Petti v. Astrue
Filing
20
ORDER granting 13 defendant's motion for judgment on the pleadings; denying 15 plaintiff's cross-motion for judgment on the pleadings. The Clerk is respectfully requested to enter judgement in favor of the defendant and close the case. Ordered by Judge Kiyo A. Matsumoto on 12/2/2014. (Gong, LiJia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THOMAS PETTI,
Plaintiff,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
13-CV-267 (KAM)
-againstCAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendants.
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MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. § 405(g), plaintiff Thomas
Petti (“plaintiff”) brings this action, appealing the final
decision of defendant Commissioner of Social Security
Carolyn Colvin (“defendant” or the “Commissioner”).
Plaintiff suffers from knee impairment subsequent to a left
knee replacement surgery and alleges his disability onset
date was on January 19, 2010. Plaintiff appeals the
Commissioner’s decision determining that plaintiff was not
disabled until his fiftieth birthday, December 16, 2010,
when plaintiff’s age category changed pursuant to 20 C.F.R.
§ 404.1560(c) and 20 C.F.R. § 404.1566. (Tr. 21.) Presently
before the court are the parties’ cross-motions for
judgment on the pleadings. For the reasons set forth below,
1
the court grants the Commissioner’s motion for judgment on
the pleadings and denies plaintiff’s cross-motion for
judgment on the pleadings.
BACKGROUND
I.
Personal History
Plaintiff was born on December 16, 1960. (Tr. 18.) He
attended high school and one year of college. (Tr. 18,
119.) Plaintiff worked as a firefighter for the New York
City Fire Department from July 17, 1994 until January 19,
2010. (Tr. 31, 119.) Plaintiff’s job required him to
respond to emergencies and fight fires. (Tr. 31.) His work
primarily involved arduous physical activities such as
carrying protective equipment and tools (weighing from
fifty to over one hundred pounds), kneeling, climbing,
crawling, and lifting people.
(Tr. 31, 120.)
Plaintiff lives in a house on Staten Island with his
wife and three children. (Tr. 129.)
II.
Plaintiff’s Medical History
A. December 12, 2007 Injury and Examinations
On December 12, 2007, plaintiff tripped on debris,
fell back, and injured his left knee while fighting a fire
on a roof. (Tr. 124, 342.) Plaintiff experienced a burning
2
pain but continued to work. (Tr. 342.) By the time he
returned to the firehouse, plaintiff experienced increasing
pain, stiffness and swelling. (Tr. 342.) X-rays conducted
that day found:
small suprapatellar joint effusion; no
acute fracture or dislocation; medial joint space narrowing
and osteophyte formation consistent with osteoarthritis;
small, well corticated round opacity projecting over the
intercondylar fossa, which was likely an intra-articular
loose body.
(Tr. 292.)
On January 15, 2008, Dr. Jo A. Hannafin1 at the
Hospital for Special Surgery examined Mr. Petti.
210.)
(Tr.
Dr. Hannafin’s described the ligamentous exam as
“normal.”
(Tr. 210.)
Dr. Hannafin found that Mr. Petti
had no effusion and had tenderness to palpation over the
mid and posteromedial joint line. (Id.)
Plaintiff’s
McMurray test was positive with one click, and he had pain
with flexion and rotation testing. (Id.)
Additionally, Mr.
Petti had a negative petellofemoral grind test and no
crepitus with active or active-resisted extension of the
knee. (Id.)
Dr. Hannafin also reviewed plaintiff’s MRI dated
1
Dr. Hannafin had previously treated plaintiff for an injury to his
right shoulder. (Tr. 218.)
3
December 22, 2007. (Id.) She noted a complex tear involving
the posterior horn and body of the medial meniscus. She
also observed evidence of an osteochondral injury with some
bony overgrowth that “did not appear acute” and a “lowgrade” posterior cruciate ligament (“PCL”) injury.
(Id.)
Dr. Hannafin stated that the osteochondral injury
appeared chronic. (Id.)
For treatment purposes, she
recommended an arthroscopy and resection of the medial
meniscus flap tear. (Id.)
On January 23, 2008, Dr. Hannafin performed surgery
on plaintiff, specifically an arthroscopy and partial
medial meniscectomy. (Tr. 333.) Both the preliminary and
postoperative disagnoses were chronic osteochondral lesion,
medial femoral condyle, and acute medial meniscus tear.
(Id.)
On March 18, 2008, plaintiff presented to Dr.
Hannafin for his second postoperative visit. (Tr. 209.)
Plaintiff stated that he continued to have pain over the
medial aspect of the left knee. (Id.) He also noted some
anterolateral pain. (Id.) Dr. Hannafin’s report recommended
that Mr. Petti start physical therapy. (Id.) Dr. Hannafin
also noted that Mr. Petti may continue to have some medial
4
pain, but that she anticipated that “this will continue to
improve.” (Id.)
On April 22, 2008, three months after his surgery,
plaintiff attended another follow-up visit with Dr.
Hannafin. (Tr. 208.) Dr. Hannafin reported that Mr. Petti’s
anterior pain had resolved, but continued to have deep
posteromedial pain in his knee. (Id.)
Upon examination,
she observed no palpable effusion, patellofemoral pain, nor
pain with flexion/rotation testing. (Id.) She did note
plaintiff was tender over the mid and posteromedial joint
line. (Id.) Dr. Hannafin concluded plaintiff had chondral
loss in the same area in which he had the partial
meniscectomy. (Id.) She stated that the remainder of the
meniscus looked healthy, and that she did not think Mr.
