Neger v. Colvin
Filing
18
ORDER granting 11 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Court grants the Commissioner's motion for judgment on the pleadings, and denies plaintiff's cross-motion. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/5/2014. (Chipev, George)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-1858 (JFB)
_____________________
CHERYL NEGER,
Plaintiff,
VERSUS
CAROLYN COLVIN, COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
August 5, 2014
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Cheryl Neger (“Neger” or
“plaintiff”) brings this action pursuant to 42
U.S.C. § 405(g) of the Social Security Act
(“SSA”), challenging the final decision of
the Commissioner of Social Security
(“Commissioner”), dated April 12, 2012,
denying plaintiff’s application for disability
insurance benefits beginning on August 30,
2009,
through
the
present.
An
Administrative Law Judge (“ALJ”) found
that plaintiff’s fibromyalgia did not preclude
her from performing her past relevant work
as a circulation manager at a warehouse. The
Appeals Council denied Neger’s request for
review. The Commissioner now moves for
judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c).
Plaintiff opposes the Commissioner’s
motion and cross-moves for judgment on the
pleadings or, in the alternative, a remand.
She argues that the ALJ erred by failing to
accord the proper weight to the opinion of
plaintiff’s treating physician, and, relatedly,
failing to re-contact the treating physician
before assessing the weight of that opinion.
For the reasons set forth below, the
Court grants the Commissioner’s motion for
judgment on the pleadings, affirms the
decision of the ALJ, and denies plaintiff’s
cross-motion. Specifically, the Court
concludes that the ALJ did not err in giving
minimal weight to the opinion of the treating
physician, Dr. Myles I. Rosenthal, whose
medical assessment of plaintiff on
December 27, 2011, was not well-supported
by objective medical evidence and was
inconsistent with the substantial medical
evidence of record.
I.
A.
BACKGROUND
Factual Background
The following summary of the relevant
facts is based upon the Administrative
Record (“AR”) developed by the ALJ. A
more exhaustive recitation of the facts is
According to the function report, lifting
items weighing over ten pounds exacerbates
symptoms in plaintiff’s upper body. (Id. at
137.) She has no problems sitting and does
not believe that standing is affected by her
condition. (Id. at 137–38.) Although she can
walk, she needs to rest for five minutes after
walking five hundred feet. (Id. at 138–39.)
She has no problems kneeling and using her
hands, but cannot “over reach.” (Id. at 138.)
Squatting hurts her upper buttock muscles,
while stress affects her neck muscles and
causes nausea and perhaps headaches. (Id. at
140.) Plaintiff described her pain as “mostly
[an] ache”; she feels it in the back of her
head and neck, major pectoralis muscles,
chest, thighs, inside knees, elbows, and
muscles in upper buttocks. (Id. at 140–41.)
Pain occurs every day, with no triggers, and
lasts until she falls asleep. (Id. at 141.) She
also has headaches four to five times per
week. (Id. at 143.)
contained in the parties’ submissions to the
Court and is not repeated herein.
1.
Plaintiff’s Personal History
Plaintiff was born in 1956 and has a high
school education. (AR 98, 117.) From
September 1974 to June 2007, she was
employed as a circulation manager at a
vitamin manufacturer. (Id. at 118, 124.) Her
duties
included
updating
computer
programs, monitoring sales and workflow,
and creating advertising and marketing
campaigns. (Id. at 125.) During the course of
a workday, plaintiff walked for three hours,
stood for one hour, and sat for three hours.
(Id.) She lifted less than ten pounds. (Id.)
She finally stopped working for her
employer on August 30, 2009, the alleged
onset date of her disability. (Id. at 43.)
According to a function report dated
May 16, 2011 (see id. at 132–44), plaintiff
lives in a house with her family. (Id. at 132.)
She has no problems dressing and bathing,
but takes frequent breaks drying her hair,
because she has difficulty holding up the
dryer. (Id. at 133.) She prepares meals daily
for herself and her husband using a slow
cooker, feeds her pet, cleans, does laundry,
and performs light outdoor maintenance. (Id.
at 133–35.) In addition, although plaintiff
needs help lifting bags, she shops in stores,
by mail, and by computer; shops for food
once weekly, which takes approximately one
and one-half hours; goes out “most days”
and either drives or rides in a car; and is able
to travel alone. (Id. at 135–36.) Plaintiff’s
interests include browsing the Internet,
reading, watching television, gardening,
walking, and going to garage sales. (Id. at
136.) She also attends family functions and
meets friends for coffee, but, because of her
worsening symptoms over the past five
years, she does not commit to social
activities on a regular basis. (Id. at 137.)
2.
a.
