Rogers-Howell v. Colvin

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Rogers-Howell's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 3/27/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DEIRDRE MARGUERITE
ROGERS-HOWELL,

Plaintiff,

5:14-cv-65
(GLS)

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
Suite 420
Syracuse, NY 13202
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

HOWARD D. OLINSKY, ESQ.

TOMASINA DIGRIGOLI
Special Assistant U.S. Attorney

Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Deirdre Marguerite Rogers-Howell challenges the
Commissioner of Social Security’s denial of 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
Rogers-Howell’s arguments, the court affirms the Commissioner’s decision
and dismisses the complaint.
II. Background
On December 9, 2010, Rogers-Howell filed an application for DIB
under the Social Security Act (“the Act”), alleging disability since October
22, 2009. (Tr.1 at 88, 193-98.) After her application was denied, (id. at 9598), Rogers-Howell requested a hearing before an Administrative Law
Judge (ALJ), which was held on June 28, 2012, (id. at 45-87, 99). On
August 24, 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.
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

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(Id. at 1-6, 20-42.)
Rogers-Howell commenced the present action by filing her complaint
on January 22, 2014 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. 8, 10.) Each party,
seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 12, 13.)
III. Contentions
Rogers-Howell contends that the Commissioner’s decision is tainted
by legal error and is not supported by substantial evidence. (Dkt. No. 12 at
10-18.) Specifically, Rogers-Howell claims that the ALJ erred in failing to:
(1) properly evaluate the medical opinion evidence; (2) adequately assess
her subjective complaints; and (3) obtain the testimony of a vocational
expert (VE). (Id.) The Commissioner counters that the appropriate legal
standards were used by the ALJ and his decision is also supported by
substantial evidence. (Dkt. No. 13 at 6-15.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt. No.
12 at 2-9; Dkt. No. 13 at 2.)
V. Standard of Review
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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.

Evaluating Medical Opinion Evidence
First, Rogers-Howell argues that the ALJ’s residual functional

capacity (RFC)2 determination is not supported by substantial evidence 3
due to the ALJ’s failure to properly evaluate the medical opinion evidence.
(Dkt. No. 12 at 10-15.) Specifically, Rogers-Howell contends that the ALJ
failed to reconcile his mental RFC determination with the opinion of non-

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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 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).
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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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examining medical expert L. Meade, and should have requested
clarification from consulting examiner Muhammed Toor in order to properly
determine her physical RFC. (Id.) The Commissioner counters, and the
court agrees, that the ALJ properly evaluated the medical evidence in
determining Rogers-Howell’s RFC. (Dkt. No. 13 at 6-10.)
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).
Here, the ALJ determined that, due to post-concussive syndrome,
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mild degenerative disc disease of the low back and right knee, and obesity,
Rogers-Howell was limited to lifting and carrying twenty pounds
occasionally and ten pounds frequently, standing or walking for six hours in
a workday, and sitting for six hours in a work day. (Tr. at 33.) The ALJ
further concluded that Rogers-Howell needed to avoid working at
unprotected heights, working around moving machinery, driving a motor
vehicle, and concentrated exposure to respiratory irritants. ( Id.) In
addition, the ALJ limited Rogers-Howell to unskilled work. (Id.) In making
this determination, the ALJ relied on the medical opinions of Drs. Toor and
Meade. In particular, Dr. Toor opined that Rogers-Howell was not limited in
her ability to sit, but was moderately limited in her ability to stand for
prolonged periods, climb, push, pull, and lift or carry heavy objects. ( Id. at
428.) Dr. Toor also recommended that Rogers-Howell avoid respiratory
irritants due to her history of asthma. (Id.) According to Dr. Meade,
despite her history of head trauma and adjustment disorder with mixed
features, Rogers-Howell was capable of performing the mental demands of
unskilled work4 and some skilled work. (Id. at 430-31, 433, 438, 446.)
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“The basic mental demands of competitive, remunerative, unskilled work include the
abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work situations; and to deal with
changes in a routine work setting.” SSR 85-15, 1985 WL 56857, at *4 (1985).

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First, contrary to Rogers-Howell’s suggestion, the ALJ’s RFC
determination is clearly supported by Dr. Meade’s opinion. (Dkt. No. 12 at
10-13; Tr. at 446.) Although Dr. Meade indicated that Rogers-Howell
suffered moderate limitations in her ability to maintain attention and
concentration for extended periods, complete a normal workweek and
perform at a consistent pace, and travel in unfamiliar places, he ultimately
concluded that she was capable of performing unskilled and some skilled
work. (Tr. at 444-46.) Further, while Dr. Toor’s opinion uses the word
“moderate” to describe Rogers-Howell’s physical limitations, his thorough
examination findings in addition to his medical source statement provide
substantial evidence for the ALJ’s conclusion that Roger’s Howell can
perform light work.5 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, Rogers-Howell has only received conservative
treatment for her back and knee pain, including pain medication and
physical therapy. (Tr. at 338-39, 458-69, 475-76, 478-81, 484-85, 488-89.)
5

Under the regulations, light work requires lifting no more than twenty pounds at a time
with frequent lifting or carrying of up to ten pounds. See 20 C.F.R. § 404.1567(b). Further,
“the full range of light work requires standing or walking, off and on, for a total of approximately
[six] hours of an [eight]-hour workday.” SSR 83-10, 1983 WL 31251, at *6 (1983).

