Vered v. Colvin
Filing
22
MEMORANDUM AND ORDER. For the reasons stated in the attached Memorandum and Order, the court finds that the Commissioners decision was supported by substantial evidence in the record. Accordingly, the defendants Motion for Judgment on the Pleadings 15 is GRANTED, plaintiffs Cross-Motion for Judgment on the Pleadings 17 is DENIED, and the decision of the ALJ is AFFIRMED. The Clerk of Court is respectfully directed to enter judgment for the defendant and close this case. Ordered by Judge Kiyo A. Matsumoto on 2/16/2017. (Fletcher, Camille)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
MEMORANDUM AND ORDER
DAVID VERED,
14-CV-4590 (KAM)
Plaintiff,
-against-
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. § 405(g), plaintiff David Vered
(“plaintiff”) appeals the final decision of defendant Carolyn W.
Colvin, Acting Commissioner of the Social Security Administration
(“defendant”),
who
denied
plaintiff’s
application
for
Social
Security Disability Insurance (“SSDI”) under Title II of the Social
Security Act (“the Act”).
Plaintiff brings this action seeking
judicial review of the Social Security Administration (“SSA”)
decision that he was not disabled because he did not have medically
determinable severe medical impairment(s) that lasted or could
have lasted for a continuous period of at least twelve months from
January 1, 2002, the alleged onset date, through December 31, 2005,
the date last insured.
For the reasons stated herein, defendant’s
-1-
motion for judgment on the pleadings is GRANTED, plaintiff’s crossmotion for judgment on the pleadings is DENIED, and the decision
of the Commissioner is AFFIRMED.
BACKGROUND
I.
PROCEDURAL HISTORY
Plaintiff filed an application for SSDI benefits on
February 22, 2011, alleging that he had been disabled since January
1, 2002 due to a back disorder, herniated disc, arthritis, vision
problems, leg problems, and memory problems.
(Tr. 260.) 1
On March
24, 2011, the SSA denied plaintiff’s application finding he was
not disabled.
(Tr. 144.)
On July 22, 2011, plaintiff requested a hearing before
an administrative law judge (“ALJ”).
(Tr. 150-51.)
The request
was granted and the hearing (“Initial Hearing”) was held on June
27, 2012, before ALJ Jay Cohen.
(Tr. 77-103.)
After the Initial
Hearing, the ALJ sent interrogatories to medical expert Karl
Manders, M.D., which Dr. Manders completed.
(Tr. 627.)
The ALJ
served the completed interrogatories on plaintiff and indicated
that the completed interrogatories would be added to the record.
(Tr.
282-83.)
On
September
11,
2012,
plaintiff
requested
a
supplemental hearing to cross-examine the medical expert, testify
and to submit additional evidence.
1
(Tr. 42-44.)
The supplemental
Citations to the certified administrative record (1-670) are indicated by
the abbreviation “Tr.”
-2-
hearing was held on November 28, 2012 (“Supplemental Hearing”),
where both plaintiff and the medical expert testified.
(Tr. 104-
42.)
In a decision issued on January 14, 2013, the ALJ found
that plaintiff was not disabled, as defined by the Act, from
January 1, 2002, the alleged onset date, through December 31, 2005,
the date last insured (hereinafter “the date last insured”). 2
35.)
The
ALJ
applied
the
five-step
evaluation
process
(Tr.
for
determining whether an individual is disabled, but ended the
analysis at Step Two after finding that plaintiff’s impairments
were not severe.
(Tr. 35); see also 20 C.F.R. § 404.1520(a).
Plaintiff appealed the ALJ’s decision to the Appeals
Council on March 14, 2013.
(Tr. 7-23.)
On June 6, 2014, the
Appeals Council denied plaintiff’s request for review and the ALJ’s
decision became the Commissioner’s final determination.
6.)
(Tr. 1-
This appeal followed.
On July 31, 2014, plaintiff filed the Complaint in this
action.
(See ECF No. 1.)
its Answer.
(See ECF No. 9.)
On October 29, 2014, defendant filed
On March 19, 2015, the parties filed
their motion and cross-motion for judgment on the pleadings.
(See
ECF Nos. 12-21.)
2 The parties do not dispute that plaintiff last met the Social Security Act’s
insured status requirements on December 31, 2005. (Tr. 29.)
-3-
II.
NON-MEDICAL FACTS
Plaintiff was born on March 19, 1953 and he resides in
Queens, New York.
(Tr. 256, 259.)
He was 48 years old as of the
alleged onset date of his disability, January 1, 2002.
(Tr. 256.)
Plaintiff can speak, and generally understands English, but cannot
read or write English.
(Tr. 79, 83, 259.)
At the Initial Hearing,
plaintiff was assisted by a Hebrew interpreter and stated that he
had lived in the United States for the past thirty-three years and
owned a locksmith business.
(Tr. 81, 83.)
At the Supplemental
Hearing, plaintiff testified that he passed the United States
citizenship test, which was administered in English.
09.)
(Tr. 108-
During plaintiff’s visit to the New York Ear and Eye
Infirmary on March 4, 2011, plaintiff mentioned that he did not
need a medical interpreter.
(Tr. 332.)
Plaintiff reported in his disability application that he
completed twelfth grade in 1970.
(Tr. 261.)
But, at the Initial
Hearing, plaintiff testified that the last grade he completed was
the sixth grade; he also testified that he completed a three month
welding course, shortly before immigrating to the United States,
approximately thirty-three years earlier.
(Tr. 81-82, 94.)
Plaintiff worked as a locksmith from 1989 to 2000.
82-83, 260-61.)
(Tr.
During the last four or five years that he worked,
plaintiff managed a locksmith business where he supervised one
employee.
(Tr. 83-84, 108-09.)
-4-
While managing the business,
plaintiff’s
responsibilities
included
ordering
supplies,
communicating in English with customers, and advertising for the
business.
(Tr. 83-84.)
(Tr. 83-84.)
Plaintiff closed the business in 2000.
In the fifteen years prior to claiming disability,
plaintiff only worked as a locksmith.
(Tr. 261.)
After plaintiff began feeling pain but prior to December
31, 2005, the date last insured, plaintiff testified that he would
spend all day at home; he watched television and read while lying
down.
(Tr. 90.)
He further testified that he did not cook, or
clean his apartment, or do any shopping.
(Id.)
Plaintiff stated
he could drive a car, but not every day, and that he did not use
public transportation and his wife took him to all his doctors’
appointments.
(Tr. 90-91.)
Plaintiff testified that he did not
do anything for recreation, but his brother sometimes would take
him to visit friends or family.
(Id.)
Plaintiff’s
record
sufficient
quarters
earnings
of
disability
through December 31, 2005.
shows
coverage
(Tr. 27, 247-253.)
that
to
he
remain
acquired
insured
Plaintiff did not
seek treatment or engage in physical therapy while he traveled
abroad for six months during 2006.
-5-
(Tr. 525.)
III. MEDICAL FACTS 3
i.
Plaintiff’s Testimony Regarding His Symptoms
At the Initial Hearing, plaintiff testified that he
could not work starting January 1, 2002, because he had fallen on
the sidewalk “at that time” and injured his “entire back,” and was
unable to work thereafter.
(Tr. 85.)
Plaintiff testified that
prior to December 31, 2005, he had surgery on his knee and on a
cataract.
(Tr. 88-89.)
Plaintiff stated that he started seeing
Dr. Richard A. Gasalberti, M.D. in 2005 for neck and back pain,
and
was
administered
“numbing
injections”
treatment that “burned” his veins.
as
well
(Tr. 87-88.)
as
a
pain
Plaintiff also
stated that, on or before December 31, 2005, his “spinal cord”
injury caused him pain which traveled down his legs, and that he
felt persistent pain in his back at all times.
(Tr. 85, 87.)
He
testified that, prior to December 31, 2005, he could walk and stand
for fifteen minutes, sit for twenty minutes, and that he could
lift a maximum of ten to fifteen pounds.
(Tr. 86-87.)
Plaintiff initially testified that he did not have any
problems with carpal tunnel syndrome prior to December 31, 2005.
3
Although the court reviewed the entire record, the analysis discusses the
medical facts pertaining to period from the alleged onset date (January 1,
2002) through the date last insured (December 31, 2005) and the twelve months
thereafter (up to December 31, 2006), because plaintiff must prove that he
had sufficiently severe medical impairment(s) that lasted or could have
lasted for a continuous period of at least twelve months during the relevant
period. See Social Security Ruling (“S.S.R.”) 82-52. As discussed in
greater detail herein, plaintiff failed to carry his burden of establishing a
medically severe impairment that met the SSA’s durational requirement prior
to December 31, 2005.
-6-
(Tr. 88-89.)
But, upon questions from his attorney, plaintiff
testified that he started seeing Marc Silverman, M.D., in 2004,
not only for pain in his back and neck, but also because he had
pain in his hands that prevented him from holding a cup of coffee. 4
(Tr. 92-93.)
