Gielarowski v. Colvin

Filing 18

ORDER denying 12 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings: Plaintiff's motion for judgment on the pleadings is denied, Defendant's cross-motion is granted, and the decision of the Commissioner is affirmed. The Clerk of the Court is directed to enter judgment in favor of Defendant and to close this case. See attached. Ordered by Judge Denis R. Hurley on 10/12/2017. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARIA GIELAROWSKI FOR CHESTER
GIELAROWSKI (deceased),
Plaintiff,

MEMORANDUM & ORDER

-againstCivil Action No. 16-3560 (DRH)
NANCY A. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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APPEARANCES:
For Plaintiff:
Klee, Woolf, Goldman, & Filpi, L.L.P.
350 Willis Avenue
Mineola, NY 11501
By:
Jonathan R. Klee, Esq.
For Defendant:
Bridget M. Rohde
Acting United States Attorney, Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:
Matthew Silverman, AUSA
HURLEY, Senior District Judge:
Plaintiff Maria Gielarowski, as designated substitute party for Chester Gielarowski
(“Plaintiff” or “Gielarowski”),2 seeks judicial review of the determination of the Commissioner

1

Nancy A. Berryhill is substituted pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure.
2

After the ALJ’s decision and after he requested review by the Appeals Council Chester
Gielarowski passed away as the result of a gun shot wound; his mother was then substituted as a
party to this proceeding.

of Social Security, following a hearing before an Administrative Law Judge (“ALJ”), that he was
not under a disability as defined in the Social Security Act and therefore is not entitled to
disability benefits. The ALJ found that Plaintiff had severe impairments consisting of status post
chronic heart failure, chronic obstructive pulmonary disorder, diabetes mellitus and obesity.
However, the ALJ further found that these impairments do not render him disabled. Specifically,
she found that (1) Plaintiff had the residual functional capacity to perform light work except that
he could occasionally lift twenty pounds and frequently lift ten pounds; sit for up to six hours,
stand for approximately six hours, and walk up to two hours in an eight hour day, with normal
breaks; occasionally climb stairs or ramps; never climb ladders, ropes or scaffolds; occasionally
balance, stoop, kneel, crouch and crawl; has unlimited ability to push and pull; and must avoid
concentrated exposure to odors, fumes, dusts, gases and pulmonary irritants; and (2) was capable
of performing past relevant work as a security guard or, in the alternative, considering that
residual functional capacity, his age, education and work experience there are other jobs that
exist in significant numbers in the national economy that Gielarowski also could perform. (Tr.
22-46.)
In support of his motion seeking judgment on the pleadings reversing the decision of the
Commissioner, Gielarowski asserts that the ALJ improperly relied on the opinion of a nontreating and non-examining medical expert and the ALJ failed to properly evaluate his
credibility. Having reviewed the record, the Court finds that the ALJ’s rejection of Plaintiff’s
claim is supported by substantial evidence and that there was no legal error. Accordingly,
Plaintiff’s motion for judgment on the pleadings is denied and the cross-motion of the
Commissioner for judgment on the pleadings is granted.
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BACKGROUND
I.

Non-Medical Evidence
Gielarowski was 52 years old at the time of the ALJ’s decision and has a G.E.D. From

November 2010 to February 2011, he worked as security guard, performing foot and car patrols;
from May 2011 to September 2012, he worked as a machine operator which required him to lift
up to 100 pounds.
According to his hearing testimony, he stopped working in September 2012 due to
difficulties breathing, walking and manipulating stairs as he was status-post congestive heart
failure, had diabetes mellitus, was obese, had chronic pulmonary disease and had sleep apnea. He
treated his blood pressure and diabetes with medication and used a continuous positive airway
pressure machine for his sleep apnea; he did not use insulin. His activities of daily living
included showering and dressing himself, vacuuming and dusting, cooking meals such as lasagna
and meatloaf, and shopping. He took care of his mother for the past ten years, performing such
tasks as cooking, driving her to the doctor, helping her on stairs, and running errands; his ability
to care for her did not change after his alleged onset date. He admitted he looked for work after
his alleged onset date, including security work.
In a January 4, 2014 function report, Gielarowski stated that he prepared breakfast lunch
and dinner, did household chores such as cleaning and vacuuming, made small household
repairs, took care of feeding and cleaning the cages of his birds, drove his mother to the doctor,
and went shopping for clothes and food. He reported needing help with lifting, pushing,
shoveling and digging. He went hunting once or twice a year but it was “difficult to walk to the
hunting spot” and he had to check his blood pressure before going. He could walk three to four
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blocks and had to rest a minute or two before continuing.
II.

Medical Evidence
The record contains the following medical evidence relevant to the arguments of the

parties.
A.

