Gordon v. Colvin
ORDER denying 17 Motion to Reverse the Decision of the Commissioner and granting 24 Motion to Affirm the Decision of the Commissioner for the reasons set forth in the Ruling attached. Signed by Judge Vanessa L. Bryant on 3/2/2017. (Hudson, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
Civil Action No. 3:14-cv-01348 (VLB)
March 2, 2017
RULING ON THE PLAINTIFF’S MOTION TO REVERSE AND THE DEFENDANT’S
MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
This is an administrative appeal following the denial of the Plaintiff, Melissa
Haman’s, application for disability insurance benefits (“DIB”).1 It is brought
pursuant to 42 U.S.C. §§ 405(g). Melissa Haman2 (“Plaintiff” or “Haman”) has
moved for an order reversing the decision of the Commissioner of the Social
Security Administration (“Commissioner”), or remanding the case for rehearing.
[Dkt. No. 17.] The Commissioner, in turn, has moved for an order affirming the
Under the Social Security Act, the “Commissioner of Social Security is directed
to make findings of fact, and decisions as to the rights of any individual applying
for a payment under [the Act].” 42 U.S.C. § 405(b)(1). The Commissioner’s
authority to make such findings and decisions is delegated to administrative law
judges (“ALJs”). C.F.R. §§ 404.929 et seq. Claimants can in turn appeal an ALJ’s
decision to the Social Security Appeals Council. 20 C.F.R. §§ 404.967 et seq. If
the appeals council declines review or affirms the ALJ opinion, the claimant may
appeal to the United States District Court. Section 205(g) of the Social Security
Act provides that “[t]he court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
The Complaint and the captions of all briefing in this action refer to Plaintiff as
Melissa Gordon. However, claimant introduced herself at the disability hearing as
Melissa Haman [Dkt. No. 11-3 at 31], all briefing (aside from case captions)
references her as Ms. Haman, and the Administrative Law Judge’s decision
references her as Ms. Haman. Id. at 12. The Court accordingly refers to the
claimant as Melissa Haman throughout this decision.
decision. [Dkt. No. 24.] On April 8, 2016 the case was fully briefed. For the
following reasons, Messina’s Motion for an Order Reversing or Remanding the
Commissioner’s Decision [Dkt. No. 17] is DENIED, and the Commissioner’s
Motion to Affirm that Decision [Dkt. No. 24] is GRANTED.
The following facts are taken from the parties’ Joint Stipulation of Facts
(“Joint Stipulation”) [Dkt. No. 37] unless otherwise indicated.
a. Plaintiff’s Background
Haman was born in 1970. [Dkt. No. 11-3 at 33.] She graduated from high
school and has no further education. Id. at 33, 36. She worked as a receptionist
and show room salesperson at Southington Glass Company for eight and a half
years and stopped when she broke her ankle on April 6, 2010. [Id. at 36-38.] She
was last insured on December 31, 2015.3 [Dkt. No. 11-3 at 12.] On August 9, 2011,
Haman applied for a Period of Disability and Disability Insurance Benefits. [Dkt.
No. 11-6 at 189.] On October 19, 2011, a disability adjudicator in the Social
Security Administration denied her initial request for disability benefits and
thereafter denied her request for reconsideration. [Dkt. No. 11-4 at 71, 85.]
On January 22, 2013, Haman appeared (with counsel) for a hearing before
an Administrative Law Judge (“ALJ”). [Dkt. No. 11-3 at 29.] On February 19,
2013, the ALJ issued a decision denying benefits. Id. at 12. On July 12, 2014, the
In order to be entitled to disability benefits, a plaintiff must “have enough social
security earnings to be insured for disability, as described in § 404.130.” 20 C.F.R.
§ 404.315(a)(1); see also Brockway v. Barnhart, 94 F. App’x 25, 27 (2d Cir. 2004)
(noting a claimant’s eligibility for Social Security disability insurance benefits
terminates on the claimant’s date last insured).
appeals council denied Messina’s request for review of that decision thereby
making the ALJ’s decision the final decision of the Commissioner. Id. at 1. This
b. Plaintiff’s Medical History
On February 11, 2010, Haman visited Dr. Phil Watsky, her primary care
physician, complaining of anxiety and fibromyalgia. [Dkt. No. 11-8 at 316.] Dr.
Watsky noted Haman experienced leg aches, exhaustion, and dizziness, and
indicated an impression that she suffered from fibromyalgia. [Dkt. No. 11-8 at
On March 5, 2010, Haman visited Ellen Babcock, a therapist with the Bristol
Hospital Counseling Center. Id. at 324. Ms. Babcock recommended Haman
practice coping skills to manage her anxiety and depression. Id. On March 10,
2010, Ms. Babcock conducted an individual therapy session to discuss Haman’s
feelings of depression, frustration, and anger. Id. at 322.
On April 5, 2010, Haman fell and fractured her right ankle. [Dkt. No. 11-8 at
273.] That day, Dr. Frank Gerratana surgically added stabilizing hardware to her
ankle to address the fracture. Id. at 286, 310. On May 2, 2010, Haman tripped
again, causing “a snapping sensation in her ankle” and “increased pain.” Id. at
310. Dr. Gerratana examined her the following day and noted some swelling,
moderately restricted motion, and some diffuse tenderness of the ankle, but xrays indicated the stabilizing hardware was still in place. Id. at 310. Dr. Gerratana
instructed Haman to continue using a CAM walker (a medical walking boot) and
report back for reassessment in one month. Id. at 310. At her follow-up
appointment on June 3, 2010, Dr. Gerratana noted continued ankle discomfort
and stiffness, but x-rays indicated further healing. Id. at 309. Dr. Gerratana
instructed her to continue using her CAM walker as well as an ankle brace. Id.
On month later, on July 15, 2010, Dr. Gerratana noted Haman limped, had some
right ankle weakness, and still took Tylenol and ibuprofen for pain. Id. at 308. Xrays revealed the right ankle fracture had healed and showed her right knee was
normal. Id. Dr. Gerratana instructed Haman to begin physical therapy. Id. On
August 19, 2010, Dr. Gerratana noted physical therapy had “improved motion and
strength of her ankle,” but had not completely restored its range of motion. Id. at
307. He ordered Haman to continue the exercise program. Id.
On September 1, 2010, Haman returned to Ms. Babcock for the first time
since her ankle surgery, and reported continued anxiety and depressed mood. Id.
at 323. Ms. Babcock rated Haman’s Global Assessment of Functioning (“GAF”)
score as 52 out of 100 and recommended continued psychiatric treatment to
stabilize her mentally and help her gain the skills needed to maximize her
functional level. Id.
On December 2, 2010, Dr. Gerratana noted increased range of motion in
Haman’s right ankle, determined she would “be allowed increased activities,” and
“expected that she will continue to improve with time.” Id. at 305.
On December 3, 2010, Haman ceased psychiatric treatment at Bristol
Hospital Counseling Center. Id. at 321. Haman reported she would no longer
attend treatment because she lost her job after she fractured her ankle and had
no source of transportation to counseling appointments. Id. at 321. Discharge
notes indicate Haman’s symptoms of anxiety and depression “waxed and waned”
throughout her treatment. Id. Ms. Babcock included in Haman’s final diagnosis
that she experienced post-traumatic stress disorder4 and mood disorder in
addition to anxiety and depression. Id. She rated Haman’s treatment goals as
“generally met to not met” and characterized her treatment as “successful or
partially successful.” Id.
On March 4, 2011, Haman reported residual right ankle discomfort as well
as knee discomfort which worsened with activity or changes in the weather. Id. at
304. Dr. Gerratana noted she walked with a limp and had some diffuse
tenderness in her knees; x-rays revealed some right knee diffuse osteoporosis.
Id. Three months later, on June 13, 2011, Dr. Gerratana noted Haman continued
to walk with a limp, had mild right ankle swelling and some tenderness, and had
slightly decreased range of motion in her ankle. Id. at 303. X-rays showed the
right ankle was “solidly united.” Id. Dr. Gerratana also noted mildly restricted
motion and some tenderness in Haman’s knees, gave her heel lifts, and
instructed her to continue taking Tylenol and Motrin. Id.
