Gilmartin v. Colvin

Filing 21

MEMORANDUM and ORDER: The plaintiffs motion 14 is DENIED, and the Commissioners motion 16 is GRANTED. Ordered by Judge Frederic Block on 2/7/2017. (Innelli, Michael)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANDREW GILMARTIN,

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Appearances:
For the Plaintiff
CHRISTOPHER J. BOWES
54 Cobblestone Drive
Shoreham, New York 11786

Plaintiff,
-againstCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,

MEMORANDUM AND ORDER
15-cv-6062-FB

Defendant.
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For the Defendant
ROBERT L. CAPERS
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By: RACHEL G. BALABAN
Assistant United States Attorney

23 BLOCK, Senior District Judge:
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Andrew Gilmartin (“Gilmartin,” “plaintiff,” or “claimant”) seeks review of the final

25 decision of the Commissioner of Social Security (“Commissioner”) denying his application

1 for disability and disability insurance benefits under the Social Security Act (“SSA”).1 Both
2 parties move for judgment on the pleadings. For the reasons stated below, plaintiff’s motion
3 is DENIED, and the Commissioner’s motion is GRANTED.

I.

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A resident of Centerport, New York, Gilmartin is a 38-year-old high school graduate

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6 who previously managed a musical band’s tour and a supermarket’s delicatessen. He labored
7 until June 13, 2012, when he allegedly became unable to work due to constant lower back pain
8 radiating to his left lower extremity. He filed an application for disability and disability
9 insurance benefits on April 9, 2013. Gilmartin’s claim was initially denied on May 31, 2013.
10 At Gilmartin’s request, a hearing was held before an Administrative Law Judge (“ALJ”) on
11 May 27, 2014.

On June 4, 2014, the ALJ held that Gilmartin was not disabled within the meaning of

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Title II of the SSA provides for the payment of disability insurance benefits to
those whose disability prevents them from pursuing gainful employment via the
Social Security disability insurance (“SSDI”) program. 42 U.S.C. § 423. The
SSA’s sixteenth title provides for the payment of disability benefits via the
Supplemental Security Income (“SSI”) program. Id. § 1381. When a person files
for disability, he or she typically seeks benefit under both programs, see Heckler v.
Day, 467 U.S. 104, 106–07 (1984) (explaining programs), and the two often merge
in practical analysis, see AR 12. Gilmartin applied for both benefits and insurance.

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1 the SSA. Applying the SSA’s five-step sequential evaluation process,2 the ALJ determined
2 that (1) Gilmartin had not engaged in substantial gainful activity since June 13, 2012, the
3 alleged onset date, and (2) he suffered from one severe impairment: lumbar degenrative disc
4 disease with radiculopathy. Nonetheless, the ALJ concluded that this impairment did not meet
5 or medically equal the SSA’s requisite level of severity, as set forth in 20 C.F.R. § 404,
6 Subpart P, Appendix 1, so as to trigger his automatic classification as disabled.

The ALJ then determined that Gilmartin had the residual functional capacity (“RFC”)

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8 to perform less than the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a).
9 Namely, the ALJ found that Gilmartin could “occasionally lift ten pounds, sit approximately
10 six hours, stand or walk for approximately two hours in an eight hour day with normal
11 breaks,” “occasionally climb ramps or stairs,” and “occasionally balance and stoop.” AR
12 14–15. While Gilmartin was determined to have an “unlimited” ability to “push/pull with . .
13 . [his] upper extremities,” the ALJ concluded that he was “limited to [only] occasional
14 push/pull with [his] lower extremities.” Id. at 15. He could, however, “never climb ladders,
15 ropes or scaffolds” and “never kneel, crouch or crawl.” Id.In reaching this conclusion, the ALJ

