CHARLES J. SIRAGUSA, District Judge.
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Julie Brierley for Supplemental Security Income ("SSI") benefits. Now before the Court is Plaintiff's motion (Docket No. [#12]) for judgment on the pleadings and Defendant's cross-motion [#16] for the same relief. For the reasons discussed below, Plaintiff's application is denied, Defendant's application is granted, and this action is dismissed.
The reader is presumed to be familiar with the facts and procedural history of this action. The Court will summarize the record only as necessary for purposes of this Decision and Order.
On January 13, 2015, Plaintiff filed for SSI benefits, claiming to be disabled due to a combination of physical and mental impairments. After her claim was denied initially, a hearing was conducted before an Administrative Law Judge ("ALJ") which began on May 18, 2017 and concluded on June 6, 2017.
At the time of the hearing, Plaintiff was forty-six years of age and had no past relevant work.
The record contains conflicting information concerning Plaintiff's education and training. When Plaintiff applied for SSI benefits she indicated that her "highest grade of school completed was "8
At the hearing, the ALJ asked the Vocational Expert ("VE") to consider a hypothetical claimant who, among other things, could work at the light exertional level with some postural limitations, and was "limited to simple, routine tasks not at a production rate pace."
Transcript at p. 75.
On August 3, 2017, the ALJ issued a Decision finding that Plaintiff was not disabled at any relevant time. Following the familiar five-step sequential analysis used to evaluate Social Security disability claims,
When evaluating Plaintiff's mental impairments at step three the ALJ found, with regard to the "paragraph B" criteria, that Plaintiff had "moderate limitations," as opposed to either "marked limitations" or "extreme limitations," in the areas of "understanding, remembering or applying information," "interacting with others," and "concentrating, persisting or maintaining pace."
Prior to reaching step four of the sequential analysis, the ALJ made the following residual functional capacity ("RFC") determination:
(Transcript at 19). In explaining this finding, the ALJ devoted five pages of her decision to a review the various evidence in the record. With regard to Plaintiff's mental impairments, the ALJ noted that Plaintiff claimed to have difficulty concentrating, anxiety and racing thoughts, but that such complaints were not entirely consistent with the record.
Transcript at p. 22 (emphasis added).
Continuing with the sequential evaluation, the ALJ found at step four that Plaintiff had no past relevant work. And finally, at step five, the ALJ found that considering Plaintiff's age, education, work experience and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform.
Plaintiff appealed the ALJ's decision, but on June 4, 2018, the Appeals Council denied Plaintiff's request for review.
On June 25, 2018, Plaintiff commenced this action, and on April 3, 2019, she filed the subject motion [#12] for judgment on the pleadings. Plaintiff contends that the Commissioner's decision should be reversed for essentially two reasons, both relating to her mental impairments.
First, Plaintiff contends that "[a]lthough [the ALJ] specifically found that Plaintiff would have moderate limitations in concentration, persistence and pace, her limiting Plaintiff to simple, routine tasks not at a production rate pace with occasional interaction with supervisors, coworkers and the public, did not adequately account for those limitations."
Second, Plaintiff contends that the ALJ erred, and/or that the ALJ's decision is unsupported by substantial evidence, insofar as the ALJ relied on certain evidence to make her RFC determination:
Pl. Memo of Law [#12-1] at p. 6 (case citations omitted). In other words, Plaintiff maintains that neither Dr. Ransom's report, which was stale, nor the evidence of her daily activities, which the ALJ exaggerated, are indicative of an ability to work on a sustained basis.
42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citation omitted).
Banyai v. Berryhill, 767 F. App'x 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (internal quotation marks omitted).
In applying this standard, a court is not permitted to re-weigh the evidence. See, Krull v. Colvin, 669 F. App'x 31, 32 (2d Cir. 2016) ("Krull's disagreement is with the ALJ's weighing of the evidence, but the deferential standard of review prevents us from reweighing it."); see also, Riordan v. Barnhart, No. 06 CIV 4773 AKH, 2007 WL 1406649, at *4 (S.D.N.Y. May 8, 2007) ("The court does not engage in a de novo determination of whether or not the claimant is disabled, but instead determines whether correct legal standards were applied and whether substantial evidence supports the decision of the Commissioner.") (citations omitted).