On August 12, 2011, Dr. Watsky examined Haman and found her legs were
puffy and she had multiple tender points.5 Id. He prescribed Cymbalta for her
Medical records attribute Haman’s post-traumatic stress disorder to a motor
vehicle accident in 1996 in which Haman injured her back and her boyfriend was
paralyzed. [Dkt. No. 11-3 at 342.]
A tender point exam may be used to diagnose fibromyalgia, and consists of the
physician checking 18 specific points on a person’s body and determining how
many are painful when pressed firmly. Fibromyalgia: Tests and Diagnosis, MAYO
On September 21, 2011, Dr. Sabeen Anwar, a rheumatologist, examined
Haman on referral from Dr. Gerratana. Id. at 325. She reviewed Haman’s medical
history including her ankle fracture and residual pain, fibromyalgia diagnosis in
1993, and related musculoskeletal pain and stiffness in her fingers, knees, ankles,
hips, and upper back. Id. Dr. Anwar found no evidence of synovitis,6 restricted
range of motion only in her right ankle, tenderness in her hands, and several
tender points. Id. at 325-26. Dr. Anwar assessed Haman has “5/5 upper and
lower extremity strength with the exception of the right quadricepts which is
limited slightly due to pain.” Id. at 326. X-rays revealed diffuse osteoarthritis of
the right knee. Id. Dr. Anwar recommended a gradual exercise regimen, yoga,
and tai chi. Id.
On March 12, 2012, Haman visited the Grove Hill Medical Center
Orthopedic Surgery and Sports Medicine Center (Dr. Anwar’s place of work)
regarding her continued ankle discomfort and fibromyalgia pain. Id. at 345. The
examiner7 found Haman continued to experience decreased range of motion in
her ankle which caused her to limp. Id. Haman also reported she was not
CLINIC, http://www.mayoclinic.org/diseases-conditions/fibromyalgia/basics/testsdiagnosis/con-20019243 (last visited February 10, 2017).
Synovitis is inflammation of connective tissue lining synovial joints. See
Synovitis Definition, MERRIAM-WEBSTER DICTIONARY, https://www.merriamwebster.com/dictionary/synovitis (last visited Feb. 6, 2017). Synovial joints allow
for movement, for example, the shoulder or knee. See Diarthrosis Definition,
MERRIAM-WEBSTER DICTIONARY, https://www.merriamwebster.com/dictionary/diarthrosis#medicalDictionary (last visited Feb. 6, 2017).
Notes from the March 12 visit are titled “Medical Assistant Notes” but do not
identify the examining personnel.
satisfied with Dr. Anwar’s treatment8 and would be seeking a different
On March 22, 2012, Dr. Nicholas Formica, a rheumatologist, examined
Haman and found she had a “slight antalgic9 gait, although [she] walked without
the use of a cane,” and had “slight soft tissue swelling about the right ankle
region.” Id. at 349. Dr. Formica found Haman had “18/18 tender points . . . which
were quite significant,” as well as “diffuse mild to moderate muscle tenderness”
and decreased range of motion of the right ankle. Id. at 350. Dr. Formica found
no obvious hand swelling but some mild tenderness. Id. Haman’s motor
strength was intact. Id. Dr. Formica reviewed results of lab tests Dr. Anwar had
conducted and found no inflammation, further confirming his fibromyalgia
diagnosis. Id. He also noted that Haman had difficulty sleeping. Id. Dr. Formica
recommended an alternative non-steroidal agent to manage Haman’s symptoms
and an alternative medication to aid her sleep if medicine prescribed by Dr.
Gerratana proved ineffective. Id.
On May 31, 2012, Dr. Formica examined Haman again and confirmed she
still had “18 out of 18 tender points [and] diffuse muscle tenderness . . . in all
extremities.” Id. at 360. Dr. Formica prescribed pain medication to manage her
fibromyalgia. Id. at 361. However, that medication caused Haman’s legs to swell,
and Dr. Formica instructed her to stop taking it on June 8, 2012. Id. at 356.
Haman testified at the disability hearing that she left Dr. Anwar’s care because
personnel at that doctor’s office were rude to her. [Dkt. No. 11-3 at 15.]
An antalgic gait is “marked by or being an unnatural position or movement
assumed by someone to minimize or alleviate pain or discomfort (as in the
leg or back).” Antalgic Definition, Merriam-Webster Dictionary,
https://www.merriam-webster.com/medical/antalgic (last visited February 8, 2017).
On June 25, 2012, Dr. Gerratana found Haman’s right ankle had become
symptomatic of posttraumatic arthritis, with mildly restricted range of motion and
some diffuse tenderness. Id. at 379.
On September 6, 2012, Dr. Formica noted Haman had “normal strength,
normal gait, . . . [and] no significant joint swelling.” Id. at 375. He instructed
Haman to take ibuprofen and Tylenol together to manage her fibromyalgia since
she could not afford the cost of Lyrica. Id.
On September 24, 2012, Dr. Gerratana noted Haman’s continued limp,
moderately restricted range of motion and diffuse tenderness in her right ankle
and knees. Id. at 378. Otherwise, Haman had “good motion, strength, and
stability” in her left ankle and knees, good hip motion, and “appropriate mood,
affect, orientation, and coordination.” Id. Dr. Gerratana supplied Haman with
heel lifts and instructed her to continue her current medications. Id.
On October 12, 2012, Dr. Formica noted Haman continued to have 18 out of
18 tender points and diffuse muscle tenderness in all extremities to a moderate
degree. Id. at 371. Dr. Formica prescribed Flexeril for her fibromyalgia pain. Id.
On December 6, 2012, Dr. Formica noted that Haman’s “overall condition
ha[d] improved slightly since she is using the Flexeril” and her sleep pattern had
improved. Id. at 367. However, Haman’s overall pain registered as ten out of ten,
she had 18 out of 18 tender points, and she continued to experience diffuse
muscle tenderness in all extremities. Id. at 367-68. Dr. Formica also noted
Haman was “quite anxious about her upcoming hearing” regarding disability
eligibility. Id. at 369. He instructed Haman to continue her current therapy. Id. at
c. Medical Examinations and Opinions
The Plaintiff underwent several independent medical examinations by nontreating medical experts. Those experts, as well as Haman's treating physicians,
rendered opinions which follow.
Hamon was referred by Disability Determination Services for a mental
status examination by consulting psychologist Dr. Diana Badillo Martinez, Ph.D
who reviewed Haman’s medical and psychiatric history, conducted a psychiatric
examination and rendered an opinion. [Dkt. No. 11-8 at 342.] Dr. Badillo Martinez
assessed that Haman is “polite, cooperative, and engages easily,” has a normal
affect, clear but slow speech, and average attention span. Id. at 342-43. However,
Dr. Badillo Martinez also found Haman had difficulty sleeping, below average
thought processes, weak reasoning ability, and feelings of inadequacy, with
overall intellectual abilities within the low to average range. Id. at 343. Dr. Badillo
Martinez noted Haman’s low intellectual ability “does not facilitate recovery” from
her physical problems. Id. She diagnosed Haman with pain disorder associated
with psychological medical factors, panic disorder, and personality disorder not
otherwise specified (“NOS”). Id. at 344. Dr. Badillo Martinez recommended
individual psychotherapy to gain awareness of the relationship between her
emotions and physical distress, improve her coping skills, and help her to
overcome her feelings of incapacity. Id. Dr. Badillo Martinez opined that Haman
could engage in sedentary work on a part-time basis given her condition. Id.
On October 12, 2012, Dr. Formica, who had been treating Haman since
March 22, 2012, rendered an opinion on Haman’s physical limitations. [Dkt. No.
11-8 at 365.] He explained that fibromyalgia patients experience severe fatigue,
poor concentration, anxiety, poor sleep, and difficulty coping with normal
activities of daily life, as well as muscular pain and tenderness. Id. He found
Haman’s daily limitations and chronic pain could be exacerbated unpredictably
and a flare up of her symptoms could last seven to ten days. Id. Dr. Formica also
stated Haman has a permanent limp, a seven percent disability of her left knee
due to a fall in 2001, and pain in her right ankle. Id. As a result, Dr. Formica
concluded Haman is not a candidate for employment of any kind. Id.
