Panella v. Colvin

Filing 16

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiff's # 12 motion for judgment on the pleadings is DENIED. The Court further ORDERS that Defendant's # 14 motion for judgment on the pleadings is GRANTED. The Court furt her ORDERS that the Commissioner's decision is AFFIRMED and Plaintiff's complaint is DISMISSED. The Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close this case. Signed by Senior Judge Frederick J. Scullin, Jr. on 3/31/2016. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
PAUL PANELLA,
Plaintiff,
v.

3:13-CV-869
(FJS)

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
_______________________________________________
APPEARANCES

OF COUNSEL

LACHMAN & GORTON
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089
Attorneys for Plaintiff

PETER A. GORTON, ESQ.

SOCIAL SECURITY ADMINISTRATION
OFFICE OF REGIONAL
GENERAL COUNSEL – REGION II
26 Federal Plaza – Room 3904
New York, New York 10278
Attorneys for Defendant

DAVID L. BROWN, ESQ.
DAVID B. MYERS, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Paul Panella brought this action pursuant to the Social Security Act, 42 U.S.C.
§§ 405(g) (“Act”), seeking judicial review of a final decision of the Commissioner of Social

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Security (the “Commissioner”), denying his application for benefits. See generally Dkt. Nos. 1,
12. Currently before the Court are the parties’ cross-motions for judgment on the pleadings
under Rule 12(c) of the Federal Rules of Civil Procedure. See Dkt. Nos. 12, 14.

II. PROCEDURAL HISTORY AND BACKGROUND
Plaintiff filed an application for a period of disability and disability insurance benefits
(“DIB”) on May 7, 2010, alleging disability beginning on January 15, 2009. See Administrative
Record (“AR”) at 143-49. The Commissioner denied Plaintiff’s application on July 6, 2010. See
id. at 86-89. Plaintiff timely filed a written request for a hearing, which was held before
Administrative Law Judge F. Patrick Flanagan (“ALJ”). See id. at 24, 91-93 . Attorney Peter
Gorton represented Plaintiff at the hearing. See id. at 24. After the hearing, the ALJ
supplemented the record with interrogatory responses from non-examining medical expert, Dr.
Plotz. See id. at 453-61. Plaintiff then requested, and appeared at, a supplemental hearing on
November 17, 2011, where Plaintiff’s attorney cross-examined Dr. Plotz. See id. at 49-83.
On January 18, 2012, the ALJ issued a written decision in which he made the following
findings “[a]fter careful consideration of all the evidence . . . .”
1) Plaintiff “meets the insured status requirements of the Social Security Act
through December 31, 2013.”
2) Plaintiff had not “engaged in substantial gainful activity since January 15,
2009, the alleged onset date.”
3) Plaintiff “has had the following severe impairments: human
immunodeficiency virus (HIV) and hepatitis C.”
4) Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1.”
5) “After careful consideration of the entire record, I find that [Plaintiff] has the
residual functional capacity to perform the full range of light work as defined
in 20 CFR 404.1567(b).”

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6) Plaintiff “is capable of performing past relevant work as a metal lab quality
control tester. This work does not require the performance of work related
activities precluded by [Plaintiff’s] residual functional capacity.”
7) Plaintiff “has not been under a disability, as defined in the Social Security
Act, from January 15, 2009, through the date of this decision.”
See AR at 10-16 (citations omitted).
The ALJ’s decision became the Commissioner’s final decision on June 26, 2013, when
the Appeals Council of the Social Security Administration denied Plaintiff’s request for review.
See AR at 1-4. Plaintiff then commenced this action on July 23, 2013, filing a supporting brief
on March 17, 2014. See Dkt Nos. 1, 12. Defendant filed a response brief on May 1, 2014. See
Dkt. No. 14.
In support of his motion, Plaintiff advances the following arguments. First, Plaintiff
argues that there was not substantial evidence to support the ALJ’s finding that his impairments
did not meet or medically equal the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1,
§ 14.08(H). Second, Plaintiff further argues that the ALJ erroneously failed to address certain
testimony of lay third parties and that he improperly weighed medical source opinions and
Plaintiff’s credibility. As a result of these legal errors, Plaintiff argues, there was not substantial
evidence to support the ALJ’s finding with respect to his residual functional capacity (“RFC”).
See generally Dkt. No. 12, Pl.’s Br.