Plaintiff also stated that in 2004, he was unable to
pick up a gallon of milk due to “really bad pain” in his hands and
legs.
(Tr. 94.)
Plaintiff
testified
that
he
had
no
mental
health
problems prior to December 31, 2005, but was prescribed Valium by
a family doctor for stress.
(Tr. 89.)
He also reported that he
“always received pain medication” and that the pain medication
made him drowsy and caused him to fall asleep; this sleep, however,
was not restful.
(Tr. 96.)
Plaintiff further stated that, on and
before December 2005, he could not sleep through the night because
of the pain despite taking pain medications.
ii.
(Tr. 96-97.)
Medical Evidence
i. Treating Relationship with Marc Silverman, M.D.
On March 5, 2004, plaintiff first visited orthopedic
surgeon Marc Silverman, M.D., with complaints of lower back pain
and pain running down his left leg for the past seven or eight
4
One of the symptoms of Carpal Tunnel Syndrome is “[d]ecreased grip strength
[that] may make it difficult to form a fist, grasp small objects, or perform
other manual tasks.” National Institute of Neurological Disorders and
Stroke, Carpal Tunnel Syndrome Fact Sheet,
http://www.ninds.nih.gov/disorders/carpal_tunnel/detail_carpal_tunnel.htm,
(last visited February 14, 2017).
-7-
months.
(Tr. 326-27.)
or trauma.
Plaintiff indicated no history of injury
(Tr. 318.)
Dr. Silverman’s physical examination
indicated that plaintiff had pain on lumbar flexion and that
plaintiff could toe and heel walk. 5
diagnosed
physical
“L4-L5”
therapy
degenerative
and
ice.
disc
(Tr.
(Tr. 327.)
disease
318.)
Dr.
recommended an electromyography (“EMG”) study.
Dr. Silverman
with
recommended
Silverman
also
(Tr. 327.)
The
EMG, taken on March 9, 2004, was compatible with mild right median
sensory and mild bilateral tibial motor nerve compromise. (Tr.
318, 320-25.)
The x-rays of plaintiff’s cervical spine, taken on
March 29, 2004, were within normal limits.
(Tr. 328.)
On March 29, 2004, plaintiff returned to Dr. Silverman,
reporting that he had undergone physical therapy, but still had
pain in his neck.
(Tr. 318-19.)
Examination of his neck showed
more “pain on flexion” than on extension, and Dr. Silverman noted
that plaintiff’s reflexes appeared to be intact.
(Tr. 319.)
Dr.
Silverman recommended continued physical therapy for plaintiff’s
neck and back, but added physical therapy for plaintiff’s cervical
spine, a visit to a neurologist, a right wrist splint, and a change
of medication to Relafen tablets.
(Id.)
Dr. Silverman also noted
that if there was no improvement in plaintiff’s right wrist, a
right carpal tunnel release would be considered, and if plaintiff
5
Inability to walk on the heels or toes may be evidence of significant motor
loss. See 20 C.F.R. Part 404, Subpart P, App. 1, § 1.00(E)(1).
-8-
saw no improvement in his back or neck, a referral to a spine
surgeon would also be considered.
(Id.)
On September 13, 2004, five months later, plaintiff
returned
to
Dr.
Silverman
and
reported
[plaintiff’s] neck and his back.”
“a
(Tr. 329.)
lot
of
pain
in
Dr. Silverman noted
that “[plaintiff] has not yet worn the wrist cock-up splint” as
previously recommended.
(Id.)
Dr. Silverman again recommended
the use of a wrist cock-up splint and recommended that plaintiff
visit a spine surgeon.
(Id.)
In a letter dated July 19, 2011,
Dr. Silverman stated that plaintiff had been under his care from
March 5, 2004 through September 13, 2004 and that plaintiff was
“totally
disabled
injuries.”
from
work
during
this
period
due
to
his
(Tr. 340.)
ii. Treating Relationship Richard Gasalberti, M.D.
On October 31, 2005, more than a year after plaintiff’s
last visit to Dr. Silverman, plaintiff went to sports medicine and
rehabilitation specialist, Dr. Richard A. Gasalberti, M.D. for an
initial consult.
three
weeks
(Tr. 559-63.)
earlier,
he
bent
Plaintiff reported that, two or
down
to
pick
something
up
and
developed pain in his lower back with radicular symptoms to both
feet. (Tr. 559.) He reported that the pain was worse with activity
and relieved with rest but medication did not alleviate his pain.
(Id.)
Plaintiff also complained of neck pain for the past two
weeks, with radicular symptoms to both upper arms and nocturnal
-9-
symptoms.
(Id.)
Plaintiff denied prior significant medical
problems or history of injury to the neck or back.
(Id.)
Dr. Gasalberti found that plaintiff was alert and fully
oriented with normal memory.
(Tr. 561.) Plaintiff’s cervical
ranges of motion were restricted. 6
Plaintiff had functional ranges
of motion in the upper extremities, hips, knees, and ankles. (Tr.
561.)
Sensation was intact in plaintiff’s upper extremities.
Plaintiff
had
full
strength
(5/5)
in
his
upper
and
lower
extremities, and plaintiff’s deep tendon reflexes of the triceps,
biceps and brachioradialis were symmetrical.
(Id.)
From these
findings, Dr. Gasalberti diagnosed plaintiff with a history of
chronic low back pain, re-exacerbation, and lumbar myofascial pain
syndrome;
he
noted
that
bilateral
lumbar
radiculopathy
cervical radiculopathy needed to be ruled out.
Gasalberti
plaintiff’s
recommended
cervical
Magnetic
and
lumbar
Resonance
spines,
plaintiff’s upper and lower extremities.
prescribed:
(Tr. 562.)
Imaging
and
an
(Id.)
(“MRI”)
EMG
study
and
Dr.
of
of
Dr. Gasalberti
Naprosyn, Vicodin, Lidoderm, a lumbosacral corset for
support, moist heat, Ben Gay, wrist splints, and physical therapy.
(Id.)
6 Plaintiff’s cervical ranges of motion were as follows:
70 degrees on the
right and left, 35 degrees of flexion and extension. (Tr. 561.) Whereas,
the average range of cervical spine motion is: flexion to 50 degrees, lateral
flexion to 45 degrees, and lateral rotation to 80 degrees. American Medical
Association, Guides to the Evaluation of Permanent Impairment (AMA Guides)
118 (4th ed. 1994).
- 10 -
On
November
3,
2005,
on
recommendation
by
Dr.
Gasalberti, Jeffrey Chess, M.D., performed MRIs on plaintiff’s
lumbar and cervical spines.
(Tr. 555-58.)
From the MRI of the
lumbar spine, Dr. Chess gave the following impression:
“There
[was] anterior and posterior bulge of the L3/4 intervertebral disc
effacing the thecal sac.
There [was] left posterior herniation of
the L4/5 intervertebral disc impinging upon the left lateral
recess.”
(Tr. 556.)
From the MRI of the cervical spine, Dr. Chess
gave the following impression: “There [was] anterior and posterior
bulge of the C4/5 intervertebral disc impinging upon thecal sac
with a superimposed right posterolateral herniation impinging upon
the right lateral recess.”
(Tr. 558.)
There was anterior and
posterior bulge of the C5/6 intervertebral disc impinging upon
thecal sac.
There was mild stenosis of the spinal canal at levels
C4/5 and C5/6.
(Id.)
straightening
of
secondary
the
to
the
Dr. Chess also determined that there was
cervical
presence
of
lordosis,
pain
which
and/or
may
muscle
have
been
spasm;
he
recommended a clinical correlation for this impression. (Id.)
Dr. Gasalberti also conducted Duplex Doppler tests on
plaintiff’s lower extremity arteries, abdominal aorta and inferior
vena cava, and lower extremity veins on November 3, 2005.
554.)
Dr.
Gasalberti
“normal” function.
concluded
that
all
three
tests
(Tr.
showed
(Id.)
On November 5, 2005, Dr. Gasalberti administered an EMG
- 11 -
nerve conduction study (“EMG/NCS”).
(Tr. 551-553.)
The nerve
conduction study on plaintiff’s peripheral neuromuscular system
showed
“normal
electrodiagnostic
examination
of
the
upper
extremities without evidence of cervical radiculopathy, myopathy,
peripheral polyneuropathy or carpal tunnel syndrome.”
On
November
10,
2005,
Dr.
Gasalberti
(Tr. 552.)
reviewed
the
EMG/NCS, and the MRIs of the cervical spine and lumbosacral spine,
and diagnosed:
“History of chronic low back pain, bulging disc,
L3-4 disc herniation, L4-5, with L4-5 and L5-S1 radiculopathy.
Neck
pain,
disc
bulging
C4-5,
C5-6,
clinical
cervical
radiculopathy.” (Tr. 550.) Dr. Gasalberti noted that the “[l]ongterm goals include increased range of motion, decreased pain and
muscle
spasm,
recommended
increased
continued
strength.”
use
of
(Id.)
