Herbert v. Astrue

Filing 18

ORDER: It is ordered that Defendant's Motion for Judgment on the Pleadings is GRANTED, the Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Ac t is AFFIRMED and the # 1 Complaint filed by Rosalind Herbert is hereby DISMISSED in its entirety. The Clerk shall enter judgment and close this case. Signed by Magistrate Judge Therese Wiley Dancks on 2/19/2013. (Attachments: # 1 Excerpt Transcript regarding Decision of Hearing held on 2/12/2013) (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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ROSALIND HERBERT,
Plaintiff,
vs.

5:11-cv-1107

MICHAEL J. ASTRUE,
As Commissioner of the
Social Security Administration,
Defendant.
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Transcript of a Decision on the Record held on
February 12, 2013, at the James Hanley Federal
Building, 100 South Clinton Street, Syracuse,
New York, the HONORABLE THÉRÈSE WILEY DANCKS,
United States Magistrate Judge, Presiding.

A P P E A R A N C E S
(VIA TELEPHONE)
For Plaintiff:

PETER W. ANTONOWICZ, ESQ.
Attorney at Law
148 West Dominick Street
Rome, New York 13440

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: KATRINA M. LEDERER, ESQ.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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(The following is an excerpt from the
proceedings held on 2/12/13.)

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(In Chambers, Counsel present via telephone.)

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THE COURT:

I think I've got enough and I

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haven't heard anything from either one of you that changes my

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decision here so I'm prepared to issue a bench decision now

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and I do have a court reporter here, and what I will do once

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I get the transcript of the decision is attach it to my order

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and that will go up on the docket when it's ready.

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But I want you both to know that I have

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thoroughly reviewed the record carefully, and in light of the

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arguments of both of you today, and what you've presented in

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your briefs, I've applied the requisite deferential standard

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which requires me to determine whether proper legal

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principles were applied, and whether the result is supported

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by substantial evidence.

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whether I would have arrived at the same determination had I

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been presented with this record.

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based upon the record and what we've heard today, the

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disability date of onset is April 15th, 2008.

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Clearly the relevant inquiry is not

And as I understand it

I'll turn first to the applicability of the

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treating physician rule.

Part and parcel to that argument is

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that the ALJ did not properly determine plaintiff's residual

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functional capacity or RFC.

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determination of the claimant's disability is a legal

From the outset, I note that the

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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determination reserved to the Commissioner.

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done a thorough and searching review of the record and I find

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that the substance of the treating physician rule was

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followed by the ALJ who gave good reasons for giving limited

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weight to the opinion of Dr. Robinson and other treating

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physicians.

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As I said, I've

Here it is clear from the decision that the

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ALJ reviewed the record in its entirety and addressed

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inconsistencies between the treating physician's opinions and

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the objective medical evidence, as well as the opinions of

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the consultative physician.

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Dr. Robinson's opinion and the other provider's opinion was

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inconsistent with the record as a whole, as the opinions were

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not supported by the clinical signs found on physical exam,

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diagnostic tests, or the treatment received by the plaintiff.

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The ALJ found that

For example, treatment notes in 2008 show the

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plaintiff ambulated well, had negative straight leg raising

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test, had full strength in her lower extremities, she

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reported her pain was only intermittent and rated it at a 3

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out of 10.

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normal station and nearly full range of motion in the lumbar

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region, motor and sensory exams were normal in her lower

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extremities.

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Her strength was within normal limits.

She had

In November of 2008 her lumbar range of motion
was normal, she had normal strength and also bulk in her

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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lower extremities.

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In December of 2008 she had normal gait,

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normal heel-toe walk and no neurologic deficits showing.

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her exam at Hamilton Orthopedics in January 2009 also

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revealed a full range of motion in her lumbar spine, negative

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straight leg raising and no muscle weakness.

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At

In May and September of 2009, while she had

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some tenderness in her lower back, her exams were essentially

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unremarkable.

The MRIs of the lower spine in April of 2008

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and January of 2010 did show a disk bulge at L4-5 but no

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nerve impingement and the findings were basically unchanged

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from 2008 to 2010 on those MRIs.

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spine in September of 2010 showed some degenerative changes

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but it was mostly unremarkable.

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June of 2010 showed normal gait, normal range of motion,

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normal muscle tone and showed no neurologic deficits in the

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cervical spine.

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completed by Physical Therapist Peterson in July of 2009

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revealed she could do sedentary work.

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capacity exam was adopted by treating source Dr. Vigliotti in

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November of 2009.

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from September of 2008 showed that while she walked with a

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slight limp, she was able to walk on her heels and toes

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without difficulty.

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of motion and a full range of motion of her extremities with

An MRI of the cervical

Exams in the lower back of

A comprehensive functional capacity exam

This functional

The consultative exam with Dr. Weiskopf

She had full cervical and lumbar range

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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normal strength and no neurological deficits.

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limits on standing and sitting and mild limits to walking,

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lifting, carrying, bending, and climbing.

