Whitley v. Colvin
Filing
31
RULING. For the reasons set forth in the attached Ruling, plaintiff's 22 Motion to Reverse the Decision of the Commissioner is DENIED, and defendant's 27 Motion to Affirm the Decision of the Commissioner is GRANTED. Signed by Judge Sarah A. L. Merriam on 2/23/2018. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
KIMBERLY ANN WHITLEY
:
:
v.
:
:
CAROLYN W. COLVIN,
:
ACTING COMMISSIONER OF
:
SOCIAL SECURITY
:
:
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Civ. No. 3:17CV00121(SALM)
February 23, 2018
RULING ON CROSS MOTIONS
Plaintiff Kimberly Ann Whitley (“plaintiff”), brings this
appeal under §205(g) of the Social Security Act (the “Act”), as
amended, 42 U.S.C. §405(g), seeking review of a final decision
by the Commissioner of the Social Security Administration (the
“Commissioner” or “defendant”) denying her application for
Disability Insurance Benefits (“DIB”) under the Act. Plaintiff
has moved to reverse the decision of the Commissioner, or in the
alternative, for remand to the Social Security Administration
for a new hearing. [Doc. #22].
For the reasons set forth below, plaintiff’s Motion for
Order Reversing the Decision of the Commissioner [Doc. #22] is
DENIED, and defendant’s Motion for an Order Affirming the
Decision of the Commissioner [Doc. #27] is GRANTED.
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I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on March 25, 2011,
alleging disability beginning September 28, 2009. See Certified
Transcript of the Administrative Record, compiled on March 31,
2017, (hereinafter “Tr.”) 504-05. Plaintiff’s application was
denied initially on June 21, 2011, see Tr. 373-76, and upon
reconsideration on September 19, 2011. See Tr. 377-79.
On March 14, 2012, plaintiff, represented by Attorney Joe
Smith, appeared and testified at a hearing before Administrative
Law Judge (“ALJ”) Gilbert Rodriguez. See Tr. 253-93. On June 29,
2012, ALJ Rodriguez issued an unfavorable decision. See Tr. 34463. On December 12, 2013, the Appeals Council vacated ALJ
Rodriguez’s decision and remanded the matter. See Tr. 364-69.
Plaintiff, again represented by Attorney Joe Smith, appeared and
testified at a hearing before Administrative Law Judge Ronald J.
Thomas on December 4, 2014. See Tr. 294-341. Vocational Expert
(“VE”) Larry Takki also testified at that hearing. See Tr. 33337. On April 24, 2015, the ALJ issued an unfavorable decision.
See Tr. 219-42. On December 9, 2016, the Appeals Council denied
plaintiff’s request for review, thereby making the ALJ’s April
24, 2015, decision the final decision of the Commissioner. See
Tr. 1-7. The case is now ripe for review under 42 U.S.C.
§405(g).
~ 2 ~
Plaintiff timely filed this action for review and now moves
to reverse the Commissioner’s decision, or in the alternative,
to remand for a new hearing. See Doc. #22. On appeal, plaintiff
argues:
1.
The ALJ failed to consider plaintiff’s diagnosis of
rhabdomyolysis;
2.
The ALJ improperly evaluated plaintiff’s fibromyalgia;
3.
The ALJ failed to assess plaintiff’s impairments in
combination;
4.
The ALJ failed to develop the record;
5.
The ALJ improperly weighed Dr. Manuel Pecana’s medical
source statement; and
6.
The ALJ’s vocational analysis was insufficient.
See generally Doc. #22-1. As set forth below, the Court finds
that the ALJ did not err as contended by plaintiff, and that the
ALJ’s determination is supported by substantial evidence.
II.
STANDARD OF REVIEW
The review of a Social Security disability determination
involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation
~ 3 ~
omitted). Substantial evidence is evidence that a reasonable
mind would accept as adequate to support a conclusion; it is
more than a “mere scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). The reviewing court’s responsibility is
to ensure that a claim has been fairly evaluated by the ALJ. See
Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.” (citing Tejada v. Apfel, 167 F.3d 770, 773-74 (2d
Cir. 1999))). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
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“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alterations added) (citing Treadwell v. Schweiker, 698 F.2d
137, 142 (2d Cir. 1983)). The ALJ is free to accept or reject
the testimony of any witness, but a “finding that the witness is
not credible must nevertheless be set forth with sufficient
specificity to permit intelligible plenary review of the
record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 26061 (2d Cir. 1988) (citing Carroll v. Sec. Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, No. 3:13CV73(JCH), 2014 WL
1304715, at *6 (D. Conn. Mar. 31, 2014) (citing Peoples v.
Shalala, No. 92CV4113, 1994 WL 621922, at *4 (N.D. Ill. Nov. 4,
1994)).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
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substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)). “[W]hether there is substantial evidence
supporting the appellant’s view is not the question here;
rather, we must decide whether substantial evidence supports the
ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58,
59 (2d Cir. 2013) (citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, a plaintiff must demonstrate that he or
she is unable to work after a date specified “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). Such impairment or impairments
must be “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
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§423(d)(2)(A); 20 C.F.R. §404.1520(c) (requiring that the
impairment “significantly limit[] ... physical or mental ability
to do basic work activities” to be considered “severe”).1
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520. In the Second
Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary 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 Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
Some of the Regulations cited in this decision were amended,
effective March 27, 2017. Throughout this decision, and unless
otherwise specifically noted, the Court applies and references
the versions of those Regulations that were in effect at the
time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x
801, 805 n.2 (2d Cir. 2012) (applying and referencing version of
regulation in effect when ALJ adjudicated plaintiff’s claim);
see also Alvarez v. Comm’r of Soc. Sec., No. 14CV3542(MKB), 2015
WL 5657389, at *11 n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he Court
considers the ALJ’s decision in light of the regulation in
effect at the time of the decision.” (citing Lowry, 474 F. App’x
at 805 n.2)).
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1
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming the claimant does not have 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
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given [her] residual functional capacity.” Gonzalez ex rel.
Guzman v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243
(2d Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003));
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per
curiam)). The Residual Functional Capacity (“RFC”) is what a
person is still capable of doing despite limitations resulting
from his physical and mental impairments. See 20 C.F.R.
§404.1545(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
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based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that ‘the Social Security Act is a remedial statute to be
broadly construed and liberally applied.’” Id. (quoting Haberman
v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)).
IV.
