Waldau v. Astrue

Filing 20

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Waldau's Complaint is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 12/21/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ROBERT WALDAU,
Plaintiff,

5:11-cv-925
(GLS)

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

HOWARD D. OLINSKY, ESQ.
KAREN S. SOUTHWICK, ESQ

VERNON NORWOOD
Special Assistant U.S. Attorney

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
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Robert Waldau challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (“SSI”), seeking judicial
review under 42 U.S.C. §§ 405(g) and 1383(c)(3). (See Compl., Dkt. No.
1.) After reviewing the administrative record and carefully considering
Waldau’s arguments, the court affirms the Commissioner’s decision and
dismisses the Complaint.
II. Background
On April 7, 2009, Waldau filed an application for SSI under the Social
Security Act (“the Act”), alleging disability since December 21, 2005. (See
Tr.1 at 96, 162-64.) After his application was denied, (see id. at 100-07),
Waldau requested a hearing before an Administrative Law Judge (ALJ),
which was held on August 25, 2010. (See id. at 37-77, 108.) At the close
of the hearing, the ALJ requested that Waldau attend an additional
consultative examination in order to further develop the record, which he
did attend. (See id. at 73-74, 311-15.) Thereafter, a second administrative
hearing was held. (See id. at 78-95.) On March 25, 2011, the ALJ issued

1

Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 9.)
2

an unfavorable decision denying the requested benefits, which became the
Commissioner’s final determination upon the Social Security Administration
Appeals Council’s denial of review. (See id. at 1-11, 19-36.)
Waldau commenced the present action by filing his Complaint on
August 4, 2011 wherein he sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 8, 9.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 11, 13.)
III. Contentions
Waldau contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 11 at 518.) Specifically, Waldau claims that the: (1) ALJ’s step two determination
is infirm as he failed to find that certain of Waldau’s impairments are
severe; (2) residual functional capacity (RFC) determination is not
supported by substantial evidence and is the product of legal error; (3) ALJ
failed to apply the appropriate legal standards in assessing his credibility;
and (4) hypothetical question posed to the vocational expert (VE) was
incomplete. (Id.) The Commissioner counters that the appropriate legal
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standards were used by the ALJ and his decision is also supported by
substantial evidence. (See Dkt. No. 13 at 11-24 .)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 11 at 2-5; Dkt. No. 13 at 2-7.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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 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.

Step Two Evaluation
Waldau claims the ALJ erred by failing to find his right shoulder

impairments and the progressive nuclear sclerosis in his left eye severe.
2

Specific reference to 42 U.S.C. § 1383(c)(3) is unnecessary
because judicial review under that section is identical to review under
section 405(g).
4

(See Dkt. No. 11 at 6-8.) The court disagrees.
At step two of the sequential analysis, the ALJ must “determine
whether the claimant has a severe impairment.” Christiana, 2008 WL
759076, at *3; see 20 C.F.R. § 416.920(a)(4)(ii), (c). A “severe impairment”
is “any impairment or combination of impairments which significantly limits
[his] physical or mental ability to do basic work activities.” 20 C.F.R.
§ 416.920(c). As pertinent here, basic work activities are “the abilities and
aptitudes necessary to do most jobs,” including: “[p]hysical functions such
as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling” and “[c]apacities for seeing, hearing, and speaking.” 20 C.F.R.
§ 416.921(b)(1)-(2). “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. 09-CV-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)). Indeed, when “medical evidence
establishes only a slight abnormality or a combination of slight
abnormalities,” a finding of “not severe” is warranted. SSR 85-28, 1985 WL
56856, at *3 (1985); see 20 C.F.R. § 416.921(a). Notably, the omission of
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an impairment at step two may be deemed harmless error, particularly
where the disability analysis continues and the ALJ later considers the
impairment in his residual functional capacity (RFC) determination. See
Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 398952, at *4 (N.D.N.Y. Feb.
7, 2012); see also Plante v. Astrue, No. 2:11-CV-77, 2011 WL 6180049, at
*4 (D. Vt. Dec. 13, 2011).
Here, the ALJ found that Waldau suffered from the following severe
impairments: traumatic blindness of the right eye, degenerative changes of
the cervical spine, and soft tissue impairment of the left shoulder. (See Tr.
at 25.) While Waldau alleges that the ALJ failed to find his right shoulder
impairments severe, the ALJ’s RFC determination clearly states that he is
limited in the use of his right, but not left, upper extremity. (See id. at 2627.) Thus, the court concludes that the ALJ found Waldau’s right shoulder
impairment to be severe and the reference to his left shoulder impairment
an inadvertent typographical error. Further, while the ALJ’s step two
determination does not mention progressive nuclear sclerosis of the left
eye, he explained that he did not find Waldau’s other alleged impairments,
including bilateral eye pain, to be severe as they did not limit his ability to
perform basic work activities, evidenced by the fact that Waldau failed to
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seek treatment for such impairments subsequent to his alleged onset date.
(See id. at 25.) In any event, during the subsequent RFC determination,
the ALJ discussed the results of the consultative ophthalmological
examination of Waldau’s left eye. (See id. at 27.) As the ALJ proceeded
with the disability analysis and included Waldau’s severe and non-severe
impairments in the RFC determination, there is no basis to remand this
matter based upon the ALJ’s step two analysis. See Tryon, 2012 WL
398952, at *4.
B.