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the record supports that this opinion was supported by the

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clinical signs found on nearly all of the physical exams of

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the plaintiff and the diagnostic test results.

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He found no

The ALJ found and

The ALJ also noted that the opinion was not

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supported by plaintiff's reported activities.

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shows she was able to cook, clean, do laundry, and shop.

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was able to take care of her personal hygiene, she could

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drive, she could take care of her pet, she could do crafts.

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References in physical therapy notes during the relevant time

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period showed she reported doing lots of traveling, she was

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cleaning floors and doing a lot of bending over.

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The record
She

In short, the ALJ's decision shows he reviewed

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and considered all of the medical evidence in determining

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plaintiff's RFC.

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of her treatment history and activities.

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shows that the ALJ considered treatment notes of various

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treating sources.

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considering the entire record and the ALJ's opinion as noted,

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I find that the ALJ applied the substance of the treating

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physician rule.

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limited weight to the opinions of treating physicians

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including Dr. Robinson, and for giving considerable weight to

The decision sets forth a thorough summary
The record also

And, in light of the foregoing and

The ALJ set forth good reasons for giving

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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Dr. Weiskopf's opinion which was consistent with the

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plaintiff's objective physical exams and diagnostic findings

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in the record.

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RFC is supported by substantial evidence and the correct

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legal standards were applied.

Therefore, the determination of plaintiff's

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I want to briefly address the issue of whether

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the opinion of a vocational expert should have been obtained.

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At step 5 there's only a limited burden shift to the

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Commissioner who need only show that there is work in the

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national economy that the claimant can do.

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need not provide additional evidence of claimant's residual

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functional capacity.

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when it exists in significant numbers either in the region

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where the claimant lives or in several other regions in the

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country.

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The Commissioner

Work exists in the national economy

In making this determination, the ALJ may

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apply the grids or consult a vocational expert.

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plaintiff's characteristics match the criteria of a

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particular grid, the rule directs a conclusion as to whether

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or not he or she is disabled.

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If the

In this case I find the ALJ correctly relied

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on the medical vocational rules based upon the RFC and the

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plaintiff's vocational profile.

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support a showing that plaintiff suffered from nonexertional

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impairment that significantly limited the range of work

The evidence does not

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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permitted by her exertional limitations and therefore the ALJ

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was not required to elicit the testimony from a vocational

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expert to determine if jobs exist in the economy that she

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could perform.

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I want to look now to the plaintiff's

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credibility and the ALJ's assessment of it.

The plaintiff

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claimed in his brief that the ALJ failed to properly assess

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her credibility.

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the plaintiff's testimony regarding her limitations during

With regard to the ALJ's determination that

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the relevant time period was not credible, I find that it is

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properly explained and supported by the record.

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contradicts her claims concerning her limitations for the

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relevant time period.

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the objective medical records in the various treatment notes.

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The treatment notes considered discuss her complaints of

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pain, the location of her pain, the intensity of it and the

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type of medication she was on, and the treatment modalities

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used to alleviate the pain.

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objective medical evidence in the record did not support

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plaintiff's claims that she was unable to do basic work

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activities.

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The record

The ALJ considered her complaints in

He pointed out that the

Plaintiff's reports to her providers during

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the relevant time period showed she could drive her daughter

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an hour to school, shop, prepare meals, do some housework,

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help her mother, ride a recumbent bike.

She could dress,

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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bathe, and groom herself, she could do some laundry and take

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care of her personal care.

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determination of plaintiff's credibility for the relevant

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time period by the ALJ was sufficiently explained and

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properly supported in the record.

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Thus I find that the

All in all, then, I find that the

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determination of the ALJ is supported by substantial evidence

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and the correct legal standards were applied.

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defendant's motion for judgment on the pleadings and will

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enter a judgment dismissing plaintiff's complaint in this

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action.

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And so I grant

As I said at the outset, a copy of the

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transcript of my decision will be attached to the order,

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should any appeal be filed.

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said, it will get up on the docket as soon as we can get it

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there.

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and if neither of you have any questions at this point, this

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will conclude the hearing.

I very much appreciate your time here this morning,

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Anything from the plaintiff?

MR. ANTONOWICZ:

THE COURT:

All right.

And anything from the

defendant?

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MR. LEDERER:

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THE COURT:

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No, your Honor, thank you for

your patience.

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That is my decision and as I

No, your Honor.

All right.

Thank very much again

for your time, have a good day.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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(Proceedings Adjourned, 10:36 a.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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C E R T I F I C A T I O N

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I, JODI L. HIBBARD, RPR, CRR, CSR,

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Official Court Reporter in and for the United States

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District Court, Northern District of New York, DO

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HEREBY CERTIFY that I attended the foregoing

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proceedings, took stenographic notes of the same,

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and that the foregoing is a true and correct

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transcript thereof.

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Jodi Hibbard

Digitally signed by Jodi Hibbard
DN: cn=Jodi Hibbard, o=Northern District of New
York, ou=U.S. District Court,
email=[e-mail], c=US
Date: 2013.02.15 11:09:19 -05'00'

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________________________________

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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]