THE ALJ’S DECISION
Following the above-described five-step evaluation process,
ALJ Thomas concluded that plaintiff was not disabled under the
Act during the relevant time period. See Tr. 233. As the ALJ
noted, the relevant timeframe for this DIB application is from
the alleged onset date of September 28, 2009, through the date
of last insured, December 31, 2010. See Behling v. Comm’r of
Soc. Sec., 369 F. App’x 292, 294 (2d Cir. 2010) (stating that to
be entitled to DIB, plaintiff “[is] required to demonstrate that
she was disabled as of the date on which she was last insured”
(citing 42 U.S.C. §423(a)(1)(A))). At step one, the ALJ found
that plaintiff had not engaged in substantial gainful activity
during the period from the alleged onset date of September 28,
2009, through December 31, 2010. See Tr. 224. At step two, the
ALJ found that plaintiff had the severe impairments of
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“migraine; hypothyroidism; degenerative disc disease of the
cervical and thoracic spine; obesity; fibromyalgia; lower
extremity dystonia; conversion disorder; major depressive
disorder.” Tr. 224.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
any of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P,
App. 1. See Tr. 225-27. The ALJ specifically considered Listings
1.04 (disorders of the spine); neurological listings in section
11.00; thyroid disorders in section 9.00; 14.09 (inflammatory
arthritis); 12.04 (affective disorders); and 12.07 (somatoform
disorders). See Tr. 225-27. Before moving on to step four, the
ALJ found plaintiff had the RFC to perform sedentary work as
defined in 20 C.F.R. §404.1567(b). See Tr. 227. The ALJ found
that plaintiff was further limited to
occasional bending, twisting, squatting, kneeling,
crawling, climbing, and balancing. She needed to avoid
hazards such as heights, vibration, and dangerous
machinery -- including driving. She was limited to
occasional interaction with co-workers, supervisors, and
the general public. She was further limited to simple,
routine, repetitious work.
Tr. 227.
At step four, the ALJ concluded that plaintiff was not
capable of performing her past relevant work. See Tr. 231. At
step five, after considering plaintiff’s age, education, work
~ 10 ~
experience, and RFC, and after consulting a VE, the ALJ found
that there existed jobs in significant numbers in the national
economy that plaintiff could perform. See Tr. 232-33.
V.
DISCUSSION
Plaintiff raises six arguments in support of reversal or
remand. See generally Doc. #22-1. The Court will address each
argument in turn.
A.
Plaintiff’s Diagnosis of Rhabdomyolysis
Plaintiff first argues the ALJ erred because “the ALJ’s
decision did not address the issue of Ms. Whitley’s
rhabdomyolysis at all.” Doc. #22-1 at 24. Defendant does not
specifically address plaintiff’s rhabdomyolysis diagnosis, but
contends that the ALJ properly considered all of plaintiff’s
medical conditions. See Doc. #27-1 at 4.
A step two determination requires the ALJ to determine the
severity of the plaintiff’s impairments. See 20 C.F.R.
§404.1520(a)(4)(ii); see also id. at (c). An impairment “must
have lasted or must be expected to last for a continuous period
of at least 12 months.” 20 C.F.R. §404.1509. Where plaintiff
alleges multiple impairments, “each medically determinable
impairment must meet the twelve-month durational requirement
before it can be considered as part of a combination of
impairments affecting disability.” Iannopollo v. Barnhart, 280
~ 11 ~
F. Supp. 2d 41, 47 (W.D.N.Y. 2003). “At the second step of the
sequential evaluation, a claimant bears the burden of showing
that she has an impairment or combination of impairments which
significantly limits the physical or mental ability to do basic
work activity.” Texidor v. Astrue, No. 3:10CV701(CSH), 2014 WL
4411637, at *16 (D. Conn. Sept. 8, 2014) (internal citation and
quotation marks omitted); see also Jimmeson v. Berryhill, 243 F.
Supp. 3d 384, 390 (W.D.N.Y. 2017) (“[P]laintiff bears the burden
of proof at Step Two.”); 20 C.F.R. §404.1512(a).
Although plaintiff now contends the ALJ erred in not
considering her rhabdomyolysis, plaintiff did not identify
rhabdomyolysis as a physical impairment in her brief to the ALJ,
or mention it in her summary of medical records. See Tr. 652-66.
Plaintiff was first diagnosed with rhabdomyolysis, “most likely
viral[,]” by Dr. Humera Ahmed on January 18, 2009. Tr. 931-32.
Dr. Jan Picket includes a diagnosis of rhabdomyolysis in her
early assessments of plaintiff, dated: February 5, 2009, see Tr.
818-21; February 19, 2009, see Tr. 807-10; March 2, 2009, see
Tr. 803-06; April 6, 2009, see Tr. 797-800; and April 15, 2009,
see Tr. 792-96. However, in her April 21, 2009, assessment, Dr.
Picket no longer included rhabdomyolysis as a diagnosis. See Tr.
782-85. Dr. Picket does not include a diagnosis or discussion of
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rhabdomyolysis in any of her later reports, the last of which is
dated October 15, 2009. See Tr. 746-97.
None of the other providers plaintiff saw throughout the
summer or fall of 2009 diagnosed plaintiff with rhabdomyolysis.
See generally Tr. 686-2434. Accordingly, there is no evidence in
the record that plaintiff’s rhabdomyolysis lasted for twelve
months, and the ALJ properly excluded it from his analysis. The
Court further notes that plaintiff alleges an onset date for her
disability of September 28, 2009. See Tr. 504. The record does
not contain any evidence that plaintiff suffered from
rhabdomyolysis at any point after September 28, 2009.
B.
Evaluation of Plaintiff’s Fibromyalgia
Plaintiff argues that the ALJ erred in assessing the impact
of her fibromyalgia. See Doc. #22-1 at 25. Defendant argues that
the ALJ properly assessed plaintiff’s fibromyalgia, and that
substantial evidence supports his assessment. See Doc. #27-1 at
5-6.
Plaintiff relies on Social Security Ruling (“SSR”) 12-2p,
which provides guidance for the assessment of the statements by
a person alleging fibromyalgia “about his or her symptoms and
functional limitations[.]” SSR 12-2p, 2012 WL 3104869, at *5
(S.S.A. July 25, 2012). The Guidance begins by instructing the
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ALJ to follow the ordinary two-step process for evaluating
symptoms. See id. The first step is:
There must be medical signs and findings that show the
person has [a Medically Determinable Impairment] which
could reasonably be expected to produce the pain or other
symptoms alleged. [Fibromyalgia] which we determined to
be [a Medically Determinable Impairment] satisfies the
first step of our two-step process for evaluating
symptoms.
Id. The ALJ found that fibromyalgia was a severe impairment, and
that “the claimant’s medically determinable impairments could
reasonably be expected to cause [her] alleged symptoms[.]” Tr.
231. This satisfies the first step of the two-step process.
The ALJ is then directed to
evaluate the intensity and persistence of the person’s
pain or any other symptoms and determine the extent to
which the symptoms limit the person’s capacity for work.