SSA regulations establish a five-step process for evaluating disability claims. The
Commissioner must find that a claimant is disabled if she determines “(1) that the
claimant is not working, (2) that he has a ‘severe impairment,’ (3) that the
impairment is not one that conclusively requires a determination of disability, . . .
(4) that the claimant is not capable of continuing in his prior type of work, [and]
(5) there is not another type of work the claimant can do.” Draegert v. Barnhart,
311 F.3d 468, 472 (2d Cir. 2002) (citing 20 C.F.R. § 404.1520(b)-(f)). The burden
of proof is on the claimant for the first four steps, but shifts to the Commissioner at
the fifth step. See 20 C.F.R. § 404.1560(c)(2); Shaw v. Chater, 221 F.3d 126, 132
(2d Cir. 2000).

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1 relied on both “objective medical evidence,” consistent with the requirements of 20 C.F.R. §
2 404.1529, and “opinion evidence,” in accordance with 20 C.F.R. § 404.1527.

The ALJ thereupon applied this RFC to the remaining steps. As to step four, the ALJ

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4 decided that the transferability of Gilmartin’s job skills was “not an issue in this case because
5 the claimant’s past relevant work is unskilled,” AR 18, as authorized by 20 C.F.R. §
6 404.1568(a). Moving to step five, the ALJ concluded that Gilmartin could perform work
7 pursuant to the Medical Vocational Guidelines, 20 C.F.R. § 404, Subpart P, Appendix 2,
8 relying in part on the testimony of one vocational expert. In particular, in light of Gilmartin’s
9 age, education, past relevant work experience, and RFC, the ALJ pointed out that he could
10 perform a number of jobs existing in significant numbers in the national economy. The ALJ
11 gave three examples: order clerk, document prep worker, and scale operator.

The Appeals Council denied Gilmartin’s request for review on August 18, 2015. The

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13 ALJ’s decision thereby became the Commissioner’s final one. Gilmartin has sought timely
14 review, expressly arguing that the ALJ violated the treating physician rule and implicitly
15 contending that the ALJ did not properly weigh his own testimony.3

II.

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“In reviewing a final decision of the Commissioner, a district court must determine

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While Gilmartin never makes this second argument with any detail, he does fault
the ALJ for not fully crediting his testimony regarding his limitations in the midst
of discussing the treating physician rule. Pl.’s MSJ at 20. For the sake of
comprehensiveness, this Order and Memorandum will address Gilmartin’s explicit
and implicit reasons for reversal.
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1 whether the correct legal standards were applied and whether substantial evidence supports
2 the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also 42 U.S.C. §
3 405(g). Substantial evidence . . . means such relevant evidence as a reasonable mind might
4 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971),
5 cited in, e.g., Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). If contradictions appear in
6 the record and an ALJ fails to reasonably explain why he or she opted for one interpretation
7 over another, the Commissioner’s findings cannot stand. See, e.g., Balsamo v. Chater, 142
8 F.3d 75, 81 (2d Cir. 1998) (“‘[T]he ALJ cannot arbitrarily substitute his [or her] own
9 judgment for competent medical opinion . . . .’”); cf. Selian, 708 F.3d at 420 (“To the extent
10 that record is unclear, the Commissioner has an affirmative duty to ‘fill any clear gaps in the
11 administrative record’ before rejecting a treating physician's diagnosis.”). “[T]he reviewing
12 court is required to examine the entire record, including contradictory evidence and evidence
13 from which conflicting inferences can be drawn.” Mongeur v. Heckler, 722 F.2d 1033, 1038
14 (2d Cir. 1983).
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A.

