Laplante v. Commissioner of Social Security
Filing
20
ORDER denying 14 Motion to Reverse the Decision of the Commissioner; granting 16 Motion to Affirm the Decision of the Commissioner. Please see attached Ruling and Order for details. Signed by Judge Robert N. Chatigny on 9/29/2017. (Chenoweth, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAMES LAPLANTE,
:
Plaintiff,
:
v.
:
NANCY A. BERRYHILL, Acting
Comm’r, Social
Security Admin.,
:
Defendant.
Civ. No. 3:16-cv-1249(RNC)
:
:
RULING AND ORDER
Plaintiff brings this action pursuant to section 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), seeking review of
the Commissioner’s final decision denying plaintiff’s application
for disability insurance benefits (“DIB”).
In 2013, plaintiff
filed an application for DIB alleging disability beginning in
2008, when he was in a car accident.
After a hearing, an
administrative law judge found that plaintiff’s diabetic foot
ulcer is a severe impairment but that he is not disabled within
the meaning of the Act because he retains the capacity to perform
the full range of sedentary work as defined in 20 C.F.R.
§ 404.1529 and SSRs 96-4p and 96-7p.
Plaintiff has moved for an
order reversing the decision of the Commissioner (ECF No. 14),
and defendant has moved for an order affirming the decision
No. 16).
(ECF
Plaintiff argues that the ALJ’s decision violates the
treating physician rule and is not supported by substantial
evidence.
Respondent contends that the ALJ adequately explained
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his reasons for discounting the treating physician’s opinion and
the ALJ’s finding that plaintiff can perform sedentary work is
supported by substantial evidence.
correct.
I.
I think respondent is
Therefore, the decision is affirmed.
Background
Plaintiff sustained injuries to his left and right knees and
back after he was struck by a car in July 19, 2008.
of Facts (ECF No. 14-2) ¶ 5.
Stipulation
He was admitted to St. Francis
Hospital that day, received orthopedic surgery for an open
reduction internal fixation (“ORIF”) of a right tibial fracture
on July 21, 2008, then attended weekly rehabilitation and
occupational therapy from August 3, 2008 through October 18,
2008.
Id. ¶¶ 6-7.
Plaintiff attended physical therapy sessions from October 2,
2008 through August 13, 2009 for a variety of conditions,
including his right tibial fracture, right scar tissue, right
chronic ankle spasm and sciatica.
Id. ¶ 8.
On December 22,
2008, Dr. Gordon Zimmerman determined that plaintiff had a “grade
III MCL tear of the left knee,” but was recovering satisfactorily
and would have a “small impairment in the range of 5 to 10%.”
Id. ¶ 15.
Dr. Zimmerman ultimately determined that plaintiff had
a 10% permanent partial impairment of his left knee.
Id. ¶ 20.
On January 15, 2009, plaintiff had an evaluation for his lower
back pain, resulting in an assessment of a 3% impairment rating
2
of the lumbar spine.
Id. ¶ 16.
On June 25, 2009, Dr. Kabbash
assigned the plaintiff a final 10% permanent disability rating
for his right knee.
Id. ¶ 11.
At plaintiff’s final physical
therapy visit on August 13, 2009, he was able to “perform a
hopping motion without an increase in pain and he was able to
perform a single leg heel raise.”
Id. ¶ 12.
He canceled his
last scheduled visit and later reported that he was “doing well
and managing with his home exercise program.”
Id.
In January 2011, plaintiff sought medical treatment for
worsening knee pain.
Id. ¶¶ 23-24.
He had an arthroscopic
partial meniscectomy in his left knee, to which he responded
well; he stated that “he felt much better; he was bearing weight
as tolerated and increasing his activity.”
2012, plaintiff’s left knee pain persisted.
Id. ¶¶ 25-26.
Id. ¶ 32.
In
Notes
from 2012 reveal that plaintiff was treated for type 2 diabetes
and was not compliant with taking his diabetic medicine and
following his diet.
Id. ¶¶ 32, 33.
In March 9, 2013, plaintiff was treated at Rockville General
Hospital for right dorsal foot pain and ankle pain after dropping
a piece of wood on his foot during a home improvement project.