State agency consultant Dr. Khurshid Khan reviewed the Plaintiff's medical
record and determined Haman had multiple medically determinable impairments
including fractures of a lower limb, fibromyalgia, osteoporosis, anxiety,
personality disorder, and somatoform disorder.10 [Dkt. No. 11-4 at 76.] He found
Haman retained the Residual Functional Capacity (“RFC) to occasionally lift 20
pounds, frequently lift 10 pounds, stand, walk, or sit for six hours in an eight-hour
workday, and push or pull an unlimited amount. Id. at 77. He opined that Haman
could occasionally climb ramps, stairs, ladders, ropes, or scaffolds, could
frequently balance, stoop, or kneel, and could occasionally crouch or crawl. Id. at
A somatoform disorder is “any of a group of psychological disorders . . .
marked by physical complaints for which no organic or physiological explanation
is found and for which there is a strong likelihood that psychological factors are
involved. Somatoform Disorder Definition, Merriam-Webster Dictionary,
https://www.merriam-webster.com/medical/somatoform%20disorder (last viewed
February 12, 2017).
78-79. Limitations were attributed to Haman’s fibromyalgia and fractured right
ankle. Id. at 78.
Dr. Pamela Fadakar, PsyD, examined Haman's mental health records in
supplementation of Dr. Khan’s review to determine whether Haman had any
qualifying mental health conditions and their impact on her residual functional
capacity. In her opinion, Id. at 76-77. none of Haman’s mental impairments met or
equaled the requirements of a listed impairment, as Haman was only mildly
restricted in activities of daily living and social functioning and had no recorded
episodes of decompensation. Id. Dr. Fadakar opined that Haman’s mental
limitations render her moderately limited in ability to follow detailed instructions,
maintain attention or concentration for extended periods, perform at a consistent
pace without an unreasonable number of rest periods, or complete a normal
workday without interruptions from psychologically-based symptoms. Id. at 80.
She opined that Haman could “perform simple/routine tasks for 2 [hour] periods
during a [normal] work day/ [week] in a setting [without] strict time or production
requirements” and could “adhere to a set schedule up to her physical limits and
work around others,” but would “have difficulty performing more complex tasks
in a timely manner.” Id. at 80. Dr. Fadakar also opined that Haman is “better
suited for non-public work” but can “relate adequately w[ith] supervisors and
coworkers on a superficial basis and request help when needed.” Id. at 80.
Dr. Carol Honeychurch, a State agency consultant, reviewed the medical
record, found Haman has three medically determinable impairments and
assessed her Residual Functional Capacity (“RFC”). Based on her findings that
Haman had a fracture of a lower limb, fibromyalgia, anxiety, and personality
disorders, all of which were medically determinable impairments, Dr.
Honeychurch opined that Haman retains the RFC to occasionally lift 20 pounds,
frequently lift 10 pounds, stand, walk, or sit for six hours in an eight-hour
workday, and is unlimited in ability to push or pull. Id. at 91-92. She opined that
Haman could occasionally climb ramps or stairs, could never climb ladders,
ropes, or scaffolds, and could occasionally balance, stoop, kneel, crouch or
crawl. Id. at 92-93. Limitations were identified as arising from Haman’s
fibromyalgia and fractured right ankle. Id. at 93.
Dr. Warren Leib provided a mental health analysis to supplement Dr.
Honeychurch’s analysis. He found Haman’s anxiety and personality disorders do
not qualify as listed impairments, and found her impairments render her
moderately limited in ability to follow detailed instructions, maintain attention or
concentration for extended periods, perform at a consistent pace without an
unreasonable number of rest periods, or complete a normal workday without
interruptions from psychologically-based symptoms. Id. at 94-95. He explained
that Haman could perform simple or routine tasks for two hours at a time during a
normal workday in a setting without strict time or production requirements, and
could adhere to a set schedule up to her physical limits and work around others,
but would have difficulty performing more complex tasks in a timely manner. Id.
at 95. In addition, Dr. Leib noted Haman’s moderately limited ability to interact
with the general public appropriately made her better suited for work in a nonpublic setting, although she could relate adequately with supervisors and
coworkers on a superficial basis. Id. at 95. Dr. Leib also noted Haman is
moderately limited in her ability to respond appropriately to changes in the work
setting, but could adapt to minor or routine work adjustments, travel, avoid safety
hazards, and set simple work goals. Id. at 95.
d. The Hearing Before the ALJ
On January 22, 2012, ALJ James E. Thomas (“ALJ Thomas”) held a hearing
to consider Haman’s disability claim. [Dkt. No. 11-3 at 31.] Haman was
represented by counsel. Id. at 34. Haman testified she last worked on April 6,
2010, as a receptionist and show room salesperson at Southington Glass
Company. Id. at 36-37. She worked at Southington Glass for eight and a half
years answering phones, scheduling appointments, and handling sales. Id. at 3738. She sometimes lifted and carried glass, but asked for assistance lifting items
weighing over eight to ten pounds due to her fibromyalgia. Id. at 43-44. She
stopped working in April 2010 when she tripped and fractured her ankle. Id. at 38.
Haman explained she completed five months of physical therapy after her ankle
surgery and continued to practice at-home physical therapy as of the hearing
date. Id. at 39. She still had residual pain in her ankle, as well as fibromyalgia
pain “throughout [her] whole body every minute of every day.” Id. at 39-40. Her
fibromyalgia pain worsened after her 2010 accident. Id. at 44.
Haman also described her daily living conditions. She walks with a cane
when she needs to leave her house and the weather is inclement or her legs are
swollen. Id. at 40-41. She explained she walks with a limp and walking is more
difficult when her legs swell. Id. With a cane, she can walk “maybe a quarter
mile” at a time. Id. at 51. Haman also noted her left knee is arthritic and prevents
her from kneeling, squatting, bending, or running. Id. at 41-42.
Haman added that she gets “really, really bad headaches to the point that
[she] can’t think straight.” Id. at 47. She also testified she is more forgetful than
she used to be, and has to write things down to remember them. Id. Her
headaches last three to four days at a time and occur four to five times per
month. Id. at 47-48. She takes ibuprofen or Tylenol to manage her headaches but
is allergic to migraine medication. Id. at 48.
Haman’s average daily pain level is a six or seven out of ten, but on “really
bad days” her pain level rises to nine. Id. at 49. Weather affects her pain level; in
the winter, Haman has a “really bad” day about eighteen to twenty out of every
thirty days. Id. Her fibromyalgia pain, combined with anxiety, “keeps [her] from
doing daily life” and has led her not to leave her house alone anymore. Id. at 4849. When her fibromyalgia pain is particularly bad, Haman lays down for twenty
to thirty minutes to “try to calm down.” Id. at 53. She stated she lays down due
to fibromyalgia pain one to four times per day. Id.
Haman also testified she has arthritis in her hands11 and her fingers swell
roughly twice a week, which makes it difficult for her to pick things up, hold onto
things, or wash her hair. Id at 56, 63. When her fingers are swollen, Haman can
use a computer for half an hour at a time. Id. at 57.
ALJ Thomas asked Haman to clarify who told her she had arthritis in her hands,
noting Dr. Anwar evaluated an x-ray of Haman’s hands and found “no significant
arthritis.” Id. at 62. Haman responded that Dr. Gerratana “verified the arthritis in
the knees and the ankle and I showed him my hands and he says basically the
same thing.” Id. Haman added that arthritis runs in her family. Id.
Haman testified she has had anxiety since she was fifteen years old but
stopped seeing a therapist after her fall in April 2010. Id. at 53-54. Haman
stopped attending therapy because she was using crutches which made it “hard
to get around” and could not drive. Id. Once she was sufficiently healed to go to
therapy again it had been over a year since her last appointment. Id. at 54.
Because of the delay, she would have had to pay for a renewed intake meeting,
which she could not afford. Id. at 54. As a result, Haman stopped participating
in therapy. Id. However, her primary care physician, Dr. Watsky, prescribes her
anxiety medication. Id.
Haman stated her anxiety caused her to get “very nervous” and
“hyperventilate” when she worked at Southington Glass Company. Id. at 54-54.
Her anxiety attacks occur “for no major reason,” and continue to occur three to
four times each week, lasting up to two and a half hours each. Id. at 55.
Haman lives with her boyfriend in a one-level home. Id. at 35-36. On a
typical morning, she wakes up and stretches to relieve her stiffness, takes
medication, and eats breakfast. Id. at 58. Depending on her pain level, she
spends time during the day on the computer or watching television. Id. at 58-59.
