Cunningham v. Saul
2:21-cv-03787-HG-LGD
E.D.N.YDec 5, 2022Background
- Plaintiff Starquasia Cunningham, injured in a May 14, 2016 motor-vehicle accident, applied for DIB and SSI alleging disability from that accident (spinal fractures and related back injuries).
- Plaintiff had a prior asthma diagnosis (reported to a consultative examiner and in later records) but did not list asthma as a basis for disability in her initial applications.
- Consultative examiner Dr. Grabon (single consultative visit) noted intermittent/mild asthma and opined Plaintiff should never be exposed to dust, fumes, odors, and other pulmonary irritants.
- Plaintiff had one ER visit in December 2018 for breathing difficulty treated with nebulizer; she did not follow up with a pulmonologist and had no ongoing specialist treatment records for asthma.
- The ALJ found lumbar spine impairments severe but classified asthma as non-severe and concluded Plaintiff retained the RFC for light work without pulmonary-irritant limitations; the ALJ gave limited weight to Dr. Grabon’s restriction as inconsistent with the record and because he was a one-time consultant.
- The Appeals Council denied review; the district court affirmed the ALJ, denying Cunningham’s motion and granting the Commissioner’s.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ erred at step two by finding asthma non-severe | Cunningham: asthma significantly limits basic work activities and met duration requirement | Commissioner: medical record shows only intermittent/mild asthma, limited treatment, and no persistent functional limitation | Court: No error — asthma diagnosed but not shown to cause more than minimal work limitation; ALJ’s non-severity finding supported by record |
| Whether ALJ improperly discounted Dr. Grabon’s opinion to avoid pulmonary irritants | Cunningham: ALJ should have given weight to Grabon’s restriction and incorporated it into the RFC | Commissioner: Grabon was a one-time consultative examiner; his opinion was inconsistent with treating records and ER follow-up; ALJ permissibly gave it little weight | Court: No error — ALJ permissibly discounted consultative opinion and relied on record and medical expert testimony |
| Whether the RFC assessment was unsupported for failing to include pulmonary-irritant restriction | Cunningham: RFC should have limited exposure to fumes/odors/dust | Commissioner: RFC supported by other medical records and testimony of non-examining medical expert; vocational testimony showed available jobs even with avoidance | Court: No error — RFC supported by substantial evidence and non-examining expert testimony consistent with record |
Key Cases Cited
- Schillo v. Kijakazi, 31 F.4th 64 (2d Cir. 2022) (describing the five-step disability test and substantial-evidence standard)
- Rucker v. Kijakazi, 48 F.4th 86 (2d Cir. 2022) (explaining review standards for ALJ findings and duration requirement)
- Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. 2022) (treating physician rule and when a treating opinion gets controlling weight)
- Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443 (2d Cir. 2012) (ALJ factual findings may be upheld unless a reasonable factfinder would have to conclude otherwise)
- Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019) (ALJ must articulate crucial factors with sufficient specificity to permit review)
- Ortiz v. Comm’r of Soc. Sec., 309 F. Supp. 3d 189 (S.D.N.Y. 2018) (non-examining medical expert opinion may constitute substantial evidence when consistent with the record)