Treating Sources

In September 2012, Gielarowski was admitted to the hospital for congestive heart failure
and atrial flutter. Cardiac catharization revealed in part severe mitral valve regurgitation. He
underwent mitral valve replacement, a cryoablation maze procedure, and pacemaker
implantation. Ten days after the mitral valve replacement his cardiologist noted he was in
“excellent medical condition” and upon discharge advised him to avoid heavy lifting and driving
until cleared and to increase his walking as tolerated. Follow-up examinations by Dr.
Glasser of Advanced Pulmonary Diagnostics, his primary care physician, were unremarkable. In
a December 31, 2012 New York State Disability form Dr. Glasser stated that the date Plaintiff
could return to work was indeterminate and he may require permanent disability. However, at an
examination three months later, in March 2013, Dr. Glass noted Gielarowski was unemployed
but “willing and able to return to work.” At a June 2014 examination by his cardiologist,
Gielarowski reported that his heart failure was currently well-controlled, complained of shortness
of breath while carrying groceries or walking up stairs but denied fatigue, chest pain, dizziness,
recent falls, or difficulty sleeping. The cardiologist reported normal examination findings. With
respect to his heart there were no murmurs, rubs or gallops, lungs were clear to auscultation, and
his extremities had no edema.
A post-surgical echocardiogram taken in November 2012 revealed a dilated left atrium,
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and a bio-prosthetic valve with abnormal regurgitation and mild to moderate paravalvular leak.
B.

Non-Treating Sources

A consultative internal medicine examination of Gielarowski was conducted by Dr. Wolf
in June 2013. On examination, Gielarowski’s heart had a regular rhythm with no gallops, rubs, or
murmurs; his chest was clear to auscultation and had normal percussion. Based on his medical
history and the examination finding, Dr. Wolf opined that Gielarowski had no limitation sitting
provided he could stretch from time to time, had moderate limitations in walking and standing,
moderate to marked limitations in lifting, and marked limitation in climbing.
In June 2014, Dr. Malaret, who specializes in cardiology3 and internal medicine,
answered medical interrogatories regarding Gielarowski’s impairments after reviewing the
medical evidence in the record. Noting that Gielarowski’s cardiovascular symptoms improved
after his September 2012 surgeries, Dr. Malaret opined that he could lift, carry, and push and pull
10 pound frequently and 20 pounds occasionally, walk for up to four hours in an eight-hour day,
never climb ladders, ropes or scaffolds, occasionally crawl, and had to avoid pulmonary irritants
and extreme temperatures.
DISCUSSION
I.

Standard of Review
In reviewing a decision of the Commissioner, a court may set aside a determination of the

ALJ only if it is "based upon legal error or is not supported by substantial evidence." Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks and citation omitted).

3

Although he has practiced cardiology for decades and held offices in various
professional organization for cardiologists, Dr. Malaret is not board certified in cardiology.
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"Substantial evidence is ‘more than a mere scintilla,' and is ‘such relevant evidence as [a]
reasonable mind might accept as adequate to support a conclusion.'" Jasinski v. Barnhart, 341
F.3d 182, 184 (2d Cir. 2003) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). An
ALJ's findings may properly rest on substantial evidence even where he or she fails to “recite
every piece of evidence that contributed to the decision, so long as the record ‘permits [the
Court] to glean the rationale of [his or her] decision.’ ” Cichocki v. Astrue, 729 F.3d 172, 178 n.3
(2d Cir. 2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). This remains
true “even if contrary evidence exists.” Mackey v. Barnhart, 306 F. Supp. 337, 340 (E.D.N.Y.
2004)
Furthermore, the findings of the Commissioner as to any fact, if supported by substantial
evidence, are conclusive, 42 U.S.C. § 405(g), and thus, the reviewing court does not decide the
case de novo. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (internal quotation marks
and citation omitted). Thus the only issue before the Court is whether the ALJ's finding that
Plaintiff was not eligible for disability benefits was "based on legal error or is not supported by
substantial evidence." Rosa, 168 F.3d at 77.
II.

The ALJ Properly Weighed the Medical Evidence and Her
Determination is Supported by Substantial Evidence
Plaintiff contends that the ALj improperly relied upon the opinion of Dr. Malaret, a

doctor who did not treat or examine Gielarowski. Further while the ALJ purported to give “good
weight” to the opinion of Dr. Wolf, she did not adopt her restrictions which Plaintiff believes are
more consistent with sedentary work.
Having reviewed the record, the Court finds that the ALJ properly weighed the medical