Plaintiff’s Medical History
Evaluations by Treating Physician
Dr. Myles Rosenthal
Dr. Myles I. Rosenthal (“Dr. Rosenthal”)
has been treating plaintiff since March 1994,
seeing her every three to four months. (Id. at
214.) The record contains, inter alia,
treatment records from Dr. Rosenthal
covering the period from September 10,
2010, through April 5, 2011 (id. at 159–76),
and a medical assessment by Dr. Rosenthal
dated December 27, 2011. (Id. at 214–18).1
Dr. Rosenthal saw plaintiff on
September 10, 2010, for fibromyalgia and
elevated cholesterol. (Id. at 171, 176.)
Plaintiff reported symptoms of bilateral
1
In her motion, plaintiff focuses on Dr. Rosenthal’s
December 27, 2011 evaluation. (See Pl. Brief, at 4–7,
14–16.) That evaluation does not address plaintiff’s
symptoms from August 30, 2009, onward. There are
no medical records in the AR dated before 2010.
2
On December 27, 2011, Dr. Rosenthal
completed
a
medical
assessment
questionnaire regarding plaintiff. (Id. at
214–18.)2 Dr. Rosenthal wrote that he had
seen plaintiff every three to four months
since 1994 for multiple musculoskeletal
complaints,
hypercholesterolemia,
and
hypothyroidism. (Id. 214.) He noted
plaintiff’s prognosis as “chronic long term –
guarded.” (Id.) Her TSH and cholesterol
levels were “normalized” with medication.
(Id.) Dr. Rosenthal stated that no blood tests
or radiologic tests identify fibromyalgia.
(Id.) He indicated that plaintiff’s symptoms
consist of multiple tender points, nonrestorative sleep, chronic fatigue, morning
stiffness, muscle weakness, frequent and
severe headaches, numbness and tingling,
and
hypothyroidism
(controlled
on
medication). (Id.) He stated that no
emotional factors have contributed to the
severity of plaintiff’s symptoms and
functional limitations. (Id.) He further noted
that plaintiff complained of point tenderness
bilaterally in the chest, hips, and knees,
ankles, and feet. (Id. at 215.) Changing
weather, movement and overuse, the cold,
and remaining in a static position
precipitated her pain. (Id.) Symptoms
frequently were severe enough to interfere
with her attention and the concentration
required to perform even simple work tasks.
(Id.)
tenderness, on and off, which was confirmed
through an examination (Id. at 171.) Dr.
Rosenthal’s
assessment
was:
(1)
fibromyalgia stable, (2) bilateral tenderness,
and (3) hypercholesterolemia. (Id.) He
prescribed Simvastatin and Elavil, and
directed plaintiff to return in one month for
blood testing. (Id. at 176.) Blood testing,
carried out on October 21, 2010, showed all
results to be within reference range. (Id. at
169–70.) On November 23, 2010, Dr.
Rosenthal renewed the Elavil prescription.
(Id. at 168.) The medical records do not
indicate that Dr. Rosenthal concluded
plaintiff was disabled at this time.
Dr. Rosenthal next saw plaintiff on
February 14, 2011, for a cholesterol check
and medication refills. (Id. at 164, 167.) She
had a sore throat and complained of aching
all over, on and off. (AR 164.) The
neurological examination was negative,
except for sluggish deep tendon reflexes.
(Id.) Dr. Rosenthal’s assessment was: (1)
hypercholesterolemia, (2) fibromyalgia, (3)
no cardiovascular disease, and (4) no
hypothyroidism. (Id.) Blood work done that
day revealed, inter alia, an elevated amount
of thyroid stimulating hormone (“TSH”), but
cholesterol levels were within reference
range. (Id. at 165.) On February 22, 2011,
Dr. Rosenthal prescribed Synthroid and
instructed plaintiff to repeat TSH testing in
six weeks. (Id. at 162–63.) He did not
conclude that plaintiff was disabled.
Dr. Rosenthal thus concluded that: (1)
plaintiff was incapable of even “low stress”
jobs; (2) plaintiff was limited to walking two
blocks without rest or severe pain; (3)
plaintiff could sit thirty minutes at a time,
and stand for ten minutes at a time; (4)
during the course of an eight-hour workday,
plaintiff could sit and stand or walk for
fewer than two hours; would require at least
thirty minutes of walking during the day;
Plaintiff returned to Dr. Rosenthal on
April 5, 2011, to follow-up regarding
hypothyroidism. (Id. at 159, 161.) She stated
that she “feels fine in all ways.” (Id. at 159.)
She noted, however, that she did have
intermittent fibromyalgia symptoms. (Id.)
Dr. Rosenthal’s assessment was euthryoid
(normal thyroid function) on medication.
(Id.) Blood testing revealed a low TSH
level. (Id. at 160.) Dr. Rosenthal did not
conclude that plaintiff was disabled.
2
The AR includes no treatment records from Dr.
Rosenthal dated after April 5, 2011.
