Sims v. Colvin

Filing 13

ORDER denying 11 Motion to Reverse the Decision of the Commissioner; granting 12 Motion to Affirm the Decision of the Commissioner. Signed by Judge Warren W. Eginton on 9/6/2017. (Gould, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KENNETH SIMS,
Plaintiff,
v.

Case No. 3:16cv1589 (WWE)

NANCY BERRYHILL, Commissioner
Of Social Security,
Defendant.

MEMORANDUM OF DECISION ON THE MOTION FOR ORDER REVERSING OR
REMANDING COMMISSIONER’S DECISION AND THE MOTION TO AFFIRM THE
FINAL DECISION
Plaintiff Kenneth Sims challenges the denial of his application for Social Security
disability benefits and requests reversal or remand of the Commissioner’s decision
pursuant to sentence four of 42 U.S.C § 405(g). For the following reasons, plaintiff’s
motion for order reversing the Commissioner’s decision will be denied; and defendant’s
motion to affirm the decision of the Commissioner will be granted.
BACKGROUND
The plaintiff has filed a statement of facts and medical history that commences
with plaintiff’s May 1987 amputation of the left leg after a motorcycle accident.
Defendant adopted plaintiff’s statements with the exception of plaintiff’s listing of
impairments, which is a legal conclusion for the Commissioner; and plaintiff’s
characterization of chrondromalacia as a firm diagnosis rather than a noted impression
in a treatment report by a physician assistant. Subject to these exceptions, the Court
incorporates the factual statements submitted by plaintiff herein.
Plaintiff, who was born in 1967, filed a claim for disability insurance benefits on

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March 15, 2012, alleging disability onset on October 28, 2012, due to chronic right leg
swelling, depression, back pain, arthritis, ankle pain and anxiety. His claim was denied
on July 15, 2013, and upon reconsideration on November 5, 2013. On October 29,
2014, a hearing took place before an Administrative Law Judge (“ALJ”), with plaintiff
represented by counsel. On January 12, 2015, the ALJ denied plaintiff’s claim for
disability benefits in a written ruling that found plaintiff had the severe impairments of
status post amputation of the lower extremity, affective disorder and substance
addiction disorder; but that plaintiff did not have an impairment or combination thereof
that met or medically equaled any of the Agency’s listed impairments. The ALJ
determined that plaintiff had residual functional capacity (“RFC”) to perform a range of
sedentary work.1 The ALJ found that plaintiff’s range of sedentary work was limited by
his ability to stand and walk a maximum of four hours in an eight-hour workday; to climb
ramps and stairs occasionally; never climb ladders ropes or scaffolds; kneel, crouch and
crawl occasionally. He found that plaintiff could balance frequently and perform simple
work tasks but he could no longer perform his past relevant work. In finding that plaintiff
could perform jobs that existed in the national economy, the ALJ noted that a vocational
expert had testified that a person of plaintiff’s same age, education, vocational
background and his RFC could perform jobs such as order clerk, information clerk, and

20 C.F.R. § 404.1567(a) describes sedentary work as involving lifting no more than ten
pounds at a time, sitting approximately six hours of an eight-hour day, and occasionally
walking and standing. See SSR 96-9p. See Burns v. Commissioner of Social Security,
2017 WL 2334326, at *6 (N.D.N.Y.) (“Sedentary work requires the abilities to sit for six
hours, stand and walk for two hours, and lift or carry up to ten pounds in an eight-hour
workday.”).
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cashier. However, the ALJ recognized that plaintiff “is able to perform less than the full
range of sedentary work, as he has difficulty carrying objects due to his use of a cane.”
The ALJ’s decision became the Commissioner’s final decision when the Appeals
Council denied plaintiff’s request for review on August 3, 2016.
DISCUSSION
In reviewing a final decision of the Commissioner under 42 U.S.C. §§ 405(g) and
1383(c), the district court performs an appellate function. Zambrana v. Califano, 651
F.2d 842, 844 (2d Cir. 1981); Igonia v. Califano, 568 F.2d 1383, 1387 (D.C. Cir.
1977). A reviewing court will “set aside the ALJ’s decision only where it is based upon
legal error or is not supported by substantial evidence.” Balsamo v. Chater, 142 F.3d
75, 79 (2d Cir. 1998). See also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)(“As
a general matter, when we review a decision denying benefits under the Act, we must
regard the [Commissioner’s] factual determinations as conclusive unless they are
unsupported by substantial evidence”). “Substantial evidence” is less than a
preponderance, but “more than a scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971). Substantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938); see Yancey v. Apfel, 145 F.3d 106, 110 (2d Cir. 1998); Williams
v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
In determining whether the evidence is substantial, the court must “take into
account whatever in the record fairly detracts from its weight.” Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488 (1951). In so doing, the Court must “review the record as a
whole.” New York v. Sec’y of Health and Human Servs., 903 F.2d 122, 126 (2d Cir.