She does “light and simple” cooking, washes and dries her dishes. Id. at 59. She
can comfortably lift two to three pounds at a time. Id. at 51. Haman’s boyfriend
does the laundry because Haman is afraid she might fall walking down the stairs
to the laundry machines in the basement, but Haman folds the laundry when he
brings it back upstairs. Id. at 59. Haman does go to the basement if her
boyfriend is not home and she needs to get something, but she avoids doing so if
possible. Id. at 59-60.
It is painful for Haman to raise her arms above her head, for example to
shower or to put away dishes in high cabinets. Id. at 52. She keeps dishes in low
cabinets so she can put them away after washing with minimal pain. Id. Haman
also has difficulty bending down because her medications make her dizzy. Id.
Haman goes to the grocery store with her father every week, pushes the cart, and
lifts some lightweight items off of shelves. Id. at 51-52, 60. Her father lifts heavier
items and helps her put groceries away at home. Id. at 60.
During the hearing, Haman asked to stand because she was “really sore.”
Id. at 50. Haman explained she is generally able to sit between five and twenty
minutes at a time, depending on the day. Id. at 51.
In addition, the Commissioner called a Vocational Expert, Renee Jubrey,
who testified at the hearing. Id. at 64. Ms. Jubrey also characterized Haman’s
past work as a composite of sedentary, semi-skilled work as a receptionist and
light, low-level semi-skilled work as a salesperson. Id. at 64-65. Given Haman’s
age, vocational background, educational level, and limitations, Ms. Jubrey opined
that she could not perform her past work. Id. at 65. However, Ms. Jubrey stated a
person with Haman’s background and limitations could work as a marker (one
who works in the back room of a retail establishment pricing and hanging up
items), routing clerk (one who places packages into bins based on zip code at a
shipping store), or mail clerk. Id. at 66-67. All three jobs are light, unskilled work
that exist in significant numbers in the national and local economy. Id. at 66.
Ms. Jubrey testified that, were Haman to require an option to sit or stand at
will, avoid interactions with the public, and avoid production requirements, she
could only work as a mail clerk. Id. at 66-67. In addition, she opined that no jobs
would be available if, instead of an option to sit or stand at will, Haman required
the ability to sit for six hours and stand for two hours every workday, as well as
the ability to avoid interactions with the public. Id. at 68. Finally, Ms. Jubrey
stated no jobs would be available for a candidate with Haman’s background and
limitations that would allow the candidate to be off-task for impairment-related
reasons for fifteen percent of each workday. Id.
e. The ALJ’s Decision
On February 19, 2013, ALJ Thomas issued a decision finding Haman was
not disabled within the meaning of the Social Security Act from April 6, 2010, the
alleged date of onset of disability, through the date of the decision. [Dkt. No. 11-3
ALJ Thomas found Haman had severe impairments including fibromyalgia,
residual effects of fracture of the lower extremity, osteoarthritis, affective
disorder, anxiety disorder, and personality disorder. Id. at 14. He found Haman’s
impairments did not meet or medically equal the severity of a listed impairment
under 20 C.F.R. 404, Subpart P, Appendix 1, nor did any combination of Haman’s
impairments medically equal a listed impairment. Id. at 15. ALJ Thomas
especially considered whether the combination of fibromyalgia and residual
effects of Haman’s right ankle fracture met or equalled the requirements of listing
1.02, concerning major dysfunction of a joint. Id. However, listing 1.02 requires
impairment of one major peripheral weight bearing joint resulting in the inability
to ambulate effectively, or involving one major peripheral joint in each upper
extremity causing inability to perform fine and gross movements effectively. Id.
ALJ Thomas determined Haman can ambulate without an assistive device and
there is “no evidence of arthritic changes in her upper extremities and she has
full upper extremity strength.” Id. Accordingly, ALJ Thomas found Haman did
not meet the requirements of listing 1.02.
ALJ Thomas also considered whether Haman’s mental impairments met or
equalled the requirements of listings 12.04, 12.06, or 12.08. Id. For a mental
impairment to qualify as a listed impairment, it must cause marked difficulties in
at least two of the following: daily living, social functioning, maintaining
concentration, persistence, or pace, or repeated episodes of decompensation,
each of extended duration. Id. Marked difficulties are “more than moderate but
less than extreme.” Id.
ALJ Thomas considered an Activities of Daily Living Report Haman
completed on August 16, 2011, stating she could go to the bathroom, brush her
teeth and hair, get dressed, stretch, have breakfast, check her email, look for
jobs, watch television, water flowers, do laundry and housework, make dinner,
shower, read, and take medication without assistance. Id. at 15-16. Accordingly,
the ALJ found she has no more than mild restriction of daily activities. Id.
ALJ Thomas found Haman has no more than moderate difficulties with
social functioning. Id. at 16. He reasoned Haman’s hearing testimony that she
has anxiety attacks three to four times per week was counterbalanced by Dr.
Badillo Martinez’s opinion that Haman was polite, cooperative, easily engaged,
and had normal affect. Id.
The ALJ also found Haman has moderate difficulties with concentration,
persistence, or pace based on Haman’s hearing testimony that she is forgetful
and Dr. Badillo Martinez’s opinion that Haman has below-average thought
processes, weak reasoning, low-to-average intellect, and an average attention
span. Id. at 16.
Finally, ALJ Alger noted no instances of decompensation in the medical
record and no episodes requiring a significant alteration of psychiatric
medication or a more structured psychological support system, such as
hospitalization for a prolonged period. Id.
Because Haman did not experience marked limitation in at least two of the
four categories of mental impairment, Haman did not meet the qualifications of
the listed psychiatric impairments.12 Id.
Having found no listed impairment, ALJ Thomas next considered Haman’s
RFC. ALJ Thomas considered Haman’s hearing testimony regarding her
limitations, including her testimony that she can only walk one quarter of a mile
with a cane. Id. at 18. However, he found Haman’s testimony inconsistent with
ALJ Thomas further noted that even if Haman showed marked impairment in
two of the mental health limitation categories, the listed psychiatric impairments
also require repeated episodes of decompensation or one or more years’ inability
to function outside of a highly supportive living environment. Id. at 16-17. ALJ
Thomas found Haman did not require a highly supportive living environment, as
she testified she can do light cooking and housework, use a computer, and leave
her home to go to medical appointments or to go grocery shopping. Id. As
discussed above, Haman has also had no episodes of decompensation. Id.
Accordingly, ALJ Thomas found Haman fails to meet this listing requirement as
the medical record. Id. at 18. For example, ALJ Thomas considered Dr.
Gerratana’s July 15, 2010 observation that Haman walked with a limp and had
some weakness in her right ankle but had good sensation in her foot and good
motion and stability in her right knee. [Id. (discussing 11-8 at 308).] He also
considered Dr. Gerratana’s August 19, 2010 analysis that physical therapy
improved Haman’s range of motion and ankle strength, which therapy – as noted
above - Haman testified she continues to practice at home. [Id. (discussing Dkt.
No. 11-8 at 307); Id. at 39-40.] ALJ Thomas noted that by October 1, 2010, Haman
had only mildly restricted range of motion in her ankle with some weakness and
tenderness. [Id.; see also Dkt. No. 11-8 at 305 (December 2, 2010 treatment notes
showing improved range of motion in ankle).]
ALJ Thomas also considered Haman’s complaints of knee discomfort, but
again found her complaints inconsistent with medical notes throughout the
relevant time period indicating she could walk without a cane with either a
slightly antalgic gait or a normal gait. Id. at 18-20. In particular, he considered a
September 21, 2011 examination which revealed a normal range of motion in
Haman’s knees, and multiple examinations throughout the relevant period
recording normal strength. [Id. at 19 (discussing Dkt. No. 11-8 at 325).] He also
noted medical examinations revealed no significant boney abnormalities except
some right knee diffuse osteoporosis. [Id. at 18 (discussing Dkt. No. 11-8 at 304).]
ALJ Thomas also noted that Haman asserted her fingers swell and restrict
her ability to pick up and hold objects, but that x-rays of Haman’s hands showed
no significant arthritis or inflammatory conditions. Id. at 19. Similarly, he found
no evidence of ongoing treatment for Haman’s asserted headaches. Id. at 21.
