Michelson v. Colvin
MEMORANDUM & ORDER: SO ORDERED that the Commissioner's motion (Docket Entry 26) is GRANTED, Plaintiff's motion (Docket Entry 29) is DENIED. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. Ordered by Judge Joanna Seybert on 9/30/2017. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHELE BONNI MICHELSON,
MEMORANDUM & ORDER
-againstCAROLYN W. COLVIN,
Commissioner of Social Security,
Sharmine Persaud, Esq.
Law Office of Sharmine Persaud
1105 Route 100
Farmingdale, NY 11735
Matthew Silverman, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
SEYBERT, District Judge:
Plaintiff Michele Bonni Michelson (“Plaintiff”) brings
this action pursuant to Section 405(g) of the Social Security Act,
Security’s (the “Commissioner”) denial of her application for
disability insurance benefits.
Presently pending before the Court
are the Commissioner’s motion for judgment on the pleadings,
(Docket Entry 26), and Plaintiff’s cross motion for judgment on
the pleadings, (Docket Entry 29).
For the following reasons, the
On March 21, 2012, Plaintiff filed for social security
disability benefits, claiming a disability since July 27, 2010.
(R. 83, 155.)
Plaintiff subsequently amended her disability onset
date to July 22, 2010.
Plaintiff alleges that she is
disabled based on degenerative disc disease of the lumbar spine
October 16, 2012, Plaintiff’s application was denied.
On August 20, 2013, a hearing took place before Administrative Law
Judge Brian J. Crawley (the “ALJ”).
represented by counsel at the hearing, and the ALJ heard testimony
from Plaintiff and Dr. Taitz, a vocational expert.
On September 19, 2013, the ALJ issued a decision finding
that Plaintiff was not disabled. (R. 20-31.) On October 17, 2013,
Plaintiff sought review of the ALJ’s decision by the Appeals
On December 24, 2014, the Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision
the final decision of the Commissioner. (R. 1-5.)
The background is derived from the administrative record filed
by the Commissioner on May 11, 2015, (Docket Entry 9), and the
supplemental administrative record filed by the Commissioner on
September 9, 2015, (Docket Entry 14). “R.” denotes the
Plaintiff then commenced this action on February 9,
On September 9, 2015, the Commissioner filed her first
motion for judgment on the pleadings. (Docket Entry 15.)
supplemental administrative transcript (the “Motion to Strike”).
Plaintiff’s Motion to Strike, and denied the Commissioner’s first
motion for judgment on the pleadings without prejudice and with
leave to refile after the approval of a briefing schedule. (Order,
Docket Entry 24, at 10-11.)
The Commissioner filed her second
motion for judgment on the pleadings on August 26, 2016, (Comm’r
Mot., Docket Entry 26), and Plaintiff cross-moved for judgment on
the pleadings on October 27, 2016, (Pl.’s Mot., Docket Entry 29).
Evidence Presented to the ALJ
At the time of the administrative hearing, Plaintiff was
forty-nine years old with a high school education.
lives alone and cares for her cat.
from back pain, particularly “stiffness and an inability to stand
for long periods of time, sit for long periods of time, carry,
Plaintiff had back surgery “a while back.”
(R. 49.) Plaintiff had breast cancer and suffers lymph node issues
with respect to swelling in her left arm.
She is advised
not to carry her pocketbook with her left arm or carry more than
one or two pounds.
Plaintiff can use her left arm for
daily living activities, such as eating and buttoning or zippering
clothing, but she has no feeling in her arm.
she has feeling in her left hand.
If Plaintiff carried
a gallon of milk, her arm could swell, and if the fluid remained
in her arm it would become hard and her arm would be difficult to
testified: “I care for myself.
I don’t have any restrictions.
can clothe myself, bathe myself, [and] feed myself.”
Plaintiff does not need help getting dressed or getting in the
bath or shower. (R. 60.) She cooks, vacuums at limited intervals,
does laundry, and goes food shopping.
not need assistance with these tasks because she performs them in
“small quantities, multiple times.”
Plaintiff performs back strengthening home
exercises and walks an average of an eighth of a mile to a quarter
of a mile.
She suffers from back spasms and can no
longer walk two to four miles.
Plaintiff is able to sit for a half hour.
to stand depends on the day, as some days she is uncomfortable and
spends more time lying down.
Plaintiff has two to three
bad days per week where her back pain is a six to seven out of
ten; on good days, Plaintiff’s pain is a four to five out of ten.
At the time of the hearing, Plaintiff was prescribed
Flexeril, Tamoxifen, Ambien, and took large amounts of Motrin.
Plaintiff suffers side effects from Tamoxifen that
include weight gain, insomnia, hot flashes, and skin irritation.
(R. 58.) Plaintiff does not use a cane or wear any braces. (R. 5960.)
July 22, 2010, she worked as a receptionist at Curves for three
hours, two or three days per week.
working at Curves in April 2011 and resumed work in October 2011.
She was subsequently laid off in June 2012.
Previously, Plaintiff had worked for Nassau County as a
paperwork and phone work in connection with 911 calls.
Plaintiff was required to sit for twelve-hour periods.
do certain tasks standing up, but her writing was easier to do
while sitting down.
Plaintiff had difficulty with the
Plaintiff left her job when she accepted a retirement
incentive, but at the time of the hearing, she physically could
return to her job.