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1990). The ALJ need not “reconcile every conflicting shred of medical testimony.”
Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981).
The regulations promulgated by the Commissioner establish a five-step analysis
for evaluating disability claims. Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987); 20
C.F.R. §§ 404.1520 and 416.920. First, the Commissioner considers if the claimant is,
at present, working in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(I). If not, the
Commissioner next considers if the claimant has a medically severe impairment. 20
C.F.R. § 416.920(a)(4)(ii). If the severity requirement is met, the third inquiry is whether
the impairment is listed in Appendix 1 of the regulations or is equal to a listed
impairment. 20 C.F.R. § 416.920(a)(4)(iii); Pt. 404, Subpt. P. App. 1. If so, the disability
is granted. If not, the fourth inquiry is to determine whether, despite the severe
impairment, the claimant’s residual functional capacity allows him or her to perform any
past work. 20 C.F.R. § 416.920(a)(4)(iv). If a claimant demonstrates that no past work
can be performed, it then becomes incumbent upon the Commissioner to come forward
with evidence that substantial gainful alternative employment exists which the claimant
has the residual functional capacity to perform. 20 C.F.R. § 416.920(a)(4)(v). If the
Commissioner fails to come forward with such evidence, the claimant is entitled to
disability benefits. Alston, 904 F.2d at 126.
When the reviewing court has “no apparent basis to conclude that a more
complete record might support the Commissioner's decision,” it may remand for the sole
purpose of calculating benefits. Butts v. Barnhart, 399 F.3d 277, 385–86 (2d Cir. 2004).
However, the reviewing court may remand the matter to allow the ALJ to further develop
the record, make more specific findings, or clarify his or her rationale. See Grace v.

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Astrue, 2013 WL 4010271, at *14 (S.D.N.Y.); see also Butts, 399 F.3d at 385–86.
Plaintiff claims that the ALJ erred by assigning great weight to the opinions of the nonexamining state agency experts Drs. Maria Lorenzo, Angelina Jacobs, and Janine
Swanson, and by affording little weight to the opinions of plaintiff’s treating physicians
and sources, Drs. Babu Kumar and Brian Coyle and Nurse Practitioner Suni Jacob.
Plaintiff also asserts that the ALJ erred in his consideration of the listing impairments
and in his assessment of plaintiff’s credibility.
Defendant counters that the ALJ accorded proper weight to medical sources; that
the ALJ’s findings with regarding to plaintiff’s listing impairments and RFC were
supported by substantial evidence, and that the ALJ properly assessed plaintiff’s
credibility.
Treating Source Rule
The Court must determine whether the ALJ applied the correct standards when
he accorded substantial weight to the non-examining medical opinions but little or no
weight to the treating medical source opinions.
Pursuant to the treating source rule, the Commissioner is to give controlling
weight to a treating source’s opinion if (1) it is well supported by clinical and laboratory
diagnostic techniques, and (2) the opinion is not inconsistent with other substantial
evidence in the case record. Thompson v. Barnhart, 75 Fed. Appx. 842, 845 (2d Cir.
2003); 20 C.F.R. § 416.927(a)(2); 20 C.F.R. § 404.1527(c). Where the opinion is
contradicted by other substantial evidence in the record, the ALJ is entitled to use
discretion in weighing the medical evidence as a whole. Veino v Barnhart, 312 F.3d
578, 587 (2d Cir. 2002). In resolving the amount of weight to give a medical opinion,