Naprosyn,
Dr.
Lidoderm,
Gasalberti
Vicodin,
a
lumbosacral corset and cock-up splints for support, and physical
therapy.
(Id.)
He also sought authorization for three epidural
steroid injections to the lumbar spine.
Beginning
administered
(Tr. 547-48.)
lumbar
on
December
epidural
2,
steroid
(Id.)
2005,
Dr.
injections
on
Gasalberti
plaintiff.
After the injections, Dr. Gasalberti examined
plaintiff and found that there was no alteration of plaintiff’s
motor
and
intact.
sensory
(Tr. 548.)
function,
and
plaintiff
was
neurologically
On December 6, 2005, plaintiff returned to
Dr. Gasalberti and reported that the pain was reduced to five out
- 12 -
of ten. (Tr. 549.)
Manual muscle testing of the lower extremities
showed full strength.
(Id.)
Dr. Gasalberti’s impressions on
December 6, 2005 were that plaintiff had a history of chronic low
back pain, bulging disc, L3-4, disc herniation, L4-5, with L4-5
and L5-S1 radiculopathy.
Neck pain, disc bulging C4-5, C5-6,
clinical cervical radiculopathy and that plaintiff showed “mildto-moderate overall improvement” after receiving the first series
of
epidural
injections.
(Id.)
Dr.
Gasalberti
treatment
recommendations were the same as his recommendations on November
10, 2005, except Dr. Gasalberti also recommended that plaintiff
receive
a
second
injections.
series
of
transforaminal
epidural
steroid
(Id.)
On December 9, 2005, plaintiff received a second series
of lumbar epidural injections and the examination showed that
plaintiff did not experience any “alteration of motor and sensory
function.” (Tr. 545-46.) On December 10, 2005, plaintiff returned
to Dr. Gasalberti and reported that there was “residual mild
discomfort at the injection site,” but experienced mild to moderate
improvement of radicular symptoms.
impressions
and
recommendations
(Tr. 544.)
after
the
Dr. Gasalberti’s
December
10,
2005
examination were largely the same as his November 10, 2005 and
December 6, 2005 impressions and recommendations.
(Id.)
On December 16, 2005, Dr. Gasalberti administered a
third set of lumbar epidural injections and again found that there
- 13 -
was no alteration of plaintiff’s motor and sensory function and
that plaintiff remained neurologically intact.
December
19,
2005,
plaintiff
returned
to
(Tr. 542-43.)
Dr.
Gasalberti
On
and
reported that “[o]n a pain scale of 1-10, 10 being the worst,
[plaintiff felt] about an 8.”
(Tr. 540.)
Examination showed
tenderness of the proximal coccyx and sacroiliac joints.
(Id.)
Dr. Gasalberti’s impression was the same as November 10, 2005, and
December 10, 2005, but for the sacroilitis diagnosis. (Id.)
Dr.
Gasalberti recommendations were also the same as November 10, 2005
and December 10, 2005, except that he also requested authorization
for SI joint injections.
On
January
(Id.)
6,
2006,
Dr.
Gasalberti
bilateral SI joint steroid injections.
administered
(Tr. 537-38.)
At the
January 9, 2006 re-evaluation, plaintiff reported that his pain
was about 6 or 7 out of 10. (Tr. 539.) Dr. Gasalberti’s impression
was the same as his impression on December 19, 2005, except that
plaintiff
showed
mild
overall
improvement
symptoms after his first SI join injection.
in
his
sacroilitis
(Id.)
On January 13 and January 20, 2006, Dr. Gasalberti
administered a second and a third series of bilateral SI joint
steroid
injections
on
plaintiff.
(Tr.
tolerated the procedures well.
(Id.)
Gasalberti
and
examined
plaintiff
535-36.)
Plaintiff
On February 4, 2006, Dr.
noted
that
plaintiff
had
received some relief after his third series of SI injections. (Tr.
- 14 -
533-34.)
Dr. Gasalberti’s impressions of plaintiff on February 4,
2006, were that plaintiff had a history of chronic low back pain,
bulging disc, L3-4, disc herniation, L4-5, with L4-5 and L5-S1
radiculopathy;
neck
pain,
cervical radiculopathy.
disc
bulging
(Tr. 533.)
C4-5,
C5-6,
clinical
Dr. Gasalberti also noted
that there may be re-exacerbation of disc herniation but found
that plaintiff’s sacroilitis and SI joint pain were resolved after
plaintiff received the three series of SI joint injections.
(Id.)
Dr. Gasalberti also noted that plaintiff had tendinitis of the
left fifth finger and possibly ganglion of the flexor tendon.
(Id.)
MRI
of
Dr. Gasalberti recommendations on February 4, 2006 were: a
the
lumbosacral
spine
to
rule
out
herniated
nucleus
pulposus, he referred plaintiff to a neurosurgeon for a second
opinion, continued physical therapy, use of the lumbosacral corset
and cock-up splint, Arthrotec and Vicodin for pain management and
x-rays of the left hand to rule out ganglion of the flexor tendon.
(Tr. 533-34.)
On
Gasalberti.
February
11,
(Tr. 531-32.)
2006,
plaintiff
again
visited
Dr.
Dr. Gasalberti noted that the x-rays
of plaintiff’s left hand revealed no fracture.
(Tr. 531.)
The
MRI of the lumbosacral spine had not been conducted at the time.
(Id.)
An examination of the left hand revealed tenderness over
the flexor tendon, though plaintiff was able to make a functional
fist.
(Id.)
Dr. Gasalberti also administered a series of trigger
- 15 -
point
injections
on
February
11,
2006.
(Tr.
532.)
Dr.
Gasalberti’s recommendations were the same as on February 4, 2006,
except Dr. Gasalberti recommended that plaintiff discontinue his
use of Arthrotec and Vicodin because plaintiff complained of
gastrointestinal
medications.
discomfort
(Id.)
associated
with
his
use
of
the
Dr. Gasalberti also did not order another x-
ray of plaintiff’s right hand.
(Id.)
At the February 11, 2006
examination, plaintiff advised Dr. Gasalberti that he was leaving
the country shortly.
the
recommended
country.
Dr. Gasalberti advised plaintiff to schedule
neurological
evaluation
prior
to
leaving
the
(Id.)
At
Dr.
Gasalberti’s
recommendation,
Dr.
Gelber
administered an MRI on plaintiff’s lumbosacral spine on March 24,
2006.
(Tr. 529.)
protrusion.
(Id.)
The MRI revealed no evidence of posterior disc
At L3-4, the MRI showed an anterior disc
protrusion and spur. (Id.) Dr. Gelber noted that the significance
of
the
L3-4
anterior
clinical grounds.
disc
protrusion
was
best
determined
by
(Id.)
Plaintiff again was evaluated by Dr. Gasalberti on March
30, 2006.
(Tr. 527-28.)
Dr. Gasalberti noted that the MRI
conducted on March 24, 2006 showed no evidence of posterior disc
protrusion and showed at L3-4 anterior disc protrusion and spur.
(Id.)
He noted that the MRI conducted on November 3, 2005 revealed
bulging disc, L3-4, thecal sac and L4-5 upon left lateral recess.
- 16 -
(Id.)
Dr. Gasalberti requested that plaintiff bring the November
2005 MRI to compare with the March 2006 MRI.
(Tr. 528.)
Dr.
Gasalberti also recommended that plaintiff take Lyrica twice per
day in addition to continued use of the Lidoderm patch, the
lumbosacral corset, cock-up splint, and physical therapy.
(Tr.
527-28.)
Plaintiff was next seen by Dr. Gasalberti nine months
later, on December 21, 2006.
(Tr. 525-26.)
Dr. Gasalberti noted
that plaintiff was last evaluated on March 30, 2006, because
plaintiff had been abroad for six months and had not returned for
follow-up visits or physical therapy as he had recommended.
525.)
(Tr.
Plaintiff reported radicular symptoms to both legs, as well
as pain and discomfort with lateral rotation.
(Id.)
On a pain
scale of 1-10, with 10 being the worst, plaintiff reported that he
felt
about
a
10
with
particularly at night.
intermittent
(Id.)
numbness
of
the
hands,
Dr. Gasalberti referred plaintiff
for a neurological and orthopedic evaluation.
(Tr. 525.)
He also
sought authorization for steroid injections and recommended use of
Lyrica, Lidoderm patches and physical therapy. 7
(Id.)
On April 11, 2012, Dr. Gasalberti completed a functional
assessment for the period October 31, 2005 to the present.
(Tr.
7
Dr. Galsaberti continued to treat plaintiff after December 2006. The court
however, does not detail those treatment records as they do not pertain to
the relevant period; that is, the period between the alleged onset date and
the date last insured.
- 17 -
434-35.)
Dr. Gasalberti found that plaintiff could stand and/or
walk for less than one hour and could sit for less than two hours
in an eight hour work day.
Plaintiff could only lift or carry
between five and ten pounds.
(Tr. 435.)