Dr. Yaakov Taitz (“Taitz”),2 an impartial vocational
expert, appeared and testified at the administrative hearing.
The ALJ presented Taitz with a hypothetical individual
who had the same age, education level, and work experience as
Plaintiff and could sit for less than two hours, and walk or stand
for less than two hours during an eight hour work day.
Plaintiff’s past work or any alternative work.
presented a second hypothetical individual with the same age,
education, and past work experience as Plaintiff who could perform
sedentary work with the limitation of only using the left upper
extremity for occasional lifting.
Taitz testified that
this hypothetical individual could not perform Plaintiff’s past
telephone quotation clerk, or telephone solicitor.
All of these jobs could be performed with one arm and occasional
reaching and handling.
While the transcript of the hearing includes a phonetic
spelling of the vocational expert’s name as “Tates,” (R. 61),
the ALJ’s decision notes that the vocational expert is named
Yaakov Taitz, (R. 20).
Charge account clerks work in the credit card or banking card
industry and assist customers with charges and plans, filling
applications, and making sure their credit information is
current. (R. 68.)
Plaintiff’s counsel presented Taitz with a hypothetical
individual who must take a break for at least five minutes every
hour to relieve discomfort.
Taitz testified that such
a worker would be able to perform any of the three jobs he
previously mentioned and noted that no stooping is required for
(R. 66, 74-75.)
However, if the hypothetical worker
was off task thirty percent of the time or absent from work three
to four times per month, they would not be able to perform these
The acceptable amount of absenteeism for these
jobs is one day per month, and the acceptable amount of time off
task is ten percent per day.
Evidence Prior to Disability Onset Date
Plaintiff reported that she suffered from lower back
pain in 1991 when she twisted her back at work.
revealed a herniated disc between L5-S1, and that same year,
Plaintiff had a laminectomy of the lumbar spine.
Plaintiff reported that she received three epidural blocks that
slightly helped. (R. 380.) In 2001, Plaintiff’s MRI of the lumbar
spine revealed degenerative disc disease at L4-5 and L5-S1 with a
broad bulge and posterior ridging and disc bulge at those levels.
In 2002, Plaintiff began treating with Dr. Peter Ajemian
regarding her back pain and discomfort in the left lower extremity.
In 2003, a lumbar myelogram and post myelogram CT
In 2009, an MRI was negative for herniated discs or
stenosis, but revealed a mild bulging disc at L4-L5 with lateral
extensions and compromise of the neuroforamina mildly bilaterally.
On August 26, 2009, Dr. Ajemian saw Plaintiff and
assessed her as suffering from mild degenerative disc disease and
Dr. Ajemian recommended home exercise and stretching.
continued to display restrictions in spine extension, flexion,
left and right rotation, and tilting.
impression was lumbar spine herniated disc at L4-5 and left more
than right lumbar radiculopathy. (R. 439.) Plaintiff was pursuing
physical therapy, and was prescribed Vicodin.
Breast Cancer and Lymphedema
In May 2011, Plaintiff underwent a left-sided
lumpectomy and left partial mastectomy.
In June 2011,
Thereafter, Plaintiff proceeded with radiation therapy
and began taking Tamoxifen.
(R. 340-41, 371.)
In November 2011,
Plaintiff’s testing and evaluations did not reveal any suspicious
(R. 340-41, 371-72.)
In an undated letter, Donna Hannah, an occupational
Ms. Hannah used kinesiotape to help remove
swelling from Plaintiff’s hand and digits as well as a light
Ms. Hannah opined that Plaintiff’s
lymphedema may have been triggered by overuse from exercise.
Ms. Hannah indicated that Plaintiff improved after she
stopped exercising with her left arm.
intended to have Plaintiff “gradually progress an exercise program
to determine what her system will handle as exercise is very
important to her.”
On August 5, 2010, Dr. Ajemian wrote a letter stating
that Plaintiff suffered from a bulging disc at L4-5 and persistent
lumbar radiculopathy to the lower left extremity.
Dr. Ajemian opined that he did not expect Plaintiff to “improv[e]
beyond her current status, as her condition interferes with her
performing her job in a pain free manner.”
On April 16, 2012, Plaintiff began seeing Dr. Michael
Shapiro of Orlin & Cohen Orthopedic Associates LLP for her back
Dr. Shapiro noted that Plaintiff’s back pain
started in 1991, and she reported dull/aching and tight pain that
was four out of ten when active and two out of ten at rest.
An MRI of the lumbar spine revealed
“straightening consistent with spasm, facet arthropathy and disc
(R. 399, 400.)
The radiologist’s impression
was “[e]xaggerated lumbar lordosis with a transitional appearance
of the L5-S1 disc segment with asymmetric disc bulging towards the
However, the radiologist noted that there
was no central stenosis or exiting nerve root impingement, no
postoperative fluid collections or discitis, and no acute osseous
An x-ray of the pelvis revealed no fractures,
subluxations, dislocations, or significant abnormalities.
Dr. Shapiro’s assessment was lumbago, degenerative disc
disease, and lumbar.
On April 23, 2012, Dr. Shapiro completed a Medical Source
Statement (the “Medical Source Statement”).4
Shapiro found that Plaintiff could frequently or occasionally lift
and carry less than ten pounds per day; stand, walk, and sit less
than two hours during an eight hour day; and sit or stand before
changing positions for forty-five to sixty minutes.
