McClellan v. Astrue
Filing
41
ORDER denying 21 plaintiff's motion to reverse the decision of the Commissioner and granting 27 defendant's motion to affirm the decision of the Commissioner. See attached ruling. Signed by Judge Donna F. Martinez on 8/3/16. (Brierley, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DELISA MCLELLAN,
Plaintiff,
v.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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CASE NO.3:12CV1657(DFM)
RULING ON PENDING MOTIONS
Plaintiff, Delisa McLellan, seeks judicial review of a
partially favorable decision by an Administrative Law Judge
(“ALJ”) granting plaintiff’s application for social security
income (“SSI”) but denying her application for disability
insurance benefits (“DIB”).1 (R. 10-20.)
1Plaintiff
Currently pending are
filed applications for DIB and social security
income (“SSI”) on February 13, 2009, alleging a disability onset
date of November 1, 2003. (R. 14.) The ALJ found that
plaintiff became disabled on October 1, 2010, and that her date
last insured for DIB was December 31, 2008. The ALJ approved
plaintiff’s application for SSI, but denied her application for
DIB because she became disabled after her date last insured,
making her ineligible for DIB. See 42 U.S.C. §§ 423(a)(1)(A),
(c)(1).
The ALJ found at step one that plaintiff had no substantial
gainful employment since her alleged onset date. (R. 17.) At
step two, the ALJ found that plaintiff has the following severe
impairments: cervical degenerative disc disease (with
radiculopathy); lumbar degenerative disc disease (with
radiculopathy); and asthma. (R. 17.) He found at step three
that plaintiff’s conditions did not meet or medically equal a
listed impairment. (R. 18.) He determined that prior to October
1, 2010, the date he found to be the onset of plaintiff’s
disability, she retained the residual functional capacity
(“RFC”) to perform light work, except that she was limited to
plaintiff’s motion to reverse the decision of the Commissioner
of Social Security (“Commissioner”) (doc. #21) and defendant’s
motion to affirm the decision of the Commissioner. (Doc. #27.)
On July 15, 2016, pursuant to the court’s order, counsel filed a
joint stipulation of facts and medical chronology, which I
incorporate by reference. (Doc. #39.)
July 28, 2016.
I heard oral argument on
For the following reasons, plaintiff’s motion is
DENIED and defendant’s motion is GRANTED.2
occasional bending, stooping, twisting, squatting, kneeling,
crawling, climbing, and balancing and had to work in an
environment free from dust, fumes, gases, odors, humidity,
wetness, temperature extremes, and poor ventilation. (R. 18.)
At step four, the ALJ determined that plaintiff is unable to
perform her past relevant work. (R. 24.) At step five,
considering plaintiff’s age, education, work experience, and
RFC, the ALJ found that jobs exist in significant numbers in the
national economy that plaintiff could perform. (R. 24.) He thus
concluded that plaintiff was not disabled prior to October 1,
2010. (R. 25.)
The ALJ went on to find that as of October 1, 2010,
plaintiff had the additional severe impairment of right shoulder
bursitis and that her RFC decreased from light to sedentary
work, with the additional limitation of not using her right
dominant upper extremity for lifting, grasping, reaching,
handling, fingering, or pushing/pulling. (R. 23.) The ALJ found
that this reduced RFC precluded plaintiff’s performance of her
past relevant work or any other work. (R. 25.) He therefore
found plaintiff disabled from October 1, 2010 through the date
of his decision. (R. 25.) The ALJ issued a partially favorable
ruling, awarding plaintiff SSI, but finding her ineligible for
DIB because she did not become disabled until after her date
last insured of December 31, 2008. Plaintiff appealed the ALJ’s
decision to the Appeals Council, which denied her request for
review on September 27, 2012. (R. 6.)
2This is not a recommended ruling.
On July 12, 2016, the
parties consented to the jurisdiction of a magistrate judge.
(Doc. #38.) See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b).
2
I.
Legal Standard
The standards for determining an individual’s entitlement
to DIB, 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 five arguments.
