Paice v. Astrue

Filing 17

MEMORANDUM-DECISION & ORDER: It is hereby ordered that the Commissioner's Motion for Judgment on the Pleadings is GRANTED and the decision denying plaintiff disability benefits is AFFIRMED. Therefore the # 1 Complaint filed by Mariane B. Paice is DISMISSED in its entirety. The Clerk shall enter judgment and close this case. Signed by Judge David N. Hurd on 7/18/2013. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------MARIANE B. PAICE,
Plaintiff,
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5:11-CV-760

CAROLYN W. COLVIN, Acting Commissioner of
Social Security,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

HOWARD D. OLINSKY, ESQ.
Attorney for Plaintiff
300 S. State Street, Suite 520
Syracuse, NY 13202
OFFICE OF REGIONAL GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION REGION II
Attorneys for Defendant
26 Federal Plaza Room 3904
New York, NY 10278

REBECCA H. ESTELLE, ESQ.
KAREN G. FISZER, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
This matter is brought pursuant to §§ 205(g) of the Social Security Act, as amended,
42 U.S.C. §§ 405(g), to review a final determination of the Commissioner of Social Security
denying the plaintiff's claim for Social Security Disability benefits. The parties have filed their
briefs, including the Administrative Record on Appeal, and the matter has been submitted for
decision without oral argument.

II. BACKGROUND
Plaintiff Mariane B. Paice ("plaintiff" or "Paice") filed an application for social security
disability benefits on May 4, 2005, claiming a period of disability beginning on October 22,
2002. Her claims were denied on March 26, 2007, after a hearing before an Administrative
Law Judge ("ALJ"). Plaintiff appealed the ALJ's decision, and the Appeals Council declined
further review. Paice filed an appeal, and the court remanded the matter for further
administrative action pursuant to sentence four of 42 U.S.C. § 405(g). A new hearing was
held on October 29, 2009, adjourned, and continued on May 7, 2010. The ALJ denied
plaintiff's claim on May 21, 2010. On May 4, 2011, the Appeals Council denied review.
Thus, the ALJ's decision became the final decision of the Commissioner.
III. STANDARDS
A. Standard of Review
The scope of a court’s review of the Commissioner's final decision is limited to
determinating whether the decision is supported by substantial evidence and the correct legal
standards were applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam)
(citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)); Martone v. Apfel, 70 F. Supp.
2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)).
"Substantial evidence means 'more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566
F.3d at 305 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217
(1938)). "To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both
sides, because an analysis of the substantiality of the evidence must also include that which
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detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464 (1951)). If the
Commissioner's disability determination is supported by substantial evidence, that
determination is conclusive. Id.
However, "where there is a reasonable basis for doubting whether the Commissioner
applied the appropriate legal standards," the decision should not be affirmed even though the
ultimate conclusion reached is arguably supported by substantial evidence. Martone, 70 F.
Supp. 2d at 148 (citing Johnson, 817 F.2d at 986).
A reviewing court may enter "a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g); see Martone, 70 F. Supp. 2d at 148. "Remand is
appropriate where there are gaps in the record or further development of the evidence is
needed," such as where new, material evidence has become available. 42 U.S.C. § 405(g);
Martone, 70 F. Supp. 2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). A
remand for rehearing directing the taking of additional evidence is warranted only if it is
shown that there is new, material evidence "'and that there is good cause for the failure to
incorporate such evidence into the record'" at the administrative hearing. Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 643-44 (2d Cir. 1983) (quoting 42 U.S.C. § 405(g), as
amended in 1980)). Remand may also be appropriate if the Commissioner "misapplies the
law or failed to provide a fair hearing." Id. at 644. However, where the underlying
administrative decision is not supported by substantial evidence, reversal is appropriate
because there would be no useful purpose in remanding the matter for further proceedings.
Id. (reversing and remanding solely for calculation of benefits, subject to determination by the
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district court of any motion by the agency to remand to consider new evidence); Parker, 626
F.2d at 235 (reversing and remanding solely for calculation and payment of benefits);
Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992) (same); Williams,
859 F.2d at 261 (same).
B. Disability Determination—The Five Step Evaluation Process
The Social Security Act defines "disability" to include the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). In
addition, the Act requires that a claimant’s
physical or mental impairment or impairments [must be] of such severity that he
is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
Id. § 423(d)(2)(A).
The Administrative Law Judge ("ALJ") must follow a five step evaluative process in
determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. In the
first step the ALJ must determine whether the claimant is engaging in substantial gainful
activity. If the claimant is engaging in substantial gainful activity he is not disabled and he is
not entitled to benefits. Id. §§ 404.1520(b), 416.920(b).
If the claimant is not engaged in substantial gainful employment, then step two
requires the ALJ to determine whether the claimant has a severe impairment or combination
of impairments which significantly restricts his or her physical or mental ability to perform

