Paradise v. Commissioner of Social Security

Filing 15

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Paradise's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/3/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
YASMEEN S. PARADISE,

Plaintiff,

1:13-cv-828
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
Suite 420
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

HOWARD D. OLINSKY, ESQ.

REBECCA H. ESTELLE
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Yasmeen S. Paradise challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (Compl., Dkt. No. 1.) After reviewing the administrative
record and carefully considering Paradise’s arguments, the court affirms
the Commissioner’s decision and dismisses the complaint.
II. Background
On April 27, 2010, Paradise filed applications for DIB and SSI under
the Social Security Act (“the Act”), alleging disability since April 30, 2008.
(Tr.1 at 81-82, 151-60.) After her applications were denied, (id. at 86-97),
Paradise requested a hearing before an Administrative Law Judge (ALJ),
which was held on July 14, 2011, (id. at 44-74, 98-99).2 On December 2,
2011, the ALJ issued an unfavorable decision denying the requested
benefits which became the Commissioner’s final determination upon the

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

2

At the administrative hearing, Paradise amended her alleged onset date to March 25,
2009. (Tr. at 48.)

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Social Security Administration Appeals Council’s denial of review. (Id. at 16, 22-38.)
Paradise commenced the present action by filing her complaint on
July 15, 2013 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 7, 8.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 12, 13.)
III. Contentions
Paradise contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 12 at
15-24.) Specifically, Paradise claims that: (1) the Appeals Council erred in
denying her request for review in light of the new evidence she submitted
after the ALJ issued his decision; (2) the ALJ improperly evaluated her
credibility; and (3) the ALJ erred in failing to obtain the testimony of a
vocational expert (VE) at step five of the sequential evaluation. (Id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and his decision is also supported by substantial evidence. (Dkt.
No. 13 at 4-10.)
IV. Facts
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The court adopts the parties’ undisputed factual recitations. (Dkt. No.
12 at 2-14; Dkt. No. 13 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)3 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

New Evidence
Paradise first claims that the Appeals council erred in its evaluation of

new and material evidence from treating physician James Yovanoff. (Dkt.
No. 12 at 15-19.) According to Paradise, the Appeals Council’s failure to
explain why Dr. Yovanoff’s new opinion did not render the ALJ’s findings
contrary to the weight of the evidence requires remand. (Id.) The court

3

Review under 42 U.S.C. §§ 405(g) and 1383(c)(3) is identical. As such, parallel
citations to the regulations governing SSI are omitted.

4

disagrees.
The Appeals Council shall consider “new and material” evidence if it
“relates to the period on or before the date of the [ALJ] hearing decision.”
20 C.F.R. § 404.976(b)(1); see Perez, 77 F.3d 41, 45 (2d Cir. 1996). The
Appeals Council “will then review the case if it finds that the [ALJ]’s action,
findings, or conclusion is contrary to the weight of the evidence currently of
record.” 20 C.F.R. § 404.970(b). However, even if “the Appeals Council
denies review after considering new evidence, the [Commissioner]’s final
decision necessarily includes the Appeals Council’s conclusion that the
ALJ’s findings remained correct despite the new evidence.” Perez, 77 F.3d
at 45 (internal quotation marks and citation omitted). Accordingly, the
additional evidence becomes part of the administrative record reviewed by
the district court. Id. at 45-46.
Here, the ALJ had before him the July 2010 opinion of Dr. Yovanoff
that Paradise could lift and carry twenty pounds occasionally and five to ten
pounds frequently, stand and walk for six hours of a workday, and was not
limited in her ability to sit, push, or pull. 4 (Tr. at 304-11.) Following

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The ALJ relied, in part, on Dr. Yovanoff’s July 2010 opinion to determine that Paradise
can sit for six hours and stand for two hours of an eight-hour workday. (Tr. at 29.)

