Kelly v. Saul

NEAL OWEN KELLY, JR., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.

6:18-cv-06431-MAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

December 16, 2019

DECISION AND ORDER

INTRODUCTION

Neal Owen Kelly, Jr. ("Plaintiff"), represented by counsel, brings this action under Titles II and XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner" or "Defendant"), denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Docket No. 1. The Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' competing motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Docket Nos. 9, 16.¹ For the reasons set forth below, Plaintiff's motion is denied, and Defendant's motion is granted.

PROCEDURAL BACKGROUND

On August 15, 2014, Plaintiff protectively filed applications for DIB and SSI, alleging disability as of November 18, 2013, due to manic depression, degenerative disc disease, spinal stenosis, intervertebral lumbar disc disorder with myelopathy, lumbago syndrome, and "unspecified arthropathy at unspecified sites." Administrative Transcript ("T.") 17, 119-20, 129-30, 139-40. The claims were initially denied on September 30, 2014. T. 17, 143-158. At Plaintiff's request, hearings were conducted on November 16, 2016, and July 18, 2017, by administrative law judge ("ALJ") Elizabeth W. Koennecke. T. 17, 46-56, 62-99. An impartial vocational expert testified at the supplemental hearing. Id. The ALJ issued an unfavorable decision on August 24, 2017. T. 14-36. Plaintiff appealed the decision to the Appeals Council, which denied his request for review on April 27, 2018, making the ALJ's decision the Commissioner's final determination. T. 1-4. This action followed.

THE ALJ'S DECISION

The ALJ applied the five-step sequential evaluation promulgated by the Commissioner for adjudicating disability claims. See 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The ALJ initially found that Plaintiff meets the insured status requirements of the Act through December 31, 2019. T. 20. At step one of the sequential evaluation, the ALJ found that Plaintiff performed significant work activity after the alleged onset date, but the record did not clearly establish that Plaintiff had engaged in substantial gainful activity for more than a brief period in the summer of 2014. Id.

At step two, the ALJ determined that Plaintiff's "back impairment" was "severe." Id. The ALJ also determined that Plaintiff's medically determinable impairments of headaches/migraines, obesity, and any mental impairment, did not cause significant work-related functional limitations and thus were non-severe. T. 21-23.

At step three, the ALJ found that Plaintiff's impairments did not singularly or in combination meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. T. 23. The ALJ specifically considered Listings 1.02 (major dysfunction of a joint); 1.04 (disorders of the spine); 14.09 (inflammatory arthritis); 1.00 (musculoskeletal impairments); 11.00 (neurological disorders); and 14.00 (impairments of the immune system). T. 23-24.

Before proceeding to step four, the ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a) and 20 C.F.R. § 416.967(a), except that he "requires the ability to alternate positions every hour or to perform the job standing or sitting while remaining on task." T. 24.

At step four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. T. 32.

At step five, the ALJ found that, considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of ticket taker, document preparer, and assembler. T. 33-34. The ALJ accordingly found that Plaintiff was not disabled as defined in the Act. T. 35-36.

SCOPE OF REVIEW

A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by "substantial evidence" or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court must accept the Commissioner's findings of fact, provided that such findings are supported by "substantial evidence" in the record. See 42 U.S.C. § 405(g) (the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive"). "Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quotation omitted). The reviewing court nevertheless must scrutinize the whole record and examine evidence that supports or detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted). "The deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

DISCUSSION

Plaintiff contends that remand is warranted because the ALJ committed reversible error by substituting her own opinion regarding Plaintiff's RFC for that of competent medical opinion. See Docket No. 9-1 at 5. Plaintiff argues that the record contains only one assessment of Plaintiff's physical abilities following his lumbar fusion surgery in October 2015. This assessment was completed by James Coleman, M.D., Plaintiff's treating physician, and the ALJ gave this opinion only little weight. Id. at 6-7. Accordingly, Plaintiff concludes that the ALJ "formulate[d] a residual functional capacity without the benefit of any medical source opinion." Id. at 8.

"When assessing a disability claim, an ALJ has the responsibility of determining a claimant's RFC based on all of the relevant medical and other evidence of record." Mack v. Commissioner, No. 1:18-cv-00265-MAT, 2019 WL 1994279, at *4 (W.D.N.Y. May 6, 2019) (citations omitted); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (the ultimate responsibility to determine a claimant's RFC rests solely with the ALJ). "[T]he ALJ is required to articulate the reasons for the RFC determination, which 'must include a narrative discussion describing how the evidence supports each conclusion.'" Quinto v. Berryhill, No. 3:17-cv-00024(JCH), 2017 WL 6017931, at *5 (D. Conn. Dec. 1, 2017) (quoting SSR 96-8p, at *7)).

An RFC finding need not correspond to any particular medical opinion; rather, the ALJ must weigh and synthesize all evidence available to render an RFC finding that is consistent with the record as a whole. Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) ("the ALJ's RFC finding need not track any one medical opinion"). However, "[b]ecause an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error." Hilsdorf v. Commissioner, 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010). Accordingly, "[a]n ALJ is prohibited from 'playing doctor' in the sense that 'an ALJ may not substitute his own judgment for competent medical opinion. . . . This rule is most often employed in the context of the RFC determination when the claimant argues either that the RFC is not supported by substantial evidence or that the ALJ has erred by failing to develop the record with a medical opinion on the RFC." Quinto, 2017 WL 6017931, at *12 (citations omitted).

Here, the ALJ assessed an RFC limiting Plaintiff to performing sedentary work, with the additional limitation that Plaintiff have the ability to alternate positions every hour, or to work standing or sitting while remaining on task. T. 24. Pursuant to the regulations, sedentary work "involves 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 certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." See 20 C.F.R. §§ 404.1567(a), 416.967(a).

Plaintiff contends that, given the ALJ's consideration and weighing of the opinion evidence offered in connection with his claim, the ALJ substituted her own judgment for that of competent medical opinion evidence. A review of the ALJ's very detailed written determination reveals that this is not the case. As explained below, the ALJ considered all of the evidence in the record, including medical opinion evidence, objective medical evidence, and Plaintiff's own subjective reports of pain, and explained how this evidence informed the assessed RFC. The ALJ's consideration of all the evidence as a whole was proper. See Matta, 508 F. App'x at 56 ("Although the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole.").

With regard to the opinion evidence offered in connection with Plaintiff's claim, the ALJ clearly explained in the written determination how the opinions offered by Gilbert Jenouri, M.D., the consultative examiner, Dr. Gregorie, Plaintiff's treating neurosurgeon, and James Coleman, M.D., Plaintiff's primary care provider, informed the RFC. T. 28-32. For example, the...