Regarding Haman’s fibromyalgia, ALJ Thomas found Haman’s testimony
partially credible regarding the intensity, persistence, and limiting effects of her
condition based on “the constellation of symptoms associated with a
fibromyalgia diagnosis” and the medical record indicating her diagnosis and
treatment are longstanding. Id. at 21. ALJ Thomas also considered Haman’s full
treatment history, including Dr. Formica’s observation that she had 18 out of 18
tender points. Id. at 19. In addition, ALJ Thomas noted that while Haman
experienced negative side effects with some medications, her condition improved
with others. Id. at 20. For example, the ALJ cited May 31, 2012 treatment notes
stating she appeared comfortable, had normal gait and strength, mild to moderate
diffuse muscle tenderness in all extremities, and no joint warmth or synovitis.
[Id. at 20 (discussing Dkt. No. 11-8 at 360).] Based on Haman’s testimony and the
medical evidence, ALJ Thomas found her physically able to perform a light
exertional level of work activity with no climbing of ropes, ladders, or scaffolds,
no stooping, balancing, kneeling, crouching, or crawling, and only occasional
climbing of ramps or stairs. Id. at 21.
As to Haman’s mental health, ALJ Thomas noted Haman received
psychiatric treatment from March 18, 2010 through December 2, 2010. Id. at 20.
Her Global Assessment Functioning (“GAF”) score during that time ranged from
52 to 55, indicating “moderate symptoms/difficulties in functioning.” [Id. (citing
Diagnostic and Statistical Manual of Mental Disorders, 4th Edition).] When she
was discharged from treatment, ALJ Thomas noted her treatment was rated as
“successful or partially successful.” Id. In addition, ALJ Thomas considered Dr.
Badillo Martinez’s evaluation which described Haman as polite, cooperative,
easily engaged, with clear but slow speech and concrete but below average
thought processes. Id. at 21. Although there are limited records regarding
Haman’s psychiatric condition because she ceased treatment in December 2010,
ALJ Thomas “resolved the mental health impairment in the claimant’s favor” and
determined she has the “capacity for light work . . . further limited to unskilled
jobs consisting of simple routine, repetitive tasks with short simple instructions
and few workplace changes, requiring an attention span to perform simple work
tasks for no longer than two-hour intervals throughout an eight-hour workday,
with occasional superficial interaction with coworkers and no high-paced
production demands. Id. at 21.
ALJ Thomas also weighed the medical opinions in the record, including Dr.
Formica’s October 12, 2012 letter opining that Haman is not a candidate for any
employment. Id. at 21-22. ALJ Thomas found Dr. Formica’s opinion was not
supported by his own treatment notes which “consistently detail full strength
[and] normal gait,” with periodically slightly antalgic gait. Id. at 22. In addition,
Dr. Formica’s opinion conflicted with Dr. Badillo Martinez’s consultative
examination finding Haman had an average attention span. Id. Finally, ALJ
Thomas noted Dr. Formica only had a seven-month treatment history with
Haman, rendering his assessment less reliable. Id. Overall, he afforded Dr.
Formica’s opinion little weight. Id.
ALJ Thomas afforded great weight to the objective psychiatric records
indicating Haman had a GAF score between 52 and 55, corresponding with
moderate symptoms or impairments in functioning. Id. The ALJ found the
scores gave “a general sense of the claimant’s mental condition and as such are
an accurate representation of the claimant’s mental status when properly
ALJ Thomas afforded Dr. Badillo Martinez’s objective findings some
weight, as they were consistent with Haman’s GAF scores and the medical
evidence. Id. However, he afforded little weight to her conclusion that Haman
could perform only part-time sedentary work, as the opinion regarding Haman’s
physical limitations was outside her area of expertise as a consultative
psychiatric physician. Id.
ALJ Thomas also considered the State agency consultants’ opinions of
Haman’s limitations upon review of the medical record. Id. at 22. He afforded
great weight to their opinions as consistent with the medical record as a whole,
and noted their expertise regarding the disability program. Id.
Based on Haman’s RFC, ALJ Thomas found her incapable of performing
her past relevant work, which was light, semi-skilled work. Id. at 22-23. However,
considering her age, education, work experience, and RFC, ALJ Thomas found
Haman capable of working as a marker, routing clerk, or mail clerk. Id. at 23-24.
ALJ Thomas considered Vocational Expert Jubrey’s testimony that those jobs are
all light exertional work within the parameters of Haman’s additional limitations
and exist in significant numbers in the national and local economy. Id. at 24.
Because Haman could perform those jobs, ALJ Thomas concluded she was not
disabled within the meaning of the Social Security Act. Id.
Standard of Law
The Social Security Act establishes that benefits are payable to individuals
who have a disability. 42 U.S.C. § 423(a)(1). “The term ‘disability’ means . . . [an]
inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . .” 42 U.S.C. § 423(d)(1). A
person must be disabled within the meaning of the Social Security Act and not
any other law or regulation. A Social Security disability determination based on
other laws or regulations is not dispositive of whether a person is disabled under
the Social Security Act. 20 C.F.R. §§ 404.1504, 416.904. That section provides
that “[a] determination made by another agency that you are disabled. . . is not
binding on [the] Social Security Administration.” See also, Musgrave v. Sullivan,
966 F.2d 1371, 1375, 37 Soc. Sec. Rep. Serv. 542, Unempl. Ins. Rep. (CCH) P
16760A (10th Cir. 1992) (ALJ did not err by not giving more weight to VA finding
that claimant was 20% disabled). This position has been reinforced by the
amendment to the regulation which now states that “on or after March 27, 2017,
we will not provide any analysis in our determination or decision about a decision
made by any other governmental agency or a nongovernmental entity about
whether you are disabled, blind, employable, or entitled to any benefits.” 20
C.F.R. §§ 404.1504; 416.904. Thus the weight given to the opinion of an expert
who is familiar with the Social Security Act program is entitled to greater weight
than the opinion of an expert who is unfamiliar with the program.
In order to determine whether a claimant is disabled within the meaning of
the SSA, the ALJ must follow a five-step evaluation process as promulgated by
the Commissioner.13 A person is disabled under the Act when their impairment is
“of such severity that he is not only unable to do his previous work but cannot . .
. engage in any other kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d)(2)(A). “[W]ork which exists in the national
economy means work which exists in significant numbers either in the region
where such individual lives or in several regions of the country.” Id.14
“A district court reviewing a final . . . decision [of the Commissioner of
Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.§
405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842
(2d Cir. 1981). “The findings of the Commissioner of Social Security as to any
oul13 The five steps are as follows: (1) The Commissioner considers whether the
claimant is currently engaged in substantial gainful activity; (2) if not, the
Commissioner considers whether the claimant has a “severe impairment” which
limits his or her mental or physical ability to do basic work activities; (3) if the
claimant has a “severe impairment,” the Commissioner must ask whether, based
solely on the medical evidence, the claimant has an impairment listed in
Appendix 1 of the regulations. If the claimant has one of these enumerated
impairments, the Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and work experience; (4) if
the impairment is not “listed” in the regulations, the Commissioner then asks
whether, despite the claimant's severe impairment, he or she has the residual
functional capacity to perform his or her past work; and (5) if the claimant is
unable to perform his or her past work, the Commissioner then determines
whether there is other work which the claimant could perform. The Commissioner
bears the burden of proof on this last step, while the claimant has the burden on
the first four steps. 20 C.F.R. § 416.920(a)(4)(i)—(v).
The determination of whether such work exists in the national economy is
made without regard to: 1) “whether such work exists in the immediate area in
which [the claimant] lives;” 2) “whether a specific job vacancy exists for [the
claimant];” or 3) “whether [the claimant] would be hired if he applied for work.”
fact, if supported by substantial evidence, [are] conclusive . . . .” 42 U.S.C. §
405(g). Accordingly, the Court may not make a de novo determination of whether
a plaintiff is disabled in reviewing a denial of disability benefits. Id.; Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Court’s function is to ascertain whether the Commissioner applied the correct
legal principles in reaching his conclusion, and whether the decision is
supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.
1987). Therefore, absent legal error, this Court may not set aside the decision of
the Commissioner if it is supported by substantial evidence. Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982). If the Commissioner’s decision is supported by
substantial evidence, that decision will be sustained, even where there may also
be substantial evidence to support the plaintiff’s contrary position. Schauer v.
Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
The Second Circuit has defined substantial evidence as “‘such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be
“more than a scintilla or touch of proof here and there in the record.” Williams,
859 F.2d at 258.
Haman asserts the ALJ’s decision should be overturned for three reasons.
First, she asserts the ALJ erred in finding her combined fibromyalgia and left
lower extremity impairment did not meet the requirements of social security
regulation listing 1.02, which covers major dysfunction of a joint. [Dkt. No. 24 at
18.] Second, Haman asserts the ALJ should have afforded her rheumatologist’s
opinion controlling weight. Id. at 20. Finally, Haman asserts ALJ Thomas erred in
his assessment of Haman’s credibility. Id. at 20. The Court discusses each
argument in turn.
a. The Listed Impairment Analysis
Haman asserts the evidence that she consistently experienced knee
discomfort, ankle swelling, tenderness, limited range of motion, and a limp
establish “impairment of major weight bearing joints” as required by Listing 1.02.
Id. at 18-19 (citing Dkt. No. 11-8 at 303, 377). Specifically, she cites Dr.
Gerratana’s June 2011 medical notes stating Haman “walked with a limp, had
chronic swelling of her right ankle and tenderness,” and providing her with heel
lifts. Id. (citing Dkt. No. 11-8 at 303). She also cites medical notes by Dr. Formica
two years after her April 2010 right ankle surgery noting continued muscle
tenderness, right ankle swelling, and a limp. Id. (citing Dkt. No. 11-8 at 353, 377).
Haman concludes from these records that “appropriate imaging supports the
existence of an anatomical defect following fracture” which meets the
requirements of listing 1.02. Id. at 19-20. Haman also suggests the ALJ
considered only her lower extremity impairment in the listing analysis, and that it
was error not to consider the combination of that impairment and her
fibromyalgia. Id. at 18.
The Commissioner responds that ALJ Thomas did not consider Haman's
lower extremity impairment in isolation, pointing out that the ALJ considered
Haman’s fibromyalgia, right ankle fracture, and osteoarthritic knees and properly
found the combined impairments did not meet or equal the requirements of
Listing 1.02. [Dkt. No. 24 at 6.] The Commissioner reasons that physical
examinations in the medical record show Haman was able to ambulate without an
assistive device. Id. at 7. The Commissioner noted record evidence that Haman
sometimes walked with an antalgic gait, but other times walked with a normal
gait, and that she required crutches and a CAM boot only for the two months
following her right ankle surgery. Id. at 7-8 (citing Dkt. No. 11-8 at 303-304, 30911, 354, 360). In addition, the Commissioner asserts the only imaging in the
record shows Haman’s right ankle fracture “solidly united” after surgery, and
Haman’s knees have “some . . . diffuse osteoporosis/osteoarthritis, but otherwise
showed no significant degenerative changes or other bony abnormalities.” Id.
(citing Dkt. No. 11-8 at 303, 304, 308, 327).
“For a claimant to show that his impairment matches a listing, it must meet
all of the specified medical criteria. An impairment that manifests only some of
those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493
U.S. 521, 530 (1990). The plaintiff bears the burden of establishing she meets the
requirements of a listed impairment. Id.
Listing 1.02 requires:
gross anatomical deformity (e.g., subluxation, contracture, bony or
fibrous ankylosis,15 instability) and chronic joint pain and stiffness
with signs of limitation of motion or other abnormal motion of the
affected joint(s), and findings on appropriate medically acceptable
Ankylosis is “stiffness or fixation of a joint by disease or surgery.” Ankylosis
Definition, MERRIAM-WEBSTER DICTIONARY, https://www.merriamwebster.com/dictionary/ankylosis (last visited February 10, 2017).
imaging of joint space narrowing, bony destruction, or ankylosis of
the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively, as
defined in 1.00B2b;
B. Involvement of one major peripheral joint in each upper extremity
(i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform
fine and gross movements effectively, as defined in 1.00B2c.
20 C.F.R. 404, Subpart P, App. 1, 1.02. The “inability to ambulate
effectively” is defined as:
An extreme limitation of the ability to walk’ i.e., an impairment(s) that
interferes very seriously with the individual’s ability to independently
initiate, sustain, or complete activities. Ineffective ambulation is
defined generally as having insufficient lower extremity functioning
to permit independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper
20 C.F.R. 404, Subpart P, App. 1, 1.00(B)(b)(1). By contrast, to ambulate
effectively, an individual:
Must be capable of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities of daily living.
They must have the ability to travel without companion assistance to
and from a place of employment or school. Therefore, examples of
ineffective ambulation include, but are not limited to, the inability to
walk without the use of a walker, two crutches or two canes, the
inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as shopping
and banking, and the inability to climb a few steps at a reasonable
pace with the use of a single hand rail.
20 C.F.R. 404, Subpart P, App. 1, 1.00(B)(b)(2).
In addition to assessing her lower extremity impairment, ALJ Thomas
explicitly considered whether the combination of Haman’s fibromyalgia and the
residual effects of her right ankle fracture met the criteria of Listing 1.02. [Dkt.
No. 11-3 at 15.] Because the medical record established Haman could “ambulate
without an assistive device and does not show any significant limitations in her
left lower extremity,” he found listing 1.02’s requirements were not met. Id. In
addition, ALJ Thomas noted that, while Haman complained of difficulty using her
hands, there was “no evidence of arthritic changes in her upper extremities and
she has full upper extremity strength.” Id.
ALJ Thomas’ conclusion that Haman is able to ambulate effectively and
retains use of her upper extremities is supported by substantial record evidence.
Although Haman correctly notes that she has used assistive devices, including
crutches and a stabilizing boot immediately after her ankle surgery and orthotic
inserts later, there is no record evidence establishing that she must use a handheld assistive device that limits the function of both of her upper extremities,
beyond her use of crutches immediately after her surgery. See 20 C.F.R. 404,
Subpart P, App. 1, 1.00(B)(b)(1); see also, e.g., Dkt. No. 11-8 at 349 (stating as of
March 22, 2012 Haman walked without the use of a cane). In addition, State
agency consultant Dr. Khan concluded from the medical record that Haman could
sit, stand, or walk for six hours out of an eight-hour workday. [Dkt. No. 11-4 at
77.] Further, Haman testified at her hearing that she only walks with a cane
outside her home, when her legs are swollen or the weather is inclement;
regardless, the use of one cane would not limit the functioning of both upper
extremities as required by the social security regulations. [20 C.F.R. 404, Subpart
P, App. 1, 1.00(B)(b)(1); Dkt. No. 11-3 at 40-41.] Haman also estimated she could
walk “maybe a quarter mile” at a time and testified she regularly completes daily
living activities including doctor’s visits and grocery shopping, further meeting
the requirements of the regulations. [20 C.F.R. 404, Subpart P, App. 1,
1.00(B)(b)(2); Dkt. No. 11-3 at 51-52.]
Further, although Haman did not raise it in her objection, ALJ Thomas’s
conclusion that Haman retained the ability to perform fine and gross motor
functions in her upper extremities is also supported by substantial record
evidence. As ALJ Thomas noted, x-rays indicated “no significant arthritis” in
Haman’s hands, as well as “preservation of the joint spaces with no bony, or soft
tissue abnormalities.” [Dkt. No. 11-8 at 328.] The record indicates she retained
use of her upper extremities. For example, Haman testified she can use a
computer up to half an hour at a time even when her hands are swollen. [Dkt. No.
11-3 at 57.] She also indicated she can fold laundry, cook light meals, and wash
dishes. Id. at 59.
Substantial record evidence supports ALJ Thomas’s conclusion that
Haman met neither subpart A nor subpart B to the requirements of Listing 1.02.
Haman’s Motion to Reverse the Decision of the Commissioner on this ground is
DENIED; the Commissioner’s Motion to Affirm is GRANTED.
b. The Treating Physician Rule
Haman asserts the ALJ should have deferred to Dr. Formica’s assessment
of her limitations based on her “detailed examination” and qualification as a
physician. [Dkt. No. 17 at 20.] Specifically, Haman asserts Dr. Formica’s
assessment that she had 18 out of 18 tender points should have led ALJ Thomas
to accept Dr. Formica’s assessment that Haman was not a candidate for
employment of any kind. Id.
