Pro se plaintiff Sheena Wellington seeks judicial review of the Social Security Administration's ("SSA") denial of her claim for disability benefits, pursuant to 42 U.S.C. § 1383(c)(3). (Compl., ECF No. 2.) Now before the Court is the Commissioner of Social Security's ("Commissioner") unopposed motion for judgment on the pleadings. (ECF No. 13.)

For the reasons set forth below, the Commissioner's motion is GRANTED.

I. BACKGROUND

The Commissioner filed an administrative record with the Court pursuant to 42 U.S.C. § 405(g). (Administrative R. ("R."), ECF No. 11.) That record principally provides the factual background.

Plaintiff filed an application for disability payments on July 18, 2008, claiming she became unable to work on December 15, 2007. (R. at 91, 134-40, 153.) The SSA denied the application on November 3, 2008 (R. at 92-95) after which applicant requested a hearing before an Administrative Law Judge ("ALJ"). (R. at 96-97, 101.)

Plaintiff told her doctors that she sustained injuries from a bus accident at age six, slipped on ice in 1997, and has since struggled to varying degrees with back pain, sciatica, and anxiety disorder. (R. at 219, 226-29, 234-37, 257, 297, 299-302, 307-10, 314-17, 328, 330-31, 334.) Prior to claiming inability to work, plaintiff held jobs as a hairdresser, receptionist, and dispatcher. (R. at 35-38, 57-59, 160-63, 189.)

Plaintiff reported physical limitations in lumbar flexion (see R. at 234-37, 314-17), straight leg raising (R. at 234-37, 315), and heavy lifting (R. at 17).

Plaintiff sought limited treatment for her pain and anxiety problems. She treated her reported back pain and sciatica with nonprescription painkillers. (R. at 314, 335.) For the anxiety disorder, she visited a primary care physician and took prescription psychiatric medications intermittently. (R. at 226, 262, 307, 330, 335.) She was not under the care of a psychiatrist (see R. at 49-51, 307), nor was she hospitalized for psychiatric treatment. (R. at 307.) While the record does show some limitation due to anxiety (R. at 307-310), consultative physicians evaluated plaintiff as being able to perform simple, unskilled work. (E.g., R. at 226-29.)

ALJ Seth Grossman conducted a hearing on May 11, 2010, where a vocational expert ("VE") and plaintiff, represented by counsel, testified. After the hearing, the ALJ provided an interrogatory to the VE, Raymond E. Cestar, which the ALJ marked into evidence after plaintiff's counsel failed to object. (R. at 12.)

The ALJ found that plaintiff was not disabled and affirmed the denial of benefits on October 14, 2010. (R. at 12-20.) He found that, despite plaintiff's back pain, sciatica, and anxiety disorder, she was still able to perform a wide range of light work, provided that she was permitted to sit or stand at will and was restricted to simple tasks requiring her to lift no more than 15 pounds. (R. at 15-20.) On March 6, 2012, the Appeals Council denied plaintiff's request for review. (R. at 1-5.)

Plaintiff brought this action pro se on May 2, 2012, pursuant to 42 U.S.C. § 405(g), seeking review of the denial of her disability benefits. The Commissioner moved for judgment on the pleadings on August 20, 2012. (ECF No. 13.) Plaintiff's time to oppose the motion expired without response. The Court granted plaintiff an extension to November 26, 2012, based upon her showing of good cause. (ECF Nos. 16-19.) The Court advised that "[p]laintiff's failure to file an opposition . . . will result in the Government's motion being deemed unopposed." (ECF No. 19.) That deadline too has expired, and this Court therefore considers the Commissioner's motion to be unopposed.

II. STANDARD OF REVIEW

a. Judgment on the Pleadings

"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The Court reviews Rule 12(c) motions for judgment on the pleadings under the same standard as Rule 12(b)(6) motions to dismiss. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Therefore, "[t]o survive a Rule 12(c) motion, the complaint 'must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).

Even where a motion stands unopposed, the Court does not embrace default judgment principles. See Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004) (applied in context of summary judgment). Though an unopposed motion "allow[s] the district court to accept the movant's factual assertions as true, the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law." Id. at 246 (citations and quotation marks omitted); see also Martell v. Astrue, No. 09 Civ. 1701, 2010 WL 4159383, at *2 n. 4 (S.D.N.Y. Oct. 20, 2010) (noting same standard applies in context of pro se unopposed Social Security benefits appeal).

"When the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally" and interpret them as raising the strongest arguments they suggest. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).

b. Review of the ALJ Decision

Judicial review of the Commissioner's decision is limited to reviewing (1) whether the ALJ applied the correct legal standard, and (2) whether his findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Calabrese v. Astrue, 358 Fed. App'x 274, 275 (2d Cir. 2009) (citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).

The Commissioner uses a five-step process when making disability determinations. See 20 C.F.R. §§ 404.1520, 416.920; DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998). Among these steps, the Commissioner determines whether she has demonstrated she lacks the residual functional capacity ("RFC") to perform her past work. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). If she is unable to perform her past work, the burden shifts to the Commissioner to determine whether there is other work which the claimant could perform. Id.