Petti had re-torn his meniscus. (Id.)
She believed
plaintiff’s symptoms might be from cartilage loss. (Id.)
During the visit, Dr. Hannafin administered intraarticular
injections of lidocaine and Depo-Medrol to the plaintiff.
(Id.)
Mr. Petti’s follow-up visit on May 5, 2008 indicated
that he had a good response to the previous injections and
had begun to do some work hardening in preparation for
5
returning to work in full gear. (Tr. 207.) However, during
a visit with Dr. Hannafin on May 14, 2008, Mr. Petti
reported that he felt posteromedial pain and a mild pop
when he tried to sprint across the street in the rain. (Tr.
206.) In another follow-up visit with Dr. Hannafin on June
3, 2008, a MRI from May 30, 2008 showed that the plaintiff
had a subarticular stress fracture in the medial aspect of
the weightbearing surface of the medial tibial plateau with
reactive bone marrow edema on both the medial femoral and
tibial plateau sides. (Tr. 205.)
For the next five months,
Mr. Petti continued to report pain and was using an
unloader brace. (Tr. 202-04.)
On November 6, 2008, Dr. Kerry J. Kelly, the Chief
Medical Officer of the Medical Committee of the New York
City Fire Department (“Medical Committee”) issued a memo
with recommendations to Nicholas Scoppetta, the Fire
Commissioner regarding the Mr. Petti’s injury and
rehabilitation. (Tr. 327.)
The memo summarized Mr. Petti’s
treatment and rehabilitation since he sustained his injury.
(Id.) Drs. Gasalberti, Maloney, and Marchisella of the
Medical Committee also conducted an examination of Mr.
Petti’s left knee, which revealed some swelling and
6
increased tenderness to palpation of the anteromedial joint
line. The Medical Committee then recommended that plaintiff
was permanently unfit for firefighting duties. (Id.)
On November 18, 2008, plaintiff returned to Dr.
Hannafin for another follow up. (Tr. 201.) Dr. Hannafin
reported that Mr. Petti stated that he had no significant
pain, just occasional soreness along the medial femoral
condyle. (Id.) Plaintiff had no swelling, locking, buckling
or giving way of his knee. (Id.) After a physical
examination of plaintiff’s left knee, Dr. Hannafin noted it
was not tender over the tibia and along the joint
line. (Id.) Plaintiff had mild tenderness over the medial
femoral condyle, no pain with flexion rotation testing and
no effusion. (Id.) Plaintiff had full range of motion.
(Id.) After reviewing an X-ray of plaintiff’s MRI, Dr.
Hannafin noted advanced chondromalacia on the weight
bearing surface of the medial femoral condyle which had
remained unchanged. (Id.) She observed there was also a
“striking increase” in the reactive bone marrow edema in
the medial femoral condyle with resolution of the bone
marrow edema in the medial tibial plateau. (Id.) She
explained that the radiologist noted a near-complete
7
interval resolution of the previously noted subcortical
stress fracture of the plateau without any collapse of the
articular surface. (Id.) Dr. Hannafin reported that
although it appeared the tibia had healed, plaintiff had
begun to stress load the medial femoral condyle. (Id.) She
decided to put plaintiff back in the unloader brace to try
and resolve the stress in that area. (Id.) Dr. Hannafin
then discussed the possibility of a high tibial osteotomy
to unload his medial compartment and to try and save his
remaining articular surface. (Id.) She also mentioned that
plaintiff may have to switch jobs and end his career as a
firefighter. (Id.)
On January 6, 2009, Mr. Petti attended his next
follow-up visit with Dr. Hannafin. (Tr. 200.) He had
recently taken a fitness test with the fire department and
was only able to tolerate 2.5 minutes on the StairMaster
because of knee pain. (Id.; Tr. 344.) Dr. Hannafin wrote
that kneeling and squatting continued to cause Mr. Petti
pain, particularly when getting out of a squat. (Tr. 200.)
She noted, while plaintiff had tenderness over the medial
tibial plateau, he no longer had tenderness over the medial
femoral condyle and was not tender over the joint line.
8
(Id.) After examining plaintiff, her impression was that he
had areas of acute bone edema, both on the tibial plateau
and the femoral condyle. (Id.) She wrote that the most
recent MRI demonstrated femoral condylar change with
resolution of the tibial plateau changes. (Id.) She
recommended a follow-up MRI to see if there had been
resolution of the bone edema. (Id.) She explained that, at
that point, if the bone edema was resolved, plaintiff’s
pain had to be attributed to his posttraumatic arthrosis in
the medial compartment, which may be permanent. (Id.)
On January 6, 2009, Dr. Basil Dalavagas, a General
Orthopedist at University Place Orthopaedics, evaluated Mr.
Petti with respect to the potential disability of his left
knee. (Tr. 345.) Upon examination, Dr. Dalavagas noted
plaintiff ambulated with a slight limp in the left leg and
ached with a full extension, particularly in the medial
aspect of the knee.
(Tr. 346.) He observed minimal
effusion, no crepitus, and no anterior or posterior
instability. (Id.) The McMurray test was negative. (Id.) Dr.
Dalavagas observed plaintiff had an ache when squatting
over 60° and when kneeling.
(Id.)
2008 operation report and MRIs.
9
He reviewed the January
(Id.)
