Parrinello v. Berryhill

Filing 18

MEMORANDUM AND ORDER denying 12 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings. For the foregoing reasons, the Commissioner's cross-motion (Docket Entry 14) is GRANTED and Plaintiff's motion (Docket Entry 12) DENIED. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 11/20/2018. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
LORRAINE PARRINELLO,
Plaintiff,
MEMORANDUM & ORDER
17-CV-4351 (JS)

-againstNANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Defendant.
------------------------------------X
APPEARANCES
For Plaintiff:
Charles E. Binder, Esq.
Law Offices of Harry J. Binder
and Charles E. Binder, P.C.
60 East 42nd Street, Suite 520
New York, New York 10165
For Defendant:

David B. Myers, Esq.
Peter W. Jewett, Esq.
United States Attorney’s Office
Eastern District Of New York
271 Cadman Plaza East
Brooklyn, New York 11201
Robert Randolph Schriver, Esq.
Social Security Administration
Office of the General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278

SEYBERT, District Judge:
Plaintiff

Lorraine

Parrinello

brings

this

action

pursuant to Section 205(g) of the Social Security Act (42 U.S.C.
§ 405(g)),

challenging

denial

her

of

the

application

Commissioner
for

of

disability

Social

Security’s

insurance

benefits.

Presently pending before the Court are Plaintiff’s motion for
judgment on the pleadings, (Pl.’s Mot., Docket Entry 12), and the

Commissioner’s cross-motion for judgment on the pleadings, (Def.’s
Mot.,

Docket

Entry

14).

For

the

following

reasons,

the

Commissioner’s cross-motion is GRANTED and Plaintiff’s motion is
DENIED.
BACKGROUND1
Plaintiff applied for disability insurance benefits on
May 29, 2009, alleging disability from January 1, 2005.2

(R. 43.)

Plaintiff noted many issues: fibromyalgia, Sjogren’s syndrome,
osteopenia, chronic bursitis of the left shoulder, irritable bowel
syndrome (IBS), temporomandibular joint (TMJ) disorder, chronic
deformity of her T8 vertebra, multiple disc herniations, left
sciatic pain, and low back spasms.

(R. at 123).

After her

application was denied on January 10, 2010, Plaintiff requested a
hearing before an administrative law judge (“ALJ”), which took
The background is derived from the administrative record filed
by the Commissioner on November 28, 2017. (R., Docket Entry 10).
“R.” denotes the administrative record. For purposes of this
Memorandum & Order, familiarity with the administrative record,
including this Court’s prior decision remanding the matter
(Linser-Parrinello v Comm’r of Soc. Sec., 13-CV-4585, 2015 WL
1529833 (E.D.N.Y. Mar. 31, 2015), R. at 821-851), is presumed.
The Court’s discussion of the evidence is limited to the
challenges and responses raised in the parties’ briefs.
1

The parties agree that to qualify for Social Security
Disability benefits, a person must be (1) disabled and (2)
insured for benefits. Plaintiff alleges she met these
requirements until December 31, 2009, her “date last insured.”
To qualify for benefits, her disability must have begun on or
before that date. To that end, this Order refers to the period
between January 1, 2005 (the onset of disability) and December
31, 2009 as “the relevant period.”
2

2

place on November 15, 2010.

(R. at 53-59; 43.)

Plaintiff was

represented by counsel at the hearing and she was the only witness
who testified.

(R. at 43.)

On November 18, 2011, the ALJ issued his decision finding
that Plaintiff was not disabled.

(R. at 43-50.)

Plaintiff sought

a review of the ALJ’s decision by the Appeals Council, (R. at 205209), and submitted additional evidence in support of her request
(R. at 285-95).
request.

On June 26, 2013, the Appeals Council denied her

(R. at 1-6.)

Plaintiff then asked this Court to review

the ALJ’s November 2011 decision.
Upon review, the Court remanded the matter to the ALJ
for further proceedings, (R. at 821-851), “[b]ecause the ALJ did
not clearly and fully identify his reasons for giving [Plaintiff’s
treating physician] Dr. Monetti’s opinion little weight” (R. at
847).

The Court explained that “the ALJ merely concluded . . .

that Dr. Monetti’s opinion was ‘not consistent with the substantial
evidence of record,’ without discussing what specific evidence he
was referring to and without addressing any of the factors for
determining how much weight to afford a treating physician’s
opinion.”

(R. at 849, citing R. at 49.)

The Court directed that

“[o]n remand, the ALJ should explain [his finding that] Dr.
Monetti’s

opinions

.