3
(Id.) Her gait was normal. (Id.) Although she
declined to walk on her heels and toes, she
squatted fully, had a normal stance, used no
assistive devices, needed no help changing
for the exam or getting on and off the exam
table, and rose from the chair without
difficulty. (Id.) Examination of the cervical
spine showed full flexion, extension, lateral
flexion bilaterally, and full rotary movement
bilaterally. (Id. at 179.) There was no
scoliosis, kyphosis, or abnormality in the
thoracic spine, and the lumbar spine
exhibited full flexion, extension, lateral
flexion bilaterally, and full rotary movement
bilaterally. (Id.) Straight leg raising was
positive in the supine position bilaterally to
60 degrees, but the seated positive test was
negative. (Id.) Plaintiff had full range of
motion of the shoulders, elbows, forearms,
wrists bilaterally, hips, knees, and ankles
bilaterally. (Id.) Joints were stable and nontender, and there was no swelling, redness,
heat, or effusion. (Id.) She did, however,
have fibromyalgia tender points at the knees
bilaterally, anterior chest wall bilaterally,
and trapezius bilaterally. (Id.) Deep tendon
reflexes were physiologic and equal in both
upper and lower extremities. (Id.) There
were no sensory deficiencies, strength was
5/5 in the upper and lower extremities, and
no muscle atrophy was evident. (Id.) Hand
and finger dexterity was intact, and grip
strength also was 5/5. (Id. at 180.)
and would require multiple unscheduled
breaks to lie down during the day, each
lasting ten minutes on average; (5) plaintiff
could rarely lift and carry less than ten
pounds or climb stairs, and never twist,
crouch, or climb ladders; (6) plaintiff could
occasionally look down, turn her head in
either direction, and look up, but rarely
could hold her head in a static position; (7)
plaintiff was limited to using her fingers for
fine manipulations twenty-five percent of
the day, and using her hands to grasp, turn,
or twist objects ten percent of the day; (8)
plaintiff could never use her arms to reach;
and (9) plaintiff would be absent from work
due to her impairments more than four days
per month. (Id. at 215–16.)
b.
Consulting Physicians
i.
Andrea Pollack, D.O.
Andrea Pollack, D.O. (“Dr. Pollack”),
conducted a consultative internal medicine
examination on June 8, 2011. (Id. at 177–
80.) Plaintiff related a history of
fibromyalgia since age twenty-two, which
went into remission and returned in 1997, as
well as high cholesterol for two years and
hypothyroidism for at least one year. (Id. at
177.) She primarily complained of neck, low
back, and leg pain, which was intermittent
and burning and sore to the touch. (Id.) She
also stated that she suffered from migraine
headaches twice a week for hours, with a
throbbing pain and minimal relief from
medication, and she described a pressure
affecting her right anterior chest wall more
than the left. (Id.) Her current medications
were
Elavil,
Flexeril,
Simvastatin,
Synthroid, and Ibuprofen. (Id. at 178.) She
stated that she lives with her husband, cooks
five days a week, cleans as tolerated, can
shower and dress daily, goes out, and runs
errands. (Id. at 178.)
Dr. Pollack diagnosed fibromyalgia,
migraines, costochondritis, hyperlipidemia,
and hypothyroidism. (Id.) She opined that
plaintiff should avoid heights, activities
requiring heavy exertion, and operating
heavy machinery. (Id.) Dr. Pollack stated
that plaintiff had a moderate restriction in
lifting, carrying, pushing, and pulling. (Id.)
ii.
Kathleen Acer, Ph.D.
Kathleen Acer, Ph.D. (“Dr. Acer”),
conducted a consultative psychiatric
On examination, plaintiff weighed 170
pounds and appeared in no acute distress.
4
up the house, watches television, and checks
her email. (Id. at 32.) Plaintiff testified that
she did “light cooking” and uses a crockpot
to prepare meals, and that she could not do
repetitive tasks, such as dusting, vacuuming,
or ironing. (Id.) Her husband helped with all
the chores. (Id.) Plaintiff helped with
washing dishes or doing laundry, went food
shopping a few times per week, and could
probably carry two five-pound bags of
potatoes if she had them in her arms. (Id. at
34.) Plaintiff testified that sitting could be a
problem, and she estimated that she could sit
for between ten minutes and one-half hour at
a time. (Id.) She was limited to walking for
about ten minutes, and could stand for only
two to three minutes at a time. (Id. at 34–
35.) Plaintiff drove about once a week, to do
errands or go to the doctor. (Id. at 39.)
evaluation on June 8, 2011. (Id. at 181–84.)
Plaintiff drove herself unaccompanied to the
evaluation. (Id. at 181.) She denied having
any significant symptoms associated with
major depressive, anxiety-related, or formal
thought disorders. (Id.) She also had a
normal appetite. (Id.) Her gait was marked
by shuffling and some limping, but her
motor behavior was normal. (Id.) Her eye
contact was appropriately focused, she
spoke fluently and clearly, and her thought
process was coherent and goal-directed. (Id.)
