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Freitas v. Colvin

United States District Court, D. Connecticut

December 22, 2016

JOSE FREITAS, Plaintiff,


          Donna F. Martinez United States Magistrate Judge

          Plaintiff, Jose Freitas, seeks judicial review of the denial of his applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).[1] (R. 10-22.) Currently pending are Plaintiff's motion to reverse the decision of the Commissioner of Social Security (“Commissioner”) (doc. #8) and defendant's motion to affirm the decision of the Commissioner. (Doc. #9.) On July 31, 2015, pursuant to the court's order, counsel filed a joint stipulation of facts and medical chronology, which I incorporate by reference. (Doc. #13.) For the following reasons, Plaintiff's motion is DENIED and defendant's motion is GRANTED.[2]

         I. Legal Standard

         The standards for determining an individual's entitlement to DIB and SSI, the Commissioner's five-step framework for evaluating disability claims, and the district court's review of the final decision of the Commissioner are well-settled. I am following those standards, but do not repeat them here.

         II. Discussion

         Plaintiff makes several arguments. He contends that the ALJ erred by (a) not finding Plaintiff's right-sided weakness to be a severe impairment; (b) failing to consider Plaintiff's non-severe impairment in his physical RFC determination; (c) making internal inconsistencies in his mental RFC determination; (d) incorrectly evaluating the medical opinion evidence; (e) failing to support his credibility assessment with substantial evidence; and (f) improperly relying on the testimony of the vocational expert. I consider each argument in turn.

         A. Step Two Determination

         Plaintiff suffered a stroke on March 6, 2011. (R. 279.) At step 2, the ALJ determined that Plaintiff's resulting organic mental disorder is a severe impairment. (R. 12.) Although the ALJ recognized that plaintiff experienced right-sided weakness after his stroke, he explained that “there is no convincing evidence” that the right-sided weakness caused “more than minimal limitations in terms of [Plaintiff's] ability to perform basic work activities, ” and therefore did not find it to be a severe impairment. (R. 13.) Plaintiff contends that this finding is erroneous.

         A review of the ALJ's assessment of the severity of Plaintiff's impairments reveals no error. The ALJ relied on the medical source statement completed by Plaintiff's treating physician, Dr. Evan Schiff, in which he opined that Plaintiff's right-sided weakness improved within three months of his stroke and since that time has been no more than “mild.” (R. 13, citing R. 394.) Dr. Schiff's opinion is consistent with other evidence of record revealing normal physical examination results. For example, in August 2011, consultative examiner Dr. Yacov Kogan observed that plaintiff walked independently with a normal gait. (R. 328-29.) His motor strength and reflexes also were normal. (Id.) Based on his examination, Dr. Kogan opined that plaintiff had no functional limitations. (Id.) In addition to Dr. Kogan's report, the ALJ also considered the opinion of state agency medical consultant Dr. Katherine Tracy, who reviewed the evidence of record and opined that plaintiff does not have a physical impairment resulting in more than minimal functional limitations in his ability to perform basic work activities. (R. 13, citing R. 95.) There is no error here.[3]

          B. Physical RFC Determination

         Plaintiff next argues that even if his right-sided weakness is a non-severe impairment, the ALJ erred by not considering the potential functional limitations associated with this impairment when making his RFC assessment. See SSR 96-8P, 1996 WL 374184, at *5 (July 2, 1996) (“In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'”).

         Contrary to Plaintiff's assertion, the ALJ did consider Plaintiff's right-sided weakness, but ultimately found that it did not cause any functional limitations. He recounted that during Plaintiff's interview with state-agency physician Dr. Wendy Underhill, plaintiff “stated that he believed himself capable of working, even while he had some difficulties due to weakness in his right leg . . . . [T]he claimant reported doing a considerable amount of walking throughout the day, and reported no difficulty handling household chores.” (R. 14.) The ALJ also considered Plaintiff's own treating physician's statement that his right-sided weakness improved within three months of his stroke and since that time has been no worse than mild. (R. 13, 18; citing R. 95, 394.) The ALJ's physical RFC assessment properly accounted for both severe and non-severe impairments and is supported by substantial evidence.

         C. Mental RFC Determination

          Plaintiff also takes issue with the ALJ's mental RFC determination, arguing that it is internally inconsistent. The ALJ gave “great weight” to state agency psychologist Dr. Kirk Johnson's opinion that plaintiff has “moderate limitations in terms of the ability to maintain concentration, persistence and pace, ” but proceeded to find that plaintiff “has the attention span to perform simple work tasks for two-hour intervals throughout an eight-hour workday.” (R. 19.) Plaintiff argues that this inconsistency is grounds for remand.

         Plaintiff's argument conflates two distinct assessments. “It is well established that a step three determination is not an RFC assessment, but instead is used to rate the severity of mental impairment . . . . Therefore, a determination made at step three need not carry over verbatim to the ultimate RFC determination because the two determinations require their own distinct analysis and conclusion.” Race v. Comm'r of Soc. Sec., Docket No. 114CV1357(GTS)(WBC), 2016 WL 3511779, at *3 (N.D.N.Y. May 24, 2016) (citations omitted).

         First, at step 3, when considering the severity of Plaintiff's organic mental disorder, the ALJ explained:

[T]he claimant's psychiatric impairment of Organic Mental Disorder does not meet the criteria of section 12.04A or B of 20 CFR Part 404, Subpart P, Appendix 1 . . . . In making this finding, I have considered whether the “Paragraph B” criteria are satisfied. To satisfy the “Paragraph B” criteria, the mental impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked ...

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