If objective medical evidence does not substantiate the
person’s statements about the intensity, persistence,
and functionally limiting effects of symptoms, we
consider all of the evidence in the case record,
including the person’s daily activities, medications or
other treatments the person uses, or has used, to
alleviate symptoms; the nature and frequency of the
person’s attempts to obtain medical treatment for
symptoms; and statements by other people about the
person’s symptoms. As we explain in SSR 96-7p, we will
make a finding about the credibility of the person’s
statements regarding the effects of his or her symptoms
on functioning.
Id. The ALJ is expressly permitted to consider “all of the
evidence in the case record” at this stage and will then make a
credibility assessment.
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At this second step, the ALJ must consider: (1) the
plaintiff’s
daily
activities;
(2)
the
location,
duration, frequency, and intensity of the plaintiff’s
pain
or
other
symptoms;
(3)
precipitating
and
aggravating
factors;
(4)
the
type,
dosage,
effectiveness, and side effects of any medication the
plaintiff takes or has taken to relieve her pain or other
symptoms; (5) other treatment the plaintiff receives or
has received to relieve her pain or other symptoms; (6)
any measures that the plaintiff takes or has taken to
relieve her pain or other symptoms; and (7) any other
factors concerning plaintiff’s functional limitations
and restrictions due to her pain or other symptoms
Kenyon v. Comm’r of Soc. Sec., No. 5:16CV260(WBC), 2017 WL
2345692, at *8 (N.D.N.Y. May 30, 2017) (citing 20 C.F.R.
§404.1529(c)(3)(i)-(vii)).
The Second Circuit has recognized “that fibromyalgia is a
disabling impairment and that there are no objective tests which
can confirm the disease.” Green-Younger v. Barnhart, 335 F.3d
99, 108 (2d Cir. 2003) (internal citation and quotation marks
omitted). However, a “mere diagnosis of fibromyalgia without a
finding as to the severity of symptoms and limitations does not
mandate a finding of disability.” Rivers v. Astrue, 280 F. App’x
20, 22 (2d Cir. 2008). In fact, in fibromyalgia cases, “the
credibility of the claimant’s testimony regarding her symptoms
takes on substantially increased significance in the ALJ’s
evaluation of the evidence[.]” Coyle v. Apfel, 66 F. Supp. 2d
368, 376 (N.D.N.Y. 1999).
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Although “the subjective element of pain is an important
factor to be considered in determining disability[,]” Mimms v.
Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (citation omitted), an
ALJ is not “required to credit [plaintiff’s] testimony about the
severity of her pain and the functional limitations it caused.”
Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008). “The ALJ
has discretion to evaluate the credibility of a claimant and to
arrive at an independent judgment, in light of medical findings
and other evidence, regarding the true extent of the pain
alleged by the claimant.” Marcus v. Califano, 615 F.2d 23, 27.
“If the [Commissioner’s] findings are supported by substantial
evidence, the court must uphold the ALJ’s decision to discount a
claimant’s subjective complaints.” Aponte v. Sec’y, Dep’t of
Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
“Credibility findings of an ALJ are entitled to great deference
and therefore can be reversed only if they are patently
unreasonable.” Pietrunti v. Dir., Office of Workers’ Comp.
Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (internal citation
and quotation marks omitted).
In this case, plaintiff’s objection is to the ALJ’s
determination, at the second step of the two-step credibility
analysis, that “the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms
~ 16 ~
are not entirely credible[.]” Tr. 231. Specifically, plaintiff
alleges that the ALJ improperly required objective evidence
during the second step of this analysis, based on the ALJ’s
comment that “the regulations require that a claimant’s symptoms
must result from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Doc. #22-1 at
25-26 (quoting the ALJ’s decision). The Court disagrees with
plaintiff’s reading of the ALJ’s decision. The ALJ’s comment
accurately reflects the requirements of the first step, see 20
C.F.R. §404.1529(b), and does not indicate that the ALJ failed
to consider the record as a whole when evaluating plaintiff’s
credibility during the second step. The ALJ properly relied on
the full record, including the objective medical evidence,
plaintiff’s treatment notes, the treatment plaintiff has
received for her impairments, and plaintiff’s activities of
daily living. See Tr. 225-31.
In assessing plaintiff’s symptoms, the ALJ considered the
medical evidence, and noted several areas where the medical
record contradicted plaintiff’s subjective complaints. See Tr.
225-31. The ALJ noted that plaintiff “was not always cooperative
during physical examinations. Several clinicians questioned her
effort or possible malingering.” Tr. 226. The ALJ considered
~ 17 ~
that although plaintiff claimed to need a wheelchair, no doctor
had actually prescribed a wheel chair. See Tr. 231 (“There has
been no rationale given for the need for a wheelchair, which the
claimant’s husband provided to her. There is no indication that
it was prescribed.”). The Court notes that plaintiff reported in
a Function Report dated May 26, 2011, that she used a walker and
a wheelchair, and that they had been prescribed by a doctor in
2009. See Tr. 562. As the ALJ observed, the record does not
support the assertion that a wheelchair was prescribed.2
The ALJ appropriately took particular note of a report by
Dr. Mounir Borno, who had been the attending physician during
plaintiff’s inpatient hospitalization from September 25, 2009,
through October 2, 2009. See Tr. 871-73. In plaintiff’s
discharge summary, Dr. Borno described plaintiff’s treatment,
and stated: “When the patient would be observed unaware, she was
able to mobilize quite normally. Otherwise, she was crawling on
the floor stating that she could not walk.” Tr. 872.
The ALJ also reviewed plaintiff’s self-reported daily
activities. See Tr. 228. The ALJ described plaintiff’s testimony
that she could not prepare meals or do laundry, but that she did
some mild dusting. See Tr. 228. Plaintiff testified that she did
Plaintiff points to no evidence of record supporting the notion
that a doctor prescribed a wheelchair for plaintiff.
~ 18 ~
2
not go out alone, but went grocery shopping with her husband,
and that she had flown to Connecticut to stay with her parents
in 2010 and 2011. See Tr. 228. The Court further notes that
plaintiff’s May 26, 2011, Function Report states that she did
not shop, and that she only left the house for appointments, in
contradiction of her hearing testimony that she had flown to
Connecticut and that she went shopping with her husband. See Tr.
559-60. The same Function Report indicates that plaintiff could
walk one mile before she needed to stop and rest, and that she
then needed a five-minute rest before she could resume walking.
See Tr. 561. The conclusion that plaintiff was able to walk, but
limited in how far she could walk -– rather than being
completely unable to walk and being confined to a wheelchair –is further supported by the report of vocational rehabilitation
counselor, Shelaine Hayes. See Tr. 591. In a letter to
plaintiff’s attorney, Ms. Hayes noted that plaintiff reported a
variety of difficulties, including trouble “walking long
distances.” Tr. 591.
Plaintiff assumes that simply because the ALJ found her
lacking in credibility, the ALJ must have misapplied the
standard for evaluation of fibromyalgia. The Court disagrees.