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basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from a
severe impairment, then step three requires that the ALJ determine whether the impairment
meets or equals an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d),
416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant is "presumptively
disabled." Martone, 70 F. Supp. 2d at 149 (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d
Cir. 1984)); 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not presumptively disabled, step four requires the ALJ to assess
whether the claimant's residual functional capacity ("RFC") precludes the performance of his
or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
The burden of proof with regard to the first four steps is on the claimant. Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996); Ferraris, 728 F.2d at 584.
If it is determined that claimant cannot perform past relevant work, the burden shifts to
the agency for the fifth and final step. Perez, 77 F.3d at 46. This step requires the agency
to examine whether the claimant can do any type of work. 20 C.F.R. §§ 404.1520(g),
416.920(g). The regulations provide that "factors such as a claimant's age, education, and
previous work experience" should be evaluated to determine whether a claimant has the
residual functional capacity to perform work in any of five categories of jobs: very heavy,
heavy, medium, light, and sedentary." Perez, 77 F.3d at 46 (citing 20 C.F.R. § 404, Subpt.
P, App. 2). "[T]he Commissioner need only show that there is work in the national economy
that the claimant can do; he need not provide additional evidence of the claimant's residual
functional capacity." Poupore, 566 F.3d at 306.
A claimant may seek review of an adverse decision by the ALJ from the Appeals
Council. Perez, 77 F.3d at 44. If review is granted, the decision of the Appeals Council is
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the final decision of the Commissioner. Id. If review is denied, then the final decision is that
of the ALJ. Id. The final decision is judicially reviewable pursuant to 42 U.S.C. § 405(g).
IV. DISCUSSION
Paice first argues that the ALJ erred at Step 2 of his analysis in not finding that her
Chronic Obstructive Pulmonary Disease ("COPD") and depression were severe impairments.
Second, she contends that the ALJ made a legal error in determining her RFC and therefore
the RFC finding was not supported by substantial evidence. Third, according to plaintiff, the
ALJ erred in assessing her credibility. Finally, she argues that these errors at Step 2 resulted
in an incomplete hypothetical being given to the Vocational Expert ("VE") at Step 5.
A. Severity of COPD and Depression
"An impairment or combination of impairments is not severe if it does not significantly
limit one's physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a).
Basic work activities include "the abilities and aptitudes necessary to do most jobs," such as,
inter alia, walking, lifting, understanding and following simple instructions, using judgment,
responding appropriately to other people and situations at work, and handling changes in the
work setting. Id. § 404.1521(b).
1. COPD
Plaintiff takes issue with the ALJ's statement that "there is insufficient documentation
to show that" her COPD was a severe impairment. In support of her argument, Paice points
to several places in the record purportedly documenting her COPD. On May 9, 2002, Dr.
Bruce Silverstein, plaintiff's treating physician, diagnosed her with COPD after observing
bilateral wheezing. R. at 129–30. However, there is nothing in this progress note that
indicates any resulting limitation. See id. The Oswego Hospital emergency room ("ER")
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record from February 5, 2008, notes that she was "wheezing throughout." R. at 464. Again,
nothing in the ER notes indicates any limitation resulting from her wheezing. See id. at
454–76. Further, plaintiff fails to point out that the primary reason for the February 2008 ER
visit was heart palpitations, resulting in a diagnosis of supraventricular tachycardia. Id. at
456–57. The record also reflects that Paice continued to smoke 1-1/2 packs of cigarettes per
day, consistent with the indication of "asthma exacerbation" diagnosis. See id. at 456–58;
see also id. at 121 (December 10, 2002: asthmatic bronchitis; smokes 1-1/2 packs per day);