Dr. Dalavagas then
issued his impression. (Tr. 347.)
He wrote that plaintiff
was one-year post arthroscopic surgery in the left knee for
a partial medial meniscectory and had developed a stress
fracture in the medial tibia plateau, which was treated
with an unloader brace. (Id.) He also wrote that Mr. Petti
had an osteophyte formation in the medial femoral chondyle
and a partial PCL tear with moderate functional deficit.
(Id.) Dr. Dalavagas then concluded that he believed
plaintiff was not permanently disabled for the performance
of full fire duty. (Id.) He recommended that plaintiff
should be reevaluated in six months and sent his findings
to Dr. Francis A. Pflum, the Chairperson of the Subchapter
2 Medical Board of the Fire Department of the City of New
York. (Tr. 345-47.)
On March 24, 2009, plaintiff returned to Dr. Hannafin
for another follow-up. (Tr. 199.)
During the visit, Dr.
Hannafin observed plaintiff had tenderness to palpation
with kneeling and squatting. (Id.) He had pain when he goes
to approximately a 20-40° flexion arc. (Id.) She also
reviewed plaintiff’s latest MRI and noted a near complete
resolution of the larger area of edema in the medial
femoral condyle. (Id.) Dr. Hannafin’s impression was that
10
plaintiff continued to have significant pain and limited
range of motion and was not able to squat, crawl, or go up
and down stairs. (Id.) She attributed this pain to the
post-traumatic arthrosis in the medial compartment since
the bone edema was resolved. (Id.) She noted this condition
is permanent. (Id.) She concluded with her opinion that
plaintiff was permanently disabled from his duties as a New
York City firefighter due to post-traumatic arthrosis.
(Id.)
In a written summary of Mr. Petti’s medical care
dated April 9, 2009, Dr. Hannafin reiterated that plaintiff
was permanently disabled from the New York City fire
department. (Tr. 344.)
On October 19, 2009, Dr. Andrew D. Pearle, an
Orthopedic Surgeon at the Hospital for Special Surgery,
examined plaintiff. (Tr. 260.)
Plaintiff articulated his
continued problems with his left knee, including pain when
he gets up from a seated position, significant standing
pain, and “some pain” going up and down the stairs. (Id.)
Dr. Pearle noted that the pain is localized to the medial
aspect of the joint. (Id.) Mr. Petti reported having
trouble with daily activities, but no significant night
pain. (Id.) Dr. Pearle recommended plaintiff undergo a
11
unicondylar knee replacement. (Tr. 261.)
Dr. Dalavagas, who provided an opinion to the Medical
Committee in January 2009, re-examined plaintiff on
December 9, 2009. (Tr. 340.) Plaintiff informed Dr.
Dalavagas of his plan to have a partial knee replacement in
his left knee. (Id.) Upon examining plaintiff, Dr.
Dalavagas found plaintiff able to ambulate with minimal
ache and no limping in the left knee. (Id.)
He did observe
significant ache medially with squatting and marked
tenderness to the medial joint line. (Id.) He also found a
significant varus deformity in the left knee, and, upon
review of plaintiff’s X-rays, an irregular projection in
the articular surface of the medial femoral condyle
projecting into the medial joint line. (Id.) A review of
plaintiff’s MRI also showed significant findings of
unilateral traumatic changes on the medial compartment of
the left knee. (Id.) Dr. Dalavagas concluded that plaintiff
was permanently disabled from full fire duty. (Tr. 341.)
B. January 21, 2010 Knee Replacement Surgery and Recovery
Plaintiff alleges an onset disability date of January
19, 2010. On January 21, 2010, Dr. Pearle performed a left
knee unicondylar knee replacement surgery on plaintiff at
12
the Hospital for Special Surgery. (Tr. 222.) On the same
day the Medical Board issued a recommendation to the Fire
Commissioner that plaintiff be granted disability
retirement. (Tr. 349.) The Medical Board relied on the
reports of Dr. Pearle, Dr. Hannafin, and Dr. Dalavagas.
(Id.)
The Medical Board concluded that plaintiff’s
disability was “causally related to his activities in the
Fire Department” and recommended that plaintiff be granted
disability retirement. (Id.) The Medical Board also stated
plaintiff may engage in “a suitable occupation.” (Id.)
Following the surgery, Plaintiff’s X-ray revealed an
anatomic alignment of the postoperative left knee. (Tr.
267.)
Plaintiff was discharged on January 23, 2010, at
which point, he had progressed to managing stairs and
walking with crutches. (Tr. 227.)
Plaintiff began postoperative physical therapy on
January 29, 2010 at the Rehabilitation Physical Therapy
Associates of Staten Island. (Tr. 253.) Plaintiff
complained of knee pain both at rest and with movement.
(Id.) On a scale from one to ten, he rated his pain at rest
at three, and he rated his pain with movement at seven.
(Id.) He described standing, movement and exercise made his
13
pain worse, and lying down made it better. (Id.) Plaintiff
reported he was taking Oxycodone and Aspirin to manage his
pain. (Id.) His initial physical therapy evaluation
revealed plaintiff’s range of left knee motion was 10 to 75
degrees and his muscle strength was two on a scale of one
to five. (Tr. 254.) Plaintiff continued to attend physical
therapy sessions through May 27, 2010. (Tr. 240-49.)
On February 2, 2010, Dr. Pearle examined plaintiff as
a follow-up to his knee replacement surgery. (Tr. 262.)
The doctor noted that plaintiff was “doing quite well.”
