Hoffman v. Commissioner of Social Security

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Hoffman's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 11/20/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
HEATHER M. HOFFMAN,

Plaintiff,

5:13-cv-846
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Coughlin, Gerhart Law Firm
P.O. Box 2039
Binghamton, NY 13902
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
Chief Judge

SCOT G. MILLER, ESQ.

SANDRA M. GROSSFELD
DAVID L. BROWN
Special Assistant U.S. Attorneys

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Heather M. Hoffman challenges the Commissioner of Social
Security’s denial of her claim for a period of disability and Disability
Insurance Benefits (DIB), seeking judicial review under 42 U.S.C. § 405(g).
(Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Hoffman’s arguments, the court affirms the
Commissioner’s decision and dismisses the complaint.
II. Background
On August 24, 2010, Hoffman filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since December 11, 2009.
(Tr.1 at 52, 116-33.) After her application was denied, (id. at 62-66),
Hoffman requested a hearing before an Administrative Law Judge (ALJ),
which was held on March 21, 2012, (id. at 28-51, 69-72). On May 10,
2012, the ALJ issued 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. (Id. at 14, 6-27.)
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

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Hoffman commenced the present action by filing her complaint on
July 7, 2013 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. 7, 8.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 10, 14.)
III. Contentions
Hoffman contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 10 at
13-24.) Specifically, Hoffman claims that the ALJ erred in: (1) weighing the
opinions of Hoffman’s treating sources; (2) rendering a residual functional
capacity (RFC) determination that is unsupported by substantial evidence;
and (3) discounting her subjective complaints of pain due to her desire “to
exercise her fundamental right to procreate.” (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. 14 at 819.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt. No.
10 at 2-12; Dkt. No. 14 at 3.)
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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.

Weighing Opinion Evidence
Hoffman first argues that the ALJ erred when she gave “very limited

weight” to the opinions of Hoffman’s treating sources. (Tr. at 19; Dkt. No.
10 at 13-19.) Hoffman claims that the ALJ failed to discuss the relevant
factors for weighing medical opinions under the regulations and misapplied
the law in this Circuit in discounting the opinions of her treating sources, in
part, due to their use of “check a box” forms. (Dkt. No. 10 at 13-19.) The
Commissioner counters, and the court agrees, that the ALJ properly
weighed the opinions of Hoffman’s treating sources and her decision to

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afford them limited weight is supported by substantial evidence. 2 (Dkt. No.
14 at 8-14.)
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 404.1527(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.
§ 404.1527(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 whole; and specialization of the examiner. See 20 C.F.R.
§ 404.1527(c). The ALJ must provide “‘good reasons’ for the weight given
to the treating source’s opinion.” Petrie v. Astrue, 412 F. App’x 401, 407
(2d Cir. 2011) (citations omitted). “Nevertheless, where ‘the evidence of