166 (October 17, 2005: cough, sinus pressure, continues to smoke); 218 (November 3,
2004: asthma attack, directed to quit smoking); (May 22, 2006: history of chronic sinusitis,
smokes 1-1/2 packs per day). Finally, regarding the ER visit of February 5, 2008, it was
recommended that plaintiff remain in the hospital overnight for observation, but she refused.
Id. at 457.
According to Paice, Dr. Fuleihan diagnosed her with shortness of breath associated
with COPD. Pl.'s Mem. at 12. Dr. Fuleihan did note the impression that plaintiff had
shortness of breath with effort, typically walking. Id. at 510. He also noted her obesity and
counseled her about the overall effects on her health, the importance of exercise, and the
need to reduce her weight. Id. He referred her to a dietitian, id., but there is no indication in
the record that she followed up with that referral. Further, on physical examination he found
her lungs to be clear, respirations even, and breathing not labored. Id. at 509. Dr. Fuleihan
did not indicate that Paice had any limitations due to her COPD. Similarly, the few other
portions of the record to which she points in support of COPD being a severe impairment,
while noting her wheezing or asthma exacerbation, do not opine that she is restricted in any
way due to COPD.
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Plaintiff cites Dr. Falkove's opinion that she has environmental restrictions due to
asthma and COPD. Id. at 713. Dr. Falkove reviewed plaintiff's records and completed a
Medical Interrogatory on March 9, 2010, at the request of the Social Security Administration.
As plaintiff points out, he noted environmental restrictions due to asthma and COPD as well
as lifting/carrying restrictions. Id. However, he did not opine as to what the restrictions
should be. See id. at 711–14. Additionally, in a Medical Source Statement dated August 27,
2009, Paice's treating physician Dr. Silverstein opined that she could tolerate exposure to
dust, odors, fumes, and pulmonary irritants frequently Id. at 545.
The ALJ's finding that plaintiff's COPD was not a severe impairment is supported by
substantial evidence.
2. Depression
Paice also contends that the ALJ should have found her depression to be a severe
impairment. She argues that the ALJ gave too little weight to her treating physician Dr.
Silverstein, while giving too much weight to the consultative psychiatrist Dr. Kevin Duffy. Dr.
Silverstein diagnosed plaintiff with depression on November 19, 2003, and gave her
medication. Id. at 115. However, at a pre-operative physical on March 30, 2004, she was no
longer taking the medication and was feeling well. Id. at 199. Dr. Silverstein found normal
psychological orientation. Id. On May 9, 2005, after her alleged onset date of October 22,
2002, and her last insured date of December 31, 2004, she again complained of depression
and anxiety for several months (not years). Id. at 103. Dr. Silverstein again prescribed
medication. By October 17, 2005, she was no longer taking the medication for depression.
See id. at 166. None of Dr. Silverstein's progress notes support his opinion that plaintiff
essentially could do no work because of mental limitations. Id. at 180–81; see id. at
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100–188,548–85. Thus, the ALJ properly discounted Dr. Silverstein's opinion as to her
mental limitation.
Further, Dr. Silverstein is a family doctor, whereas Dr. Duffy is a psychiatrist. Dr. Duffy
found that Paice had a depressive disorder but that it would not limit her ability to work. Id. at
435–42. Notably there is no other record from any counselor, psychologist, or psychiatrist,
indicating plaintiff's complete failure to seek treatment for her alleged depression other than
on occasion to request anti-depressants from her family doctor. The ALJ properly found that
plaintiff's depression was not a severe impairment.
B. RFC
Paice argues that the ALJ erred in giving great weight to Dr. Falkove, significant
weight to Dr. Sirotenko, and little weight to Dr. Silverstein. She further argues that the ALJ
did not follow the proper legal standard in that he did not give Dr. Silverstein controlling
weight. Whether Dr. Silverstein's opinions should have been given controlling weight would
affect plaintiff's other arguments; therefore, it is addressed first.
1. Controlling weight to treating physician's opinion
Where "a treating source's opinion of 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" the record, it will be