The Commissioner responds that ALJ Thomas appropriately weighed Dr.
Formica’s opinion with the other record evidence for three reasons. [Dkt. No. 24
at 10.] First, the Commissioner noted Dr. Formica’s conclusion that Haman could
not work is an opinion reserved to the Commissioner and is not entitled to
deference because it came from a treating physician. Id. (citing 20 C.F.R.
404.1527(d)(1) (“A statement by a medical source that you are “disabled” or
“unable to work” does not mean that we will determine that you are disabled.”)).
Second, the Commissioner argues Dr. Formica’s opinion is less persuasive
because he had only treated Haman for seven months when he gave his opinion
as to her limitations. Id. Third, the Commissioner asserts Dr. Formica’s opinion
warrants less weight because it is inconsistent with his own treatment notes
stating Haman sometimes had a slight antalgic gait and sometimes had a normal
gait and finding Haman alert and fully oriented. Id. at 11 (citing Dkt. No. 11-8 at
349, 353-54, 359-60). Fourth, the Commissioner notes Dr. Formica’s opinion is
inconsistent with State agency medical consultants Drs. Khan, Honeychurch,
Fadakar and Leib, which conclude Haman can perform a range of unskilled light
work and has the mental capacity to complete simple, routine tasks for two-hour
periods throughout a workday. Id. at 13 (citing Dkt. Bo. 11-4 at 76-77, 93-95). The
Commissioner asserts the State medical consultants’ opinions are supported by
substantial record evidence, while Dr. Formica’s opinion is not. Id. at 14.
A treating physician generally garners greater weight under the social
security regulations because “these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” 20 C.F.R. 404-1527(c)(2).
Given the unique nature of a treating physician’s opinion, such an opinion
is generally “given ‘controlling weight’ as long as it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” Burgess
v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)); see
also Mariani v. Colvin, 567 F. App’x 8, 10 (2d Cir. 2014) (holding that “[a] treating
physician’s opinion need not be given controlling weight where it is not wellsupported or is not consistent with the opinions of other medical experts” where
those other opinions amount to “substantial evidence to undermine the opinion
of the treating physician”). Where a treating physician’s opinion conflicts with
other record evidence, it is “within the province of the ALJ” to determine which
portions of the report to credit, and to what extent. Pavia v. Colvin, No. 6:14-cv06379 (MAT), 2015 WL 4644537, at 4 (W.D.N.Y. Aug. 4, 2015) (citing Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)).
In determining the amount of weight to give a treating physician’s opinion,
the social security regulations provide certain considerations: “Generally, the
longer a treating source had treated [a claimant] and the more times [the
claimant] has been seen by a treating source, the more weight [the ALJ] will give
to the source’s medical opinion.” 20 C.F.R. 404-1527(c)(2)(i). In addition, “the
more knowledge a treating source has about [the claimant’s] impairment(s), the
more weight [the ALJ] will give the source’s medical opinion.” 20 C.F.R. 4041527(c)(2)(ii). In determining a treating physician’s level of knowledge, the ALJ
looks at “the treatment the source has provided and . . . the kinds and extent of
examinations and testing the source has performed.” Id. Further, “[t]he more a
medical source presents relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight [the ALJ] will give that
opinion.” 20 C.F.R. 404-1527(c)(3).
The ALJ found Dr. Formica’s limitation determination inconsistent with his
own treatment notes, which “consistently detail[ed] full strength [and] normal
gait.” [Dkt. No. 11-3 at 22.] In addition, he noted Dr. Formica only treated Haman
for seven months “and is unable to adequately render an opinion on the
claimant’s condition since her 2010 onset date, which makes his opinion even
less persuasive.” Id. Finally, ALJ Thomas found Dr. Formica’s determination that
Haman was unable to work partly due to poor concentration conflicted with the
State agency psychiatric examinations, which indicated Haman retains an
“average attention span.” Id. ALJ Thomas gave the State agency medical and
psychiatric opinions “great weight” because they were “consistent with the
medical evidence as a whole,” and because as consultants, they reviewed the
entire record and had the requisite knowledge to form an opinion on the
claimant’s disability. Id.
ALJ Thomas appropriately afforded little weight to Dr. Formica’s opinion.
As a treating physician for only seven months leading up to his opinion of
Haman’s limitations, Dr. Formica lacked the “longitudinal picture” and “unique
perspective to the medical evidence” that generally warrants deference. 20 C.F.R.
404-1527(c)(2). In addition, Dr. Formica’s opinion as to Haman’s psychiatric
limitations falls outside his expertise and as such is less reliable. 20 C.F.R. 4041527(c)(2)(ii). Finally, ALJ Thomas’s determination that Dr. Formica’s opinion
was not supported by his own treatment notes or the record as a whole is
supported by substantial evidence. Dr. Formica noted throughout the time he
treated Haman that she “walked without the use of a cane” (Dkt. No. 11-8 at 349
(March 22, 2012 treatment notes)), had a “slight antalgic gait” (Id.) or “normal
strength [and] normal gait” (Id. at 375 (September 6, 2012 treatment notes)).
These observations conflict with Dr. Formica’s conclusion that Haman is not a
candidate for employment of any kind. Id. at 365.
Further, Haman’s own testimony indicates she only uses a cane when
leaving the house on days when her legs are swollen or the weather is inclement.
[Dkt. No. 11-3 at 40-41.] In addition, she testified she can use a computer, go to
the grocery store, and complete housework including folding laundry and doing
dishes. Id. at 59-60. The record as a whole does not support Dr. Formica’s
opinion prohibiting all work; ALJ Thomas’ decision to afford it little weight was
appropriate.16 [Dkt. No. 11-4 at 78-80.] Haman’s Motion to Reverse the Decision
of the Commissioner on this point is DENIED; the Motion to Affirm is GRANTED.
c. The Credibility Analysis
Lastly, Haman asserts that because “objective tests are of little help in
determining [fibromyalgia’s] existence or its severity,” the ALJ should not have
discounted her testimony regarding her symptoms as unsupported by record
evidence. [Dkt. No. 24 at 21 (citing Preston v. Sec’y of Health & Human Servs.,
854 F.2d 815, 820 (6th Cir. 1988)).
The Commissioner responds that ALJ Thomas appropriately found
Haman’s statements “not entirely credible.” [Dkt. No. 24 at 14 (discussing Dkt.
By contrast, ALJ Thomas afforded “great weight” to the State agency medical
opinions, which limited Haman to light work with some non-exertional limitations.
[Dkt. No. 11-3 at 22; 11-4 at 78-80.] Those milder limitations better coincided with
the medical record, namely the same treatment notes and testimony which
undermined Dr. Formica’s opinion. In addition, the Court notes that elsewhere in
his decision, ALJ Thomas demonstrated awareness of the deference owed to
treating physicians whose opinions are supported by the medical record. When
assessing Haman’s psychiatric limitations, ALJ Thomas afforded “great weight”
to the GAF scores of 52 and 55 assigned by treating psychiatrists, which indicate
she has “moderate symptoms/impairments in functioning.” [Dkt. No. 11-3 at 22.]
ALJ Thomas noted the GAF scores, among the few records from Haman’s brief
period of psychiatric treatment, “are an accurate representation of the claimant’s
mental status when properly treated.” Id. ALJ Thomas also afforded “some
weight” to non-treating psychiatrist Dr. Badillo Martinez’s objective findings from
her examination of Haman, including that Haman had clear but slow speech and
concrete but below average thought processes. Id. at 21-22. Such findings were
consistent with Haman’s treating physicians’ GAF scores and evidence of
Haman’s daily activities. Id. at 22. However, Dr. Badillo Martinez’s conclusion
that Haman could do only part-time sedentary work conflicted with the GAF
scores and the record as a whole. Id. In addition, ALJ Thomas noted that Dr.
Badillo Martinez’s conclusion was largely based on perceived physical limitations
which were outside the scope of her expertise as a psychiatrist, and accordingly
was due limited weight. Id. ALJ Thomas’ analysis of the treating and nontreating psychiatrists’ opinions appropriately considers the factors set forth in 20
C.F.R. 404-1527(c) and is supported by substantial record evidence.