As mentioned earlier, Plaintiff's primary argument in this action is based on the assertion that "ALJ Jones specifically found that Plaintiff would have moderate limitations in concentration, persistence and pace." From this, Plaintiff reasons that under the Commissioner's regulations, a "moderate limitation" is synonymous with an "occasional inability," which means an inability up to one-third of a workday. Plaintiff further points out that the VE testified that a claimant who would be off task more than fifteen percent of the workday was un-employable. Consequently, Plaintiff maintains, the ALJ's own findings require a conclusion of disability. The Court disagrees.
Preliminarily, the Court observes that Plaintiff's description of the VE's testimony is not entirely accurate. Plaintiff states that "the question put to the VE by counsel regarding an individual who would have occasional limitations in maintaining focus elicited an answer that such an individual would be unable to maintain competitive employment."
In any event, Plaintiff's argument is based on the assertion that a moderate limitation in concentration, persistence or pace is "consistent with at least occasional inability to maintain focus," with the term "occasional" meaning "up to one third of the day."
Lowry v. Comm'r of Soc. Sec., No. 115CV1553GTSWBC, 2017 WL 1290685, at *4 (N.D.N.Y. Mar. 16, 2017), report and recommendation adopted, No. 115 CV 1553GTSWBC, 2017 WL 1291760 (N.D.N.Y. Apr. 6, 2017). However, courts have endorsed the different-but-related idea that a moderate limitation on a claimant's ability to perform a certain work-related activity may be accounted for by limiting the claimant to performing that activity only occasionally. See, e.g., Frost v. Colvin, No. 1:14-CV-00965 (MAT), 2017 WL 2618099, at *2 (W.D.N.Y. June 16, 2017) ("Here, the ALJ's RFC determination limited plaintiff to only occasional interaction with the public, thereby adequately accounting for her moderate limitations in social functioning.").
In this action, the ALJ did not expressly define her use of the term "moderate," and "[t]he Social Security regulations do not provide a standard definition of the term. Phillip M. v. Comm'r of Soc. Sec., No. 19-CV-01552-TSH, 2019 WL 6117476, at *13 (N.D. Cal. Nov. 18, 2019); see also, Hurley v. Colvin, No. 6:17-CV-06031(MAT), 2018 WL 1250020, at *3 (W.D.N.Y. Mar. 12, 2018) ("The Commissioner's regulations do not define the term `moderate.'").
It is evident, though, that the ALJ did not intend her use of the term "moderate" to mean "up to one-third of the day." In this regard, the ALJ was aware, from the VE's testimony, that Plaintiff would not be able to perform any of the jobs identified by the VE if she would be off task more than fifteen percent of the time. Knowing this, the ALJ indicated that Plaintiff could perform those jobs, in line with the RFC determination. Therefore, the ALJ necessarily found that Plaintiff would be off task less than fifteen percent of the time. This is consistent with the ALJ's discussion of the evidence, and in particular with her reference to the consultative examiner's finding that Plaintiff had "intact attention and concentration." The ALJ never indicated that Plaintiff would be off task "occasionally." Plaintiff's contention that the ALJ used the term "moderate limitation" to mean a limitation that would render the claimant unable to perform that function up to one-third of the day is speculative and contrary to the ALJ's decision.
Further, Plaintiff's argument on this point suggests that any claimant with a "moderate" limitation in concentration, persistence or pace is necessarily disabled, which is contrary to the law of this Circuit. See, e.g., Lowry v. Comm'r of Soc. Sec., 2017 WL 1290685, at *4 ("The Second Circuit has held that a moderate limitation in the area of concentration, persistence, or pace would not necessarily preclude the ability to perform unskilled work.") (collecting cases), report and recommendation adopted, No. 115CV1553GTSWBC, 2017 WL 1291760 (N.D.N.Y. Apr. 6, 2017).
As for Plaintiff's contention that remand is required because limiting her to "simple, routine tasks" in the RFC "did not adequately account for" her moderate limitations in concentration, persistence and pace, the Court again disagrees. See, e.g., Broadbent v. Saul, No. 3:18-CV-02127(WIG), 2019 WL 4295328, at *5 (D. Conn. Sept. 11, 2019) ("The RFC limits Plaintiff to simple routine tasks. This sufficiently accounts for Plaintiff's difficulties with concentration, persistence, and pace, as courts routinely find that a claimant who has moderate limitations in memory and concentration can perform simple routine, tasks.") (collecting cases).