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evidence and her determination is supported by substantial evidence.
Although an ALJ will consider medical opinions regarding a claimant's functioning,
ultimately the ALJ must reach an RFC assessment based on the record as a whole. 20 C.F.R. §
404.1527(d)(2) ("Although we consider opinions from medical sources on issues such as . . . your
residual functional capacity . . . the final responsibility for deciding these issues is reserved to the
Commissioner.”) In evaluating medical opinions, an ALJ considers factors such as (1) whether
there is a treatment relationship and if so its length, nature and extent; (2) whether there is an
examining relationship; (3) consistency of the opinion with the entirety of the record; (4) whether
the physician is a specialist; and (5) other factors that are brought to the attention of the Social
Security Administration that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c);
see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Heagney-O’Hara v. Comm'r of
Soc. Sec., 646 Fed. App'x 123, 126 (2d Cir. 2016).
While Dr. Malaret did not treat or examine Gielarowski, a fact explicitly recognized by
the ALJ, his opinion is supported by objective evidence. For example, after implantation of his
pacemaker, Gielarowski required only conservative care even though post-surgical
echocardiograms continued to show some ventricular deficits. After his alleged onset date the
physical examinations by his treating physicians reveal normal cardiac rate and rhythm, normal
blood pressure, non-labored respirations, no murmurs, wheezing, rales, or rhonchi, and his lungs
were clear to auscultations. His treating cardiologists opined that his symptoms were well
controlled and recommended that Gielarowski exercise and be active. Also, Dr. Glasser opined
that he was able to return to work. Gielarowski’s activities of daily living, including that he was
able to care for his mother in the same manner both before after and his alleged onset date,
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provide further support for Dr. Malaret’s opinion. As Dr. Malaret’s opinion was consistent with
the record as a whole, the ALJ committed no error in the weight she afforded it.
In considering Dr. Wolf’s opinion, the ALJ adopted those portions that were consistent
with the record as a whole, i.e., that Gielarowski has no limitation in sitting and only moderate
limitations in walking and standing. To the extent that the ALJ rejected that portion of Dr.
Wolf’s opinion that Gielarowski had marked to moderate limitations in lifting and climbing, the
ALJ appropriately cited record evidence to support her conclusion including the recommendation
of treating cardiologists that Gielarowski exercise, treatment records and Gielarowski’s
statements that he helped his mother climb stairs and that his bedroom was on the second floor
and he is able to go up and down the stairs himself.
In sum, the ALJ considered the relevant factors and supported her determination by
substantial evidence in the record.
II.

Plaintiff's Credibility was Properly Evaluated
Social Security regulations require an ALJ to consider a claimant's subjective testimony

regarding his/her symptoms when analyzing whether the claimant is disabled. See 20 C.F.R. §
404.1529(a) (2011). In order to evaluate that subjective testimony, the ALJ must first determine
"whether there is an underlying medically determinable physical or mental impairment . . . that
could reasonably be expected to produce" the claimed symptoms. See SSR 96–7p, 1996 WL
374186, at *2 (July 2, 1996). Second, the ALJ "must evaluate the intensity, persistence, and
limiting effects of the individual's symptoms to determine the extent to which the symptoms limit
the individual's ability to do basic work activities." Id. Moreover, if a claimant's subjective
evidence of pain is supported by objective medical evidence, it is entitled to "great weight."
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Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir.1992) (internal quotation marks omitted).
If a claimant's symptoms suggest a greater severity of impairment than can be
demonstrated by the objective medical evidence, additional factors must be considered. See 20
C.F.R. § 404.1529(c)(3). These include daily activities, the location, duration, frequency and
intensity of symptoms, the type, effectiveness and side effects of medication, and other
treatments or measures to relieve those symptoms. Id. An ALJ need not, however, explicitly
recite the seven relevant factors. See Chichocki v. Astrue, 534 Fed. App'x 71, 75 (2d Cir. 2013).
"The ALJ's decision ‘must contain specific reasons for the finding on credibility, supported by
the 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.' " Id. (quoting SSR 96–7p, 1996 WL 374186, at *2). A single conclusory
statement that the claimant is not credible is not sufficient; the evidence of record must "permit
[a court] to glean the rationale of an ALJ's decision." Id. (internal quotation marks omitted.)
Here, the ALJ cited considered Gielarowski’s activities of daily living, including taking
care of his 80 year old mother for the past ten years with no change in what he was able to do for
her after his alleged onset date, performing a wide range of household chores, and hunting twice
a year. She also considered (1) his treatment history, (2) that he had no problems with his
pacemaker since it was implanted, (3) his doctor’s statement that his symptoms were well
controlled with his current regiment, (4) his treatment records showing normal cardiac rhythm,
no murmurs, good air entry, and conservative treatment, and (5) his doctor’s statement that he
was willing and able to work. Notwithstanding Plaintiff’s assertions to the contrary, the ALJ
sufficiently explained her credibility determination. "It is the role of the Commissioner, not the
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reviewing court, 'to resolve evidentiary conflicts and to appraise the credibility of witnesses.'"
Cichoki v. Astrue, 534 F. App’x. 71, 75 (2d Cir. 2013) (summary order) (quoting Carroll v. Secy.
of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The ALJ properly identified
specific record-based reasons for her credibility findings and the record evidence permits the
Court “to glean the rationale of the ALJ’s decision.” Id.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings is denied,
Defendant's cross-motion is granted, and the decision of the Commissioner is affirmed. The
Clerk of the Court is directed to enter judgment in favor of Defendant and to close this case.
Dated: Central Islip, New York
October 12, 2017

/s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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