(Id.) The incision healed well, Mr. Petti’s staples were
removed, and he was able to achieve full extension. (Id.)
Plaintiff’s X-ray showed that the prosthesis was in a good
position. (Id.)
On March 2, 2010, plaintiff had another follow-up
examination with Dr. Pearle. (Tr. 263.) Dr. Pearle once
again noted plaintiff was “doing quite well.” (Id.) His
exam showed full range of motion in his left knee, and his
incisions were benign. (Id.)
On May 12, 2010, Dr. Perry Drucker, Chairman of the
Department of Physical Medicine and Rehabilitation at
Richmond University Medical Center, examined Mr. Petti for
14
the first time. (Tr. 285.) Plaintiff’s reason for the visit
with Dr. Drucker was left knee pain. (Id.) He reported the
pain worsened with extended activity, such as when using
stairs and squatting. (Id.) Plaintiff’s pain improved with
rest and medication. (Id.) Dr. Drucker’s examination
revealed mild localized medial swelling. (Tr. 286.)
Plaintiff’s left knee showed full range of motion. (Id.)
His patella demonstrated no crepitus. (Id.) His lateral
aspect was not tender on palpitation. (Id.) He had no
medial or lateral instability.(Id.) Dr. Drucker recommended
plaintiff perform exercises at home on a consistent basis
to maintain the knee’s range of motion and strength. (Tr.
287.)
Plaintiff had a follow-up visit with Dr. Pearle on
June 2, 2010. (Tr. 264.) Plaintiff reported some
intermittent mild pain. (Id.) Dr. Pearle reported plaintiff
was doing well and had full range of motion of the knee and
no pain with the range of motion. (Id.) Plaintiff was
instructed to follow up with Dr. Pearle in another three
months. (Id.)
Plaintiff also attended a follow-up visit with Dr.
Drucker on July 7, 2010, in which Dr. Drucker again
15
recommended home exercises to help treat plaintiff’s left
knee pain. (Tr. 290.)
Plaintiff was next seen by Dr. Drucker on October 10,
2010. (Tr. 330.) Plaintiff again reported intermittent
episodes of left knee buckling, moderate pain, and left
knee medial aspect exacerbated with extended activities.
(Id.)
Plaintiff additionally reported intermittent
difficulty rising from a seated position and moderate
difficulty ascending and descending stairs. (Id.) Dr.
Drucker’s examination demonstrated moderate medial joint
line tenderness with decreased muscle strength in the left
quadriceps. (Id.) Plaintiff was instructed to attend
physical therapy three times a week for six weeks. (Id.)
Plaintiff attended another follow-up visit with Dr.
Drucker on November 15, 2010 after twelve sessions of
physical therapy. (Id.) He continued to experience
intermittent episodes of left knee buckling and pain in the
medial aspect of the left knee. (Id.) Plaintiff did report
a moderate improvement with his physical therapy
intervention. (Id.) An examination of Mr. Petti
demonstrated moderate medial joint line tenderness. (Id.)
Plaintiff was instructed to continue with physical therapy,
16
but taper to one or two times a week. (Id.)
Plaintiff attended three more follow-up visits on
January 5, 2011, February 16, 2011, and June 11, 2011. (Tr.
330.) Examinations at each visit demonstrated mild medial
joint line tenderness. (Tr. 330-31.) Each time, plaintiff
was instructed to continue with his home exercise regimen.
(Id.) At his last visit on June 11, 2011, Mr. Petti
reported significant exacerbation with squatting activities
as well as increased pain with sitting greater than 30-45
minutes. (Tr. 331.)
On June 24, 2011, Dr. Drucker issued a narrative
report, after Mr. Petti’s symptomatology and physical
examination were stabilized. (Tr. 329-332).
Dr. Drucker
also conducted a Patient Functional Assessment to do
Sedentary Work on the same day. (Tr. 337.)
Dr. Drucker
assessed that Mr. Petti could stand or walk for less than 2
hours in an eight-hour day and could sit for less than 6
hours. (Tr. 331, 337.) Dr. Drucker noted that Mr. Petti
reported that after prolonged sitting greater than 45 to 60
minutes, he experienced significant increased left knee
symptomatology. (Tr. 331.) Dr. Drucker reported that, in
his opinion, plaintiff could carry more than 5 pounds but
17
less than 10 pounds if required to do so for a total up to
two-thirds of an eight-hour work day. (Id.) Dr. Drucker
concluded that plaintiff was then “totally disabled” and
“unable to partake in any significant gainful employment.”
(Tr. 332.) He stated plaintiff’s condition, in his opinion,
was permanent in nature, that plaintiff had functional
limitations with respect to his standing/ambulation
tolerance, and that the plaintiff reports moderate
exacerbation of his left knee symptoms with prolonged
sitting. (Tr. 332.)
III.
Procedural History
On June 11, 2010, plaintiff applied for disability
insurance benefits. (Tr. 99-100). He alleged disability
since January 19, 2010, due to a knee injury, partial
meniscectomy, and partial knee replacement. (Tr. 99-100).
On July 30, 2010, the Social Security Administration (SSA)
denied plaintiff’s claim, upon a determination that
plaintiff was not disabled. (Tr. 45-48.) The explanation of
determination stated that Mr. Pettis’ condition was “not
severe enough to keep [him] from working” based on his age,
education, experience, and ability to “perform light work.”
(Tr. 48.)