Id. ¶ 35.
Podiatrist Eric Thompson examined the plaintiff on
March 12, 2013, and provided care for a diabetic foot infection
with diabetic neuropathy.
Id. ¶ 36.
Dr. Thompson saw the
plaintiff for much of 2013 and 2014, and his notes reveal that
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the plaintiff had at times been doing a lot of walking.
37.
Id. ¶
April 4, 2014, plaintiff stated that he had not followed up
on treatment for three months because he was “too busy.”
Id.
On April 12, 2013, a Connecticut state medical consultant
reviewed plaintiff’s record and concluded that plaintiff could
lift 20 pounds occasionally and ten pounds frequently; stand
and/or walk for three hours, and sit for about six hours in an
eight-hour workday.
Id. ¶ 28.
He did not have any manipulative,
visual, communicative or environmental limitations.
Id.
A
subsequent mental status examination found that “plaintiff would
have the ability to function on tasks that did not require much
movement or lifting.”
Id. ¶ 29.
A state psychologist reviewed
the record and found that plaintiff could “understand and retain
simple directives of two-to-three steps, though he would have a
difficult time remembering more complex instructions.”
Id. ¶ 30.
On October 17, 2013, Dr. Dodenhoff performed a one-time physical
evaluation, finding that plaintiff suffered from sleep apnea,
restless leg syndrome and a diabetic ulcer on his right foot.
Id. ¶ 40.
Dr. Dodenhoff wrote that plaintiff was able to sit and
handle objects and “should be able to respond appropriately to
supervision, coworkers, and the pressures in a work setting.”
Id.
Plaintiff’s condition seemingly worsened in 2014.
He was
treated at Rockville General Hospital for foot pain and a chronic
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ulcer on April 15, 2014, followed by several additional
procedures related to his foot.
Id. ¶¶ 42-44.
Dr. Eric Lui, a
podiatrist, began treating the plaintiff on May 7, 2014.
¶ 45.
Id.
Dr. Lui’s notes reflect the following diagnoses: diabetic
neuropathy (May 7, 2014); neuropathy with an open wound on the
right foot (May 13, 2014); and neuropathy with a second open
wound on the right foot (May 20, 2014).
Id. ¶¶ 46-48.
During
the ensuing months, Dr. Lui examined the plaintiff weekly for
problems with his right foot.
R. at 61.
On November 5 and 12,
2014, Dr. Lui urged plaintiff to remain off the foot as much as
possible, keep it elevated and use a walking boot as necessary.
Stipulation of Facts ¶ 65-66.
On October 24, 2014, Dr. Lui completed a medical assessment.
Id. ¶ 67.
He opined that plaintiff could occasionally lift up to
20 pounds but could never carry any weight due to his diabetic
neuropathy and the chronic ulcer on his right foot.
Id.
He
could sit for 30-45 minutes, stand for fifteen minutes and walk
for fifteen minutes without interruption.
Id.
Over the course
of an eight-hour workday, he could sit for 3 to 4 hours, stand
for one hour, and walk for a total of one hour; however, he would
have to lie down and elevate his right foot 3 to 4 times a day
for 30 to 60 minutes each time due to his chronic diabetic ulcer.
Id.
He could use his upper body bilaterally and left foot with
little or no restriction, and occasionally operate a motor
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vehicle, although he could not operate foot controls with his
right foot.
Id.
He could not climb stairs, be around moving
mechanical parts or be in extreme cold or heat.
Id.
Plaintiff originally filed for DIB on February 19, 2013.
at 155-160.
R.
After a hearing, the ALJ concluded that, although
plaintiff’s chronic foot ulcer constitutes a severe impairment,
he retains the residual functional capacity to perform the full
range of sedentary work.
With regard to Dr. Lui’s assessment of
plaintiff’s limitations, the ALJ stated:
The assessment of the claimant’s podiatrist, Dr. Lui
(Ex. 16F) is given some weight. It is based on a
treating relationship and specialty as a podiatrist.