According to Dr. Acer, plaintiff reported
that she can dress, bathe, and groom herself,
cook, clean, do laundry, and shop. (Id.) She
stated that she spends her days running
errands, watching television, and doing
household chores. (Id.) Dr. Acer concluded
that, vocationally, plaintiff could follow and
understand
simple
instructions
and
directions, appropriately perform simple
tasks, maintain attention and concentration,
maintain a regular schedule, learn new tasks,
perform complex tasks independently,
adequately relate with others, and deal with
stress. (Id. at 183.)
3.
B.
Procedural History
On April 19, 2011, plaintiff applied for
disability insurance benefits, alleging
disability as of August 30, 2009, due to
fibromyalgia and chronic fatigue syndrome.
(Id. at 96–104, 117.) After the application
was denied, plaintiff requested a hearing and
appeared, represented by counsel, before the
ALJ on March 29, 2012. (Id. at 23–42.) On
April 12, 2012, the ALJ issued a decision
concluding that plaintiff was not disabled.
(Id. at 9–22.) The Appeals Council denied
the request for review on March 11, 2013.
The Administrative Hearing
Plaintiff testified at the hearing before
the ALJ on March 29, 2012. (Id. at 27–41.)
She testified that she is unable to work
because of “varying degrees of widespread
pain and headaches,” which prevent her
from engaging in a normal daily routine. (Id.
at 28.) According to plaintiff, the primary
site of her fibromyalgia is her neck, and it
causes headaches and nausea most of the
day. (Id. at 29.) Taking Motrin and sitting
still takes the edge off the headaches. (Id. at
36.) Muscle spasms in her right eye and top
of her head are sometimes accompanied
headaches, and if the Motrin is ineffective,
she uses a muscle relaxer. (Id. at 30–31.)
Plaintiff commenced this action on May
7, 2013, appealing the ALJ’s April 12, 2012
decision. The Commissioner answered on
September 9, 2013, and moved for judgment
on the pleadings on December 2, 2013.
Plaintiff filed her motion for judgment on
the pleadings on December 31, 2013. The
Commissioner replied on January 17, 2014.
The matter is fully submitted.
In describing her day, plaintiff stated
that, after waking up, she has tea, straightens
5
II.
STANDARD OF REVIEW
Lisa v. Sec’y of the Dep’t of Health &
Human Servs., 940 F.2d 40, 43 (2d Cir.
1991).
A district court may set aside a
determination by an ALJ “only where it is
based upon legal error or is not supported by
substantial evidence.” Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998) (citing Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982)). The Supreme Court has defined
“substantial evidence” in Social Security
cases to mean “more than a mere scintilla”
and that which “a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal citation and quotation marks
omitted); see Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013). Furthermore, “it is up to
the agency, and not [the] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (internal
citation and quotation marks omitted); see
also Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998) (“Where an administrative
decision rests on adequate findings sustained
by evidence having rational probative force,
the court should not substitute its judgment
for that of the Commissioner.”).
III.
A.
DISCUSSION
Legal Standard
A claimant is entitled to disability
benefits if the claimant 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 twelve months.” 42 U.S.C.
§ 1382c(a)(3)(A). An individual’s physical
or mental impairment is not disabling under
the SSA unless it is “of such severity that he
is not only unable to do his previous work
but cannot, considering his age, education,
and work experience, engage in any other
kind of substantial gainful work which exists
in
the
national
economy.”
Id.
§ 1382c(a)(3)(B).
The Commissioner has promulgated
regulations
establishing
a
five-step
procedure for evaluating disability claims.
See 20 C.F.R §§ 404.1520, 416.920. The
Second Circuit has summarized this
procedure as follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
a “severe impairment” that limits her
capacity to work. If the claimant has
such
an
impairment,
the
[Commissioner]
next
considers
whether the claimant has an
impairment that is listed in Appendix
1 of the regulations. When the
claimant has such an impairment, the
[Commissioner] will find the
In order to obtain a remand based on
additional evidence, a plaintiff must present
new evidence that: “(1) is ‘new’ and not
merely cumulative of what is already in the
record[;]” (2) is material, in that it is
“relevant to the claimant’s condition during
the time period for which benefits were
denied,” probative, and presents a
reasonable possibility that the additional
evidence would have resulted in a different
determination by the Commissioner; and (3)
was not presented earlier due to good cause.
6
1.
claimant disabled. However, if the
claimant does not have a listed
impairment, the [Commissioner]
must determine, under the fourth
step, whether the claimant possesses
the residual functional capacity to
perform her past relevant work.