He further opined, inter
alia, that plaintiff would: have difficulty concentrating on his
work; require frequent breaks and/or bed rest; have functioning
interfered with by medications; need to take an average of two or
more sick days per month; and that plaintiff had environmental
restrictions due to his physical limitations and/or sensitivity.
(Id.)
iii.
Medical Expert’s Testimony
On August 17, 2012, Karl Manders, M.D., a board certified
specialist in pain medicine and neurosurgery, who is qualified as
an expert by the SSA, answered medical expert interrogatories
issued by the ALJ based on his review of the entire administrative
record dating from 2004 to 2012.
(Tr. 647-56.)
Dr. Manders determined that plaintiff did not have any
severe physical impairments on or before December 31, 2005, and
that plaintiff’s only limitation was “prolonged ambulation over
one hour at a time.”
concluded,
inter
alia,
(Tr. 647, 654.)
that
on
or
Otherwise, Dr. Manders
before
December
31,
2005,
plaintiff was capable of shopping, traveling without a companion,
walking without assistance, using public transportation, climbing
a few steps at a reasonable pace with the use of a single hand
- 18 -
rail, preparing simple meals and feeding himself, caring for his
own personal hygiene, and handling paper files.
Dr.
Manders
found
that
interruption,” plaintiff could:
at
(Tr. 654.)
“one
time
without
sit for an hour, stand for thirty
minutes, and walk for thirty minutes.
(Tr. 650.)
He also
concluded that, in an eight hour work day, plaintiff could:
sit
for eight hours, stand for one hour, and walk for one hour and
that plaintiff “may sit [for] one hour then be allowed to stand
and stretch three to five minutes each hour at [the] worksite.”
(Id.)
Additionally,
he
also
found
that
occasionally lift and carry up to ten pounds.
plaintiff
could
(Tr. 649.)
Dr. Manders testified at the Supplemental Hearing on
November 28, 2012.
(Tr. 111-41.)
At the Supplemental Hearing,
Dr. Manders was questioned by plaintiff’s counsel about his opinion
that plaintiff had no severe impairments prior to December 31,
2005, the date last insured.
Dr. Manders stated that the results
of the diagnostic testing, such as x-rays, MRIs, and EMGs, that
plaintiff received were not necessarily indicative of plaintiff’s
pain, symptoms, or functioning.
(Tr. 112-13.)
He explained that
clinical findings made during examination and observation of the
plaintiff by his doctors, especially neurological examinations,
findings involving motor strength, sensation, and reflex changes,
were more important in revealing the patient’s condition and would
need to correlate with the diagnostic testing for the diagnostic
- 19 -
testing to have much value.
(Tr. 113, 125.)
Dr. Manders also
stated that the weight given to a patient’s subjective complaints
varied from patient to patient.
(Tr. 114.)
Dr. Manders clarified that the functional assessment
that he provided via answers to the ALJ’s interrogatories (Tr.
649-54.), concerned plaintiff’s functioning after December 31,
2005.
(Tr. 115.)
Dr. Manders stated that after reviewing the
record, he could not identify, nor was there evidence of, any
specific limitations to plaintiff’s functioning that were present
prior to December 31, 2005.
(Tr. 116-17, 125-27.)
During the Supplemental Hearing, plaintiff’s counsel
specifically requested that Dr. Manders review the evidence from
the period prior to December 31, 2005, including test results and
examination findings from Drs. Silverman and Gasalberti.
116-17, 119-26, 129-30, 133-37, 139-40.)
(Tr.
Dr. Manders explained
that a November 2005 EMG study showing no cervical radiculopathy
and early L4/L5 and L5/S1 radiculopathy (Tr. 551-53), a November
2005 MRI showing straightening of cervical lordosis (Tr. 557-58),
and
a
March
2004
EMG
showing
mild
right
median
sensory
and
bilateral tibial motor nerve compromise (Tr. 320-25), were not of
much value in establishing plaintiff’s impairment(s) or functional
limitations without clinical support such as signs of weakness
and/or reflex and sensory changes.
40.)
(Tr. 119-20, 125, 129-30, 139-
Dr. Manders did not think the mild findings of the 2004 EMG
- 20 -
resulted in a finding of significant limitations because the EMG
dealt with the legs and plaintiff complained of neck and back pain.
(Tr. 139-40.)
Further, in 2004, plaintiff reported basically
subjective complaints, and his neurological clinical examinations
were negative.
(Tr. 117; see 318-19, 326.)
In December 2005, Dr.
Gasalberti found that plaintiff was neurologically intact and had
full (5/5) strength in his lower extremities.
Tr. 540-49.)
(Tr. 119-29; see
Dr. Manders said there were no neurological findings
prior to December 31, 2005, and he could not “come up with any
specific limitations as far as sitting, standing, and things of
that nature.”
(Tr. 117, 126.)
That
plaintiff
received
lumbar
epidural
steroid
injections and that he was prescribed Naprosyn and Flexeril prior
to December 31, 2005 by Dr. Gasalberti, (see Tr. 540-50), also did
not change Dr. Manders’ opinion that plaintiff had no significant
work related limitations or that plaintiff had not established the
existence of a severe impairment during the relevant period from
January 1, 2002 to December 31, 2005.
testified
that
actual
(Tr. 121-25.)
neurological
deficits,
Dr. Manders
rather
than
treatment, established limitations because treatment decisions
vary widely amongst physicians; a physician’s decision to take a
particular
treatment
course
is
often
based
on
the
patient’s
subjective complaints and different physicians will often have
varying views on which treatment is best.
- 21 -
(Id.)
Dr. Manders did
acknowledge that Dr. Gasalberti’s October 31, 2005 findings of
antalgic gait, restricted trunk flexion and lateral rotation, pain
on
neck flexion,
and
positive
straight
leg
raising
could
be
consistent with subjective complaints of pain and abnormal x-rays,
MRIs, and EMGs, and cause limitations.
(Tr. 133-36; see 561.)
Dr. Manders, however, explained that straight leg raising was not
considered a very definitive neurological test.
iv.
(Tr. 134-35.)
Vocational Expert’s Testimony
Andrew Vaughn testified as a vocational expert at the
Initial Hearing. (Tr. 97-100, 215.) He testified that plaintiff’s
past work as a locksmith and small business owner was considered
“light” work.
(Tr. 99.)
He further testified that plaintiff’s
work as a locksmith and small business owner and his educational
level would not have allowed plaintiff to acquire skills that would
have been transferrable outside of the locksmith field to other
sedentary jobs.
(Tr. 99-100.)
STANDARDS OF REVIEW
I.
JUDICIAL REVIEW OF THE SSA’S COMMISSIONER’S DETERMINATIONS
A
district
court
does
not
review
de
novo
the
Commissioner’s determination of whether or not a claimant is
disabled.
See Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
Rather, a district court “may set aside the [ALJ’s] determination
that a claimant is not disabled only if the factual findings are
not supported by substantial evidence or if the decision is based
- 22 -
on legal error.”
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.
2008) (internal quotation marks omitted); Butts v. Barnhart, 388
F.3d 377, 386 (2d Cir. 2004).
a mere scintilla.
Substantial evidence is “more than
It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
Moran v.
The reviewing court
must be certain that the ALJ considered all the evidence when
assessing the legal standards and evidentiary support used by the
ALJ in his disability finding.
20 C.F.R. § 404.1520(a)(3).
“The court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.”
§
405(g).
The
reviewing
court
is
authorized
to
42 U.S.C.
remand
the
Commissioner’s decision to allow the ALJ to further develop the
record, make more specific findings, or clarify his rationale.
See Grace v. Astrue, No. 11-cv-9162, 2013 WL 4010271, at *14
(S.D.N.Y. July 31, 2013); Butts v. Barnhart, 388 F.3d 377, 385–86
(2d Cir. 2004) (“Where the administrative record contains gaps,
remand to the Commissioner for further development of the evidence
is appropriate.”).
See also Lopez v. Sec’y of Dept. of Health and
Human Servs, 728 F.2d 148, 150–51 (2d Cir. 1984) (“We have remanded
cases when it appears that the ALJ has failed to consider relevant
and probative evidence which is available to him.”); Cutler v.
- 23 -
Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975) (indicating that
courts may remand the decision when evidence “was not explicitly
weighed or considered by [the ALJ], although such consideration
was necessary to a just determination of a claimant’s application”)
(internal citations omitted).
II.
LEGAL STANDARDS GOVERNING SSA DISABILITY DETERMINATIONS
“To receive federal disability benefits, an applicant
must be ‘disabled’ within the meaning of the Social Security Act.”
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A claimant is
disabled under the Act when he is unable 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.”
423(d)(1)(A).
42 U.S.C. §
The SSA has promulgated a “five-step sequential
evaluation” to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520(a)(4).
If at any step of the five-step sequential
evaluation the Commissioner can determine whether a claimant is
disabled, the evaluation ends at that step.
Id.; DeJesus v.
Astrue, 762 F. Supp. 2d 673, 683 (S.D.N.Y. 2011).