given controlling weight. 20 C.F.R. § 404.1527(c)(2).
In a Medical Source Statement dated November 28, 2006, Dr. Silverstein opined that
plaintiff could only sit or stand 10–15 minutes at one time, that she must walk every 15
minutes for 5 minutes, and she must be able to shift positions at will. R. at 178. He opined
that she could rarely lift less than ten pounds and never lift more than ten pounds. Id.
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According to Dr. Silverstein, Paice could rarely look up or down, turn head right or left, and
hold head in a static position and she could never twist, stoop, crouch/squat, climb ladders,
and climb stairs. Id. at 179. His progress notes indicate low back and joint pain but in no
way reflect the severity of restrictions the pain would cause, or even the level of pain (such
as on a scale of 1 to 10) from which plaintiff was suffering. See, e.g., id. at 135, 119, 108.
Many of the progress notes do not even mention low back pain or musculoskeletal findings.
See, e.g., id. at 131–32, 129–30, 126, 123–24, 117, 115. Thus, Dr. Silverstein's opinion as
to Paice's exertional limitations was inconsistent with his treatment notes.
Moreover, Paice's own testimony about her daily activities was inconsistent with Dr.
Silverstein's opinion. She testified that she puts laundry in the washer, has help with
transferring it to the dryer, then folds the clothes once they are dry. Id. at 744. She does
dishes two or three times a week, and vacuums once a week. Id. She shares meal
preparation with her brother. Id. If she does weeding in the garden, she sits on the ground
and scoots. Id. She drives herself to doctors, the grocery store, and the bank, averaging
about fifty to seventy-five mile per week. Id. at 745. She takes care of her own personal
hygiene. Id. Paice testified that she could lift and carry ten or fifteen pounds occasionally.
Id. at 746.
Additionally, other evidence in the record is inconsistent with Dr. Silverstein's opinion.
For example, Dr. Aziz, a neurology consultant, found on May 22, 2006, that plaintiff had "[n]o
significant back pain, joint pain, joint swelling, stiffness or limited range of motion" and full
range of motion of the neck. Id. at 232. On August 15, 2006, he observed that Paice had
"[n]o significant back pain, joint pain, joint swelling, stiffness or limited range of motion". Id.
at 229. Dr. George Sirotenko performed an orthopedic consultative examination on July 31,
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2009. He found full flexion and extension of the cervical spine as well as full lateral flexion
bilaterally and full rotatory movement bilaterally. Id. at 445. He noted no neck pain or
spasm. Id. As for the lumbar spine, he noted some restrictions in flexion, extension, and
rotation. Id. However, Dr. Sirotenko reflected those restrictions in his opinion as to plaintiff's
physical ability to do work-related activities, such as the ability to continuously lift and carry
up to ten pounds, but to only frequently lift and carry eleven to twenty pounds. Id. at 447.
Dr. Silverstein's opinion of the nature and severity of plaintiff's impairment, and the
extent to which it limited her ability to perform work, was inconsistent with the other
substantial evidence in the record. Accordingly, the ALJ followed the correct legal standard
in determining that the treating physician's opinion should not be given controlling weight.
2. Weight given to medical sources
Where the treating physician's opinion is not given controlling weight, the weight it and
the opinions of the other medical sources are given is determined by consideration of the
following factors: length of treatment relationship; frequency of examination; nature and
extent of the treatment relationship; supportability, especially by medical signs and laboratory
findings; consistency with the record as a whole; specialization; and other factors pointed out
by the plaintiff. 20 C.F.R. § 404.1527(c). However, where the treating physician's opinion is
not supported "'by medically acceptable clinical and laboratory diagnostic techniques and is []
inconsistent with the other substantial evidence in [the] case record,'" it is not entitled to
significant weight. Poupore, 566 F.3d at 307 (quoting 20 C.F.R. § 404.1527(d)(2)).
As discussed above, Dr. Silverstein's opinion was inconsistent with other substantial
evidence in the record. Therefore, his opinion is not entitled to significant weight.