Finally, if the claimant is unable to
perform her past relevant work, the
[Commissioner] determines whether
the claimant is capable of performing
any other work.
In concluding that plaintiff was not
disabled under the SSA, the ALJ adhered to
the five-step sequential analysis for
evaluating applications for disability
benefits. (See AR 12–19.)
a.
Substantial Gainful Activity
At step one, the ALJ must determine
whether the claimant is presently engaging
in substantial gainful activity. 20 C.F.R.
§ 404.1520(b). “Substantial work activity is
work activity that involves doing significant
physical or mental activities,” id.
§ 404.1572(a), and gainful work activity is
work usually done for pay or profit, id.
§ 404.1572(b).
Individuals
who
are
employed are engaging in substantial gainful
activity. In this case, the ALJ determined
that plaintiff had not engaged in any
substantial gainful activity since the alleged
onset date of August 30, 2009. (AR 14.)
Substantial evidence supports this finding,
and plaintiff does not challenge its
correctness.
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps; the Commissioner bears the burden of
proving the last step. Brown, 174 F.3d at 62.
The Commissioner “must consider” the
following in determining a claimant’s
entitlement to benefits: “‘(1) the objective
medical facts; (2) diagnoses or medical
opinions based on such facts; (3) subjective
evidence of pain or disability testified to by
the claimant or others; and (4) the claimant’s
educational background, age, and work
experience.’” Id. (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)
(per curiam)).
B.
The ALJ’s Decision
b.
Severe Impairment
If the claimant is not employed, the ALJ
then determines whether the claimant has a
“severe impairment” that limits his capacity
to work. An impairment or combination of
impairments is “severe” if it significantly
limits an individual’s physical or mental
ability to perform basic work activities. 20
C.F.R. § 404.1520(c); see also Perez, 77
F.3d at 46. Here, the ALJ stated that plaintiff
had the severe impairment of fibromyalgia,
see 20 C.F.R. § 404.1520(c). (AR 14.) The
ALJ further stated that plaintiff’s medically
determinable
mental
impairment
of
depression was non-severe. (Id.) Substantial
evidence supports these findings, and
plaintiff does not challenge their correctness.
Analysis
Plaintiff argues that the ALJ’s decision
is the result of legal error because the ALJ
did not follow the treating physician rule
when he discounted the records and findings
of Dr. Rosenthal. As set forth below, the
Court concludes that the ALJ gave sufficient
reasons for his decision not to give
controlling weight to Dr. Rosenthal’s
opinion. Further, sufficient evidence
supports the ALJ’s determination that
plaintiff was not disabled.
7
c.
Listed Impairment
her symptoms and limitations were not
corroborated by objective medical evidence.
Specifically, the ALJ noted that the evidence
in the record of treatment from Dr.
Rosenthal primarily focused on blood work
and hypothyroidism; he highlighted that, in
February 2011, plaintiff complained of
feeling achy all over, on and off, but had no
specific complaints; and he highlighted that,
on April 5, 2011, plaintiff reported that she
“feels fine in all ways.” (Id. at 16.) Among
other things, the ALJ then summarized Dr.
Rosenthal’s December 2011 report and
concluded that Dr. Rosenthal’s opinion “is
not consistent with the limited treatment
records, which do not document clinical
signs or diagnostic tests consistent with the
opinion offered. In addition, the treatment
records only contain a few vague references
to subjective complaints of achiness.” (Id. at
16 (emphasis in original).) The ALJ
explained that “there are no limitations or
restrictions contained in the treatment record
that are consistent with the opinion offered.”
(Id.) The ALJ thus accorded little weight to
Dr. Rosenthal’s opinion. The ALJ, however,
accorded “considerable weight” to the
opinions of Drs. Pollack and Acer. He
reasoned that both opinions are “consistent
with the examination and the treatment
records.” (Id. at 17.) The ALJ also noted that
plaintiff reported that she can do a wide
range of activities of daily living. (Id.) In
conclusion, the ALJ reasoned that plaintiff’s
“medically determinable impairments could
reasonably be expected to cause the alleged
symptoms,” but plaintiff’s “statements
concerning the intensity, persistence and
limiting effects of these symptoms are not
credible to the extent they are inconsistent
with the above residual functional capacity
assessment.” (Id.)
If the claimant has a severe impairment,
the ALJ next considers whether the claimant
has an impairment that is listed in Appendix
1 of the regulations. When the claimant has
such an impairment, the ALJ will find the
claimant disabled without considering the
claimant’s age, education, or work
experience. 20 C.F.R. § 404.1520(d). In this
case, the ALJ found that plaintiff’s
impairments did not meet any of the listed
impairments in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, Appendix 1.
(AR 15.) Substantial evidence supports this
finding, and plaintiff does not challenge its
correctness.
d.