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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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record permits [the court] to glean the rationale of an ALJ’s decision,’” it is
not necessary that the ALJ “‘have mentioned every item of testimony
presented to h[er] or have explained why [s]he considered particular
evidence unpersuasive or insufficient to lead h[er] to a conclusion of
disability.’” Id. (citation omitted).
Here, the record contains an RFC Questionnaire completed by
treating neurologist Jody Stackman, who opined that, due to headaches,
back pain, and cervical syndrome, Hoffman would be off task between
thirty and fifty percent of the day. (Tr. at 562-64.) In addition, Dr.
Stackman reported that Hoffman would likely be absent more than three
days a month, and would be able to work only twenty hours a week, for
three to four hours a day. (Id. at 563.) According to Dr. Stackman,
Hoffman could occasionally lift and carry up to ten pounds, and, in an eighthour workday, sit for two hours, stand for two hours, and walk for one hour.
(Id. at 564.) The ALJ also had before her an RFC Questionnaire
completed by treating nurse practitioner Shawnti Storm and cosigned by
treating physician John Cooke. (Id. at 591-93.) In Storm and Dr. Cooke’s
opinion, Hoffman would be off task over fifty percent of the time and miss
more than three days a month of work due to back pain and radiculopathy.
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(Id. at 591-92.) Hoffman could occasionally use her hands and feet,
required frequent changing of positions between sitting, standing, and
walking, and could occasionally lift and carry up to ten pounds. ( Id. at 593.)
They further opined that Hoffman could not consistently perform tasks or
commit to a set schedule. (Id.)
The ALJ gave both of these questionnaires “very limited weight”
because they are not consistent with these treating sources’ own notes and
the longitudinal medical evidence of record. (Id. at 19.) The ALJ
specifically noted that Hoffman’s pain medication and TENS unit have been
prescribed only on an as-needed basis. (Id. at 18, 494, 499, 548.) Further,
in February 2012, drug testing of Hoffman was entirely negative, indicating
that she was not taking any pain medication. (Id. at 18, 539.) The ALJ
requested that Hoffman’s counsel seek clarification from nurse practitioner
Storm and Dr. Cooke regarding Hoffman’s limitations due to pain given the
results of this drug test, but no such clarification was provided. ( Id. at 19,
549-50, 591-93.) Dr. Stackman’s treatment notes indicate that, shortly
after she began treating Hoffman, Hoffman’s headaches significantly
improved, and were not occurring frequently enough to warrant
prophylactic treatment. (Id. at 19, 522.) EMG testing revealed no electrical
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abnormalities suggestive of a cervical radiculopathy nor evidence of a
median ulnar neuropathy or entrapment on Hoffman’s symptomatic side.
(Id. at 19, 518-19.) On several occasions, Dr. Stackman noted that
Hoffman had good cervical range of motion with only mild restriction,
normal motor strength with no weakness in her extremities, and a normal
gait. (Id. at 19, 567-68, 572-73, 578-79.)
As the ALJ explicitly referenced 20 C.F.R. § 404.1527, as well as
relevant social security rulings, undertook a thorough discussion of the
medical and testimonial evidence of record, which suggested impairments
less severe than those articulated in their RFC Questionnaires, and directly
cited to treatment notes spanning their lengthy treating relationships, it is
clear that she properly applied section 404.1527(c) and her assessment of
the opinions of Drs. Cooke and Stackman is legally sound. (Id. at 18-20);
see SSR 06-03p, 71 Fed. Reg. 45,593, 45,596 (Aug. 9, 2006) (“Not every
factor for weighing opinion evidence will apply in every case.”). Further,
contrary to Hoffman’s contention, the ALJ did not err in “criticizing the use
of forms with check boxes,” despite the fact that these forms were
supported by “voluminous medical records.” (Dkt. No. 10 at 16-18.)
Instead, the ALJ properly considered that the questionnaires completed by
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nurse practitioner Storm and Dr. Stackman contained minimal commentary
explaining the basis for the conclusions contained therein, and were not
supported by the treatment notes submitted by these medical sources. (Tr.
at 19-20); see 20 C.F.R. § 404.1527(c)(3) (“The better an explanation a
source provides for an opinion, the more weight [the Commissioner] will
give that opinion.”); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)
(“Form reports in which a physician’s obligation is only to check a box or fill
in a blank are weak evidence at best.”). Accordingly, the ALJ provided
sufficient reasons for discounting the opinions of Drs. Stackman and
Cooke, and her decision to do so is supported by substantial evidence.
B.

RFC Determination
Next, Hoffman contends that the ALJ’s conclusion that she retained

the RFC to perform sedentary work is not supported by substantial
evidence. (Dkt. No. 10 at 20-22.) In particular, Hoffman asserts that the
ALJ improperly relied on the vague opinion of the consulting examiner and
failed to incorporate the effects of Hoffman’s headaches into her RFC
assessment. (Id.) The court disagrees.
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,
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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 evidence 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).
In this case, consulting examiner Megdad Zaatreh found Hoffman to
be in no acute distress, with a steady gait and normal stance. (Tr. at 391.)
Hoffman was able to walk on her heels and toes, squat halfway, change for
the exam and get on and off the exam table without assistance, and rise
from a chair without difficulty. (Id.) Hoffman’s range of motion of her
cervical and lumbar spine was reduced and straight leg raising was positive
at seventy degrees on the right. (Id. at 392.) However, she had full range
of motion of her shoulders, elbows, forearms, wrists, hips, knees and
ankles, and her joints were stable and nontender. (Id.) Hoffman had
physiological and equal deep tendon reflexes, no sensory deficits, and full
strength in her upper and lower extremities. (Id.) Hoffman reported to Dr.
Zaatreh that she cares for her personal hygiene daily, cooks meals twice a
week, cleans her home twice a week, does laundry twice a week, and
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shops once a week. (Id. at 391.) Based on his examination Dr. Zaatreh
opined that Hoffman was moderately limited in her ability to walk, stand,
climb, lift, squat, bend, and kneel, but was not limited in her ability to use
her upper extremities or perform fine motor activities. (Id. at 393.)
Although Hoffman correctly argues that opinions from consultative
examiners that a claimant has “mild” or “moderate” limitations, “without
additional information,” are “so vague as to render [the opinions] useless,”
Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000), superceded by regulation
on other grounds, 20 C.F.R. § 404.1560(c)(2), Dr. Zaatreh’s opinion is well
supported by his extensive examination and is not in any way conclusory,
see Kinder v. Colvin, No. 13-CV-06368, 2014 WL 4184820, at *7 (W.D.N.Y.
Aug. 21, 2014); 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). In addition to being
supported by his own examination results, Dr. Zaatreh’s opinion was also
consistent with the other evidence in the record, such as the results of
Hoffman’s EMG and Dr. Stackman’s examinations, as well as the drug test
which indicated that Hoffman was not taking pain medications, and her
reported activities. (Tr. at 391, 518-19, 539, 567-68, 572-73, 578-79.)
Taken together this evidence supports the conclusion that, although
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Hoffman suffered from back and neck pain, these impairments did not
prevent her from working altogether. (Id. at 17-20.)
With respect to Hoffman’s headaches, the ALJ clearly explained her
reasons for discounting Hoffman’s testimony that she suffers headaches
“all the time.” (Id. at 14, 18, 40.) Specifically, in May 2011, two months
after she began treatment with Dr. Stackman, treatment notes reflect that
Hoffman’s headaches “dramatically improved in terms of frequency with
reduction of her stress level and better sleep, and certainly her headaches
are not occurring frequently enough that prophylactic treatment is
warranted.” (Id. at 522.) Thereafter, in August 2011, Dr. Stackman noted
that Hoffman’s headaches were significantly improved, occurred only two
to three times a month, were less severe in nature, and within an hour of
taking Aleve were gone or remarkably reduced. (Id. at 572-73.) Again, in
March 2012, Dr. Stackman indicated that Hoffman’s headaches remained
improved, occurred episodically, responded to medication, and did not
require any prophylactic treatment. (Id. at 568.) Thus, the ALJ’s
conclusion that headaches do not impose limits on Hoffman’s ability to
engage in basic work activities is supported by substantial evidence. ( Id. at
14, 18.)
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C.

