Indelicato v. Colvin

Filing 22

ORDER granting 10 Motion for Judgment on the Pleadings. For the reasons given in the attached order, the Commissioner's motion for judgment on the pleadings is granted, and Indelicato's motion is denied. The case will be closed. Ordered by Judge John Gleeson on 2/21/2014. (Aronoff, Peter)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

ONLINE PUBLICATION ONLY

THOMAS INDELICATO,
Plaintiff,
- versus -

MEMORANDUM
AND ORDER
13-CV-4553

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

A P P E A R A N C E S:
LAW OFFICES OF HARRY J. BINDER AND CHARLES E. BINDER, P.C.
60 East 42nd Street
Suite 520
New York, NY 10165
By:
Eddy Pierre Pierre
Attorney for Plaintiff

LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Arthur Swerdloff, Assistant U.S. Attorney
Attorney for Defendant
JOHN GLEESON, United States District Judge:
Thomas Indelicato seeks review of the Social Security Administration’s decision
denying him disability benefits. Indelicato sought benefits based on a number of ailments,
including back pain, respiratory problems, tendinitis in a finger of his left hand, and
cardiovascular problems. A Social Security administrative law judge (“ALJ”), and ultimately the
Acting Commissioner of Social Security, determined that Indelicato would be able to do some
work and therefore denied benefits. Indelicato now argues that the ALJ failed to properly weigh

the opinion of his treating physician, failed to apply a relevant regulation to the facts of his case,
and improperly evaluated his credibility. For the reasons that follow, the Commissioner’s
motion for judgment on the pleadings is granted, and Indelicato’s is denied.
BACKGROUND
Indelicato filed for benefits on April 1, 2011; he claimed that his disability began
December 23, 2009.
Indelicato was born in 1958. He graduated from high school and attended college
for one year. For about twenty-five years, he was a letter carrier with the US Postal Service.
R. 44. More recently, he worked as a janitor at a limousine company, as a laborer at a recycling
facility, and as a dispatcher for a snow plow company. R. 43-44. Indelicato left his most recent
job, the maintenance position at the limousine company, because back problems and respiratory
sensitivity to cleaning products made it difficult for him to continue to work. R. 45. He did not
immediately seek disability benefits; rather, he initially sought other work and collected
unemployment benefits. R. 54-55.
Indelicato lives with his mother. He showers, shaves, and prepares himself
simple meals. He goes outside about once a day, but he has difficulty walking more than a block
without stopping to rest. He spends a typical day reading the newspaper or watching the news;
he also shops for food about twice a week. He is able to pay bills and handle his own finances.
R. 203-16. Indelicato has had back pain since a 1978 car accident, but the pain has recently
worsened. R. 58. He walks with a cane, which he testified was prescribed by a doctor many
years ago. R. 47.
Indelicato has been seeing Dr. Francis J. Anello since April of 2010. On May 23,
2012, Anello provided a summary of Indelicato’s then-existing medical issues, stating that

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Indelicato “always” complained of “dyspnea, bronchitis, & back pain.” R. 418. He also noted
the medications prescribed to Indelicato, including drugs for cholesterol, asthma and COPD
(chronic obstructive pulmonary disease, a lung condition), anxiety, and back pain. Id. In
Anello’s opinion, Indelicato would be limited to under an hour of sitting and under an hour of
standing in a typical eight-hour work day; could never lift, and only occasionally carry, an object
of up to five pounds; was essentially precluded from grasping, turning, or twisting objects with
both hands; and could use his fingers and arms with moderate limitations. R. 409-10. Anello
also believed that Indelicato could not tolerate even low workplace stress because he had “too
many problems.” R. 412. In sum, Anello did not believe that Indelicato could work at all. R.
416.
Dr. John Joseph saw Indelicato to perform a consultative medical exam in May of
2011. In addition to relating a medical history broadly consistent with that described by Anello,
Indelicato reported that for the past year, Indelicato had had difficulty bending the fourth finger
of his left hand, causing him severe pain. R. 271. Joseph’s physical exam showed 5/5 grip
strength in the right hand and 4/5 in the left. Joseph also observed that Indelicato could walk and
squat as normal, with a normal gait and stance. Joseph diagnosed assessed emphysema/asthma,
history of low back pain with arthritis, history of vertigo, history of hypoglycemia, history of
cardiac diseases based on abnormal EKG, and left hand fourth digit tendinitis. R. 274. In
Joseph’s opinion, Indelicato: should avoid heavy lifting due to his back condition; should avoid
a number of potential respiratory irritants; could not perform some activities requiring fine
manipulations of his left hand; and should avoid mild or greater exertion due to concerns about
his cardiac condition. R. 274-75.

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Indelicato filed for disability benefits on March 16, 2011. Those claims were
denied on June 14, 2011, and Indelicato sought a hearing. He appeared before ALJ Gal Lahat on
May 7, 2012. In a decision dated June 26, 2012, ALJ Lahat found that Indelicato was not
disabled. The Appeals Council denied review, rendering the ALJ’s decision final on June 18,
2013.
DISCUSSION
A.