Dr. Shapiro found that Plaintiff must walk around for ten to
fifteen minutes every forty-five to sixty minutes; needs the
While the signature on this document is illegible, Plaintiff’s
counsel clarified at the hearing that this Medical Source
Statement was completed by Dr. Shapiro. (R. 44.)
ability to shift at will from sitting or standing/walking; and
will need to lie down at unpredictable intervals during a work
Dr. Shapiro concluded that Plaintiff could
ladders, and that Plaintiff’s impairment affected her reaching,
anticipated that Plaintiff would be absent from work more than
three times per month.
On June 11, 2012, Plaintiff saw Dr. Shapiro and reported
pain that was five or six out of ten when active and three or four
out of ten when resting.
Dr. Shapiro’s physical
examination revealed a diminished range of motion in Plaintiff’s
On September 10, 2012, Plaintiff saw Dr. Shapiro
and rated her pain as four out of ten when active and four out of
ten at rest.
Plaintiff was attending physical therapy,
and Dr. Shapiro noted a diminished range of motion in Plaintiff’s
back and opined that she would be a candidate for 2 level anterior
On December 6, 2012, Plaintiff saw
Dr. Shapiro and complained of dull/aching and tight back pain that
was a three out of ten when active and a two out of ten at rest.
Dr. Shapiro noted a diminished range of motion in
On June 6, 2013, Plaintiff saw Dr. Shapiro and rated her
pain as nine out of ten when active and four out of ten at rest.
Dr. Shapiro noted neurological weakness and diminished
range of motion in Plaintiff’s back.
formally requested authorization for spine physical therapy and
A letter from Dr. Shapiro also dated
June 6, 2013, stated that his opinion regarding Plaintiff’s ability
to engage in work-related activities as expressed in his Medical
Source Statement remained unchanged.
concluded that as a result of her impairments, Plaintiff was
“unable to sustain full-time employment on a regular, consistent
basis, even of a sedentary nature.”
On September 26, 2012, Plaintiff was examined by Dr.
Plaintiff’s chief complaint
was lower back pain, and she reported that she had done physical
therapy on and off for the past ten years, which slightly helped,
but the pain persisted.
Plaintiff reported sharp,
constant pain with a four out of ten intensity that radiates to
the left leg.
Plaintiff also reported that her lower
back pain is aggravated by sitting or standing longer than ten
minutes, walking more than five blocks, climbing more than one
flight of steps, and lifting more than five pounds.
Motrin 200 mg once daily provided Plaintiff with some pain relief.
In addition to Motrin, Plaintiff was also taking
Flexeril and Tamoxifen.
Dr. Skeene observed that Plaintiff did not appear to be
in acute distress, walked with a normal gait, was able to walk on
heels and toes without difficulty, and was able to fully squat and
employ a normal stance.
Plaintiff did not need
assistance changing for the exam or getting on or off the exam
table, and was able to get up from her chair without difficulty.
However, Dr. Skeene observed that Plaintiff had limited
range of motion of the lumbar spine, and was only able to flex and
extend the lumbar spine to forty-five degrees, her lateral flexion
bilaterally was at twenty degrees. (R. 382.) Dr. Skeene indicated
that Plaintiff had full range of motion in her shoulders, elbows,
forearms, and wrists bilaterally, and full range of motion of her
hips, knees, and ankles bilaterally.
Dr. Skeene also
did not observe any redness, heat, swelling, or effusion.
382.) Dr. Skeene concluded that Plaintiff had “moderate limitation
for prolonged standing, walking, and heavy lifting due to limited
[range of motion] of the lumbar spine.”
also noted that Plaintiff suffered from lymphedema of the left
On October 5, 2012, G. Acosta, a medical consultant,
completed a physical residual functional capacity assessment.
Acosta concluded that Plaintiff could occasionally lift
twenty pounds, frequently lift ten pounds, stand and/or walk for
about six hours in an eight-hour workday, and sit for a total of
about six hours in an eight-hour workday.
concluded that Plaintiff was able to frequently balance, stoop,
kneel, crouch, and crawl, but never climb or balance on ramp,
stairs, ladder, rope, or scaffolds due to back pain and limited
range of motion of the lower spine.
concluded that Plaintiff’s allegations of pain and her ability to
lift only five pounds and stand less than fifteen minutes were
On May 6, 2013, Dr. Osvaldo Fulco completed a Medical
Interrogatory as an impartial medical expert.
Fulco did not personally examine Plaintiff.
concluded that Plaintiff did not meet the Listing of Impairment
for low back pain in the absence of any motor or sensory deficits.
limitations are: lift/carry twenty pounds occasionally, ten pounds
frequently; stand/walk for two hours in an eight-hour period; sit
for a total of six hours in an eight-hour period with a five minute
interruption every hour to relieve discomfort; and no bending,
stooping, or crouching.
Dr. Fulco concluded that
Plaintiff can also occasionally reach overhead and push/pull;
frequently perform all other reaching; continuously engage in
handling, fingering, and feeling; and occasionally operate foot
Dr. Fulco further indicated that Plaintiff’s
limitations have been present since October 16, 2011.
