Gusakov v. Commissioner of Social Security

Filing 15

MEMORANDUM DECISION AND ORDER. The defendant's 11 motion for judgment on the pleadings is granted, the plaintiff's 9 motion is denied, and the ALJ's decision is affirmed. The Clerk of the Court is respectfully directed to enter judgment in favor of the Commissioner, dismissing this action. Ordered by Judge Ann M. Donnelly on 12/12/2018. (Greene, Donna)

IN CLERK'S OFFICE

US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT

^

^ - 2018 ic

EASTERN DISTRICT OF NEW YORK

X

BROOKLYN OFFICE

OLGA GUSAKOV,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

-against-

17-cv-05671(AMD)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
X

ANN M. DONNELLY,United States District Judge:

The plaintiff, Olga Gusakov, seeks review ofthe Commissioner of Social Security's
decision, after a hearing before Administrative Law Judge Lori Romeo,that she was not entitled

to disability insurance benefits under Title II ofthe Social Security Act. (Tr. 19.) For the
reasons that follow, I conclude that the ALJ's decision was based on substantial evidence, and

that she applied the correct legal standards. The Commissioner's motion forjudgment on the
pleadings is granted,the plaintiffs motion forjudgment on the pleadings is denied, and the
ALJ's decision is affirmed.

The plaintifffiled her application for SSDI benefits on December 19,2013, alleging
disability as of October II, 2013, because ofa right foot injury and spinal disease. (Tr. 13, 15.)
The claim was initially denied on January 29,2014. (Tr. 13.) The plaintiff subsequently filed a
written request for a hearing on February 12, 2014, pursuant to 20 C.F.R. § 404.929. (Id) ALJ
Romeo held a hearing on March 30,2016, at which the plaintiff, represented by counsel,
testified. (Id.) On May 27,2016, ALJ Romeo denied the plaintiffs claim for benefits. (Tr. 15-

19.) She concluded that despite the plaintiffs severe impairments—complications from a right

1

foot fracture and lumbar disk bulges—^the plaintiff had the residual functional capacity to
perform light work,and could perform her past relevant work as an acupuncturist. {Id.) The
ALJ gave "little weight" to the opinion oftreating physician Dr. Rimma Shnaydman,and
"greater weight" to the conclusions ofthe consultative physiatrist Dr. Louis Tranese. (Tr. 17,
18.)

A district court reviewing a final decision ofthe Commissioner "must determine whether

the correct legal standards were applied and whether substantial evidence supports the decision."
Butts V. Barnhart, 388 F.3d 377, 384(2d Cir. 2004), as amended on reh'g in part,416 F.3d 101
(2d Cir. 2005). Ifthe Commissioner's findings as to any fact are supported by substantial
evidence,they are conclusive and should be upheld. 42 U.S.C. § 405(g); Richardson v. Perales,
402 U.S. 389,401 (1971). "Substantial evidence" means"more than a mere scintilla," and

includes "relevant evidence" that "a reasonable mind might accept as adequate to support a
conclusion." Perales,402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB,305 U.S. 197,
229(1938)).

The plaintiff argues that the ALJ should have sought clarification and additional

information from the plaintiffs treating doctor, Dr. Shnaydman, before discrediting her opinion,
and that she did not give "good reasons" for her decision not to give controlling weight to the

doctor's opinion, and to give greater weight to the consultative doctor's opinion. The plaintiff
also says that the ALJ substituted her own opinion for the doctors' opinions, and that she made a

mistake in the sequential evaluation process.
Before determining whether the Commissioner's final decision is supported by

substantial evidence,"the court must first be satisfied that the ALJ provided plaintiff with 'a full

Clearing under the Secretary's regulations' and also fully and completely developed the

administrative record." Craig v. Comm 'r ofSoc. Sec., 218 F. Supp. 3d 249,261 (S.D.N.Y.
2016); accord Echevarria v. Sec'y ofHealth & Human Servs., 685 F.2d 751,755(2d Cir. 1982).
I am not persuaded, as the plaintiff contends, that the ALJ was required to seek "clarification"
from Dr. Shnaydman before ruling that the doctor's opinion lacked sufficient clinical or
objective medical support. (ECF No.9 at 14-15.) The ALJ considered the relevant evidence in
the record, including the treatment notes ofthe plaintiffs foot surgeon. Dr. Simon,the MRI and

EMG results. Dr. Tranese's consultative orthopedic examination, and the plaintiffs own
testimony, which was sufficient to reach a determination. (See Tr. 17-18); 20
C.F.R. § 404.1520b.