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issuance of the ALJ’s decision, but prior to a determination by the Appeals
Council, Paradise submitted an additional opinion of Dr. Yovanoff, dated
June 20, 2011, limiting Paradise to sitting for thirty minutes at a time for up
to four hours in a workday, and standing or walking for twenty minutes at a
time, up to four hours in a workday. (Id. at 557-59.) The Appeals Council
considered the June 2011 opinion of Dr. Yovanoff and concluded that it
“does not show that the [ALJ’s] action, findings or conclusion is contrary to
the weight of the evidence currently of record.” (Id. at 2.)
The Appeals Council did not err in refusing to remand the case to the
ALJ based on the new evidence provided by Paradise. The June 2011
opinion was not submitted with any additional treatment notes, and Dr.
Yovanoff offered no clinical or laboratory findings to support his new
opinion. (Id. at 557-59.) Treatment notes throughout the record indicate
no limitations in Paradise’s ability to sit, and the only symptom that
Paradise suffers, according to Dr. Yovanoff’s June 2011 opinion, is chest
pain. (Id. at 313-17, 337-41, 557.) Paradise testified that she is limited in
her ability to sit because she experiences leg pain. (Id. at 64.) However,
Paradise was noted to have a normal gait and good strength throughout
the record, and had consistently normal neurological examinations. ( Id. at
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246, 249, 251, 254, 308, 314, 382, 386, 458, 524.) When Dr. Yovanoff
examined Paradise in June 2011, she reported feeling well, although she
still suffered persistent chest pain. (Id. at 460.) The examination results
were benign. (Id.) In sum, Dr. Yovanoff’s June 2011 opinion was not
deserving of controlling weight 5 because it was contradicted by substantial
evidence6 of record and unsupported by relevant medical signs and
findings. See 20 C.F.R. § 404.1527(c)(3), (4).
Based on the foregoing, the court concludes that the Appeals Council
properly considered the new evidence submitted by Paradise, and properly
determined that this new evidence did not affect the validity of the ALJ’s
decision.
B.

Credibility Determination
Next, Paradise argues that the ALJ’s credibility findings are

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Controlling weight will be given to a treating source’s opinion on the nature and
severity of a claimant’s impairments where it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence.” 20 C.F.R. § 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004). When a treating source’s opinion is given less than controlling weight, the ALJ is
required to consider the following factors: the length, nature and extent of the treatment
relationship; the frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. 20 C.F.R. § 404.1527(c)(2)-(6).
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“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotations omitted).

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unsupported by substantial evidence. (Dkt. No. 12 at 19-22.) In particular,
Paradise asserts that the ALJ erred in: (1) failing to consider a possible
medical basis for her failure to take prescribed antibiotics; (2) considering
her work history, which is irrelevant in this case; (3) relying on an
inconsistency between her testimony and certain medical records with
respect to her dominant hand; (4) discounting her complaints of pain due to
the ALJ’s own observations of Paradise’s behavior during the
administrative hearing; (5) failing to evaluate the significant side effects of
Paradise’s medications; and (6) relying on her ability to perform basic daily
activities as evidence of her ability to work five days a week, eight hours a
day. (Id.) Again the court disagrees.
“Evidence of pain is an important element in the adjudication of DIB
and SSI claims, and must be thoroughly considered in calculating the
[residual functional capacity (RFC)] of a claimant.” 7 Meadors v. Astrue, 370
F. App’x 179, 183 (2d Cir. 2010). To that end, once the ALJ determines
that the claimant suffers from a “medically determinable impairment[] that

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A claimant’s RFC “is the most [she] can still do despite [her] limitations.” 20 C.F.R.
§ 404.1545(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 404.1545(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be
affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d at 46.

