DeBoer v. Astrue

Filing 18

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and DeBoer's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 12/5/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SARAH DEBOER,
Plaintiff,

5:11-cv-1359
(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

KAREN S. SOUTHWICK, ESQ.

TOMASINA DIGRIGOLI
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 Sarah DeBoer challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB), seeking judicial
review under 42 U.S.C. § 405(g). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering DeBoer’s
arguments, the court affirms the Commissioner’s decision and dismisses
the Complaint.
II. Background
On July 27, 2009, DeBoer filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since January 5, 2004.
(See Tr.1 at 212-13.) After her application was denied, (see id. at 97-102),
DeBoer requested a hearing before an Administrative Law Judge (ALJ),
which was held on December 20, 2010. (See id. at 29-70, 103-04.) At the
close of the hearing, the ALJ requested that DeBoer submit to additional
consultative examinations in order to further develop the record, which she
did attend. (See id. at 69, 521-58.) Thereafter, a second administrative
hearing was held. (See id. at 71-94.) On May 13, 2011, the ALJ issued an

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Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 11.)
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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 1-6, 9-28.)
DeBoer commenced the present action by filing her Complaint on
November 17, 2011 wherein she 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. 9, 11.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 14, 15.)
III. Contentions
DeBoer contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 14 at 1222.) Specifically, DeBoer claims that the: (1) residual functional capacity
(RFC) is unsupported by substantial evidence and is the product of legal
error; (2) ALJ failed to apply the appropriate legal standards in assessing
her credibility; and (3) step five determination is unsupported by substantial
evidence and is the product of legal error. (See id.) The Commissioner
counters that the appropriate legal standards were used by the ALJ and
her decision is also supported by substantial evidence. (See Dkt. No. 15 at
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10-25.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 14 at 3-10; Dkt. No. 15 at 2-10.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) 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.

RFC Determination
Initially, DeBoer contends that the ALJ’s RFC determination “is

unsupported by substantial evidence and is the product of legal error.”
(Dkt. No. 14 at 12). According to DeBoer, the ALJ erred in failing to obtain
a function-by-function opinion from her treating physician, C. Perry Cooke.
(See id. at 12-14.) In addition, DeBoer argues that the ALJ failed to adopt
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the opinion of consultative examiner Kalyani Ganesh and, instead,
substituted her own judgment for that of an expert medical opinion. (See
id. at 14-15.) Conversely, the Commissioner argues that the ALJ’s RFC
determination is not tainted by error and is supported by substantial
evidence. (See Dkt. No. 15 at 13-19.)
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(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. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence2 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).
DeBoer claims that by failing to obtain a function-by-function report
from Dr. Cooke the ALJ failed to fulfill her duty to “create a complete

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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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medical record before making a disability determination.” (Dkt. No. 14 at
13.) While DeBoer is correct in stating that “the ALJ . . . has an affirmative
obligation to develop the administrative record,” Perez v. Chater, 77 F.3d at
47, it is also true that this obligation is not limitless. Indeed, 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 v. Callahan, 168 F.3d 72, 79, n.5 (2d Cir. 1999)
(citing Perez, 77 F.3d at 48).
Here, DeBoer began seeking treatment for ongoing pain in her right
shoulder in May 2004. (See Tr. at 489.) Thereafter, an MRI revealed a
“[r]otator cuff tear with attenuation of the tendon but non-retraction of the
tendon.” (Id. at 382.) In September 2004, DeBoer began seeing Dr.
Cooke for treatment of her right shoulder and, subsequently, underwent a
right shoulder examination under anesthesia and arthroscopy, rotator cuff
repair, and decompression. (See id. at 368-71, 383-84.) Following the
procedure, DeBoer continued to see Dr. Cook for follow-up treatment on
her right shoulder until February 2005. (See id. at 339-45, 354-56,
361-63.) On treatment notes, Dr. Cooke indicated that DeBoer was
“[t]emporarily [totally] disabled” but also noted that “her symptoms
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continue[d] to improve” and she was “[d]oing well.” (Id. at 339, 341, 345,
356, 363.) Beginning in November 2004, DeBoer began complaining to Dr.
Cooke of pain in her left shoulder. (See id. at 357-60.) DeBoer continued
to seek treatment from Dr. Cooke for her left shoulder pain through
December 2004, including receiving a steroid injection in that shoulder.
(See id. at 349.) While the record contains treatment notes and records
from Dr. Cooke reflecting the above medical history, it does not contain his
medical source statement or opinion as to DeBoer’s functional limitations.
Here, the court is satisfied that further development of the record was
unnecessary. Indeed, the ALJ fulfilled her obligation to develop the record
by requesting, after the first administrative hearing, that DeBoer, who was
represented by counsel, attend multiple consultative exams and explaining
to her that “the testimony . . . is not exactly consistent with what the
medical records show right now . . . [s]o in order for me to accurately
assess what your allegations are, I’m going to need some kind of
evidence.” (Tr. at 68-69.) Accordingly, Dr. Ganesh conducted a second
consultative exam of DeBoer in January 2011.3 (See Tr. at 535-40, 5483