No. 11-3 at 21).] The Commissioner asserts ALJ Thomas rightfully considered
Haman’s treatment history when assessing her credibility. Id. at 15. In particular,
the Commissioner noted Haman’s surgery which successfully reunited Haman’s
fractured ankle, instruction to use heel lifts to address her gait, and slight
improvement of her fibromyalgia symptoms with certain medications. Id. The
Commissioner also emphasized that Haman’s testimony regarding severe
headaches conflicted with treatment notes in which she only complained of
headaches once. Id. Similarly, the Commissioner argues Haman’s testimony
regarding daily anxiety attacks since she was fifteen years old is contradicted by
her past successful employment and self-report that Klonopin effectively
managed her anxiety. [Id. (citing Dkt. No. 11-7 at 222 (Activities of Daily Living
Questionnaire dated August 16, 2011)).] In addition, the Commissioner asserts
Haman’s testimony regarding her daily activities, including cooking, brushing her
teeth and hair, stretching, and using the computer, discredits her assertions
regarding the intensity of her pain. Id. at 16. Accordingly, the Commissioner
argues ALJ Thomas rightfully assessed that Haman was “not entirely credible.”
“To determine on appeal whether the ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining
evidence from both sides, because an analysis of the substantiality of the
evidence must also include that which detracts from its weight.” Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir.1988). The commissioner’s determination must
be afforded considerable deference. The district Court may not substitute “its
own judgment for that of the [Commissioner], even if it might justifiably have
reached a different result upon a de novo review.” Valente v. Sec'y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).
In determining credibility, the ALJ must first determine if the claimant’s
asserted symptoms could “reasonably be accepted as consistent with the
objective medical evidence and other evidence.” 20 C.F.R. §§ 404.1529(a),
416.929(a). If so, the ALJ assesses the claimant’s credibility with respect to the
alleged pain symptoms. “[A] claimant’s subjective evidence of pain is entitled to
great weight where . . . it is supported by objective medical evidence.” Skillman
v. Astrue, No. 08-CV-6481, 2010 WL 2541279, at *6 (W.D.N.Y. June 18, 2010) (citing
Simmons v. U.S.R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992)); 8barringer v.
Commissioner of Social Security, 358 F. Supp. 2d 67 (Applying Two Step analysis
described in 20 C.F.R. §§ 4:04.1529 (symptoms including pain)) **Two step
credibility process applies whether the impairment is physical or mental. Sweet v
Astrue, 32 F. Supp. 3d. 303, 317-318 (N.D.N.Y 2012)
If the objective evidence does not support the plaintiff’s testimony with
respect to functional limitations and pain, the ALJ considers the factors set forth
in 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).17 Skillman, 2010 WL 2541279, at *6.
The factors to be considered are i) the claimant’s daily activities; (ii) the location,
duration, frequency, and intensity of the claimant’s pain or other symptoms; (iii)
precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and
side effects of any medication the claimant takes or has taken to alleviate their
These factors include daily living activities, any medications and treatments
and their efficacy, and any other relevant factors. 20 C.F.R. §§ 404.1529(c)(3),
pain or other symptoms; (v) treatment, other than medication, the claimant
receives or has received for relief of their pain or other symptoms; (vi) any
measures the claimant used or has used to relieve their pain or other symptoms
(e.g., lying flat on their back, standing for 15 to 20 minutes every hour, sleeping
on a board, etc.); and (vii) other factors concerning the claimant’s functional
limitations and restrictions due to pain or other symptoms.
The ALJ “is not required to accept the claimant’s subjective complaints
without question; he may exercise discretion in weighing the credibility of the
claimant’s testimony in light of the other evidence of record.” Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). “To be disabling, pain must be so severe, by itself
or in combination with other impairments, to preclude any substantial gainful
activity.” See Manzo v. Sullivan, 784 F. Supp. 1152, 1157 (D.N.J. 1991) (citing
Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983)). The ALJ should consider
medical findings, other objective evidence, and subjective evidence of pain in
assessing the claimant’s credibility. Id. A plaintiff’s good work record is one of
many factors the ALJ considers in determining a claimant’s credibility. Schaal v.
Apfel, 134 F.3d 496, 502 (2d Cir. 1998).
The ALJ’s “finding that the witness is not credible must . . . be set forth
with sufficient specificity to permit intelligible plenary review of the record.”
Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). The
“ALJ’s credibility determination is generally entitled to deference on appeal.”
Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013).
ALJ Thomas determined Haman’s reports of “the intensity, persistence and
limiting effects of [her] symptoms are not entirely credible” because of Haman’s
ability to function with her condition. [Dkt. No. 11-3 at 21-22.] The ALJ noted the
“constellation of symptoms associated with a fibromyalgia diagnoses,” but found
Haman’s hearing testimony “greatly overstated” her limitations in light of the
medical evidence. Id. For example, ALJ Thomas cited musculoskeletal
examinations revealing normal range of motion of the affected joints with the
exception of restricted movement of the right ankle, and five out of five upper and
lower extremity strength with the exception of the right quadriceps. Id. at 19. He
also emphasized that Dr. Formica’s treatment notes “consistently detail full
strength [and] normal gait.” Id. at 22.
Further undermining Haman's credibility in the eyes of ALJ Thomas was
her testimony regarding severe headaches, which was uncorroborated by
medical evidence of complaints, head examinations or treatment, as well as
Haman’s assertion that she has arthritis in her hands when Dr. Formica’s x-ray’s
indicated no significant arthritis. Id. at 21.
Where the record was unclear, ALJ Thomas resolved any question
regarding Haman’s credibility in her favor. Regarding her mental health
complaints, given that there was limited medical evidence of her condition since
she stopped treatment in 2010, ALJ Thomas assumed Haman’s testimony of her
limitations was credible. Id. at 21. He accordingly limited her capacity for light
work to “unskilled jobs consisting of simple routine, repetitive tasks with short
simple instructions and few workplace changes, requiring an attention span to
perform simple work tasks for no longer than two-hour intervals throughout an
eight-hour workday, with occasional superficial interaction with coworkers and
no high-paced production demands.” Id. at 21.
The Court does not dispute that there are “unique difficulties associated
with the diagnosis and treatment of fibromyalgia.” [Dkt. No. 24 at 20 (citing
Rogers v. Comm’r, 486 F.3d 234, 243-44 (6th Cir. 2007).] The Court recognizes
that fibromyalgia is “characterized by generalized aching (sometimes severe),
widespread tenderness of muscles, areas around tendon insertions, and adjacent
soft tissues, as well as muscle stiffness, fatigue, and poor sleep.” Fibromyalgia
Definition, MERCK MANUAL ONLINE MEDICAL LIBRARY,
http://www.merckmanuals.com/professional/musculoskeletal-and-connectivetissue-disorders/bursa,-muscle,-and-tendon-disorders/fibromyalgia (last visited
February 7, 2017). The Court also recognizes that while there is no conclusive
test to diagnose the condition, Fibromyalgia is diagnosed through identification
of symptoms and in addition “usual testing to exclude other disorders.” Id.;
http://www.mayoclinic.org/diseases-conditions/fibromyalgia/basics/testsdiagnosis/CON-20019243,last visited March 2, 2017.
Critically, the ALJ did not find Haman’s reports of fibromyalgia symptoms
not credible based on the lack of medical evidence supporting her diagnosis, but
rather based on her compromised credibility which undermined her claim of the
severity of her symptoms. ALJ Thomas accepted her diagnosis as clearly
supported by the medical evidence. Id. at 21. The ALJ’s credibility analysis
rested on a determination that Haman’s testimony regarding the “intensity,
persistence and limiting effects of [her] symptoms” was “greatly overstated”
compared to record evidence of her strength, range of motion, and daily
activities. Id. The ALJ’s determination is supported by substantial record
evidence. Accordingly, Haman’s Motion to Reverse the Decision of the
Commissioner on this ground is DENIED; the Motion to Affirm is GRANTED.
For the reasons set forth above, Haman’s Motion for an Order Reversing or
Remanding the Commissioner’s Decision [Dkt. No. 17] is DENIED and the
Commissioner’s Motion to Affirm that Decision [Dkt. No. 24] is GRANTED.
It is so ordered this 2nd day of March 2017, at Hartford, Connecticut.
Vanessa L. Bryant, U.S.D.J.
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