On December 27, 2012, Dr. James Quinlan performed a Case
Dr. Quinlan noted that Plaintiff attends
exercise classes three to five times per week, cannot stand for
long periods of time, can lift a maximum of ten pounds, and can
walk two to four miles.
Dr. Quinlan concluded that
Plaintiff’s back pain is a severe impairment, but “there is a
disconnect between what she alleges she can do in application and
what she reports to [Dr. Skeene].”
Dr. Quinlan also
noted that the only objective findings are a limited lumbar range
of motion and an MRI indicating lumbar arthrosis, and there is no
evidence of radiculopathy or weakness.
Plaintiff indicated her daily activities
included brushing her teeth, stretching exercises, meals, exercise
classes, and light housework.
Plaintiff stated that
she could not lift more than ten pounds, sleep comfortably without
Plaintiff also indicated that she walks a few times per
week and participates in Zumba classes that are “modified to what
[she] can do” three to four times per week.
reported that she could lift less than ten pounds, stand for up to
approximately fifteen minutes, and walk two to four miles with a
Plaintiff further stated that she requires a “lumbar supportive
chair” when sitting for extended periods of time.
Evidence Presented to the Appeals Council
Plaintiff alleges that she submitted additional evidence
to the Appeals Council that included Ms. Hannah’s occupational
August 19, 2013.
(Pl.’s Br., Docket Entry 29-1, at 8-9.)
additional occupational therapy records, (R. 447-51) indicate that
Plaintiff began treating with Ms. Hannah on May 15, 2012 for
lymphedema in her left upper extremity and she reported having no
pain with lymphedema, but suffering from numbness in the left
axilla at a level of seven out of ten.
reported that her lymphedema began to occur within the last three
weeks of her appointment, and the swelling in her arm used to
reduce at night, but it did not reduce any longer.
Plaintiff saw Ms. Hannah on nine occasions between May 15, 2012,
and her discharge on June 27, 2017.
Ms. Hannah utilized
therapy that included manual lymphatic drainage and attempted to
apply compression to the left upper extremity; however, “[a]ll
resulted in increased hand and digit edema, despite the fact that
a compression glove was attempted as well.”
knowledgeable about home maintenance techniques.
Dr. Shapiro’s additional treatment notes indicate that
Plaintiff rated her pain as six
and eight out of ten when active and five out of ten at rest.
Dr. Shapiro formally requested
authorization for physical therapy.
Standard of Review
In reviewing the ruling of an ALJ, the Court does not
determine de novo whether the plaintiff is entitled to disability
Thus, even if the Court may have reached a different
decision, it must not substitute its own judgment for that of the
See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
Instead, this Court must determine whether the ALJ’s findings are
supported by “substantial evidence in the record as a whole or are
based on an erroneous legal standard.”
Persico v. Barnhart, 420
F. Supp. 2d 62, 70 (E.D.N.Y. 2006) (internal quotations marks and
If the Court finds that substantial evidence
exists to support the Commissioner’s decision, the decision will
be upheld, even if evidence to the contrary exists.
v. Barnhart, 269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).
“Substantial evidence is such evidence that a reasonable
mind might accept as adequate to support a conclusion.”
substantial evidence test applies not only to the ALJ’s findings
of fact, but also to any inferences and conclusions of law drawn
from such facts.
To determine if substantial evidence
exists to support the ALJ’s findings, the Court must “examine the
entire record, including contradictory evidence and evidence from
which conflicting inferences may be drawn.”
Brown v. Apfel, 174
F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation
Determination of Disability
A claimant must be disabled within the meaning of the
Social Security Act (the “Act”) to receive disability benefits.
See Boryk ex. rel Boryk v. Barnhart, No. 02-CV-2465, 2003 WL
22170596, at *7 (E.D.N.Y. Sept. 17, 2003).
A claimant is disabled
under the Act when she can show an inability “to engage in any
determinable physical or mental impairment . . . which has lasted
or can be expected to last for a continuous period of not less
impairment must be 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.”
The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See 20 C.F.R. §§ 404.1520, 416.920.
First, the Commissioner
considers whether the claimant is currently engaged in “substantial
20 C.F.R. § 404.1520(a)(4)(i).
Commissioner considers whether the claimant suffers from a “severe
medically determinable physical or mental impairment” or a severe
combination of impairments that satisfy the duration requirement
set forth at 20 C.F.R. § 404.1509.
Third, if the impairment is
“severe,” the Commissioner must consider whether the impairment
meets or equals any of the impairments listed in Appendix 1 of the
Social Security regulations.
20 C.F.R. § 404.1520(a)(4)(iii).
“These are impairments acknowledged by the Secretary to be of
claimant’s condition meets or equals the listed impairments, he or
Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995)
(internal quotation marks and citations omitted).
Fourth, if the
impairment or its equivalent is not listed in the Appendix, the
claimant must show that he does not have the residual functional
20 C.F.R. § 404.1520(a) (4)(iv).
Fifth, if the
claimant does not have the RFC to perform tasks in his or her
previous employment, the Commissioner must determine if there is
any other work within the national economy that the claimant is
able to perform.
20 C.F.R. § 404.1520(a) (4)(v).
If not, the
claimant is disabled and entitled to benefits.
The claimant has the burden of proving the first four
steps of the analysis, while the Commissioner carries the burden
of proof for the last step.