RFC Determination
Waldau further claims that the ALJ’s RFC determination is not

supported by substantial evidence and is the product of legal error. (See
Dkt. No. 11 at 9-14.) According to Waldau, the ALJ erred in affording “little
weight” to the opinion of his treating physician, Michael S. Potter, and
“considerable weight” to the opinion of consultative examiner Kalyani
Ganesh. (Id.) In addition, Waldau argues that the ALJ erred in failing to recontact Dr. Auston for clarification prior to discounting his opinion. (See id.
at 12.) The Commissioner counters, and the court agrees, that the ALJ’s
RFC determination is supported by substantial evidence. (See Dkt. No. 13
at 13-18.)
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A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 416.945(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. § 416.945(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence3 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 41, 46 (2d Cir. 1996).
Here, Dr. Ganesh opined that Waldau experienced a “[m]ild to
moderate limitation lifting, carrying, and pulling.” (See Tr. at 271.) On the
other hand, Waldau’s treating physician, opined that, among other
limitations, Waldau could only occasionally lift and carry ten pounds and
rarely twenty pounds, could occasionally grasp, turn, and twist objects and
rarely reach. (See id. at 327.) Further, Dr. Potter reported that Waldau
could only sit for fifteen minutes at a time and up to four hours in an

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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 quotation marks and citations omitted).

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eight-hour work day, and could only stand for fifteen minutes at a time and
less than two hours total in an eight-hour work day. (See id. at 326.)
Affording “little weight” to the opinion of Dr. Potter but “considerable weight”
to the opinion of Dr. Ganesh, the ALJ determined that Waldau had no
limitations with respect to sitting, standing, walking or in the full use of his
left upper extremity, but could only push, pull, lift, and carry up to twenty
pounds occasionally and ten pounds frequently with his right arm and
hand. (Tr. at 26, 28.)
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 416.927(c). Controlling
weight will be given to a treating physician’s opinion that is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Id. § 416.927(c)(2);
see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Unless
controlling weight is given to a treating source’s opinion, the ALJ is required
to consider the following factors in determining the weight assigned to a
medical opinion: whether or not the source examined the claimant; the
existence, length and nature of a treatment relationship; the frequency of
examination; evidentiary support offered; consistency with the record as a
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whole; and specialization of the examiner. See 20 C.F.R. § 416.927(c).
Notably, “‘the ALJ cannot arbitrarily substitute his own judgment for
competent medical opinion.’” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.
1998) (quoting McBrayer v. Sec’y of Health and Human Servs., 712 F.2d
795, 799 (2d Cir.1983)). Accordingly, “while an [ALJ] is free to resolve
issues of credibility as to lay testimony or to choose between properly
submitted medical opinions, he is not free to set his own expertise against
that of a physician who [submitted an opinion to or] testified before him.”
Id. (internal quotation marks and citation omitted).
Here, the ALJ considered the relevant factors and properly explained
his reasoning for discounting the weight given to Dr. Potter’s opinion.
Specifically, the ALJ explained that Dr. Potter’s treating relationship with
Waldau was brief as he had only begun treating Waldau three months prior
to completing his medical source statement. (See Tr. at 29, 326.) Further,
Dr. Potter did not offer any medical signs or laboratory findings to support
his opinion, but rather only completed a fill-in-the-blank medical source
statement, which is “marginally useful for purposes of creating a
meaningful and reviewable factual record.” Halloran, 362 F.3d at 31 n.2;
see also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“Form
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reports in which a physician’s obligation is only to check a box or fill in a
blank are weak evidence at best.”) In addition, the ALJ considered the fact
that Dr. Potter’s opinion was not consistent with the other evidence of
record, including the lack of any evidence in the record of an impairment to
Waldau’s back and his failure to complain of back pain during previous
examinations. (See id. at 29, 257-60, 269-71, 326.)
Further, although Waldau correctly points out that a consultative
examiner’s report which concludes that a claimant’s condition is “mild” or
“moderate” without additional information does not allow an ALJ to infer
that a claimant is capable of performing the exertional requirements of
work, see Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000), superceded by
statute on other grounds, 20 C.F.R. § 416.960(c)(2), Dr Ganesh’s ultimate
diagnosis is well supported by his extensive examination and is not in any
way conclusory. See Armstrong v. Comm’r of Soc. Sec., No. 05-CV-1285,
2008 WL 2224943, at *4, n.6 (N.D.N.Y. May 27, 2008). Indeed, Dr.
Ganesh noted that Waldau had full range of motion in his shoulders,
elbows, forearms, and fingers bilaterally. (See Tr. at 270.) Dr. Ganesh
also found Waldau to have a full range of motion and 5/5 muscle strength
in his left wrist but a limited range of motion and some weakness in his
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right wrist. (See id. at 270-71.) According to Dr. Ganesh, Waldau’s hand
and finger dexterity were intact and his grip strength was 5/5 bilaterally.
(See id. at 270.) Finally, Dr. Ganesh noted that Waldau’s gait and stance
were normal, he could walk on his heels and toes without difficulty, and he
had full muscle strength and range of motion in his lower extremities and
cervical spine. (See id. at 270-71.)
In light of the above medical evidence, and keeping in mind that
“‘where the medical evidence shows relatively little physical impairment, an
ALJ permissibly can render a common sense judgment about functional
capacity even without a physician’s assessment,’” Walker v. Astrue, No.
08-CV-0828, 2010 WL 2629832, at *7 (W.D.N.Y. June 11, 2010) (quoting
Manso-Pizarro v. Sec’y of Health and Human Servs., 76 F.3d 15, 17 (1st
Cir. 1996)), the court finds that the ALJ’s RFC determination is supported
by substantial evidence. Although Waldau argues that the ALJ should
have re-contacted both Dr. Potter and Dr. Auston, who completed a form
excusing Waldau from work for a period of two months due to
“shoulder/neck weakness/pain,” (Tr. at 325), where there are no obvious
gaps, and the record presents “a ‘complete medical history,’” the ALJ is
under no duty to seek additional information before rejecting a claim. Rosa
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v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quoting Perez v. Chater,
77 F.3d 41, 48 (2d Cir. 1996)). Here, the court is satisfied that further
development of the record was unnecessary as the ALJ had before him
substantial evidence that enabled him to render a decision. See 20 C.F.R.
§ 416.920b(b) (providing that, even if the record evidence is inconsistent,
further record development is not required if, after weighing all the
evidence, a disability determination can be made).
C.