.

.

deserved

inconsistent with the record.”

‘little

weight’

and

were

(R. at 849, citing Snell v. Apfel,

177 F.3d 128, 134 (2d Cir. 1999).)
3

The Court, however, disagreed

with Plaintiff’s argument that the ALJ had improperly assessed her
credibility.

(R. at 850.)

Upon remand, Plaintiff again appeared with counsel and
testified at an administrative hearing before a different ALJ.3
The ALJ found that Plaintiff was not disabled.

(R. at 778.)

This

became the Commissioner’s final decision when Plaintiff filed
exceptions with the Appeals Council and it declined to assume
jurisdiction. (R. 750-53.)

The present action followed.
DISCUSSION

I.

Standard of Review
In reviewing the ruling of an ALJ, the Court does not

determine de novo whether the plaintiff is entitled to disability
benefits.

Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the
ALJ.

See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).

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.

See Johnson v. Barnhart, 269 F.

Supp. 2d 82, 84 (E.D.N.Y. 2003).
II.

The ALJ’s Decision
Here, the ALJ applied the familiar five-step process

(see 20 C.F.R. §§ 404.1520, 416.920) and concluded that Plaintiff

The hearing was held on May 9, 2016 before ALJ April M. Wexler
who issued her decision on May 31, 2016. (R. at 759-78.)
3

4

was not disabled.

(R. at 777).

She found that (1) Plaintiff did

not engage in substantial gainful activity during the relevant
period (R. at 764); (2) she had severe impairments, including IBS,
cervical spine disorder, thoracic spine disorder, lumbar spine
disorder, left shoulder bursitis, fibromyalgia, and TMJ (R. at
764-65); (3) the impairments did not meet or equal the severity of
any of the impairments listed in the Social Security Act (R. at
767); (4) Plaintiff had the residual functional capacity to perform
sedentary work, but not her past relevant work as a court reporter
(R. at 768, 776); and (5) there were jobs that existed during the
relevant period that Plaintiff could have performed (R. at 777).
Ultimately, the ALJ concluded that “[b]ased on the entire record,
including the testimony of [Plaintiff] . . . the evidence fails to
support the . . . assertions of total disability.”

(R. at 775.)

The ALJ explained that “[d]espite the evidence demonstrating that
[Plaintiff]

has

suffered

from

medically

determinable

“severe”

impairments, the evidence also establishes that [she] retains the
capacity to function adequately to perform many basic activities
associated with work.”

(R. at 775.)

III. Analysis
Plaintiff now advances two arguments: (1) that the ALJ
did not properly weigh the medical opinion evidence, specifically
by not giving enough weight to the opinions of two treating
physicians and not explaining her reliance on other opinions; and
5

(2) that the ALJ improperly found her testimony to be inconsistent
with the medical evidence.
28.)

(Pl.’s Br., Docket Entry 13, at 19,

The Commissioner responds that the ALJ (1) properly weighed

the opinions and detailed her rationale for assigning less weight
to the treating physicians’ opinions; and (2) properly evaluated
Plaintiff’s subjective complaints and credibility.
Docket Entry 15, at 21, 28.)

(Def.’s Br.,

The Court will focus on these

arguments.
A.

The Treating Physician Rule and the ALJ’s Weighing of
the Medical Opinion Evidence
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.,
The regulations state:

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) (emphasis supplied).4

Nevertheless,

the opinion of a treating physician “need not be given controlling

“While the Act was amended effective March 27, 2017 [to
eliminate the treating physician rule], 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
4

6

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
citations omitted).
When an ALJ does not afford controlling weight to the
opinion of a treating physician, she must consider several factors:
“(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 physician.”
Id.

“An application of the treating physician rule is sufficient

when the ALJ provides ‘good reasons’ for discounting a treating
physician’s opinion that reflect in substance the factors as set
forth in [Section] 404.1527(d)(2), even though the ALJ declines to
examine the factors with explicit reference to the regulation.”
Crowell v. Comm’r of Soc. Sec., 705 F. App’x 34, 35 (2d Cir. 2017)
(“While the ALJ did not explicitly discuss the treating physician

3701480, at *1 (E.D.N.Y. Aug. 25, 2017); see also 20 C.F.R.
§ 404.1527 (“For claims filed (see § 404.614) before March 27,
2017, the rules in this section apply. For claims filed on or
after March 27, 2017, the rules in § 404.1520c apply.”).
7

rule, he nonetheless stated that [the physician’s] opinion . . .
was contradictory to the rest of the record evidence.”).
Here, Plaintiff produced medical opinion evidence from
two

treating

physicians:

Dr.