III. DISCUSSION
A. Standard of review
Absent legal error, a court will uphold the Commissioner’s final determination if there is
substantial evidence to support it. See 42 U.S.C. § 405(g). The Supreme Court has defined
substantial evidence to mean “‘more than a mere scintilla’” of evidence and “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson
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v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). Accordingly, a reviewing court “’may
not substitute [its] own judgment for that of the [Commissioner], even if [it] might justifiably
have reached a different result upon a de novo review.’” Cohen v. Comm’r of Soc. Sec., __ F.
App’x __, 2016 WL 1055351, *1 (2d Cir. Mar. 17, 2016) (quoting Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
To be eligible for benefits, a claimant must show that he suffers from a disability within
the meaning of the Act. The Act defines “disability” as an inability to engage in substantial
gainful activity (“SGA”) by reason of a medically determinable physical or mental impairment
that can be expected to cause death or last for twelve consecutive months. See 42 U.S.C.
§ 1382c(a)(3)(A). To determine if a claimant has sustained a disability within the meaning of the
Act, the ALJ follows a five-step process:
1) The ALJ first determines whether the claimant is engaged in SGA.
See 20 C.F.R. §§ 416.920(b), 416.972. If so, the claimant is not
disabled. See 20 C.F.R. § 416.920(b).
2) If the claimant is not engaged in SGA, the ALJ determines if the
claimant has a severe impairment or combination of impairments. See
20 C.F.R. § 416.920(c). If not, the claimant is not disabled. See id.
3) If the claimant has a severe impairment, the ALJ determines if the
impairment meets or equals an impairment found in the appendix to
the regulations (the “Listings”). If so, the claimant is disabled. See
20 C.F.R. § 416.920(d).
4) If the impairment does not meet the requirements of the Listings,
the ALJ determines if the claimant can do his past relevant work. See
20 C.F.R. § 416.920(e), (f). If so, he is not disabled. See 20 C.F.R.
§ 416.920(f).
5) If the claimant cannot perform his past relevant work, the ALJ
determines if he can perform other work, in light of his RFC, age,
education, and experience. See 20 C.F.R. § 416.920(f), (g). If so,
then he is not disabled. See 20 C.F.R. § 416.920(g). A claimant is
only entitled to receive benefits if he cannot perform any
alternative gainful activity. See id.
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For this test, the burden of proof is on the claimant for the first four steps and on the
Commissioner for the fifth step, if the analysis proceeds that far. See Balsamo v. Chater, 142
F.3d 75, 80 (2d Cir. 1998) (quotation omitted).
Between steps three and four of the disability analysis, the ALJ must determine the
claimant’s residual functioning capacity (“RFC”), which is defined as “the most you can still do
[in a work setting] despite your limitations.” 20 C.F.R. § 416.945(a)(1); see also 20 C.F.R.
§ 416.920(e). The RFC analysis considers “all of your medically determinable impairments of
which we are aware,” even if they are not severe. 20 C.F.R. § 416.945(a)(2). The ALJ is to
consider “all of the relevant medical and other evidence” in assessing RFC. 20 C.F.R.
§ 416.945(a)(3).

B. ALJ’s step-three finding
Listing 14.08 describes human immunodeficiency virus (“HIV”). In order to meet this
listing, a claimant must show “documentation as described in [Listing] 14.00F and one of the
following . . . .” Listing 14.08. In this case, there is no dispute that Plaintiff produced sufficient
documentation to establish his HIV infection. Thus, Plaintiff argues that he meets Listing
14.08(H), which requires a claimant to prove that he has
HIV wasting syndrome, characterized by involuntary weight loss of 10 percent or
more of baseline (computed based on pounds, kilograms, or body mass index
(BMI) or other significant involuntary weight loss as described in [Listing]
14.00F5, and in the absence of a concurrent illness that could explain the findings.
With either:
1. Chronic diarrhea with two or more loose stools daily lasting for 1 month or
longer; or