Dr. Ganesh had previously examined DeBoer in September 2009,
and opined that “[n]o gross physical limitation [was] noted to sitting,
standing, walking, or the use of upper extremities.” (Tr. at 403.) With
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51.) On medical source statements completed thereafter, Dr. Ganesh
opined that DeBoer could continuously lift and carry up to 100 pounds,
reach in all directions, handle, finger, feel, push and pull. (See id. at 541,
543, 552, 554.) Further, he found that DeBoer could continuously climb
stairs and ramps, climb ladders or scaffolds, balance, and stoop, but could
only occasionally kneel, crouch, or crawl. (See id. at 544, 555.)
The ALJ found that DeBoer could “perform light work . . . subject to
the need to sit or stand at will.” (Tr. at 19); see 20 C.F.R. § 404.1567(b)
(defining light work). With respect to DeBoer’s physical abilities, the ALJ
determined that she “does not retain the capacity to climb ladders, ropes or
scaffold at all, or to climb ramps or stairs on more than an occasional
basis.” (Id.) Further, she found that DeBoer “is able to stoop, kneel,
crouch, or crawl occasionally.” (Id.) In making this RFC determination, the
ALJ stated that she did “not adopt” the medical source statement of Dr.
Ganesh. (Id. at 21.) According to DeBoer, the failure to adopt Dr.
Ganesh’s opinion coupled with the lack of any other medical opinion

respect to her upper extremities, Dr. Ganesh found that plaintiff had full
range of motion in her shoulders, elbows, forearms and wrists bilaterally
and muscle strength was 5/5. (See id.) Finally, Dr. Ganesh found that
Deboer’s hand and finger dexterity were intact and her grip strength was
5/5 bilaterally. (See id.)
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supporting the ALJ’s RFC determination requires remand. (See Dkt. No.
14 at 14-15.) Indeed, “‘the ALJ cannot arbitrarily substitute h[er] 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, [s]he is not free to set h[er]
own expertise against that of a physician who [submitted an opinion to or]
testified before h[er].’” Id. “Where application of the correct legal principles
to the record could lead to only one conclusion,” however, “there is no need
to require agency reconsideration.” Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987).
Here, the ALJ’s findings as to DeBoer’s exertional limitations were
more restrictive than those of Dr. Ganesh. (Compare Tr. at 19 with id. at
541-44, 552-55.) Accordingly, and contrary to DeBoer’s contentions, Dr.
Ganesh’s opinion supports the ALJ’s determination that she could perform
light work. (See id. at 19.) Thus, the ALJ had before her substantial
evidence that enabled her to render a decision.
B.

Credibility Determination
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Next, DeBoer contends that the ALJ failed to apply the appropriate
legal standards in assessing her credibility. (See Dkt. No. 14 at 15-19.)
Specifically, DeBoer claims that the ALJ failed to adequately consider the
side effects of her medications, her lack of health insurance, and her
symptoms of mania on her ability to maintain treatment for, as well as
adequately report the limitations caused by, her impairments. (See id. at
16-18.) In addition, DeBoer argues that the ALJ improperly considered the
credibility implications of her activities of daily living and claims for
unemployment benefits. (See id. at 18-19.) The Commissioner counters
that the ALJ properly considered DeBoer’s subjective complaints and did
not err by concluding that they were not fully credible. (See Dkt. No. 15 at
19-22.) Because the ALJ’s assessment was sufficiently articulate and
based on substantial evidence, the court agrees with the Commissioner.
An ALJ must consider a claimant’s subjective complaints of
limitations resulting from her impairments, including those from pain, in
gauging her RFC. See 20 C.F.R. § 404.1545(a)(3). However, “[a]n
individual’s statement as to pain or other symptoms shall not alone be
conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A). The
Commissioner is obligated to evaluate all of a claimant’s symptoms,
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“including pain, and the extent to which [those] symptoms can reasonably
be accepted as consistent with the objective medical evidence and other
evidence.” 20 C.F.R. § 404.1529(a).
Ultimately, “[t]he reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or decision.” SSR 967p, 61 Fed. Reg. 34,483, 34,485-86 (July 2, 1996). Thus, “after weighing
the objective medical evidence in the record, the claimant’s demeanor, and
other indicia of credibility,” an ALJ may reject the claimant’s subjective
allegations regarding limitation as long as she sets forth her “reasons with
sufficient specificity to enable [the court] to decide whether the
determination is supported by substantial evidence.” Lewis v. Apfel, 62 F.
Supp. 2d 648, 651 (N.D.N.Y. 1999) (internal quotation marks and citation
omitted).
In this case, the ALJ’s determination that the evidence of record
“does not fully support the functional limitations” DeBoer ascribed to her
medically determinable impairments is supported by substantial evidence
in the record. (Tr. at 20.) The ALJ considered DeBoer’s self-reported
activities of daily living, her ability to work during the period of alleged
disability, the fact that she applied for and received unemployment benefits
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during the period of alleged disability, and the medical evidence of record.
(See id. at 20-22.) Notably, DeBoer worked as a manager at a furniture
store from December 2005 until September of 2008, when her job was
eliminated as the store she worked for closed. (See id. at 38, 229, 243,
305, 401.) Further, DeBoer reported that she regularly watches television,
uses her computer, does cleaning and laundry, prepares and cleans up
after meals for herself and her daughter, helps care for her dog and various
stray cats, has no difficulties maintaining her personal hygiene, and drives
and shops weekly. (See id. at 56-57, 266-67, 269, 275.) Contrary to
DeBoer’s arguments, an ALJ may consider evidence that the claimant
received unemployment benefits and/or certified that she was ready,
willing, and able to work during the time period for which she claims
disability benefits as one factor relevant to assessing her credibility. See
Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005); Andrews v. Astrue,
Civ. No. 7:10-CV-1202, 2012 WL 3613078, at *12-13 (N.D.N.Y. Aug. 21,
2012); House v. Comm’r of Soc. Sec., No. 09-CV-913, 2012 WL 1029657,
at *12 (N.D.N.Y. Feb. 29, 2012).
C.

