Conant v. Commissioner of Social Security

Filing 14

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Conant's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 10/17/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BOBBI LINN CONANT,

Plaintiff,

3:15-cv-500
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of John L. Bardsley
36 Main Street, P.O. Box 166
HSBC Bank Building, Second Floor
Cortland, NY 13045
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
Senior District Judge

JOHN L. BARDSLEY, ESQ.

SERGEI ADEN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Bobbi Linn Conant 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).
(Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Conant’s arguments, the court affirms the
Commissioner’s decision and dismisses the complaint.
II. Background
On February 13, 2012, Conant filed applications for DIB and SSI
under the Social Security Act, alleging disability since February 28, 2011.
(Tr.1 at 88-89, 148-62.) After her applications were denied, (id. at 91-96),
Conant requested a hearing before an Administrative Law Judge (ALJ),
which was held on September 16, 2013, (id. at 97, 42-79). On November
15, 2013, the ALJ issued an unfavorable decision denying the requested
benefits. (Id. at 11-29.) This became the Commissioner’s final
determination upon the Appeals Council’s denial of review. (Id. at 1-6.)

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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

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Conant commenced the present action by filing her complaint on
April 27, 2015 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. 8, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 12.)
III. Contentions
Conant contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 11 at 7-10.)
Specifically, Conant claims that the ALJ erred in: (1) evaluating the severity
of her back and right shoulder impairments; and (2) analyzing her
credibility. (Id.) The Commissioner counters that the appropriate legal
standards were used by the ALJ and her decision is also supported by
substantial evidence. (Dkt. No. 12 at 13-22.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 11 at 4-6; Dkt. No. 12 at 3-12.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under

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42 U.S.C. § 405(g)2 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 Social
Security 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.

Severity Determination
Conant first alleges that the ALJ erred in rendering her severity

determination. (Dkt. No. 11 at 7-8.) Specifically, Conant argues that the
ALJ should have found her back and right shoulder impairments to be
severe under the governing regulations. (Id.) The Commissioner counters
that the ALJ properly considered Conant’s impairments at step two of the
sequential analysis, and, because the ALJ continued past step-two and
considered all of Conant’s symptoms and allegations at the subsequent
steps, any error in evaluating the severity of Conant’s impairments is, at
most, harmless. (Dkt. No. 12 at 13-16.) The court agrees with the
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42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.

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Commissioner.
At step two of the sequential analysis, the ALJ must determine
whether the claimant has a “severe medically determinable physical or
mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). A finding of not
severe is appropriate when an impairment, or combination of those
impairments, “does not significantly limit [the claimant’s] physical or mental
ability to do basic work activities.” Id. § 404.1521(a). Basic work activities
are “the abilities and aptitudes necessary to do most jobs,” including, as
relevant here, “[p]hysical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling.” Id. § 404.1521(b)(1).
“The ‘mere presence of a disease or impairment, or establishing that a
person has been diagnosed or treated for a disease or impairment’ is not,
itself, sufficient to deem a condition severe.” Bergeron v. Astrue, No. 09CV-1219, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting
McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y.
Mar. 27, 2008)). The failure to find an impairment severe may be deemed
harmless error, particularly where the disability analysis continues and the
ALJ later considers the impairment in her residual functional capacity
(RFC) determination. See Tryon v. Astrue, No. 5:10-CV-537, 2012 WL
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398952, at *4 (N.D.N.Y. Feb. 7, 2012); see also Plante v. Astrue, No. 2:11CV-77, 2011 WL 6180049, at *4 (D. Vt. Dec. 13, 2011).
In this case, the ALJ determined that Conant’s lumbar spine
condition and right shoulder pain were not “severe” under the regulations.
(Tr. at 17.) In making this determination, the ALJ clearly explained her
conclusion that the objective medical evidence of record did not support
Conant’s claims with respect to these impairments. (Id. at 17-18.) In
particular, the ALJ noted that diagnostic imaging of Conant’s lumbar spine
was negative and orthopedic surgeon Bradley Wiener diagnosed Conant
with merely a lumbrosacral strain, which was treated with conservative
measures. (Id. at 17.) The ALJ also noted neurologist Khalid Sethi’s
treatment notes which indicated that there was “no evidence of
radiculopathy, cauda equina, or conus symptomatology,” and confirmed
that imaging studies revealed “no evidence of significant neural
compressive pathology.” (Id. at 18.) The ALJ’s recitation of the medical
records with respect to Conant’s back pain is accurate. (Id. at 260-62,
307, 344, 377, 464, 502.) With respect to her right shoulder pain, the ALJ
noted that while Conant reported shoulder degeneration, a rotator cuff tear,
and frequently dislocating her shoulder, the record contains no medical
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documentation of such impairments or occurrences. (Id. at 18.) The ALJ
noted that a 2001 CT scan of Conant’s right shoulder indicated a history of
brachial neuritis,3 (id. at 381), and Conant complained of right shoulder
pain to her treatment provider in March 2007 and February 2010, (id. at
384-91). However, as the ALJ explained, such treatment was long before
Conant’s alleged onset of disability in February 2011, imaging of her right
shoulder in February 2010 was unremarkable, and more recent treatment
records revealed normal motor skills with no evidence of weakness in her
upper extremities. (Id. at 18, 307, 316, 383.) Moreover, Conant worked a
job up until her alleged onset date that required her to lift as much as
seventy-five pounds over her head. (Id. at 18, 51-52.) On that date,
Conant claims she hurt her back at work and became disabled. (Id. at 51,
56.) Because there was no medical evidence of deterioration of any right
shoulder impairment or her ability to use her arm since the alleged date of
disability, and because she was not treated by any specialist for her