Credibility Determination
Finally, Hoffman argues that the ALJ “improperly used [her] desire to

procreate as” a reason to deny her claim. (Dkt. No. 10 at 23-24.)
According to Hoffman, the ALJ penalized her for wishing to exercise her
fundamental right to procreate, and improperly reached a medical
conclusion as to whether a person complaining of severe pain would wish
to procreate. (Id.) Again, 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
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
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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)).
Here, in making her credibility determination, the ALJ pointed out that
Hoffman’s testimony that she was trying to conceive a child was
inconsistent with her allegations of disabling pain. (Tr. at 18, 50, 511, 513,
535.) According to the ALJ, Hoffman’s contemplation of conceiving and
carrying a pregnancy to term, as well as her intention to engage in some
form of child care in the future, rebuts her testimony that she experiences
severe, incapacitating pain. (Id.) As the Commissioner points out, “[c]ourts
have consistently acknowledged that conceiving and caring for children
relates to the ordinary activities of life” and, thus, have permitted the
Commissioner to consider such evidence in assessing a claimant’s ability
to work. (Dkt. No. 14 at 18); see Michels v. Astrue, 297 F. App’x 74, 76 (2d
Cir. 2008) (stating that evidence that a claimant sought to adopt another
child during the period for which she claimed benefits supported the ALJ’s
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decision that the claimant was not disabled); Louis v. Comm’r of Soc. Sec.,
No. 1:10-cv-973, 2012 WL 1579220, at *4 (W.D. Mich. Mar. 15, 2012)
(holding that, although the decision whether or not to bear children falls
within the constitutionally protected right to privacy, an ALJ may properly
consider a claimant’s ability to bear and care for children as it relates to her
physical condition and ability to execute the ordinary activities of daily life);
see also Dombert v. Astrue, 2010 WL 4878952, *5 (W.D.N.Y. Dec. 1, 2010)
(holding that the ALJ properly determined that the claimant was not fully
credible where the ALJ found that the claimant’s attempt to get pregnant by
using fertility treatment was not consistent with her complaints of
debilitating back pain).
Accordingly, the court concludes that remand is not warranted here.
Standing alone, her attempts to conceive do not create an independent
basis for finding Hoffman not credible. However, taken as a whole, the
ALJ’s credibility determination is not “patently unreasonable.” Pietrunti v.
Director, Office of Workers’ Comp. Programs, 119 F.3d 1035, 1042 (2d Cir.
1997) (“Credibility findings of an ALJ are entitled to great deference and
therefore can be reversed only if they are patently unreasonable.” (internal
quotation marks and citation omitted)). The ALJ found that Hoffman’s
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credibility was undermined by inconsistencies between her treatment
records, which indicated that her headaches had significantly improved and
occurred only a few times a month, and her hearing testimony. (Tr. at 18.)
In addition, the ALJ considered the objective medical evidence, opinion
evidence, Hoffman’s treatment, including medication, and Hoffman’s
reported daily activities. (Id. at 18-19); see 20 C.F.R. § 404.1529(c)(2),
(3)(i),(iv), (v),(vii).
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
Hoffman’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.
November 20, 2014
Albany, New York

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