18
On August 2, 2010, plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”) to contest the
SSA’s determination of non-disability. (Tr. 53.)
Plaintiff
appeared, represented by counsel, before ALJ Wallace
Tannenbaum on August 9, 2011. (Tr. 25-40.) Subsequently, on
September 8, 2011, ALJ Tannenbaum issued a “partially
favorable” decision, finding that plaintiff was disabled as
of December 16, 2010, his fiftieth birthday, and thereafter,
but not prior to December 16, 2010. (Tr. 11-21.) ALJ
Tannenbaum found Mr. Petti had the residual functional
capacity to perform the full range of sedentary work as
defined in 20 C.F.R. § 404.1567(a). (Tr. 17.) He found that
there was no “objective medical evidence which points to an
inability to sit for long periods” and therefore declined
to give Dr. Drucker’s residual functional capacity
assessment from June 2011 controlling weight. (Tr. 19.)
ALJ Tannenbaum found that since January 19, 2010, Mr. Petti
was unable to perform his past relevant work as a
firefighter. (Tr. 20.) The ALJ also found that prior to
December, 16, 2010, there were jobs in the national economy
that Mr. Petti, at age 49, could have performed. (Tr. 20.)
Beginning on December 16, 2010 when Mr. Petti turned 50,
19
plaintiff’s age category changed, and ALJ Tannenbaum found
that plaintiff was disabled by direct application of
Medical-Vocational Rule 201.14. (Tr. 20-21.)
Plaintiff filed a timely request for review on October
27, 2011. (Tr. 167.) On November 30, 2012, the Appeals
Counsel denied plaintiff’s request for review. (Tr. 1-5.)
The Appeals Counsel stated they “found no reason under our
rules to review the [ALJ’s] decision.” (Tr. 1.) ALJ
Tannenbaum’s decision became the final decision of the
Commissioner.
(Id.)
On January 13, 2013, plaintiff commenced the instant
action. (ECF No. 1, Complaint dated 1/13/2013 (“Compl.”).)
On July 1, 2013, the government moved for judgment on the
pleadings, and plaintiff cross-moved for the same on July
30, 2013. (ECF No. 14, Memorandum of Law in Support of the
Defendant’s Motion for Judgment on the Pleadings dated
7/1/2013, ECF No. 16; Memorandum of Law in Opposition to
the Commissioner’s Motion and in Support of Plaintiff’s
Cross-Motion for Judgment on the Pleadings dated
7/30/2013.)
DISCUSSION
I.
Standard of Review
20
In reviewing the ALJ’s decision to deny Social
Security disability benefits, the court does not determine
de novo whether plaintiff is disabled, but sets aside the
ALJ’s decision only where it is based on legal error or is
not supported by substantial evidence in considering the
record as a whole. Burgess v. Astrue, 537 F.3d 117, 127-28
(2d Cir. 2008); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000). “Substantial evidence is ‘more than a mere scintilla.
It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)(quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)). An evaluation of the
“substantiality of evidence must also include that which
detracts from its weight.” Williams ex rel. Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). The reviewing
court, in determining whether findings are supported by
substantial evidence, “may not substitute its own judgment
for that of the [ALJ], even if it might justifiably have
reached a different result upon a de novo review” of the
records. Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
Unlike a trial judge, the ALJ “must . . .
affirmatively develop the record in light of the essentially
21
non-adversarial nature of a benefits proceeding.” Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996)(internal citations and
quotation marks omitted); see also 20 C.R.C. § 702.338. The
ALJ’s obligation to develop the administrative record exists
even when “the claimant is represented by counsel” at the
hearing. Pratts, 94 F.3d at 37; see Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999).
Nevertheless, where “the
evidence of record permits us to glean the rationale of an
ALJ's decision, we do not require that he have mentioned
every item of testimony presented to him or have explained
why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.”
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
II.
Legal Standards for Disability Claims
A. The Commissioner’s Five-Step Analysis of
Disability Claims
In order to receive disability benefits, a claimant
must become disabled while he still meets the insured
status requirements of the Social Security Act and the
regulations promulgated by the SSA. Arone v. Bowen, 882
F.2d 34, 37-38 (2d Cir. 1989). “Disability” is defined as
the “inability to engage in any substantial gainful
22
activity by reason of any medically determinable physical
or mental impairment . . . 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).
The Commissioner uses a “five-step sequential
evaluation” to determine whether a claimant is disabled.
20 C.F.R. § 404.1520; see Perez v. Chater, 77 F.3d 41, 46
(2d. Cir. 1996)(describing the five-step process).
If the
Commissioner can determine that a claimant is disabled or
not disabled at any step of the five-step sequence, the
evaluation stops at that step and the Commissioner issues
his decision; if a determination cannot be made at steps 1
through 4, the sequence continues to the fifth step.
20
C.F.R. § 404.1520(a)(4).
At Step 1, the Commissioner determines whether the
claimant is currently engaged in substantial gainful
employment. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant
is engaged in substantial gainful employment, he is not
disabled “regardless of [his] medical condition.” 20 C.F.R.
§ 404.1520(b). Otherwise, the Commissioner moves to step 2,
and determines whether the claimant has a “severe medically
determinable physical or mental impairment.” 20 C.F.R. §
23
404.1520(a)(4)(ii).
