Marinello v. Commissioner of Social Security

Filing 16

DECISION AND ORDER: For the reasons stated herein, Plaintiff's motion for judgment on the pleadings, Dkt. 8 , is DENIED, and Defendant's motion for judgment on the pleadings, Dkt. 12 , is GRANTED. This matter is hereby dismissed. The Clerk of Court is respectfully instructed to close this case. Ordered by Judge William F. Kuntz, II on 4/2/2015. (Fwd'd for judgment) (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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VINCENT MARINELLO,
Plaintiff,

DECISION AND ORDER
13-CV-3186 (WFK)

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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WILLIAM F. KUNTZ, II, United States District Judge:
Plaintiff Vincent Marinello ("Plaintiff') brings this action pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), alleging that Defendant, the Commissioner of Social Security (the
"Commissioner"), improperly denied Plaintiffs request for Social Security disability benefits
and/or Supplemental Security Income ("SSI") benefits. Plaintiff filed a motion for judgment on
the pleadings requesting that the Commissioner's decision be reversed and disability benefits be
granted, or in the alternative, the action be remanded for further administrative proceedings. The
Commissioner filed a cross-motion for judgment on the pleadings requesting an order affirming
the Commissioner's decision and dismissing this action. For the reasons that follow, Plaintiffs
motion is DENIED and the Commissioner's motion is GRANTED.

BACKGROUND AND PROCEDURAL HISTORY
In March 2001, Plaintiff sustained severe injuries to the head and face as a result of an
automobile accident. See Dkt. 14 (Administrative Record) ("R."), at 46-47. At the time of the
accident, Plaintiff was employed as a plumber. Id at 36-37. Plaintiff only completed high
school through the 10th grade but did receive a general educational development (GED) degree.
Id. at 35-36. Plaintiff alleges that he has been disabled since March 26, 2001 due to the severe

injuries associated with the automobile accident, which include dizziness, nausea, difficulty
opening his mouth, and pain on the side of his face and head. Id. at 29, 37, 46, 162.
Plaintiff filed an application for Social Security disability benefits under Title II and
)(VIII of the Social Security Act (the "Act") on October 26, 2009, and filed an application for

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SSI benefits on October 28, 2009. Id. at 11. Plaintiffs applications were denied at the initial
level on April 29, 2010. Id. at 58-60. Plaintiff thereafter requested a hearing before an
Administrative Law Judge ("ALJ"), which was held on January 5, 2011. Id. at 26-55. After the
hearing, the ALJ issued a decision on December 22, 2011 finding Plaintiff was not disabled. Id.
at 8-21. The Appeals Counsel denied Plaintiffs request for review on May 10, 2013. Id. at 1-4.
This denial became the Commissioner's final act.
DISCUSSION
I.

Standard of Review

When a claimant challenges the Social Security Administration's ("SSA") denial of
disability benefits, the Court's function is not to evaluate de novo whether the claimant is
disabled, but rather to determine only "whether the correct legal standards were applied and
whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d
Cir. 2004), amended on reh 'g, 416 F.3d 101 (2d Cir. 2005); see also Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009); 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive[.]"). Substantial
evidence is "more than a mere scintilla"; it is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. of NY, Inc. v. NLRB, 305 U.S. 197, 229 (1938)); Moran, 569 F.3d
at 112. The substantial evidence test applies not only to the Commissioner's factual findings, but
also to inferences and conclusions of law to be drawn from those facts. See Carballo ex rel.
Cortes v. Apfel, 34 F. Supp. 2d 208, 214 (S.D.N.Y. 1999) (Sweet, J.). In determining whether

the record contains substantial evidence to support a denial of benefits, the reviewing court must
examine the entire record, weighing the evidence on both sides to ensure that the claim "has been

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fairly evaluated." See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Grey v. Heckler,
721 F.2d 41, 46 (2d Cir. 1983)).
It is the function of the SSA, not the federal district court, "to resolve evidentiary

conflicts and to appraise the credibility of witnesses, including the claimant." Carroll v. Sec '.Y of

Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citing Richardson, 402 U.S. at 399);
see also Clark v. Comm 'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Although the ALJ need
not resolve every conflict in the record, "the crucial factors in any determination must be set
forth with sufficient specificity to enable [the reviewing court] to decide whether the
determination is supported by substantial evidence." Calzada v. Asture, 753 F. Supp. 2d 250,
268-269 (S.D.N.Y. 2010) (Sullivan, J.) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984)) (quotation marks omitted).
To fulfill this burden, the ALJ must "adequately explain [her] reasoning in making the
findings on which [her] ultimate decision rests" and must "address all pertinent evidence." Kane

v. Astrue, 942 F. Supp. 2d 301, 305 (E.D.N.Y. 2013) (Kuntz, J.) (quoting Calzada, 753 F. Supp.
2d at 269). "[A]n ALJ's failure to acknowledge relevant evidence or to explain its implicit
rejection is plain error." Id. (internal quotation marks and citations omitted). Remand is
warranted when "there are gaps in the administrative record or the ALJ has applied an improper
legal standard." Rosa v. Callahan, 168 F .3d 72, 82-83 (2d Cir. 1999).
II.