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2. Chronic weakness and documented fever greater than 38˚C (100.4˚F) for the
majority of 1 month or longer.
Listing 14.08(H). “For purposes of [Listing] 14.08H, an involuntary weight loss of at least 10
percent of baseline is always considered ‘significant.’ Loss of less than 10 percent may or may
not be significant, depending on the individual's baseline weight and body habitus.” Listing
14.00(F)(5). It is the claimant’s burden to show that his impairment or combination of
impairments meets “’all of the specified medical criteria’” in the Listing. Lamond v. Astrue, 440
F. App’x 17, 20 (2d Cir. 2011) (quoting Sullivan v. Zebly, 493 U.S. 521, 530, 110 S. Ct. 885, 107
L. Ed. 2d 967 (1990) (emphasis in original)); see also 20 C.F.R. § 404.1525(c)(3).
In this case, the ALJ found that “[t]he clinical and laboratory studies do not approach any
of the requisite levels of any of the Listing of Impairments.” See AR at 13. Although Plaintiff
argues that this amounts to a “wholly conclusory,” and therefore erroneous, determination, the
record supports the ALJ’s finding. Plaintiff’s medical records show that he did lose
approximately 10 percent of his body weight from 2004 to 2010, dropping from a high of 160
pounds on December 2, 2004, to a low of 142 pounds on April 22, 2010. See AR at 286, 489.
Additionally, however, the ALJ noted that Plaintiff gained weight after he stopped drinking—
from 142 pounds on April 22, 2010, to 150 pounds on April 11, 2011, to 155 pounds on August
11, 2011. See id. at 14 (citing AR at 286, 466, 475).
Although Plaintiff arguably met the weight-loss criterion of Listing 14.08(H), the Court is
satisfied, after reviewing the record, that Plaintiff did not meet either one of the subsections that
is further required in order to meet Listing 14.08(H). Plaintiff reported in November of 2011 that
he had diarrhea “nonstop on a daily basis” for “the last couple of months.” See AR at 266.
However, as the ALJ noted, no medical source documented diarrhea to the extent described in
the listing. Furthermore, because the Court finds that the ALJ properly found Plaintiff’s
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subjective statements regarding his symptoms to be less than fully credible, see infra Part. III.D.,
the Court finds Plaintiff’s reliance on his self-report in support of this argument to be
unpersuasive.
Additionally, although the evidence arguably supports a finding that Plaintiff suffered
from chronic weakness as required by Listing 14.08(H), the record does not contain
documentation of a fever greater than 38˚C or 100.4˚F lasting for the majority of 1 month or
longer. For these reasons, the Court finds that Plaintiff failed to carry his burden to show that he
met “’all of the specified medical criteria’” in the Listing. Lamond, 440 F. App’x at 20
(quotation omitted).
Thus, the Court finds that any error the ALJ made by failing to note Plaintiff’s weight
loss was harmless. See Karpova v. Snow, 497 F.3d 262, 269 (2d Cir. 2007) (stating that remand
is required “’only where there is a significant chance that but for the error, the agency might have
reached a different result’” (quotation omitted)). Accordingly, the Court finds that that
substantial evidence supports the ALJ’s finding with respect to step three of the disability
analysis. See Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (instructing
that “’ALJ’s failure to cite specific evidence does not indicate that such evidence was not
considered’” (quotation omitted)).

C. ALJ’s weighing of medical source opinions
During the disability analysis, the ALJ “will always consider the medical opinions ” in
the record together with other relevant evidence. 20 C.F.R. § 404.1527(b). Medical opinions are
“statements from physicians and psychologists or other acceptable medical sources that reflect
judgments” about a claimant’s impairments and their effects. 20 C.F.R. § 404.1527(a)(2).