(2d Cir. 2013).
Selian v. Astrue, 708 F.3d 409, 418
“In making the required determinations, the
Commissioner must consider: (1) the objective medical facts; (2)
the medical opinions of the examining or treating physicians; (3)
the subjective evidence of the claimant’s symptoms submitted by
the claimant, his family, and others; and (4) the claimant’s
educational background, age, and work experience.”
Boryk, 2003 WL
22170596, at *8.
The ALJ’s Decision
The ALJ applied the five-step analysis described above
and determined that Plaintiff is not disabled.
At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since July 22, 2010.
At step two, the ALJ found that Plaintiff suffered from
degenerative disc disease of the lumbar spine and lymphedema of
the left upper extremity, severe impairments.
impairments did not meet or equal the severity of one of the
impairments listed in Appendix 1 of the Social Security regulation.
The ALJ found that Plaintiff has the residual functional
capacity to perform the full range of sedentary work as defined in
20 C.F.R. § 404.1567(a).
The ALJ further concluded
that Plaintiff is able to engage in:
[P]ushing, pulling, lifting and carrying 10
pounds occasionally and less than 10 pounds
frequently; sitting six hours out of an eighthour day, with accommodation to get up and
stretch for five minutes once an hour;
standing and walking two hours out of an
eight-hour day; with occasional use--meaning
up to about one-third of an eight-hour day-of the left upper extremity for handling and
fingering; and preclusion from stooping.
At step four, the ALJ concluded that Plaintiff could not
perform her past relevant work.
Finally, at step five, the ALJ concluded that Plaintiff
could perform other work existing in the national economy based on
capacity. (R. 30-31.)
Thus, the ALJ determined that Plaintiff was
not disabled. (R. 31.)
In reaching his decision, the ALJ gave little weight to
limitations “exceed the objective findings demonstrable in the
capabilities during the instant hearing in this matter than those
assessed [by Dr. Shapiro].”
The ALJ accorded “greater
weight” to Dr. Fulco’s interrogatory responses, concluding that
they were “more consistent with the clinical diagnostic testing in
The ALJ also accorded “some weight” to Dr.
Quinlan’s opinion as a non-examining source, and “great weight” to
Finally, while the ALJ accorded Ms.
Hannah’s opinion the deference for “other sources,” he noted that
it could not be dispositive with respect to the issues before him.
Analysis of the ALJ’s Decision
The Commissioner filed her motion first and argues that
the ALJ’s decision is supported by substantial evidence and he
applied the correct legal standard.
Docket Entry 27.)
(See generally Def.’s Br.,
Plaintiff counters that the ALJ’s decision
should be reversed and remanded on the following grounds: (1) the
evidence; and (3) the ALJ erred in finding that there is work in
the national economy that Plaintiff could perform.
(Pl.’s Br. at
The Court addresses each argument below.
Treating Physician’s Rule
The “treating physician rule” provides that the medical
opinions and reports of a claimant’s treating physicians are to be
given “special evidentiary weight.”
143 F.3d 115, 118 (2d Cir. 1998).
Clark v. Comm’r of Soc. Sec.,
Specifically, the regulations
Generally, we give more weight to opinions
from your treating sources . . . . 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.
20 C.F.R. § 404.1527(c)(2).5
Nevertheless, the opinion of a
treating physician “need not be given controlling weight where [it
is] contradicted by other substantial evidence in the record.”
Molina v. Colvin, No. 13-CV-4701, 2014 WL 3925303, at *2 (S.D.N.Y.
Aug. 7, 2014) (internal quotation marks and citation omitted).
“While the Act was amended effective March 27, 2017, the Court
reviews the ALJ’s decision under the earlier regulations because
the Plaintiff’s application was filed before the new regulations
went into effect.” Williams v. Colvin, No. 16-CV-2293, 2017 WL
3701480, at *1 (E.D.N.Y. Aug. 25, 2017).
When an ALJ does not afford controlling weight to the
opinion of a treating physician, she must consider factors that
“(1) the length of the treatment relationship and
frequency of the examination; (2) the nature and extent of the
treatment relationship; (3) the extent to which the opinion is
supported by medical and laboratory findings; (4) the physician’s
consistency with the record as a whole; and (5) whether the
physician is a specialist.”
Schnetzler v. Astrue, 533 F. Supp. 2d
272, 286 (E.D.N.Y. 2008).
The ALJ must also set forth “‘good
reasons’ for not crediting the opinion of a plaintiff’s treating
Nevertheless, the ALJ is not required to engage
in a “slavish recitation of each and every factor where [his]
reasoning and adherence to the regulation are clear.”
Astrue, 512 F. App’x 67, 70 (2d Cir. 2013).
1. Dr. Shapiro
As set forth above, in according Dr. Shapiro’s opinion
“little weight,” the ALJ concluded that “the limitations espoused
in the opinion exceed the objective findings demonstrable in the
rest of the record,” and “the claimant testified to greater
capabilities during the [ ] hearing in this matter than those
assessed [by Dr. Shapiro].”
Plaintiff argues that the
ALJ erred in reaching these conclusions, and that the ALJ failed
to discuss the relevant factors in declining to accord controlling
weight to Dr. Shapiro’s opinion as a treating physician.6
generally Pl.’s Br. at 16-20.)