Here, the ALJ evaluated the evidence of record and pointed to
specific evidence that directly contradicts plaintiff’s claims
~ 19 ~
as to the severity of her symptoms. Plaintiff’s “reliance on
Green-Younger ... is misplaced because, unlike the instant
action, the disability determination in [that case] largely
turned upon the lack of objective findings in the record.”
Degnan v. Berryhill, No. 16CV197(LJV)(MJR), 2017 WL 5514305, at
*6 n.7 (W.D.N.Y. Oct. 16, 2017), report and recommendation
adopted, 2017 WL 5501081 (Nov. 16, 2017).
The ALJ’s credibility determination makes clear that he
considered the entire record. The ALJ found plaintiff not
credible for several reasons, including that her claim that she
was completely unable to walk and needs a wheelchair was
directly and strongly contradicted by other evidence. The ALJ
identified specific reasons for his credibility determination,
which are supported by substantial evidence in the record. The
Court therefore will not second-guess his decision. See Stanton
v. Astrue, 370 F. App’x 231, 234 (2d Cir. 2010). “It is the
function of the Secretary, not [the court], to resolve
evidentiary conflicts and to appraise the credibility of
witnesses, including the claimant.” Carroll, 705 F.2d at 642.
The ALJ committed no legal error in reaching his decision
regarding plaintiff’s credibility, and that decision is
supported by substantial evidence; therefore, the Court finds no
error.
~ 20 ~
C.
Assessing Plaintiff’s Impairments in Combination
Plaintiff argues that the ALJ failed to consider her
impairments in combination. See Doc. #22-1 at 23. Specifically,
plaintiff argues that the ALJ failed to consider how plaintiff’s
lower extremity dystonia, obesity, fibromyalgia, and migraine
headaches impacted her other impairments.3 See id. at 24-28.
Defendant argues that the ALJ properly considered all of
plaintiff’s medical conditions, and that his findings are
supported by substantial evidence. See Doc. #27-1 at 6-7.
The Commissioner is required to “consider the combined
effect of all of [the claimant’s] impairments without
regard to whether any such impairment, if considered
separately, would be of sufficient severity” to
establish eligibility for Social Security benefits. 20
C.F.R. §404.1523. And, if the Commissioner “do[es] find
a medically severe combination of impairments, the
combined impact of the impairments will be considered
throughout the disability determination process.” Id.;
see also 20 C.F.R. §416.945(a)(2). Our case law is plain
Plaintiff emphasizes the severity of her symptoms in the summer
of 2009. See Doc. #22-1 at 25 (“But in the summer of 2009 she
was not merely suffering from intractable migraine headaches;
she had been diagnosed with hypothyroidism, dizziness,
rhabdomyolysis, chronic fatigue, severe abdominal pain and
fibromyalgia as well.”). However, plaintiff’s alleged onset date
is September 28, 2009, and the ALJ was required to determine if
she was disabled after that date. See Healy v. Colvin, No.
3:15CV01579(JAM), 2016 WL 4581403, at *2 (D. Conn. Sept. 2,
2016) (“The relevant time period for determining whether
plaintiff was disabled for purposes of her entitlement
to disability insurance benefits, then, runs from the alleged
date of the onset of her disability ... through the [date of
last insured.]”).
3
~ 21 ~
that “the combined effect of a claimant’s impairments
must be considered in determining disability; the
[Commissioner] must evaluate their combined impact on a
claimant’s ability to work, regardless of whether every
impairment is severe.” Dixon v. Shalala, 54 F.3d 1019,
1031 (2d Cir. 1995)[.]
Burgin v. Astrue, 348 F. App’x 646, 647 (2d Cir. 2009). Because
the ALJ found plaintiff to have severe impairments, he was
required to consider the combined impact of plaintiff’s
impairments “throughout the disability determination process.”
Id.
1.
The ALJ’s Listings Analysis
“Plaintiff has the burden of proof at step three to show
that her impairments meet or medically equal a Listing.”
Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y. 2009);
see also Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(“[T]he claimant bears the burden of proof as to the first four
steps, while the Secretary must prove the final one.”). “For a
claimant to qualify for benefits by showing that [her] unlisted
impairment, or combination of impairments, is ‘equivalent’ to a
listed impairment, [s]he must present medical findings equal in
severity to all the criteria for the one most similar listed
impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990).
In considering the combined effects of plaintiff’s
impairments, “obesity can rise to the level of a disabling
impairment under certain circumstances -- generally speaking,
~ 22 ~
when it increases the severity of coexisting impairments,
particularly those affecting the musculoskeletal, cardiovascular
and respiratory systems.” Crossman v. Astrue, 783 F. Supp. 2d
300, 309 (D. Conn. 2010). “[T]he ALJ is required to consider the
effects of obesity in combination with other impairments
throughout the five-step evaluation process.” Id.; see also SSR
02-1p, 2012 WL 34686281, at *5 (S.S.A. Sept. 12, 2002)
(“[O]besity may increase the severity of coexisting or related
impairments to the extent that the combination of impairments
meets the requirements of a listing.”). However, the ALJ “will
not make assumptions about the severity or functional effects or
obesity combined with other impairments.” Id. at 6. “Obesity in
combination with another impairment may or may not increase the
severity or functional limitations of the other impairment. We
will evaluate each case based on the information in the case
record.” Id.
In this case, the ALJ explicitly considered plaintiff’s
impairments in combination when determining whether plaintiff
met a Listing. See Tr. 225. (“Through the date last insured, the
claimant did not have an impairment or combination of
impairments that met or medically equaled the severity of one of
the listed impairments[.]”). In considering the neurological
Listings in section 11.00, the ALJ considered “several of the
~ 23 ~
claimant’s severe impairments, including migraine, fibromyalgia,
and dystonia.” Tr. 225. The ALJ also explicitly considered the
“severity of the claimant’s mental impairments, considered
singly and in combination[.]” Tr. 225. The ALJ does not list out
plaintiff’s impairments in explaining why she does not meet
Listing 1.04, Listing 14.09, or the Listings in 9.00. See Tr.
225. However, the ALJ’s decision explains why he found plaintiff
does not meet those listings, and it is apparent from the ALJ’s
analysis that he considered plaintiff’s impairments in
combination. Cf. Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d
443, 448 (2d Cir. 2012) (“An ALJ does not have to state on the
record every reason justifying a decision. Although required to
develop the record fully and fairly, an ALJ is not required to
discuss every piece of evidence submitted.” (internal citation
and quotation marks omitted)); see also Salmini v. Comm’r of
Soc. Sec., 371 F. App’x 109, 112 (2d Cir. 2010) (“Although ...
an ALJ should set forth a sufficient rationale in support of his
decision to find or not to find a listed impairment, the absence
of an express rationale for an ALJ’s conclusions does not
prevent [the Court] from upholding them so long as [the Court
is] able to look to other portions of the ALJ’s decision and to
clearly credible evidence in finding that his determination was
~ 24 ~
supported by substantial evidence.” (citation and internal
quotation marks omitted)).