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Acceptable medical sources include licensed physicians, licensed or certified psychologists,
licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. See 20
C.F.R. § 404.1513(a).
Generally, the ALJ will consider the following factors in deciding what weight to afford
the opinion of an acceptable medical source: whether the source examined the claimant; how
well the source explains his or her opinion with relevant evidence; how consistent the opinion is
with the record as a whole; whether the source is a specialist in the area of his or her opinion; and
other factors tending to support or contradict the opinion. See 20 C.F.R. § 404.1527(c)(1)-(6).
These factors also apply where, as here, the ALJ asks for and considers an opinion from a
medical expert with respect to whether the claimant’s impairment or combination of impairments
meets or medically equals a listed impairment. See 20 C.F.R. § 404.1527(e)(2)(iii).
Additionally, the opinions of non-examining sources may “override treating sources’ opinions,
provided they are supported by evidence in the record.” Schisler v. Sullivan, 3 F.3d 563, 568 (2d
Cir. 1993) (citations omitted).
The Commissioner has also instructed that an ALJ may use evidence from medical
sources other than “acceptable medical sources,” including nurse practitioners, to provide insight
into the severity of impairments and their limiting effects. See Social Security Ruling (“SSR”)
06-03p, 2006 WL 2329939, *2 (Aug. 9, 2006). Such opinions are “important and should be
evaluated on key issues such as impairment severity and functional effects, along with the other
relevant evidence in the file.” Id. at *3. Nonetheless, “[t]he fact that a medical opinion is from
an ‘acceptable medical source’ is a factor that may justify giving that opinion greater weight than
an opinion from a medical source who is not . . . .” Id. at *5.

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In this case, Plaintiff principally argues that the ALJ erred in his weighing of the opinions
of Dr. Plotz and Nurse Practicioner (“NP”) Karp. In particular, Plaintiff argues that NP Karp’s
opinion was due more weight because she was his regular care provider, whereas, he argues, Dr.
Plotz’s opinion was due less weight because of his non-examining status. See Dkt. No. 12, Pl.’s
Br., at 15-19. With respect to NP Karp, the ALJ afforded her opinion “very little weight,” noting
that she was not an acceptable medical source. See AR at 15. Instead, the ALJ afforded “much
more weight” to Dr. Plotz’s opinion. See id. In doing so, the ALJ noted that Dr. Plotz is a board
certified internist. See id. Additionally, in affording greater weight to one opinion over the
other, the ALJ noted that he considered the treatment notes, which suggests that he considered
each opinion’s consistency with the record as a whole. See id. Indeed, the ALJ noted that “there
is no ‘acceptable source’ opinion in the record to suggest disability.” See id. Thus, the Court
finds that the ALJ applied the appropriate legal standards in weighing these opinions. See 20
C.F.R. § 404.1527(c); SSR 06-03p, 2006 WL 2329939, at *5. For this reason, the Court declines
to disturb the Commissioner’s weighing of the conflicting evidence in this case. See Schaal v.
Apfel, 134 F.3d 496, 504 (2d Cir. 1998). 1