The Court disagrees.
First, the Court finds that the ALJ addressed the five
physician’s opinion controlling weight.
As to the first two
factors--the length of the treatment relationship and frequency of
relationship--the ALJ noted that Dr. Shapiro’s treatment notes
span from April 16, 2012 through June 6, 20137 and detail pain that
has persisted for years and ranged from between three to nine out
As to the third factor--the extent to which the
opinion is supported by medical and laboratory findings--the ALJ
noted that Dr. Shapiro’s Medical Source Statement was supported by
his treatment notes and reports, and also referenced an MRI
performed on April 16, 2012.
(R. 24, 26.)
Finally, as to the
Fourth and Fifth Factors--consistency and status as a specialist-the ALJ expressly addressed consistency in concluding that Dr.
Shapiro’s limitations exceed both the objective findings in the
Plaintiff also argues that the ALJ erred in failing to accord
Dr. Shapiro’s controlling weight based on his illegible
handwriting. (Pl.’s Br. at 13-14.) While the ALJ did note that
Dr. Shapiro’s signature was illegible, (R. 27), the Court finds
that this statement was a parenthetical comment, not a basis for
the ALJ’s accordance of little weight to Dr. Shapiro’s opinion.
As previously noted, Dr. Shapiro’s treatment notes for
August 19, 2013, were submitted to the Appeals Council and
were not before the ALJ. (Pl.’s Br. at 8-9.)
record and Plaintiff’s testimony, and the ALJ noted that Dr.
Shapiro is an orthopedist and, thus, a specialist.
(R. 24, 27.)
Second, the ALJ’s conclusion that the limitations set
forth in Dr. Shapiro’s opinions exceed the objective findings in
the record and Plaintiff’s testimony is supported by substantial
As set forth above, in his Medical Source Statement
dated April 23, 2012, Dr. Shapiro opined that Plaintiff was limited
insofar as she could only, inter alia, stand and walk for less
than two hours in an eight hour day, sit less than two hours during
an eight hour day, and could only sit for forty five to sixty
minutes before changing positions.
Shapiro’s notes reflect that with the exception of one occasion
when she reported nine out of ten pain when active, Plaintiff’s
active pain ranged from three to six out of ten8 and her resting
pain ranged from two to five out of ten.
(R. 394, 396, 398, 442,
Additionally, while Dr. Shapiro noted a diminished
range of motion in Plaintiff’s back and assessed her as having
conservative care options and injection therapy or surgery if
conservative care failed.
Dr. Shapiro also noted that
Dr. Shapiro’s August 19, 2013, treatment notes which, again,
were not before the ALJ, state that Plaintiff’s active pain was
six and eight out of ten and her resting pain was five out of
ten. (R. 452.)
Plaintiff’s sensation and pulses were intact in the bilateral lower
April 16, 2012, MRI of Plaintiff’s lumbar spine was “exaggerated
lumbar lordosis with a transitional appearance of the L5-S1 disc
segment with asymmetric disc bulging towards the left at L4-L5,”
there was no central stenosis or exiting nerve root
impingement, no central stenosis or nerve root impingement with
respect to the asymmetric disc bulging and bony ridging toward the
left at L5-S1, no postoperative fluid collections or discitis, and
no acute osseous injury.
The radiologist also found
that there was no posterior disc herniation.
The Court is also unpersuaded by Plaintiff’s argument
that Dr. Shapiro’s opinion is not inconsistent with the opinion of
(Pl.’s Br. at 18-19.)
As noted, Dr. Shapiro opined
that Plaintiff could stand and walk for less than two hours in an
eight hour day, sit less than two hours during an eight hour day,
and could only sit for forty-five to sixty minutes before changing
While Dr. Skeene did not opine as to
Plaintiff’s specific limitations regarding standing or sitting,
prolonged standing [and] walking” does not necessarily equate to
Plaintiff only being able to sit or stand for less than two hours
in an eight-hour day.
The Court further disagrees with
Plaintiff that the ALJ “presumed” Dr. Skeene’s failure to opine on
her sitting abilities indicated that Plaintiff did not have any
(Pl.’s Br. at 18-19.)
As noted, the ALJ
concluded that Plaintiff did, in fact, have sitting limitations
insofar as she could only sit for six hours in an eight hour day
with a five minute break to get up and stretch once every hour.
Plaintiff also argues that Dr. Shapiro’s opinion is
supported by the opinion and notes of Dr. Ajemian, who treated
Plaintiff from at least 20029 through August 5, 2010.
While Dr. Ajemian’s notes detail Plaintiff’s degenerative
disc disease, bulging disc, and restrictions in spinal extension
and rotation, (see generally R. 436-40), his sole opinion consists
of his brief letter indicating that he did not expect Plaintiff to
“improve[e] beyond her current status, as her condition interferes
with her performing her job in a pain free manner,” (R. 441.)
Ajemian did not opine on whether Plaintiff was limited in her
ability to sit or stand for extended periods of time.
it is not lost on the Court that Plaintiff did not retire from her
job with Nassau County until July 2010, (R. 468); thus, with the
While Plaintiff alleges that Dr. Ajemian was her treating
orthopedist since 1996, (Pl.’s Br. at 19), the record reflects
that Plaintiff began treating with Dr. Ajemian in 2002, (R.
exception of his August 5, 2010 letter, the entirety of Dr.