Residual Functional Capacity
If the severe impairments do not meet or
equal a listed impairment, the ALJ assesses
the claimant’s residual functional capacity
“based on all the relevant medical and other
evidence in [the] case record.” 20 C.F.R.
§ 404.1520(e). The ALJ then determines at
step four whether, based on the claimant’s
residual functional capacity, the claimant
can perform her past relevant work. Id.
§ 404.1520(f). When the claimant can
perform her past relevant work, the ALJ will
find that she is not disabled. Id.
In this case, the ALJ found that Neger
“has the residual functional capacity to sit
and to stand/walk six hours each in an eighthour workday and lift/carry up to twenty
pounds, which is the full range of light work
as defined in CFR 404.1567(b).”3 (AR 15.)
He reasoned that Neger’s claims regarding
3
The Court also notes that, “in the Social Security
context, a person must be able to lift ten pounds
occasionally, sit for a total of six hours, and stand or
walk for a total of two hours in an eight-hour
workday to be capable of ‘sedentary work.’” Carvey
v. Astrue, 380 F. App’x 50, 52 (2d Cir. 2010) (citing
Rosa v. Callahan, 168 F.3d 72, 78 n.3 (2d Cir. 1999);
20 C.F.R. § 404.1567(a)).
For the reasons set forth infra, the Court
discerns no legal errors in connection with
the ALJ’s assessment of plaintiff's residual
functional capacity, and, thus, no reversal or
8
2.
remand is necessary, because substantial
evidence supports the decision.
e.
Treating Physician Rule
Plaintiff argues the ALJ failed to accord
the proper weight to her treating physician,
Dr. Rosenthal. The Court disagrees.
Other Work
At step five, the ALJ concluded that
plaintiff was capable of performing her past
relevant work as a circulation manager in a
warehouse, which, he reasoned, “does not
require the performance of work-related
activities precluded by [her] residual
functional capacity.” (AR 17.)
a.
Legal Standard
The Commissioner must give special
evidentiary weight to the opinion of a
treating physician. See Clark, 143 F.3d at
118. The “treating physician rule,” as it is
known, “mandates that the medical opinion
of a claimant’s treating physician [be] given
controlling weight if it is well supported by
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000);
see, e.g., Rosa, 168 F.3d at 78–79; Clark,
143 F.3d at 118. The rule, as set forth in the
regulations, provides:
The ALJ also considered whether
plaintiff was capable of adjusting to
performing any other work. 20 C.F.R.
§ 404.1520(g). To support a finding that an
individual is not disabled, the Commissioner
has the burden of demonstrating that other
jobs exist in significant numbers in the
national economy that claimant can perform.
Id. § 404.1560(c); see, e.g., Schaal v. Apfel,
134 F.3d 496, 501 (2d Cir. 1998). Here, the
ALJ found that (1) the work was performed
for a long enough period to learn and
provide average performance, and at
substantial gainful activity levels; (2)
plaintiff has the capacity to perform the full
range of light exertional work; and (3) other
jobs exist in the national economy that she is
also able to perform. (AR 18.) The ALJ also
considered plaintiff’s age, education, work
experience, and residual functional capacity,
in connection with the Medical-Vocational
Guidelines set forth at Appendix 2 of Part
404, Subpart P of Title 20 of the Code of
Federal Regulations, and found that, since
August 2009, there was work in the national
economy which plaintiff could perform,
based on Medical-Vocational Rule 202.21.
(AR 18.)
Generally, we give more weight to
opinions from your treating sources,
since these sources are likely to be
the medical professionals most able
to provide a detailed, longitudinal
picture
of
your
medical
impairment(s) and may bring a
unique perspective to the medical
evidence that cannot be obtained
from the objective medical findings
alone or from reports of individual
examinations, such as consultative
examinations
or
brief
hospitalizations. If we find that a
treating source’s opinion on the
issue(s) of the nature and severity of
your impairment(s) is well-supported
by medically acceptable clinical and
laboratory diagnostic techniques and
is not inconsistent with the other
substantial evidence in your case
record, we will give it controlling
weight.
Plaintiff challenges the correctness of
this conclusion to the extent it is based on
the alleged failure to properly weigh Dr.
Rosenthal’s opinion.
20 C.F.R. § 404.1527(c)(2).
9
consistency of the opinion with the record as
a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to
the Social Security Administration’s
attention that tend to support or contradict
the opinion.” Id. (citing 20 C.F.R.
§ 404.1527(d)(2)). “Failure to provide ‘good
reasons’ for not crediting the opinion of a
claimant’s treating physician is a ground for
remand.” Snell, 177 F.3d at 133.
Although treating physicians may share
their opinion concerning a patient’s inability
to work and the severity of disability, the
ultimate decision of whether an individual is
disabled is “reserved to the Commissioner.”
Id. § 404.1527(d)(1); 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.”).