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Plaintiff argues that the ALJ gave improper weight to Dr. Falkove and Dr. Sirotenko.
The ALJ gave great weight to Dr. Falkove and considerable weight to the consultative
examiners, one of whom was Dr. Sirotenko. Dr. Falkove did not examine plaintiff, but he
reviewed all of her medical records on March 9, 2010, before giving his opinion. See R. at
211-14. Further, his opinion was consistent with the record as a whole, including the
progress notes (although not the medical source statements) of treating physician Dr.
Silverstein. Therefore, the ALJ did not err in giving Dr. Falkove's opinion great weight.
Dr. Sirotenko performed a consultative orthopedic examination on July 31, 2009. Id.
at 443–53. Upon physical examination, Dr. Sirotenko found full flexion, extension, and lateral
flexion of plaintiff's neck. Id. at 445. He found some limited flexion and extension of her
thoracic and lumbar spine, as well as some joint tenderness. Id. His medical source
statement of "mild limitations regarding repetitive forward flexion, extension and rotation on a
repetitive basis" and "avoid lifting objects greater than a moderate degree of weight on an
intermittent basis over her head to prevent axial load" were well supported by his findings on
examination, as well as with the record as a whole. It was not error to give his opinion
considerable weight.
Dr. Silverstein had the longest treating relationship with Paice, from 2002 through
2009. Other than emergent care, the other physicians who treated her were referred by him,
and the treatment relationship was short. See, e.g., id. at 229–36 (consulting neurologist Dr.
Aziz, for dizziness, from May to August 2006). Plaintiff argues that Dr. Silverstein's opinion
should have been given more weight; however, as determined above his opinions given on
the medical source statements are not entitled to controlling, or even significant, weight.
Given the lack of any treating specialists or any other treating sources, and Paice's failure to
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point to any source other than Dr. Silverstein whose opinion should have been weighed more
heavily than Drs. Falkove and Sirtenko, the ALJ properly weighed the opinions of the medical
sources of record according to the factors set forth in 20 C.F.R. § 404.1527(c).
C. Assessment of Plaintiff's Credibility
Paice argues that the ALJ applied an inappropriate legal standard in assessing her
credibility because of his statement that her "statements concerning the intensity, persistence
and limiting effects of her symptoms 'are only partially credible to the extent they are
inconsistent with the above residual functional capacity assessment.'" Pl.'s Mem. at 21
(quoting R. at 308, adding emphasis). According to her, the proper legal standard is to
consider the entire record. It is clear from the ALJ's decision that he applied the proper legal
standard and considered the entire record. He stated that he considered all of Paice's
symptoms and the other evidence. R. at 305. He reiterated what she claimed as her
restrictions and the inconsistency both internally, that is, between her claims of limitations
and her admitted daily activities, and with the medical evidence.
As to the medical evidence, again plaintiff relies upon Dr. Silverstein's opinion that she
had a total disability. Medical source opinions such as this which concern issues reserved to
the Commissioner (such as that claimant "is disabled" or "cannot work") are not entitled to
any weight. 20 C.F.R. § 416.927(d)(1). Moreover, as discussed in detail above, Dr.
Silverstein's opinion of plaintiff's total disability is inconsistent with his own progress notes
and with the record as a whole.
In sum, the ALJ gave full consideration to both plaintiff's self-declared limitations and
all of the objective evidence in the record in accordance with the proper legal standard. See
id. at 306–09.
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D. Vocational Expert Hypothetical
Paice's final argument is that the VE's testimony cannot provide substantial evidence
in support of the ALJ's opinion because it was based on an incomplete hypothetical question.
She claims three reasons that the hypothetical question posed to the VE was incomplete: (1)
error in the Step 2 analysis in finding her COPD and depression were not severe; (2) an RFC
based on incorrect legal standard and therefore not supported by substantial evidence; and
(3) errors in assessing credibility. As set forth above, the ALJ made no error in the Step 2
analysis, he followed the correct legal standard in determining Paice's RFC, and he properly
weighed her credibility. Therefore, the hypothetical question to the VE was complete.
IV. CONCLUSION
1. The Commissioner's motion for judgment on the pleadings is GRANTED;
2. The Commissioner's decision denying plaintiff disability benefits is AFFIRMED; and
3. The complaint is DISMISSED in its entirety.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.

Dated: July 18, 2013
Utica, New York.

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