Determination of Disability

A. Applicable Law

"To be eligible for disability insurance benefits, an applicant must be 'insured for
disability insurance benefits.' Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (quoting 42
U.S.C. §§ 423(a)(l)(A), 423(c)(l)). "In order to be eligible to receive disability insurance

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benefits, an applicant must satisfy certain earnings requirements. Generally, an applicant must
apply for benefits during the period in which [he] satisfies these earning requirements. If the
applicant does not apply for benefits during this period, [he] may still obtain benefits if [he] has
been under a continuous period of disability that began when [he] was eligible to receive
benefits." 1 Hartfiel v. Apfel, 192 F. Supp. 2d 41, 42 nl (W.D.N.Y. 2001) (Larimer, J.) (internal
citations omitted). To be eligible for SSI benefits, an individual must be aged, blind, or disabled
as defined in 42 U.S.C. § 1382c and, inter alia, meet the resource and income limits specified in
the Act.
For purposes of both disability benefits and SSI, disability is defined as the "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §§
423(d)(l)(A), 1382c(a)(3)(A). The impairments in question must be of "such severity that [the
claimant] 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. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner must apply the five-step
sequential process set forth in 20 C.F.R. §§ 404.1520, 416.920. See e.g., Rosa, 168 F.3d at 77.
The claimant bears the burden of proving the first four steps, while the burden shifts to the
Commissioner at the fifth step. Id First, the Commissioner must determine whether claimant is
engaging in "substantial gainful activity." 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
1

Here, Plaintiffs "earnings records shows that [he] has acquired sufficient quarters of coverage
to remain insured through September 30, 2005. Thus, [he] must establish disability on or before
[this] date in order to be entitled to a period of disability and disability insurance benefits." R. at
11-12.

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the claimant is not so engaged, the second step is to determine whether the claimant has a
"severe medically determinable physical or mental impairment." 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has such an impairment, the third step is to
determine whether the impairment or combination of impairments meets or equals one of the
listings in Appendix 1 of the regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If
the claimant's impairment does not match any of the listings, the fourth step is to determine
whether the claimant's residual functional capacity ("RFC") allows the claimant to perform past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot
perform past relevant work, the final step is to determine whether the claimant can perform
another job based on his or her RFC, work experience, age, and education. 20 C.F.R. §§
404.l 520(a)(4)(v), 416.920(a)(4)(v).

B. The ALJ's Decision
On December 22, 2011, the ALJ followed the five-step procedure to evaluate Plaintiffs
claim and found that: ( 1) Plaintiff had not engaged in substantial gainful activity since March
2001, the alleged onset date; (2) Plaintiff had severe impairments of blindness in the right eye
and status post nasal and facial surgery; (3) Plaintiff did not have an impairment or combination
of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1; (4) Plaintiff had the RFC to perform the full range of sedentary work2
except that Plaintiff was limited to work not requiring bilateral vision due to right eye blindness
2

"Sedentary work involves 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." 20 C.F.R. §§ 404.1567(a), 416.967(a).

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and should wear protective glasses to protect Plaintiffs good left eye, but that Plaintiff was
unable to perform any past relevant work; and (5) considering Plaintiffs age, education, work
experience, and RFC, Plaintiff had acquired work skills from past relevant work that were
transferable to other occupations with jobs existing in significant numbers in the national
economy. As a result, the ALJ found that Plaintiff was not disabled from March 26, 2001 to the
date of the ALJ's decision - December 22, 2011. R. at 12-20.
In determining that Plaintiff had the RFC to perform sedentary work, the ALJ considered
Plaintiffs testimony and symptoms, the medical opinions of Dr. Arnold S. Packer, M.D.,
Plaintiffs treating physician, Dr. Benjamin Kropsky, M.D., who performed a consultative
internal-medical examination of Plaintiff, Dr. S. Siddiqui, M.D., a state-agency medical review
physician, and Dr. Susie Chow, M.D., who performed a consultative physical examination of
Plaintiff. Id. at 15-19. The ALJ also considered the testimony of Dr. Charles Greenberg, M.D.,
an independent medical expert. Id. The ALJ ultimately found that Plaintiffs statements were
not credible because they were inconsistent with the RFC assessment, and that the ALJ did not
have to grant significant weight to Dr. Packer because "the opinion that the [Plaintiff] is not able
to work is a determination reserved for the Commissioner." Id. at 18-19. Upon reviewing
Plaintiffs testimony as well as the opinions of the aforementioned doctors, the ALJ concluded
that Plaintiff was able to perform sedentary work because "the amount of pain and the disabling
effects are just no[t] supported by the treatment record or the medical opinions of Dr. Siddiqui,
Kropsky[,] or Dr. Greenberg." Id. at 19.
Although the ALJ determined that Plaintiff was not able to perform any past relevant
work, the ALJ relied on Miriam Green, a vocational expert, to find that "[Plaintiff] is capable of
making a successful adjustment to other work that exists in significant numbers in the national