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She first sought treatment for low back and leg pain in May 2010. (Id. at
338-39.) At this time, an examination revealed paraspinal tenderness, but
straight leg raising was negative bilaterally. (Id. at 339.) Rogers-Howell
did not seek treatment again for her back and leg pain until July 2011. ( Id.
at 484-85.) Her most recent treatment records, in April 2012, indicate that
her knee was “not doing badly,” but her low back was painful. (Id. at 458.)
Her physical examination revealed reduced range of motion of her lumbar
spine and increased lumbar lordosis with a persistent lordosis with forward
flexion. (Id.) Considering Dr. Toor’s opinion and examination results, as
well as Rogers-Howell’s treatment history, the ALJ’s RFC determination is
supported by substantial evidence.
B.

Credibility Determination
Next, Rogers-Howell complains that the ALJ failed to evaluate the

credibility of her subjective complaints under the appropriate legal
standard. (Dkt. No. 12 at 15-17.) According to Rogers-Howell, the ALJ
improperly penalized her for enduring pain in order to perform basic daily
activities. (Id. at 16.) Additionally, Rogers-Howell claims that the ALJ erred
in drawing inferences from her failure to seek or pursue regular medical
treatment, without first considering any explanations for such failure. ( Id. at
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16-17.) Lastly, Rogers-Howell argues that the ALJ failed to offer good
reasons for discounting the testimony of her husband. (Id. at 17.) 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,” 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
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
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-CV9

444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
§ 404.1529(c)(3)(i)-(vi)).
Here, the ALJ concluded that Rogers-Howell’s testimony concerning
the intensity, persistence, and limiting effects of her symptoms was only
“partially credible.” (Tr. at 33.) Specifically, the ALJ considered RogersHowell’s daily activities, treatment records, and the medical opinions of
record. (Id.); See 20 C.F.R. § 404.1529(c)(3)(i), (v), (vii). The ALJ noted
the significant gaps in her treatment history, the minimal clinical findings on
examination, and her improvement with physical therapy. (Tr. at 33.) With
respect to her daily activities, Rogers-Howell acknowledged that she cared
for her personal hygiene, dusted and vacuumed, cleaned dishes, walked to
her mailbox and across the road to visit with a friend, talked on the phone,
watched television, cared for her cat, and went “out to get food.” ( Id. at 6364, 422, 426.) While these activities alone do not create an independent
basis for finding Rogers-Howell not credible, 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
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quotation marks and citation omitted)).
With respect to the gaps in Rogers-Howell’s medical treatment
history, an “individual’s statements may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints.” SSR
96-7p, 61 Fed. Reg. at 34,487. Although an adjudicator should “first
consider[] any explanations that the individual may provide, or other
information in the case record, that may explain infrequent or irregular
medical visits or failure to seek medical treatment,” id., here Rogers-Howell
does not offer any explanation, or point to any evidence that may explain
her failure to seek medical treatment for the persistent pain, cognitive
problems, and psychiatric problems of which she complains. (Dkt. No. 12
at 16-17.) Although Social Security Ruling 96-7p provides that “[t]he
adjudicator may need to recontact the individual or question the individual
at the administrative proceeding in order to determine whether there are
good reasons the individual does not seek medical treatment or does not
pursue treatment in a consistent manner,” 61 Fed. Reg. at 34,487, the
court concludes that the ALJ was not obligated to supplement the record
here. Whatever her reasons for failing to seek treatment, this does not
alter the fact that her treatment notes contain few clinical findings and
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reflect conservative treatment. (Tr. at 338-39, 458, 475-76, 478-79, 48485, 488-89) Moreover, when asked to rate her back and leg pain on a
scale from one to ten, Rogers-Howell often indicated mild to moderate
pain. (Id. at 475, 484, 494, 497.)
Finally, the ALJ considered the testimony of Rogers-Howell’s
husband, and discounted it because it was inconsistent with the medical
opinions of record. (Id. at 33.) This determination is also supported by
substantial evidence. In particular, Rogers-Howell’s husband testified that
she experiences concentration and memory problems that affect her ability
to prepare meals, watch movies, and take her medication properly. ( Id. at
81-82.) However, whenever tested on examination, Rogers-Howell’s
memory and concentration was found to be intact. (Id. at 421-22, 485, 489,
501.) Further, consulting examiner Jeanne Shapiro opined that RogersHowell could follow simple instructions and perform simple and some
complex tasks, and Dr. Meade concluded that Rogers-Howell could
maintain the attention and concentration necessary for unskilled and some
skilled work. (Id. at 422, 446.)
C.

VE Testimony
Finally, Rogers-Howell contends that the ALJ was obligated to obtain
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the testimony of a VE to determine, at step five of the sequential
evaluation, whether other work which Rogers-Howell can perform exists in
significant numbers in the national economy. (Dkt. No. 12 at 17-18.)
According to Rogers-Howell, because there is substantial evidence that
she suffers mental impairments, which would interfere with her ability to
perform work-related tasks, the ALJ should have obtained VE testimony to
determine the extent to which the occupational base was eroded. (Id.)
Again, the court disagrees. As discussed above, the ALJ’s RFC
determination was sound and supported by substantial evidence. Thus, it
was unnecessary to consult a VE because the ALJ found that RogersHowell’s nonexertional limitations “ha[d] very little effect on the size of the
remaining occupational base for unskilled light work.” 6 (Tr. at 35-36.)
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.

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Reliance on the Medical-Vocation Guidelines is improper “when a claimant’s
nonexertional impairments significantly diminish h[er] ability to work—over and above any
incapacity caused solely from exertional limitations—so that [s]he is unable to perform the full
range of employment indicated by the” guidelines. Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir.
1986). Instead, where nonexertional impairments significantly diminish a claimant’s ability to
work, “the Secretary must introduce the testimony of a vocational expert (or other similar
evidence) that jobs exist in the economy which claimant can obtain and perform.” Id.

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VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Rogers-Howell’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.
March 27, 2015
Albany, New York

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