Treating Physician Rule

Plaintiff first argues that the ALJ failed to correctly apply the treating physician rule

18 when he did not give controlling weight to the opinion of Doctor Thomas Dowling
19 (“Dowling”), his treating physician, that Gilmartin could only “sit less than 4 hours during an
20 8-hour workday.” Pl.’s MSJ at 19; see also AR at 17–18. The treating physician rule dictates
21 that “the opinion of a claimant’s treating physician as to the nature and severity of the

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1 impairment is given ‘controlling weight’ so long as it ‘is well-supported by medically
2 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
3 substantial evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.
4 2008) (quoting 20 C.F.R. § 404.1527(c)(2)). For purposes of this rule, “medical opinions”
5 include “statements from physicians and psychologists and other acceptable medical sources,”
6 20 C.F.R. § 404.1527(a)(2), and can take a variety of forms, cf. Philpot v. Colvin, No.
7 12-CV-291 (MAD/VEB), 2014 WL 1312147, at *19 (N.D.N.Y. Mar. 31, 2014) (noting that
8 the relevant treating physician’s opinion had been embodied in a checklist); Gray v. Astrue,
9 No. 09-CV-00584, 2011 WL 2516496, at *5 (W.D.N.Y. June 23, 2011) (same); Tommasetti
10 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (same). If the ALJ does not give a treating
11 physician’s opinion controlling weight, he or she must provide “‘good reasons’ for the weight
12 given to that opinion.” Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). The ALJ
13 must apply this same standard to the opinion evidence of non-examining sources. 20 C.F.R.
14 § 416.927(e)(2)(ii); see also Wells v. Comm’r, 338 F. App’x 64, 67 (2d Cir. 2009) (citing
15 regulatory predecessor).
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As his decision explains, the ALJ gave little weight to the conclusion reached by

17 Dowling regrading Gilmartin’s sitting limitations because Dowling failed to “explain the basis
18 for a sitting limitation” in the face of the following medical evidence: (1) an examination by
19 Doctor Raphael Davis (“Davis”), which “failed to yield abnormal neurological findings”; (2)
20 two independent medical examinations by Doctor Anthony Spataro (“Spataro”), who

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1 ultimately “concluded that the claimant could perform sedentary work on a limited basis” such
2 as “a desk job”; (3) a series of MRI scans which indicated no severe spinal cord damage; and
3 (4) Dowling’s various factual observations regarding plaintiff’s physical condition, including
4 Gilmartin’s absence of any sensory deficits and “gross weakness” in his lower extremities and
5 his otherwise normal reflexes. AR 16–18, 164–221, 299.
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The ALJ extracted yet more support from other objective records: (1) testimony by

7 Gilmartin’s physical therapist indicating that he was “making steady progress,” and (2)
8 Dowling’s and Davis’ decision to pursue and persist in a conservative treatment regimen
9 centered on admittedly effective medication rather than surgical intervention. Id. at 17, 37,
10 285–99, 117–31. But the ALJ did not just rely on such records. As he opined, the daily
11 activities which Gilmartin admitted to undertaking were also “not consistent with his
12 allegation of being unable to work in any capacity.” Id. at 17; see also id. at 32–34. From
13 using a computer for social interaction to walking and driving every day, his “daily activities
14 tend[ed] to show that he is capable of performing a wide range of sedentary work.” Id. While
15 the ALJ rejected part of Dowling’s opinion, he did so in reliance on all this foregoing, albeit
16 conflicting, evidence.
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As such , the ALJ’s decision to give limited weight to Dowling’s single conclusion was