The Second Circuit has described this process as follows: "First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a 'severe impairment' that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. Part 404, Subpart P, App. 1. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform." Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). A claimant bears the burden of proof at the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).

Findings of fact are supported by substantial evidence when, considering the record as whole, they are made up of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Court will uphold the Commissioner's decision if supported by substantial evidence, even when contrary evidence exists. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990).

III. ANALYSIS

Liberally construing the pro se submission in this proceeding, the Court considers the strongest arguments it suggests. McEachin, 357 F.3d at 200. In particular, the Court reads the plaintiff's complaint to challenge (1) the legal standard the ALJ applied, and (2) the sufficiency of evidence supporting his decision. Ultimately, the Court finds neither of these contentions meritorious.

1. Legal Standard Applied by the ALJ

a. Five Step Process

The ALJ properly applied the five-step process described above. It is clear that he correctly applied the first three steps; only the final two - the RFC analysis and the alternative employment analysis - merit additional analysis below.

At step one, the ALJ found that claimant "has not engaged in substantial gainful activity since . . . the application date." (R. at 14.) At step two, he found plaintiff suffered from back pain, sciatica, and anxiety disorder, which were "severe" impairments. (R. at 14) At step three, the ALJ found these severe impairments, or combination thereof, did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P., Appendix 1. (R. at 14-15.)

As required for the RFC analysis, the ALJ examined whether "despite the claimant's severe impairment, she has the residual functional capacity to perform her past work." Tejada, 167 F.3d at 774. The ALJ determined that the plaintiff has the residual functional capacity to "perform a wide range of light work," provided that she has the ability to "shift positions, at will, between sitting and standing," is restricted to "simple tasks," and need not carry more than 15 pounds. (R. at 15-19.) In light of plaintiff's limitations, the ALJ adopted the VE's conclusion that plaintiff was unable to perform her past relevant work as a hairdresser or receptionist. (R. at 18.)

In the final step, the ALJ properly shifted the burden to the Commissioner to show other work that plaintiff could perform. In this analysis, the ALJ again relied on the VE's testimony. The VE opined that an individual with plaintiff's profile would have the residual functional capacity to perform the requirements of "surveillance system monitor . . . , parking lot cashier . . . , [and] ticket seller." (R. 208).

b. Conflicting Vocational Expert Testimony

In addition to the application of the five-step framework, plaintiff argued before the Appeals Council that the ALJ violated Social Security regulations when he failed to clarify an apparent conflict between the VE's testimony and occupational information supplied by the Dictionary of Occupational titles. Specifically, the VE had testified that plaintiff could perform jobs that permitted her to sit or stand at will, but the DOT lacked such a job category. Social Security Ruling ("SSR") 00-4p requires that:

Occupational evidence provided by a VE or VS generally should be consistent with the occupational information supplied by the DOT [Dictionary of Occupational Titles]. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.

SSR 00-4p, 2000 WL 1898704 (S.S.A. Dec. 4, 2000).

Accordingly, the ALJ has a duty to elicit a reasonable explanation for any "apparent unresolved conflict" between the VE evidence and the DOT, and to explain the resolution of the conflict before relying on the VE evidence in the decision. Id.

Plaintiff's prior counsel contended that the ALJ violated SSR 00-4p by failing to explain the unresolved conflict that the DOT does not cite occupations with a sit/stand option. (R. at 209, 213-15.) The ALJ relied upon the availability of a sit/stand option in making his determination that plaintiff could find alternative work. (R. at 19.)

The Court finds that any violation of SSR 00-4p was harmless. Though the Second Circuit has not ruled on this issue, several sister circuits have held that a violation of SSR 00-4p is harmless where there is no actual conflict between the expert's opinion and the DOT. See Allen v. Astrue, No. 6:05-CV-0101, 2008 WL 660510, at *10 (N.D.N.Y. Mar. 10, 2008) (citing Massachi v. Astrue, 486 F.3d 1149, 1154 n.9 (9th Cir. 2007)); Renfrew v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000). Thus, the inquiry becomes not whether the ALJ asked the VE about potential conflicts with the DOT, but instead whether there is an actual conflict.

There is no such conflict here. Because the DOT does not address the availability of a sit/stand option, it cannot contradict the vocational expert's testimony which endorsed such an option. See, e.g., Thompson v. Astrue, CIV.A. 8:09-01968, 2010 WL 3878729 (D.S.C. June 16, 2010) report and recommendation adopted, CIV.A. 8:09-1968, 2010 WL 3880047 (D.S.C. Sept. 28, 2010) aff'd, 442 F. App'x 804 (4th Cir. 2011) ("Because the DOT does not address the availability of a sit/stand option, it was perforce not irreconcilable with the VE's testimony."); Corbett v. Barnhart, No. 1:04-CV-241, 2006 WL 5527015, at *62-*63 (N.D.W. Va. Mar. 24, 2006) (finding "lack of a sit-stand option in the DOT does not conflict with the VE's testimony that certain jobs would be available with a sit-stand option in the national economy"); Melvin v. Astrue, No. 1:08-CV-264, 2010 WL 908495, at *4 (N.D. Miss. Mar. 9, 2010). Thus, it does not matter that the VE did not address the interaction between his opinion and the DOT - no conflict exists. Further, plaintiff's attorney had a chance to cross-examine the VE at the hearing regarding any conflicts, but did not do so. (R. at 74-83.)