It suggests a less-than-sedentary profile that is not
fully supported by the record, including his own notes
(Ex. 18F). For instance, he states that [t]he claimant
cannot use his hands bilaterally more than frequently,
but there is no indication of any neurological findings
in the upper extremities (Exs. 11F, 18F, 20F). The
idea that he cannot use foot controls with his right
foot is inconsistent with his admission that he can
drive (Ex. 4E). There is no indication that he is
unable to sit without limitation, given that the only
findings are some erythema and sensory loss in the
lower extremities. (Exs. 11F, 18F, 20F). Also, these
notes indicate no gait issues either (Id.).
Accordingly, the degree of restriction on sitting,
standing, and walking is unjustified. Thus, the
opinion is given credit to the extent it supports a
full sedentary profile. This is consistent with his
indication that he could go back to a desk job. (Ex.
7F).
R. at 39.
With regard to plaintiff’s need to elevate his leg, the ALJ
stated:
It should be noted that, in unskilled work, the daily
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work schedule includes a lunch break and usually two
additional breaks; consistent work is performed for no
more than two-hour periods. Thus, the claimant’s need
to elevate his leg (see Ex. 16F) is accounted for in
the normal work schedule.
R. at 40.
On this appeal, plaintiff argues that the ALJ violated the
treating physician rule and substituted his opinion for that of
Dr. Lui whose assessment of plaintiff’s limitations, if fully
credited, would support a finding that plaintiff is limited to
part-time or less than sedentary work.
In addition, plaintiff
argues that the record lacks substantial evidence to support the
finding that his need to elevate his foot three times a day for
thirty to sixty minutes each time is accounted for in the normal
work schedule.
He contends that such a finding requires expert
vocational testimony.
II.
Standard of Review
The ALJ’s decision may be set aside only if the factual
findings are not supported by substantial evidence or the
decision is based on legal error.
117, 127 (2d Cir. 2008).
Burgess v. Astrue, 537 F.3d
Substantial evidence means “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”
(2d Cir. 2010).
evidence.
Zabala v. Astrue, 595 F.3d 402, 408
This Court’s role is not to reweigh the
Rather, the ALJ’s decision must be affirmed “if it is
based upon substantial evidence even if the evidence would also
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support a decision for the plaintiff.”
Supp. 2d 81, 87 (D. Conn. 2000).
Bellamy v. Apfel, 110 F.
When a decision “rests on
adequate findings supported by evidence having rational probative
force,” a court may “not substitute [its] judgment for that of
the Commissioner.”
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.
2002).
III. Discussion
A person who is disabled is entitled to benefits under the
Social Security Act.
42 U.S.C. § 423(a)(1)(A).
A “disability”
is “an inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.”
42 U.S.C. § 423(d)(1)(A).
Under the
Social Security regulations, determining whether an individual is
disabled entails five steps:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a 'severe
impairment' which significantly limits his physical or
mental ability to do basic work activities. If the
claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as
age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a
‘listed’ impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have
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a listed impairment, the fourth inquiry is whether,
despite the claimant’s severe impairment, he has the
residual functional capacity to perform his past work.
Finally, if the claimant is unable to perform his past
work, the [Commissioner] then determines whether there
is other work that the claimant could perform.
Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983).
At the
first four steps, the claimant bears the burden of proof.
But
once the claimant shows at the fourth step that she cannot
perform her past work, the burden shifts to the Commissioner at
step five to show the existence of other work suited to the
claimant’s abilities.
Kohler v. Astrue, 546 F.3d 260, 265 (2d
Cir. 2008).
A.
The Treating Physician Rule
Plaintiff argues that the ALJ erred in giving only “some
weight” to the assessment of Dr. Lui and violated the treating
physician rule by failing to set forth good reasons for the
weight he assigned to the assessment.
A treating physician’s
opinion is entitled to controlling weight if it is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with other
substantial evidence of record.”
20 C.F.R. § 404.1527(c)(2).
In
assessing the weight to be given the opinion of a treating
source, an ALJ considers the length of the treating relationship
and the frequency of examination, the nature and extent of the
treatment relationship, the supportability of the opinion, the
consistency of the opinion with other evidence, the source’s area
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of specialization and “other factors.”
§ 404.1527(c)(2)(i)-(ii).
20 C.F.R.
If an ALJ does not provide reasons for
the weight given to an opinion, the case may have to be remanded.