When considering plaintiff’s obesity, the ALJ specifically
noted that “[o]besity also has possible effects causing or
contributing to impairments of other body systems.” Tr. 225.
However, the ALJ found that “[a]lthough the claimant’s weight
has fluctuated through the record, the evidence of record does
not reflect adverse effects of obesity on any body system to the
degree that the claimant would have an impairment of Listing
severity.” Tr. 225. As SSR 02-1p indicates, obesity “may or may
not increase the severity or functional limitations of the other
impairment[s].” SSR 02-1p, 2012 WL 34686281, at *6. In this
case, the ALJ properly considered the potential for obesity to
increase the severity of plaintiff’s other impairments, and he
concluded that it did not.
The Court finds that the ALJ properly considered
plaintiff’s impairments, including her obesity, in combination
when determining whether plaintiff met a Listing, and there is
no error. The Court further notes that plaintiff does not
identify any Listing that she believes she met as of her last
date insured, and substantial evidence supports the ALJ’s
finding that she did not meet a Listing prior to December 31,
2010.
~ 25 ~
2.
The ALJ’s RFC Analysis
Plaintiff’s RFC is “the most [she] can still do despite
[her] limitations.” 20 C.F.R. §404.1545(a)(1). “It is important
that all impairments be evaluated in combination, since RFC is
whatever ability one retains after the effects of all
impairments (exertional and non-exertional; environmental and
non-environmental; severe and non-severe) have been considered.”
Echevarria v. Astrue, No. 3:08CV01396(VLB), 2010 WL 21190, at *2
(D. Conn. Jan. 5, 2010).
In this case, the ALJ explicitly acknowledged the
requirement to consider all of plaintiff’s impairments. See Tr.
223 (“In making [an RFC] finding, the undersigned must consider
all of the claimant’s impairments, including impairments that
are not severe.”). The ALJ referenced Dr. Melvin Hu’s
assessments which diagnosed plaintiff with fibromyalgia and
dystonia. See Tr. 229 (“In October 2009, the claimant consulted
Dr. Hu, who diagnosed fibromyalgia and dystonia[.]”). The ALJ
considered the treatment Dr. Hu provided. See Tr. 229 (“The
claimant received trigger point injections in December 2009. She
also received facet joint injections under fluroscopy in
December 2009[.]”). The ALJ also considered numerous other
reports detailing plaintiff’s other impairments. See, e.g., Tr.
228-29 (discussing Dr. Mohan Penmetcha’s diagnosis of
~ 26 ~
fibromyalgia, hypothyroidism, migraine, and major depressive
disorder); Tr. 229 (discussing evaluations of plaintiff’s disc
protrusion); Tr. 229 (discussing a psychiatric evaluation that
indicated symptoms of major depressive disorder and a conversion
disorder). Additionally, the ALJ specifically considered
plaintiff’s obesity, noting that in September of 2009, “she was
5’5” and weighed 184 pounds.” Tr. 228.
The ALJ’s review of plaintiff’s medical records
demonstrates that he assessed an RFC that was based upon the
combination of all of plaintiff’s impairments. See Seekins v.
Astrue, No. 3:11CV264(TPS)(VLB), 2012 WL 4471266, at *7 (D.
Conn. Aug. 14, 2012) (finding no error when ALJ stated he
considered claimant’s impairments in combination and properly
examined the medical records and considered the combination of
impairments together in determining plaintiffs RFC), Recommended
Ruling adopted over objection, 2012 WL 4471265 (Sept. 27, 2012).
Accordingly, the ALJ did not fail to consider plaintiff’s
impairments in combination when determining her RFC. As
discussed in further detail below, the ALJ’s RFC determination
is supported by substantial evidence.
D.
The ALJ’s Development of the Record
Plaintiff contends that the ALJ erred in failing to more
fully develop the record. See Doc. #22-1 at 28. In particular,
~ 27 ~
plaintiff contends that the ALJ should have sought an assessment
of “what [plaintiff] can or cannot do.” Id. at 29. Defendant
contends that there are no obvious gaps in the record, and that
the record contains medical opinion statements from Dr. Stella
Nwankwo, Dr. Kristi Compton, and Dr. Manuel Pecana. See Doc.
#27-1 at 7-8.
“Because a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative
obligation to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996); see also Swiantek v.
Comm’r of Soc. Sec., 588 F. App’x 82, 84 (2d Cir. 2015) (same).
The applicable statutes and regulations require the ALJ to
develop plaintiff’s “complete medical history for at least the
twelve-month period prior to the filing of h[er] application,
[and] also to gather such information for a longer period if
there was reason to believe that the information was necessary
to reach a decision.” DeChirico v. Callahan, 134 F.3d 1177, 1184
(2d Cir. 1998) (alterations added); see also 42 U.S.C.
§423(d)(5)(B); 20 C.F.R. §404.1512(b)(1). “[W]here there are no
obvious gaps in the administrative record, and where the ALJ
already possesses a complete medical history, the ALJ is under
no obligation to seek additional information in advance of
rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79
~ 28 ~
n.5 (2d Cir. 1999) (quotation marks and citation omitted); see
also Walsh v. Colvin, No. 3:13CV687(JAM), 2016 WL 1626817, at *2
(D. Conn. Apr. 25, 2016) (“The ALJ, however, has a duty to
develop the record only if the evidence before her is inadequate
to determine whether the plaintiff is disabled.” (quotation
marks and citation omitted)).
Where “the record contains sufficient evidence from which
an ALJ can assess claimant’s residual functional capacity, a
medical source statement or formal medical opinion is not
necessarily required.” Monroe v. Comm’r of Soc. Sec., 676 F.
App’x 5, 8 (2d Cir. Jan. 18, 2017) (quotation marks and
citations omitted); see also Tankisi v. Comm’r of Soc. Sec., 521
F. App’x 29, 34 (2d Cir. 2013) (“[R]emand is not always required
when an ALJ fails in his duty to request opinions, particularly
where, as here, the record contains sufficient evidence from
which an ALJ can assess the petitioner’s residual functional
capacity.”).
“When an unsuccessful claimant files a civil action on the
ground of inadequate development of the record, the issue is
whether the missing evidence is significant, and plaintiff bears
the burden of establishing such harmful error.” Parker v.
Colvin, No. 3:13CV1398(CSH), 2015 WL 928299, at *12 (D. Conn.
Mar. 4, 2015) (quotation marks omitted); see also Santiago v.
~ 29 ~
Astrue, No. 3:10CV937(CFD), 2011 WL 4460206, at *2 (D. Conn.