If the claimant’s impairment is in fact medically
severe, the sequence continues to step 3, in which the
Commissioner compares the claimant’s impairment to a
listing of impairments found in 20 C.F.R. Part 404, Subpart
P, Appendix I. § 404.1520(a)(4)(iii). If the claimant’s
impairment “meets or equals” one of the listed impairments,
she is per se disabled irrespective of her “age, education,
and work experience,” and the sequential evaluation stops.
20 C.F.R. § 404.1520(d).
If the claimant is not per se disabled under step 3,
the Commissioner must determine the claimant’s residual
functional capacity (“RFC”) before continuing to step 4.
20 C.F.R. § 404.1520(e). RFC is defined as the most the
claimant can do in a work setting despite the limitations
imposed by his impairment. 20 C.F.R. § 404.1545(a)(1). In
determining the claimant’s RFC, the Commissioner should
consider “all of the relevant medical evidence,” as well as
descriptions and observations by non-medical sources, such
as the claimant’s friends and family. 20 C.F.R. §
404.1545(a)(3).
After making his RFC determination, the Commissioner
24
will proceed to step 4, at which point the Commissioner
must determine whether the claimant’s RFC is sufficient to
perform his “past relevant work,” which is defined as
substantial gainful activity that the claimant has done
within the past fifteen years. 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(f), 404.1560(b)(1). If the
claimant can perform his past relevant work, he is not
disabled. 20 C.F.R. § 404.1520(f). Otherwise, the
Commissioner must determine at step 5 whether the claimant
can make “an adjustment to other work.” 20 C.F.R. §
404.1520(a)(4)(v).
In making his determination under step 5, the
Commissioner must use his prior RFC finding in conjunction
with the claimant’s “vocational factors” (i.e., age,
education, and work experience) to determine whether the
claimant can transition to another job that is prevalent in
the national economy. 20 C.F.R. §§ 404.1520(g)(1),
404.1560(c)(1). The Commissioner has a limited burden under
step 5 to provide “evidence that demonstrates that other
work exists in significant numbers in the national economy
that” the claimant can do in light of his RFC and
vocational factors. C.F.R. § 404.1560(c)(2). If the
25
claimant cannot transition to another job prevalent in the
national economy, the Commissioner must find the claimant
disabled. See 20 C.F.R. § 404.1520(g)(1).
B. The Treating Physician Rule
“A treating physician’s statement that the claimant
is disabled cannot itself be determinative.”
Green-Younger
v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)(internal
quotation marks omitted).
Nonetheless, the claimant’s
treating physician’s opinion regarding the nature and
severity of the claimant’s impairment should be given
controlling weight “so long as it is well-supported by
medically acceptable . . . diagnostic techniques and it not
inconsistent with the other substantial evidence in [the]
case record.” Burgess, 537 F.3d at 128; see also 20 C.F.R.
§ 404.1527(d)(2). Treating physicians are afforded
controlling weight because they are more likely to be “able
to provide a detailed, longitudinal picture of [a
patient’s] medical impairment(s) and may bring a unique
perspective to the medical findings alone” or from
individual examinations. 20 C.F.R. § 404.1527(d)(2).
When the ALJ declines to give controlling weight to
the treating physician’s opinion in the disability decision,
26
the ALJ must give “good reasons” for the weight assigned to
the treating physician’s opinion. 20 C.F.R. §
404.1527(b)(2). The ALJ shall consider six regulatory
factors in determining how much weight to ultimately assign
the treating physician’s opinion:
(1) length of treatment relationship and frequency of
examination; (2) nature and extent of the treatment
relationship; (3) supportability [i.e., the degree of
explanation given in the opinion]; (4) consistency
[with the record as a whole]; (5) specialization; (6)
other factors such as the treating physician’s
familiarity with disability programs and with the case
record.
20 C.F.R. § 404.1527(d)(2)(i)-(ii); § 404.1527(d)(3)-(6).
C. Assessing Plaintiff’s Credibility
When the claimant purports to experience symptoms
such as pain, the ALJ must consider “the extent to which
the claimant’s symptoms can reasonably be accepted as
consistent with the objective medical evidence and other
evidence of record.”
Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir. 2010)(internal citation and quotation marks omitted).
The ALJ follows a two-step process to evaluate a claimant’s
testimony regarding symptoms such as pain.
§§ 404.1529(b), 416.929(b).
20 C.F.R.
First, the ALJ must consider
whether the claimant has a medically-determinable
27
impairment which could reasonably be expected to produce
the pain or symptoms alleged by the claimant. Id. This
requirement “stems from the fact that subjective assertions
of pain alone cannot ground a finding of disability.”
Genier, 606 F.3d at 49 (emphasis in original). Second, if
the claimant makes statements about symptoms that are not
supported by medical evidence, then the ALJ must make a
finding as to the claimant’s credibility. See Alcantara v.
Astrue, 667 F. Supp. 2d 262, 277 (S.D.N.Y. 2009). In
assessing the claimant’s credibility, the ALJ must consider
all objective medical evidence as well as various
regulatory factors including the claimant’s daily
activities, the nature of the pain, the effectiveness of
any medication taken, and other measures the claimant uses
to relieve pain.2 If the ALJ finds that the witness is not
2
The full list of factors as provided by 20 C.F.R §
404.1529(c)(3)includes:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity
of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side
effects of any medication you take or have taken to
alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or
have received for relief of your pain or other
symptoms;
(vi) Any measures you use or have used to relieve
your pain or other symptoms (e.g., lying flat on your
28
credible, the finding “must . . . be set forth with
sufficient specificity to permit intelligible plenary
review of the record.” Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988).