She contends that the ALJ
erred by (a) failing to give controlling weight to the opinion
of her treating physician, Dr. Vincent Carlesi; (b) failing to
meet his burden of proof that plaintiff retained the RFC to
perform light work until October 1, 2010; (c) failing to apply
the requirements of Social Security Ruling (“SSR”) 83-20; (d)
failing to disclose new evidence obtained after the hearing to
either plaintiff or her attorney; and (e) failing to properly
explain his credibility determination.
A. Treating Physician Rule
Plaintiff first argues that the ALJ erred by rejecting the
opinion of her treating physician, Dr. Carlesi.
Under the treating physician rule, a treating physician’s
opinion is accorded controlling weight when that opinion is
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.”
3
20 C.F.R. §
404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 31–32 (2d
Cir. 2004).
The ALJ must “give good reasons” for the weight
accorded to the treating physician’s opinion.
See Halloran, 362
F.3d at 32; see also 20 C.F.R. § 404.1527(c)(2) (“We will always
give good reasons in our notice of determination or decision for
the weight we give your treating source’s opinion.”).
Plaintiff contends that the ALJ erred by rejecting Dr.
Carlesi’s “multiple statements of disability and descriptions of
his examinations that showed persistent severe low back and leg
pain, cervical spine pain, and antalgic gait,” and by
“ignor[ing] all of Dr. Carlesi’s statements of disability
between January 24, 2005 and May 16, 2007.”
Memo of Law, pp. 19-20.)
(Doc. #21-1, Pl.
Plaintiff also argues that the ALJ was
required, but failed to consider the factors enumerated in 20
C.F.R. § 404.1527(c)(2)3 when rejecting Dr. Carlesi’s opinion.
The ALJ gave “significant weight” to Dr. Carlesi’s opinion,
with the exception of his “notations” that plaintiff is
“disabled” or “totally disabled,” to which he assigned no
special significance.
He explained:
3If
controlling weight is not given to a treating source’s
opinion, the ALJ considers certain factors in determining the
weight to be assigned. Those factors include: (1) the length of
the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship; (3) the
supportability of the opinion; (4) the opinion’s consistency
with the record; (5) the treating physician’s specialization, if
any; and (6) other factors brought to the ALJ’s attention. 20
C.F.R. § 404.1527(c)(2).
4
Dr. Carlesi’s opinion is consistent with the record as
a whole . . . and is given significant weight.
The
undersigned has considered notations in Dr. Carlesi’s
records that, at first blush, appear to express an
opinion that the claimant is disabled . . . .
However, these notations are in the history and are
based
upon
self-report
not
medical
evidence.
Moreover, to the extent that Dr. Carlesi opined that
the
claimant
is
disabled,
that
opinion
is
an
assessment of the claimant’s disability which is an
issue reserved to the Commissioner . . . and is not
entitled to any special significance.
(R. 21.)
The ALJ correctly concluded that Dr. Carlesi’s notations
that plaintiff is disabled are not medical opinions.4
See
Westcott v. Colvin, No. 12-CV-4183 (FB), 2013 WL 5465609, at *3
(E.D.N.Y. Oct. 1, 2013) (“[S]tatement[s] by a medical source
that you are disabled or unable to work are not medical
opinions.”) (citation and internal quotation marks omitted).
Moreover, even if Dr. Carlesi had intended these notations to
represent his opinion that plaintiff is disabled,5 “[o]pinions on
4Plaintiff
contends that Dr. Carlesi’s statements that
plaintiff is “disabled” or “totally disabled” are more than mere
notations, but rather “were his descriptions of [plaintiff]’s
condition based on his examination at the time he examined her.”
(Pl. Reply Br., Doc. #30, p. 3.) These notations, however,
appear only in the employment and social history sections on
several “Patient Progress Note” forms and appear to represent
plaintiff’s self-reported employment status. (R. 207, 213, 215,
216, 217, 218, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229,
230, 231, 235, 236, 237, 238, 241, 243, 245, 247, 249, 251.)