Ajemian’s treatment took place during a time when Plaintiff was
gainfully employed full-time.
Third, the ALJ’s conclusion that Plaintiff testified to
greater capabilities at the hearing than those assessed by Dr.
Shapiro, (R. 27), is supported by substantial evidence.
forth above, Plaintiff testified that she is able to clothe, bathe,
and feed herself and she does not need assistance getting dressed.
(R. 53-54, 60.)
Plaintiff also testified that she cooks, vacuums
at limited intervals, does laundry, and goes food shopping--albeit
with the caveat that she perform these tasks in “small quantities,
multiple times”--and testified that she told her orthopedist the
day prior to the hearing that she could not walk down the grocery
store aisle due to back spasms.
testified that she can no longer walk two to four miles, she
performs back strengthening exercises and walks an average of an
eighth of a mile to a quarter of a mile.
available--and takes the bus or train if necessary.
The Court acknowledges that Plaintiff testified she has
about two to three “bad days” each week where her back pain is a
six to seven out of ten.
However, Plaintiff does not
use a cane or wear any braces, (R. 59-60), and, as set forth above,
she is able to independently perform basic self-care and day-to29
Most notably, Plaintiff testified that she left her
job with Nassau County due to a retirement incentive--not her
medical condition--and when asked if she could go back and perform
her job if it was available, she testified, “[p]hysically, yes.”
Accordingly, Plaintiff’s ability to care for herself
without assistance and her testimony that she could physically
perform her prior job constitutes substantial evidence supporting
the ALJ’s conclusion that Plaintiff testified to abilities that
exceed Dr. Shapiro’s stated limitations.
Plaintiff argues that she made many qualifying
statements that indicate “her ability to perform activities is
dependent on the day.”
(Pl.’s Br. at 16.)
However, the Court
While, as previously noted, Plaintiff testified to
having “good days and bad days,” performing certain activities in
“small quantities, multiple times,” and struggling to walk down
the grocery aisle, with the exception of obtaining rides from
others when she is able to, Plaintiff’s testimony indicates that
she is able to perform self-care and day-to-day tasks without
assistance from others.10
(See R. 52-57.)
Given the Court’s determination that substantial evidence
supports the ALJ’s failure to accord controlling weight to Dr.
Shapiro’s opinion, it need not address Plaintiff’s arguments
regarding her Medical Source Statement dated August 28, 2012.
(See Pl.’s Br. at 18; see also R. 455-70.)
2. Drs. Fulco and Skeene
Plaintiff also argues that the ALJ erred in according
“greater weight” to Dr. Fulco’s opinion and “great weight” to Dr.
(Pl.’s Br. at 20.)
(Pl.’s Br. at 20-21.)
Plaintiff avers that the
However, while a consulting
physician’s opinions should generally be afforded limited weight,
“as part of [the] review of the evidence before him, an ALJ has
the discretion to grant various degrees of weight to the opinion
of such practitioners, which may be greater than the weight awarded
to a claimant’s treating physician.”
Heitz v. Comm’r of Social
Security, 201 F. Supp. 3d 413, 422 (S.D.N.Y. 2016) (internal
As set forth above, the ALJ’s determination
that Dr. Shapiro’s opinion should be accorded little weight is
supported by substantial evidence.
The Court finds that the ALJ’s
determination that Dr. Fulco’s opinion should be accorded “greater
weight” and Dr. Skeene’s opinion should be accorded “great weight”
based on their consistency with the clinical diagnostic testing in
the record and/or Plaintiff’s testimony regarding her limitations,
(R. 27-28), is similarly supported by substantial evidence.
An ALJ may reject a claimant’s subjective complaints of
pain as long as he follows the two-step process required by the
Guerrero v. Colvin, No. 15-CV-1211, 2016
WL 5468330, at *20 (S.D.N.Y. Sep. 29, 2016).
First, the ALJ
“determine[s] whether the medical signs or laboratory findings
show that a claimant has a medically determinable impairment that
symptoms.” Chicocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013).
If the ALJ determines that the claimant suffers from such an
impairment, the ALJ then evaluates “the extent to which the
claimant’s symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence of record.”
Williams, 2017 WL 3701480, at *11 (internal quotation marks and
claimant’s testimony is inconsistent with the medical evidence set
forth in the record, he must weigh the claimant’s credibility
pursuant to the following non-exhaustive factors:
(1) plaintiff’s daily activities; (2) the
location, duration, frequency, and intensity
of his pain or other symptoms; (3) factors
that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side
effects of any medication the individual takes
or has taken to alleviate pain or other
medication, the individual receives or has
received for relief of pain or other symptoms;
(6) any measures, other than treatment, the
individual uses or has used to relieve pain or
other symptoms; and, (7) any other measures
used to relieve pain or other symptoms.
Clarke v. Colvin, No. 15-CV-0354, 2017 WL 1215362, at *10 (S.D.N.Y.
Apr. 3, 2017). In formulating his final credibility determination,
the ALJ must set forth “specific reasons for the finding on
credibility, supported by evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the [ALJ] gave to the individual’s
statements and the reasons for that weight.”
alteration in original).
Chichoki, 534 F.