II.
Application
On September 8, 2011, the ALJ issued his “partially-
favorable” decision based on his review of the record
pursuant to the SSA’s five-step sequential evaluation
analysis for determining whether an individual is disabled.
20 C.F.R. § 404.1520(a). Under step one, the ALJ found that
the plaintiff met the insured status requirements of the
Social Security Act through December 31, 2014. (Tr. 17.)
Under step two, the ALJ found that the plaintiff had not
engaged in substantial gainful activity since the alleged
onset date. (Tr. 17.) Under step three, the ALJ found that
since the alleged onset date, January 19, 2010, the
claimant’s knee impairment constituted a “severe
impairment.” (Tr. 17.) Under step four, the ALJ found that
since that since the alleged onset date of disability,
back, standing for 15 to 20 minutes every hour,
sleeping on a board, etc.); and
(vii) Other factors concerning your functional
limitations and restrictions due to pain or other
symptoms.
29
January 19, 2010, the claimant did not have an impairment
or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d), 404.1525, and 404.1526. (Tr. 17.)
Under step five, the ALJ found that, after
consideration of the entire record, the claimant had RFC to
perform the full range of sedentary work as defined in 20
C.F.R. 404.1567(a), and declined to give the Dr. Drucker’s
RFC opinion given in June 2011 controlling weight. (Tr. 17,
19.)
ALJ Tannenbaum considered that Drs. Hannafin and
Dalavagas found that Mr. Petti was fully disabled from
performing the full duties of a firefighter, but the
doctors never cited limitations which would preclude him
from doing other less strenuous work. (Tr. 19.) ALJ
Tannenbaum noted that although Dr. Drucker’s assessment
dated June 24, 2011 found that Mr. Petti had exertional
limitations which prevented even the performance of
sedentary work, this assessment was inconsistent with the
medical record as a whole. (Id.) In particular, the ALJ
noted that Dr. Drucker’s “detailed” report from July 2010
only mentions intermittent episodes of left knee buckling
30
and pain which slowly worsened with extended activity and
was increased with climbing stairs and with squatting.
(Id.) The ALJ also noted that in plaintiff’s original
disability statement, Mr. Petti stated that he was using a
stationary bike and that in his July 5, 2010 statement, Mr.
Petti indicated that he experienced most of his pain and
swelling when performing physical activities and when
having to stand on his feet for prolonged periods of time.
(Id.)
Plaintiff asserts that the ALJ’s refusal to give
controlling weight to the medical opinion of Dr. Drucker is
improper. (Pl.’s Br. at p. 9-13.) Upon the court’s review
of the entire record, it concludes that the ALJ’s decision
is supported by substantial evidence. First, Dr. Drucker
was one of Mr. Petti’s three treating physicians. See 20
C.F.R. § 404.1502.3
Drs. Hannafin and Pearle also had an
3
“Treating source means your own physician, psychologist, or other
acceptable medical source who provides you, or has provided you, with
medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you. Generally, we will consider that you
have an ongoing treatment relationship with an acceptable medical
source when the medical evidence establishes that you see, or have seen,
the source with a frequency consistent with accepted medical practice
for the type of treatment and/or evaluation required for your medical
condition(s). We may consider an acceptable medical source who has
treated or evaluated you only a few times or only after long intervals
(e.g., twice a year) to be your treating source if the nature and
frequency of the treatment or evaluation is typical for your
condition(s). We will not consider an acceptable medical source to be
31
ongoing treatment relationship with Mr. Petti and thus
constitute treating physicians under federal regulations.
See id. Therefore, ALJ Tannenbaum appropriately weighed Dr.
Hannafin’s reports which stated that Mr. Petti could not
squat, crawl, and go up and down stairs, but did not state
any limitations with respect to Mr. Petti’s ability to sit.
See Cosnyka v. Colvin, 586 Fed. Appx. 43, 45-46 (2d Cir.
2014)(noting that earlier physical examinations that
“included no mention of significant trouble walking or
sitting” showed that the treating physician’s opinion was
“inconsistent with other medical evidence in the record”).
Dr. Pearle, who operated on Mr. Petti and replaced
his knee in January 2010, also continued to examine Mr.
Petti until at least June 2010 and mentioned no problems or
complaints while Mr. Petti was sedentary. Two days after
plaintiff’s alleged disability onset date of January 19,
2010, Dr. Pearle performed left knee replacement surgery.
Plaintiff’s post-operative reports after his January 23,
2010 post-surgical discharge indicated that as of February
your treating source if your relationship with the source is not based
on your medical need for treatment or evaluation, but solely on your
need to obtain a report in support of your claim for disability. In
such a case, we will consider the acceptable medical source to be a
nontreating source.” 20 C.F.R. § 404.1502.
32
2, 2010, plaintiff was doing “quite well” and achieved full
extension. (Tr. 262.) In March 2010, plaintiff continued to
do “quite well” and have full range of motion in his left
knee. (Tr. 263.) In May 2010, plaintiff reported pain in
his left knee with extended activity when using the stairs
or squatting (Tr. 285.), but plaintiff’s left knee had full
range of motion, no crepitus, no tenderness and no
instability. (Id.) In June 2010, plaintiff reported
intermittent pain, but he had full range of motion of his
left knee without pain. (Tr. 264.) In July 2010, Dr.