5In a follow-up note from November 22, 2004, Dr. Carlesi’s
narrative seems to suggest hesitation in opining about
plaintiff’s disability. See R. 242-44 (“I did discuss her case
with her nurse case manager, Susette Sawyer, RN. As I mentioned
to Ms. Sawyer, I felt that the patient did have a certain work
capacity, although I felt that a functional capacity examination
5
some issues, such as . . . . whether [plaintiff] meet[s] the
statutory definition of disability,” are “issues reserved to the
Commissioner.”
20 C.F.R. § 404.1527(d).
“No deference is owed
to a physician’s statement that a claimant is ‘disabled,’
because that determination is a legal conclusion, not a medical
determination, reserved for the ALJ, the Commissioner, and the
courts.”
Serrano v. Astrue, No. 3:10-CV-468 (JCH), 2011 WL
1399465, at *10 (D. Conn. Apr. 12, 2011).
Because Dr. Carlesi’s notations that plaintiff is
“disabled” or “totally disabled” concern an issue reserved to
the Commissioner and are not medical opinions, the ALJ properly
determined that they are not entitled to any special
significance, nor was he required to apply the factors set forth
in 20 C.F.R. § 404.1527(c) when reaching his decision.
See,
e.g., Earl-Buck v. Barnhart, 414 F. Supp. 2d 288, 293 (W.D.N.Y.
2006) (“Because the opinions of [plaintiff’s treating and
examining orthopedic surgeons] that plaintiff was
‘totally
disabled’ are not ‘medical opinions’ under 20 C.F.R. §
404.1527(a)(2), the ALJ was not required to accord them any
significant weight under the treating physician’s rule.
Nor was
and assessment should be done prior to any final assessments on
her disability ratings . . . . [A] functional capacity
examination and assessment should be performed to see if she can
perform the activities of her job. If she is unable to perform
the activities of her job, she should then be vocationally
trained for a new position.”).
6
the ALJ required to state reasons on the record for not doing
so.”).
B. RFC Determination
Plaintiff next argues that the ALJ had no basis for his RFC
determination.
on the claimant.
The initial burden of establishing disability is
See 42 U.S.C. §§ 423(d)(5), 1382c(a)(3)(G).
“Once the claimant demonstrates that [she] is incapable of
performing [her] past work, however, the burden shifts to the
Commissioner to show that the claimant has the residual
functional capacity to perform other substantial gainful
activity in the national economy.”
2d 200, 206 (D. Conn. 1999).
Ruiz v. Apfel, 98 F. Supp.
Plaintiff argues that the ALJ’s
RFC determination--that plaintiff could perform light work until
October 1, 2010--is not supported by substantial evidence and
that he erred by relying on the opinions of the non-examining
state agency physicians over the opinions of her treating and
examining physicians.
Three non-examining state-agency physicians opined that
plaintiff was capable of performing light work.6 (R. 55-58, 399-
6On
September 12, 2007, Dr. Joseph Connelly completed a
physical RFC assessment in which he opined that plaintiff
occasionally could lift 20 pounds; frequently lift 10 pounds;
stand and/or walk for a total of about 6 hours in an 8-hour
workday; sit for about 6 hours in an 8-hour workday;
occasionally climb ramps/stairs, balance, stoop, kneel, crouch,
or crawl; never climb ladders/ropes/scaffolds; and must avoid
concentrated exposure to fumes, odors, dusts, gases, and poor
7
406, 654-61.)
The ALJ assigned these opinions “some weight,”
noting that “[a]lthough those physicians were non-examining, and
therefore their opinions do not as a general matter deserve as
much weight as those of examining or treating physicians, those
opinions do deserve some weight.” (R. 22.)
Contrary to
plaintiff’s assertion, the ALJ’s RFC determination was not based
solely on these non-examining physicians’ opinions.
When
reaching his RFC determination, the ALJ discussed the evidence
of record (including plaintiff’s own statements) over four
single-spaced pages.
He explained his ultimate conclusion as
follows:
[T]he record as a whole supports the conclusion that
the claimant was able to perform light exertional work
with a restriction to occasional postural activities.
On the whole, the treatment records do indicate
complaints of back pain, which would interfere with
the claimant’s ability to work . . . . However, read
in their entirety, the medical records do not document
clear
evidence
of
ongoing
and
significant
signs/symptoms, which would support a restriction
beyond the RFC assigned.