Sept. 27, 2011) (“The plaintiff in the civil action must show
that he was harmed by the alleged inadequacy of the record[.]”
(citation omitted)). Furthermore, “the ALJ’s conclusions would
not be defective if he requested opinions from medical sources
and the medical sources refused.” Tankisi, 521 F. App’x at 3334.
Plaintiff identifies four medical source statements from
treating physicians in the record: Dr. Pecana’s statements dated
March 12, 2012, and January 16, 2015; and Dr. Duarte Machado’s
statements dated January 15, 2016, and October 25, 2016. See
Doc. #22-1 at 14-16. Plaintiff also notes the consultative
examination by Dr. Nwankwo performed on December 31, 2009, and
the consultative examination performed by Dr. Compton on January
10, 2012. See id. at 17-18.
In addition to these medical source statements, the record
contains reports from multiple other doctors who treated
plaintiff. These reports are not made up solely of charts and
graphs of medical findings, but include narrative explanations
of the doctors’ findings. See, e.g., Tr. 690 (Dr. Purvi
Sanghvi’s assessment, dated April 2, 2009, stating: “The patient
needs a walker at home.”); Tr. 1199-1201 (Dr. Daniel Hopson’s
assessment, dated April 16, 2009, finding plaintiff had full
~ 30 ~
range of motion of her upper and lower extremities without pain
or swelling and with normal gait and normal 5/5 strength); Tr.
879-880 (Dr. Alex D’Cruz’s assessment, dated September 29, 2009,
stating: “[W]hen observed unawares as when she is told to remove
her socks, etc., I did notice that she was able to move her feet
and toes up and down.”); Tr. 872 (Dr. Borno’s assessment, dated
October 6, 2009, stating: “When the patient would be observed
unaware, she was able to mobilize quite normally. Otherwise, she
was crawling on the floor stating that she could not walk.”);
Tr. 976 (Dr. Nwankwo’s assessment, dated December 31, 2009,
stating: “I believe there maybe elements of malingering.”).
In all, the record contains over 1500 pages of medical
records. See Tr. 686-2434. Although the record does not contain
a function-by-function assessment of plaintiff’s abilities prior
to her last date insured of December 31, 2010,4 it contains
numerous explanations of plaintiff’s medical issues and physical
limitations from which the ALJ could assess plaintiff’s RFC.
There was sufficient evidence in the record for the ALJ to
determine plaintiff’s RFC, and therefore the ALJ was under no
obligation to obtain additional medical opinions. See Swiantek,
588 F. App’x at 84 (“Given the extensive medical record before
Dr. Machado’s Report, dated January 15, 2016, provides a
function-by-function assessment as of that date. See Tr. 140-42.
~ 31 ~
4
the ALJ in this case, we hold that there were no obvious gaps
that necessitate remand solely on the ground that the ALJ failed
to obtain a formal opinion from one of [plaintiff’s] treating
physicians regarding the extent of [plaintiff’s] impairments in
the functional domain of caring for oneself.” (quotation marks
and citation omitted)).
Despite the inclusion of several medical source statements
in the record, plaintiff specifically contends that the ALJ
should have further developed the record because “[n]o medical
source statement assessing what Ms. Whitley can or cannot do
appears in the Record before this Court from Drs. Chebib,
Pickett, Hu, Penmetcha or Pecana.” Doc. #22-1 at 29.
Plaintiff’s attorney provided ALJ Rodriguez with medical
records from Dr. Paul Chebib. See Tr. 1052. Dr. Chebib’s records
indicate that he saw plaintiff in 1999 and 2000, and then again
in 2009. See Tr. 1054-92. Plaintiff’s last three visits with Dr.
Chebib were on August 31, 2009, and September 19, 2009, and
September 22, 2009. See Tr. 1055-57. On August 31, 2009,
plaintiff asked Dr. Chebib for a medical release to go back to
work full time. See Tr. 1057. During her visit with Dr. Chebib,
on September 19, 2009, plaintiff indicated that she was having
leg and back spasms. See Tr. 1055. On September 22, 2009, Dr.
Chebib recommended plaintiff transfer to another facility. See
~ 32 ~
Tr. 1214. There is no indication that Dr. Chebib ever evaluated
plaintiff’s physical abilities after her alleged onset date of
September 28, 2009. Based on this record, the Court cannot
conclude that the ALJ was required to seek a medical source
statement as to plaintiff’s functional abilities from Dr.
Chebib.
Plaintiff’s attorney also provided ALJ Rodriguez with
medical records from Dr. Penmetcha. See Tr. 1161. Dr. Penmetcha
saw plaintiff on two occasions, September 11, 2009, and October
23, 2009, and recommended plaintiff try physical therapy. See
Tr. 1165. Based on Dr. Penmetcha’s limited contact with
plaintiff, the Court cannot conclude that the ALJ was required
to seek a medical source statement from him.
Following plaintiff’s first hearing in 2011, ALJ Rodriguez
requested “a narrative report and/or copies of your records[]”
from Dr. Picket. See Tr. 686. The request asked Dr. Picket to:
“Based on objective evidence, describe the patient’s ability to
do work activities such as sit, stand, walk, lift, carry, handle
objects, hear, speak, and travel.” Tr. 687. Dr. Picket provided
over 150 pages of records, but did not include a functional
assessment. See Tr. 686-847. ALJ Rodriguez also requested “a
narrative report and/or copies of your records[]” from Dr. Hu.
See Tr. 946. The request again asked for a description of
~ 33 ~
plaintiff’s abilities. See Tr. 947. Dr. Hu provided 25 pages of
records, but he did not include a functional assessment. See Tr.
946-970. Based on ALJ Rodriguez’s direct requests for an
assessment from Dr. Picket and Dr. Hu in 2011, the Court finds
that the ALJ did not err by not re-contacting them in 2014. See
Tankisi, 521 F. App’x at 33-34 (“[T]he ALJ’s conclusions would
not be defective if he requested opinions from medical sources
and the medical sources refused.”).
As to Dr. Pecana’s medical source statement, after
plaintiff’s second hearing on December 4, 2014, the ALJ agreed
to leave the record open for 30 days so that plaintiff’s
attorney could submit additional materials from Dr. Pecana. See
Tr. 667. On January 14, 2015, plaintiff’s attorney requested an
additional 30 days to provide the information:
Originally, Dr. Pecana told me that he would get me a
report in time for the hearing. He didn’t. After the
hearing (in fact, about 2 hours after the hearing), I
had the first of several telephone conversations with
Dr. Pecana about the need for a report from him and his
willingness to provide it. He assure me that he would
provide a narrative report within the 30-day period.
However, he hasn’t. I’ve phoned and emailed him
repeatedly about this, but have not heard a reply.
Tr. 667. Dr. Pecana provided a narrative report on January 16,
2015, which is included in the record. See Tr. 2063-64.