A. Determining Disability Through the Five-Step Evaluation
i. Step One
At step one, the Commissioner determines whether the
claimant is currently engaged in substantial gainful employment.
- 24 -
20 C.F.R. § 404.1520(a)(4)(i).
If the claimant is currently
engaged in substantial gainful employment, then the claimant is
not disabled “regardless of medical condition.”
404.1520(b).
20 C.F.R. §
Otherwise, the Commissioner moves to step two.
20
C.F.R. § 404.1520(a)(4)(ii).
ii. Step Two
Step two requires the Commissioner to determine whether
the claimant has a “severe medically determinable physical or
mental impairment” that meets the SSA’s duration requirement.
C.F.R. § 404.1520(a)(4)(ii).
20
The SSA’s “duration requirement”
states that, “unless [a claimant’s] impairment is expected to
result in death, it must have lasted or must be expected to last
for a continuous period of at least 12 months.” 20 C.F.R. §
404.1509.
An
impairment
must
“result
from
anatomical,
physiological, or psychological abnormalities which can be shown
by
medically
techniques.”
acceptable
clinical
20 C.F.R. § 404.1508.
and
laboratory
diagnostic
The burden is on the claimant
to provide medical evidence to support his claim that he or she
suffers from a disabling impairment and, to meet this burden, the
claimant
must
“acceptable
provide
medical
reports
sources.”
about
20
the
C.F.R.
impairment
§§
from
404.1513(a).
Subjective symptoms alone are insufficient to establish a physical
or mental impairment.
20 C.F.R. § 404.1528(a).
- 25 -
“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.”
Burgin v. Astrue, 348 F. App’x 646, 647 (2d Cir. 2009)
(internal quotations omitted).
“An impairment or combination of
impairments is not severe if it does not significantly limit [the
claimant’s]
physical
activities.”
20
or
mental
C.F.R.
§
ability
to
basic
work
Such
“basic
work
404.1521(a).
do
activities” include: walking; standing; sitting; lifting; pushing;
pulling; reaching; carrying; handling; seeing; hearing; speaking;
understanding, carrying out, and remembering simple instructions;
using
judgment;
responding
appropriately
to
supervision,
co-
workers and usual work situations; and dealing with changes in a
routine work setting.
20 C.F.R. § 404.1521(b).
In assessing
severity, the Commissioner will not consider a claimant’s “age,
education, and work experience.”
20 C.F.R. § 404.1520(c).
iii. Step Three
If the impairment is medically severe and satisfies the
“duration requirement” under step two, then the Commissioner will
move onto step three.
three
the
20 C.F.R. § 404.1520(a)(4)(ii).
Commissioner
determines
whether
the
At step
claimant’s
impairments meet or equal one of the “Listing of Impairments” found
in 20 C.F.R. Part 404, Subpart P, Appendix I.
- 26 -
20 C.F.R. §
404.1520(a)(4)(iii).
These are impairments acknowledged by the
Secretary
sufficient
to
employment.
be
of
severity
to
preclude
gainful
If a claimant’s condition “meets or equals” one of
the “listed” impairments, he or she is per se disabled and entitled
to benefits, irrespective of his or her “age, education, and work
experience,” and the sequential evaluation ends.
Id.; 20 C.F.R.
§ 404.1520(d).
iv. Step Four
If the claimant’s impairments do not “meet or equal” one
of
the
“Listing
of
Impairments”
under
step
Commissioner must proceed to the fourth step:
three,
then
the
assessing the
individual’s “residual functional capacity,” (“RFC”) i.e., his or
her capacity to engage in basic work activities, and deciding
whether the claimant’s residual functional capacity permits the
claimant to engage in his or her “past relevant work.” 20. C.F.R.
§
404.1520(a)(4)(iv);
20.
C.F.R.
§
404.1520(e).
If
it
is
determined that the claimant can perform their past relevant work,
the Commissioner will find that the claimant is not disabled.
20.
C.F.R. § 404.1520(a)(4)(iv).
v. Step Five
The fifth and final step is a determination of whether
a claimant, in light of his residual functional capacity, age,
education,
and
“alternative
work
experience,
occupations
has
available
- 27 -
in
the
the
capacity
national
to
perform
economy.”
Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); 20. C.F.R. §
404.1520(a)(4)(v).
Because the claimant must prove his case at
steps one through four, the claimant bears the “general burden of
proving . . . disability.”
(2d Cir. 2008).
Burgess v. Astrue, 537 F.3d 117, 128
At the fifth step, however, the burden shifts
from the claimant to the Commissioner, requiring the Commissioner
to show that in light of the claimant’s RFC, “age, education, and
work
experience,”
he
or
she
is
“able
employment within the national economy.”
F.Supp. 300, 310 (E.D.N.Y.1997).
to
engage
in
gainful
Sobolewski v. Apfel, 985
In making that determination,
the Commissioner need not provide additional evidence about the
claimant’s RFC, but may rely on the same assessment that was
applied in step four’s determination of whether the claimant can
perform
his
or
her
past
relevant
work.
See
20
C.F.R.
§
404.1560(c)(2); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009).
B. Calculating the “Date Last Insured”
Not only must a claimant establish that he is disabled,
but he must also establish that he is insured for disability
benefits and that he became disabled prior to the expiration of
his
disability
insured
status.
42
U.S.C.
§§
423(a)(1)(A),
423(a)(1)(D), 423(a)(1)(E), 423(c), 423(d); see also Arnone v.
Bowen, 882 F.2d 34, 37 (2d Cir. 1989); Serrano v. Astrue, No. 05
Civ.
1356,
2008
WL
2622927,
at
- 28 -
*4
(E.D.N.Y.
July
1,
2008).
Generally, a claimant is disability insured when he has accrued 20
quarters
of
coverage
during
the
40–quarter
preceding his onset date of disability. 8
(10–year)
period
See 20 C.F.R. § 404.130;
see also Butts v. Sec’y of Health and Human Servs., 706 F.2d 107,
107 (2d Cir. 1983).
“For someone who works continuously for at
least five years and then [completely] stops working, this means
that the person must have last worked at most five years before
the date of application.
The final day of the final quarter
satisfying these requirements is referred to as the ‘date last
insured.’”
Silverman v. Colvin, No. 13-CV-3062, 2014 WL 198767,
at *3 (E.D.N.Y. Jan. 16, 2014).
III. The ALJ’s Decision
Applying
the
five-step
sequential
analysis
for
disability claims outlined above, the ALJ concluded at step one
that the plaintiff did not engage in substantial gainful activity
at any time between plaintiff’s alleged onset date of January 1,
2002 and December 31, 2005, his date last insured for disability
benefits.
(Tr. 29.)
At step two, the ALJ determined that through the date
last insured, plaintiff had the following medically determinable
impairments: degenerative disc disease of the cervical and lumbar
spines, early radiculopathy involving L4-L5 and L5-S1 motor roots
8 The 20/40 requirement applies to those who allege disability onset after the
age of thirty-one, have not had a previous disability prior to the age of
thirty-one, and are not statutorily blind. See 20 C.F.R. § 404.130.
- 29 -
bilaterally, and mild right median sensory and mild bilateral
tibial motor nerve compromise with consideration of right carpal
tunnel release.
(Id.)
After thorough examination of the record
and evaluation of plaintiff’s subjective testimony, the ALJ found
that plaintiff’s degenerative disc disease of the cervical and
lumbar spines, early radiculopathy involving L4-L5 and L5-S motor
roots bilaterally, and mild right median sensory and mild bilateral
tibial motor nerve compromise with consideration of right carpal
tunnel
release
were
not
sufficiently
plaintiff’s disability claim.
severe
to
substantiate
(Tr. 30-35.)
The ALJ found that the impairments, on their own or in
combination, did not significantly limit plaintiff’s ability to
perform basic work-related activities for a continuous period of
twelve months through December 31, 2005.
(Tr. 35.)
By finding
that plaintiff failed to provide sufficient medical evidence to
establish his disability claim, the ALJ then concluded that the
claimant was not disabled during the relevant period from January
1, 2002 to December 31, 2005.
(Id.)
The ALJ rejected Dr.
Gasalberti opinion that claimant had a RFC consistent with less
than sedentary work.
(Tr. 33.)
The ALJ relied on Dr. Manders,
the medical expert, and instead gave Dr. Manders’ opinion great
weight.
(Tr. 34.)
The ALJ found Dr. Manders’ explanations as to
why he determined that plaintiff did not have severe impairment(s)
were persuasive and consistent with the objective medical evidence
- 30 -
in the record.
(Tr. 31, 32-33, 34.)
The ALJ gave no weight to Dr. Sharon’s opinion that
plaintiff could not perform even sedentary work since 2005, because
Dr. Sharon did not treat claimant at that time and Dr. Sharon’s
opinion was without basis.
(Tr. 34.)
weight
opinion
to
Dr.
Silverman’s
The ALJ also accorded no
that
claimant
was
totally
disabled from work during the relevant period because his opinion
was not supported by any evidence.