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the ALJ should consider the examining relationship; the treatment relationship, the
length of the treatment relationship, the nature and extent of the treatment relationship;
the evidence supporting the medical opinion; consistency with the record; and
specialization of the medical source. See 20 C.F.R. §§ 404.1527 and 416.927. The
ALJ must provide a reason for any rejection of a treating source opinion. Schisler v.
Sullivan, 3 F.3d 563, 568 (2d Cir. 1993); see Greek v. Colvin, 802 F.3d 370, 375 (2d Cir.
2015) (To override opinion of treating physician, ALJ must explicitly consider
treating physician factors).
“The relevant inquiry is whether the ALJ applied the correct legal standards and
whether the ALJ’s determination is supported by substantial evidence;” there is no basis
for remand where the ALJ’s analysis “affords an adequate basis for meaningful judicial
review.” Cichocki v. Astrue, 729 F.3d 172, 177-78 (2d Cir. 2013); see Mullings v.
Colvin, 2014 WL 6632483, at *14 (E.D.N.Y. 2014) (ALJ must articulate specific reasons
for the weight given to plaintiff’s treating physicians and develop the record as
necessary to accord proper weight to medical opinions). The ALJ must properly
analyze the reasons that the report is rejected; an ALJ cannot arbitrarily substitute his or
her own judgment for competent medical opinion. Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999).
Plaintiff’s Treating Sources
Plaintiff had been treated by internal medicine providers Dr. Kumar and Nurse
Jacob since 2010. In June 2013, plaintiff saw Nurse Jacobs and complained about pain
to his right leg, although he denied back pain or joint swelling. On July 25, 2013, he saw

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Jacobs and had an examination that was deemed normal. He had an adjustment to his
prosethetic leg on July 26, 2013. On August 8, 2013, plaintiff saw Dr. Kumar and
denied having headaches, leg swelling, balance issues, low back pain, numbness,
tingling or gait abnormalities. On September 12, 2013, plaintiff had his prosthetic leg
realigned.
Dr. Kumar referred plaintiff to Dr. Coyle, a vascular surgeon, regarding swelling
in his right leg. On November 19, 2013, Dr. Coyle reported to Dr. Kumar that plaintiff
“continues to suffer from significant chronic venous insufficiency and right lower
extremity swelling.” Dr. Coyle prescribed compression stockings and stated that
“[e]levation for thirty minutes 4 times a day is a goal I encouraged him to achieve
whenever possible.”
In October 2013, Dr. Kumar and Nurse Jacob completed a Treating Source
Statement, indicating that plaintiff would have serious problems performing daily
activities, interacting with others and performing normal work activities, especially on a
sustained basis of eight hours per day during a five-day week.
State Agency Medical Opinions
On July 8, 2013, Dr. Lorenzo reviewed the record evidence and determined that
plaintiff could occasionally lift twenty pounds and frequently lift ten pounds; that he could
stand or walk for four hours and sit for about six hours in an eight hour workday; that he
could occasionally climb ramps, stairs, ladders ropes and scaffolds; that he could
occasionally kneel, crouch and crawl; and that he had no manipulative, visual,
communicative or environmental limitations.
On November 5, 2013, Dr. Jacobs reviewed the record evidence and determined

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that plaintiff could occasionally lift twenty pounds and frequently lift ten pounds; that he
could stand or walk for a total of four hours and sit for about six hours in an eight-hour
work day; that plaintiff could occasionally climb ramps, stirs, ladders, ropes and
scaffolds and occasionally kneel, crouch and crawl; that he could frequently balance;
and that he had no manipulative, visual, communicative or environmental limitations.
On November 5, 2013, Dr. Swanson reviewed the record and determined that
plaintiff had mild restrictions in activities of daily living, maintaining social functioning,
concentration, persistence or pace.
ALJ Designation of Weight
The ALJ explained that he designated great weight to the opinions of the state
agency nonexamining physicians, which were consistent with his findings regarding
plaintiff’s ability to perform sedentary work with limitations and the medical evidence
record. He also indicated that he had assigned little weight to the findings of Dr.
Swanson’s opinion that plaintiff had mild limitations in concentration, persistence and
pace; the ALJ explained that record evidence and plaintiff’s testimony indicated that
plaintiff’s depressive symptoms limited him to performing simple work related activities.
He specified that he had assigned little weight to the opinion of Dr. Kumar and
Nurse Jacob because it appeared inconsistent with other record evidence, including
plaintiff’s own report that his depression symptoms were generally under control and
with a 2013 consultative evaluation of plaintiff by Dr. Marc Hillibrand, who found that
plaintiff was alert, and had normal attention, memory and concentration. The ALJ also
noted that Jacobs and Kumar were internal medicine providers with no indication that
they had treated plaintiff for psychological impairment. Here, the ALJ’s designation of