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could reasonably be expected to produce the [symptoms] alleged,” he
“must evaluate the intensity and persistence of those symptoms
considering all of the available evidence; and, to the extent that the
claimant’s [subjective] contentions are not substantiated by the objective
medical evidence, the ALJ must engage in a credibility inquiry.” Id.
(internal quotation marks and citations omitted). In performing this
analysis, the ALJ “must consider the entire case record and give specific
reasons for the weight given to the [claimant’s] statements.” SSR 96-7p,
61 Fed. Reg. 34,483, 34,485 (July 2, 1996). Specifically, in addition to the
objective medical evidence, the ALJ must consider the following factors: “1)
daily activities; 2) location, duration, frequency and intensity of any
symptoms; 3) precipitating and aggravating factors; 4) type, dosage,
effectiveness, and side effects of any medications taken; 5) other treatment
received; and 6) other measures taken to relieve symptoms.” F.S. v.
Astrue, No. 1:10-CV-444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15,
2012) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vi))).
Here, the ALJ found Paradise’s statements with regard to the
intensity, persistence, and limiting effects of her symptoms not fully
credible. (Tr. at 30.) The ALJ noted that Paradise’s treatment records,
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which were largely devoid of complaints of back or joint pain and
headaches, were inconsistent with her hearing testimony. (Id. at 30, 53,
55, 64, 67-68, 248-49, 253-54, 313-17, 337-41, 377, 380, 385, 425, 457,
460, 502-03.) The ALJ also noted that Paradise testified that she had been
terminated from her last employer due to tardiness, and did not indicate
that her symptoms hindered her ability to work at that time. (Id. at 30, 5152.) Additionally, the ALJ highlighted Paradise’s ability to vacuum, make
beds, wash dishes, and care for her nine-year old child, and that she only
needed help showering due to a recent foot surgery that she was
recovering from. (Id. at 30, 61-62.) Further, the ALJ considered Paradise’s
testimony that she was currently in pain, but observed that “she did not
appear to be in obvious pain and she tolerated the proceedings without
complaining, alternating positions, or showing physical limitations
whatsoever to sit or rise from her chair.” (Id. at 30, 55.) In addition, the
ALJ considered the objective medical evidence of record and the opinions
of Dr. Yovanoff and treating physician Tanveer Sultan, who saw Paradise
for her right toe infection. (Id. at 30-33.)
Based on the foregoing, the ALJ’s credibility determination is legally
sound. See 20 C.F.R. § 404.1529(c)(3)-(4) (requiring the ALJ to consider
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all of the evidence presented in making his credibility determination,
“including information about [the claimant’s] prior work record, . . .
statements about [her] symptoms, evidence submitted by [her] treating or
nontreating source, and observations by [Social Security Administration’s]
employees and other persons,” as well as “any inconsistencies in the
evidence and the extent to which there [were] conflicts between [the
claimant’s] statements and the rest of the evidence”). Paradise argues
that, when considering her failure to take her prescribed medications, the
ALJ failed to account for her medical diagnoses of dysphagia and
odynophagia, which indicate difficult and painful swallowing. (Dkt. No. 12
at 19.) However, although the ALJ noted that Paradise experienced
complications from surgery to remove a bunion on her right foot because
she did not take her prescribed antibiotics, the ALJ did not indicate that he
discounted Paradise’s subjective complaints based on this failure to follow
recommended treatment. (Tr. at 31-32, 457, 465, 489.) Instead, the ALJ
included restrictions on Paradise’s ability to stand and walk in his RFC
determination due to her foot infection. (Id. at 29, 32-33); cf. SSR 96-7p,
61 Fed. Reg. at 34,487 (explaining that an “individual’s statements may be
less credible if the level or frequency of treatment is inconsistent with the
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level of complaints, or if the medical reports or records show that the
individual is not following the treatment as prescribed and there are no
good reasons for this failure”). Similarly, it does not appear that the ALJ
discounted Paradise’s testimony based on a discrepancy in the
administrative record as to which hand is her dominant hand. 8 (Tr. at 30.)
Rather, the ALJ merely noted this discrepancy when summarizing
Paradise’s testimony. (Id. at 29-30.)
With respect to the ALJ’s failure to discuss the side effects of
Paradise’s medications, it is not necessary that the ALJ “have mentioned
every item of testimony presented to him or have explained why he
considered particular evidence unpersuasive or insufficient to lead him to a
conclusion of disability.” Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir.
2011) (internal quotation marks and citation omitted). Notably, treatment
notes from her most recent visit to her primary care physician’s office in
May 2011 reflect that Paradise was not experiencing any medication side
effects. (Tr. at 457.) Finally, with respect to her daily activities, the ALJ
properly considered them as a factor relevant to evaluating Paradise’s