2. Substantial Evidence

The Court liberally construes plaintiff's complaint to challenge whether the ALJ's determinations that plaintiff retained the residual function capacity to work and that alternative employment is available. The Court finds both determinations supported by substantial evidence.

Plaintiff's complaint recites boilerplate language that the ALJ's determination was not supported by substantial evidence. (Compl. ¶ 9.) This allegation, taken in the light most favorable to plaintiff, could challenge either the step five RFC analysis or the step six alternative job function analysis. --------

At the RFC stage, the ALJ found plaintiff retained the capacity to perform a wide range of "light work." To be eligible for light work, one must be able to "lift[] no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. 416.967(b). Further, "a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." Id.

The evidentiary record supports the ALJ's RFC determination. He based his conclusion largely on the opinions of the Commissioner's consulting physicians Dr. Sheila Horn and Dr. Eugene Edynak and discounted plaintiff's self assessment and the opinion of her own treating physician. The opinion of a consultative examiner, even when contrary to a treating physician's assessment, can constitute substantial evidence in support of an ALJ's determination. See Diaz v. Shalala, 59 F.3d 307, 315 n.5 (2d Cir. 1995); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983); Blaylock-Taylor v. Commissioner of Social Security, No. 03-Civ-3437, 2005 WL 1337928, at *9 (S.D.N.Y. June 6, 2005). When—as here—the treating physician's opinion is found not to be controlling, the ALJ is required to explain the weight given to it. Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999); 20 CFR 416.927(c)(2) (stating "[w]e will always give good reasons" for rejecting treating source opinions).

Dr. Horn suggested that plaintiff had mild to no limitations with respect to prolonged sitting, standing, lifting and bending. (R. at 237.) Likewise, Dr. Edynak reported that plaintiff's limitations were mild to moderate in sitting, standing, walking, climbing stairs, bending, carrying, and heavy lifting. (R. at 315-16.) Both doctors found that she demonstrated a normal or shuffling gait and could perform nearly all exercises associated with the examination. (R. at 16-17, 235-36, 317.) The opinions of Dr. Horn and Dr. Edynak accord with the ALJ's finding for a wide range of light work. (R. at 15.) 20 CFR § 416.967(b). Accordingly, substantial evidence supports the ALJ's conclusion of the RFC.

The ALJ also properly explained why he accorded greater weight to the opinions of the SSA's consultative physicians than plaintiff's treating physician. (R. at 17.) The ALJ's findings emphasized that the opinion of Dr. Awkuba, plaintiff's treating physician, was "somewhat overstated, relative to the totality of the evidence," and that the treatment notes did not support his proposed limitations. (R. at 17.) Likewise, the ALJ was justified in declining to give any weight to the purely legal conclusion provided by plaintiff's treating physicians Dr. Robb-McKoy and Dr. Hayden, indicating that she was unemployable for six or twelve months. (R. at 18, 220, 298.) See also 20 CFR 416.927(d)(3) ("We will not give any special significance to the source of an opinion on issues reserved to the Commissioner" such as determinations of ability to work).

Additionally, any argument that the ALJ erred in determining plaintiff's credibility is unpersuasive. "It is the function of the [Commissioner], not the [reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Aponte v. Sec'y. Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (second alteration in original) (internal quotation marks omitted). "Accordingly, where the ALJ's decision to discredit a claimant's subjective complaints is supported by substantial evidence, we must defer to his findings." Calabrese v. Astrue, 358 F. App'x 274, 277 (2d Cir. 2009).

The ALJ's adverse credibility finding was amply supported by evidence that: (1) plaintiff alleged disability due to mental impairment, yet did not seek treatment from a psychiatrist or psychologist during relevant period because they were "prescribing . . . pretty much the same pills that [plaintiff's] doctor" prescribed (R. 49-51, 226, 307); (2) plaintiff often missed medical appointments (R. 333); and (3) plaintiff had not seen an orthopedist for back pain since 2004. (R. at 55.) In light of this record, the ALJ's decision to discount plaintiff's subjective complaints is supported by substantial evidence.

The Court thus finds that the ALJ's disability determination must be affirmed.

CONCLUSION

For the foregoing reasons, the Court GRANTS the Commissioner's motion for judgment on the pleadings.

The Clerk of the Court is directed to close the motion at ECF No. 13 and to terminate this action.

SO ORDERED. Dated: New York, New York

May 9, 2013

/s/_________

KATHERINE B. FORREST

United States District Judge CC:
Sheena Wellington
Plaintiff Pro Se
1114 E. 232nd Street
Apt. 1
Bronx, NY 10466

Wellington v. Astrue

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MEMORANDUM DECISION & ORDER

CONCLUSION

Wellington v. Astrue

Wellington v. Astrue

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Wellington v. Astrue

Summary

Opinion

MEMORANDUM DECISION & ORDER

CONCLUSION

Wellington v. Astrue

Wellington v. Astrue

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