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“Brachial neuritis is a term used to describe an inflammation of the brachial plexus
that causes sudden-onset shoulder and arm pain, followed by weakness and/or numbness.”
Peter F. Ullrich, Jr., Brachial Neuritis (Parsonage-Turner Syndrome), http://www.spine-health.
com/conditions/neck-pain/brachial-neuritis-parsonage-turner-syndrome (last updated Oct. 21,
2011). Notably, the 2001 CT scan revealed “findings compatible with a bony Bankart lesion.”
(Tr. at 381.) A Bankart lesion is “a common complication of anterior shoulder dislocation.” Ian
Bickle et al., Bankart Lesion, https://radiopaedia.org/articles/bankart-lesion (last visited Oct.
11, 2015).

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shoulder since that date, the ALJ concluded that this too was not a severe
impairment. (Id. at 18.)
The foregoing analysis of Conant’s back and shoulder impairments is
legally sound and supported by substantial evidence. See Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (defining substantial evidence
as “such relevant evidence as a reasonable mind might accept to support a
conclusion.” (internal quotation marks and citations omitted)); see also
McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is
susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld.”). Moreover, because the ALJ determined that
Conant’s fibromyalgia was severe, she continued the sequential analysis
and analyzed Conant’s RFC. (Tr. at 20-23.) When considering Conant’s
RFC, the ALJ specifically considered Conant’s allegations with respect to
her back and right shoulder, as well as all of the medical evidence of
record. (Id. at 18, 20-23.) As the Commissioner points out, (Dkt. No. 12 at
14), the ALJ’s RFC determination accounts for limitations in Conant’s
functioning due to pain in her back and right shoulder, (Tr. at 20). Because
the ALJ considered these non-severe impairments in reaching her RFC
determination, any error on the part of the ALJ in evaluating their severity
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is, at most, harmless. See Tryon, 2012 WL 398952, at *4 (explaining that
the failure to find an impairment severe may be deemed harmless error,
particularly where the disability analysis continues and the ALJ later
considers the impairment in her RFC determination).
B.

Credibility Determination
Conant also contends that the ALJ erred in making her credibility