(Id.)
The ALJ noted that the
determination of the claimant’s RFC and the ultimate question of
disability
was
reserved
for
the
SSA.
(Tr.
34-35.)
Little
probative weight was afforded to plaintiff’s testimony about his
symptoms because it was not supported by the medical evidence in
the record and because plaintiff’s testimony at various points was
inconsistent both internally and with other information in the
record.
(Tr. 34, 35.)
Analysis
For the reasons stated below, the court finds that the
ALJ’s decision was supported by substantial evidence; the ALJ
reviewed the entire record and properly applied the correct legal
standards.
I.
Accordingly, the ALJ’s decision is affirmed.
The ALJ Properly Applied Step One
Neither party challenges the ALJ’s finding at step one
that
the
plaintiff
was
not
engaged
activity” during the relevant period.
- 31 -
in
“substantial
gainful
(Tr. 29; ECF No. 16, Def.
Br. at 29; ECF No. 18, Pl. Opp. at 21.)
Plaintiff reported that
he closed his business in 2000 and has remained unemployed since
then.
(Tr. 82-83.)
Thus, as confirmed by his earnings record,
plaintiff last met insured status under the Act on December 31,
2005, five years after the quarter he last worked.
(Tr. 29, 247-
253.); see 20 C.F.R. § 404.130; Silverman, 2014 WL 198767 at *3.
Plaintiff remained unemployed after December 2000, therefore the
ALJ found that plaintiff had not engaged in substantial gainful
activity during the relevant period—that is from the alleged onset
date of his disability, January 1, 2002 through the date he last
met insured status on December 31, 2005.
404.1571.
(Tr. 29); 20 C.F.R. §
Accordingly, the court finds that the ALJ’s step one
finding was supported by substantial evidence.
II.
The ALJ’s Step Two Analysis was Proper
The court finds that the ALJ, at step two, correctly
applied the proper legal standard and his determination that
plaintiff’s
impairments
substantial evidence.
were
not
severe,
was
supported
by
At step two, the ALJ evaluated whether the
claimant had severe medically determinable physical or mental
impairments and, if so, whether the impairments or combination of
impairments “lasted or [could] be expected to last for a continuous
period of at least 12 months.”
20 C.F.R. § 404.1509; 20 C.F.R. §
404.1520(a)(4)(ii).
evaluated
The
ALJ
all
the
evidence
and
determined that although plaintiff did have some impairments, his
- 32 -
combination
of
impairments
were
not
severe
and
did
not
significantly limit his ability to do basic work activities, nor
did his combinations of impairments last for a continuous period
of at least 12 months.
(Tr. 35.)
A. SUBSTANTIAL EVIDENCE SUPPORTED THE ALJ’S SEVERITY FINDING
The ALJ found, and the court agrees, that plaintiff
failed
to
carry
his
burden
of
demonstrating
severe
medical
impairment(s) that prevented him from performing his past work.
While the evidence indicates that plaintiff may have had some
impairments, the evidence does not indicate that any of these
impairments singly, or in combination, impeded plaintiff’s ability
to perform basic work during the relevant period.
In determining
the severity of plaintiff’s condition, the ALJ reviewed the entire
administrative record which included medical records, the medical
opinions
of
plaintiff’s
treating
physicians
and
the
medical
expert, as well as plaintiff’s testimony about his symptoms, and
the opinion of a vocational expert.
(Tr. 30-35.)
Consequently,
the court finds that the ALJ’s decision is supported by substantial
evidence.
i.
Weight Assigned to Treating Physicians
The ALJ gave little or no weight to the opinions of
plaintiff’s
three
treating
Gasalberti and Dr. Sharon.
physicians,
Dr.
Silverman,
Dr.
The court finds that the ALJ provided
“good reasons” for weights accorded to Drs. Silverman, Gasalberti
- 33 -
and Sharon.
SSA regulations require that every medical opinion in
the administrative record be evaluated, regardless of the source,
when determining whether a claimant is disabled under the Act.
C.F.R. § 404.1527(c).
20
“Acceptable medical sources” that may
evidence an impairment include, inter alia, a claimant’s licensed
treating physicians and licensed or certified psychologists.
20
C.F.R. § 404.1513(a). The opinion of a specialist regarding issues
related to his area of specialty will generally be afforded greater
weight than that of a non-specialist, 20 C.F.R. § 404.1527(c)(5),
and a source’s familiarity with the Commissioner’s disability
program and evidentiary requirements also accords greater weight.
20 C.F.R. § 404.1527(c)(6).
The
“treating
physician
rule,”
instructs
the
Commissioner to give “controlling weight” to a treating source’s
opinion on the “nature and severity” of a claimant’s impairments
as long as the opinion is “well-supported by medically acceptable
clinical
and
laboratory
diagnostic
techniques
and
is
not
inconsistent with the other substantial evidence in [the] case
record.”
20 C.F.R. § 404.1527(c)(2).
The opinion of the treating
physician, however, is not afforded controlling weight where the
treating
physician’s
opinions
are
not
consistent
with
other
substantial evidence in the record, such as the opinions of other
medical experts.
See Veino v. Barnhart, 312 F.3d 578, 588 (2d
- 34 -
Cir. 2002); see also Halloran v. Barnhart, 362 F.3d 28 (2d Cir.
2004)
(denying
controlling
weight
to
the
treating
physician,
because the treating physician’s opinion was not informative or
consistent with the opinions of other medical experts).
Although
a treating physician’s opinion about whether a claimant is disabled
will
be
considered
by
the
ALJ,
the
final
responsibility
determining disability is reserved to the Commissioner.
for
20 C.F.R.
§ 404.1527(d)(2); see also Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999) (“[T]he Social Security Administration considers the
data that physicians provide but draws its own conclusions as to
whether those data indicate disability.
statement
that
the
claimant
is
A treating physician’s
disabled
cannot
itself
be
determinative.”).
If the Commissioner denies the treating source’s opinion
controlling weight, the Commissioner is required to “always give
good reasons” for the weight accorded. 20 C.F.R. § 404.1527(c)(2).
The “ALJ can give the treating physicians’ opinions less than
controlling weight only if they are not well supported by medical
findings or are inconsistent with other substantial evidence in
the record.”
Santiago v. Barnhart, 441 F. Supp. 2d 620, 628
(S.D.N.Y. 2006).
If the Commissioner does not provide “good
reasons,” it is appropriate for the reviewing court to remand.
See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (“[T]he
Commissioner’s failure to provide ‘good reasons’ for apparently
- 35 -
affording
no
weight
to
the
opinion
of
plaintiff’s
treating
physician constituted legal error.”).
Dr. Silverman’s opined in his July 2011 letter that
plaintiff
was
“totally
September
13,
2004.
disabled”
(Tr.
34,
from
340.)
March
5,
The
ALJ
2004
through
rejected
Dr.
Silverman’s determination that plaintiff was “totally disabled”
during March through September 2004 because (1) the doctor’s
statement was not supported by any evidence and (2) because making
the final determination as to whether a claimant is disabled is
reserved for the SSA.
(Tr. 34-35.)
Consequently, the court finds
that the ALJ gave “good reasons” for not giving controlling weight
to
Dr.
Silverman’s
opinion,
and
supported by substantial evidence.
holds
that
this
finding
was
See Cabassa v. Astrue, No. 11-
CV-1449 KAM, 2012 WL 2202951, at *7 (E.D.N.Y. June 13, 2012)
(“The
source of an opinion on [the ultimate question of disability] is
thus not given ‘controlling weight’ or ‘special significance’
under the regulations.”) (quoting Arruda v. Comm’r of Soc. Sec.,
363 F. App’x 93, 95–96 (2d Cir. 2010) (summary order)); see also
20 C.F.R. §§ 404.1527(d)(1)(“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.”); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999) (“A treating physician’s statement that the
claimant is disabled cannot itself be determinative.”); Halloran,
362 F.3d at 28 (2d Cir. 2004) (denying controlling weight to the
- 36 -
treating physician, because the treating physician’s opinion was
not informative or consistent with the opinions of other medical
experts); Pereira v. Astrue, 279 F.R.D. 201, 206 (E.D.N.Y. 2010)
(“The treating physician rule does not apply, however, when the
treating
physician’s
opinion
is
inconsistent
with
the
other
substantial evidence in the record, such as the opinions of other
medical experts.” (internal quotation marks omitted)).
The
ALJ
also
rejected
Dr.
Gasalberti’s
April
2012
functional assessment restricting plaintiff to less than sedentary
work from October 31, 2005 to the present.
(Tr. 33, 434-35.)
In
rejecting Dr. Gasalberti’s assessment, the ALJ found that Dr.
Gasalberti’s treatment notes from the relevant period, did not
indicate the presence of a severe impairment lasting for twelve
consecutive months on or before December 31, 2005.
(Tr. 32-33.)