Drucker recommended at home exercises to treat plaintiff’s
left knee pain. Between October 2010 and November 15, 2010,
plaintiff reported intermittent knee buckling and moderate
pain with extended activities and was recommended for
physical therapy which brought moderate improvement by
November 15, 2010. In January, February, and June 2011,
plaintiff’s follow-up visits reported mild joint tenderness,
and he was advised to continue home exercises. (Tr. 33031.) During his June 2011 visit with Dr. Drucker, plaintiff
reported that squatting exacerbated his pain and increased
pain when sitting more than 30-45 minutes. (Tr. 331.)
ALJ Tannenbaum accorded more weight to Dr. Drucker’s
33
detailed assessment from July 2010, where Dr. Drucker
reported isolated episodes of knee buckling and that Mr.
Petti’s pain worsened with extended activity such as using
the stairs and squatting but failed to mention any problems
when the plaintiff was sedentary, as more consistent with
the “medical record as a whole.” (Tr. 19.)
That all six of
Dr. Drucker’s prior assessments from May 2010 to February
2011 included no mention of any limitations when sitting
goes to the weight of his June 24, 2011 assessment, in
which he reported that plaintiff could sit less than six
hours in an eight hour day, with significant increases of
left knee symptomology after sitting more than 45-60
minutes. (Tr.
331-337.) “[T]he opinion of the treating
physician is not afforded controlling weight where . . .
the treating physician issued opinions that are not
consistent with other substantial evidence in the
record . . . .” Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir. 2004). Here, ALJ Tannenbaum appropriately declined to
give substantial weight to Dr. Drucker’s June 24, 2011
opinion. The ALJ pointed to substantial evidence in the
record from other physicians, Dr. Drucker’s own reports,
and the plaintiff’s statements that were inconsistent with
34
Dr. Drucker’s June 2011 patient functional assessment.
Plaintiff also argues that the ALJ’s credibility
finding is not supported by substantial evidence. (Pl. Br.
at 14.) Pursuant to 20 C.F.R. § 404.1529(c)(3), however,
the ALJ highlighted plaintiff’s daily activities and
precipitating and aggravating factors in support of his
finding. (Tr. 19.) The ALJ noted that Mr. Petti stated in
his original disability statement that he “was using a
stationary bike” and that in his July 5, 2010 supplemental
statement, Mr. Petti averred that he “experienced most of
his main and swelling when performing physical activities,
and when having to stand on his feet for prolonged periods
of time.” (Id.) The ALJ properly cited these
inconsistencies as weighing against the plaintiff’s
credibility. See Snyder v. Barnhart, 323 F. Supp. 2d 542,
547 (S.D.N.Y. 2004)(finding an ALJ’s analysis proper where
it cited inconsistency between plaintiff’s testimony and
the record as evidence of plaintiff exaggerating
symptomatic limitations).
The record corroborates the ALJ’s finding that
plaintiff’s testimony regarding his pain and limitations
was not fully credible. That Mr. Petti only uses over-the-
35
counter pain medication to alleviate his knee pain also
supports the ALJ’s credibility determination regarding
plaintiff’s statements of pain.
(Tr. 120, 138, 138, 158.);
see Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir.
2008)(finding the “fact that a patient takes only over-thecounter medicine to alleviate her pain” may be used to help
support the Commissioner’s conclusion that the claimant is
not disabled).
Plaintiff also reported that he was able to
do some light housework while refraining from handling
heavy objects (Tr. 132), has no problems following
instructions, paying attention, and completing tasks (Tr.
135), and is able to drive.
(Tr. 29, 35, 132.)
After
examining the full record, the court finds no reason
disturb the ALJ’s credibility finding.
Plaintiff also argues that the ALJ failed to
adequately develop the record and to provide “good reasons”
for rejecting Dr. Drucker’s June 24, 2011 opinion.
The
court agrees that when there is a gap in the record, “an
ALJ must seek out clarifying information from physicians
whose opinions the ALJ discounts.”
Oliphant v. Astrue, No.
11-cv-2431, 2012 WL 3541820, at *20 (E.D.N.Y. Aug. 14,
2012)(Matsuomoto, J.).
However, here, ALJ Tannenbaum
36
considered a complete medical record without clear or
obvious gaps.
Therefore, the ALJ was not required to seek
out additional information and could ascribe limited weight
to Dr. Drucker’s June 24, 2011 opinion based on the fact
that functional limitations were absent from the Drs.
Hannafin and Dalavagas’ reports and Dr. Drucker’s reports
prior to June 2011.
See Alachouzos v. Commissioner, No.
11-cv-1643, 2012 WL 601428, at *6 (E.D.N.Y. Feb. 23,
2012)(rejecting argument that “if the treating physician’s
conclusions are unsupported by medical evidence, then the
ALJ’s duty to complete the record entails going out and
developing more evidence until there is a basis for the
treating physician’s conclusions”).
Furthermore, the ALJ’s
detailed decision pointed to substantial evidence in the
record, as discussed above, which constituted sufficient
“good reasons” for giving limited weight to Dr. Drucker’s
June 24, 2011 opinion.
CONCLUSION
For the foregoing reasons, the court grants
defendant’s motion for judgment on the pleadings and denies
plaintiff’s cross-motion for judgment on the pleadings. The
Clerk is respectfully requested to enter judgment in favor
37
of defendant and close the case.
SO ORDERED.
Dated:
December 2, 2014
Brooklyn, New York
__________/s/________________
Kiyo A. Matsumoto
United States District Judge
38
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