However, when the ALJ’s credibility
determination is supported by specific reasons, it is entitled to
deference on appeal.
Guerrero, 2016 WL 5468330, at *20.
The ALJ determined that while Plaintiff’s impairments
could reasonably be expected to cause her alleged symptoms, her
“statements concerning the intensity, persistence and limiting
effects of these symptoms constrain the [ALJ] from accepting the
claimant’s allegations of total disability for the period under
consideration . . . .”
Particularly, the ALJ found that
activities have been substantially restricted by her impairments;
“[t]he frequency and intensity of [Plaintiff’s] symptoms does not
appear to be highly significant”; the musculoskeletal evidence in
additional surgery or testing.
Plaintiff argues that the ALJ’s credibility findings are
not supported by substantial evidence and alleges that her ability
to perform activities is not an appropriate basis for rejecting
(Pl.’s Br. at 21-22.)
The Court disagrees.
the Second Circuit has repeatedly held that a plaintiff “need not
be an invalid to be found disabled under the Social Security Act,”
Meadors v. Astrue, 370 F. App’x 179, 185, n.2 (2d Cir. 2010),
Cf. Martinez v. Commissioner of Social Security, No.
13-CV-0159, 2016 WL 6885181, at *15 (S.D.N.Y. Oct. 5, 2016), report
and recommendation adopted, 2016 WL 6884905 (S.D.N.Y. Nov. 21,
relatively active lifestyle as part of his determination that she
was capable of unskilled, light work”).
activities was not the only reason cited by the ALJ in his
The ALJ’s conclusion that Plaintiff’s
symptoms are not of a highly significant frequency or intensity is
supported by Plaintiff’s testimony that she has two to three “bad
days” per week where her pain is a six to seven out of ten along
with “good days” where her pain is a four to five out of ten,” (R.
57), as well as Dr. Shapiro’s treatment notes reflecting that with
the exception of one occasion when she reported nine out of ten
pain when active, Plaintiff’s active pain ranged from three to six
out of ten and her resting pain ranged from two to five out of
(R. 394, 396, 398, 442, 444-45.)
Further, at the hearing,
Plaintiff testified that she was physically capable of returning
to her prior job with Nassau County.
conservative nature of Plaintiff’s treatment.
At the time of the
hearing, Plaintiff was taking Flexeril and Motrin for her back
pain,11 and she was not using a cane or any braces.
conservative care failed and noted that Plaintiff would be a
indication from Dr. Shapiro’s notes that surgery or even injection
therapy was recommended.
(See generally R. 394-99, 442-46, 452.)
credibility finding in this case where the ALJ identified specific
record-based reasons for his ruling.”
Stanton v. Astrue, 370 F.
App’x 231, 234 (2d Cir. 2010).
Finally, Plaintiff argues that her part-time work at an
testimony, as her work history enhances her credibility.
Br. at 22.)
First, there is no indication from the ALJ’s decision
that he relied on Plaintiff’s part-time employment in assessing
(See generally R. 23-29.)
The ALJ’s sole
Plaintiff was also taking Tamoxifen in connection with her
breast cancer, (R. 58, 340-41), and Ambien to help her sleep,
reference to Plaintiff’s part-time employment in his analysis at
step three is his statement that Plaintiff worked part-time in a
fitness studio as a receptionist, and that “[c]ounsel argues that
the claimant could not have done more, but an attorney’s argument
in and of itself does not constitute evidence.”
substantial credibility when claiming an inability to work because
of a disability,” an ALJ may properly “discount a claimant’s
credibility in the face of a positive work history when that
conclusion is supported by other substantial evidence in the
Adamik v. Comm’r of Social Security, No. 12-CV-3593,
2013 WL 3984990, at *9 (S.D.N.Y. Jul. 31, 2013) (alteration in
original; internal quotation marks and citations omitted).
forth above, the ALJ’s credibility determination is supported by
Plaintiff’s positive work history.
Cf. Stanton, 370 F. App’x at
234 (“[n]o different conclusion is reached by the ALJ’s failure to
reference specifically [plaintiff’s] good work history, because
substantial evidence aside from work history supports the adverse
Vocational Expert Testimony
cannot support the ALJ’s determination that she is able to perform
other gainful work in the national economy because “the ALJ
premised his questioning on his [residual functional capacity]
assessment which . . . lacks record support.”
(Pl.’s Br. at 24.)
Plaintiff also notes that when asked to consider the limitations
set forth in Dr. Shapiro’s Medical Source Statement, the vocational
expert testified that an individual with such limitations could
not perform any work.
(Pl.’s Br. at 24.)
However, as set forth
above, the Court finds that substantial evidence supports the ALJ’s
determination that Dr. Shapiro’s opinion should be accorded little
weight and Dr. Fulco’s opinion, which provided the basis for the
ALJ’s residual functional capacity assessment, should be accorded
It follows that the ALJ’s determination of
Plaintiff could perform other work in the national economy based
on Mr. Taitz’s testimony regarding a hypothetical individual with
supported by substantial evidence.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
For the foregoing reasons, the Commissioner’s motion
(Docket Entry 26) is GRANTED, Plaintiff’s motion (Docket Entry 29)
The Clerk of the Court is directed to enter judgment
accordingly and mark this case CLOSED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
30 , 2017
Central Islip, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?