The ALJ relied on Dr. Mander’s testimony which highlighted that
Dr. Gasalberti, in October 2005, found that plaintiff had full
(5/5) strength in the upper and lower extremities; intact sensation
in the upper extremities; and symmetrical deep tendon reflexes;
along
with
functional
range
of
motion
of
plaintiff’s
extremities, hips, knees, and ankles. (Tr. 32-33, 560-61.)
upper
The
remainder of Dr. Gasalberti’s treatment notes from the relevant
period indicated a reduced range of lumbar motion, but full 5/5
strength
in
plaintiff’s
lower
extremities.
Dr.
Gasalberti’s
records did not indicate further sensation deficits; rather, Dr.
- 37 -
Gasalberti’s
notes
repeatedly
neurologically intact.
indicated
(See Tr. 540-49.)
that
plaintiff
was
Further, a November
2005 EMG of plaintiff’s upper extremities was normal, with no
evidence of cervical radiculopathy.
(Tr. 32, 552.)
The ALJ noted that Dr. Manders found that there were no
clinical
grounds
establishing
that
impairment during the relevant period.
plaintiff
had
a
(Tr. 33, 112-13.)
severe
The ALJ
found Dr. Mander’s testimony to be persuasive after Dr. Manders
explained
his
rationale
for
his
Manders’ opinion great weight.
opinion,
and
thus,
(Tr. 33, 121-25.)
gave
Dr.
Consequently,
the ALJ rejected Dr. Gasalberti’s opinion that from 2005 to the
present, plaintiff had a residual functional capacity consistent
with less than sedentary work.
(Tr. 33.)
The court finds that
the ALJ gave “good reasons” for according less weight to Dr.
Gasalberti’s opinion and finds that the decision was supported by
substantial evidence.
See Halloran, 362 F.3d at 28 (2d Cir. 2004)
(denying controlling weight to the treating physician, because the
treating physician’s opinion was not informative or consistent
with the opinions of other medical experts); Pereira, 279 F.R.D.
at 206 (holding that the treating physician’s opinion is accorded
less weight “when the treating physician’s opinion is inconsistent
with the other substantial evidence in the record, such as the
opinions of other medical experts”) (internal quotation marks and
citations omitted).
- 38 -
Dr. Sharon, plaintiff’s third treating physician, began
treating plaintiff in July 2010, almost five years after the date
last insured.
(Tr. 362.)
Dr. Sharon opined that plaintiff could
not perform even sedentary work since 2005.
The ALJ gave Dr.
Sharon’s opinion no weight because his opinion was not supported
by any evidence and Dr. Sharon did not treat plaintiff during the
relevant period.
(Tr. 34.)
The court finds that the ALJ provided
“good reasons” for giving no weight to Dr. Sharon’s opinion because
it was not supported by medical evidence.
See Halloran, 362 F.3d
at 28 (denying controlling weight to the treating physician,
because the treating physician’s opinion was not informative or
consistent with the opinions of other medical experts).
ii.
Weight Assigned to Medical Expert
The ALJ’s decision to give controlling weight to the
opinion of the medical expert, Dr. Manders, was proper.
(Tr. 34.)
The opinion of a specialist regarding issues related to his area
of specialty will generally be afforded greater weight, 20 C.F.R.
§
404.1527(c)(5),
and
a
source’s
familiarity
with
the
Commissioner’s disability program and evidentiary requirements
also accords greater weight.
20 C.F.R. § 404.1527(c)(6).
An ALJ
may “ask for and consider opinions from medical experts on the
nature and severity of [an individual’s] impairment(s).” 20 C.F.R.
§
404.1527(e)(2)(iii).
Medical
experts
are
highly
qualified
professionals who are experts in the evaluation of medical issues
- 39 -
in
disability
claims
under
the
Act,
and
their
opinion
may
constitute substantial evidence in support of a denial of benefits,
where, as here, the opinion is supported by the evidence of record.
See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995); Schisler
v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
The
neurosurgeon
opinion
as
ALJ
and
a
noted
pain
that
Dr.
management
specialist
with
an
Manders
is
physician;
he
understanding
a
certified
provided
and
his
extensive
experience with the SSA’s disability program and its requirements.
(Tr. 34.)
After reviewing the entire record, Dr. Manders found
that plaintiff did not have any severe physical impairments on or
before December 31, 2005, and that plaintiff’s only limitation was
“prolonged ambulation over one hour at a time.”
(Tr. 647, 654.)
Dr. Manders was cross-examined by plaintiff’s counsel at the
Supplemental Hearing and provided explanations for his findings.
The ALJ concluded, after hearing Dr. Manders’ testimony,
that Dr. Manders reviewed the entire record and, in the face of
thorough cross examination, provided sufficient explanations for
his opinion.
(See Tr. 31, 33-34.); 20 C.F.R. §§ 404.1527(c)(3)
(well-supported medical source opinion entitled to more weight
than
unsupported
medical
source
opinion;
for
non-examining
sources, “the weight we will give their opinions will depend on
the degree to which they provide supporting explanations for their
opinions”), 404.1527(c)(4) (“The more consistent an opinion is
- 40 -
with the record as a whole, the more weight” it deserves.).
The
ALJ also gave Dr. Manders’ opinion controlling weight because Dr.
Manders was familiar with the agency’s standards for determining
disability, he was an expert on the topics on which he opined, and
because his opinions were supported by the medical evidence.
31, 33-34.)
(Tr.
The court finds that the ALJ applied the proper legal
standards and the weight accorded to Dr. Manders’ opinion was
supported by substantial evidence.
See id.; see also Selian v.
Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (In the Second Circuit,
“to override the opinion of [a] treating physician . . . the ALJ
must
explicitly
consider
.
.
.
whether
the
physician
is
a
specialist.”); LaClair v. Colvin, No. 6:12-CV-816 GLS, 2013 WL
5218067, at *2 n.4 (N.D.N.Y. Sept. 16, 2013) (finding that an ALJ
properly considered the expert’s knowledge of the SSA’s disability
programs when determining the amount of weight to accord the
expert’s opinion).
iii.
The ALJ’s Assessment of Plaintiff’s Subjective
Symptoms
Lastly, in assessing severity, the ALJ also considered
plaintiff’s
limitations.
testimony
about
(Tr. 33-34.)
his
subjective
complaints
and
In evaluating the claimant’s alleged
symptoms and functional limitations for the purposes of step two,
the ALJ must follow a two-step process, first determining whether
the claimant has a “medically determinable impairment that could
- 41 -
reasonably
be
expected
to
produce
[the
claimant’s
alleged]
symptoms.”
20 C.F.R. §§ 404.1529(b); Genier v. Astrue, 606 F.3d
46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)).
“In
determining whether there is an underlying medically determinable
impairment
that
could
reasonably
be
expected
to
produce
an
individual’s symptoms, [the SSA does not] consider whether the
severity of an individual’s alleged symptoms is supported by the
objective medical evidence.”
*3.
S.S.R. 16-3P, 2016 WL 1119029, at
Second, the ALJ “evaluate[s] the intensity and persistence of
[the claimant’s] symptoms so that [the ALJ] can determine how
[those] symptoms limit [the claimant’s] capacity for work.”
C.F.R. § 404.1529(c); Genier, 606 F.3d at 49.
consider
the
evidence,
a
entire
case
claimant’s
record,
including
statements
The ALJ must
objective
about
20
the
medical
intensity,
persistence, and limiting effects of symptoms, statements and
information provided by medical sources, and any other relevant
evidence in the claimant’s record.
S.S.R. 16-3P, 2016 WL 1119029,
at *4-6; Genier, 606 F.3d at 49.
The evaluation of a claimant’s
subjective
symptoms
evaluation
character.
S.S.R. 16-3P, 2016 WL 1119029, at *1.
is
not
an
of
the
claimant’s
When evaluating plaintiff’s symptoms, the ALJ found at
the first step that plaintiff had the following determinable
impairments: degenerative disc disease of the cervical and lumbar
spines, early radiculopathy involving L4-L5 and L5-S1 motor roots
- 42 -
bilaterally, and mild right median sensory and mild bilateral
tibial motor nerve compromise with consideration of right carpal
tunnel release.
(Tr. 29.)
Next the ALJ evaluated the intensity and persistence of
plaintiff’s symptoms and then determined the extent to which the
symptoms limited his ability to perform work-related activists.
20 C.F.R. §§ 404.1529(c).
Here, the ALJ evaluated the entire case
record and found that the totality of the medical evidence did not
corroborate plaintiff’s subjective testimony of his symptoms prior
to December 31, 2005.
(Tr. 34-35.)
The ALJ cited the relatively
conservative treatment and the lack of significant complaints by
plaintiff during the relevant period, and the statements made by
plaintiff that conflicted with other evidence in the record.
33-34.)
(Tr.
As discussed in greater detail above, plaintiff alleged
that he became disabled in January 2002, but did not seek treatment
from Dr. Silverman for the first time until March 2004, more than
two years later.