Henry

J.

Monetti,

practitioner, and Dr. Peter Rumore, a rheumatologist.5

a

family

She argues

that the ALJ did not properly credit their opinions or give good
reasons for giving them less weight.6
1. Dr. Monetti
The ALJ explained that she gave “less weight” to Dr.
Monetti’s

2010

and

2011

opinions

as

to

Plaintiff’s

physical

capabilities and limitations because they were “inconsistent with
[Plaintiff’s]

conservative

course

of

treatment,

[Plaintiff’s]

reported activities of daily living, as discussed in detail above
[in the ALJ’s decision], and physical examinations documenting a
normal gait and station, 5/5 motor power in all extremities, normal

The ALJ also considered medical evidence (opinions and records)
from Drs. Laurence Mermelstein (orthopedic surgeon); Mike Pappas
(SSA consultative examiner certified in physical medicine and
rehabilitation); Haddon C. Alexander III (impartial medical
expert specializing in rheumatology); Donald Goldman (impartial
medical expert specializing in orthopedic surgery); Ray Haag
(orthopedic surgeon); Arain Nawaz (gastroenterologist); and
Andrew Brown (physical medicine and rehabilitation).
(R. 770-75).
5

In her prior action, Plaintiff argued that the ALJ had not
given proper weight to the opinions of treating physicians Dr.
Monetti and Dr. Mir. Curiously, in the prior action, she did
not take issue with the ALJ’s failure to even mention Dr.
Rumore’s opinion, despite her current contention that remand is
required because this ALJ assigned “less weight” to it.
6

8

sensation, and negative straight leg raising.”

(R. at 774.)

She

further noted that Dr. Monetti “did not indicate whether these
limitations applied during the period at issue” and that he was
“not a specialist.”

(R. at 774).

Moreover, the ALJ noted, the

2011 opinion was rendered two years after the relevant period.
The ALJ also assigned less weight to Dr. Monetti’s 2016 opinion
regarding

Plaintiff’s

physical

capabilities

and

limitations

because, again, it was inconsistent with other record evidence,
and further, because it was rendered six years after the relevant
period.

(R. at 774-75.)
The ALJ thus specifically referenced the third, fourth,

and fifth factors (extent to which the opinion is supported by
medical and laboratory findings, physician’s consistency with the
record as a whole, and whether the physician is a specialist) with
respect to Dr. Monetti’s opinions and included an additional factor
(that some of the opinions were rendered well after the relevant
period)

in

her

explanation.

Moreover,

the

ALJ’s

decision

recounted, in detail, the factors that she weighed Dr. Monetti’s
opinions against.
Specifically,

the

ALJ

found

Plaintiff’s

course

of

treatment was “only routine, conservative care for her impairments
consisting primarily of medication management” with mostly overthe-counter medication such as Tylenol, aspirin, and Pepto-Bismol.
(R. at 772-73.)

She had no surgery during the relevant period and
9

had been hospitalized only once in 2004 for abdominal pain.
(R. at 773.)

She had a colon resection and stent placement, but

these occurred after the date last insured.

(R. at 773.)

Her typical daily activities “consisted of straightening
up the house, getting dressed, going to the supermarket, and
walking 2 or 3 blocks for exercise.” (R. at 769).

She sometimes

put laundry into the washing machine and she visited family often.
(R. at 769.) In 2009, she had reported “work[ing out] with weights
and . . . cardio training two to three times per week” and in 2005
had stated she was “mildly fatigued but in general had been well
and very active working out in the gym 3 days a week.”
770.)

(R. at

She could “dress and shower herself as well as cook, clean,

load the dishwasher, make beds, and shop independently.”

(R. at

772.)
The ALJ also referenced several physical examinations.
For example, “[a] 2007 [computerized tomography (CT)] scan of the
neck, abdomen and pelvis indicated only mild degenerative changes
of the cervical and lumbar spine.”

(R. at 770.)

Two other CT

scans showed “scattered diverticula” and “no evidence of acute
diverticulitis,” and an examining gastroenterologist noted that
Plaintiff’s “gastrointestinal study was essentially unremarkable.”
(R. at 770.)

A 2005 report from a rheumatologist showed “5/5

muscle strength, normal exam of the abdomen, tenderness of the
wrist

without

swelling,

decreased
10

cervical

range

of

motion,

negative straight leg raising, and grossly intact neurological
exam.”