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the weight assigned to the opinions of Jacobs and Kumar reflects consideration of the
treating relationship and the relevant medical evidence.
As to the weight assigned to Dr. Coyle’s November 2013 letter to Dr. Kumar, the
ALJ noted that Dr. Coyle indicated that there was no surgery to correct plaintiff’s
problems and that he encouraged plaintiff to elevate his leg for thirty minutes four times
a day. He explained that Dr. Coyle’s findings were based on plaintiff’s subjective
complaints. Additionally, the ALJ cited to specific examples of contradictory evidence in
the record, including plaintiff’s own denials of leg swelling, gait abnormalities, paintingling or numbness in 2013.
The Court finds that the ALJ has properly applied the treating physician rule and
has not arbitrarily substituted his own opinions for that of competent medical opinion.
Listing Impairments
Plaintiff challenges the ALJ’s consideration of his impairments, particularly with
regard to satisfying the Listing requirements of 1.02 (Major dysfunction of the joint) and
1.03 (Amputation). Defendant maintains that the ALJ properly found that plaintiff did not
have an impairment or combination thereof that satisfied one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
A plaintiff must show that an impairment meets a listing according to all of the
specified medical criteria of that listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
To meet the relevant listing---Listing 1.02A Major dysfunction of a joint---plaintiff must
establish that he is unable “to ambulate effectively, as defined in 1.00B2b.” 20 C.F.R.
Pt. 404, Subpt P, App’x1, Section 1.02A.

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Inability to ambulate effectively is defined by Listing 100.B2b 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 extremities.”
To meet the criteria of Listing 1.05B, a plaintiff must establish amputation of
“[o]ne or both lower extremities at or above the tarsal region, with stump complications
resulting in medical inability to use a prosthetic device to ambulate effectively, as
defined in 1.00B2b, which have lasted or are expected to last for at least 12 months.”
Plaintiff claims that his “arterial and overuse complication of the right leg”
establishes an equivalence with a listing. An impairment is medically equivalent to a
listing if claimant has other findings related to his impairment that are at least of equal
medical significance to the required criteria. 20 C.F.R. § 404.1526.
In this instance, the record evidence indicates that plaintiff can walk without the
use of a hand-held device that limits the function of both of his upper extremities.
Further, plaintiff has not shown that he had complications resulting in an inability to
ambulate effectively for at least twelve months. Accordingly, the Court finds that the ALJ
did not err in his consideration of the Listing impairments, which finding is supported by
substantial record evidence.
Residual Functional Capacity (“RFC”)
Plaintiff argues that the ALJ erred by failing to consider his asserted

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cardiomyopathy that was indicated by an EKG test; his chondromalacia; his
degenerative joint disease; and his veinous insufficiency in the determination of
plaintiff’s sedentary work capacity.
In making an RFC determination, an ALJ should consider all of a claimant’s
medically-determinable impairments of which he is aware, including those that are not
severe. 20 C.F.R. § 404.1545(a)(2). Plaintiff is required to demonstrate the
detrimental effect of any such non severe impairments upon his functional abilities.
See 20 CFR § 404.1545(a)(3). Here, plaintiff has not shown how these diagnoses have
limited his functionality. In accordance with the Court’s prior discussion of the record
and medical opinions, the Court finds that the ALJ’s RFC determination is supported by
substantial evidence.
Credibility
Plaintiff attacks the ALJ’s credibility determination on the ground that he failed
to afford appropriate consideration to plaintiff’s work history. The ALJ found that
plaintiff’s statements concerning the intensity, persistence and limiting effects of his
symptoms was not credible.
The ALJ looks to the record as a whole and weighs all the evidence to make a
credibility determination. SSR 96-7. The ALJ must resolve evidentiary conflicts and
appraise the credibility of a witness. Wavercak v. Astrue, 420 F. App’x 91, 94 (2d
Cir. 2011). “[A] good work history may be deemed probative of credibility … [but] is just
one of many factors appropriately considered in assessing credibility.” Id.
Here, the ALJ’s credibility determination referenced plaintiff’s past work history,
the activities that plaintiff had described in his testimony, and the medical record

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evidence. The ALJ explained that plaintiff has used his prosthetic with minimal
complications other than adjustments; that the record shows minimal psychological
treatment or complaints noted in the record; that plaintiff can drive, ambulate
independently, perform yard work and care for his children. The ALJ also pointed out
that plaintiff testified that he had stopped doing yard work or household chores, but an
August 2014 treatment note indicated that he had complained of soreness after doing
yard work. The Court finds no error in the ALJ’s credibility determination. Accordingly,
the Court will affirm the decision of the Commissioner.
CONCLUSION
For the foregoing reasons, the plaintiff’s motion for order reversing the
Commissioner’s decision [doc.11] is DENIED; and the defendant’s motion [doc. 12] to
affirm the decision of the Commissioner is GRANTED.
The clerk is instructed to enter judgment in favor of the Commissioner and to
close this case.
/s/Warren W. Eginton______________________
Warren W. Eginton
Senior United States District Judge
Dated this 6th day of September 2017 at Bridgeport, Connecticut.

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