Plaintiff’s attorney made multiple attempts to secure a medical
source statement from Dr. Pecana, and the ALJ left the record
~ 34 ~
open to receive it. The Court finds that the ALJ did not err by
not re-contacting Dr. Pecana to request a more complete
function-by-function analysis. Based on the repeated requests
made to Dr. Pecana, and the assessment he provided, no further
effort was required. See Tankisi, 521 F. App’x at 33-34.5
D.
Weight Assigned to Dr. Pecana’s Statements
Plaintiff next contends that the ALJ erred by not providing
“good reasons” for discounting Dr. Pecana’s medical source
statement. Doc. #22-1 at 34-35. Defendant has not responded to
this argument.
When weighing any medical opinion, the regulations require
that the ALJ consider the following factors: length of treatment
relationship; frequency of examination; nature and extent of the
treatment relationship; relevant evidence used to support the
opinion; consistency of the opinion with the entire record; and
the expertise and specialized knowledge of the source. See 20
C.F.R. §404.1527(c)(2)-(6); SSR 96-2P, 1996 WL 374188, at *2
The Court further notes that even if the ALJ had erred,
plaintiff has not established that any such error was
prejudicial. There is no basis to believe that any of these
doctors, who last treated plaintiff several years before the
ALJ’s hearing, would have any input on plaintiff’s abilities
between September 28, 2009, and December 31, 2010. See Parker,
2015 WL 928299, at *12 (“When an unsuccessful claimant files a
civil action on the ground of inadequate development of the
record, the issue is whether the missing evidence is
significant, and plaintiff bears the burden of establishing such
harmful error.” (quotation marks omitted)).
~ 35 ~
5
(S.S.A. July 2, 1996); SSR 06-03P, 2006 WL 2329939, at *3-4. The
Second Circuit does not require a “slavish recitation of each
and every factor [of 20 C.F.R. §404.1527(c)] where the ALJ’s
reasoning and adherence to the regulation are clear.” Atwater v.
Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (citing Halloran v.
Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004) (per curiam)). “The
regulations require that the Commissioner give good reasons in
the notice of determination or decision for the weight assigned
to the treating source’s opinion.” Burgin v. Astrue, 348 F.
App’x 646, 648 (2d Cir. 2009).
In this case, the ALJ considered the factors required under
20 C.F.R. §404.1527(c), and provided “good reasons” for
discounting Dr. Pecana’s opinion. In weighing Dr. Pecana’s
opinion, the ALJ specifically noted plaintiff’s testimony about
Dr. Pecana:
After her insurance ended in December 2009, that Dr.
Pecana, who was a personal friend and also a doctor,
treated
her
every
three
months
and
prescribed
medications. Dr. Pecana saw the claimant in his home,
and did not charge her. Dr. Pecana’s outstanding
treatment notes were also the subject of the remand. It
appears likely that Dr. Pecana did not keep treatment
notes for these sessions.
Tr. 230. This demonstrates that the ALJ expressly considered:
The length of treatment relationship (which began in late 2009);
frequency of examination (every three months); nature and extent
of the treatment relationship (that plaintiff saw Dr. Pecana in
~ 36 ~
his home; did not charge her; and wrote her prescriptions); and
relevant evidence used to support the opinion (that Dr. Pecana
did not keep any treatment notes from his sessions). After
considering all of these factors, the ALJ gave Dr. Pecana’s
opinion “limited weight, as it is not supported by any treatment
notes.” Tr. 230.
Plaintiff does not argue that any treatment notes exist,
but contends that the ALJ should not have discounted the weight
given to Dr. Pecana’s narrative. See Doc. #22-1 at 35 (arguing
that “[i]n the absence of treatment notes, the touchstone is the
consistency of the doctor’s conclusions/opinions with the
remainder of the available medical evidence”).
The lack of treatment notes of any kind goes to the
question whether Dr. Pecana’s opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. §404.1527(c)(2); see also Velez Santiago
v. Colvin, No. 3:16CV338(JCH), 2017 WL 618442, at *8 (D. Conn.
Feb. 15, 2017) (“A lack of support by medically acceptable
clinical and laboratory diagnostic techniques is a valid reason
to decline to give controlling weight to a treating physician
opinion.” (internal citation and quotation marks omitted)). Dr.
Pecana’s narrative statement does not indicate what, if any,
medically acceptable clinical and laboratory techniques he used
~ 37 ~
to reach his conclusions. Furthermore, his assessment that by
the end of 2009 plaintiff “could hardly sustain ambulations and
brisk mobility[,]” Tr. 2063, is contradicted by other medical
sources, as well as plaintiff’s own statements from 2011. The
Court finds no error in the ALJ’s assignment of limited weight
to Dr. Pecana’s narrative, based on the lack of any treatment
notes, and the other relevant factors.
The ALJ also properly noted that Dr. Pecana had not
provided a function-by-function assessment, but instead simply
concluded that plaintiff’s symptoms hindered her from
competitive employment. See Tr. 230-31. Although plaintiff
contends that this is not a valid reason to discount the
opinion, it is well-established that the determination of
whether a plaintiff is capable of gainful employment is reserved
for the Commissioner. See 20 C.F.R. §404.1527(d)(1) (“We are
responsible for making the determination or decision about
whether you meet the statutory definition of disability. ... 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.”); 20 C.F.R. §404.1513(b)-(c) (setting forth what
should be contained in medical reports and statements about what
a claimant can still do); see also Taylor v. Barnhart, 83 F.
App’x 347, 349 (2d Cir. 2003) (“Dr. Desai’s opinion that Taylor
~ 38 ~
was ‘temporarily totally disabled’ is not entitled to any
weight, since the ultimate issue of disability is reserved for
the Commissioner.” (citations omitted)); Jones-Reid v. Astrue,
934 F. Supp. 2d 381, 398 (D. Conn. 2012) (“[A] treating
physician’s statement that the claimant is disabled cannot
itself be determinative because that determination is reserved
to the Commissioner.” (citation and internal quotation marks
omitted)), aff’d, 515 F. App’x 32 (2d Cir. 2013). Accordingly,
the ALJ properly found that the question of whether plaintiff is
disabled is reserved to the Commissioner, and the ALJ was not
required to give weight to Dr. Pecana’s conclusory statement
that plaintiff was disabled.
Finally, the ALJ also noted that Dr. Pecana is “a personal
friend to the claimant,” and “is more likely to offer an opinion
that would assist her in obtaining benefits.” Tr. 230. Plaintiff
argues that the ALJ erred by considering Dr. Pecana’s
relationship with plaintiff in deciding how much weight to give
his statement. See Doc. #22-1 at 35.