The Legal Standards
A claimant seeking disability insurance benefits must establish that, “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 twelve months,” 42 U.S.C.
§ 1382c(a)(3)(A), she “is not only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy,” id. § 1382c(a)(3)(B).
The Social Security regulations direct a five-step analysis for the Commissioner
to evaluate disability claims:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental
ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a claimant
who is afflicted with a “listed” impairment is unable to perform
substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, he has the residual functional
capacity to perform past work. Finally, if the claimant is unable to
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perform his past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (internal quotation marks
omitted) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)); see also 20 C.F.R.
§ 404.1520(a)(4)(i)-(v) (setting forth this process). The claimant bears the burden of proof in the
first four steps, the Commissioner in the last (but only to show that jobs exist in the national or
local economies that the claimant can perform given her RFC and vocational factors). GreenYounger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 68 Fed. Reg. 51153, 51155 (Aug. 26,
2003).
The Commissioner decides whether the claimant is disabled within the meaning
of the Act. 20 C.F.R. § 404.1527(e)(1). Under 42 U.S.C. § 405(g), I review the Commissioner’s
decision to determine whether the correct legal standards were applied, and whether the decision
is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). If
the record contains evidence which “a reasonable mind might accept as adequate to support [the
Commissioner’s] conclusion,” this Court may not “substitute its own judgment for that of the
[Commissioner] even if it might justifiably have reached a different result upon a de novo
review.” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quotation marks omitted).
B.

Application
Indelicato makes three arguments in support of remand. First, he argues that the

ALJ misapplied the treating physician rule, and that under a proper application of the rule, his
claim should have been granted. Second, he argues that a specific regulation should decide the
case in his favor. Third, he argues that the ALJ did not properly evaluate his credibility.
1. The Treating Physician Rule

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Indelicato argues first that the ALJ did not accord sufficient weight to the opinion
of his internist, Dr. Anello.
Under 20 C.F.R. §§ 404.1527(c) and 416.927(c), the opinion of a treating
physician is entitled to “controlling” weight if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques,” unless it conflicts with other substantial evidence
in the record. See, e.g., Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004); Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (treating physician’s opinion not controlling when
contradicted “by other substantial evidence in the record”); 20 C.F.R. § 404.1527(c)(2).
Indelicato points to a number of pieces of evidence consistent with Anello’s view
that Indelicato would be totally unable to work. He also argues that the ALJ did not cite specific
record evidence to refute Anello’s opinions. According to Indelicato, the ALJ essentially
exercised lay judgment about medical facts and ignored the expert judgment of Anello.
The Second Circuit has cautioned that it requires an “overwhelmingly
compelling” critique of a doctor’s expert judgment in order for an ALJ to reject that opinion. See
Shaw v. Chater, 221 F.3d 126, 134-35 (2d Cir. 2000). But that statement addresses situations in
which an ALJ directly critiques a doctor’s medical opinion. It does not bar the ALJ from
choosing between competing medical opinions, or from comparing the doctor’s overall
assessment to other record evidence. Although an ALJ is not a doctor, and therefore is not
equipped to make medical judgments, she of course may (indeed, must) privilege one expert’s
assessment over a contrary one, just as juries in criminal and civil cases credit one side’s expert
over the other’s. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (noting that an ALJ may
“choose between properly submitted medical opinions”) (internal quotation marks omitted). It is
true that, under the treating physician rule, the claimant’s own doctor is entitled to some

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additional weight. But the rule does not make a treating physician’s views unquestionable. The
final determination of disability is reserved for the ALJ. Although expert medical evidence will
bear significantly on the question, it does not follow that the ALJ must always have
“overwhelmingly compelling” reasons to reject a view contrary to her ultimate conclusion.
Here, the ALJ did not find Anello’s assessment persuasive when measured against
other evidence in the record, including the report of Joseph. See R. 30. For example, the ALJ
found unsupported Anello’s conclusion that Indelicato would be precluded from sitting or
standing for any length of time, because evidence of Indelicato’s daily activities (shopping and
preparing simple meals for himself) contradicted that view. The ALJ also noted that contrary to
Anello’s report, there was no record evidence of bilateral hand and arm disability; rather,
Indelicato had only ever complained of a problem with one finger of one hand. The ALJ noted
that Anello’s assessment of Indelicato’s medical problems as severe was in tension with his
medical history and treatment – for example, he was taking only Motrin and muscle relaxants for
his back pain, and he had not seen a pain specialist. See R. 418, 58. Similarly, the ALJ noted
that Indelicato’s respiratory problems were generally controlled by medication. R. 30.
By contrast, the ALJ noted that Joseph believed that Indelicato had some
restrictions in heavy lifting and carrying due to his back; moderate restrictions in the use of his
left hand, due to his tendinitis; limitations on his exposure to respiratory irritants; and limitations
on exertion due to his cardiac history. R. 26. But those restrictions were not so totally disabling
as to prevent him from working in properly limited jobs. See also R. 271-75 (Joseph’s
summary). The ALJ found Joseph’s views consistent with the whole record.
In sum, the ALJ compared the treating physician’s evaluation with other record
evidence, including expert evidence. The record contained a “[g]enuine conflict[] in the medical