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Paradise contends that the ALJ failed to consider that there was “likely a
typographical error” in her treatment notes indicating that she is right-handed, contrary to her
testimony that she is left-handed. (Dkt. No. 12 at 20; compare Tr. at 49, with id. at 221.)

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symptoms. See 20 C.F.R. § 404.1529(c)(3)(i). Standing alone, the daily
activities do not create an independent basis for finding Paradise not
credible. However, taken as a whole, the ALJ’s credibility determination is
not “patently unreasonable.” Pietrunti v. Director, Office of Workers’ Comp.
Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility findings of an
ALJ are entitled to great deference and therefore can be reversed only if
they are patently unreasonable.” (internal quotation marks and citation
omitted)).
C.

Step Five Determination
Finally, Paradise contends that the ALJ’s step five determination is

unsupported by substantial evidence because the ALJ failed to obtain the
testimony of a VE. (Dkt. No. 12 at 22-24.) According to Paradise, because
the evidence of record, including her testimony, the examination findings,
and diagnoses, revealed that she experiences significant pain, reliance on
the Medical-Vocational guidelines was inappropriate. (Id.) The
Commissioner counters, and the court agrees, that because the ALJ
determined that Paradise can perform a wide range of sedentary work, his
reliance on the Medical-Vocational guidelines was appropriate. (Dkt. No.
13 at 9-10.)
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In making his ultimate disability determination, the ALJ must consider
whether the claimant can do any other, less demanding work existing in the
national economy. See 20 C.F.R. §§ 404.1520(g), 404.1560(c); White v.
Sec’y of Health & Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). To make
such a determination, an ALJ may rely on the Medical-Vocational
Guidelines, referred to as “the grids,” found in 20 C.F.R. pt. 404, subpt. P,
app. 2, as long as the claimant’s age, education, work experience, and
RFC coincide with the criteria of a rule contained in those Guidelines. See
20 C.F.R. § 404.1569; see also Calabrese v. Astrue, 358 F. App’x 274, 275
n.1 (2d Cir. 2009). However, “if a claimant’s nonexertional impairments
‘significantly limit the range of work permitted by h[er] exertional limitations’
then the grids obviously will not accurately determine disability status
because they fail to take into account claimant’s nonexertional
impairments.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (quoting
Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)). In that case,
the ALJ should consult with a VE before making a determination as to
disability. See id.
Under the regulations, “[s]edentary work involves lifting no more than
[ten] pounds at a time and occasionally lifting or carrying articles like docket
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files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). Further, “a
sedentary job is defined as one which involves sitting,” and “periods of
standing or walking should generally total no more than about [two] hours
of an [eight]-hour workday, and sitting should generally total approximately
[six] hours of an [eight]-hour workday.” SSR 83-10, 1983 WL 31251, at *5
(1983). As discussed above, the ALJ properly discounted Paradise’s
subjective complaints of pain and determined that Paradise can sit for six
hours and stand and walk for two hours in a workday, as well as lift and
carry ten pounds occasionally and less than ten pounds frequently. (Tr. at
29-33); see supra Part VI.B. Thus, the ALJ reasonably concluded that
Paradise can perform sedentary work. (Tr. at 34.) That finding obviated
the need to consult with a VE. See 20 C.F.R. pt. 404, subpt. P, app. 2
§ 201.28.
D.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
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Paradise’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
September 3, 2014
Albany, New York

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