ALJ Romeo articulated "good reasons" for denying controlling weight to Dr.
Shnaydman's opinion. A treating source's medical opinion will be given "controlling weight" if

it 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). "When a treating source's opinion is not given controlling weight, the proper
weight accorded depends upon several factors, including: (i)the frequency ofexamination and
the length, nature, and extent ofthe treatment relationship;(ii) the evidence in support ofthe
opinion;(iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion
is from a specialist." Perez v. Astrue, No.07-CV-958,2009 WL 2496585, at *7(E.D.N.Y. Aug.
14, 2009)(internal quotation marks and citations omitted). The ALJ must provide "good
reasons" for the weight accorded to the treating physician's opinion. Id.

ALJ Romeo explained why she gave little weight to Dr. Shnaydman's opinion, and those

reasons were sound. (Tr. 18.) One ofthe plaintiffs chiefcomplaints was her foot injury. Dr.
Shnaydman was neither an orthopedist or a foot specialist, and saw the plaintiff only a few times

over the course of several months.' (Tr. 18, 269-72). The doctor who did treat the plaintiffs
foot injury was Dr. Simon, a podiatrist whom the plaintiff does not mention. Dr. Simon treated

the plaintiff over the course oftwo years—^from October 14,2013,through at least November
24,2015. (Tr. 17, 239, 264).

ALJ Romeo's conclusion that Dr. Simon's treatment notes did not support Dr.
Shnaydman's opinion that the plaintiff could lift less than 10 pounds and could not stand for

even two hours is supported by the record. (Tr. 17-18.) Dr. Simon observed that the plaintiff
had either intermittent pain or no pain after her foot surgery, and could walk without crutches

and even without shoes. {See Tr. 17,201,213,216,219.) As ALJ Romeo pointed out. Dr.
Shnaydman's notes did not include detailed clinical findings, such as range of motion or

diagnostic testing results. (Tr. 18.) And Dr. Shnaydman did not complete the portion ofthe
medical assessment form that asked for the medical findings that supported her opinion. (Tr. 18,
273-74.) Instead, as ALJ Romeo noted. Dr. Shnaydman "apparently relied quite heavily on the
subjective report ofsymptoms and limitations provided by the claimant, and seemed to

uncritically accept as true most, if not all, of what the claimant reported."^ (Tr. 19); 20 C.F.R. §
404.1527(c)(4).

ALJ Romeo's decision that the opinion ofthe plaintiffs consulting physician. Dr.
Tranese, was entitled to greater weight is also supported by the record. (ECF No.9 at 12-13.)

Dr. Tranese, who specializes in physical medicine and rehabilitation and conducted a

'Generally, the more times a treating source has seen a patient, the more weight their medical opinion
will be given. 20 C.F.R. § 404.1527(c)(2)(i).

^ ALJ Romeo's conclusion about Dr. Shnaydman's lack ofexpertise in Social Security Administration's
rules and regulations does not form a basis for reversal. (Tr. 18.) An ALJ is entitled to consider "other
factors" in deciding whether to give controlling weight to a treating physician, including "the amount of
understanding ofour disability programs and their evidentiary requirements that a medical source has,
regardless ofthe source ofthat understanding...." 20 C.F.R. § 404.1527(c)(6).

consultative orthopedic examination on the plaintiff, found that although the plaintifflimped,
needed a cane to walk long distances outdoors, and could not walk on her heels and toes, she was

not in acute distress, could squat and stand, and did not need help during the examination. (Tr.
17.) The plaintiff had some tingling and numbness on her foot, but had no abnormalities in her

upper extremities or spine. {Id.) Finally, Dr. Tranese determined that the plaintiff had mild
restrictions for walking long distances,"excessive" stairclimbing, and standing for a long time.
{Id.)