“Furthermore, the ALJ has the duty to
‘recontact’ a treating physician for
clarification if the treating physician’s
opinion is unclear.” Stokes v. Comm’r of
Soc. Sec., No. 10-CV-0278 (JFB), 2012 WL
1067660, at *11 (E.D.N.Y. Mar. 29, 2012)
(quoting Ellett v. Comm’r of Soc. Sec., No.
1:06–CV–1079 (FJS), 2011 WL 1204921, at
*7 (N.D.N.Y. Mar. 29, 2011)); see also
Mitchell v. Astrue, No. 07 Civ. 285(JSR),
2009 WL 3096717, at *17 (S.D.N.Y. Sept.
28, 2009) (“If the opinion of a treating
physician is not adequate, the ALJ must
‘recontact’ the treating physician for
clarification.”
(citing
20
C.F.R.
§§ 404.1512(e), 416.912(e)). Such an
obligation is linked to the ALJ’s affirmative
duty to develop the record.4 See Perez, 77
F.3d at 47.
When the Commissioner decides that the
opinion of a treating physician should not be
given controlling weight, she must “give
good reasons in [the] notice of determination
or decision for the weight [she] gives [the
claimant’s] treating source’s opinion.” 20
C.F.R § 404.1527(c)(2); see Perez v. Astrue,
No. 07-CV-958 (DLI), 2009 WL 2496585,
at *8 (E.D.N.Y. Aug. 14, 2009) (“Even if
[the treating physician’s] opinions do not
merit controlling weight, the ALJ must
explain what weight she gave those opinions
and must articulate good reasons for not
crediting the opinions of a claimant’s
treating physician.”); Santiago v. Barnhart,
441 F. Supp. 2d 620, 627 (S.D.N.Y 2006)
(“Even if the treating physician’s opinion is
contradicted by substantial evidence and is
thus not controlling, it is still entitled to
significant weight because the treating
source is inherently more familiar with a
claimant’s medical condition than are other
sources.” (internal citation and quotation
marks omitted)). Specifically, “[a]n ALJ
who refuses to accord controlling weight to
the medical opinion of a treating physician
must consider various ‘factors’ to determine
how much weight to give to the opinion.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir.
2004)
(citing
20
C.F.R.
§ 404.1527(d)(2)). “Among those factors
are: (i) the frequency of examination and the
length, nature and extent of the treatment
relationship; (ii) the evidence in support of
the treating physician’s opinion; (iii) the
b.
Analysis
Plaintiff argues that Dr. Rosenthal’s
opinion that plaintiff is disabled should be
controlling.
However,
“a
treating
physician’s statement that the claimant is
disabled cannot itself be determinative.” See
4
It is well established that the ALJ must
“‘[a]ffirmatively develop the record’ in light of ‘the
essentially non-adversarial nature of a benefits
proceeding.’” Tejada v. Apfel, 167 F.3d 770, 774 (2d
Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996)). The ALJ’s regulatory obligation to
develop the administrative record exists even when
the claimant is represented by counsel or by a
paralegal at the hearing. Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999).
10
Snell, 177 F.3d at 133. The opinion must be
supported by clinical and diagnostic tests,
and it must not be inconsistent with other
aspects of the record. E.g., Losquadro v.
Astrue, No. 11-CV-1798 (JFB), 2012 WL
4342069, at *10 (E.D.N.Y. Sept. 21, 2012);
see also 20 C.F.R. §§ 404.1527(c)(2), (d)(2).
In this case, the ALJ discussed the lack of
clinical and diagnostic tests to support Dr.
Rosenthal’s opinion, and the ALJ further
highlighted other medical evidence that was
inconsistent
with
Dr.
Rosenthal’s
5
assessment.
It is true that an ALJ cannot reject a
treating physician’s opinion on the sole basis
that it conflicts with the physician’s own
clinical findings. See Balsamo, 142 F.3d at
80. Here, however, the ALJ also rejected Dr.
Rosenthal’s opinion because it conflicted
with other significant medical evidence.
Specifically, the ALJ gave considerable
weight to the medical reports of Dr. Pollack
and Dr. Acer, who concluded that plaintiff
was not disabled and was capable of
performing her previous work (or any
sedentary work). The ALJ reasoned that
their reports were consistent with and
supported by the examination and the record
as a whole. (AR 17.) For instance, Dr.
Pollack observed that plaintiff walked with a
normal gait, could fully squat, and had a
normal stance. (Id. at 179.) Based on her
examination, Dr. Pollack opined that
plaintiff would have only moderate
restrictions in lifting, carrying, pushing, and
pulling, and that she should avoid heights
and activities that require heavy exertion or
operating heavy machinery.6 (Id. at 180.)
Just two months earlier, plaintiff had told
Dr. Rosenthal that she “feels fine in all
ways,” and there is no medical evidence in
the record indicating that her symptoms
For instance, the ALJ noted that Dr.