18 supported by “specified reason[s],” mined from an extensive record, Otts v. Comm’r, 249 F.
19 App’x 887, 889 (2d Cir. 2007), and “contradictory medical evidence,” Eiden v. Sec’y of
20 Health, Educ. & Welfare, 616 F.2d 63, 64 (2d Cir. 1980) (relying on Alvarado v. Califano,
21 605 F.2d 34, 35 (2d Cir. 1979)) see also, e.g., Stevens v. Barnhart, 473 F. Supp. 2d 357, 362
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1 (N.D.N.Y. 2007) (“[T]he less consistent an opinion is with the record as a whole, the less
2 weight it is to be given.”). Conflicts undeniably existed, as the record reveals and the parties
3 seemingly acknowledge. Def.’s MSJ at 13; see also Pl.’s MSJ at 20. But an ALJ, when armed
4 with credible evidence, may resolve “[g]enuine conflicts in the medical evidence” by rejecting
5 a treating physician’s questionable assertion. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.
6 2002); see also, e.g., Rutherford v. Schwiker, 685 F.2d 60, 62 (2d Cir. 1982) (“On an appeal
7 such as this, we are faced with a simple reality which appellants often overlook, namely, that
8 factual issues need not have been resolved by the Secretary in accordance with what we
9 conceive to be the preponderance of the evidence.”). By explaining how and why Dowling’s
10 opinion was contradicted by the record’s other substantial evidence, the ALJ avoided any
11 reliance on “his own intuition,” Sanchez v. Colvin, No. 14 CV 1008, 2015 WL 4390246, at
12 *15 (E.D.N.Y. July 14, 2015), or “sheer speculation,” Selian, 708 F.3d at 421, and provided
13 the “good reason” sufficient to justify his ultimate decision. See, e.g., Halloran, 362 F.3d at
14 32 (“[T]he opinion of the treating physician is not afforded controlling weight where . . .
15 [these] opinions . . . are not consistent with other substantial evidence in the record, such as
16 the opinions of other medical experts.”); Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982)
17 (upholding the ALJ’s determination “[where] portions of the ALJ’s decision and the evidence
18 before him indicate[d] that his conclusion was supported by substantial evidence”).
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B. Credibility

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By implication, plaintiff next argues that the ALJ erred by finding that his statements

21 concerning the intensity, persistence, and limiting effect of his impairments were not entirely
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1 credible. No ALJ may reject such subjective statements “solely because the available medical
2 evidence does not substantiate” them. 20 C.F.R. § 416.929(c)(2) (emphasis added); see also
3 Hilsdorf v. Comm’r, 724 F. Supp. 2d 330, 350 (E.D.N.Y. 2010) (quoting regulation).
4 However, an ALJ must “consider whether there are any inconsistencies in the evidence and
5 the extent to which there are any conflicts between [claimant’s] statements and the rest of the
6 evidence.” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); see also Puente v. Comm’r, 130 F.
7 Supp. 3d 881, 894 (S.D.N.Y. 2015) (quoting regulations). Based on such a review, he or she
8 may then “properly choose not to credit . . . [an applicant’s] claims regarding . . .
9 impairments” if “the other evidence in the record . . . contradict[s] them.” Brooks v. Comm’r,
10 No. 15 Civ. 4707 (GWG), 2016 WL 4940208, at *9 (S.D.N.Y. Sept. 15, 2016); see also, e.g.,
11 Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (ALJ “is not required to accept the claimant’s
12 subjective complaints without question[.]”); Carroll v. Sec’y of Health & Human Servs., 705
13 F.2d 638, 642 (2d Cir. 1983) (“It is the function of the Secretary, not ourselves, to resolve
14 evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.”).
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As already noted, the record here provides ample support for the ALJ’s decision to

16 reject the claimant’s assessments of his own disability. See AR 15–18 The ALJ hence did no
17 less than what the law allows and requires, utilizing credible medical findings and testimonial
18 evidence so as to “arrive at an independent judgment . . . regarding the true extent of the pain
19 alleged by the claimant,” Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979); accord Genier,
20 606 F.3d at 49, that was not “patently unreasonable.” Pietrunti v. Director, Office of Workers’
21 Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997). Consequently, substantial evidence
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1 supports the ALJ’s interpretation of Gilmartin’s testimony, and his decision cannot be deemed
2 so unreasonable as to be reversed. See Genier, 606 F.3d at 49 (“Even where the administrative
3 record may also adequately support contrary findings on particular issues, the ALJ’s factual
4 findings ‘must be given conclusive effect’ so long as they are supported by substantial
5 evidence.” (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982))).

III.

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For the aforementioned reasons, plaintiff’s motion is DENIED, and the Commissioner’s
motion is GRANTED.
SO ORDERED
/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
February 7, 2017

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