Credibility
Next, Waldau contends that the ALJ’s assessment of his credibility

was legally flawed and is factually unsupported. (See Dkt. No. 11 at 1417.) The Commissioner counters that the ALJ’s credibility finding was
legally sound and is supported by substantial evidence. (See Dkt. No. 13
at 18-22.) The court agrees with the Commissioner in this regard as well.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that 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
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inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (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, 1996 WL 374186,
at *4 (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-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R. §
404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi)).
The ALJ found that Waldau’s subjective complaints were not credible
to the extent that they were inconsistent with his RFC determination. (See
Tr. at 28.) Waldau argues that the ALJ impermissibly determined his RFC
first, and then used that RFC to evaluate the consistency of his subjective
complaints. (See Dkt. No. 11 at 14-15.) It is clear, however, that the ALJ
undertook a detailed credibility analysis, and that his reference to
consistency with the RFC to which Waldau objects was merely an
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indication that the RFC incorporated those findings. (See Tr. at 27-29.)
Contrary to Waldau’s contentions, the ALJ engaged in a detailed review of
the entire case record, including consideration of objective medical
evidence and the factors set forth in 20 C.F.R. § 416.929(c). (See id.)
Waldau also makes specific objections to certain factors considered,
or omitted, in the ALJ’s credibility analysis. (See Dkt. No. 11 at 15-17.)
These contentions are also meritless. First, contrary to his contentions, the
ALJ considered Waldau’s alleged limitations on his ability to perform
activities of daily living. (See Tr. at 27.) The ALJ also considered the
activities of daily living that Waldau reported performing to the various
examining medical sources. (See id. at 28, 266, 270, 312.) Further,
Waldau’s contention that the ALJ erred in considering his criminal history
as one of many factors in evaluating his credibility is without merit. See
Arrington v. Astrue, No. 09-CV-870, 2011 WL 3844172, at *13 (W.D.N.Y.
Aug. 8, 2011); Rutkowski v. Astrue , No. 8:07-CV-916, 2009 WL 2227282,
at *16 (N.D.N.Y. July 23, 2009). Finally, although Waldau takes issue with
the ALJ’s characterization of his use of a chainsaw in October 2008—
almost three years after his alleged disability onset date—as part of a
“logging operation,” he does not dispute the fact that at that time he used a
15

chainsaw “to cut firewood.”4 (Dkt. No. 11 at 16-17; see Tr. at 28.)
In sum, the ALJ’s thorough credibility analysis was legally proper and
is supported by substantial evidence. It will, therefore, not be disturbed.
D.

Vocational Expert
Waldau’s final argument—that the VE’s testimony was unreliable

because it was based on an “incomplete hypothetical question”—relies
entirely on his claim that the ALJ’s assessment at steps two and four were
erroneous. (Dkt. No. 11 at 17-18.) However, as the court has already
found otherwise, it suffices to say that Waldau’s argument is untenable. As
such, the ALJ’s use of a VE was appropriate, as the hypothetical posed
was supported by the record. (See Tr. at 26, 30, 86-88.)
E.

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
4

The ALJ’s reference to “logging operations” appears to come from
emergency room medical records which state that Waldau’s neck pain
arose from a “logging accident.” (Tr. at 28, 257.)
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Waldau’s Complaint 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.
December 21, 2012
Albany, New York

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