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evidence,” and it was proper “for the Commissioner to resolve” that conflict. Veino, 312 F.3d at
588.
2. Medical-Vocational Guideline 201.14
Indelicato argues next that the Medical-Vocational Guidelines, contained at 20
C.F.R. § 404(P) App. 2 § 200.00 et seq., dictate a finding of disability because the findings of
fact coincide with certain criteria.1
This argument founders at a prerequisite step, however. The Medical-Vocational
Guidelines come into play only if the ALJ reaches the fifth and final step of the analysis. See,
e.g., Barnhart v. Thomas, 540 U.S. 20, 25 (2003). Here, the ALJ did not reach the fifth step –
rather, the ALJ concluded at the fourth step that Indelicato would be able to perform past
relevant work as a dispatcher. See R. 30-31.
3. The ALJ’s Evaluation of Indelicato’s Credibility
Finally, Indelicato argues that the ALJ did not properly evaluate his credibility.
As I have previously written,
In resolving whether a plaintiff is disabled, the Commissioner must
consider subjective evidence of pain or disability testified to by the
plaintiff. The ALJ has discretion to evaluate a plaintiff’s
credibility, and if the ALJ’s decision to ignore plaintiff’s subjective
complaints of pain is supported by substantial evidence, then this
Court must uphold that determination. However, the ALJ must set
forth his reasons for discounting a plaintiff’s subjective complaints
with sufficient specificity to enable the district court to decide
whether the determination is supported by substantial evidence.
Gallo v. Astrue, No. 10-CV-1918 JG, 2010 WL 3999093, at *7 (E.D.N.Y. Oct. 12, 2010)
(internal citations, quotation marks, and brackets omitted).
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The cited guideline would dictate a finding of disability at the fifth stage of the analysis if the
applicant is closely approaching advanced age, is a high school graduate or more but without education that provides
direct entry into skilled work, and has previous skilled or semi-skilled work history but the relevant skills are nontransferrable. See 20 C.F.R. 404(P) Appendix 2 § 201.14.

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Here, proceeding under the two-step credibility framework set out at 20 C.F.R.
§ 404.1529 and § 416.929, the ALJ agreed that the medically determinable impairments alleged
could cause Indelicato’s symptoms. But the ALJ then found “not fully credible” Indelicato’s
characterizations of the “intensity, persistence, and limiting effects of these symptoms.” R. 27.
The ALJ made this finding based in part on non-medical evidence of Indelicato’s activities and
abilities, as well as on Indelicato’s treatment history. The ALJ noted that Indelicato’s conditions
seemed sufficiently well controlled with medication and other treatment that he had only rarely
sought emergency care or been hospitalized; that Indelicato did not complain of side effects of
his medications, and that his treatment regimen was stable; and that his conditions did not
apparently prevent him from engaging in some daily activities such as shaving, shopping,
preparing some food, and assisting with some household chores. R. 27-28. The ALJ also noted
that Indelicato’s conditions did not impede his ability to socialize and maintain attention,
concentration and pace. R. 28. With respect to Indelicato’s use of a cane, the ALJ
acknowledged Indelicato’s testimony that the cane had originally prescribed by another doctor.
See R. 25. But the ALJ also characterized the cane as “self-prescribed for stability,” and noted
that no record medical evidence (for example, neurological analysis) demonstrated that he now
needed it. R. 28.
Indelicato argues that the ALJ erred by failing to consider his 30-year work
history, by mischaracterizing his use of a cane, and by relying improperly on his daily activities.
But these arguments do not persuade me that the ALJ erred. First, the ALJ did note Indelicato’s
history of consistent work, but the opinion also weighed Indelicato’s decision to stay on
unemployment benefits after the date he claimed to have become fully disabled – suggesting that
he had then still felt himself able to work. R. 28; R. 55-56 (Indelicato’s testimony). Second, the

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ALJ was correct that the record did not contain medical evidence that Indelicato required a cane;
instead, the evidence on the cane was limited to his own testimony. It is true that the ALJ has a
duty to develop the record, see Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). But the burden of
proof is the plaintiff’s. Furthermore, this was only one consideration of many, and even if the
ALJ erred, it was at most a minor factor, not warranting remand by itself. Third, a claimant’s
daily activities are precisely the kind of evidence on which the ALJ must rely in order to assess
how medical conditions actually affect a person’s experience. See 20 C.F.R. § 416.929(a)
(listing “daily activities” as a factor used to evaluate reported symptoms). It is true, as Indelicato
argues, that the ability to perform many specific daily activities does not itself mean that he is not
disabled. But taken together, these activities give texture both to medical diagnosis and
subjective accounts, and they provide an important objective basis by which to evaluate a
person’s symptoms. It was not unreasonable for the ALJ to weigh Indelicato’s ability to take
care of himself and socialize.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings is granted, and Indelicato’s cross-motion is denied.

So ordered.

John Gleeson, U.S.D.J.
Dated: February 21, 2014
Brooklyn, New York

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