(R. at 770.)

A consultive internist examined her in 2009

and opined that she had “no limitations in sitting and is merely
mildly limited in her ability to stand, walk, reach, push, pull,
lift, climb, and bend.”
The

Court

(R. at 771.)

thus

concludes

that

the

ALJ

adequately

explained factors she considered in assigning less weight to
Dr. Monetti’s opinions and gave “good reasons” for doing so.
2. Dr. Rumore
The ALJ also gave less weight to Dr. Rumore’s opinion on
Plaintiff’s physical capabilities and limitations because it was
not consistent with Plaintiff’s course of treatment, reported
daily activities, and physical examinations.

(R. at 775.)

The

ALJ further determined Dr. Rumore’s opinion that Plaintiff was
“unable to do full time work in a competitive environment in any
capacity” was “vague and d[id] not provide specific vocational
limitations.”
For

(R. at 775.)
the

reasons

already

stated

with

respect

to

Dr. Monetti, along with the ALJ’s conclusion that Dr. Rumore’s
opinion on Plaintiff’s work capacity was vague and conclusory, the
Court finds that the ALJ gave good reasons for assigning less
weight to Dr. Rumore’s opinion.

11

B.

The ALJ’s Determination of Plaintiff’s Credibility
As this Court noted in its prior remand order, “‘the ALJ

has discretion to evaluate the credibility of a claimant and to
arrive at an independent judgment, in light of medical findings
and other evidence.’”

Mollo v. Barnhart, 305 F. Supp. 2d 252,

263-64 (E.D.N.Y. 2004) (quoting Marcus v. Califano, 615 F.2d 23,
27 (2d Cir. 1979); Fiumano v. Colvin, No. 13-CV-2848, 2013 WL
5937002, at *9 (E.D.N.Y. Nov. 4, 2013) (“An ALJ is not required to
accept

a

claimant’s

testimony

regarding

the

severity

and

persistence of his symptoms as true, but rather can evaluate the
credibility of a claimant to arrive at an independent judgment
based on the medical findings and other evidence”).7
The ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged
symptoms;

however,

[her]

statements

concerning

the

intensity,

persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the
record.”

(R. at 769.)

The ALJ determined that the record did

Notably, in the prior remand Order, this Court found that the
ALJ did not improperly assess Plaintiff’s credibility, and that
the ALJ provided “specific examples of activities Plaintiff
engaged in which tend[ed] to show that she is not disabled.” (R.
at 850-51.) This Court is mindful that two ALJs have
independently concluded that Plaintiff’s own account of her
daily activities and physical capabilities contradicted her
claim of total disability.
7

12

“not support [Plaintiff’s] allegations of complete disability.”
(R. at 769.)
Plaintiff

argues

that

the

ALJ

used

“boilerplate

language” and “failed to give sufficient reasons for discounting
[her] statements regarding her symptoms and limitations.”
Br. at 28.)

(Pl.’s

She further contends that the ALJ “mischaracterized

the record by concluding that [she] gave testimony consistent with
the requirements of sedentary work.”

(Pl.’s Br. at 28.)

As the

Commissioner contends, the ALJ actually found that Plaintiff’s
self-reported “ability to sit for 30 minutes, stand for 30 minutes,
and walk a couple of blocks at a time does not tend to preclude
sedentary work.”

(R. at 772.)

The ALJ again looked to Plaintiff’s conservative course
of treatment, daily activities, and physical examinations, as
discussed

above,

in

determining

that

her

description

of

her

symptoms and limitations was not consistent with other record
evidence.

These are sufficient reasons to question Plaintiff’s

credibility.
entitled

to

“Thus,
‘great

unreasonable.’”

the

ALJ’s

deference’

credibility
as

it

was

determination
not

is

‘patently

Thompson v. Comm’r of Soc. Sec., No. 16-CV-6968,

2018 WL 1558270, at *1 (E.D.N.Y. Mar. 28, 2018) (quoting Pietrunti
v. Dir., Office of Workers’ Comp. Programs, 119 F.3d 1035, 1042
(2d Cir. 1997)).

13

CONCLUSION
For the foregoing reasons, the Commissioner’s crossmotion (Docket Entry 14) is GRANTED and Plaintiff’s motion (Docket
Entry 12) DENIED.

The Clerk of the Court is directed to enter

judgment accordingly and mark this case CLOSED.

SO ORDERED

_/s/ JOANNA SEYBERT________
Joanna Seybert, U.S.D.J.
Dated: November 20, 2018
Central Islip, New York

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