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Furthermore, to the extent that Plaintiff argues that the ALJ erred by not expressly asserting in
his written decision how much weight he afforded the opinions of medical consultant, Dr.
Kamin, and psychiatric consultant, Dr. Noia, the Court finds these arguments to be without
merit. Although Plaintiff is correct that the ALJ did not expressly discuss the weight he afforded
these opinions, his written decision did discuss each opinion. See AR at 15. In particular, the
ALJ noted Dr. Noia’s opinion that Plaintiff could perform some simple and complex tasks, could
maintain attention and concentration, maintain a schedule and learn new tasks. See id. He
further noted Dr. Kamin’s opinion that Plaintiff could perform the full range of simple tasks.
The ALJ then concluded that Plaintiff’s depression was non-severe. In this situation the Court
can “’glean the ALJ’s rationale’” where he clearly was following the opinions of these two
medical sources. See Cichocki v. Astrue, No. 11-CV-755S, 2012 WL 3096428, *7 (W.D.N.Y.
July 30, 2012) (quotation omitted).
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D. ALJ’s credibility assessment
“’It is the function of the [Commissioner], not [a reviewing court], to resolve evidentiary
conflicts and to appraise the credibility of witnesses, including the claimant.’” Aponte v. Sec’y,
Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quotation omitted). When a
claimant makes subjective allegations of symptoms limiting his ability to function, the
regulations provide that
[y]our symptoms, such as pain . . . will not be found to affect your ability to do
basic work activities unless medical signs or laboratory findings show that a
medically determinable impairment(s) is present . . . which results from
anatomical, physiological, or psychological abnormalities and which could
reasonably be expected to produce the pain or other symptoms alleged.
20 C.F.R. § 416.929(b); see also 20 C.F.R. § 404.1529(b). Accordingly, the Social Security
Administration has adopted a two-step standard for assessing a claimant’s credibility. See Social
Security Ruling (“SSR”) 96-7p, 1996 WL 374186, *2 (July 2, 1996); Meadors v. Astrue, 370 F.
App’x 179, 183 (2d Cir. 2010).
First, the ALJ must determine whether the claimant suffers from a
“medically determinable impairment[ ] that could reasonably be expected
to produce” the pain alleged. 20 C.F.R. § 404.1529(c)(1); . . . Second, the
ALJ must evaluate the intensity and persistence of those symptoms
considering all of the available evidence; and, to the extent that the
claimant's pain contentions are not substantiated by the objective medical
evidence, the ALJ must engage in a credibility inquiry.
Meadors, 370 F. App’x at 183 (citations and footnote omitted).
In this case, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms. See AR at 14. He then found that
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of those
symptoms were not fully credible. See id. He supported this finding by noting that Plaintiff was
solely responsible for the care of his four-month-old granddaughter for 16 hours per day, an
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activity which can be “demanding both physically and emotionally.” See id. In addition, the
ALJ noted that Plaintiff received state unemployment benefits for 99 weeks and that he testified
that he informed the unemployment board that he was ready, willing, and able to work when in
fact he was not. See id. at 15. The ALJ further pointed to injuries from a motor bike accident in
June 2011 as inconsistent with the extensive limitations about which Plaintiff testified. See id.
Accordingly, the Court finds that the ALJ sufficiently analyzed Plaintiff’s subjective allegations
to the extent that they were not substantiated by objective medical evidence. 2 See Meadors, 370
F. App’x at 183.
In summary, to the extent that Plaintiff points to evidence in the Administrative Record
that reasonably might support a different conclusion in his favor, “whether there is substantial
evidence supporting the appellant’s view is not the question” on appeal. Bonet ex rel. T.B. v.
Colvin, 523 F. App’x 58, 59 (2d Cir. 2013). Accordingly, the Court finds that the ALJ applied
the appropriate legal standards with respect to opinion evidence and credibility and further that
there is substantial evidence supporting his finding with respect to step three of the disability
analysis and Plaintiff’s RFC. 3 See Richardson, 402 U.S. at 401.

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Moreover, to the extent that Plaintiff argues that the ALJ erred by not discussing in his written
decision the testimony of Plaintiff’s family members and others concerning his physical
limitations, the Court finds this argument to be without merit. See Bonet ex rel. T.B. v. Colvin,
523 F. App’x 58, 59 (2d Cir. 2013) (instructing that ALJ need not discuss every piece of
evidence submitted).
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To the extent that Plaintiff argues that there was not substantial evidence to support the ALJ’s
RFC analysis, the Court has considered Plaintiff’s arguments and finds them to be without merit.
For example, Plaintiff argues that Dr. Plotz was of the opinion that Plaintiff’s record indicated
impairment in concentration, persistence, and pace, and that the ALJ erred by failing to credit
such opinion. See Dkt. No. 12, Pl.’s Br., at 21. At the supplemental hearing, Dr. Plotz testified
that Plaintiff had “many of these things” in response to a question by Plaintiff’s attorney listing
some thirteen symptoms. However, de did not specify further. See AR at 63. This is precisely
the type of difference in interpreting the evidence which is insufficient to compel this Court to
overturn the ALJ’s decision. See Bonet, 523 F. App’x at 59.
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IV. CONCLUSION
Having reviewed the entire record in this matter, the parties’ submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff’s motion for judgment on the pleadings, see Dkt. No 12, is
DENIED; and the Court further
ORDERS that Defendant’s motion for judgment on the pleadings, see Dkt. No. 14, is
GRANTED; and the Court further
ORDERS that the Commissioner’s decision is AFFIRMED and Plaintiff’s complaint is
DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and
close this case.
IT IS SO ORDERED.

Dated: March 31, 2016
Syracuse, New York

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