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economy" such as "Charge Accounting Clerk," "Taxi Dispatcher," and "Tel[ephone] Sales." Id.
at 20. Based on the foregoing, the ALJ concluded that Plaintiff had not been under a disability as
defined by the Act. Id.
C. The ALJ's Alleged Errors

Plaintiff argues that the ALJ' s "adjudication is deficient" because it is not supported by
substantial evidence. Dkt. 8 ("Pl. 's Br.") at 4, 8. Specifically, Plaintiff alleges that the ALJ
should have granted Dr. Packer's, Plaintiffs treating physician, findings controlling authority
because "the record is devoid of any medical evidence inconsistent with Dr. Packer's findings."

Id. at 7. As such, the ALJ should have considered Dr. Packer's findings that "[Plaintiffs] speech
is impaired by pain in the jaw" and that "[P]laintiff can speak only briefly and intermittently."

Id. at 7-8. According to Plaintiff, because the ALJ failed to grant controlling weight to Dr.
Packer's findings, the ALJ incorrectly concluded that Plaintiff could become a taxi dispatcher or
telephone salesperson since those jobs require talking for most of the day. Id. at 8. Therefore,
Plaintiff concludes that because ''the ALJ failed to adduce evidence that he can perform a
significant number of other jobs, the sequential evaluation process ... mandates a finding of
disabled." Id.
To determine whether the ALJ's decision should be remanded for further administrative
proceedings, the Court must examine the issue of whether the ALJ properly evaluated Dr.
Packer's findings. For the reasons set forth below, the Court finds that the ALJ properly
evaluated Dr. Packer's findings and, therefore, remand is unnecessary.

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III.

The ALJ Properly Evaluated Dr. Packer's Findings
In evaluating the available medical evidence as part of an application for disability

benefits, "[t)he law gives special evidentiary weight to the opinion of the treating physician[s)."

Clark, 143 F.3d at 188. Specifically, the regulations provide that:
Generally, [the SSA] give[s] more weight to opinions from [a Plaintiffs] treating
sources, since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). For these reasons, the opinion of a treating
physician must be given controlling weight on the issue of the nature and severity of a claimant's
impairments, if that opinion "is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in your case
record." Id. If a treating physician's opinion is not given controlling weight by the ALJ because
it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is inconsistent with the other substantial evidence in the case record, then six factors must be
assessed by the ALJ in order to determine how much weight to afford the treating medical
opinion and other medical opinions. These factors are: 1) whether the physician examined the
claimant; 2) the nature and extent of the treatment relationship, including the length of the
relationship and the frequency of examination; 3) the evidence in support of each opinion, such
as medical signs, laboratory findings, and more complete explanations; 4) the extent to which the
opinion is consistent with the record as a whole; 5) whether the medical provider is a specialist;
and 6) any other relevant factors. 20 C.F.R. §§ 404.1527(c), 416.927(c). The Second Circuit has
instructed that remand is appropriate "when the Commissioner has not provided 'good reasons'
s
for the weight given to a treating physicianl> 1 opinion," or when "opinions from ALJs [] do not

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comprehensively set forth reasons for the weight assigned to a treating physician's opinion."

Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004).
In this case, Plaintiff has one treating physician: Dr. Packer. Plaintiff argues that the ALJ
should have given controlling weight to Dr. Packer's assessments and findings under the treating
physician rule because "the record is devoid of any medical evidence inconsistent with Dr.
Packer's findings." Pl.' s Br. at 7. Dr. Packer's findings ultimately concluded that Plaintiff could
only speak briefly and intermittently. As a result, had the ALJ granted controlling weight to
these findings, the ALJ would not have been able to conclude that Plaintiff had the skills
required for jobs existing in significant numbers in the national economy such as a taxi
dispatcher and telephone salesperson because those jobs require significant amounts of talking
during the day. Id. at 8. For the reasons set forth below, the Court disagrees with Plaintiff.
In deciding to not give controlling weight to Dr. Packer's opinions, the ALJ noted:
"The [ALJ] considered the report dated January [2011] by Dr. Packer,
the [Plaintiffs] treating physician, who opined that the [Plaintiff] got
into a motor vehicle accident in 2001 and sustained head, nose, jaw and
right eye injury. He reported that the [Plaintiff] underwent multiple
surgeries with moderate success, with right eye blindness, limited jaw
movement and pain precluding chewing of hard food and precluding
speech for brief periods of time and on an intermittent basis. The doctor
also found that the [Plaintiff] was not able to work. The [ALJ] has given
some weight to the treating source, but the opinion that the [Plaintiff] is
not able to work is a determination for the Commissioner."
R. at 18 (internal citations omitted).
The ALJ then went on to consider and discuss the opinions of Dr. Kropsky, Dr. Siddiqui,
Dr. Greenberg, and Dr. Chow, all of whom reported that Plaintiffs prognosis was fair and that
Plaintiff was within normal limits. Id. at 16-19. Not a single one of these doctors opined that
Plaintiff would not be able to work - unlike Dr. Packer. Id. As a result, the ALJ granted "some
weight" to the opinions of Doctors Kropsky, Siddiqui, Greenberg, and Chow. Id. at 19.

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Based on the foregoing assessment, the Court finds that the ALJ properly evaluated Dr.
Packer's opinion because "[Dr. Packer] issued opinions that are not consistent with other
substantial evidence in the record, such as the opinions of other medical experts." Halloran, 362
F.3d at 32 (internal citations omitted); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
As detailed below, Dr. Packer's opinions are inconsistent with the other medical experts
on record. For ease of explanation, the below chart provides a summary:
Dr. Packer

"Movement of the jaw remains limited and painful, precluding chewing of hard
food and precluding speech other than on a brief and intermittent basis. The
patient suffers chronic facial pain, only minimally relieved with medication. It
is my opinion that the nature of severity of his symptoms are such that he
cannot possibly perform any regular work." R. at 272.

Dr. Kropsky

"The claimant has a moderate limitation for bending, lifting, and carrying
secondary to the pain in the left side of his face from prior surgery and removal
of tissue. The claimant has a mild limitation for prolonged walking and
climbing secondary to shortness of breath." R. at 245.
"Current [ability to perform work-related activities] would be as indicated in the
1/11/2010 DF-232," which states that Plaintiff could "[stand and/or walk for] 6
hrs .... sit 6 hrs .... [frequently lift] 10 lbs .... [and occasionally lift] 20 lbs
with limited bending is appropriate." R. at 248, 258.
"The objective evidence in here would not exclude sedentary. And again, the
medical evidence is really absent in the exhibit file. He did have surgery, and I
think there certainly would have been a period of time during the surgery and
the recovery from the surgical procedures that it would be difficult to work, but
it's just not clear what he did from the alleged onset until the surgery or why he
would not be capable of work at the present time. At least at the sedentary
level." R. at 49.
"There are no restrictions to sitting, standing, walking, climbing stairs. There is
moderate restriction to bending, lifting, pushing, pulling, and carrying. He
should avoid smoke, dust, and known respiratory irritants. There is moderate to
marked restriction from tasks that require fine visual activity." R. at 277.

Dr. Siddiqui

Dr. Greenberg

Dr. Chow

From the above, it becomes clear that only Dr. Packer opined that Plaintiff could not
perform any regular work. All the other doctors

submitt~d

opinions and/or testimony consistent

with the ability of Plaintiff to perform sedentary work as defined under 20 C.F.R. §§
404.1567(a), 416.967(a). "Given the [inconsistency of Dr. Packer's findings], the ALJ was free

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to discount [Dr. Packer's] opinions in favor of a broader view of the medical evidence,
notwithstanding [Dr. Packer's] status as the 'treating physician."' Michels v. Astrue, 297 F.
App'x 74, 76 (2d Cir. 2008). As such, Plaintiff cannot argue that the ALJ failed to "adduce
evidence that [Plaintiff] can perform a significant number of other jobs" because the ALJ
properly considered the opinion of Dr. Packer. Pl.'s Br. at 8. Accordingly, Plaintiffs motion for
judgment on the pleadings must be DENIED.
CONCLUSION

For the reasons stated herein, Plaintiffs motion for judgment on the pleadings, Dkt. 8, is
DENIED, and Defendant's motion for judgment on the pleadings, Dkt. 12, is GRANTED. This
matter is hereby dismissed. The Clerk of Court is respectfully instructed to close this case.

SO ORDERED.

s/WFK

Dated: April~ 2015
Brooklyn, New York

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