The Second Circuit has held that an ALJ may consider a
doctor’s friendship with a patient while evaluating the nature
of their treatment relationship. See Heagney-O’Hara v. Comm’r of
Soc. Sec., 646 F. App’x 123, 126 (2d Cir. 2016) (Upholding an
ALJ’s decision where “the ALJ gave little weight to the opinion
~ 39 ~
of Dr. Tesser, finding that, although he was a rheumatologist,
he was friends with Heagney–O’Hara and lacked a treating
relationship with her.”); see also Dixon v. Massanari, 270 F.3d
1171, 1177 (7th Cir. 2001) (“We must keep in mind the biases
that a treating physician may bring to the disability
evaluation. The patient’s regular physician may want to do a
favor for a friend and client, and so the treating physician may
too quickly find disability.” (internal citation and quotation
marks omitted)).
In this case, the ALJ considered Dr. Pecana’s friendship
with plaintiff in the context of his treatment relationship with
her; that Dr. Pecana saw plaintiff in his home; did not charge
her; and did not keep records. In this context, the Court finds
no error in the ALJ considering Dr. Pecana’s friendship with
plaintiff while evaluating the “[n]ature and extent of the
treatment relationship.” 20 C.F.R. §404.1527(c)(2)(ii).
Furthermore, where the ALJ has provided good reason to
discount a medical opinion, the inclusion of other reasons may
be harmless error. See Bessette v. Colvin, No. 2:14CV164(JMC),
2015 WL 8481850, at *10 (D. Vt. Dec. 9, 2015) (“The error is
harmless, however, given that the ALJ gave several other legally
proper reasons to discount [the doctor’s] opinions and
substantial evidence supports those reasons.”); see also Snyder
~ 40 ~
v. Colvin, No. 5:13CV585(GLS)(ESH), 2014 WL 3107962, at *4
(N.D.N.Y. July 8, 2014) (“[A]dministrative legal error is
harmless when the same result would have been reached had the
error not occurred.” (citation omitted)). Because the ALJ
provided other good reasons for limiting the weight given to Dr.
Pecana’s statement, and those reasons are supported by
substantial evidence, any error in considering Dr. Pecana’s
relationship with plaintiff would be harmless.
E.
Vocational Analysis
Plaintiff agrees that the ALJ’s hypothetical mirrored his
RFC findings, but argues that the hypothetical was nevertheless
defective. See Doc. #22-1 at 37-38. Defendant argues that
substantial evidence supports the ALJ’s hypothetical. See Doc.
#27-1 at 9.
“An ALJ may rely on a vocational expert’s testimony
regarding a hypothetical as long as there is substantial record
evidence to support the assumptions upon which the vocational
expert based his opinion and accurately reflects the limitations
and capabilities of the claimant involved.” McIntyre v. Colvin,
758 F.3d 146, 150 (2d Cir. 2014) (internal citation and
quotation marks omitted); see also Mancuso v. Astrue, 361 F.
App’x 176, 179 (2d Cir. 2010) (upholding an ALJ’s hypothetical
where “the ALJ’s hypothetical mirrored [plaintiff’s] RFC, which
~ 41 ~
... was supported by substantial evidence in the record[]”).
Accordingly, the Court construes this argument as a claim that
there is not substantial evidence to support the ALJ’s RFC
finding.
As previously noted, a plaintiff’s RFC is “the most [she]
can still do despite [her] limitations.” 20 C.F.R.
§404.1545(a)(1). An ALJ is “entitled to weigh all of the
evidence available to make an RFC finding that [is] consistent
with the record as a whole.” Matta v. Astrue, 508 F. App’x 53,
56 (2d Cir. 2013) (citation omitted).
Here, the ALJ found that through the date last insured,
plaintiff
had the residual functional capacity to perform
sedentary work as defined in 20 C.F.R. [§]404.1567(a)
except with occasional bending, twisting, squatting,
kneeling, crawling, climbing, and balancing. She needed
to avoid hazards such as heights, vibration, and
dangerous machinery - including driving. She was limited
to occasional interaction with co-workers, supervisors,
and the general public. She was further limited to
simple, routine, repetitious work.
Tr. 227. The Regulations define “sedentary work” as
lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers,
and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are
met.
~ 42 ~
20 C.F.R. §404.1567(a). In finding plaintiff had the capacity to
perform limited sedentary work, the ALJ considered plaintiff’s
subjective complaints and activities of daily living; the
objective medical evidence; plaintiff’s treatment notes; the
reports of multiple doctors; and the opinions of the
consultative examiners. See Tr. 227-31.
The objective evidence of record prior to the date of last
insured supports the ALJ’s RFC determination. The record
contains multiple assessments indicating plaintiff did not need
a wheelchair. Dr. D’Cruz’s assessment, dated, September 29,
2009, one day after the alleged onset of plaintiff’s disability,
states:
It is difficult to test power. She appears to give no
effort. She cannot move her toes to command and neither
can she dorsiflex or plantarflex her feet to command,
but when observed unawares as when she is told to remove
her socks, etc., I did notice that she was able to move
her feet and toes up and down.
Tr. 879-880. Dr. Borno’s assessment, dated, October 6, 2009,
states: “[W]hen the patient would be observed unaware, she was
able to mobilize quite normally. Otherwise, she was crawling on
the floor stating that she could not walk.” Tr. 872. In Dr.
Nwankwo’s report, dated December 31, 2009, she states: “I
believe there maybe elements of malingering.” Tr. 976.
In addition to the medical assessments, the ALJ evaluated
plaintiff’s subjective complaints of pain and her activities of
~ 43 ~
daily living, and found that plaintiff’s subjective complaints
were “not entirely credible.” Tr. 231. As noted above, the
record reflects that on March 4, 2011, plaintiff spoke with a
vocational rehabilitation counselor and told her she had trouble
with “walking long distances.” See Tr. 591. Plaintiff’s selfreported function report, dated May 26, 2011, states that she
could walk one mile before she needed to stop, and needed to
rest for five minutes before she could resume walking. See Tr.
561. The ALJ properly considered plaintiff’s subject complaints
and found them to be not entirely credible.
The Court finds the ALJ properly weighed the medical
records, as well as plaintiff’s subjective complaints, “to make
an RFC finding that [is] consistent with the record as a whole.”
Matta, 508 F. App’x at 56 (citation omitted). Substantial
evidence, as previously discussed, supports the ALJ’s RFC
finding. Accordingly, the Court finds that the ALJ did not err
when relying on the hypothetical to the VE, which precisely
matched his RFC finding.
VI.
CONCLUSION
For the reasons set forth herein, the defendant’s Motion
for an Order Affirming the Decision of the Commissioner [Doc.
#27] is GRANTED, and plaintiff’s Motion for Order Reversing the
~ 44 ~
Decision of the Commissioner and/or Remanding the Matter for
Hearing [Doc. #22] is DENIED.
SO ORDERED at New Haven, Connecticut, this 23rd day of
February, 2018.
/s/ _________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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