For example, despite
positive results of straight leg raise testing and
restricted range of motion of the spine at the
consultative
examination,
the
claimant
had
no
neurological deficits . . . .
Additionally, despite
complaints of disabling lower extremity pain and her
testimony that she has required a cane to ambulate
since 2005, the evidence shows that the claimant does
not require an assistive device to ambulate.
(R. 22.)
ventilation. (R. 654-61.) On June 9, 2009, Dr. Firooz Golkar
made a substantially similar assessment. (R. 55-58.) Dr. Arthur
Waldman also completed a physical RFC assessment and identified
the same limitations. (R. 399-406.)
8
“[T]he court must decide whether the [RFC] determination is
supported by substantial evidence . . . .
Substantial evidence
is evidence that a reasonable mind would accept as adequate to
support a conclusion; it is more than a ‘mere scintilla.’ . . .
The substantial evidence rule also applies to inferences and
conclusions that are drawn from findings of fact . . . .
The
court may not decide facts, reweigh evidence or substitute its
judgment for that of the Commissioner.” Gonzalez v. Apfel, 23 F.
Supp. 2d 179, 189 (D. Conn. 1998) (citations omitted).
The
court will not second-guess the ALJ’s decision where, as here,
he identified the reasons for his RFC determination and
supported his decision with substantial evidence.
Falcon v.
Colvin, No. 5:12-CV-1164 (FJS), 2014 WL 1312362, at *4 (N.D.N.Y.
Mar. 31, 2014) (“So long as the ALJ properly exercises his
discretion, the court must limit its review to whether
substantial evidence supports the ALJ’s decision; the court may
not second-guess the ALJ’s balancing of the evidence.”); Marquez
v. Colvin, No. 12 CIV. 6819 (PKC), 2013 WL 5568718, at *14
(S.D.N.Y. Oct. 9, 2013) (where “the ALJ conforms with applicable
law and SSA regulations, and the ALJ’s decision is supported by
substantial evidence, this court will not second-guess his
judgment.”).
Here, the ALJ provided a detailed explanation of
his RFC determination and supported his decision with
substantial evidence.
There is no error.
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C. SSR 83-20
Plaintiff next argues that because this is a case where the
ALJ had to infer plaintiff’s onset date from the evidence of
record, SSR 83-20 required the ALJ to employ a medical advisor
to determine the onset date.
Plaintiff submits that a new
hearing is required at which orthopedic and neurosurgical
medical advisors must review the record and guide the ALJ’s
inference.
SSR 83-20 provides:
In some cases, it may be possible, based on the
medical evidence to reasonably infer that the onset of
a disabling impairment(s) occurred some time prior to
the date of the first recorded medical examination,
e.g., the date the claimant stopped working. How long
the disease may be determined to have existed at a
disabling level of severity depends on an informed
judgment of the facts in the particular case.
This
judgment, however, must have a legitimate medical
basis.
At the hearing, the administrative law judge
(ALJ) should call on the services of a medical advisor
when onset must be inferred. If there is information
in the file indicating that additional medical
evidence concerning onset is available, such evidence
should be secured before inferences are made.
SSR 83-20, 1983 WL 31249, at *3 (1983).
“Where . . . the record is ambiguous regarding the onset
date of a claimant’s disability, the ALJ must call on a medical
advisor to assist in inferring a date.”
Larkin v. Comm’r of
Soc. Sec., No. 2:10-CV-291, 2011 WL 4499296, at *6 (D. Vt. Sept.
27, 2011).
“While SSR 83–20 does not mandate that a medical
advisor be called in every case, courts have construed this step
10
to be essential when the record is ambiguous regarding onset
date.”
Parmenter v. Astrue, No. 08-CV-1132, 2010 WL 2884866, at
*5 (N.D.N.Y. Apr. 23, 2010) (citation and internal quotation
marks omitted); see, e.g., Telfair v. Astrue, No. 04CIV. 2122
(JGK), 2007 WL 1522616, at *7 (S.D.N.Y. May 15, 2007) (holding
that “[b]ecause the onset date needed to be inferred and the
medical evidence was unclear,” ALJ erred by not calling upon
services of medical advisor).