The plaintiff dismisses Dr. Tranese's opinion as "absurd on its face," because it was the

result ofa single consultation. (ECF No.9 at 12-13.) The plaintiff also faults the ALJ for citing
Dr. Tranese's expertise in Social Security Administration's rules and regulations as a reason to
give his opinion "greater weight" than Dr. Shnaydman. {Id. at 12.) However, ALJ Romeo found
that the plaintiff could perform "light work" as an acupuncturist, which does not require lifting

and carrying 50 to 100 pounds. (Tr. 19.) Her decision was not based only on Dr. Tranese's
consultative examination—^which was consistent with Dr. Simon's conclusion—^but on the entire

record, including two years oftreatment records from October 2013 through December 2015.
(Tr. 18-19.) Moreover, adjudicators are authorized to consider "other factors," including a
medical provider's understanding of the Social Security Administration's disability program. 20
C.F.R. § 404.1527(6). ALJ Romeo considered the whole record, and gave "good reasons" for

attributing greater weight to the consultative examiner's assessment than the treating physician's

assessment pursuant to 20 C.F.R. § 404.1527.^

^ The plaintiff attempts to undercut the value of Dr. Tranese's consultative examination because he did
not have MRI or EMG studies. However,there is nothing in 20 C.F.R.§ 404.1519n that requires a
consultative examiner to obtain previous medical tests, and the ALJ took into account the fact that"Dr.
Tranese did not have the opportunity to review the claimant's MRI or EMG tests," which explains the
ALJ's added "restrictions in the residual functional capacity determination." (Tr. 17-18.)

I also reject the plaintiffs argument that ALJ Romeo substituted her own opinion for the
doctors' opinions. (ECF No.9 at 13-14.) When medical evidence conflicts, as it did in this case,

"[t]he trier offact has the duty to resolve that conflict." Perales, 402 U.S. at 399. The ALJ's
conclusion need not "perfectly correspond with any ofthe opinions of medical sources cited in

[her] decision." Matta v. Astrue, 508 F. App'x 53, 56(2d Cir. 2013). A district court reviewing
the Commissioner's decision defers to the Commissioner's resolution of conflicting evidence.
Clark V. Comm'r ofSoc. Sec., 143 F.3d 115,118(2d Cir. 1998).
In this case. Dr. Shnaydman said that the plaintiff could lift less than 10 pounds and could

not stand for even two hours; Dr. Tranese, on the other hand, said that there no weight limitations
on the plaintiffs ability to lift or carry, and that the plaintiff could stand for five hours, walk for

three hours, and sit for eight hours without interruption. (Tr. 255-56, 273-74.) ALJ Romeo
properly resolved this conflict by considering the full record, and her resolution was consistent
with the treatment notes and objective medical testing. (Tr. 17.) The December 2013 treatment
notes established that the plaintiff denied pain and that the swelling in her foot had gone down.
(Tr. 17,168.) Objective medical tests showed that the joints in the plaintiffs foot were aligned

and intact, and the surgical screw was intact. (Tr. 17,170.) By November 2015,the plaintiff had

reduced range of motion but no pain in her right ankle. (Tr. 17,265.) According to EMG tests,
the plaintiff had a pinched spinal nerve and an injury to a nerve in her lower leg. (Tr. 17,277.)
ALJ Romeo considered all ofthis evidence in determining the plaintiffs residual functional
capacity.
Nor did the ALJ make a legal error at step two in the sequential evaluation process, as the

plaintiff claims. (ECF No.9 at 15.) ALJ Romeo considered all of the plaintiffs impairments in

the entirety ofthe sequential evaluation process. She referred to the plaintiffs right foot fracture

and lumbar disc bulges at step two, and noted the details of the plaintiffs disc bulge and nerve

injuries—the moderate bilateral neural foraminal disc hemiations at L3-L4, a moderate to large
broad-based midline to left paracentral disc hemiation at L4-L5, bilateral L5-SI radiculopathy,
and peroneal neuropathy—at step four. (Tr. 15-17); see Reices-Colon v. Astrue, 523 F. App'x
796, 798 (2d Cir. May 2, 2013)(summary order)(finding that "any error was harmless" because
the plaintiffs additional impairments were considered during the subsequent steps). The ALJ
considered all ofthe plaintiffs treatment records, including the notes of her foot problems and
the efforts to treat them, including surgery and post-operative care directed by Dr. Simon.
ALJ Romeo's decision was based on substantial evidence, including the treatment notes
of the plaintiffs podiatrist, the consultative examination, and the objective medical tests.
Accordingly,the defendant's motion for judgment on the pleadings is granted, the plaintiffs
motion is denied, and the ALJ's decision is affirmed. The Clerk of the Court is respectfully
directed to enter judgment in favor of the Commissioner, dismissing this case.
SO ORDERED.

s/Ann M. Donnelly
Ann
Donnelly
United States District Judge
Dated: Brooklyn, New York
December 12, 2018