Rosenthal’s treatment records only contain
vague references to subjective complaints of
achiness, instead of specific findings with
respect to plaintiff’s fibromyalgia. (AR 16.)
In fact, none of the records from Dr.
Rosenthal indicate that he prescribed
specific medications or treatment to address
this condition. The September 2010
evaluation assessed the fibromyalgia as
stable (id. at 171), and the subsequent
records do not indicate any changes to that
condition (see id. at 159–67). Thus, the ALJ
ignored no diagnostic tests by Dr. Rosenthal
that supported his assessment, or
inconsistencies in his findings, which could
be grounds for remand. See Reyes v.
Barnhard, 226 F. Supp. 2d 523, 529–30
(S.D.N.Y. 2002); Hartnett v. Apfel, 21 F.
Supp. 2d 217, 221 (E.D.N.Y. 1998) (If the
ALJ “perceives inconsistencies in a treating
physician’s reports, the ALJ bears an
affirmative duty to seek out more
information from the treating physician and
to develop the administrative record
accordingly.”).
6
Plaintiff claims the findings of the other doctors
(e.g., plaintiff’s positive straight leg raising test) are
“at odds with the conclusion that ALJ made stating
that there were no clinical signs in the limited
treatment records that would support Dr. Rosenthal’s
opinion.” (Pl. Brief, at 14.) According to plaintiff,
“[w]hile the limited treatment records do not contain
clinical or laboratory findings, the consultative
evaluation did indicate several positive clinical
findings that would substantiate the functional
restrictions as established by Dr. Rosenthal.” (Id.) As
the Commissioner points out, however, pursuant to
the applicable regulations, “[a]lternative testing
methods should be used to verify the abnormal
findings, e.g., a seated straight-leg raising test in
addition to a supine straight-leg raising test.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 1.00(D). Here,
plaintiff’s positive straight leg raising test was
negative in the seated position. (AR 179.)
5
The Court notes that, in her brief, plaintiff does not
point to Dr. Rosenthal’s treatment findings in making
her argument. Instead, she claims that the findings
from Pollack’s examination indicate that the ALJ
should have given more weight to Dr. Rosenthal’s
opinion. (See Pl. Brief, at 14.)
11
significantly worsened after that evaluation.
(Id. at 159.) Plaintiff’s testimony during the
administrative hearing also generally was
consistent with her statements in the
function report and to Dr. Pollack and Dr.
Acer, indicating that no significant changes
in her condition developed during mid-tolate 2011 and that she was capable of
performing light work.7
IV.
CONCLUSION
For the foregoing reasons, the Court
grants the Commissioner’s motion for
judgment on the pleadings, and denies
plaintiff’s cross-motion. The Clerk of the
Court shall enter judgment accordingly and
close the case.
SO ORDERED.
In sum, the Court concludes that the ALJ
properly considered all of the evidence and
explained in detail the basis for his findings.
The ALJ properly disregarded Dr.
Rosenthal’s opinion and supported his
decision to do so. See Losquadro, 2012 WL
4342069, at *10–11, 13 (finding that ALJ
had provided sufficient and persuasive
explanation for giving little weight to
opinions of treating physicians where
sufficient evidence supported ALJ’s
determination that diagnostic tests did not
support treating physician’s assessments,
and other consulting physicians’ opinions
were inconsistent with conclusions of
treating physicians). Further clarification
would not have assisted the ALJ in making
the disability determination. Accordingly,
because there was substantial evidence to
support the ALJ’s conclusion that plaintiff
was not disabled as of August 30, 2009, and
that plaintiff was at least capable of
performing sedentary work in the economy
after that date, the ALJ’s findings are not
erroneous or contrary to law.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
August 5, 2014
Central Islip, NY
***
Plaintiff is represented by Michael Brangan
of Sullivan & Kehoe, 44 Main Street, Kings
Park, NY 11754. The Commissioner is
represented by Loretta E. Lynch, United
States Attorney, Eastern District of New
York, by Arthur Swerdloff, 271 Cadman
Plaza East, 7th Floor, Brooklyn, NY 11201.
7
Although plaintiff has not addressed this issue, the
Court notes that it is unconvinced that the absence of
any treatment records from June 2011 onwards
constitutes a “clear gap” in the administrative record
such that the ALJ had to seek additional information
by, for instance, re-contacting Dr. Rosenthal. Cf.
Papadopoulos v. Astrue, No. 10 Civ. 7980(RWS),
2011 WL 5244942, at *8 (S.D.N.Y. Nov. 2, 2011)
(“Because ‘further findings’ would so plainly help to
assure the proper disposition of [plaintiff’s] claim,
remand is appropriate in this case.” (quoting Pratts,
94 F.3d at 39)).
12
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