou t add esses the medical eviden e ega di g Plai tiff’s ph si al i pai e ts a d Plai tiff’s e tal i pai e ts separately below. i. Plai tiff’s Physi al I pair e ts Plaintiff alleges physical impairments of her right shoulder, right knee, rotator cuff, lumbar and cervical spines, and bilateral hip. (R. 29.) Plai tiff o je ts to the ALJ’s RFC fi di g e ause Plai tiff alleges he ph si al o ditio s, i fa t e e se e e. JS 40.) Plaintiff also seems to be arguing that her physical impairments satisfied Listings §§ 1.02 and 1.04, and the efo e the ALJ’s RFC dete Listing § . i atio o e s the as i p ope .8 (Id. at 38-40.) ajo d sfu tio of a joi t, hi h is ha a te ized g oss anatomical deformity and chronic joint pain and stiffness with signs of limitation or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable i agi g of joi t spa e a o i g, o dest u tio , o a klosis of the affe ted joi t s . C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02. Listing § 1.02 also requires evidence of inability to ambulate effectively or inability to perform fine and gross movements effectively. Id. Listing § 1.04 concerns disorders of the spine and requires evidence of a compromised nerve root with additional findings of either (a) evidence of a nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss accompanied by sensory or reflex loss and positive straight-leg raising test; (b) spinal 8 Confusingly, Plaintiff writes in the Joint Stipulation that her shoulder and knee impairments do not meet Listing . , ut the ites that the ALJ e ed i fi di g that Plai tiff’s shoulde a d k ee i pai e ts fail to eet Listing 1.02. (JS 38-39.) The Court i te p ets Plai tiff’s a gu e t to e that he i pai e ts did meet Listings 1.02 and 1.04. 20 arachoditis; or (c) lumbar spinal stenosis, resulting in inability to ambulate effectively. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04. The ALJ’s o lusio that Plai tiff does ot eet Listi gs §§ 1.02 and 1.04 and that Plaintiff had the RFC to perform sedentary work is supported by substantial evidence in the record. First, Plaintiff failed to present the required imaging of joint space narrowing, bony destruction, or anyklosis required under Listing § 1.02. Additionally, the record does not demonstrate compromise of a nerve root required under Listing § 1.04. Further, the medical records show that Plai tiff’s i pai e ts did ot eet o edi all e ual the se e it of Listings §§ 1.02 and 1.04. While the e as so e e ide e of se so defi it i Plai tiff’s ight leg (see, e.g., r. at 265, 270, 284), Plai tiff’s st e gth was often five out of five throughout and she had intact fine motor movements and intact neurological examination. (Id. at 259, 262, 264, 288-89, 302-03, 376, 414, 460-61, 464-65, 472.) I August , Plai tiff’s st aight leg raise testing was negative. (Id. at 264.) An August 2013 MRI revealed only mild degenerative changes with no dominant disk herniation and no finding of nerve root compromise. (Id. at 273.) An August 2013 NCV/EMG study also revealed no evidence of lumbar radiculopathy. (Id. at 267-69.) I Ma h , Plai tiff’s a ge of otio fo he cervical spine, right shoulder, right knee all were normal. (Id. at 302-03.) Later in March 2014, Plaintiff had full ranges of motion of her knees, shoulders, ankles and cervical spine. (R. 315-16.) She had some weakness in her ight a a d leg, ut full st e gth o he left side. I additio , Plai tiff’s joi ts e e sta le a d non-tender and there were no signs of muscle atrophy. (Id.) She did not require help changing for the exam, getting on and off the exam table, and rising from a chair. (Id. at 315.) 21 In April and June 2015, following surgery and physical therapy, Plaintiff reported improvement of her pain and motion in her right shoulder. (Id. at 414, 460.) In July 2015, Plai tiff’s st aight leg aisi g test ilate all was negative. (Id. at 464.) Notwithstanding all of this evidence, Plaintiff argues that the medical records show that she had a limp and antalgic gait and that she walked with a cane. (JS 40.) While this is true, these fi di gs do ot sho a i a ilit to a ulate effe ti el , at est, she had a li p at times observed to be mild) and used a cane. (See, e.g., r. 302, 315, 324, 467, 472.) Ulti atel , the ALJ’s dete i atio that Plai tiff ould perform sedentary work was based upon a thorough review of all of the medical evidence (see id. at 32-35), along with evidence that Plaintiff continued to work even after the alleged onset of her disability. ii. Plai tiff’s Me tal I pair e ts Plai tiff states that the ALJ failed to full a d the ps hiat i e ide e. fi di g that Plai tiff’s J“ e tal i pai , o side Plai tiff’s o -exertional limitations . Specifically, Plaintiff alleges that the ALJ erred in e ts, o side ed si gly and in combination, do not meet or medically equal the criteria of Listing § 12.04. (Id. at 26, 40.) Plaintiff also argues that she meets the criteria of Listing § 12.06. (Id. at 28.) This Court finds that the ALJ properly applied the Listings and that the ALJ’s o lusio s ega di g Plai tiff’s e tal i pai e ts a e supported by substantial evidence in the record. Listing § 12.04 covers depressive and bipolar disorders. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04. To satisfy the listing, Plaintiff must have medical documentation of (1) depressive disorder, characterized by five or more of the following: depressed mood, diminished interest in almost all activities, appetite disturbance with change in weight, sleep disturbance, 22 observable psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, or thoughts of death or suicide; and (2) extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: understand[ing], remember[ing], or apply[ing] information, interact[ing] with others, concentrat[ing], persist[ing], or maintain[ing] pace, or adapt[ing] or manag[ing] o eself. Id. Similarly, Listing § 12.06 covers anxiety and obsessive-compulsive disorders and requires the same evidence as (2) in § 12.04, as well as medical documentation of anxiety, characterized by three or more of the following: restlessness, easily fatigued, difficulty concentrating, irritability, muscle tension, or sleep disturbance. Id. § 12.06. For Plaintiff to sho that he e tal i pai e ts edi al ite ia. Sullivan v. Zebley, only some of [a listi g’s] ite ia, o at h these Listi gs, she U.“. , ust eet all the spe ified A i pai e t that manifests atte ho se e el , does ot ualif . . The ALJ’s o lusio that Plai tiff did ot eet the Listi gs a d that Plai tiff had the RFC to perform sedentary work (limited to performing simple tasks) is supported by substantial evidence. There is no medical evidence in the record to support a finding of extreme limitation or marked limitation of any of the areas of mental functioning laid out in requirement (2) under both Listings §§ 12.04 and 12.06. Plaintiff presented no evidence that she had a significant restriction in her daily activities or adapting or managing herself due to her depression. 9 Instead, any limitations in her activities of daily living are related to her physical impairments. (R. 59-61 (Plaintiff testifying that she has trouble washing, getting dressed, cooking, and doing 9 In the Joint Stipulation, Plaintiff contends that she could not adapt herself to changing circumstances or exercise self- o t ol e ause she e pe ie ed spo ta eous i g. J“ . The Cou t is ot o i ed that this e ide e shows that Plaintiff was unable to adapt. 23 laundry due to her physical pain).) Plaintiff also did not have marked or extreme limitations in her ability to interact with others; she regularly worked during her alleged period of disability and picked up and dropped off a child at school. (Id. at 54-55.) As the ALJ noted, these a ti ities de o st ate that Plai tiff as a le to egula l e gage ith othe s at the hild’s s hool a d ith the hild’s pa e t and with the child. (Id. at 30.) The medical evidence also shows Plaintiff had only moderate difficulties in maintaining concentration, persistence, and pace. (Id. at 435-38, 481-83.) Finally, there was no evidence that Plaintiff experienced any episodes of decompensation, let alone repeated episodes of extended duration. The ALJ spent a full paragraph discussing each of the above factors in detail. She suffi ie tl s u ed the e o d fo all e ide e elati g to Plai tiff’s additio , the ALJ li ited Plai tiff’s RFC of sede ta taki g i to a ou t Plai tiff’s e tal i pai o k to o l pe fo e tal i pai e ts. In i g si ple tasks, thus e ts. The ALJ’s o lusio s ega di g Plai tiff’s mental impairments and her ability to perform sedentary work with the limitation of only performing simple tasks are supported by substantial evidence. Therefore, this Court finds that the ALJ properly applied the Listings and issued a decision that is supported by substantial evidence. CONCLUSION Fo the fo egoi g easo s, the Co issio e ’s otio is GRANTED a d Plai tiff’s motion is DENIED. This Clerk of Court is respectfully directed to close this case. SO ORDERED. Dated: August 6, 2018 New York, New York ______________________________ KATHARINE H. PARKER United States Magistrate Judge 24
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