At most, the ALJ's failure, when questioning the VE, to specify Plaintiff's non-exertional impairments, and her decision to instead indicate that the hypothetical claimant was limited to "simple, routine tasks not at a production rate pace," was harmless error. See, McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) ("[A]n ALJ's hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace. We hold, however, that an ALJ's failure to incorporate non-exertional limitations in a hypothetical (that is otherwise supported by evidence in the record) is harmless error if (1) medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, and the challenged hypothetical is limited to include only unskilled work; or (2) the hypothetical otherwise implicitly accounted for a claimant's limitations in concentration, persistence, and pace.") (citations and internal quotation marks omitted).
Plaintiff maintains that the ALJ erred by relying on a consultative report written by Dr. Ransom two years prior to the hearing. The Court disagrees. A consultative report may be stale where the claimant's condition has changed in the interim between the consultative exam and the hearing:
Jeffords v. Comm'r of Soc. Sec., No. 17-CV-1085-MJR, 2019 WL 1723517, at *6-7 (W.D.N.Y. Apr. 18, 2019) (citations omitted). However, a report does not become stale merely by the passage of time, where the claimant's condition has not changed. See, Whitehurst v. Berryhill, No. 1:16-CV-01005-MAT, 2018 WL 3868721, at *4 (W.D.N.Y. Aug. 14, 2018) ("The mere passage of time does not render an opinion stale.").
In this action, Plaintiff objects to the ALJ's reliance on Dr. Ransom's report because Ransom's examination was performed "more than two years prior to the hearing."
Plaintiff next contends that the evidence of her activities of daily living does not provide substantial evidence that she can work on a sustained basis, since the ALJ never evaluated "how well she was able to perform her daily activities [even though Plaintiff] testified that she was not able to do these things. . . on a regular basis."
Plaintiff also contends that the ALJ should not have considered that she twice went on vacations to Florida by herself during the relevant period. According to Plaintiff, it was improper for the ALJ to consider those vacations, since she testified that on those vacations "she stayed in her motel mostly and kept to herself other than swimming at the pool and she did not associate with others."
As a preliminary matter, to the extent Plaintiff may be suggesting that an ALJ cannot consider a claimant's activities of daily living she is clearly mistaken. See, e.g., McMahon v. Colvin, No. 13-CV-4181 JS, 2014 WL 3735910, at *8 (E.D.N.Y. July 29, 2014) ("Plaintiff argues that the ALJ improperly relied on Plaintiff's activities of daily living as evidence of Plaintiff's ability to engage in sedentary work on a sustained basis. However, under the regulations, Plaintiff's activities of daily living are a factor that the ALJ may properly consider. See 20 C.F.R. § 404.1529(c)(3).").
Plaintiff is also incorrect insofar as she implies that the ALJ was required to accept her testimony about her activities of daily living at face value. Rather, the ALJ was required to evaluate Plaintiff's credibility. The ALJ did so and found that Plaintiff was not entirely credible. The ALJ's finding on that point is supported by substantial evidence.
As for Plaintiff's remaining argument that her particular activities of daily living do not suggest that she is able to work full time, she cites two cases: Rivera v. Berryhill, No. 17 CIV. 7177 (RWS), 2019 WL 692162, at *13 (S.D.N.Y. Jan. 28, 2019) and Bodden v. Colvin, 2015 WL 8757129, at *12 (S.D.N.Y. Dec. 14, 2015). However, the Court finds that those cases are factually inapposite. For example, in Bodden the district court faulted the ALJ for considering only the claimant's activities of daily living, while failing to consider other factors under 20 C.F.R. § 416.929. See, Bodden v. Colvin, 2015 WL 8757129 at *12 ("In his evaluation of Bodden's credibility, the ALJ examined only Bodden's daily activities and failed to consider any of the other relevant factors as required by the Regulations[.]"). In the instant action, the ALJ expressly indicated that she considered all of the evidence consistent with 20 C.F.R. § 416.929.
Plaintiff nevertheless contends that the ALJ failed to consider "how well" she was able to perform her daily activities, thereby suggesting that the ALJ overlooked evidence that she has great difficulty performing her daily activities. The Court again disagrees, and finds that the ALJ accurately summarized the evidence.
For the reasons discussed above, Plaintiff's motion for judgment on the pleadings [#12] is denied, Defendant's motion [#16] is granted, and this matter is dismissed. The Clerk of the Court is directed to enter judgment for Defendant and close this action.
So Ordered.