Further, more than a year elapsed between the
last examination by Dr. Silverman in September 2004, and when
plaintiff first saw Dr. Gasalberti in October 2005.
Moreover,
plaintiff did not seek, nor did he receive, medical treatment or
physical therapy as recommended by his doctors for nine months in
2006; plaintiff traveled abroad for six of those months.
These
treatment gaps undermined plaintiff’s claim that his impairments
were severe on and before December 31, 2005.
- 43 -
Therefore, the ALJ
reasonably
found
that
plaintiff’s
medical
history
during
the
relevant period was not consistent with plaintiff’s subjective
testimony about his symptoms.
(See Tr. 34); S.S.R. 16-3P, 2016 WL
1119029, at *8 (“[I]f the frequency or extent of the treatment
sought by an individual is not comparable with the degree of the
individual’s subjective complaints, or if the individual fails to
follow prescribed treatment that might improve symptoms, we may
find the alleged intensity and persistence of an individual’s
symptoms are inconsistent with the overall evidence of record.”);
Moscatiello v. Apfel, 129 F. Supp. 2d 481, 489 (E.D.N.Y. 2001)
(“The ALJ is permitted to attach significance to plaintiff’s
failure to seek medical treatment.”)(quotation marks and citation
omitted.)
Further, the ALJ noted that, during the relevant period,
the record did not show plaintiff making significant complaints or
indicating that his ability to perform basic work activities was
limited.
(Tr. 34; see Tr. 318-29, 540-63.)
The first time in the
record that plaintiff complained of any difficulty with prolonged
standing or walking was not until July 2007, well after the
December 2005 close of the relevant period.
(See Tr. 515.)
Although the ALJ made a credibility determination that S.S.R. 163P no longer permits, the court finds that the ALJ’s evaluation of
plaintiff’s
subjective
testimony
- 44 -
otherwise
comported
with
the
standards set forth in S.S.R. 16-3P. 9
2016 WL 1119029.
determination
See generally S.S.R. 16-3P,
Accordingly, the court finds that the ALJ’s
that,
during
the
relevant
period,
despite
plaintiff’s subjective complaints, there was no indication that
the plaintiff’s medically determinable impairments significantly
limited his ability to perform basic work activities was supported
by substantial evidence. See 20 C.F.R. § 404.1529(a) (A claimant’s
statements of his own pain symptoms will not alone conclusively
establish disability; the claimant’s subjective complaints must
also be supported by objective medical evidence.); Genier, 606
F.3d at 49.
B. SUBSTANTIAL EVIDENCE SUPPORTED THE DURATIONAL FINDINGS
Substantial evidence supported the ALJ’s conclusion that
plaintiff
failed
to
establish
that
his
physical
impairments
interfered with his ability to perform basic work activities for
a continuous period of at least twelve months during the relevant
period from January 1, 2002 to December 31, 2005.
(Tr. 35.)
The
SSA’s duration requirement states that, “unless [a claimant’s]
9 Although the regulations have not been altered, the Commissioner issued a
new Social Security Ruling, S.S.R. 16-3p, in March 2016. The purpose of this
Ruling is to provide “guidance about how [to] evaluate statements regarding
the intensity, persistence, and limiting effects of symptoms in disability
claims.” S.S.R. 16-3P, 2016 WL 1119029, at *1. The Ruling supersedes the
1996 Ruling, S.S.R. 96-7p, which placed a stronger emphasis on the role of
the adjudicator to make a “finding about the credibility of the individual’s
statements about the symptom(s) and its functional effects.” S.S.R. 96-7P,
1996 WL 374186, at *1. S.S.R. 16-3p, in contrast sets forth “a more holistic
analysis of the claimant’s symptoms, and ‘eliminates the use of the term
credibility.’” Acosta v. Colvin, No. 15-CV-4051, 2016 WL 6952338, at *18
(S.D.N.Y. Nov. 28, 2016) (quoting S.S.R. 16-3P, 2016 WL 1119029, at *1).
- 45 -
impairment is expected to result in death, it must have lasted or
must be expected to last for a continuous period of at least 12
months.”
20 C.F.R. § 404.1509.
First, the ALJ reviewed all of the evidence in the
record.
(Tr. 34.)
The ALJ then found that certain records did
not pertain to the period at issue from January 1, 2002, the
alleged onset date, to December 31, 2005, the date last insured,
and
did
not
determination. 10
analyze
those
records
in
arriving
at
his
(Tr. 31.)
Although,
plaintiff
alleged
that
he
became
disabled
after a fall in January 2002, plaintiff did not visit a doctor for
his alleged injuries until March 5, 2004.
(Tr. 31, 326.)
After
his last visit to Dr. Silverman in September 2004, plaintiff did
not seek or receive treatment for more than a year.
(Tr. 329.)
Plaintiff only began treatment with Dr. Gasalberti on October 31,
2005; plaintiff reported then that he had just hurt his back two
or three weeks earlier and developed back and radicular pain. (Tr.
32, 559-63.)
steroid
In December 2005, plaintiff received lumbar epidural
injections,
after
which
radicular symptoms had improved.
plaintiff
stated
that
his
(Tr. 32, 544, 549.)
Plaintiff saw Dr. Gasalberti on few occasions between
10
In assessing plaintiff’s ability to perform basic work-related
prior to the date last insured, December 31, 2005, the ALJ noted
“exhibits 3F, 4F, 7F, 9F, 10F, 12F, 14F, 15F, 19F, 20F, 21F, and
relevant to the period at issue and will not be analyzed.” (Tr.
- 46 -
functions
that
22F are not
31.)
January 2006 and March 2006. (Tr. 32, 527-539.) After plaintiff’s
March 30, 2006 visit, however, plaintiff discontinued treatment
for nine months until December 2006.
(Tr. 525.)
Plaintiff was
abroad for six months after March 2006; he received no treatment
while he was overseas.
attend
physical
recommended.
therapy
(Id.)
treatment gaps.
He did not return for follow up visits or
as
Dr.
Gasalberti
had
previously
Plaintiff provided no explanation for these
During the relevant period, plaintiff had the
means to seek treatment.
Plaintiff stated that he could drive a
car and also had a brother and wife that took him to visit relatives
or to medical appointments.
(Tr. 90-91.)
In sum, although the administrative record indicates
that plaintiff had some impairments during the relevant period,
between January 1, 2002 and December 31, 2005, the impairments or
combination of impairments were not severe and did not last and
could not be expected to last for a continuous period of at least
12 months.
Plaintiff failed to carry his burden of proving that
his impairments were present and sufficiently severe for at least
twelve months, as required by the regulations.
Feliciano v.
Colvin, No. 12 CIV. 6202 PGG RLE, 2015 WL 1514507, at *6 (S.D.N.Y.
Mar. 31, 2015) (It is the petitioner’s burden to establish as of
alleged onset date a physical impairment that has lasted or could
be expected to last for a continuous period of not less than 12
months.) (internal quotation marks omitted).
- 47 -
Consequently, the
court finds that the ALJ’s finding that plaintiff failed to meet
the durational requirement was supported by substantial evidence.
III.
The ALJ Properly Applied the Five-Step Analysis
Given
the
ALJ’s
determination
that
plaintiff’s
conditions did not rise to the level of severe impairments under
step
two
of
the
disability
analysis,
and
that
consequently
plaintiff was not disabled, the ALJ was not required to proceed to
steps three through five.
the
second
step,
impairment(s).
we
See 20 C.F.R. § 404.1520(a)(4)(ii) (“At
consider
the
medical
severity
of
your
If you do not have a severe . . . impairment that
meets the duration requirement . . . we will find that you are not
disabled.”); 20 C.F.R. § 404.1520(a)(4) (“If we can find that you
are disabled or not disabled at a step, we make our determination
. . . and we do not go on to the next step.”); Feliciano, 2015 WL
1514507, at *7 (holding that the ALJ was not required to move on
to evaluate further steps after determining plaintiff’s failure to
establish severity under step two); Houston v. Colvin, No. 12-CV03842 (NGG), 2014 WL 4416679 (E.D.N.Y. Sept. 8, 2014) (same).
Accordingly, the court finds that the ALJ properly applied the
regulations by foregoing steps three to five of the five-step
disability analysis.
- 48 -
CONCLUSION
For the foregoing reasons, the court finds that the
Commissioner applied the proper legal standards when finding that
plaintiff was not disabled because he did not have medically
determinable severe impairment(s), which had lasted or could be
expected to have lasted for a continuous period of at least twelve
months, from January 1, 2002, the alleged onset date, through
December 31, 2005, the date last insured.
The Commissioner’s
decision was supported by substantial evidence in the record.
Accordingly, the defendant’s Motion for Judgment on the Pleadings
is GRANTED, plaintiff’s Cross-Motion for Judgment on the Pleadings
is DENIED, and the decision of the ALJ is AFFIRMED.
The Clerk of
Court is respectfully directed to enter judgment for the defendant
and close this case.
SO ORDERED.
Dated:
February 16, 2017
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge
- 49 -
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