Here, the record was not ambiguous as to plaintiff’s onset
date and thus, the ALJ was not required to call upon the
services of a medical advisor.
The ALJ found that plaintiff
became disabled in October 2010.
date.
This was not an arbitrary
The ALJ discussed the specific evidence that supports his
decision as follows:
On October 19, 2010, the claimant was seen by Louise
Resor, M.D., who noted significant right arm/shoulder
deficiencies including a reduction in right arm
strength to three out of five . . . .
Dr. Resor
recommended a right shoulder MRI, performed on
November
9,
2010,
which
revealed
bursitis
and
tendinitis . . . .
In December 2010, the claimant
reported that her back pain was controlled and her
right arm problems had started spontaneous[ly] in
October 2010 . . . .
This is consistent with the
record which . . . indicates that the claimant’s
cervical and lumbar degenerative disc disease was
symptomatic but also stable and controlled . . . .
The claimant did have right arm symptoms, but it was
not until October 2010, when . . . the claimant’s arm
deficiencies reached disabling level.
(R. 21).
11
The record supports the ALJ’s finding that plaintiff’s
right shoulder condition became disabling in October 2010 and
thus, there was no need for a medical advisor to assist the ALJ
in determining plaintiff’s disability onset date.
D. New Evidence
Plaintiff next argues that her due process rights were
violated because she was not permitted to confront new evidence
submitted after the hearing, upon which the ALJ relied.
Plaintiff maintains that there was no mention at the hearing of
Exhibit 12F, which was included in the record before this court.7
Plaintiff did not raise this argument in her complaint.
This
court previously has held that where “plaintiff did not raise a
colorable constitutional claim that her due process rights were
violated in her complaint . . . in which she sought judicial
review under 42 U.S.C. § 405(g) of the Appeals Council’s
dismissal of her case, . . . such a claim is waived.”
Rivera v.
Colvin, No. 3:11-cv-1788 (JGM), at *20 (D. Conn. July 16, 2013).
Plaintiff here did not raise this due process claim in her
complaint and thus, she has waived her right to argue it now.
Exhibit 12F is described in the index to the record as 111
pages from “Stamford Community Health.” The exhibit contains
documents and records including attorney correspondence,
orthopedic surgeon records, neurosurgeon records, workers’
compensation forms, Stamford Hospital records, some of Dr.
Carlesi’s records, and state agency non-examining physician Dr.
Waldman’s 2007 report.
7
12
E. Credibility Assessment
Plaintiff lastly argues that the ALJ erred by not providing
any reasons for his credibility finding.
The ALJ’s credibility
determination begins with the following boilerplate language
found in many ALJ decisions:
After careful consideration of the evidence, the
undersigned
finds
that
the
claimant’s
medically
determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible
prior to October 1, 2010, to the extent they are
inconsistent with the residual functional capacity
assessment.
(R. 19.)
Plaintiff contends that the ALJ erred by making only this
conclusory boilerplate statement without providing any specific
reasons for his credibility assessment.
The boilerplate
language is permissible here because it does not stand alone.
Rather, it is followed by a detailed, six-paragraph explanation
of the evidence the ALJ considered when making his credibility
finding.
See Lumpkin v. Colvin, No. 12-cv-1817(DJS), 2014 WL
4065651, at *10 (D. Conn. Aug. 13, 2014) (notwithstanding use of
boilerplate language, ALJ satisfied standard for assessing
credibility where he also discussed plaintiff’s activities and
inconsistent statements).
Therefore, there is no error with the
ALJ’s credibility determination.
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III. Conclusion
For these reasons, plaintiff’s motion to reverse the
decision of the Commissioner (doc. #21) is DENIED and
defendant’s motion to affirm the decision of the Commissioner
(doc. #27) is GRANTED.
This is not a recommended ruling.
The consent of the
parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.
Appeals can be made directly to the
appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).
SO ORDERED at Hartford, Connecticut this 3rd day of August,
2016.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge
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