Vocational Expert
Finally, DeBoer takes issue with the ALJ’s finding at step five. (See
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Dkt. No. 14 at 19-22.) Specifically, DeBoer alleges that the hypothetical
question posed to the vocational expert (VE) was the product of errors in
determining her RFC and assessing her credibility. (See id. at 19-20.)
Further, DeBoer argues that the ALJ failed to identify and resolve a conflict
between the VE’s testimony and the U.S. Department of Labor’s Dictionary
of Occupational Titles (DOT). (See id. at 20-22.) The Commissioner
counters that the ALJ’s hypothetical question was consistent with her RFC
assessment and, further, there was no discrepancy between the DOT and
the VE’s testimony. (See Dkt. No. 15 at 22-25.) Again, the court agrees
with the Commissioner.
In making her ultimate disability determination, the ALJ must consider
whether the claimant can do any other, less demanding work existing in the
national economy. See 20 C.F.R. §§ 404.1520(g), 404.1560(c); accord
White v. Sec’y of Health and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990).
If the ALJ’s RFC assessment is supported by substantial evidence, it is
appropriate for her to rely on that RFC assessment in questioning the VE.
See Mancuso v. Astrue, 361 F. App’x 176,179 (2d Cir. 2010). In addition to
the RFC assessment, the ALJ must also rely on the claimant’s age,
education, past work experience, and the transferability of the claimant’s
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skills in order to assess whether other jobs exist in the national economy
which the claimant could perform. See 20 C.F.R. § 404.1520(g).
In questioning the VE in this case, the ALJ’s hypothetical question
accurately reflected her RFC assessment and credibility determination
which, as discussed above, were supported by substantial evidence.
(Compare Tr. at 87-88, with id. at 19.) As a result, the ALJ’s use of the
VE’s opinion was appropriate. (See id. at 23, 88-89.) Further, although
DeBoer correctly notes that “[w]here an individual can tolerate very little
noise, dust, etc., the impact on the ability to work would be considerable
because very few job environments are entirely free of irritants, pollutants,
and other potentially damaging conditions,” SSR 85-15 does not direct a
finding of disabled where a claimant cannot be exposed to environmental
irritants. SSR 85-15, 1985 WL 56857, at *8 (1985). Rather, where
environmental restrictions significantly diminish a claimant’s ability to work
the ALJ should consult with a VE before making a determination as to
disability. See Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986); SSR
85-15, 1985 WL 56857, at *8.
Here, the ALJ consulted with a VE who testified that DeBoer could
perform the work of a mail sorter, packer, and silver wrapper. (See Tr. at
14

88-89.) Although DeBoer argues that this testimony conflicts with the DOT
as the work of a packer requires frequent exposure to atmospheric
conditions such as fumes, noxious odors, dusts, mists, gasses, and poor
ventilation, the VE specifically noted that the number of packer jobs
available to DeBoer would be reduced by fifty percent due to her
environmental limitations. (See Dkt. No. 14 at 20; Tr. at 89.) Even if there
was such a conflict, the VE identified two other jobs as compatible with
Deboer’s limitations and the finding of one job is sufficient to demonstrate
that there is other work that she could perform. See 20 C.F.R.
§ 404.1566(b); Martin v. Comm’r of Soc. Sec., No. 5:06-CV-720, 2008 WL
4793717, at *2 (N.D.N.Y. Oct. 30, 2008). Thus, DeBoer’s claim that the
VE’s testimony did not constitute substantial evidence supporting the ALJ’s
finding that other work existed for her is meritless.
D.

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
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DeBoer’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.
December 5, 2012
Albany, New York

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