determination. (Dkt. No. 11 at 9-10.) According to Conant, the ALJ drew
improper inferences from the evidence of record with respect to: (1) her
use of narcotic pain medication; (2) her reliance on her family for help in
completing the activities of daily living; and (3) her ability to sit for a
prolonged period of time. (Id.) After reviewing the ALJ’s decision and the
administrative transcript, the court disagrees.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” she “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.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
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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 determined that Conant’s impairments could
reasonably be expected to cause her alleged symptoms, but her
statements concerning the intensity, persistence, and limiting effects of the
symptoms were “not fully credible.” (Tr. at 21.) In evaluating Conant’s
credibility, the ALJ noted that the objective medical evidence does not
support Conant’s claims with respect to her back pain, there is no medical
evidence to support her claims with respect to her torn rotator cuff and
frequent shoulder dislocations, and, while she testified to experiencing
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severe migraine headaches that required her to administer an Epipen shot
to herself, (id. at 61), there is no evidence of specialist treatment for
headaches. (Id. at 21.) The ALJ also found that Conant’s “overall work
history does not bolster her credibility.” (Id.) Conant does not challenge
the foregoing conclusions of the ALJ. (Dkt. No. 11 at 9-10.) Instead, she
takes issue with the ALJ’s consideration of her use of opioid pain
medication, arguing that because she was only taking such medication as
prescribed, there is no basis for the ALJ’s conclusion that her testimony
was not reliable. (Id. at 9.)
A review of the ALJ’s decision indicates that, in evaluating her
credibility, the ALJ considered Conant’s history of substance abuse, which
the ALJ concluded there was evidence of both before and after the alleged
onset date. (Tr. at 21, 318, 369, 433, 477.) The ALJ noted that since her
alleged onset date, one of Conant’s treating physicians declined to provide
narcotic medication, and another, physician John Cruz, recommended that
she decrease her narcotic pain medication usage. (Id. at 21, 318, 433.)
While Conant is correct that Dr. Cruz continued to prescribe an opioid
medication through the date of the administrative hearing, (Dkt. No. 11 at
9), the record supports the ALJ’s conclusion that Conant abused drugs
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after the alleged disability date. (Tr. at 318 (a March 2012 treatment record
indicating that, because a drug test was positive for substances that were
not prescribed, physician David Kammerman would not prescribe narcotic
pain medications to Conant).) Thus, this conclusion is supported by
substantial evidence and was a proper consideration in the ALJ’s credibility
assessment. See Netter v. Astrue, 272 F. App’x 54, 55 (2d Cir. 2008)
(holding that a history of substance abuse is a permissible consideration in
evaluating a claimant’s credibility); Arrington v. Astrue, No. 09-CV-870,
2011 WL 3844172, at *13 (W.D.N.Y. Aug. 8, 2011) (same).
Conant also objects to the ALJ’s reliance on an October 2000
treatment record indicating that her family members are “significantly drug
addicted and poorly functional” to discount her testimony that she is only
able to care for a young grandchild who lives with her, with the help of such
family members. (Tr. at 21; Dkt. No. 11 at 9.) Conant argues that the ALJ
legally erred in relying on such evidence because it is stale, and, moreover,
irrelevant to her credibility, because the evidence supports the conclusion
that she needs such family members’ help and cannot afford to obtain
services from a professional housekeeping or childcare service. (Dkt. No.
11 at 9-10.) First, the court notes that June 2008 treatment records
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indicate that Conant’s family continued to suffer from substance abuse and
dysfunction, with Conant explaining that her family visits her against her
wishes because her home is more stable than theirs, and that her mother
and siblings abuse drugs. (Tr. at 476-78.) She stated that her husband
was “fed up with her drug-addicted family.” (Id. at 476.) While this
treatment record predates the alleged onset of Conant’s disability, it is far
more recent than the treatment note of which she complains is stale. (Dkt.
No. 11 at 9.) Ultimately, the court finds the ALJ’s evaluation of Conant’s
credibility on this point to be reasonable. Conant testified to suffering
extreme functional limitations that prevent her from caring for her basic
needs. (Tr. at 59, 62-64.) When questioned by the ALJ as to how she
cares for her four-year-old grandchild who lives with her and her husband,
when her husband works full-time during the day, Conant explained that
her daughters, sister-in-law, brother, and mother come and stay with her
because she “can[not] do it by [her]self.” (Id. at 78-79.) Based on this
testimony, it was reasonable for the ALJ to consider Conant’s prior
statements that her family members suffer from significant drug addiction
and dysfunction. See Netter, 272 F. App’x at 55 (“Ultimately, [i]t is the
function of the [Commissioner], not [the reviewing courts], to resolve
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evidentiary conflicts and to appraise the credibility of witnesses, including
the claimant.” (internal quotation marks and citation omitted)).
Finally, Conant complains that the ALJ impermissibly considered the
ALJ’s own observation that Conant’s “nails were done at the hearing,
indicating that [Conant] either did them herself or had someone do them for
her.” (Tr. at 21.) The ALJ concluded that “this is inconsistent with her
testimony and consistent with an ability to sit for more than the very limited
ability to which she testified, and as required in sedentary work.” (Id.)
Conant argues that the ALJ erred when she failed to inquire of Conant
about her decorated fingernails. (Dkt. No. 11 at 10.) She claims that she
did not sit for a protracted period to decorate her nails, but rather, used
“stick-on nail art that can be purchased in a drug store.” (Id.) Accordingly,
Conant requests the court remand this case to provide her with the
opportunity to testify about her nails on the date of the administrative
hearing. (Id.)
Where an individual attends an administrative hearing conducted by
the ALJ, the ALJ may consider “her own recorded observations of the
individual as part of the overall evaluation of the credibility of the
individual’s statements.” SSR 96-7p, 61 Fed. Reg. at 34,486. Here, it was
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reasonable for the ALJ to consider her observation of Conant’s nails,
considering Conant’s testimony that she cannot sit for more than fifteen to
twenty minutes, has extreme difficulty grasping anything with her right,
dominant hand, and cannot write more than one sentence. (Tr. at 70-72.)
While Conant may have an explanation for her nail art that is consistent
with her allegations, the court concludes that remand is not required on this
basis. The ALJ’s observations of Conant were only one factor in her
thorough discussion of Conant’s credibility, as discussed above. See SSR
96-7p, 61 Fed. Reg. at 34,488 (“In instances in which the adjudicator has
observed the individual, the adjudicator is not free to accept or reject the
individual’s complaints solely on the basis of such personal observations,
but should consider any personal observations in the overall evaluation of
the credibility of the individual’s statements.”). Ultimately, as the ALJ
considered the entire case record, including the objective medical
evidence, Conant’s own statements about her symptoms, statements
provided by her treating and examining physicians, and the ALJ’s own
observations of Conant, her credibility determination was legally sound.
See Arrington, 2011 WL 3844172, at *13; SSR 96-7p, 61 Fed. Reg. at
34,486. Moreover, the ALJ’s conclusion that Conant’s subjective
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complaints were not credible to the extent that they suggested impairment
greater than the ability to perform sedentary work, (Tr. at 20-23), is
supported by substantial evidence. See Bonet ex rel. T.B. v. Colvin, 523 F.
App’x 58, 59 (2d. Cir. 2013) (“[W]hether there is substantial evidence
supporting the appellant’s view is not the question,” instead, the court must
“decide whether substantial evidence supports the ALJ’s decision.”).
C.

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
Conant’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.
October 17, 2016
Albany, New York

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