See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004).
The ALJ’s decision regarding the weight to be given Dr.
Lui’s assessment of plaintiff’s limitations is quoted above.
In
substance, the ALJ decided that the degree of restriction placed
by Dr. Lui on plaintiff’s ability to sit, stand and walk was not
justified.
That conclusion is adequately supported by the
reasons the ALJ provided in the quoted portion of his decision
and by the record as a whole.
Plaintiff’s primary impairments
are the chronic diabetic ulcer on his right foot and the
neuropathy in his right leg.
R. at 575-76; 695-718.
The record
shows that when he visited his doctors, he wore regular footwear
and reported that he had been walking around “a lot.”
604, 610, 701, 702, 703, 704.
R. at 603,
Plaintiff told a state
psychologist in 2013 that he was able to care for himself,
perform housework, drive and take care of his young child.
58, 534, 536.
R. at
At this same meeting, plaintiff said he could
engage in sedentary employment at a desk.
R. at 534.
An
assessment by Dr. Dodenhoff supports a finding that plaintiff is
capable of doing sedentary work while seated at a desk.
575-76.
R. at
Given this other evidence, the ALJ did not err in
discounting Dr. Lui’s assessment.
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The ALJ’s opinion does not violate the treating physician
rule.
The ALJ explained that, although Dr. Lui’s assessment was
based on a treating relationship with the plaintiff, to the
extent it suggested a “less-than-sedentary profile, it was not
well-supported and inconsistent with other evidence.
True, the
ALJ did not comprehensively discuss every criteria listed in the
regulation, but that is not invariably required.
See Atwater v.
Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (“We require no . . .
slavish recitation of each and every factor where the ALJ’s
reasoning and adherence to the regulation are clear.”).
Plaintiff contends that the ALJ erred in failing to contact Dr.
Lui but contacting Dr. Lui was not required because there were
“no obvious gaps in the administrative record.”
Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).
B.
Failure to Use Vocational Expert
Plaintiff argues that the ALJ should have used a vocational
expert to opine on the particular type of work plaintiff can
obtain and perform.
He argues that the ALJ should not have
relied on the medical vocational guidelines alone because
determining plaintiff’s residual functional capacity required
vocational expert testimony.
Id.
I disagree.
“In the ordinary case, the Commissioner meets his burden at
the fifth step by resorting to the applicable medical vocational
guidelines (the grids).”
Butts v. Barnhart, 388 F.3d 377, 383
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(2d Cir. 2004), as amended, 416 F.3d 101 (2d Cir. 2005) (quoting
Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999)).
However,
“exclusive reliance on the grids is inappropriate where the
guidelines fail to describe the full extent of a claimant's
physical limitations.”
F.3d at 78).
Butts, 388 F.3d at 383 (quoting Rosa, 168
This may be true when the claimant’s “exertional
impairments are compounded by significant nonexertional
impairments that limit the range of sedentary work the claimant
can perform.”
Id.
Nonexertional limitations may include
difficulty concentrating, seeing or hearing, or physical
movements like reaching, stooping or crouching.
20 C.F.R.
§ 416.969a.
Social Security Policy Interpretation Ruling 96-9p describes
“sedentary work” as work performed primarily while sitting, but
with an occasional amount (no more than two hours per workday) of
walking and standing.
Accordingly, “[s]itting would generally
total about 6 hours of an 8-hour workday.”
SSR 96-9p.
The
normal workday would include morning, lunch and afternoon breaks.
The ALJ found that plaintiff could perform six hours of seated
work per day based on the totality of the evidence in the record.
The ALJ noted that the plaintiff would require breaks to elevate
his leg that could coincide with the breaks in an average workday
as set forth in Social Security Ruling 96-9p.
The record
contains no evidence of nonexertional limitations that would
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limit the utility of the grids.
The ALJ did not err in failing
to use a vocational expert.
IV.
Conclusion
Accordingly, the Commissioner’s motion to affirm is granted
and plaintiff’s motion to reverse is denied.
The Clerk may enter
judgment and close the file.
So ordered this 29th day of September 2017.
/s/RNC
____
Robert N. Chatigny
United States District Judge
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